The St. John Lumber Company v. Roy

The St. John Lumber Company v. Roy
Collection
Supreme Court Judgments
Date
1916-05-16
Report
(1916) 53 SCR 310
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
New Brunswick
Subjects
Appeal
Decision Content
Supreme Court of Canada
The St. John Lumber Company v. Roy, (1916) 53 S.C.R. 310
Date: 1916-05-16
The Saint John Lumber Company (Defendants) Appellants;
and
William Roy (Plaintiff) Respondent.
1916: May 16.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Appeal—Final, judgment—Substantive right—"Supreme Court Act," s. 2 (e)—3 & 4 Geo. V., c. 51—Procedure—Service out of jurisdiction—Costs.
No appeal lies to the Supreme Court of Canada from a judgment of the Supreme Court of New Brunswick affirming the decision of a judge who refused to set aside his order for service of a writ out of the jurisdiction. Idington J. dissenting.
Per. Davies and Anglin JJ.—The judgment did not dispose of any substantive right * * * in controversy in the action and therefore was not a final judgment as that term is defined in 3 & 4 Geo. V., ch. 51.
The appeal was quashed but respondent was only given the general costs of appeal to the date of the motion to quash as he had not conformed to the requirements of Supreme Court Rules 4 and 5.
APPEAL from a judgment of the Supreme Court of New Brunswick affirming the refusal of a judge to set aside his order for service of the writ out of the jurisdiction.
The respondent moved to quash on the ground that the appeal was not from a final judgment. He claimed; also, that if the appeal would lie it only related to a matter of procedure and should not be entertained.
M. L. Hayward on behalf of the respondent moved to quash referring to Martin v. Moore[1]; Reg. v. Toland[2]; Pritchard v. Norton[3] J. T. F. Winslow for the appellants contra cited Bray v. Ford[4]
The Chief Justice.—This is an appeal from a judgment of the Supreme Court of New Brunswick which affirmed an order of a Judge in Chambers who refused to set aside an earlier order made by himself granting leave to serve a writ of summons out of the jurisdiction.
It seems a point of practice and there is no final judgment. The case of Martin v. Moore[5], seems in point. In the later case of Rowland & Co. v. Dominion Bank[6], the question of jurisdiction of the Supreme Court does not appear to have been considered.
It seems to me the only question here is whether the amendment of the "Supreme Court Act" 1913 defining a final judgment would cover a case such as this. The amount involved is only $48.
With some hesitation I have come to the conclusion that no appeal lies.
Davies J.—I concur in the opinion of Mr. Justice Anglin.
Idington J. (dissenting)—The respondent's motion to quash this appeal should turn upon a consideration first, of the question whether or not the case is covered by the general refusal of this court in mere matters of procedure to entertain an appeal dependent on procedure as was held under the construction heretofore put upon the "Supreme Court Act" defining the words "final judgment," and secondly, the substitutionary amendment of that Act in 1913 by the first section of 3 & 4 Geo. V., ch. 51, quoted hereinafter.
The appeal involves the question of the jurisdiction of a New Brunswick court to try a case brought there against appellant, a foreign corporation. The appellant contends there is none because by the law of New Brunswick there is no power given in the circumstances to serve the appellant as such. We are not concerned in this motion either with the merits of the case, which is for a trifling amount, or with the law relative to the question of jurisdiction.
It so happens that the case may yet be tried on its merits as the judgment appealed from stands. But in principle the converse case might arise any day, of a suitor prosecuting his rights being denied justice by an order refusing to exercise the jurisdiction of the court and he suffering in such a case would, if the holding of the majority herein is maintained, be driven to a foreign court to prosecute his remedy.
It is alleged that is a mere question of procedure.
Even so this court has affirmed in many cases its jurisdiction to hear appeals involving only questions of procedure.
Of these cases, there is the case of Lambe v. Armstrong[7], in which the late Mr. Justice Girouard, speaking for the court, succinctly stated the law as follows:—
This appeal raises only a question of procedure in the court below, and consequently the respondent contended that we should not interfere with the judgment appealed from. But questions of practice cannot be ignored by this court when their decision involves the substantial rights of the litigants, or sanctions a grave injustice. We believe that this is one of those cases. That case involved a question of procedure in regard to a sheriff's sale and this court reversed a mere practice order of the Quebec Court of Queen's Bench.
This court in the case of Eastern Townships Bank v. Swan[8], followed that decision in a case involving a mere question of practice as to the making of an ex parte order fixing peremptorily a date for the adduction of evidence, and hearing, and again reversed the same Court of Queen's Bench.
In the case of Price v. Fraser[9], this court again entertained an appeal where a mere question of procedure was involved and again reversed the same Court of Queen's Bench which had held that the Court of Review had no jurisdiction to make the order it did respecting the mere inscription of a case.
That case raised in principle exactly that which is raised herein. The facts upon which the question of jurisdiction turned, of course, were not the same as here, but simply raised the question of the jurisdiction of the court. And the neat point as here was, whether or not the Court of Queen's Bench, in holding the court below had no jurisdiction, was right or wrong.
In Finnie v. City of Montreal[10], this court affirmed its jurisdiction to review and reverse the court below on a mere question of practice. I pointed out in the argument of this motion that the law is as laid down in these cases without referring to authority, for the point has been taken so many times and decided that it was no more a question of this court's jurisdiction that was involved in the cases of mere procedure but one of expediency generally decided by regard to whether or not there was involved a question of the denial of a right sometimes tested by an appeal to the principles of natural justice.
I know of nothing more grave in the administration of justice than a decision of whether or not a court presuming to try a case had jurisdiction to do so.
The appellate court haying such power of determination relative to the jurisdiction of an inferior court, which refuses to assert that power, I most respectfully submit, fails to discharge its duty.
In those cases involving the jurisdiction over foreigners and presuming to assert that which it has not, the question becomes more grave and delicate than when only our own citizens are concerned.
In the case of Arpin v. Merchants Bank of Canada[11], the late Chief Justice Strong laid down the law in refusing a new practice appeal, as follows:—
We have always said that on points of practice like this we will follow the course of the Privy Council, as laid down in the Mayor of Montreal v. Brown and Springle[12], and we have already acted on that principle in the cases of Gladwin v. Cummings[13], Dawson v. Union Bank[14] and Scammell v. James[15].
These cases illustrate his meaning and the dictum relied upon in Brown's Case is to be found at page 184 of the report wherein it appears.
I think therefore that the motion should be refused and the case heard.
Then let us pass that ground and coming, to that involved in the amendment by section 1 of ch. 51 of 3 & 4 Geo. V. which is as follows:— Paragraph (e) of section 2 of the "Supreme Court Act," chapter 139 of the Revised Statutes, 1906, is repealed and the following is substituted therefor:—
(e) save as regards appeals from the Province of Quebec, "final judgment" means any judgment, rule, order or decision which determines in whole or in part any substantive right of any of the parties in controversy in any action, suit, cause, matter or other judicial proceeding, and, as regards appeals from the Province of Quebec, "final judgment" means, as heretofore, any judgment, rule, order or decision whereby the action, suit, cause, matter or other judicial proceeding is finally determined and concluded.
A long line of decisions by our predecessors in this court refusing to hear appeals from judgments and orders, sometimes of an interlocutory character, and at other times determining some of the rights of litigants, seemed to bind us, now sitting in this court, and several decisions were given which seemed within meaning of the "Supreme Court Act," so interpreted, to prevent appeals from what in effect were final judgments though not supposed to be such as intended to come here for review.
This amendment I have just quoted was designed to furnish a remedy therefor.
It was stated by counsel supporting this motion that the Honourable the Minister of Justice had in effect stated in Parliament that the amendment emanated from this court.
I may be permitted to disclaim any responsibility for it. I declined to take part therein for I conceived another method was desirable and the amendment as framed not unlikely to be productive of undesirable results.
I am free, therefore, to interpret and construe it as I should any other new statute enacted to remedy what was considered an obvious evil.
Surely if ever there was a case falling within the scope of legislation such as this, when we have regard to the numerous decisions which gave rise to a need for reform, this case presents it, if the jurisprudence of the court had not already settled the question as against the view entertained by my brother judges in proposing to quash this appeal.
If the jurisdiction to try the case brought against a man who disputes that jurisdiction, does not involve the determination of a substantive right of any of the parties to the controversy, I fail to understand what would.
As I have already shewn this court has held in the cases I have cited there was perhaps no need for the amendment to give the right of appeal.
Or are we to be told that there was need for an amendment to take the right of appeal away in cases turning upon what may be called procedure though involving substantial questions of justice as in those I have already cited? And I have by no means exhausted the list of cases wherein the like relief has been got here. If the interpretation counsel supporting the motion tried to put upon the words is correct, such would be the effect of the amendment; it would give relief in a few cases and deprive others of the right of relief they have heretofore had.
I am not concerned on which ground the appellant goes. Whether on the jurisprudence of this court or the amendment, clearly the appellant is entitled to have its appeal heard.
I therefore think the motion should be dismissed.
Anglin J.—This is a purely common law action. The subject of appeal must, therefore, be a "final judgment." That an order dismissing a motion to set aside the service of a writ of summons out of the jurisdiction is a final judgment apart from the statutory definition of that term is scarcely arguable. (See cases collected in Snow's Annual Practice, 1916, pp. 1108-9 and 1121-3.) That such an order was not a final judgment within the definition of that term in the "Supreme Court Act" prior to 1913 is settled jurisprudence. Martin v. Moore[16]. The appellant maintains that the case falls within the amendment of 1913.
In my opinion the right to serve a writ of summons out of the jurisdiction is not
a substantive right of any of the parties in controversy in any action,
within the meaning of section 2 (e) of the "Supreme Court Act," as enacted by 3 & 4 Geo. V., ch. 51, sec. 1. It is not "a substantive right" at all; and it is not "a right in controversy in the action" within the meaning of that phrase as used in section 2 (e).
The question disposed of by the judgment before us is one of remedy rather than of substantive right. The obligation of the contract, which is the substantive right in controversy in the action, Reg. v. Toland[17], is not affected by the giving or withholding of this additional remedy for its enforcement. Cooley's Constitutional Limitations, 5 ed., pp. 346-9. I say additional, because the existence of a remedy in the forum of the domicile of the defendant is unquestioned. No doubt the plaintiff may gain a substantial advantage and the defendant suffer a corresponding detriment as a result of the judgment in appeal—but no more so than may result in many cases where some right of discovery or other purely incidental right of procedure has been accorded the one or denied the other. Nobody would dream of maintaining that a judgment or order dealing with such a matter of procedure had determined a substantive right in controversy in the action. To do so would involve holding that every interlocutory order of the highest provincial court which materially affects the remedy or prospect of recovery is appealable to this court as a final judgment. No line of exclusion could be drawn. It can scarcely be necessary to state that Parliament did not intend to do anything so irrational as to limit the right of appeal to a "final judgment" and then, by a definition of that term, to render the limitation thus imposed useless and absurd. While
a court of law has nothing to do with the reasonableness or unreasonableness of a provision, except in so far as it may help them in interpreting what the legislature has said, (Cooke v. Chas. A. Vogeler Co.[18]), you are not to construe the Act of Parliament so as to reduce it to rank absurdity, * * * You must give it such meaning as will carry out its objects. The "Duke of Buccleuch"[19].
The language should not unnecessarily be applied to something not within the mischief contemplated by the Act if to do so will produce manifest absurdity or inconvenience. Yates v. The Queen[20]. In my humble-opinion the language used in the definition of "final judgment" given its literal meaning does not lead to any such absurdity. On the contrary, it seems apt to preclude precisely the contention which the appellants present in this case. The right determined must be substantive. The judgment must affect the existence or the enforceability of the obligation sued upon—the right in controversy in the action. That, I take it, means that a judgment appealable to this court as a "final judgment" must at least in part dispose of the merits of the action. The amendment of 1913 leaves untouched the considerations which led this court to decline jurisdiction in Martin v. Moore[21]. In fact it seems designed to make it clear that they are still to prevail
This amendment was enacted to meet the difficulties exemplified and emphasized by the then recent decisions in Union Bank of Halifax v. Dickie[22]; Wenger v. Lamont[23]; Clarke v. Goodall[24]; Crown Life Ins. Co. v. Skinner[25]; and Hesseltine v. Nelles[26]. In construing it, it is our duty
to look to the purpose of the enactment, the mischief to be prevented, and the remedy which the legislature intended to apply.
The Queen v. Allen[27]; to suppress the mischief and advance the remedy; Heydon's Case[28], Peek v. North Staffordshire Railway Co.[29];
to find out what the meaning of the legislature is; and to attach a rational and beneficial meaning, if possible, rather than an irrational and injurious meaning.
Mersey Steel and Iron Co. v. Naylor, Benzon & Co.[30], in 1882. The mischief which the amendment of 1913 was designed to remedy was the fact that theretofore, because no judgment was considered final for purposes of appeal to this court unless it not only disposed of the rights of the parties in controversy in the action but also concluded the action itself, in a common law action, subject to a few special exceptions, a judgment which conclusively determined that the plaintiff was entitled to the relief he sought was not appealable unless it also finally dealt with and disposed of the quantum of the recovery to which he was entitled. That was the result of the definition of "final judgment" as enacted by 42 Vict., ch. 39, Sec. 9—a provision not unreasonable when it was made, but which afterwards became productive of consequences not anticipated owing to the introduction into common law actions of methods of procedure formerly peculiar to courts of equity. Hesseltine v. Nelles[31]. It was certainly not intended by the amendment of 1913 to make appealable to this court any judgment purely interlocutory in character. The purpose of confining the right of appeal to judgments determining substantive rights of the parties in controversy in the action was to exclude judgments or orders dealing with matters of remedy and procedure, only. The order maintaining the service of the writ is such an order. It does not determine any substantive right in controversy in the action. I am for these reasons of the opinion that the judgment of the Supreme Court of New Brunswick from which the defendant seeks to appeal is not a final judgment appealable to this court and that this appeal should be quashed.
Brodeur J.—I am in favour of granting the motion to quash because it is not a final judgment.
The appellant relied on the 1913 amendment but I am of opinion that the order from which he is appealing does not dispose of a "substantive right" of any of the parties in controversy in the action.
On a subsequent day His Lordship the Chief Justice delivered the following opinion as to the costs of the appeal. The Chief Justice.—This appeal has been quashed for want of jurisdiction. The respondent asks not only for the costs of the motion but also for the general costs of the appeal on the ground that he moved as soon as he could and that by consent of counsel the motion, which was returnable on the first day of the May session, stood over until the appeal came on to be heard on the merits.
Rule 4 of the Supreme Court Rules provides for the respondent moving to quash within fifteen days after the security has been approved. Rule 5 provides that all proceedings in the appeal shall be stayed after service of the motion to quash until that motion has been disposed of or unless a judge of the Supreme Court shall otherwise order.
These two rules were adopted when the rules were revised in 1907. Previous to that time it frequently happened that appeals were quashed for want of jurisdiction when they came on to be heard on the merits and when the appellant had expended a very large sum of money in connection with the printing of his appeal book. The rules were devised to save unnecessary expense of this kind.
In the present instance it would appear that the solicitors took it upon themselves to ignore the provisions of Rule 5 and proceeded with the printing of the case and factums before the time had expired within which the appellant could move to affirm jurisdiction and the appeal was inscribed for hearing at the present session. This was entirely irregular and if permitted, would nullify the entire object for which the said rules were passed.
Under these circumstances the respondent is certainly not entitled to obtain anything more than the ordinary costs of the motion to quash and what if the rules had been observed would have been the general costs of the appeal up to the date when the motion to quash was served.
Appeal quashed with costs.
Solicitors for the appellants: Gregory & Winslow.
Solicitor for the respondent: M. L. Hayward.
[1] 18 Can. S.C.R. 634.
[2] 22 O.R. 505.
[3] 106 U.S.R. 124.
[4] [1896] A.C. 44.
[5] 18 Can. S.C.R. 634.
[6] 22 Can. S.C.R. 130.
[7] 27 Can. S.C.R. 309.
[8] 29 Can. S.C.R. 193.
[9] 31 Can. S.C.R. 505.
[10] 32 Can. S.C.R. 335.
[11] 24 Can. S.C.R. 142.
[12] 2 App. Cas. 168, at p. 184.
[13] Cass. Dig. 2 ed. 426.
[14] Cass. Dig. 2 ed. 428.
[15] Cass. Dig. 2 ed. 441.
[16] 18 Can. S.C.R. 634.
[17] 22 O. R. 505, at p. 509.
[18] [1901] A. C. 102, at p. 107.
[19] 15 P. D. 86, at p. 96.
[20] 14 Q.B.D. 648, at p. 660.
[21] 18 Can. S.C.R. 634.
[22] 41 Can. S.C.R. 13.
[23] 41 Can. S.C.R. 603.
[24] 44 Can. S.C.R. 284.
[25] 44 Can. S.C.R. 616.
[26] 47 Can. S.C.R. 230.
[27] L.R. 1 C.C.R. 367, at p. 374.
[28] 3 Coke Rep. 7.
[29] 10 H.L. Cas. 473, at p. 492.
[30] 9 Q.B.D. 648, at p. 660.
[31] 47 Can. S.C.R. 230, at pp. 237-8.