Dubois v. Corporation of Ste. Rose, (1892) 21 SCR 65

Supreme Court of Canada

Dubois v. La Corporation Du Village De Ste Rose, (1892) 21 SCR 65

Date: 1892-05-21

JULES DUBOIS et al. (DEFENDANTS)

Appellant;

and

LA CORPORATION DU VILLAGE DE STE. ROSE (PLAINTIFF)

Respondent.

1892: May 31

Present:—Sir W. J. Ritchie C.J. and Strong, Taschereau, Gwynne and Patterson JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Appeal—Road repair—Municipal by-law—Validity of-—Right in future— Supreme and Exchequer Courts Acts, sec. 29 (b).

In an action brought by the respondent corporation for the recovery of the sum of $262114 paid out by it for macadam work on a piece of road fronting the appellants lands, the work of macadamising the said road and keeping it in repair being imposed by a by-law of the municipal council of the respondent, the appellants pleaded the nullity of the by-law. On appeal to the Supreme Court of Canada from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) dismissing the appellants' plea:

Held, that the appellants' obligation to keep the road in repair under the by-law not being "future rights within the meaning of section 29 (6). the case was not appealable. County of Verchères v. Village of Varennes (19 Can. S. C. R. 365) followed and Reburn v. Ste. Anne (15 Can. S. C. R. 92) distinguished. Gwynne J. dissenting.

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) rendered on the 26th December, 1891, affirming a judgment of the Superior Court for the district of Montreal, by which the appellants were condemned to pay to the respondent the sum of $262.14, for money paid out by respondent for the performance of macadam work imposed upon the appellants by a municipal by-law passed by the council of the respondent.

On appeal to the Supreme Court the respondent's counsel moved to quash the appeal on the ground of want of jurisdiction.

[Page 66]

Geoffrion Q.C. for respondent cited and relied on VerchèreS V. Varennes ([1]).

Fortin for appellants contra cited Reburn v. Ste. Anne ([2]) and contended that in the case of VerchŁres v. Varennes (1) the question was as to the validity of a procès-verbal, whilst in the present case as in the case of Reburn v. Ste. Anne (2) the validity of the municipal by-law was denied.

The judgment of the majority of the court was delivered by:

TASCHEREAU J.—This is an appeal from a. judgment of the Court of Queen's Bench for Lower Canada, affirming a judgment of the Superior Court for the district of Montreal by which the appellants were condemned to pay to the respondent the sum of $262.14. The respondent moves to quash for want of jurisdiction.

The action was for the recovery of said sum of $262.-14, being for money paid out by respondent for the performance of macadam work imposed upon the appellants by a municipal by-law passed by the council of the respondent. To this action the appellants pleaded the nullity of the said by-law.

This case is clearly not appealable to this court. The appellants' right in future as to the obligation to keep this road in repair may be bound by the judgment of the Court of Queen's Bench, but these rights do not fall under the denomination of any of those mentioned in section 29 of the Supreme Court Act.

The appellant attempted to base his claim to an appeal upon the authority of the case of Reburn v. Ste. Anne (2) but that case as we intimated at the argument,

[Page 67]

is no authority on the question of jurisdiction, two of the judges being of opinion that the appeal in that case did not lie and His Lordship the Chief Justice assuming jurisdiction without deciding the point as on the merits he was of opinion that the appeal should be dismissed. Verchères v. Varennes ([3]), and Wineberg v. Hampson ([4]), determined since Reburn v. Ste. Anne ([5]), are authorities precluding us from entertaining this appeal.

GWYNEE J. To an action for debt upon a by-law it is, in my opinion, competent for a defendant to defeat the action by showing the by-law to be ultra vires and void and so that the debt never existed in law The by-law in question affects to impose upon the lands of the appellants the obligation of bearing the expense of macadamising and maintaining macadamised during all time a piece of road extending about 20 arpents along the extent of his lands; this obligation, if the by-law should be maintained, would operate as a burthen upon the land during all time and no one can say that the pecuniary damages resulting from the imposition of such a burthen on the appellants' land does not amount to the sum of two thousand dollars so as to deprive the appellants of their right to question upon this appeal the validity of the by-law which affects to impose such a burthen on their lands and of the judgment rendered upon the basis of the validity of the by-law. The matter in controversy in the present action is not merely the sum for which, as the cost of constructing but a small portion of the road, the judgment has been recovered, but the validity of the by-law upon which alone that judgment can be sustained and which affects to impose so serious a

[Page 68]

burthen for all time on the appellants' land. In short the controversy is whether the title to their land can be so injuriously affected. In my opinion this is a matter which is appealable in the present action notwithstanding the small amount for which the judgment has been rendered and which is but a fraction of the burthen which the by-law affects to impose; and that the case is appealable is, in my opinion, concluded by the judgment of this court in Reburn v. Ste. Anne du Bout de l'Iste ([6]).

Appeal quashed with costs.

Solicitors for appellants : Bastien & Fortin.

Solicitors for respondent : Ouinet & Emard.