McGugan v. McGugan, (1892) 21 SCR 267

Supreme Court of Canada

McGugan v. McGugan, (1892) 21 S.C.R. 267

Date: 1892-06-20

John McGugan (Plaintiff) Appellant;

and

Alexander McGugan and Others (Defendants) Respondents.

1892: June 20.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Solicitor—Bill of costs—Order for taxation—R.S.O. (1887) ch. 147 s. 42—Appeal—Jurisdiction—Discretion—Proceeding originating in Superior Court—Final judgment.

By R.S.O. (1887) ch. 147 s. 42 any person not chargeable as the principal party who is liable to pay or has paid a solicitor’s bill of costs may apply to a judge of the High Court, or of the County Court, for an order for taxation. An action was brought against school trustees and a ratepayer of the district applied to a judge of the High Court for an order under this section to tax the bill of the solicitor of the plaintiff, who had recovered judgment. The application was refused, but on appeal to the Divisional Court the judgment refusing it was reversed. There was no appeal as of right to the Court of Appeal from the latter decision, but leave to appeal was granted and the Court of Appeal reversed the judgment of the Divisional Court and restored the original judgment refusing the application. From this last decision an appeal was sought to the Supreme Court of Canada.

Held, per Ritchie C.J., Strong and Gwynne JJ., that assuming the court had jurisdiction to entertain the appeal the subject matter being one of taxation of costs this court should not interfere with the decision of the provincial courts which are the most competent tribunals to deal with such matters.

Per Ritchie C.J., Strong and Patterson JJ., that a ratepayer is not entitled to an order for taxation under said section.

Per Taschereau J.—The court has no jurisdiction to entertain the appeal as the judgment appealed from was not a final judgment within the meaning of the Supreme Court Act; the matter was one in the discretion of the courts below; and the proceedings did not originate in a Superior Court.

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Per Patterson J.—The making or refusing to make the order applied for is a matter of discretion and the case is, therefore, not appealable.

APPEAL from a decision of the Court of Appeal for Ontario^[1] reversing the judgment of the Divisional Court^[2].

An action was brought in the County Court against the trustees of a school section of the township of Southwold to have the solicitor’s bill in an action brought by said trustees against the school board, and delivered by the solicitor to the board, referred to a taxing officer for a report thereon, and for a decree ordering the amount disallowed from said bill to be repaid to the treasurer of the school section. The county court judge decided that he had no jurisdiction to try the action but that he had power to transfer it to the High Court, whereupon the defendants applied to the High Court for an order prohibiting such transfer or any further proceedings by the County Court in the action. The plaintiff made a cross-motion for a summary order to refer the bill of costs to taxation pursuant to sec. 42 of R.S.O. (1887) ch. 147. The motions were argued together before Mr. Justice Rose who dismissed plaintiff’s motion for an order for taxation and reserved judgment on the other. The plaintiff appealed to the Divisional Court which reversed the decision of Rose J. and granted the order for taxation. On further appeal to the Court of Appeal the judgment of the Divisional Court was reversed and that of Rose J. restored. The plaintiff then sought to appeal to this court.

Riddell and J.A. Robinson for the appellants referred to the case of Ex parte Bass^[3].

The court raised the question of jurisdiction and concluded that the appeal could not be entertained.

Glenn for the respondents was not called upon.

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Sir W.J. RITCHIE C.J.—I am not prepared to admit at present that we have jurisdiction to hear this appeal, because I think it was a pure matter of discretion in the judge to make the order or not, and moreover it was discretionary with the Court of Appeal to allow an appeal from the judge’s decision or not, and the judgment sought to be appealed from was not a final judgment. But assuming that we have jurisdiction I think this is not a case in which we should interfere, more especially as it appears in the record that an action is now pending in the Superior Court to try the issue raised in this matter. More than that I very much doubt that a ratepayer is a person entitled to an order for taxation of costs. But admitting all this in favour of the appellant I think this court should not interfere in a matter of this kind. I think it would be a monstrous thing for us to interfere in matters relating to costs, for there can be no better tribunal for dealing. with such matters than the courts of the provinces in which the proceedings are taken. If we hear an appeal in one case of the kind we must do so in every such case that comes before us.

For these reasons I am clearly of opinion that this appeal should be dismissed.

STRONG J.—Without actually deciding the case upon that ground I am strongly of opinion that we have no jurisdiction to hear this appeal. In the case referred to by my brother Taschereau of The Canadian Pacific Railway Co. v. St. Thèrese^[4] it was determined, on appeal from the Court of Queen’s Bench of the province of Quebec, that a matter in which the proceedings originated before a judge in chambers, pursuant to statute, was not within the provisions of the Supreme Court Act which require cases brought to this court on appeal to originate in a Superior Court. I agree in the ratio decidendi of that case and think it

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is decisive here. True, the statute says that the application in the present case may be made to a judge of the High Court of Justice or of the County Court, and the judge of the County Court is a local judge of the High Court, but it is to be made to a judge in chambers, and I cannot see any difference in this respect between the case referred to and the present case. There was an alternative mode of commencing the proceedings, and if the application had been made to the Divisional Court the case might have been appealable, but the parties chose to adopt the other course. It makes no difference to say that a judge in chambers exercises the powers of the court. That was the argument in the Canadian Pacific Railway Co. v. St. Thèrese⁴. We are bound by that decision, and I think it should be conclusive.

However, I do not rest my decision on that ground alone. I agree with what the Chief Justice has said. Nearly a year ago the case of O’Donohoe v. Bealty^[5] came before this court, and during the argument my brother Patterson raised the question of jurisdiction to hear the appeal, and Mr. Justice Gwynne said, “I think that sitting as a Court of Appeal we should not interfere with the judgment of the Divisional Court on a question of this kind.” Afterwards the judgment of the court in that case was delivered by my brother Gwynne, who said, “I have entertained, and still entertain, great doubt whether an appeal should be entertained, by this court in a matter of this description, which relates wholly to the practice and procedure of the High Court of Justice and of an officer of that court in construing the rules of the court, and in executing an order of reference made to him by the court.” I think, therefore, that on the grounds indicated, even admitting that the party strictly has a locus standi so far as regards jurisdiction, we ought not

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to exercise jurisdiction in such a case as this, not merely because the order was made in the exercise of discretion but for the reason mentioned by the Chief Justice, namely, that it was never intended that this court should interfere in such matters.

Lastly, in considering the case upon the merits, and having heard what was urged by counsel, I am of opinion that the case of Re Barber^[6] is a decision that ought to govern this case. It is undistinguishable in its facts from the present appeal. I entirely disagree with the Divisional Court in their construction of the statute and of the words “shall be liable to pay.” Shall be liable to pay whom? It must mean liable to pay somebody; but a ratepayer is not liable to pay a solicitor though he may be liable to contribute to a fund for the purpose; but he is not liable in the sense of the statute. The statute meant liable to pay directly which is not the liability of a ratepayer.

On these grounds I think the appeal should be dismissed.

TASCHEREAU J.—In my opinion the appeal should be quashed on three grounds, namely, that the judgment appealed from was not a final judgment within the meaning of the Supreme Court Act; that it was a matter entirely within the discretion of the court below; and that the proceedings did not originate in a superior court.

GWYNNE J.—Without determining whether or not we have jurisdiction to entertain this appeal upon the question raised as to whether or not the matter originated in a superior court I do not think we ought to interfere in a matter of this nature relating to orders for reference of a bill of costs to taxation, the more espe-

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cially (as just observed by the Chief Justice) as an action appears to be preceding in which the identical matter in question is raised.

PATTERSON J.—I agree with the other members of the court as to the result of this appeal. I think this order was one of those that are in the discretion of the court below and on that account not appealable to this court. I do not express any final opinion upon the question as to whether or not these proceedings originated in a superior court. It is very difficult to gather from the statute what the proceeding really is, but I do not think that a judge of a County Court, with the jurisdiction given him in matters of this kind, represents the High Court of Justice. Section 41 of the act R.S.O. (1887) ch. 147, provides that a judge of the High Court, or a county judge, on proof to his satisfaction that there is probable cause for believing that the party chargeable is about to quit Ontario, may authorise an action to be commenced, &c. Then there are other provisions which authorise an order to tax to be made by the High Court or a judge thereof, or a judge of a County Court. I think this treats a judge of the County Court as such simply, and not as exercising the powers of the High Court.

As to the merits I agree with the judgment of Mr. Justice Osler in the Court of Appeal. I do not think the ratepayer in a case such as this is a party chargeable within the meaning of the statute so as to be entitled to apply for an order for taxation. I entirely agree with the result dismissing the appeal.

Appeal dismissed with costs.

Solicitor for appellant: John A. Robinson.

Solicitor for respondent: James M. Glenn.