Supreme Court of Canada
North Eastern Banking Co. v. Royal Trust Co. / In re Atlantic & Lake Superior Ry. Co., (1908) 40 S.C.R. 1
Date: 1908-10-07
In The Matter of The Atlantic and Lake Superior Railway Company.
The North Eastern Banking Company (Claimants) Appellants;
and
The Royal Trust Company (Plaintiffs) and George Ball and Others (Claimants) Respondents.
1908: October 6; 1908: October 7.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Appeal—Jurisdiction—Final judgment—Time for appealing—Exchequer Court Act, R.S.C. (1906) c. 140, s. 82—Exchequer Court rules.
Notwithstanding that no appeal has been taken from the report of a referee within the fourteen days mentioned in sections 19 and 20 of the General Rules and Orders of the Exchequer Court of
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Canada (12th December, 1899), an appeal will lie to the Supreme Court of Canada from an order by the judge confirming the report, as required by the said sections, within the thirty days limited by section 82 of the Exchequer Court Act, R.S.C. (1906) ch. 140.
MOTION to quash an appeal from the judgment of the Exchequer Court of Canada, confirming the report of the referee appointed to take the accounts and determine the amounts due to the creditors of the railway company, and to fix the amounts due and the priority of the claims.
Upon an order of reference to the registrar of the Exchequer Court of Canada to take the accounts and determine the claims of the creditors of the railway company, fix the amounts due to the respective creditors and determine the order of priority in which such claims, respectively, should rank upon the proceeds of the sale of the railway, the referee filed his report on the 4th of May, 1908. Notice of the filing of the report was duly given and there was no contestation thereof by any of the parties interested in the proceedings affecting the sale of the railway and the distribution of the proceeds of such sale. On the 10th of June, 1908, upon motion on behalf of the plaintiffs, the judge of the Exchequer Court made an order confirming the report, in the terms therein stated. The present appeal was taken on the 10th of July, 1908, by the North Eastern Banking Company, one of the creditors and claimants.
T. Chase-Casgrain K.C. for the motion.
Spencer Harris contra.
T. Chase-Casgrain K.C. for the motion. The appellants had notice of the filing of the referee's report, but did not contest it within the time allowed by sections 19 and 20 of the General Rules and Orders of the Exchequer Court, of 12th December, 1899. They
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also had notice of the motion to have the report confirmed, but did not appear for the purpose of opposing the order made, on that motion, by the judge of the Exchequer Court, which is now appealed from. They must, therefore, be held to have acquiesced in the report and also in the confirmatory order. The report became final and non-appealable on the lapse of the 14 days allowed for appealing, and the judge's order was unnecessary, the report having become, under the rules, the final judgment, upon the matters with which it dealt, by mere lapse of time, on the 28th of May, 1908. When the appeal was taken, on the 10th of July, 1908, the thirty days limited by section 81 of the "Exchequer Court Act" for appealing to this court, had expired, and, therefore, this court can have no jurisdiction to entertain the present appeal.
Spencer Harris contra. Acquiescence in the report cannot be implied from mere failure to contest it within the time prescribed by the rule nor by failure to oppose the confirmatory order. Rules of practice cannot take away the statutory right of appeal; the rule in question does not, by its terms, assume to do so. The report by the referee is not, of itself, the judgment of the court; it is not now absolute as under the former rules, and it is not executory until confirmed by a judge's order. The judge's order was the only final judgment and the inscription of the appeal, on the 10th of July, was within the time limited by the statute.
The judgment of the court was delivered by
The Chief Justice.—This appeal is from a judgment of the Exchequer Court and the respondents
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move to quash on the ground that the appeal was not taken within thirty days from the date of the judgment appealed from. See section 82, "Exchequer Court Act." The dates of the different proceedings are important. The referee's report, made pursuant to the judge's order of 13th February, 1908, was filed on the 14th of May, 1908 (section 18). The judgment confirming the report was delivered on the 10th of June, 1908, and the appeal to this court was taken on the 10th of July, 1908.
It was argued by Mr. Casgrain that the report not having been appealed from within the fourteen days fixed by the General Rules and Orders of the Exchequer Court was confirmed by lapse of time, and that a subsequent motion for judgment was unnecessary. We cannot accept this construction of the rules. The judgment from which an appeal is given by section 82 of the "Exchequer Court Act" is the judgment on the report required by section 20 of the rules and orders and, from this judgment, the appellants appealed within the delay of thirty days.
The motion is dismissed with costs.
Motion dismissed with costs.
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