Supreme Court of Canada
Lady Davis v. The Royal Trust Co. Et al., [1932]
S.C.R. 203
Date: 1932-03-01.
Lady Davis (Dame
Eleanor Curran) (Defendant) Appellant;
and
The Royal Trust
Company and Others (Plaintiffs) Respondents;
and
Lady Davis (Dame Henriette M. Meyer (Mise-en-Cause).
1932: February 2; 1932: March 1.
Present:—Anglin C.J.C. and Duff, Rinfret, Lamont, Smith and Cannon JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Appeal—Jurisdiction—Interlocutory
judgment—Exception to the form—Final judgment—Supreme Court Act, R.S.C., 1927, c. 35,
ss. 2 (e), 36.
In an action brought by the plaintiffs as
testamentary executors or trustees, a judgment dismissing a preliminary
exception to the form, alleging that their appointment by judges of the
Superior Court was void for want of jurisdiction, is not a “final judgment”
within the meaning of sections 2 (e) and 36 of the Supreme Court Act.
Such a judgment is only provisional and has
not determined, in whole or in part, any substantive right in controversy, as
the decision is still open to revision by the final judgment of the trial
court. Willson v. Shawinigan Carbide Company (37 Can. S.C.R. 355)
foll.
Distinction must be made between a judgment
rendered upon a preliminary exception to the form and a judgment maintaining
demurrers, in whole or in part: if the demurrer be to the whole action and if
it be maintained, the action is dismissed and cadit quesito; in all other cases, the
allegations struck out upon demurrer disappear from the record and no evidence
whatever can be adduced in respect thereof at the trial; the trial judge is
therefore powerless, and any attempt by him to remedy the situation by the
final judgment would be ineffective and inoperative. Therefore, a judgment on a
demurrer, striking out material allegations of pleadings, is a “final judgment.”
Dominion Textile Company v. Skaife ([1926] S.C.R. 310) disc.
MOTION to quash an appeal, for want of
jurisdiction, from the judgment of the Court of King’s Bench, appeal side,
province of Quebec,
affirming the judgment of P. Cousineau J., in the Superior Court and dismissing
an exception to the form presented by the appellant.
[Page 204]
The material facts of the case and the
question in issue are stated in the head-note and in the judgment now reported.
Aimé Geoffrion K.C. for the motion.
W. F. Chipman K.C. and W. K. McKeown K.C. contra.
The judgment of the court was delivered by
Rinfret J.—On October 28, 1897, the
late Sir Mortimer Davis entered into a marriage contract with the mise-en-cause,
Dame Henriette Marie Meyer, under the sixth clause of which he gave to her
and to
his child or children * * * by way of
donation inter vivos and irrevocably * * * the sum of one hundred
thousand dollars, payable at his death,
in the manner and subject to the conditions
therein provided.
By the seventh clause of the marriage contract,
the future husband stipulated
the right to name trustees either during
his lifetime by notarial acts or by his last will and testament: to whom such
payments may be made for the administration and management thereof.
The eighth clause of the marriage contract
defined the powers of the trustees and provided for the disposition of the
trust under certain conditions.
The ninth clause of the marriage contract reads
in part as follows:
Unless otherwise provided by the instrument
appointing the trustees, there shall be always three trustees.
Should the future husband neglect to
appoint them during his lifetime or by will, they shall be appointed on
petition by any interested party by a judge of the Superior Court in the
district of Montreal on the advice of a family council: two being chosen by the
relatives and friends of the future husband and one by the relatives of the
future wife.
The respondents were respectively appointed
trustees of the donation by judges of the Superior Court of Montreal. By their
action, they demand judgment for the balance of the $25,000 claimed to be
unpaid under the donation, and for a further sum representing the alleged
present value of the 750 shares of American Tobacco Company of Canada, assigned
and transferred to the future wife by the marriage contract to secure the
fulfilment of the future husband’s obligations.
[Page 205]
In the writ of summons, the respondents describe
themselves as follows:
* * * all three acting in their quality of
trustees and duly appointed under the provisions of the contract of marriage
between the late Sir Mortimer Davis and Miss Henriette Marie Meyer, passed before W. de M. Marler, notary, on the 20th day of October, 1897.
The action was directed against the testamentary
executors and trustees of the late Sir Mortimer Davis, described in the writ of
summons as follows:
The Right Honourable Lord Shaughnessy
(William James Shaughnessy), of the city and district of Montreal, Alexander M.
Reaper, of the city and district of Montreal, and Lady Davis (Dame Eleanor Curran), of the city and district of
Montreal, widow of the late Sir Mortimer Barnet Davis, Knight, all three in their quality of testamentary executors
and trustees of the late Sir Mortimer Barnet Davis.
The appellant filed a preliminary exception in
the nature of an exception to the form and urged that, no trustees having been
appointed by the late Sir Mortimer Davis, the appointment of the respondents
made since his death by the judges of the Superior Court were void for want of
jurisdiction. Accordingly, he demanded the dismissal of the respondents’
action.
Judgment was rendered by Cousineau J., holding
that the respondents were qualified to bring the action, and dismissing the
exception to the form.
All three co-executors respectfully excepted to
the judgment and made express reservation of all rights of redress by way of
appeal or otherwise. The appellant alone, and without the concurrence of her
co-executors, inscribed in appeal before the Court of King’s Bench. That court
confirmed the judgment of the Superior Court. Bond J., was for dismissing the
appeal upon the ground that the appellant had no right to appeal alone. Hall
J., was for confirming for the reasons given in the Superior Court. Rivard J.,
adopted the reasoning of both of his colleagues. Howard and Létourneau JJ. did not prepare any notes.
The appellant then gave notice of appeal to the
Supreme Court of Canada, and the respondents now move to quash the appeal for
want of jurisdiction.
Two points are raised by the respondents in
support of the motion to quash.
1. The judgment appealed from is not a final
judgment;
2. The appellant cannot appeal without the
concurrence of her co-executors.
[Page 206]
Article 174 of the Code of Civil Procedure of
the province of Quebec provides that
the defendant may invoke any of the
following grounds, by way of exception to the form, whenever they cause a
prejudice:
* *
*
3. Absence of quality in the plaintiff or
in the defendant.
The respondents sued in their quality of
trustees under the marriage contract.
The appellant and her co-executors availed
themselves of the provision of the Code of Civil Procedure above quoted and, by
way of exception to the form, they invoked the absence, in the respondents, of
the quality assumed by them in bringing the suit. The respondents now claim
that the judgment dismissing that exception is not a final judgment within the
meaning of section 36 of the Supreme Court Act (c. 35, R.S.C., 1927).
Under the Supreme Court Act, “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 judicial proceeding (Section 2 (e)).
In that definition, the word on which we desire
to lay emphasis is the word “determines.” In order that a judgment may come
under the definition, it must have, “in whole or in part,” determined or put an
end to the issue raised and in respect to which the judgment was rendered.
Now, it is a fundamental principle in the
province of Quebec that, as a general rule, interlocutories do not determine
the issue raised and that they are open to revision by the final judgment.
On this point, the decision in Wilson v. Shawinigan
Carbide Company is
conclusive.
The action in that case was brought by the
company for a declaration that certain letters patent of invention should be
declared invalid, to have a contract in respect thereto resiliated, and for the
return of the consideration paid by the company to the defendant under the
contract. The defendant, by declinatory exception, objected to the jurisdiction
of the Superior Court to hear or adjudicate upon the plaintiff’s demand, on
several grounds which it is unnecessary to state here. In the Superior Court,
Taschereau J. maintained the declinatory exception and dismissed the action
with costs. On appeal, the Court of King’s Bench
[Page 207]
dismissed the exception and ordered that the
case should be proceeded with in the Superior Court and disposed of on the
merits. The respondents moved to quash a further appeal by the plaintiff to the
Supreme Court of Canada, alleging that the judgment complained of was not a
final judgment within the meaning of the Supreme Court Act.
The motion to quash was granted on the ground
that the objection as to the jurisdiction of the Superior Court might be
raised, on a subsequent appeal from the judgment on the merits.
In the course of delivering his judgment,
Girouard J. said:
The reason for this ruling is that an
appeal on the merits opens all the interlocutories, especially if a reservation
or an exception be filed immediately after the rendering of the
interlocutories. Such has been the well settled practice and jurisprudence of
the province of Quebec. Renaud v. Tourangeau; Jones v. Gough; Goldring v. La Banque d’Hochelaga;
Benning v. Grange; Archer v. Lortie; Metras v. Trudeau.
This court expressed the same views on several
occasions and especially in Molson v. Barnard; Hamel v. Hamel; Griffith v.
Harwood.
The only difference between that case and the
present one is that, there, the exception was declinatory, while here it is an
exception to the form.
The amendments to the Supreme Court Act do
not alter the argument relied on in that case on the particular point we are
now dealing with.
In the case of Metras v. Trudeau,
referred to by Girouard J., the holding of the Court of Queen’s Bench, composed
of Sir A. A. Dorion C.J., and
Monk, Tessier, Cross and Baby JJ., was:
Que ľappel du jugement final de la
Cour Supérieure soulève de nouveau tous les jugements interlocutoires rendus
dans la cause, et que le défaut par un défendeur d’exciper ou d’appeler d’un
jugement interlocutoire renvoyant son exception à la forme, ne l’empêche pas de
discuter ce jugement sur l’appel du jugement final, l’interlocutoire n’étant
pas chose jugée sur les questions soulevées par son exception à la
forme.
The rule thus laid down was invariably followed
since then by the Court of King’s Bench in Quebec. Bayard
v.
[Page 208]
Dinelle; Perrault v. Grand Trunk Ry.;
Longpré v. Dumoulin; Levine v. Serling;
Compagnie des Champs d’or Rigaud-Vaudreuil v. Bolduc.
In Canadian Car & Foundry v. Bird, Brodeur J. said at page 262:
Dans cette province (de Québec), ľinterlocutoire ne lie pas le juge * * * Lors
du jugement final, ces interlocutoires peuvent être modifiés et renversés.
It follows that the judgment a quo is
only provisional and has not determined, in whole or in part, any substantive
right of the appellants in the controversy.
It may be, now that the Court of King’s Bench
has pronounced upon the point concerning the absence of quality of the
respondents, that the Superior Court and the Court of King’s Bench itself will
be inclined to follow the ruling already made, when the question comes again
for decision on the merits of the case. This will not be, however, because of
lack of power to decide otherwise. It will be rather the effect of the
application to the particular instance of the maxim Stare decisis. But
we entertain no doubt that if the appellant ever comes before a higher court
upon the merits, she will be at liberty to take up the point again and have it
revised, should the judgment of the Court of King’s Bench be erroneous.
More particularly is this true of this case, for
the contention that the plaintiffs-respondents are not the true creditors of
the debt and are not qualified to recover it is obviously a ground open to the
appellant on the merits. (Levine v. Serling; City
of Montreal West v. Hough.
At the hearing, the appellant relied mainly on
the judgment of this court in Dominion Textile Company v. Skaife, in which the court unanimously reversed
the decision of the Registrar refusing to affirm jurisdiction upon the
defendant’s appeal from a judgment of the Superior Court striking out a part of
the defence on a demurrer.
[Page 209]
Judgments maintaining demurrers, in whole or in
part, are not analogous. If the demurrer be to the whole action and if it be
maintained, the action is dismissed and cadit questio. In all other
cases, the allegations struck out upon demurrer disappear from the record and
no evidence whatever can be adduced in respect thereof at the trial. The trial
judge is therefore powerless, and any attempt by him to remedy the situation by
the final judgment would be ineffective and inoperative. The result is that
judgments on demurrers striking out part of the allegations stand in a class by
themselves and must be treated as final judgments.
The judgment in Ville de St. Jean v. Molleur, proceeds on that principle. The point is
brought out forcibly by Fitzpatrick C.J., delivering the decision of the court.
The learned Chief Justice first recalled the difference between a “jugement définitif” and the “jugement provisoire, jugement préliminaire et jugement
interlocutoire,” all of which come under the general classification of “jugements
avant faire droit.” He then points out that, in that case,
There was one conclusion only; but there
were several counts, each putting forward an independent title to the relief
claimed; and the effect of the judgment appealed from was, as regards the
counts in respect of which the demurrer was allowed, precisely the same as if
the action had gone to trial and judgment had been given. The controversy
regarding the matters raised by them is as effectually and conclusively
disposed of. And it is this quality of conclusiveness which determines the
character of a judgment as a final judgment, not its relation in point of time
to other proceedings. When, by a judgment, a distinct and separate ground of
action is, to use Lord Halsbury’s words, “finally disposed of,” it is, in the
ordinary use of the words, a final judgment with respect to that ground of
action.
It will thus be seen that, in La Ville de St.
Jean v. Molleur, this court held a judgment on
demurrer striking out material allegations of the declaration to be a “final
judgment with respect to that ground of action and it is for that reason that
jurisdiction was entertained. The same principle underlies the judgment in Dominion
Textile Co. v. Skaife, and
all other similar judgments upon demurrers.
Our conclusion is that the judgment appealed
from on the appellant’s exception to the form was not a final judgment within
the meaning of the Supreme Court Act
[Page 210]
and that this court has no jurisdiction to
entertain the appeal from that judgment.
Having come to that conclusion upon that part of
the appeal, it would not be competent for us to express any opinion upon the
remaining question.
The motion to quash should be granted with
costs.
Motion granted with costs.
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