Charles William Cross (Respondent) J Appellant;
and
William Frederick Wallace Carstairs (Petitioner) Respondent
In the Matter of the Edmonton Provincial Election.
1913: February 21.
Present:—Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA.
Appeal — Jurisdiction — Provincial election — "Alberta Controverted Elections Act"—Preliminary objections—"Judicial proceeding"— "Final judgment."
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Held, per Davies, Idington and Anglin JJ, that under the provisions of the "Alberta Controverted Elections Act" the judgment of the Supreme Court of the province in proceedings to set aside an election to the legislature is final and no appeal lies therefrom to the Supreme Court of Canada.
Held, per Davies, Anglin and Brodeur JJ., that the judgment of the Supreme Court of Alberta on appeal from the decision of a judge on preliminary objections filed under the "Controverted Elections Act" is not a "final judgment" from which an appeal lies to the Supreme Court of Canada.
Held, per Duff J., that a proceeding under said Act to question the validity of an election is not a "judicial proceeding" within the contemplation of section 2 (e) of the "Supreme Court Act" in respect of which an appeal lies to the Supreme Court of Canada.
APPEAL from a decision of the Supreme Court of Alberta, affirming, by an equal division of opinion, the judgment of Mr. Justice Scott dismissing
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preliminary objections to the petition against the return of the appellant as a member of the provincial legislature of the Province of Alberta for the District of Edmonton.
MOTION on behalf of the respondent to quash the appeal for want of jurisdiction.
Ewart K.C. for the motion. The authority in respect of the trial of controverted elections resides absolutely in the Legislature of Alberta, and, in this regard, that legislature has delegated only partial powers to the courts and judges of the province for inquiry and report. By the "Supreme Court Act," R.S.C., 1906, ch. 139, there is no jurisdiction conferred on the Supreme Court of Canada to hear such appeals, and the local statute makes such proceedings and the report thereon final within the province. The controversy on this appeal does not concern a cause, matter or proceeding, either at law or in equity, which could fall within the statutory jurisdiction on the Supreme Court of Canada. Moreover, the decision sought to be appealed from was merely in respect of preliminary objections, whereby those preliminary objections were dismissed; these proceedings were interlocutory only and did not put an end to the election petition; consequently, it cannot be deemed a final judgment within the meaning of the "Supreme Court Act." Charlevoix Election Case; Glengarry Election Case; Kennedy v. Purcell.
Lafleur K.C. and O. M. Biggar contra. The proceedings in question arose in a court of superior juris-
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diction and the judgment appealed from was rendered by the final court of appeal within the province. There is no restriction placed upon the powers of Parliament in respect to such proceedings by section 101 of the "British North America Act, 1867." The Alberta statute in respect to controverted elections (secs. 4, 7, 10, 13) provides for the filing of the petition in the court; the proceedings are had in open court (secs. 15, 18, 19, 20, 21, 28). The whole matter involves a dispute in respect of civil rights submitted to the decision of a court of superior jurisdiction within the province, and the decision is a final judgment within the provisions of the "Supreme Court Act." Reference is made to McDonald v. Belcher; Baptist v. Baptist; Chevalier v. Cuvillier; Shields v. Peak; Ville de St. Jean v. Molleur.
DAVIES J.—This is an appeal from a judgment of the Supreme Court of Alberta confirming, on an equal division of opinion, the decision of Mr. Justice Scott dismissing certain preliminary objections taken to a provincial election petition under the "Alberta Controverted Elections Act."
At the hearing objections were taken that this court had no jurisdiction to hear this appeal because, first, it is taken from the findings of the Supreme Court of Alberta under the "Alberta Controverted Elections Act," and, secondly, because the decision dismissing the preliminary objections was not a "final judgment" within the interpretation placed by this court upon that term as used in section 37 of the "Supreme Court Act."
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We were all of the opinion, at the conclusion of the argument, that the objections were fatal.
In order to give us jurisdiction to hear appeals from decisions of provincial courts under provincial controverted elections Acts, it seems to me that such Acts must either expressly or by necessary implication contemplate and provide for such appeals and that, in addition, Parliament must have clearly conferred upon us jurisdiction to hear them.
Mr. Lafleur contended that, under the 18th and 21st sections of the "Controverted Elections Act" of the Province of Alberta, the decision of the trial judge was a judgment of the court; that section 28 provided for an appeal to "the Supreme Court sitting in banco from any order or determination of the judge," and that the determination of such Supreme Court on such appeal was a "final judgment" within the 37th section of chapter 139 of the Revised Statutes of Canada, 1906, respecting the Supreme Court of Canada.
I am not able to accept this contention.
The inherent power of the legislature to determine questions relating to the election of its members has been, in part, delegated by the Legislature of Alberta to the judges of the Supreme Court of the province. The judge who tries the election petition is empowered to find whether the candidate petitioned against was "unduly returned or elected a member of the Legislative Assembly," and he is directed within a specified time, "unless his judgment is appealed," to "report his finding to the clerk of the Executive Council." The judge is empowered expressly not only to find that the candidate petitioned against was not duly elected, but that another candidate was entitled to the seat and so to certify, in which case it is provided
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that such other candidate is entitled to the seat in the place and stead of the respondent
to the petition.
Then section 28 provides for an appeal to
the Supreme Court en banc from any order or determination of the judge,
and section 31 provides
that the adjudication and finding of such court on such appeal shall be duly certified by the registrar or such other officer to the judge appealed from,
and
if the appeal is from any finding or determination of the judge under section 21,
he shall, in turn, forward it to the clerk of the Executive Council.
It is perfectly clear to me that the delegation of power to the court was one intended by the legislature to be final and not to be subject to further appeal to this court.
The conclusions the judge in the first instance and the court in appeal afterwards may reach are variously spoken of as a "judgment" and as "findings" or "determinations" or "adjudication and finding." Provision is expressly made for giving effect to them.
No provision whatever is made for any further appeal, and, in my opinion, the appeal to the provincial Supreme Court was and was intended to be a final disposition of the subject-matter delegated by the legislature, so far as the courts of law were concerned.
I do not think that the finding or disposition made by the Supreme Court on an appeal to it from the trial judge on these election petitions can be said to be "a final judgment of the highest court of final resort
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in the province" within the meaning of section 37 of the Act respecting this court.
In any event, the disposition made in this case of the preliminary objections cannot be said to be such a final judgment. It simply dismissed these objections leaving the petition to be proceeded with and heard in the ordinary way.
The appeal to this court must be quashed because of want of jurisdiction. Costs of a motion to quash allowed.
IDINGTON J.—The provincial legislatures are each entitled to declare how the members of its legislative assembly are to be elected, the validity of their elections are to be tested and determined, in the case of dispute thereabout, and how the proceedings adopted to apply such test and procure such determination are to be had and the consequences of such determination.
Parliament has not the slighest right of its own mere will to interfere.
It never was intended by section 101 of the "British North America Act" that the appellate court therein contemplated should be given, as against the will of the legislature, any jurisdiction over the subject of elections to the legislative assembly.
Such a mode of determining the right to sit in any parliament or legislature (of higher order than a municipal council), as trial by the judges of the ordinary courts of the country had not, when the "British North America Act" was passed, either in England or here, ripened into a practical legal conception.
Such bodies had always guarded as one of their most precious privileges the right to determine all such questions.
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When the time came for provincial legislatures to confer the power of doing so, in whole or in part, on the courts and judges, the cry was rather that no such power could be constitutionally exercised, and it was somewhat grudgingly conceded as an improvement on old methods though a great step in modern civilization as developed under constitutional government to effectively help purify public life.
It has long been conceded to be part of the inherent power of each legislature to so enact by way of delegating the execution of that power inherent in the legislature, or to speak more accurately, the legislative assembly, to such authority as it might see fit to entrust with the duty of deciding and determining what should be done in the premises.
Until the legislature has determined otherwise than it has, the delegation of power cannot be held to have gone so far as an appeal here would involve.
The "Controverted Elections Act" of Alberta has certainly intended that the Supreme Court of the province should be the ultimate appellate court and its decision end all disputes arising under said Act.
Everything indicates that when proceedings were taken they should be so conducted as to enable an appeal there before constituting a final result and when once decided there that the proceeding should be ended and that the result reached there is to be treated as final.
Parliament can in no way add to this delegation of power by the legislature or meddle with it or with its results in any way.
The legislature might, for example, to put an extreme case, have constituted Parliament itself the
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sole judge of all such questions or given it power to help in the determination thereof, but it has not.
Until it does some such like thing or otherwise permitted the intervention of Parliament, the latter cannot nor can we, its creation, interfere.
The appeal must be quashed with costs as of a motion to quash.
DUFF J.—In my opinion a proceeding under the "Controverted Elections Act" of Alberta for questioning the validity of an election is not a "judicial proceeding" within the contemplation of section 2, subsection (e) of the "Supreme Court Act," R.S.C., 1906, ch. 139; and the appeal is, consequently, incompetent. There are, I think, other objections equally fatal, but it is unnecessary to refer to them specifically.
ANGLIN J. agreed with Davies J.
BBODEUR J.—A motion to quash has been made in this case on two grounds: (1) That the judgment appealed from has been rendered in the matter of a provincial controverted election; and (2) that it is not a final judgment.
The appellant whose election has been contested has filed preliminary objections that the deposit had not been validly made and that the petitioner was not a qualified elector. The judgment a quo is on these preliminary objections.
It is not necessary, in order to dispose of this motion, to decide whether there is an appeal to this court in controverted elections of Alberta. The law states, however, that the judgment from that province has to be final in order to be brought before this court.
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According to the well settled jurisprudence of this court, a judgment dismissing preliminary objections is not considered final.
For that reason I would quash the appeal.
Appeal quashed with costs.
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