Supreme Court of Canada
Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038
Date: 1971-03-19
The Royal Bank of Canada Applicant;
and
Concrete Column Clamps (1961) Ltd. Respondent.
1971: January 26; 1971: March 19.
Present: Abbott, Hall and Pigeon JJ.
MOTION FOR LEAVE TO APPEAL
Appeal—Jurisdiction—Transfer—No retrotactivity—Per saltum appeal—Procedure—Substantive right—Supreme Court Act, R.S.C. 1952, c. 259, s. 39—Act to amend the Supreme Court Act, R.S.C. 1970 (1st Supp.), c. 44.
The appellant was ordered by the Superior Court to pay the sum of $67,470.13 for cheques cashed on forged endorsements. The proceedings were instituted before 1970, when the Act to amend the
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Supreme Court Act, 18-19 Eliz. II, c. 44, came into force. Under s. 39 of that Act, the power to authorize per saltum appeals, which was formerly in the Court of Appeal, is now conferred on this Court. With the respondent’s consent, the appellant requests leave to appeal to this Court from that judgment.
Held: The motion should be dismissed.
Jurisdiction is not a procedural matter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of power, rather than an increase or a decrease, is involved. In the absence of an explicit provision to the contrary, retrospective operation must not be given to legislation conferring a new jurisdiction on a Court of Appeal.
APPLICATION for leave to appeal per saltum from a judgment of the Superior Court of the Province of Quebec. Application dismissed.
T.H. Montgomery, Q.C., for the applicant.
R.A. Beaulieu, for the respondent.
The judgment of the Court was delivered by
PIGEON J.—With the respondent’s consent, the appellant requests leave to appeal to this Court from the judgment delivered by the Superior Court of the Province of Quebec on May 21, 1970, ordering it to pay the sum of $67,470.13 for cheques cashed on forged endorsements. The forged character of the endorsements is not challenged, but it is well established that the pay cheques were issued in the names of former employees, and delivered to the forger, by the fraudulent action of one of respondent’s employees. The trial judge found no grounds of defence in these facts, basing his opinion more particularly on a recent decision of the Court of Appeal for the Province of Quebec, Bank of Montreal v. Barbeau.
It is submitted that the question of law in dispute is of great importance, and that it would be desirable to have it finally resolved by this Court as early as possible.
Seeing that the proceedings were instituted several years ago, and the judgment itself was de-
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livered before the Act to amend the Supreme Court Act, (18-19 Eliz. II, c. 44, of June 11, 1970) came into force, we must first consider whether this Court may exercise in the present case the power conferred under the new section 39.
39. Subject to sections 40 and 44, an appeal to the Supreme Court lies on a question of law alone with leave of the Supreme Court, from a final judgment of a court of a province (other than the highest court of final resort therein) the judges of which are appointed by the Governor General, pronounced in a judicial proceeding where an appeal lies to that highest court of final resort, if the consent in writing of the parties or their solicitors, verified by affidavit, is filed with the Registrar of the Supreme Court and with the registrar, clerk or prothonotary of the court from which the appeal is to be taken.
The section formerly began as follows:
39. Subject to sections 40 and 44, an appeal to the Supreme Court lies in respect of a question of law alone with leave of the highest court of final resort of a province from a final judgment of another court of that province…
It will be seen that the power to authorize per saltum appeals in certain cases, which was formerly vested in the Court of Appeal, is now conferred on this Court. In support of the application made under the new wording which the Act does not make retrospective, counsel for the appellant contended that a mere procedural change is involved. He argued that the right remained in substance the same, granting leave to appeal to the Supreme Court of Canada from a judgment at trial, that only the manner of exercising this right has been changed: application must now be made to this Court instead of to the Court of Appeal.
All the authorities we have been referred to in support of this contention merely tend to show that the principle that statutes do not operate retrospectively is not applicable to rules of procedure. However, it is well established that jurisdiction is not a procedural matter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of power, rather than an increase or a decrease, is involved.
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In Boyer v. The King, Rinfret C.J. reviewed the cases on the absence of retrospective operation in legislative provisions dealing with the right of appeal. He quoted with special emphasis (page 98) the following statement of Anglin C.J., speaking for the Court in Singer v. The King:
…unless there is something making unmistakeable the intention of the Legislature that a retrospective construction should be put upon the legislation so that it may cover cases arising prior thereto, no clause, conferring a new jurisdiction on an appellate court to entertain an appeal, can be so construed. The matter is one of substance and of right.
Then he went on to say:
It would appear from the judgment in the Singer case that not only is legislation conferring a new jurisdiction upon an Appellate Court to entertain an appeal—which is the very case that we have in the present petition—not to be construed retrospectively so as to cover cases arising prior to such legislation, but also, although the Singer case was a criminal case, it was put exactly on the same footing in that respect as Doran v. Jewell and Upper Canada College v. Smith, both civil cases which were declared binding upon this Court and conclusive to that effect.
It is quite true that he then held that the petition should be dismissed, saying:
I might add that I do not agree with the contention of Counsel for the petitioner that the new subsection one of section 1025 does not create a new right of appeal.
On that basis, counsel for the appellant argues that we are not dealing here with a new right of appeal because this right previously existed. It does not appear necessary to consider whether the right to apply to this Court for leave to appeal is to be regarded as the same as the right to apply for such leave in a similar case to the Court of Appeal; as to which I have serious doubts. I need only refer to the firmly established principle, in terms of which the case has been presented, that in the absence of an explicit provision to the contrary, retrospective operation must not be given to
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legislation conferring a new jurisdiction on a court of appeal. This is exactly what we are asked to. do, there is no doubt that before the 1970 Act came into force this Court did not have jurisdiction to grant leave to appeal per saltum.
It is to be noted that in Ville Jacques-Cartier v. Lamarre, Fauteux J., as he then was, said for the Court (at p. 111):
[TRANSLATION] The case law on the point shows that the right of appeal is a substantive right, and not a mere matter of procedure, and that unless the contrary intention is shown explicitly or by necessary implication, a statute limiting a right of appeal already in existence is not applicable to a judgment given in a case instituted before the Court below at the time it was adopted.
In Loos v. The Queen, this Court has recently quashed a judgment ordering a new hearing in a case of preventive detention on the basis of a legislative amendment subsequent to the inscription of the appeal. On behalf of the Court Judson J. stated (at p. 169):
The appellant had filed his notice of motion for leave to appeal on July 7, 1969, and thereby fixed his substantive rights on appeal as of that date, at which time the Court of Appeal had no jurisdiction to order a new hearing.
The new power was thus treated as an addition to the Court’s jurisdiction, and as such within the rule against retrospective operation.
The motion must therefore be dismissed, but as it was brought by consent, and as the jurisdictional question was raised by the Court of its own motion, there will be no costs.
Motion dismissed.
Solicitors for the applicant: Ogilvy, Cope, Porteous, Hansard, Marler, Montgomery & Renault, Montreal.
Solicitors for the respondent: Laing, Weldon, Courtois, Clarkson, Parsons, Gonthier & Tétrault, Montreal.
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