Crown Trust Co. v. MacAulay et al., [1964] SCR 391

Supreme Court of Canada

Crown Trust Co. v. MacAulay et al., [1964] S.C.R. 391

Date: 1964-04-28

Crown Trust Company (Defendant) Appellant;

and

Dame Mary Agnes Macaulay (Plaintiff) Respondent;

and

Peter Charles Macaulay And Sarah Ann Macaulay (Intervenants) Respondents.

1964: March 3, 4; 1964: April 28.

Present: Taschereau C.J. and Fauteux, Abbott, Judson and Ritchie JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Appeals—Right of—Practice and procedure—Consent judgment—Not subject to appeal if acquiesced—Code of Civil Procedure, art. 1220.

The plaintiff instituted this action against the defendant trustee asking to be declared solely entitled to a trust fund administered by the defendant. The trustee submitted itself to the decision of the Court and concluded its plea in the following terms: "Wherefore defendant prays for judgment … instructing it as to the disposition of this trust property … by dismissing or by allowing plaintiff's action …" Subsequently, the intervenants intervened to ask that the action be dismissed. The case proceeded to trial and, after hearing but before judgment, the plaintiff and the intervenants, at the suggestion of the trial judge, met to discuss settlement and in due course executed a Deed of Transaction, each party agreeing that the trust property would be divided on the basis of 50 per cent for the plaintiff and 50 per cent for the intervenants; the trustee was advised thereof but was not a party thereto. The trial judge then rendered judgment confirming the transaction and ordering the trustee to render an account. The trustee appealed to the Court of Appeal, but that appeal was quashed on the ground that the trustee had no right to appeal. The trustee appealed to this Court.

Held: The appeal should be dismissed.

The material filed in the record disclosed that the trustee, through its attorneys of record and at least one of its officers, was fully aware at all times of the discussions for settlement and with the Deed of Transaction entered into and that it acquiesced in the settlement agreed upon and in the judgment confirming such settlement. Having acquiesced both in anticipation and after the judgment was rendered, the trustee thereby bandoned its right to appeal under the provisions of art. 1220 of the Code of Civil Procedure.

APPEAL from a judgment of the Court of Queen's Bench, Appeal Side, Province of Quebec1, quashing an

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appeal from a judgment of Chief Justice Scott. Appeal dismissed.

P. N. Thorsteinsson, for the appellant.

R. Stewart Willis and L. A. Poitras, for the respondents.

The judgment of the Court was delivered by

Abbott J.:—This appeal is from a judgment of the Court of Queen's Bench2 maintaining motions of the plaintiff-respondent and intervenants-respondents to quash the appeal of the present appellant from a judgment of the Superior Court rendered November 5, 1962. That judgment confirmed a transaction entered into between plaintiff-respondent and intervenants-respondents and ordered the appellant to render an account of the administration of a certain trust fund referred to in the transaction and to dispose forthwith of the said trust fund, including all revenues accrued thereon from and after July 18, 1959, the whole in accordance with the terms of the transaction.

The relevant facts are as follows. By Deed of Donation executed before Edouard Cholette, Notary, on February 10, 1931, one Agnes L. Holliday, mother of the plaintiff-respondent, conveyed, inter vivos, to the appellant certain securities as a trust fund to be held by it in trust:

1. to pay the revenues during a five-year period in certain proportions to her two sons, Thomas J. R. Macaulay and Norman Holliday Macaulay;

2. upon the expiration of the five-year period to pay all the revenues to the said Thomas J. R. Macaulay during his lifetime;

3. on his death to pay such revenues to his widow during her lifetime or until her remarriage;

4. upon his death, and that of his widow, or her remarriage, to pay the capital, with all accumulated income, if any, to his lawful child or children in equal shares upon each attaining the age of thirty years.

The Deed provided that if the said Thomas J. R. Macaulay died unmarried or without leaving any lawful child or children, the capital was to go as to one half to the said Norman Holliday Macaulay and as to the other half to the plaintiff-respondent. If there should be no child or

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children issue of the marriage of the said Norman Holliday Macaulay, and of the plaintiff-respondent, the capital was to go to the survivor of the said Norman Holliday Macaulay and the plaintiff-respondent.

Thomas J. R. Macaulay died August 16, 1954 and his widow, Marjory Dorothy Prodgers Macaulay remarried on July 18, 1959.

There were no children issue of the marriage of Thomas J. R. Macaulay and the said Marjory Dorothy Prodgers but they had legally adopted, in England where they were then residing, the two intervenants-respondents.

Norman Holliday Macaulay died on October 20, 1957 without lawful issue.

Upon the remarriage of the widow of Thomas J. R. Macaulay the plaintiff-respondent claimed the capital of the trust fund, and all revenues accumulated in it since the remarriage, on the ground that the intervenants-respondents were not the lawful children of her brother Thomas J. R. Macaulay within the meaning of the Deed of Donation, and that by reason of the death of Norman Holliday Macaulay, without lawful issue, she was solely entitled to the trust fund.

Upon the refusal of the appellant to comply with her request she took the present action.

Appellant in its plea alleged that conflicting claims had been made against it by the intervenants-respondents but submitted itself to the decision of the Court, concluding its plea as follows:

WHEREFORE defendant prays for judgment of this Honourable Court instructing it as to the disposition of the Trust property held by it under the Deed of Trust entered into before Edouard Cholette, Notary, on the 10th day of February 1931, by dismissing or by allowing plaintiff's action, with or without costs as this Honourable Court shall see fit to do.

Subsequently, the intervenants-respondents intervened alleging that the plaintiff-respondent was not entitled to what she asked and prayed that their intervention be received and maintained and the action dismissed with costs.

The case then proceeded to trial in March 1962 and, after hearing but before judgment, the plaintiff-respondent and

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the intervenants-respondents, at the suggestion of the presiding judge, met to discuss settlement and in due course executed a Deed of Transaction on November 1, 1962, each party agreeing that the trust property and revenues thereon would be divided on the basis of 50 per cent for the plaintiff-respondent and 50 per cent for the intervenants-respondents and the appellant-trustee was advised thereof but was not a party thereto.

On November 5,1962, judgment was rendered reciting the transaction in full and it concludes as follows:

NOW THEREFORE THE COURT, as requested by plaintiff and intervenants hereby renders judgment confirming the said transaction in all respects and for all legal purposes, and doth hereby order the defendant, Crown Trust Company, to render an account of the administration of the said trust fund and to dispose forthwith of the said trust fund, including all revenues accrued thereon from and after July 18, 1959, in accordance with the terms of the aforesaid transaction.

The sole question in issue both in the Court below and before this Court is whether the appellant had a right to appeal from that judgment. We are not here concerned with the interpretation and effect of the Deed of Donation of February 10, 1931.

From the material filed in the record I am satisfied that appellant, through its attorneys of record and at least one of its trust officers, was fully aware at all times of the discussions for settlement and with the Deed of Transaction entered into and that it acquiesced in the settlement agreed upon and in the judgment confirming such settlement. That settlement was of course binding upon both the plaintiff-respondent, Dame Mary Agnes Macaulay, and the intervenants-respondents Peter Charles Macaulay and Sarah Ann Macaulay.

As I have said the sole question now in issue is whether the appellant acquiesced in the judgment of the Superior Court both in anticipation and after the judgment was rendered, thereby abandoning its right to appeal under the provisions of art. 1220 of the Code of Civil Procedure. The Court of Queen's Bench held unanimously that appellant had so acquiesced and I am in agreement with that finding.

At the opening of the hearing before this Court appellant filed a discontinuance of its appeal against the plaintiff-

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respondent Dame Mary Agnes Macaulay, and the appeal was argued only as against the intervenants-respondents. For the reasons which I have given I would dismiss that appeal with costs.

Appeal dismissed with costs.

Attorneys for the defendant, appellant: Stikeman & Elliott, Montreal.

Attorneys for the plaintiff, respondent: Besehenes, Forget & Crépeau, Montreal.

Attorneys for the intervenants, respondents: Duquet, MacKay, Weldon, Bronstetter, Willis & Johnston, Montreal.