Supreme Court of Canada
Taylor v. R., 1 S.C.R. 65
Date: June 5th 1876
James Taylor (Defendant)
Appellant;
and
The Queen (Plaintiff)
Respondent.
1876: June.
Present: The Chief Justice, and Ritchie,
Strong, Taschereau and Fournier, J.J.
ON APPEAL FROM THE COURT OF ERROR AND APPEAL
FOR ONTARIO.
Jurisdiction—Construction of the 26th
Section of 38th Vict. Ch. 11.
Held: That the
Supreme Court of Canada has no jurisdiction when judgment appealed from was
signed, or entered or pronounced, previous to the 11th day of January, 1876,
when, by Proclamation issued by order of the Governor in Council, the
provisions referred to in the latter part of 80th Section of 38th Vic., Ch. 11,
and the judicial functions of the Court took effect and could be exercised.
That the Court proposed to be appealed from
or any Judge thereof, cannot, under Section 26 of the Supreme and Exchequer
Court Act, allow an appeal when judgment had been signed, entered or
pronounced, previous to the 11th day of January, 1876.
Information for penalties, filed by the
Attorney-General of Ontario, in the Court of Queens Bench of that Province,
alleging: “That the Defendant was a brewer in the town of St. Catharines,
in the County of Lincoln, after the passing of the Provincial Statute 37
Vic., intituled: ‘An Act to amend and consolidate the Law for the sale of
fermented or spirituous liquors’ and then, being a brewer licensed by the Government of Canada for
the manufacture of fermented, spirituous or other liquors, did manufacture, a
large quantity of liquors, to wit; one thousand gallons of beer, and afterwards
at St. Catharines aforesaid, unlawfully, and in contravention of the Act, did
sell by wholesale a large quantity of the said fermented liquor for consumption
within the Province of Ontario, without first obtaining a license as required
by the said Act of the Legislative Assembly of the Province, to sell by
wholesale, under the said Act, liquor so manufactured by him for consumption
within the Province, and without having
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obtained any shop license or any other license
under the said Act, to sell wholesale, as a brewer, liquor, in contempt of the
Queen and her laws, to the evil example of all others and contrary to the form
of the Statute, and against the Peace.”
To this information a demurrer was filed. The
special matter stated for argument was, that the Legislature of Ontario had no
power to pass the statute under which the penalties were sought to be
recovered, or to require brewers to take out any license whatever for selling
fermented or malt liquors by wholesale, as stated in the information.
The Attorney-General joined in demurrer, and, on
16th March, 1875, judgment was given for the Defendant, and judgment was signed
on the 12th May, 1875.
The case was taken to the Court of Error and Appeal
of the Province of Ontario, on the 12th May, 1875, and on 17th May, errors were
assigned. On the 18th May, joinder in error.
The case was argued in the court of Error and
Appeal on the 17th and 18th June, 1875, and, on the 25th September of that
year, that Court ordered and adjudged that the writ of error should be allowed,
and that the judgment of the Court of Queen’s Bench should be reversed and
judgment entered in that Court for the Plaintiff.
On the 13th April, 1876, the Honorable Mr.
Justice Moss, one of the Judges of the Court of Error and Appeal, with
the consent of the parties, ordered and allowed that the appeal then might be
brought within ten days from that date, notwithstanding that such appeal had
not been brought within the time prescribed by the Statute in that behalf, and
he declared that it did not seem to him necessary or proper to impose any terms
as to security or otherwise under the circumstances.
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The Supreme and Exchequer Court Act, by which
the Supreme Court of Canada was established was passed on the 8th April, 1875.
But by Section 80 of this Statute it was provided that “this Act shall come
into force as respects the appointment of Judges, Registrar Clerks and Servants
of the said Courts, the organization thereof and the making of general rules
and orders under the next preceding Section on a day to be appointed by
proclamation under order of the Governor in Council; and the other provisions
thereof, and the judicial functions of the said Courts respectively shall take
effect and be exercised only at and after such other time as shall be appointed
by proclamation under order of the Governor in Council.”
The Proclamation respecting the organization of
the Court was issued on the 17th September, 1875, and the Proclamation calling into exercise the judicial functions
of the Court was issued on the 10th day of January, 1876.
The case was set down for the sittings of the
Supreme Court, held in June, 1876, when the question of whether the Supreme
Court of Canada had jurisdiction was discussed.
5th June, 1876.
Mr. J. Bethune, Q.C., (of the Ontario
Bar) for Appellants:
The Supreme Court established by virtue of 101
Section of British North America Act, as a general Court of Appeal for Canada, is a substitute for the Privy
Council. Maxwell on Statutes. By
chap. 13, Cons. S.U.C. sec. 57, 58, one year from date of the judgment is given
to either party to bring his appeal to the Privy Council, and the same margin
as to time ought to be
[Page 68]
allowed. Chowdry v. Mullick; Tronson v. Dent; Sect. 47 of the
Supreme Court Act, states that the judgment shall be final in all cases saving
the usual right of prerogative of Her Majesty, and there is, therefore, no
right to pass by this Court and appeal to the Privy Council. Vide case
of Cuvillier v. Aylwin,; and
the case of Earl of Roseberry v. Sir John Inglis in which a decree was
pronounced by the Court of Session in Scotland in 1695, and, immediately after
the union of the two Kingdoms in 1707, the House of Lords heard an appeal from
this decree. Moreover, an appeal is a mere step in a cause, a procedure, and
the Court may give any order concerning a proceeding in a cause. Vide
Cranmer’s Practice of House of Lords;
Queen v. Vine.
Now under sections 21 and 26 a Judge of the Court below may, in his discretion,
extend the time for appealing. An order to that effect has been given, and so
long as it is not moved against it remains in force, and the fact of the Court
having been organized at the date the appeal was granted, enabled the limitation
as to the time of entering the case to be overruled.
The combined effect of sects. 15 and 47 gives
this Court alone the appeal, and if there is a doubt as to the jurisdiction,
the consent of the parties should be sufficient.
[RITCHIE, J.—No jurisdiction of appeal can be
taken, unless expressly given by Statute.]
Sect. 17 clearly gives this Court jurisdiction
over cases decided before its existence by proclamation, and the proviso in
sect. 26 gives the power to a Judge of the Court below to extend this limitation
of time. By sect. 24,
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all proceedings not otherwise provided for by
the Act, or by the rules to be made by the Court, are ordered to be as nearly
as possible in conformity with the practice of the Judicial Committee, and
there one year from the rendering of the judgment is the limit of time granted
to appeal. This case now stands before this Court as if proceedings were taken
in the Court below within such time as to warrant the Judge of the Court below,
in his discretion, to grant the appeal, and the power of this Court to try the
case cannot be called in question.
Mr. Adam Crooks, Q.C., for the
Respondent:
This is an amicable suit, brought to determine
the furisdiction of the Legislature of the Province of Ontario. The time limitation was imposed
for the protection of the parties, but neither of them wishing to invoke it it
cannot apply. This is a proceeding in the nature of a writ of error, and an
appeal lies to the highest tribunal where there is error. Tronson v. Dent. Vansittart v. Taylor.
This was not an appeal except in that such cases were designated by that
conventional expression by the Supreme Court Act.
January 15th, 1877.
THE CHIEF JUSTICE:—
I believe we are all agreed that, as to powers
of the Supreme Court of Canada under the Statute 38 Vict., ch. 11, we are to
construe the Statute as if it had been assented to by the Crown on the eleventh
day of January, 1876, when, by the proclamation issued by order of the Governor
in Council, the provisions referred to in the latter part of the 80th section
of the Act, and the judicial functions of the Court, were to take effect
[Page 70]
Under the Statute, those provisions and the
judicial functions of the Court were to take effect and be exercised only at
and after the time appointed by the proclamation.
At this time, this case had been decided by the
Court of Appeals in Ontario.
The judgment was pronounced on the 25th day of September, 1875. The provisions
of the Act allowing an appeal to this Court had not then been brought into
operation, and could not be exercised; and the right of appeal which the
Defendant in the suit had, if any, was to Her Majesty, in Her Privy Council.
This state of things continued until after the
statute had come into full operation, and until the thirteenth day of April
last, when one of the Justices of the Court of Appeals for the Province of
Ontario, upon hearing Counsel for the Queen, the Plaintiff in error, and by
consent, ordered and allowed that the appeal in this cause might be brought
within ten days from that date, notwithstanding that such appeal had not been
brought within the time prescribed by the statute in that behalf. And he
declared that it did not seem to him necessary or proper to impose any terms as
to security or otherwise, under the circumstances.
The 16th section of the Statute says: “whenever error
in law is alleged, the proceedings in the Supreme Court shall be in the
form of an appeal.” The 17th Section declares that “an appeal shall lie to the
Supreme Court from all final judgments of the highest Court of final
resort. * * * * now or hereafter established in any Province of Canada,
in cases in which the Court of original jurisdiction is a Superior Court * * *
and the right of appeal in civil cases given by the Act shall be understood to be
given in such cases only as
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are mentioned in this section, except Exchequer
cases, and cases of mandamus, habeas corpus or municipal by-laws” as
thereinafter provided. Section 18 provides that an appeal shall lie upon a
special case. Appeal shall lie, by Section 19 “from the judgment upon any
motion to enter a verdict or non-suit upon a point reserved at the trial”; by
Section 20, “from the judgment upon any motion for a new trial, upon the ground
that the Judge has not ruled according to law.” By Section 21, under these
three sections, no appeal is allowed unless notice of appeal is given within 20
days after the decisions complained of “or within such further time as
the Court appealed from or a Judge thereof may allow.’’ Section 25
provides, that every appeal, other than an election appeal shall be brought
within 30 days from the signing or entry or pronouncing of the judgment
appealed from. Then follows the 26th Section. “That the Court proposed to be
appealed from, or any Judge thereof, may allow an appeal under special
circumstances, except in the case of a election petition, notwithstanding that
the same may not be brought within the time hereinbefore prescribed in that
respect: but in such case, the Court or Judge shall impose such terms as to
security or otherwise as shall seem proper under the circumstances.”
This appeal is not under Sections 18, 19 or 20
of the Statute. It is not a special case, or on a judgment on a motion to enter
a non-suit or verdict, or for a new trial upon the ground that the Judge has
not ruled according to law. There was, therefore, no necessity of giving a
notice of appeal within 20 days after the decision complained of under Section
21.
There is no other provision as to regulating
appeals when error in law is alleged, than Section 16, except
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that it must be brought within 30 days from the
signing, entry or pronouncing of the judgment appealed from. No writ is
required to bring any appeal into the Court. It is sufficient if the party
desiring to appeal, shall within the time hereinbefore limited, have
given the security required, and obtained the allowance of the appeal;
in this case that would be 30 days.
It was more than three months after the judgment
appealed against in this cause was pronounced, before any right to appeal under
this statute existed, and unless it can be shewn that that right was to be
given to judgments pronounced before the Statute was an operative law then I
fail to see how this case can be appealable here.
It is contended, however, that by the 26th
section any Judge of the Court appealed from might allow an appeal, though it
might not have been brought within the time prescribed; in effect, that any
Judge of the Court to be appealed from had a right to grant an appeal in a
case, though such right did not exist, and the Statute allowing it had not
become operative as a law until long after the judgment had been rendered, and
long after an appeal under the provisions of this Act had, according to its
terms, become impossible, but for the section referred to.
I do not think the Dominion Parliament intended
to leave it in the discretion of a single Judge to grant an appeal in a case
decided before the Confederation of the Provinces or the Parliament of the
Dominion had an existence, and yet such would be the case, if we would give the
interpretation to this section which the Appellant desires.
The rule of law is not disputed, that the right
of appeal to a Court like this is one which must be created by express
enactment.
[Page 73]
If the Dominion Parliament had intended to give
the right contended for, it would have been easy to have expressed that
intention in distinct words, but that clearly has not been done, and we are
asked to infer it. It is said, however, that the power to allow the appeal
under the 26th section can never be exercised, when the judgment to be appealed
from was pronounced more than a year before the application, because the
24th section of the Act provides that proceedings in appeal, when not otherwise
provided for by the Act or by the rules to be made under it, shall be as nearly
as possible in conformity with the practice of the Judicial Committee of Her
Majesty’s Privy Council, and that by the rules of that Committee no appeal will
be heard unless the record be lodged there within a year from the time judgment
was pronounced in the Court below. But under our Statute and rules, the case in
appeal must be filed within a month after the security required by the Act is
allowed, or the party will be considered as not duly prosecuting his
appeal, and so the rule referred to in the Privy Council would not apply. It is
said the natural tendency of all tribunals is to grasp jurisdiction, but
certainly an Appellate Court, which only exercises a jurisdiction expressly
conferred on it, ought not extend that jurisdiction by construction.
The reasonable view of the provisions of the
statute referred to, and one which would give complete form and effect to them
all, is: That the Legislature contemplated that, from the time the statute
became operative, certain judgments and decisions of certain Courts within the
several Provinces might be appealed to the Supreme Court created under the Act.
That if, from circumstances, an appeal in any
case which might have been brought within the time therein
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prescribed, was not brought within such time,
then the Court or Judge might allow the appeal. Section 26 and this Section,
taken in connection with Section 21, seems to shew that what was intended by
both sections was virtually to extend the time within which the party desiring
to appeal might perfect his security and get it allowed. The final act in
allowance of the appeal seems to be the approving of this security. Section 33
says when the security has been perfected and allowed, any Judge of the Court
appealed from may issue a fiat to the Sheriff to stay execution.
It was argued that the right of appeal existed,
and that the Dominion statute in effect abolished the appeal to Her Majesty in
Her Privy Council, given by the statute of Ontario, and substituted the appeal
to this Court for it; and, therefore, in all cases pending in Ontario which, at
the time of the Dominion statute, were appealable under the laws of Ontario,
ceased to be appealable at all unless the right could be revived under the 26th
section of the Dominion Act. There is nothing in the statute itself declaring
in terms that such shall be the effect of establishing the Court. It certainly
does not assume to abolish the right to appeal to Her Majesty in Her Privy
Council, conferred by Local legislation. The 17th section declares that,
subject to limitations, an appeal shall lie to this Court from all final
judgments of the highest Court of final resort in any Province of
Canada, and the 47th section declares that “the judgment of the Supreme Court
shall in all cases be final and conclusive, and no appeal shall be brought from
any judgment or order of the Supreme Court to any Court of Appeal established
by the Parliament of Great Britain and Ireland, by which appeals or petitions
to Her Majesty in Council may be
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ordered to be heard; saving any right which Her
Majesty may be graciously pleased to exercise, by virtue of Her Royal
Prerogative” Suppose Appellant, within a month after judgment pronouced, had
taken steps to appeal to Her Majesty in Her Privy Council, and the necessary
bond had been given, and all the proceedings taken then necessary to go on with
the appeal in England, could the Respondent contend, when the case came on to
be heard before the Judicial Committee of the Privy Council, that the Appellant
had no locus standi there, because all the powers of this Court could
then be exercised, and that, under the 26th section of the statute, a Judge of
the Court of Appeals in the Province of Ontario might have allowed the appeal,
notwithstanding the same was not brought within the time in that respect
prescribed by that Act; and as there was in Canada a Court to which an appeal
might be had, therefore it should not be heard before the Judicial Committee of
the Privy Council. Would not the answer be that, when the steps to appeal the
case were taken, the statutory powers given to the Supreme Court of Canada were
not in force, and the Appellant, so far from being guilty of any laches in not
bringing his appeal within the time prescribed by that Act, had, in fact,
brought it before either the Supreme Court or the Judges of the Court of Error
in Ontario had any power whatever in relation to appeals or as to allowing an
appeal under the Supreme Court Act.
I am now assuming that steps were taken to bring
the appeal before the Judicial Committee of the Privy Council previous to the
11th January, 1876. If, in the hypothetical case which I have put, the Judicial
Committee of the Privy Council would have decided to hear the appeal, on the
ground that the Dominion Statute
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did not prevent the Appellant from exercising
the right which he had of appeal, and which, in fact, could only, at that time,
have been exercised in that way; then, I think, we are bound to hold that we
cannot properly hear this appeal. In the view suggested, the case would be
heard by the Judicial Committee of the Privy Council, because, at the time the
judgment was given in the Court of Appeals in Ontario, there was no tribunal in
the Dominion of Canada authorised to hear appeals from the decision of that
Court; and that state of things continued from 25th September, 1875, when the
judgment was pronounced, to the 11th January, 1876, when this Court become
endowed with appellate powers.
The fact that the Supreme and Exchequer Court
Act of 1875, under its 26th section, permitted a Judge of the Court appealed
from to allow an appeal under it, in cases where the same had not been brought
within the time prescribed by that Act, would hardly authorise the rejection of
an appeal regular in all its forms, and, perhaps, ready to be heard when the
Act of 1875 was brought into force.
We should not give a forced construction to the
Statute. It is not reasonable to suppose the Legislature intended to legislate
as to cases in which judgment had been pronounced by the final tribunal in this
country before this Court became possessed of any appellate power whatever. If
they had so intended, it would have been easy to express that intention in an
unequivocal manner. The provision in the 26th section of the Statute, to give
the right to appeal when the party from excusable causes omitted to take the
proper steps under the statute to appeal within the time prescribed by the Act,
seems reasonable and quite proper to be made and applicable to judgments or
decisions after this Court had full power to deal with the matter.
[Page 77]
If it is decided that this Court has
jurisdiction in this cause, because the Judge of the Ontario Court of Appeal
ordered and allowed that the appeal might be brought within ten days from the
30th April last, notwithstanding the appeal had not been brought within the
time prescribed by the Statute, what is to prevent appeals being granted in
cases in which judgments were entered 15 years ago, and in which the money has
been paid under execution. Surely such could not have been the intention of the
Legislature.
The 25th section of the Act, after providing
that appeals from decisions on election petitions shall be brought within eight
days from the rendering thereof proceeds: “and every other appeal shall be
brought within thirty days from the signing or entry or pronouncing of the
judgment appealed from.” This language expels the idea that it was contemplated
that judgments pronounced before the language used became law, should be
appealable under the Act. If we are to consider only the effect of these words,
there would not be any doubt on the subject, but if it is contended that the
26th section gives the right, the language is: “Provided always, that the Court
proposed to be appealed from, or any Judge thereof, may allow an appeal under
special circumstances, except in the case of an election petition,
notwithstanding that the same may not be brought within the time hereinbefore
prescribed in that respect; but in such case the Court or Judge shall impose
such terms as to security or otherwise, as shall seem proper under the
circumstances.”
Does not this language imply that the case must
be one in which the appeal might have been “brought within the time hereinbefore
prescribed.” But this case
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could not have been brought within that time;
there was no Court to bring it in. Does not the reference to the imposing terms
as to security, &c., imply that the party seeking relief had been guilty of
laches, but, as already suggested, he was guilty of no laches, for he could not
have brought in his appeal within the thirty days.
I have referred to the cases cited on the
argument, and I do not think they conflict with the conclusion I have arrived
at in this case, that we have no jurisdiction Mr. Bethune referred to the case
of the Earl of Roseberry v. Sir John Inglis, the first case from Scotland appealed after the union. There
was some difficulty at first but it was finally settled.
As before the union the people of Scotland had the right to appeal to the
Scots Parliament, the act of union was not intended to deprive the Queen’s
subjects of any privileges formerly enjoyed by them. The British Parliament
came in, in place of the Scots Parliament, and the appellate jurisdiction
exercised by the latter was transferred to the former by plain and necessary
implication, though not by positive enactment.
The latest case referred to on the argument was The Queen v. Vine. The statute thereunder consideration 33
and 34 Vic., c. 29, s. 14, enacted that “every person convicted of felony
shall for ever be disqualified from selling spirits by retail, and no license
to sell spirits by retail shall be granted to any person who shall have been so
convicted, and if any person after having been so convicted, shall take out or
have a license to sell spirits by retail the same shall be void to all intents
and purposes.” Many cases are referred to in the argument.
[Page 79]
The question was whether a person who had been
convicted of a felony before the passing of the Act became disqualified on the
passing of the Act; and the majority of the Court held he did. Cockburn, Chief
Justice, said the Act was not to punish offenders, but to protect the public
against public houses in which spirits were retailed, being kept by persons of
doubtful character. He thought, from comparing the Statute with others for
similar purposes passed by the Legislature, that it was intended to apply the
rule to persons who had been convicted of felony before the passing of the
Statute.
The case of Taylor was referred to on the argument as shewing the proper view of the
subject.
In Vansittart v. Taylor; Jervis C.J., in
giving judgment said: “we are all agreed that jurisdiction cannot be given by
the conduct of the parties, if we have none independent of it; so that the only
question is whether it is given in this case.” The case was under the 34th
section of the English Common Law Procedure Act, which is as follows: “In all
cases of rules to enter a verdict or non-suit upon a point reserved at the
trial, if the rule to shew cause be refused or granted, and then discharged or
made absolute, the party decided against may appeal.” The trial was before the
Statute received the royal assent, but the rule to obtain a verdict was
obtained after the Act came into operation. As before that there was no appeal
in such a case, it was only by consent that such a reservation could be made,
it was in fact an agreement to refer the case to the Court of Queen’s Bench. In
that case Parke, B. said: “I take it to be a clear rule of law that the
language of a Statute is primâ facie to be construed as
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prospective only. This is according to the legal
maxim, Nova constitutio futuris formam imponere debet non preteritis.” A
point reserved at the trial before the Act was only by consent of parties, and
was a consent to refer it to a particular Court, only and not that the decision
should be reviewed in error. The rule to set aside the proceeding was made
absolute. Platt, B. dissenting.
In Kimbray v. Draper,; in an action commenced in a Superior
Court before August, 1867, application was made under the County Court Act of
that year, passed in the month of August, to transfer the case to the County
Court unless the Plaintiff gave security for costs, it being shewn by
Defendant’s affidavit, that he had no visible means of paying the costs in case
the verdict should go against him. It was considered this was a matter of
procedure only, and the order could be made, although the Act was passed after
Plaintiff had commenced his action. Though the Judges had great doubt on the
subject, they thought the case of Wright v. Hale, an authority for Defendant, and granted
an order to transfer the case to the County Court. Blackburn, J. said in
giving his judgment: “When the effect of an enactment is to take away a right, primâ
facie, it does not apply to existing rights, but when it deals with
procedure only, primâ facie it applies to all actions pending as well as
future”
In Evans v. Williams it is laid down that
it is a broad principle of construction that, unless the Court has a clear
indication of an intention in an Act of Parliament to legislate ex post
facto, and to give to the Act the effect of depriving a man of a right
which belonged to him at the time of the passing
[Page 81]
of the Act, the Act will be declared not to have
a retrospective operation.
The Midland Railway v. Pye, Plaintiff, a married
woman, obtained an order, under Acts 20 and 21 Vict., c. 85, of protection;
before that she had brought an action in the County Court to recover the value
of some furniture, some of which had been acquired by her after the desertion
by her husband. It was contended on her part that the order of protection
related back to the time of the desertion, and she could maintain the action in
her own name; the concluding part of the 21st section being: “If any such order
of protection be made, the wife shall, during the continuance thereof, be, and
be deemed to have been, during such desertion of her, in the like position, in
all respects, with regard to property and contracts, and suing and being sued,
as she would be under this Act if she obtained a decree of judicial
separation.” The Court held that this order of protection obtained by her
during the pending of the suit would not entitle her to maintain an action
which was not maintainable at its commencement. Erle, C.J., said: “Those
whose duty it is to administer the law, very properly guard against giving to
an Act of Parliament a retrospective operation, unless the intention of the
Legislature that it should be so construed is expressed in clear, plain and
unambiguous language; because it manifestly shocks one’s sense of justice that
an act, legal at the time of doing it, should be made unlawful by some new
enactment. Modern legislation has almost entirely removed that blemish from the
law; and, wherever it is possible to put upon an Act of Parliament a
construction not retrospective, the Courts will always adopt that construction.”
Can there
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be any doubt that the allowing an appeal where
no right of appeal existed materially affects the rights of parties to enforce
their judgments, as well as increases the expenses?
In Vansittart v. Taylor, already referred
to, Baron Parke said the proceedings in error are far more expensive
than where the case is not subject to appeal, and ought not to be imposed on a
party who did not consent to it.
My Brother Ritchie has drawn my attention to the
case of Atty.-Gen. and Sillem.
Many of the observations of the Judges in that case, both in the Exchequer
Chamber and the House of Lords, have a bearing on some of the questions
discussed in this cause. There, there were different opinions entertained by
the Judges in the Courts below and by the Law Lords when taken into the House
of Lords. One question was, whether an appeal was a proceeding in the cause or
a new right. Willes, J., said: The understanding to be gathered from works with
respect to practice is that a proceeding by way of error or appeal is part of the
practice on the side of the Court in which the process originates. “Erle, C.J.,
said: “Procedure in a suit includes the whole course of practice from the
issuing of the first process by which suitors are brought before a Court, to
the execution of the last process on the final judgment.” According to the
provisions of the Common Law Procedure Acts, the appeal is effected by the act
of the suitor in the Court of first instance.
The question was whether, under the power given
by statute to the Barons of the Exchequer Court to apply the provisions of the two Common Law Procedure Acts to the
process practice and mode of proceeding on
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the revenue side of the Court, with the purpose
of making it, as nearly as may be, uniform with the process practice and mode
of pleading on the pleas side of the Court of Exchequer, an appeal would be
given. Compton, J., said: “No doubt the Legislature might, had it so pleased,
have given such a power of creating such appeal to this Court, and ultimately
to the House of Lords; but it certainly would be a new and unusual course of
legislation in creating a new statutory appeal.” * * * “There is great
difference between the machinery of the appeal and the right of appeal. The
former might, with less difficulty, be called practice but I have great
difficulty in seeing how the giving a right to appeal is practice.”
Cockburn, J. said: “Can it be supposed, in the
absence of clear legislative enactment, that Parliament intended to confer on
the Court of Exchequer the power of creating or withholding an appeal in
matters of revenue at its pleasure and discretion?”
In arguing the case in the House of Lords, Sir
Hugh Cairns said: “It cannot be supposed that the Legislature intended that a
party who gained a verdict at a trial should have his right to retain that
verdict affected by a statute, still less by new rules of Court coming into
operation after the trial.” He referred to Moon v. Durden, where it was held that the 8 & 9 Vic.,
c. 109, did not defeat an action upon a wager commenced before the statute, and
the rule was also applied in Pinhorn v. Souster, to pleadings demurred to before the Common
Law Procedure Act of 1852.
The Attorney General, in reply, as to the
retrospective operation of the rules, said: “The cases cited only shew that the
substantive rights of the parties are not to be
[Page 84]
retrospectively affected; but they do not shew
that the Court may not, the instant after the passing of a Statute, regulate
the proceedings taken to enforce those rights in conformity with its
provisions; and in that way a party may even incur a new liability to costs. Freeman
v. Moyes;
Cox v. Thomason;
Wright v. Hale.
Lord Westbury, in giving his judgment, said:
“The creation of a new right of appeal is plainly an act which requires
legislative authority * * * A new right of appeal * * * is in effect a
limitation of the jurisdiction of one Court, and an extension of the
jurisdiction of another * * * An appeal is the right of entering a Superior
Court and invoking its aid and interposition, to redress the error of the Court
below. * * * The appeal itself is wholly independent of these rules of
practice. * * The words step in the cause are used, as is well known,
for the purpose of denoting that in future it should not be necessary to sue
out a new writ for the purpose of entering a Court of Error.”
Lord Wensleydale said: “The new law took away no
right from the claimant; it gave both the claimant and the Crown precisely the
same right, that of questioning the propriety of the decision of the Court of
Exchequer on a rule for new trial for misdirection. If judgment was given for
the claimant the Crown has the right to question that by appeal. If for the
Crown, the claimant has exactly the same right. The new law is therefore
perfectly fair to both parties” * * * “There is no doubt of the
justice of the rule laid down by Lord Coke, that enactments in a statute are
generally to be construed to be prospective and to regulate the future
[Page 85]
conduct of parties. But this rule of construction
would yield to the intention of the Legislature. It could not be supposed the
Legislature intended to deprive a man of a vested right of action; this was
laid down in Moon v. Durden’’.
“On the other hand, it is clear that there is a
material difference when an Act of Parliament is dealing with a right of action
already vested, not intended to be taken away; and when it is dealing with mere
procedure to recover those rights, which it may be quite reasonable to regulate
and alter. This has been most clearly and satisfactorily explained in the case
of Wright v. Hale;
particularly by Sir James Wild.” * * *
“The right of action does not constitute a title
to keep all the consequences of the right as they were before. It gives the
right to have the action conducted according to the rules then in force with
respect to procedure.”
I think, when a party has obtained a judgment,
issued an execution under which he is enforcing the collection of his debt, who
is disturbed by an appeal, the right to which has been created more than a
year, perhaps ten years, after he has obtained his judgment, such disturbance
is a very serious interference with an important right, the result of which may
be ruinous to him. If we decide the right to appeal exists in this case, because
a Judge of the Court below, whose judgment is appealed from, allowed an appeal,
we must hold if an allowance were made in a case, where the judgment had been
given ten years ago, the appeal would be legal and proper.
I do not think the Legislature ever contemplated
such a serious interference with the rights of successful
[Page 86]
litigants. I do not consider this a mere
question of procedure.
If it be a mere matter of procedure in the cause
in the Ontario Court, has not the Ontario Legislature the exclusive right to
regulate the procedure in civil suits brought in the Courts established by it?
The statute creates a new Court, gives a new
right of appeal which did not exist before; and in my judgment, is not to be
considered as a matter of procedure. As already intimated, I do not think the
Dominion Parliament, in passing the Statute, intended to legislate in relation
to judgments rendered years before the Act was passed, and under which most
important rights may have been considered as decided. I think the whole scope
of the Act is to provide for appeals in cases in which decisions or judgments
should be pronounced after the Act came in force.
Under the circumstances, I think we should
pronounce no judgment on the subject-matter of this appeal. If application had
been made to set aside or quash these proceedings as in Vansittart v. Taylor, we would have made the rule absolute, and
in Tronson v. Dent
where it is said, when Appellate Court has no jurisdiction, the Respondent
ought to apply to quash the appeal.
RITCHIE, J.:—
All questions of jurisdiction, more particularly
questions touching jurisdiction of a Court such as this, are so vital, and the
jurisdiction which we are now called on to declare that this Court possesses,
involve such important consequences, and both parties having contended that
this Court has the jurisdiction claimed, I feel it my duty to state at greater
length, the reasons that
[Page 87]
have led me to the conclusion at which I have
arrived, than otherwise I should have thought necessary to do in a case to my
mind so very clear.
No doubt there are exceptions engrafted on the
rule of law which I presume at this day cannot be denied, that the language of
a Statute is primâ facie to be construed as prospective as where it
clearly appears, from the wording of the Statute, that the Legislature intended
it to have a retrospective operation, or where the Statute relates to matters
of procedure not affecting rights, for when a Statute deals with procedure
only, it applies to all actions, those pending as well as future.
In proceedings to recover rights, it is quite
reasonable that a pending suit should be conducted in the way and according to
the practice of the Court in which it is brought, and if an Act of Parliament
alters the mode of procedure, the right to have it conducted in that altered
manner would seem to be proper enough, because it takes nothing away from the
parties; the Court merely says to the parties, that an Act of Parliament
declares how you shall proceed to enforce your rights; in other words, that the
action shall be conducted from time to time according to the rules in force,
with a respect to procedure during the progress of the suit. See Atty.-Gen.
v. Lillon,. But
the cases establishing this doctrine, clearly demonstrate that while such is
the case with reference to procedure when the enactment changes or takes away
rights, it is not to be construed as retrospective.
This distinction will be found very clearly
enunciated in Wright v. Hale,
and in Kinbury v. Draper.
In the present case I can see no reason why this
[Page 88]
Statute should have a retrospective operation,
inasmuch as I cannot consider the creation of this Court and the right of
appeal thereto mere procedure, and I can discover no language in the Statute
indicating that in its construction the primâ facie rule that statutes
ought to be construed to operate in the future, was to be departed from. On the
contrary, such a construction would, in my opinion, prejudicially affect
existing vested rights, and the legal character of past acts. It may be well,
before proceeding further, to cite some cases and notice the very strong
language used in respect to the retrospective construction of Statutes.
As Moon v. Durden may be, and I believe
is, considered a leading case, I will refer to the rule as put forward by Rolfe
Baron in that case, because it has been frequently cited and approved of. “The
general rule” (he says) “on this subject is stated by Lord Coke, in the 2
Inst., 299, in his commentary on the Statutes of Gloucester.”—‘Nova
constitutio futuris formam imponere debet non prœteritis,’ and the
principle is one of such obvious convenience and justice that it must always be
adhered to in the construction of statutes, unless in cases where there is
something on the face of the enactment putting it beyond doubt that the
Legislature meant it to operate retrospectively.” “In Pinhorn v. Souster, Parke, B., says, the well known maxim is ‘Nova
constitutio &c.’” We must therefore read the Act as if its words had
been “no future pleading shall be deemed insufficient &c.,” and adds: “the
rule as to construction of Statutes was fully considered by this Court in Moon
v. Durden.
On Freeman v. Moyes, being mentioned, he
[Page 89]
said: “Littledale, J., dissented from that
judgment, and I can’t help thinking with strong reasons. “In Doolubdals v.
Ramcoll et al.,
the Privy Council agreed with the Court in the construction of Statutes in Moon
v. Durden.
In Thompson v. Lack, Wilde, C.J. says:
“The general principle that a Statute is not to be construed so as to have a
retrospective operation, is a just one; for persons ought not to have their
rights affected by laws passed subsequently.” And again in order to give a
retrospective effect to any Statute the words should be very clear. In the Midland
Railway v. Pye,
Earl, C.J., says: “Those whose duty it is to administer the law, very properly
guard against giving to an Act of Parliament a retrospective operation, unless
the intention of the Legislature that it should be so construed is expressed in
clear, plain and unambiguous language; because it manifestly shocks one’s sense
of justice that an act legal at the time of doing it should be made unlawful
bysome new enactment. Modern legislation has almost entirely removed that
blemish from the law, and whenever it is possible to put upon an Act of
Parliament a construction not retrospective, the Courts will always adopt that
construction.”
In Waugh v. Middleton it was held in
construing the 224th section of the Bankrupt Act, which enacts that “every deed or
memorandum of arrangement now or hereafter entered into &c.” did not
operate upon such instruments as were entered and completed before the passing
of the Statute, but applied to such instruments as were entered into before and
were inchoate
[Page 90]
at the time of the passing of the Act and had
been completed since that time.
In Marsh v. Higgins, Wilde, C.J., says:
“Statutes are not to be held to operate retrospectively, unless they contain
express words to that effect. Sometimes, no doubt, the Legislature finds it
expedient to give a retrospective operation to an Act to a considerable extent;
but, then, care is always taken to express that intention in clear unambiguous
language.” And again: “The words of an Act are to be construed to be
prospective only unless the intention of the Legislature to the contrary is
unequivocally expressed.”
In Jackson v. Woolley, Thompson v. Waithman was overruled and the
language of Rolfe, B., approved. And William v. Smith affirmed Jackson v.
Wolley, and referred again with approval to Rolfe, B., observations in Moon
v. Durden.
And in Evans v. Williams, as reported in
13th Weekly Reporter, 424, Kindersley, V.C., says: “But the ground on which I
come to my conclusion, is, that unless the Court sees clearly an indication
that the Legislature intended ex post facto to deprive a man of rights
which existed at the time of the passing of the Act, it will never deprive him
of those rights. Where an Act deprives a man of his land it gives him ample
compensation, and provides for the taking away of the right. But, unless it is
clear that the Legislature meant the Act to be retrospective, the Court will
not hold it to be so, and upon that point the case of Moon v. Durden, in
the Exchequer, is a very strong authority. That was the case of pending action,
and
[Page 91]
yet in the face of the words ‘shall be
maintained, it was held that the Statute was not retrospective, so as to defeat
an action instituted before the passing and on the same principle as I am now
acting upon, three of the Judges, Lord Cranworth, B. Alderson and B. Parke,
were clearly of opinion (in which I concur, and that is not the only case in
which it was so held), that the Court will not deprive a man of existing rights
by giving the Act a retrospective effect.”
In Vansittart v. Taylor, Pollock, C.B., says: “The language of section 34 is no doubt
couched in terms apparently absolute; but,” he says, “generally speaking the
language of an Act of Parliament, however much it may be couched in the present
tense, is to be “construed as applying to the future only.”
In Queen v. Vine, the Court held the words “any person
convicted of felony” in the wine and beer amendment in Act 33 & 34 Vict.,
ch. 29, sect. 14, applied to a person convicted either before or after the Act
passed, and so the Act was retrospective. And though Cockburn, C.J., and
Mellor, J., thought the Act was not to punish offenders, but for the protection
of the public, and that the Legislature categorically drew a hard and fast rule
as to who should receive licenses, and Archibald, J., thought the language of
the Act showed the Act was intended to be retrospective, Lush, J., was of
opinion that the general rule, even in such a case, should not be departed
from, and the Statute should apply only to a person convicted after the passing
of the Act.
And ex parte Jones, under the 126th section of the Bankrupt
Act, which declared that the composition
[Page 92]
should be “binding on all creditors whose names
and addresses and the amounts of whose debts were shewn in the debtor’s
statement,” it was held that a resolution for composition had no retrospective
effect so as to invalidate securities obtained by a creditor in the interval
between the filing of the petition and the first meeting of creditors at which
the resolution was passed to accept a composition.
Sir W. James, L.J, says: “In order to take away
a legal right from any body, it is necessary to shew express words or clear
implication. In this” he says, “the Respondents have, by due process of law,
obtained a security on all the goods which the sheriff could seize that was
their legal right and they have it still, unless it can be shewn to have been
taken away from them.”
Now, in the case before us, can it be said that
rights will not be changed or affected if we give a retrospective effect to the
Supreme Court Act? When judgment was pronounced by the Appeal Court of Ontario,
the suit ceased, in my opinion, to be a pending or existing litigation; the
matter became res judicata, because a final judgment is the putting an
end to the action by an award of redress to one party or discharge of the
other, as the case may be. The Court pronouncing the judgment in this case had
at the time full and final jurisdiction over the subject-matter, and it disposed
of the controversy and established the rights of the parties by a judgment then
final and unimpeachable so far as relates to Courts in this Dominion.
Procedure, in my opinion, is mere machinery for
carrying on the suit, whether in the Court appealed from or the Court appealed
to, and for removing the cause from the Court appealed from to the Court
appealed to but not affecting the respective jurisdictions of either Courts,
[Page 93]
But if an appeal was mere matter of procedure,
which I humbly think it is not, I fail to see how, (unless the proceedings were
opened up by clear statutory enactments), such procedure could apply to a suit
thus settled and disposed of by a final judgment before any such procedure or
right to take such procedure existed.
I cannot think that the Legislature contemplated
that the rights of parties so established should be altered or affected by the
creation of an appellate tribunal by a Statute subsequently passed, in which no
language, that I can discover, is to be found indicating any such intention. I
think the fair and proper construction of the Statute is that the Legislature
intended to establish an appellate tribunal to regulate the future, not the
past. To which all judgments pronounced after the coming after the operation of
the Act might be appealed, and that there was no intention by ex post facto
legislation to disturb or interfere with causes previously determined and
settled, and thereby to jeopardise judgments and rights thereunder, which
successful litigants had a just right to consider the law as administered by a
competent tribunal and sacredly assured to them. It is not easy to foresee the
litigation, confusion, insecurity and hardships that might arise, should it be
held that all judgments pronounced before the coming into operation of the
Supreme Court Act, in each and every of the Courts of final resort in the
several provinces of the Dominion, were now opened to be appealed by simply
obtaining an order from a single judge of any of such Courts respectively,
allowing such appeal, no matter what length of time may have elapsed since the
judgment was pronounced; for if a judgment given three months before the Act
came into operation can be appealed, I can see no reason why one pronounced
[Page 94]
three years ago or longer is not equally opened
to be appealed, if the Court or a judge should make the necessary order. In my
opinion the Legislature intended to give either party an appeal as of right,
and I do not think the Act was intended to apply to any case that the party had
not the appeal as a right. In this case the Appellant could have no appeal of
right by reason of the impossibility of appealing within 30 days after the
pronouncing of the judgment, for the obvious reason that there was no Court to
appeal to. I think the Statute only contemplated the exercise of the
discretionary power of the judge, where a party, having had the right and
opportunity to appeal, was prevented by accidental causes without negligence,
and not to any case where the party never could, of his own motion, have
exercised the right. In other words, I do not think that the Legislature could
have intended that while as to all the judgments pronounced after the passing
of the Act, the parties were, of their own motion, to have the right of appeal
as to all judgments pronounced anterior to 30 days before the coming into
operation of the Statute, the appeal was to be purely discretionary in the
Court appealed from or a judge thereof. I think it would be most unjust to
parties who, having had their rights passed upon and determined by law, and who
had been for months or years, as the case may be; in the enjoyment of such
rights so awarded to them by the solemn judgment of the law, unimpeachable at
the time it was pronounced, if this Court now, by calling an appeal mere
procedure, give this Statute a retrospective operation, and so render the
security heretofore looked upon as unimpeachable, namely: the security of a
judgment of a competent tribunal, a delusion, and could make the decisions under
[Page 95]
which parties had hitherto held and possibly
dealt with property, feeling themselves as safe as the law could make them, now
liable to be re-opened and appealed at the discretion of a single judge.
The principle of this Statute should apply to the
future and not to the past, seems to my mind so clear, the consequences, if the
contrary was held, so disastrous to parties who may have received and disposed
of the full benefit of their judgments, as also to those who may have acquired
rights to property on the faith of such adjudications and on the belief that
litigation was at an end in respect thereto, and would not be reopened, that in
the language of Parke B. in Vansittart v Taylor, “I think this would be such an unjust
construction that, independent of the general rule referred to, I am quite
clear the Legislature never meant it. “But, independent of all this, I think
the creation of a right of appeal is by no means mere matter of procedure, but
is a matter of jurisdiction, that is, of the limitation and extension of
jurisdiction, and by which limitation and extension the rights of suitors may
be most materially affected. After the Supreme Court Act came into operation,
the jurisdiction of the Courts of final resort in the several Provinces of the
Dominion became more limited, their adjudications becoming subject to
affirmance or reversal by this Court, which in its turn acquired a jurisdiction
not heretofore existing in the Dominion. Bearing strongly, I think, on this
view, are the observations of Lord Chancellor Westbury and Lord St. Leonard in
the celebrated case of Attorney General v. Sillem. At p. 720 the former says:—
“The creation of a new right of appeal is
plainly an Act which requires legislative authority. The Court
[Page 96]
from which the appeal is given, and the Court to
which it is given must both be bound, and that must be the act of some higher
power. It is not competent to either tribunal, or to both collectively, to
create any such right. Suppose the Legislature to have given to either
tribunal, that is to the Court of the First Instance, and to the Court of Error
or Appeal respectively, the fullest power of regulating its own practice or
procedure, such power would not avail for the creation of a new right of
appeal, which is in effect a limitation of the jurisdiction of one Court, and
an extension of the jurisdiction of another. A power to regulate the practice
of a Court does not involve or imply any power to alter the extent or nature of
its jurisdiction.”
And again at page 724:—
“An appeal is the right of entering a Superior
Court and invoking its aid and interposition to redress the error of the Court
below. It seems to denominate this paramount right part of the practice of the
inferior tribunal. The mode of proceeding may be regulated partly by the
practice of the inferior and partly by the practice of the superior tribunal;
but the appeal itself is wholly independent of these rules of practice. The
right to bring an action is very distinct from the regulations that apply to the
action when brought and which constitute the practice of the Court in which it
is instituted. So the 34th and 35th sections of the Act of 1854, which create
new rights of appeal, and the 36th section which defines and binds certain
Courts to receive and determine such appeals, cannot with any accuracy or
propriety be termed provisions which relate to process, practice or mode of
pleading, either in the Court appealed from or that to which the appeal is to
be made. They are enactments creating
[Page 97]
new relations between certain Courts in cases
which are defined, and they are as distinct from rules of practice as
international is distinct from municipal law.”
And at page 752 Lord St. Leonards says:—
“Now the making of orders, giving a right of
appeal from the Court of Exchequer, where such right of appeal did not before
exist, is an act by the present Barons of the Court of Exchequer which does, if
valid, affect and prejudice the jurisdiction and authority of the Court in all
time to come. The present Barons, exercising their power, have superadded what
did not before exist, namely, a right of appeal in various modes from the
decision of the Court of Exchequer. The Court of Exchequer, having a right to
decide without any power of appeal, the present “Barons of the Exchequer have,
in the exercise of the authority which they claim, made their judgments subject
to the decisions of a higher tribunal. If that is not affecting the
jurisdiction of the Court, I cannot imagine what can be said to be so.”
It has been suggested that the remarks of the
learned Judge Dr. Lushington, in the Alexander Larsen, militate against this
view, but I cannot see that it does so at all. He says: “I am not aware of any
principle or decision which establishes the doctrine that where a Statute
affords a new mode of suing, the cause of action must necessarily arise
subsequently to the period when the Statute comes into operation. On the
contrary, where a Statute creates a new jurisdiction, the new jurisdiction, I
apprehend, takes up all past cases, and there is not the slightest injustice in
this, for although the circum-
[Page 98]
stances may have occurred prior to the passing
of the Statute, the suit or action may have been commenced subsequently.”
This is all right enough as applicable to Courts
established to enable parties to recover their rights, but I am not aware of
any case where a Statute passed affording a new mode of suing, creating a new
jurisdiction, or establishing a new Court or regulating procedure, has ever
been held to apply to a suit that has been duly litigated and finally decided
by a competent Court before the passing of the Statute, whereby the litigation
and the rights of the parties thereunder had passed as the law stood in rem
adjudicalam, so as to open the controversy and enable the matters
originally in dispute to be adjudicated upon afresh. For these reasons, and
because I think this Court should be extremely careful not to assume any
jurisdiction which it does not unquestionably possess, I am of opinion we have
no right and ought not to adjudicate upon this matter.
STRONG, J.:
It is a well established exception to the rule
that Statutes are not to receive a retroactive construction, that enactments
regulating procedure may have such an operation, so as to be applicable to
pending suits, when the language of the Act is sufficiently large to bear such
a construction. In
such cases, the ordinary presumption against a retrospective effect, requiring
that general words be restricted to future cases, does not apply. The creation
of a new right of appeal is a regulation of procedure, and, as section
[Page 99]
26 of the Supreme and Exchequer Courts Act is
sufficiently comprehensive in its terms to include cases pending at the time it
was passed, I should, if it stood alone, consider that this appeal was
admissible. Section 32 of the same Act, however, provides for a stay of
execution on certain conditions, as a consequence of an appeal. This, it seems
to me, is more than an enactment concerning procedure, as it amounts to a
serious interference with the substantial rights of the respondent. Therefore,
reading sections 26 and 32 together, I think that section 26 ought not to
operate retrospectively, and, for this reason, I concur in the judgment that
the appeal be quashed without costs.
TASCHEREAU, J.:—
Section 25 of the Supreme Court Act enacts,
that, except in election cases, every appeal must be brought within thirty days
from the rendering or entry or pronouncing of the judgment appealed from; but
by Section 26 it is enacted that a Judge of the Court appealed from may allow
an appeal, under special circumstances, after the thirty days.
In this case, the judgment sought to be appealed
from was rendered and signed several months before the existence of this Court,
The order allowing the appeal was made without any affidavit of circumstances
to justify the order, and authorize a deviation from the general rule of the
statute; at least no such affidavit is apparent on the face of the record, but
the order mentions that it was granted by consent of parties.
At the date of such order, the judgment had
acquired all the authority of a final judgment, so far as this Court is
concerned, and, in my opinion, no consent of parties could give this Court any
jurisdiction over the
[Page 100]
case. The consequence of allowing such an appeal
after the expiration of legal delays, nay, even with the authority of the
Legislature, would be very serious indeed, inasmuch as vested rights in other
people might be greatly affected, such as those of creditors; but the case of
allowing an appeal by consent from a judgment rendered several months before
the existence of a tribunal would be fraught with the greatest danger. I do not
think that such was the intention of Parliament in framing the 26th section of
the Supreme and Exchequer Court Act. I am happy to find that the majority of
this Court in the present case agrees with me, and will decide that the 26th
section of the Supreme and Exchequer Court Act does not apply to cases finally
decided before the existence of our Supreme Court. The authorities quoted by my
learned colleagues are in point and completely warrant our decision.
FOURNIER, J.:—
Le jugement soumis à la révision de cette Cour a
été rendu le 25 Septembre, 1875, par la Cour d’Appel d’Ontario, “Court of Error
and Appeal.”
L’Acte créant cette Cour n’est devenu en
opération que le 11 Janvier 1876, c’est-à-dire, plus de trois mois après la
date de ce jugement
D’après la 25ième section, le délai dans lequel
un appel doit être porté, est de trente jours, mais lorsqu’il est interjeté en
vertu des sections 19, 20 et 21, il doit être précédé d’un avis par écrit donné
à la partie ou à son procureur, dans les vingt jours après le prononcé du
jugement, à moins que le délai ne soit prolongé par la Cour ou le Juge dont est
appel.
Il est évident que ce n’est pas en vertu
d’aucune de
[Page 101]
ces sections que le présent appel a été
interjeté, puisque les délais pour le faire étaient expirés longtemps avant la
mise en opération de la loi. Aussi ce n’est pas sur ces sections, mais sur une
autre, la 26ième que l’Appelant base son droit d’appel. Elle se lit comme
suit:—“26. Pourvu toujours que
la Cour dont on voudra en appeler, ou l’un des Juges de cette Cour, pourra
permettre qu’appel soit interjeté dans des circonstances spéciales, sauf dans
le cas d’une pétition d’élection, bien que l’appel n’ait pas été interjeté dans
les délais ci‑dessus prescrits à ce sujet; mals dans ce cas, la Cour ou
le Juge imposera telles conditions, à l’égard du cautionnement ou autrement,
qui lui paraîtront justes dans les circonstances.” Sans cette section et
l’interprétation que lui donne l’Appelant, un appel du jugement en cette cause
n’était pas possible. C’est en se fondant sur cette disposition qu’il a, plus
de six mois après la date de son jugement, demandé et obtenu la permission de
porter le présent appel, laquelle est en ces termes: “Upon the application of
Counsel for the said James Taylor, the Defendant in Error, and by consent, I
order and allow that the appeal herein may be brought within ten days from this
date, and notwithstanding that such appeal has not been brought within the time
prescribed by the Statute in that behalf. And I declare it does not seem to me
necessary or proper to impose any terms as to security. “Comme on le voit par
ce document, les parties en cette cause s’accordent avec l’honorable Juge qui a
rendu cet ordre à considérer que malgré que le délai d’appel fut expiré, avant
la mise en force de la loi, cette disposition a l’effet de donner au Juge, même
en ce cas, le pouvoir de prolonger le délai d’appel.
Telle est la prétention des deux parties
[Page 102]
litigantes, prétention qui a l’effet de soulever
une question préliminaire de la plus grande importance, celle de savoir si cette cour a droit de
prendre connaissance de la présente cause. Il me semble pourtant, bien évident,
qu’un appel en vertu du présent Acte ne pouvait exister avant la mise en force
de la loi créant le tribunal qui devait l’entendre; et qu’il n’était pas
possible de proroger un délai qui n’a pas existé. Aussi pour sortir de cette
difficulté les parties prétendent-elles que la section 26 donnant au Juge le
pouvoir, pour des raisons spéciales, de permettre un appel après le délai fixé,
doit être interpretée comme s’appliquant indistinctement à tous les jugements
rendus soit avant soit après la passation de l’Acte établissant cette Cour; ou,
en d’autres termes, que cette section doit être interpretée comme ayant un
effet rétroactif, affectant les droits acquis dans les jugements rendus avant
sa passation.
Bienque les deux parties soient d’accord à
reconnaître que cette Cour a juridiction dans le cas actuel, leur consentement
n’est cependant pas suffisant pour l’autoriser à assumer une juridiction que la
loi ne lui donne pas. Il n’y a rien de plus certain que cette maxime, que le
consentement des parties ne peut avoir l’effet de donner juridiction. La loi
seule peut le faire. Cette Cour doit donc indépendamment de ce consentement
considérer la question de savoir si’ l’ordre permettant l’appel en cette cause
est légal.
Si sa légalité ne fait pas doute, il en résulte
nécessairement que la disposition qu’il s’agit d’interpréter doit avoir un
effet rétroactif. Mais la loi a-t-elle eu cette intention? Contient-elle
quelque disposition qui serait de nature à forcer d’admettre une telle
interprétation? Je cherche en vain des traces d’une telle
[Page 103]
intention soit dans le préambule de l’Acte qui
établit cette cour, soit dans son dispositif. Au contraire, tout son contexte
fait voir qu’il a pour but la création d’une institution nouvelle tirant son
origine de l’article 101 de l’Acte Constitutionnel, et le langage de sa
rédaction est celui dont on se sert pour donner aux lois effet pour l’avenir
seulement. On n’y trouve pas une seule des expressions générale ment employées
lorsqu’on veut leur donner un effet rétroactif. Une interprétation qui
produirait ce dernier effet me semblerait donc blesser, sans raison, un des
principes fondamentaux en matière de législation.
Voici comment s’exprime Maxwell on Statutes, p.
191:
“It is a general rule that all Statutes are to
be construed to operate in future, unless from the language a retrospective
effect be clearly intended.” Nova Constitutio futuris formam imponere debet,
non prœteritis. Maxime qui appartient, on peut dire, à toutes les
législations, et que la loi Française formule en ces termes si brefs et si
expressifs:
“Les lois n’ont d’effet que pour l’avenir.”
Mais à ce raisonnement l’Appelant objecte que le
langage de la section 26 est général; qu’il ne distingue pas entre les
jugements rendus avant ou après la passation de la loi; et que conséquemment
tous indistinctement peuvent être soumis à l’exercise du pouvoir
discrétionnaire qu’elle accorde au Juge.
A cette objection je réponds que si c’eût été
l’intention de la loi de porter atteinte aux droits acquis, elle se serait
exprimée en termes clairs et formels ne laissant aucun doute sur sa volonté. “It has been said that nothing but clear
and express words will give a retro-
[Page 104]
spective effect to a Statute, and that much,
however the present tense may be used in it, it must be construed as applying
only to future matters.”
Je me demande en outre s’il n’y a pas une autre
manière d’expliquer cette disposition, et s’il s’en trouve une qui soit
d’accord avec l’ensemble des dispositions de l’acte, ne doit-on pas, d’après
les règles d’interprétation, la préférer à celle qui lui donnerait un effet rétroactif? Il me semble qu’une
explication logique et sensée de cette disposition résulte du fait que les
délais d’appel ont été considérablement abrégés par l’acte créant cette Cour.
En effet, on sait que l’appel au Conseil Privé de Sa Majesté des Jugements de
la Cour d’Erreur et d’Appel doit être interjeté dans l’année de la date du jour
qu’ils ont été prononcés. Il en est de’ même pour la Province de Québec et je
crois qu’on peut en dire autant de toutes les autres Provinces de là Puissance.
L’appel à cette Cour ayant été, en vertu de la 47e section de l’Acte de la Cour
Suprême, substitué à l’appel à Sa Majesté en Son Conseil Privé, on comprend que
les délais pour les appels à cette Cour ne pouvaient plus être les mêmes que
ceux des appels au Conseil Privé de Sa Majesté. Delà la necessité de les
abréger. Le délai n’étant plus en vertu de notre Acte que de trente jours, il
pouvait arriver que dans certains cas des parties désirant, de bonne foi,
interjeter appel, n’auraient pu être prétes à temps, et que sans le pouvoir
discrétionnaire dont il est question dans la 26e section, ces parties auraient
pu souffrir un tort considérable par la privation de leur droit d’appel. C’est
sans doute pour venir à leur secours que cette disposition a été adoptée. Ainsi
expliquée, il devient évident que cette section ne peut avoir d’application
qu’aux causes jugées depuis la mise en force de la loi.
[Page 105]
Une autre interprétation me parait impossible à
cause des graves conséquences qu’elle entrainerait. En effet, si l’honorable
Juge qui a rendu l’ordre dont il s’agit a eu raison de le faire dans le cas
actuel, lui-même, et d’autres Juges n’en pourraient-ils pas faire autant dans
des causes jugées depuis longtemps? Si ce pouvoir peut, comme on l’a fait dans
cette cause, être appliqué aux jugements qui, par l’expiration des délais
d’appel, ont acquis la force de chose jugée, quelle sera la limite où l’on
s’arrêtera? Sera-ce un an, cinq ans, vingt ans, l’Acte n’en fixant aucune?
D’après l’Appelant cette limite serait laissée à la seule discrétion du Juge
Mais ne peut-il pas se trouver des causes jugées depuis longtemps, dans
lesquelles, en exerçant cette discrétion, ce serait venir au secours d’une
partie qui a été mal-à-propos condamnée, ou qui l’a été en vertu d’une
jurisprudence admise alors par ces tribunaux, mais qui depuis a été reconnue
comme incorrecte et contraire aux veritables principes qui devaient servir à la
décision de telles causes. La chose est fort possible, et c’est bien là
supposer le cas le plus favorable où cette discrétion pourrait être exercée
quant au passé. Mais alors que deviendrait le principe du respect des droits
acquis et de la chose jugée? Principe si protecteur de la paix et de la tranquilité des familles. Peut-on
croire un instant que la loi a voulu le sacrifier pour introduire un principe
qui serait un élement de trouble et de désordre, propre à bouleverser l’action
des tribunaux depuis un temps illimité? Certainement non. Le législateur n’a pu
vouloir une telle absurdité. Ceci seul ne suffirait-il pas à démontrer que
l’intention n’était pas de permettre d’attaquer le passé, mais bien seulement
de n’accorder cette discrétion que pour les causes dont le sort n’était pas
finalement réglé lors de
[Page 106]
la mise en force de la loi. A ce propos je
citerai encore du même auteur, les paroles suivantes: “It is where the
enactment would prejudicially affect vested rights, or the legal character of
past acts, that the presumption against a retrospective operation is strongest.
Every Statute which takes away or impairs vested rights acquired under existing
laws, or creates a new obligation, or imposes a mere duty, or attaches a new
disability in respect of transactions or considerations already past, must be
presumed, out of respect to the Legislature, to be intended not to have a
retrospective operation.”
Cependant il en serait autrement si cette intention
de donner un effet rétroactif était claire et formelle. “However, when the
intention is clear that the Act should have a retroactive operation, it
must unquestionably be so construed, however unjust and bad the
“consequences may appear.”
Cette règle d’interprétation est certainement correcte. Le devoir du Juge est
de respecter la loi, de la faire exécuter quelleqù’elle soit, ce n’est pas à
lui de la juger. Mais dans la clause qu’il s’agit d’interpréter trouvé-t-on
qu’il y soit exprimée une intention claire qu’elle doit avoir un effet
rétroactif? Certainement non.
Maintenant je dirai un mot d’une autre
proposition de l’Appelant. L’appel, dit-il, n’est qu’une procédure dans la
cause, et la présomption contre l’interprétation rétroactive n’a pas d’application
aux Actes qui n’affectent que la procédure et la pratique. Delà il conclut que
la disposition doit avoir un effet rétroactif. Sa proposition n’est vraie qu’en
partie. Le mode d’exercer un droit d’action peut-être affecté par les lois de
procédure, mais le droit d’action lui‑même ne peut pas l’être. La
procédure peut être changée, mais le droit d’action doit être respecté.
[Page 107]
“It does not follow that, because a suitor has a
cause of action, he has also a vested right to enforce it by the course of
procedure and practice which was in force when he began his suit. He has only
the right of prosecuting it in the manner prescribed for the time being, by and
before the Court in which he sues. And if an Act of Parliament alters that mode
of procedure, he has no other right than to proceed according to this altered
mode.”
Dans le cas actuel il n’est certainement pas
correct de dire que l’appel n’était qu’une procédure dans la cause, puisque ce
droit n’existait pas et n’avait jamais existé avant la date de l’ordre du 13
Avril, 1876, comme le font voir les sections précédemment citées. Ce droit
d’appel est une création du Juge qui, en permettant un appel dans un cas où la
loi n’en accordait pas, a excédé ses pouvoirs. Lorsque l’appel est permis par
la loi le Juge en peut régler l’exercise, mais il ne peut pas le conférer quand
il n’existe pas. La loi seule a ce pouvoir.
Il faut remarquer de plus que quant à l’effet
des lois de procédure, l’appel ne peut être mis au même rang que les autres
procédés, comme le fait voir la décision ci-après citée. Lors de la mise en
operation du Common Law Procedure Act of 1854, il a été rendu sur
des faits analogues à ceux de cette cause, une décision dont le principe est
applicable à celle-ci; c’est celle qui a été prononcée dans la cause de. Hughes v. Lumley. Je me contenterai
d’en citer ici la mention abrégée qu’en fait l’auteur que j’ai déjà cité:—
“But the new procedure would be presumedly
inapplicable where its application would involve a breach
faith between parties. For this reason, those
provi-
[Page 108]
sions of the Common Law Procedure Act of 1854
which permit a writ of error to be brought on a judgment upon a special case,
and give an appeal upon a point reserved at the trial, were held not to apply
where the special case was agreed to, and the point was reserved before the Act
came into operation, (b) Where a special demurrer stood for argument
before the passing of the first Common Law Procedure Act, it was held that the
judgment was not to be affected by that Act, which abolished special demurrers,
but must be governed by the earlier law. (d) The judgment was, in
strictness, due before the Act, and the delay of the Court ought not to affect
it.”
Cette raison étant applicable à cette cause, ne
doit-elle pas aussi y produire le même effet?
La difficulté soulevée en cette cause
intéressant également toutes les Provinces, quelque soit d’ailleurs la
divergence de leurs lois, je crois devoir ajouter que les nombreuses autorités
qui ont été compulsées et tirées des décisions des causes Anglaises, et des
jurisconsultes Anglais, et qui ont été citées à l’appui du jugement qui va être
rendu, ont, dans la Province de Québec, la même force et la même valeur que
dans les autres Provinces. Pour mieux établir ce point, je citerai de feu Sir
Louis H. Lafontaine quelques paroles résumant les règles d’interprétation sur
la rétro-activité des lois, lesquelles sont en même temps très applicables à la
question sous considération.
Dans une cause, Kierzkoski v. La Compagnie du
Grand Tronc de chemin de fer, dans
laquelle il s’agissait de priver un plaideur d’un droit acquis en vertu d’une
loi antérieure, voici comment il s’exprimait: ‘Pourqu’il en fut privé, il
faudrait que la
[Page 109]
Législature eut porté à cette fin un décret
formel, clair et précis, dont la disposition destinée à rétroagir sur le passé,
ne pût permettre d’entretenir aucun doute sur son intention de législater ainsi
avec effet rétroactif. Si l’on me présente une telle loi, je dois l’exécuter;
car ce n’est pas à moi à juger la loi; lorsqu’elle n’offre qu’un sens, et que
ce sens ne pourrait être répudié par un Juge, si ce n’est en s’arrogeant les
pouvoirs du législateur. Mais si la disposition n’est pas claire et précise, si
elle est mal rédigée, si elle est ambigue, si elle est contredite par d’autres
dispositions qui sont conformes à l’esprit et au but avoué du décret, tandis
que la disposition dont il s’agit est contraire à cet esprit et contredit ce
but, alors il y a lieu, pour le Juge, à interpréter la loi; et dans cette
interprétation, il ne doit pas perdre de vue que le respect des droits acquis
est la première règle qu’il doit suivre.”
Ce principe de la non-rétroactivité des lois si
bien développé dans les paroles de l’Honorable Juge en Chef, ainsi que dans
Mailher de Chassât sur la
rétroactivité des lois, est le même dans le droit Anglais que dans le droit
Français, parcequ’il dérive d’une même source, le droit Romain.
Pour ces considérations, et pour beaucoup
d’autres si savamment traitées par l’Hon. Juge en Chef, dans lesquelles je
concours pleinement, j’en suis venu à la conclusion que cette Cour n’a pas
juridiction pour décider l’appel qui lui a été soumis en vertu de l’ordre du 13
Avril 1876.
Appeal quashed.
Attorneys for Appellant: Bethune, Osler
& Moss.
Attorneys for Respondent: Mowat,
MacLennan & Downey
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