Supreme Court of Canada
O’Donohoe v. Beatty, (1891) 19 S.C.R. 356
Date: 1891-06-22
The Honorable John O’Donohoe, a Solicitor (Plaintiff) Appellant;
and
Charles Beatty and James Wilson (Defendants) Respondents.
1891: February 6; 1891: June 22.
Present: Sir W.J. Ritchie C.J., and Strong, Fournier, Taschereau, Gwynne and Patterson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Solicitor—Bill of costs—Reference to taxing master—Procedure—Appeal.
The executors of an estate having taken proceedings to obtain an account from the solicitor the latter produced his account for costs and disbursements, which were referred to a taxing officer to be taxed and to have an account taken of all monies received by the solicitor for the estate. In proceeding under this order the officer took evidence of an alleged agreement for settlement of the solicitor’s bill and reported a balance due from the solicitor who was ordered to pay the costs of the application.
Held, affirming the judgment of the Court of Appeal, that the officer not only had authority, but was obliged, to proceed and report as he did and his report should be affirmed.
It is doubtful if a matter of this kind, which relates wholly to the practice and procedure of the High Court of Justice for Ontario, and of an officer of that court in construing its rules and executing an order of reference made to him, is a proper subject of appeal to the Supreme Court.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Divisional Court and the report of the taxing officer on the solicitor’s accounts in the case.
O’Donohoe was solicitor of the estate of James Wilson and the executors were desirous of having his account settled. Proceedings for that purpose were taken in the Divisional Court by the executors and O’Donohoe having produced his account for solicitor’s fees and disbursements it was referred to a taxing
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masters for taxation, the other directing the master to take an account of all sums received by the solicitor on account of the estate. In proceeding under this order the taxing officer took evidence of an alleged settlement between O’Donohoe and the executors, and founded his report of a considerable sum being due the estate from the solicitor on such evidence. On appeal from the master’s report O’Donohoe contended that his bills having, with one exception, been rendered for more than a year the master could not tax them but was bound to allow them as rendered, and that at all events the master had no authority to take evidence as he did.
The report having been affirmed by the Divisional Court and the Court of Appeal the solicitor appealed to this court.
O’Donohoe appellant in person cited Heaslop v. Heaslop; In re Winterbottom; In re Moss.
PATTERSON J. raised the question of jurisdiction to hear the appeal.
GWYNNE J.—I think that sitting as a court of appeal we should not interfere with the judgment of the Divisional Court on a question of this kind.
STRONG J.—I do not think it was ever intended that this court should hear appeals of this kind. We look to the practice laid down by the Privy Council as a guide for us in such cases.
McCarthy Q.C., and Wilson Q.C. for the respondents.
The judgment of the court was delivered by:—
GWYNNE J.—The only question involved in this ap
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peal is whether the master of the High Court of Justice in Ontario, the rules of which court govern the proceeding in question and regulate the duties of the master, has proceeded in conformity with the order of reference made to him by the court, and has made a proper report upon it, and for the reasons given by the learned judges of the Divisional Court of the High Court, and by Mr. Justice Osler and Mr. Justice McLennan in the Court of Appeal at Toronto, I entertain no doubt that it was not only competent, but under the circumstances necessary, for the master to have made the inquiry which is objected to, and to have made the report thereon which he has made, and which is abundantly established by the evidence; but I have entertained and still entertain great doubt whether an appeal should be entertained by this court in a matter of this description which relates wholly to the practice and procedure of the High Court of Justice, and of an officer of that court in construing the rules of the court, and in executing an order of reference made to him by the court.
Appeal dismissed with costs.
Solicitor for appellant: J. O’Donohoe.
Solicitors for respondents: McCarthy, Osler, Hoskin and Creelman.
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