Supreme Court of Canada
Gilbert v. Gilman, (1889) 16 SCR 189
Date: 1889-01-15
EBENEZER E. GILBERT, et al. (DEFENDANTS)
Appellant;
And
FRANCIS E. GILMAN, (PLAINTIFF)
Respondent.
1889: Jan 15
PRESENT.—Sir W. J. Ritchie C. J. and Strong, Fournier, Taschereau and Patterson JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Jurisdiction— Appeal—Future rights—Supreme and Exchequer Courts Acts Sec. 29 Subsec. (b.)
In an action for $1333.36, a balance of one of several money payments of $2000 each, one whereof the defendants agreed to pay to the plaintiff every year so long as certain security given by the plaintiff for the defendants remained in the hands of the government, the defendants contended that the security had been released by the action of the government and they were therefore not liable to pay the amount sued for, or any further instalments. The Court of Queen's Bench (appeal side) held that the security had not been released and gave judgment for the amount claimed. The defendants applied to one of the judges of that court and obtained leave to appeal on the ground that if the judgment was well founded then future rights would be bound and they had become liable for two other instalments of $2000 each for which actions were pending.
Held, that the appeal would not lie, because even if the future rights of the defendants were bound by the judgment such future rights had no relation to any of the matters or things enumerated in subsec. b. of sec. 29 of the S. & E. C. Act.
The words " where the rights in future might be bound " in this subsection are governed and qualified by the preceding words, and to make a case appealable when the amount in controversy is less than $2000, not only must future rights be bound by the judgment, but the future rights to be so bound must relate to "a fee of office, duty, rent, revenue or sum of money payable to Her Majesty, or to some title to lands or tenements, or to annual rents out of lands or tenements, or to some like matters and things."
[Page 190]
APPEAL from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) reversing the judgment of the Superior Court by which the respondent's action for $1,333.66 was dismissed.
The only point determined upon this appeal was that the judgment of the Court of Queen's Bench in this case was not appealable.
The petition presented by appellant to the Court of Queen's Bench (appeal side) for leave to appeal to the Supreme Court of Canada sets forth the grounds relied on by appellant and is as follows :
"To any of the honorable judges of the Court of Queen's Bench, Province of Quebec, appeal side, sitting in Montreal, the petition of Ebenezer E. Gilbert et al., the respondents above mentioned, respectfully show '.
"That by judgment of this honorable court rendered on the twenty-second day of December, instant, they have been compelled to pay to the appellant the sum of eleven hundred and sixty-six dollars and sixty-seven cents ($1,166.67) and costs, as well in the Court of Queen's Bench as in the Superior Court.
"That said judgment was based on a letter, whereby in substance your petitioners agreed to pay the appellant the sum of two thousand dollars per annum, for the use of certain security (to the extent of $15,000) deposited by appellant with the government of the Dominion of Canada, so long as such security was not released by said Government of Canada.
"That your petitioners contended that such security had been released on the twentieth of November 1885 by the return then made by the said government of Canada, through your petitioners to the said appe1lant, of a certain deposit receipt of the Exchange Bank of Canada for a like sum of fifteen thousand dollars ($15,000.00), but which return of said deposit receipt
[Page 191]
this honorable court has decided not to constitute a release of the said security.
"That the said government of Canada contends that by the return of said deposit receipt, the said security was entirely released, the said appellant having brought a direct action against the said government of Canada for the sum of fifteen thousand dollars ($15,000 00), which is now before the Exchequer Court for the Dominion of Canada, and the said Government now defending the said action, and refusing to return to the said Gilman the said sum of fifteen thousand dollars ($15,000.00) claimed by him.
"That by reason of the premises, if the judgment of this honorable court is well founded, your petitioners have become liable already for the payment of two other sums of two thousand dollars each, to wit, for the year commencing on the twenty-sixth day of July, 1886, and on the twenty-sixth day of July, 1887, and actions for said sums have been instituted by the appellant against your petitioners, and one of said actions is now pending in appeal before this honorable court, and the other one is pending before the Superior Court for the district of Montreal.
"That by reason of the premises, the judgment rendered in this cause is of a nature to bind and affect certain rights between the parties, and does in fact decide the said two cases for two thousand dollars each, pending as aforesaid before the course in this district.
"Whereby the present judgment is susceptible of appeal to the Supreme Court of Canada.
"Wherefore your petitioner prays that he may be permitted to appeal from the judgment of this court rendered in this cause on the twenty-second day ox December, inst. to the said Supreme Court of Canada and justice will be done."
[Page 192]
The parties having been heard Mr. Justice Church made the following order :
"Seeing that the matter in controversy in this cause relates to matters or things where the rights in future might be bound, and that the said Ebenezer E. Gilbert, et at., have given security to the extent of five hundred dollars, as required by the 46th section of chapter 135 of the Revised Statutes of Canada (The Supreme and Exchequer Courts Act, 1886), that they will effectually prosecute their said appeal, and pay such costs and damages as may be awarded against them by the Supreme Court, the appeal to the Supreme Court is hereby allowed."
Before the Supreme Court Mr. Gilman moved to quash the appeal on the ground of want of jurisdiction.
C. Robinson Q. C. and Archibald Q. C. contra.
SIR W. J. RITCHIE C. J.‑I certainly for one do not see my way to entertain this appeal, especially when we take it in connection with the decision of this court in the Bank of Toronlo v. Le Curé and Les Marguilliers, &c., (), and also the late decision in the Privy Council in Allan v. Pratt ().
The statute enacts "no appeal shall lie where in the matter in controversy does not amount to the sum of value of two thousand dollars." In this court when the question first arose we held that the matter claimed in the declaration was to govern as being the amount in controversy, but a late decision of the Privy Council has determined that the matter in controversy is the amount of the judgment. In this case it is not claimed that either the amount claimed by the declaration or adjudged by the judgment amounts to the sum of two thousand dollars. Then to make it appealable the appllant must be prepared to
[Page 193]
show that it " relates to a fee of office,"—which it is not,—"duty, rent, revenue or sum of money payable to Her Majesty"—which it is not,—or "to any title to lands or tenements ",—which it is not,—or a "annual rents" that is annual rents out of lands or tenements— which it is not,—or "such like matters or things where the rights in future might be bound." I have no doubt that the words s such like matters or things '' are governed by the preceding words. If ever the doctrine noscitur a sociis is applicable it is in this case—and under these circumstansces I cannot see how we can get the matter within the above named exceptions of the section or within the portion of the section which declares that to make the case appealable the matter in controversy must amount to two thousand dollars.
As to the argument of inconvenience all I can say is that the legislature has not given the right of appeal in the present case. If hereafter a case should arise in connection with this transaction in which the amount in controversy is two thousand dollars and it is determined in a manner hostile to the present appellant, then such a case would be appealable to this court not because it affects any future rights, but because the amount in controversy was sufficient and this court would not be bound in that matter by any decision of the court below, inasmuch as that court is not a superior tribunal to this court.
Under these circumstances I cannot escape the conclusion that this is not an appealable case and therefore the appeal must be quashed with costs,
STRONG J.—The jurisdiction to entertain this appeal must depend altogether on sec. 29 sub-sec. b. of the Supreme and Exchequer Courts Act. It is said that future rights will be bound by the judgment appealed if it is allowed to stand unreversed. it is plain however that
[Page 194]
this is not enough, for not only must future rights be bound by the judgment in order that an appeal may be admitted when the amount in controversy is less than $2000, but further the future rights to be so bound must relate to some or one of the matters or things specified in the sub-section in question, viz: to a fee of office, duty, rent, revenue or sum of money payable to Her Majesty, or to some title to lands or tenements, or to some like matters and things where the same consequence will follow, viz: when future rights will be bound. Now it is manifest that in the present case, even if future rights will be bound by the judgment under appeal, such future rights will have no relation whatever to any of the matters or things enumerated in this sub-section in question.
It therefore follows that the case does not come within the only exception to the first part of section 29 to which jurisdiction to entertain it has been ascribed, and the appeal must therefore be quashed.
FOURNIER J.—I do not dissent. I have given my reasons at length in the cases of Joyce v. Hart () Bank of Toronto v. Le Curé et les Marguilliers, &c. de la Paroisse de la Nativité (), and in Reburn v Corporation of Ste. Anne () as to my interpretation of this section 29 giving a right of appeal in cases coming from the Province of Quebec.
In my opinion the case of Allan v. Pratt () decided by the Privy Council is not applicable to the present case.
TASCHEREAU J.—I need only add that we are asked to read this section as if it read—" Or in any matters or things where the rights in future might be bound."
[Page 195]
But the words the legislature has used are "such like matters," thereby qualifying them to such matters or things as are precedently mentioned. Now what would be the result if we were to adopt the construction contended for? Take an extreme case. Suppose a man owed $1,900 payable by instalments, and the action was taken only when all the instalments were due, the case would not be appealable but if after default of the first instalments, could it be said he had a right to appeal because the decision on that instalment would affect the decision as to future instalments? Certainly not. But putting aside the consideration of "rights in future," I am clearly of opinion that this case is not appealable and this conclusion is in affirmance of the decision of this court in the case of the Bank of Toronto v. Le curé et les Marguilliers, &c (). As to Allan v. Pratt, () I do not think this case comes up under the part of the section of the act to which that decision is applicable. I suppose, however, that we are bound by that decision and the members of the bar from the Province of Quebec, will no doubt understand that the decision of this court in Joyce v. Hart () has been overruled
PATTERSON J.—There are no future rights, within the meaning of the clause limiting appeals from the Province of Quebec, affected by this judgment. The words "or to any title to lands or tenements, annual rents or such like matters or things where the rights in future might be bound," cannot be construed to include this claim for the balance of one of the money payments which the defendant was to make to the plaintiff every year as long as certain security given by the plaintiff for the defendant remained in the hands of
[Page 196]
the government. If the amount claimed in the action had been for more than $2,000 while the judgment was recovered for less than that amount, the limitation of the appealable amount would have applied, because the matter in controversy which, as explained in Allan v. Pratt (), means the matter in controversy upon the appeal, would have been only the smaller sum. Here, however, the claim is only for the balance of $1,339.66.
There may be actions for sums under the minimum appealable amount where the judgment will be conclusive of the right to much larger sums, as e.g., an action to recover one instalment upon an obligation to pay a large sum by small instalments, or an action by a legatee claiming the income of a fund where the present right to the income and the ultimate right to the fund itself depend on the validity of the will In such cases, when the whole amount involved in the decision exceeds $2,000 it is not to be supposed that the parties are precluded from appealing merely because the money immediately payable, and the payment of which is sought to be enforced, is under that sum. But the right to appeal in such cases arises, or rather the limitation is excluded, not because future rights are involved, but because the matter in controversy is the whole fund or the whole obligation and amounts to the sum or value of $2,000.
Appeal quashed with costs.
Solicitors for appellants : Archibald, Lynch & Foster.
Solicitor for respondent : J. N. Greenshields
Email this Content