Montmagny Election Case, (1888) 15 SCR 1

Supreme Court of Canada

Montmagny Election Case (1888) 15 SCR 1

Date: 1888-03-15

CASES DETERMINED BY THE SUPREME COURT OF CANADA ON APPEAL FROM THE COURTS OF THE PROVINCES AND FROM THE EXCHEQUER COURT OF CANADA.

P. A. Choquette, (Respondent in Court Below)

Appellant

And

Damase Laberge et al. (Petitioners In Court Below)

Respondents.

1888: Feb. 21; 1888: March 15.

Present—Sir W. J. Ritchie C.J., and Fournier, Henry, Taschereau & Gwynne JJ.

ON APPEAL FROM THE DECISION OF THE SUPERIOR COURT FOR LOWER CANADA (ANGERS J.)

CONTROVERTED ELECTION FOR THE ELECTORAL DISTRICT OF MONTMAGNY.

R. S. C. ch. 9. sec. 11—Service of Election Petition—Defective—Art. 57 C. C. P.—Preliminary objections.

The service of an election petition made in the Province of Quebec, at the defendant's law office, situated on the ground floor of his residence and having a separate entrance, by delivering a copy thereof to the defendant's law partner who was not a member of, nor resident with, the defendant's family is not a service within sec. 11 ch. 9 R. S. C., and art. 57 C. C. P. and a preliminary objection setting up such defective service was maintained and the election petition dismissed. (Gwynne J. dissenting.)

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Appeal from the decision of the Superior Court of Lower Canada, (Angers J. presiding,) dismissing the preliminary objections to the election petition.

The petition against the return of the respondent Philippe Auguste Choquette as member for the electoral district of Montmagny, was presented on the 25th April, 1887.

On the 30th April, 1887, preliminary objections were filed by the respondent, and on the 14th October, 1887, were dismissed by the Superior Court. The present appellant thereupon appealed to the Supreme Court of Canada under sec. 50 (a) ch. 9 R. S. C.

The question determined on this appeal was raised by the objections to the service of the petition. The appellant complained:—

1. That the service was not made when it should have been made.

2. That it was not made on the person to whom it should have been made.

Both appellant and respondent admitted that the question raised was to be decided by the construction placed on sec. 11 of the Dominion Controverted Elections Act, and art. 57 of the code of civil procedure, as applied to the facts of this case.

The Dominion Controverted Elections Act sec. 11 says:—

"An election petition under this act, and notice of the date of the presentation thereof, and a copy of the deposit receipt shall be served as nearly as possible in the manner in which a writ of summons is served in civil matters, or in such other manner as is prescribed."

Article 57 of the Code of Civil Procedure reads as follows:—

"Service must be made either upon the defendant in person, or at his domicile, or at the place of his

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ordinary residence, speaking to a reasonable person belonging to the family. In the absence of a regular domicile, service may be made upon the defendant at his office or place of business, if he has one."

As to the facts of the case, the following was the evidence of the bailiff who made the service—Philippe Gendreau:—

Translation.—"I received the documents in question from Mr. Belleau (solicitor for petitioner). I went to the office of Mr. Choquette, where he actually lives and I served a copy on Mr. Martineau as being the partner of Mr. Choquette. Mr. Choquette, the respondent, practises as an advocate in partnership with Mr. Martineau of whom I have spoken. Their office as advocates and attorneys is in the basement (sous-sol) of the house occupied by the defendant as his ordinary residence, and where his domicile is. I am in the habit of serving Messrs. Choquette & Martineau in their quality of attorneys. Usually to enter the said office you pass by a separate outside door, but you can get there also by the residence of defendant. Those who go to the said office to transact business invariably pass by this separate outside door of which I have just spoken, and not by the residence of defendant. If there are any who pass by this latter way I am not aware of it, and for myself I have never gone through there.

When I effected the said service I spoke to the said Mr. Martineau, partner of the said respondent as attorney, and it was to him also I gave the papers I had to serve. Mr. Martineau does not live in the house with Mr. Choquette the defendant, he goes there only to the office of which I have spoken during office hours; outside of these hours he lives at some distance from there, at his residence, where his wife and children are.

*           *           *           *           *

Cross-examined.—The defendant has no office distinct

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from his domicile; the basement of the house where the office is is also occupied by the family of the defendant as a residence. The room occupied as his office is in communication with all the other rooms of his house, * *

Re-examined.—When I said a little while ago that the defendant had no office distinct from his domicile, I intended to say that his office and his domicile are in the same building, and I did not intend to say that the family of Mr. Choquette lived at his office. His family do not live there. I have seen Madame Choquette there several times; I do not know if she goes there habitually.

Magloire Paquet—I have been employed a long time as a writer in Mr. Choquette's office, both before and since his partnership with Mr. Martineau.

*           *           *           *           *

His office and residence are in the same house, but they are separate and distinct the one from the other. Those who go to the office do not pass through the dwelling, but by a door which is on purpose for the office.

The family of Mr. Choquette, his wife, his servants, are never seen in the office.

Cross-Examined.—His private dwelling communicates with the office. There is no difference between the separation of the office and the dwelling and the separation of the other rooms of the house in the lower part of the house. The office does not constitute an addition (allonge) nor a building outside the house. It is only a room in the house like all the others.

Pierre Remon Martineau.—I am the partner of the defendant as advocate and attorney, and we have our offices as attorneys in the basement of defendant's house. When the bailiff Gendreau came to serve the petition in this cause I had just arrived at the office,

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coming from the post office, and he arrived at the same time by another gate. We met each other near the door and he said to me "I have papers to serve at the office," thereupon I asked him in. I sat down at my desk and he put on my desk the papers bearing the title of the present cause, saying that they were an original and a copy of an election petition. I took a glance at them and saw that they were copies of a copy and that he had no original. * * He did not ask if the defendant was there, nor whether he was there or at his own house. There was no other part of the basement of the defendant's house, with the exception of the office, which was occupied; the rest of the basement of the house is a high basement (sous-bassement haut). In summer a part of this sous-bassement is occupied as a kitchen the rest serves as a wood cellar. In winter the person who attends the kitchen in summer makes use of it for washing, and it is necessary to pass through it also to get wood. The office has a special door to go outside by. * * When strangers come to pay a visit and the defendant wishes to bring them into his dwelling he makes them go round outside to get there. The doctor is the only person I have seen pass by the kitchen. The dwelling of the defendant was occupied at this date by his wife and servants and the petition could have been served on them; the defendant himself was there up to noon of the day in question. The doctor of whom I have just spoken is Dr. Marmette uncle of the defendant's wife.

Cross-examined—Q. Will you swear that this part of this house which you call sous-bassement is not habitually occupied by the family of the defendant? A. As I have already said, in summer this part is almost as much occupied by the family, apart from Madame Choquette, as the upper part, but in the daytime and

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not in the night. I am not able to speak as to the night because I am not there. I have excepted Madame Choquette because I saw her less frequently below than the other members of the family. I know a Miss Bender who went in by the office to reach the house of Mr. Choquette; she was a cousin of Madame Choquette and it was in summer, and I have never seen any other member of the family go in that way. I know that they make the kitchen below in summer but not in winter. I have been in this room used as a kitchen in summer, but not in the others. I have been in the passage and from there have seen wood on the other side of the sous-bassement. I have frequently seen persons going about the sous-bassement. Mr. Choquette to reach his office always comes by the door which communicates with the summer kitchen. Besides the defendant there are members of his family, that is to say Madame Choquette and her little daughter, who have communication between the house and the office, but Madame Choquette comes rarely, the little girl often in summer, because in winter they do not occupy this side room."

Belcourt for appellant.

Belleau for respondent.

Sir W. J. RITCHIE C. J.—It appears that the appellant was not in Montmagny at the time of the alleged service; the objection in this case is that no copy of this petition was served, not as in Julien v. de St. George,[1], that the evidence of service is insufficient. Now the law expressly declares that the service shall be as nearly as possible in the manner in which a writ of summons is served in civil matters or in such other manner as is prescribed; article 57 of the code of civil precedure points out how such service must be made,

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viz., either upon the defendant in person or at his domicile or at the place of his ordinary residence, speaking to a reasonable person belonging to the family and it is only in the absence of a regular domicile that the service may be made upon the defendant at his office or place of business if he has one. It is very clear in this case that the service was not upon the defendant in person nor at the place of his ordinary residence, nor was it on a reasonable person belonging to defendant's family upon whom the service could have been made, it being shown he had a domicile and ordinary place of business and reasonable members of his family, but it was at the office or place of business of the defendant on his partner not being a member of his family.

It is not for us to inquire whether this was not for all practical purposes as good if not possibly a better service than at his residence on a member of his family; it may or may not have been so; what we have to determine is, was it a legal service which gave the court jurisdiction over the defendant?

Section 10 Controverted Elections Act clearly contemplates a personal service or service at the domicile, and if this cannot be, then upon some other person, or in such other manner as the court or judge on the application of the petitioner directs.

I am clearly of the opinion that the service was not a legal service within either the letter or the spirit of the Dominion Controverted Elections Act sec. 11 and art. 57 of the code of civil procedure, and the defendant had a right by way of preliminary objection to ask to have the service declared null and void. Now what are the preliminary objections or grounds of insufficiency which the section contemplates the respondent may urge? They are any he may have against the petition or petitioner or against any further proceeding

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on the petition. The objection in this case comes peculiarly within this latter category; the respondent says, by it, "not having been served with the petition in the manner required and prescribed by law, I have not been legally brought before the court having jurisdiction over the petition filed and you have no right to take further proceedings thereon against me." If this cannot be treated as a preliminary objection I am at a loss to know when or how the respondent is to assert his objection to the petition being further proceeded with or to allege or show that he has not been properly brought within the jurisdiction of the court in which the petition is filed. I cannot conceive an objection coming more directly under the designation of a preliminary objection to an election petition or a more substantial one than an objection such as this, which alleges that the election petition has not been properly and legally served and so the defendant has not been made subject to the jurisdiction of the court, and therefore, should not be compelled to answer the petition.

FOURNIER J.—Le présent 'appel est d'un jugement de l'honorable juge Angers renvoyant les objections préliminaires produites par l'intimé contre la pétition d'élection contestant la validité de son élection comme membre de la Chambre des Communes pour le district électoral de Montmagny.

La seule question que soulève cette cause est de savoir si l'avis de la présentation de la pétition a été légalement signifié par les pétitionnaires à l'intimé.

L'intimé allègue que la signification en a été faite ni à l'endroit, ni à la personne indiqués par la loi.

Au lieu de la signification personnelle, souvent fort difficile à faire et assez souvent éludée, la section 11 de l'acte des élections contestées a introduit le mode de signification adopté en matières civiles en déclarant ce qui suit:—

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An election petition under this act, and notice of the date of presentation thereof, and a copy of the deposit receipt, shall be served as nearly as possible in the manner in which a writ of summons is served in civil matters, or in such other manner as is prescribed.

En conséquence de cette disposition, le service de l'avis de présentation de la pétition devait être fait conformément à l'article 57, C. P. C., de la province de Québec, décretant comme suit:—

Cette signification se fait soit au défendeur en personne, ou à domicile, ou au lieu de sa résidence ordinaire, en parlant à une personne raisonnable faisant partie de la famille. A défaut de domicile régulier l'assignation peut être donnée au défendeur, à son bureau d'affaire, ou établissement de commerce, s'il en a un.

Dans le cas actuel la signification de l'avis de présentation de la pétition n'a été faite ni au domicile de l'appelant, ni à une personne raisonnable de sa famille. L'huissier chargé de cette mission s'est rendu au bureau d'affaires professionnelles de l'appelant qui exerce sa profession d'avocat en société avec M. Martineau. Leur bureau se trouve dans la partie inférieure de la maison où l'appelant a son domicile légal.

En vertu des règles de pratique de la Cour Supérieure, les avocats pratiquants sont obligés d'élire dans le rayon d'un mille du palais de justice, un domicile où ils transigent leurs affaires professionnelles et où leur sont faites toutes les significations de pièces de procédure. C'est au domicile professionnel ou bureau d'affaires que l'avis en question a été signifié en le remettant à M. Martineau, qui ne réside pas avec l'appelant et ne fait pas partie de sa famille. La signification d'après l'art. 57 ne peut avoir lieu au bureau d'affaires qu'à défaut de domicile régulier. L'appelant en ayant un, c'est à ce domicile que la signification devait se faire. Quoique faite au bureau d'affaires, cependant le rapport fait à la cour constate contrairement à la vérité, que cette signification a été régulièrement faite au domicile de l'appelant parlant à une personne de sa famille. Ce rapport a été attaqué comme entaché de

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faux parce qu'il contient l'énoncé que la signification avait été faite à l'appelant (défendeur), "parlant à une personne raisonnable de la famille du dit Philippe Auguste Choquette, à son domicile, a Montmagny."

L'appelant a fait une preuve complète de la fausseté de cet avancé par le témoignage de l'huissier lui-même qui dit à ce sujet: "Lorsque j'ai fait la signification j'ai parlé au dit M. Martineau associé de l'intimé (maintenant appelant) comme procureur, et c'est à lui aussi que j'ai remis les papiers que j'avais à signifier. M. Martineau ne demeure pas chez M. Choquette le défendeur; il y va seulement au bureau dont je viens de parler pendant les heures de bureau, hors de ces heures il demeure à quelque distance de là, à sa résidence oû sont sa femme et ses enfants."

Le témoignage de P. R. Martineau auquel les papiers ont été laissés constate que l'huissier les a déposés sur son bureau, sans demander si le défendeur était au bureau ou chez lui. Le bureau est la seule partie occupée dans le soubassement de la maison, à l'exception d'une partie qui sert de cuisine en été. Ces faits positivement établis font clairement voir que la signification n'a pas été faite conformément à l'article 57 C. P. C. M. Martineau, quoique l'associé professionnel de l'appelant, n'avait aucune qualité pour recevoir cette signification, parce qu'il n'était pas une personne de sa famille. Il n'était obligé, ni légalement, ni moralement, d'en rendre compte à l'appelant. L'huissier avait toutes les facilités possibles pour faire une signification légale. En conséquence des relations d'affaires existant entre M. Martineau et l'appelant on pourrait peut-être dire que les intérêts de ce dernier étaient aussi en sûreté entre les mains de son associé que si les papiers eussent été remis à une servante de sa famille; mais le code n'admet pas d'équivalent. Il n'y a que deux manières de faire les significations: à la personne même et, à défaut,

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à son domicile parlant à une personne raisonnable de sa famille:

Service must be made, dit l'article 57, either upon the defendant in person, or at his domicile.

Le vice dont est entachée la signification n'est pas seulement un défaut de forme, une simple irrégularité, mais c'est la violation d'une formalité essentielle; car dans notre procédure, comme dans le code français, il est d'absolue nécessité de faire voir à qui et à quel domicile la signification a été faite.

C'est par l'assignation que le défendeur est obligé à comparaître devant le juge ou la cour, sous les peines du défaut. C'est elle qui saisit le juge de la cause et lui impose le devoir de la juger s'il reconnaît qu'il est compétent à cet effet. Sans une assignation à domicile ou à la pérsonne, le juge n'a aucune juridiction pour décider la cause. Lorsque les objections à l'assignation reposent, comme dans le cas actuel, sur des formalités essentielles, on ne peut pas les traiter comme de simples objections techniques, car, sans leur accomplissement, le juge n'a pas de juridiction. En attaquant la régularité du service de l'avis, l'appelant a soulevé, comme il en avait le droit, par ces objections préliminaires, une question de droit que la cour aurait dû juger en sa faveur. Ayant prouvé clairement les faits constatant l'illégalité de la signification et le code art. 57 C. P. C. exigeant impérativement le service à domicile ou à la personne, il a droit d'obtenir l'infirmation de ce jugement.

Il ne peut pas ici s'élever de question sur l'existence du droit d'appel. La sec. 50 sec. (a) dit qu'il y aura appel:—

From the judgment, rule, order or decision of any court or judge on any preliminary objection to an election petition, the allowance of which objection has been final and conclusive and has put an end to such petition, or which objection if it had been allowed would have been final and conclusive and have put an end to such petition.

Il est évident que si l'objection qu'il n'y avait pas de

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signification légale eût été admise, comme elle aurait dû l'être, elle aurait mis fin à la pétition et partant la décision à cet égard est appelable. L'appel doit être alloué avec dépens.

HENRY J.—This is an appeal from a decision of one of the judges of the Superior Court of Quebec during the pendency of the matter before that court under a petition of the respondents, against the election and return of the appellant, the sitting member for the House of Commons, and upon one of the preliminary objections to the petition filed, and urged by the appellant. The petition and accompanying documents were served by the bailiff by handing a copy thereof to the partner in business of the appellant, who is an advocate residing at the town of Montmagny, and during his absence.

From the evidence it appears that the office in question is in the basement of the appellants residence—the dwelling being above it and access to it being by another entrance. Besides the office there is in the basement what is called a summer kitchen, not used in the winter season, and a wood house.

An objection under the practice in Quebec was raised to the mode of service which was overruled by the judge, and from this decision the appeal has been taken to this court. The point was fully argued recently before this court and we have to decide it.

The 11th section of the Controverted Elections Act provides that:—

An election petition under this act and notice of the date of the presentation thereof and a copy of the deposit receipt shall be served as nearly as possible in the manner in which a writ of summons is served in civil matters, or in such other manner as is prescribed.

We are, therefore, to ascertain the mode of service of a writ of summons in a civil matter in the Province of Quebec. That is regulated by article 57 of the Code

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of Civil Procedure, which is as follows

Service must be made either upon the defendant in person, or at his domicile, or at the place of his ordinary residence, speaking to a reasonable person belonging to the family. In the absence of a regular domicile, service may be made upon the defendant at his office or place of business, if he has one.

Thus, we see, that but two modes of service are provided for and the article is imperative. One of the two must, by the article, be adopted where the party to be served has a domicile. In this case it is shown and admitted that the appellant had a domicile.

He was not served personally, and does the evidence show that he was served at his domicile in the manner prescribed by the article? To constitute such a service it must be at his domicile, the party making the service, when doing so, "speaking to a reasonable person "belonging to his family."

The service was not in that part of the building in question which formed the domicile or residence of the appellant. The office where the service was made although under the same roof with his residence was specially set apart from the other part of the building occupied as his private residence, and occupied as well by his partner as himself. His partner had an interest therein and control of it to the same extent as he had. He could open and close it at will and eject any one but his partner therefrom. That a door opened into the residence does not alter the character or holding of the office. The office was not generally used as a passage way to the residence as the evidence shows, although on some occasions so used by one party, not of the appellant's family, who was permitted to do so.

The service therefore was not at the domicile or residence of the appellant as required by the article. Besides, the party spoken to was the partner in business of the appellant, and not a member of his family. He

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neither ate nor lived in the residence of the appellant, and how can he be called "a reasonable person belonging to the family" residing in the appellant's residence.

The service is defective, therefore, in both requisites, and under the practice in Quebec the appellant not having been served in either of the two ways prescribed by the article was not bound to answer any more than he would have been had no service whatever have been made.

The learned judge who tried and decided upon the preliminary objections was of the opinion that the service upon the appellants' partner, at their office, should be considered equivalent to the service upon an illiterate servant ignorant of the importance of the documents received. If that question were open for consideration his decision might be sustained but it is not; and we are bound by the express terms and provisions of the article.

The objection is not merely a technical but substantial one affecting the jurisdiction of the judge. The article enunciates the principle that such jurisdiction shall be exercised only when the party in question is legally served as prescribed, and in the absence of such service no judge could legally proceed to try the merits.

If the learned judge decided there was no regular service, that would have put an end to the petition and involved the conclusion that he had no jurisdiction to proceed further. From such a decision an appeal by the petitioners to this court would have lain. It was to all intents and purposes a preliminary objection involving the fate of the petition and was essentially such a decision as either party might appeal from. I am, therefore, of opinion the appeal should be allowed and the petition dismissed with costs.

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TASCHEREAU J. concurred with Fournier J.

GWYNNE J.—On the 26th April, 1887, the above respondents filed a petition, under the provisions of the Controverted Elections Act, in the Superior Court of the Province of Quebec, in which province the electoral district of Montmagny is situated, praying that the election and return of the above appellant as member of parliament for the said district should be set aside and declared null and void by reason of bribery and other corrupt practices alleged to have been committed by the said appellant himself and by his agents on his behalf and with his knowledge and consent. Upon the 30th day of the said month of April and within five days after the service of the petition and accompanying notice the appellant, as required by the 12th section of the Controverted Elections Act, ch. 9 of the Revised Statutes, presented thirty objections in writing of a very peculiar and technical character which he called "preliminary objections" against the said petition and the said petitioners and against all further proceeding thereon, in the words of the statute. Two of these objections affected the qualification of the petitioners to present the petition; all the others related to irregularities and those of a very technical character alleged to exist in the presentation of the petition—in the making of the deposit required by law,—in the copy of the petition served—in the service of the petition and accompanying notice, and in the return of the bailiff who effected the service. These objections were dismissed as unfounded by an order of the Superior Court in which the petition was filed bearing date the 14th October, 1887. From this order the appellant has appealed to this court and the only point opened before us was one affecting the regularity of the service of the petition.

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In my judgment this appeal must be dismissed with costs. It is to my mind very clear that the Controverted Elections Act does not give any appeal to this court upon such a purely technical point of practice as is raised by a question affecting only the manner in which service was effected of the election petition which, as is apparent on the case, the appellant received, a point which is not appealable in any other case or proceeding whatever. The service appears to have been effected by delivery to the appellant's business partner for the appellant at their place of business situate in the dwelling house of the appellant, of copies of the petition and other papers required by law, which papers the appellant's partner immediately upon their receipt by him forwarded to the appellant who received them into his own hands in time to enable him to draw himself the objections which upon the 30th April he filed in court, two of which as already noticed called in question the qualification of the petitioners to present the petition; after taking this proceeding it was in my opinion incompetent for him, as the learned judge of the Superior Court in effect adjudged, to contend that there was some irregularity in the service and therefore the court had not jurisdiction to try these two preliminary objections affecting the merits of the case and to dismiss them if insufficient. The filing of these objections was a proceeding wholly unnecessary, if service had not been effected on the appellant, and inconsistent with the contention that he had not been served with the petition. If he was not served and the case should be proceeded with he had his perfect remedy by prohibition.

Now that there is no appeal to this court from the decision of a judge upon such a purely technical point of practice as the sufficiency and regularity of the service of the election petition upon the appellant is

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abundantly clear unless such a purely technical point of practice constitutes a good "preliminary objection" in the sense in which that term is used in the statute, and that it does not constitute such an objection is to my mind free from doubt.

By the 12th section of the act it is enacted that

Within five days after the service of the petition and the accompanying notice the respondent may present in writing any prelimiminary objections or grounds of insufficiency which he has to urge against the petition or the petitioner or against any further proceedings thereon and shall in such case at the same time file a copy thereof for the petitioner, and the court or judge shall hear the parties upon such objections and grounds and shall decide the same in a summary manner.

Now if any doubt exist as to the meaning of the words "against any further proceeding thereon" in the connection in which they appear in this section, all such doubt is removed by the 5th section which shows that what is meant, is not that these words so used should throw open all questions of mere practice affecting the regularity of the service of a petition as "preliminary objections" under the statute so as to render any decision upon such purely technical point of practice appealable to this court, but that what is intended is an objection against any further proceeding on the petition by reason of the ineligibility or disqualification of the petitioner thus limiting the preliminary objections in the sense in which that term is used in the statute to points of substance only affecting the sufficiency of the matter stated in the petition, and the qualification of the petitioners to present it.

The 5th section shews with what intent the words "or against any further proceeding" in the 12th section are used. It enacts that:

A petition complaining of an undue return or undue election of a member, or of no return or of any unlawful act by any candidate not returned, by which he is alleged to have become disqualified to sit in the House of Commons, at any election may be presented to the court by any one or more of the following persons.

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(a) A person who had a right to vote at the election to which the petition relates, or

(b) A candidate at such election; and such petition is in this act called an election petition: provided always, that nothing herein contained shall prevent the sitting member from objecting under section twelve of this act to any further proceeding on the petition by reason of the ineligibility or disqualification of the petitioner, or from proving under section forty-two thereof that the petitioner was not duly elected.

This appears to me to be the natural construction of the act, and it avoids what appears to me to be a forced construction, namely, one which would make appealable to this court a purely technical point of practice which is not appealable in any other case or proceeding whatsoever.

Appeal allowed with costs.

Solicitors for appellant: Choquette & Martineau.

Solicitors for respondent: Belleau, Stafford & Belleau.