Supreme Court of Canada
Goodison Thresher Co. v. Corporation of McNab, (1910) 42 S.C.R. 694
Date: 1910-02-25
The John Goodison Thresher Company (Plaintiffs) Appellants;
and
The Corporation of the Township of McNAB (Defendants) Respondents.
1910: February 25.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Duff and Anglin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Appeal—Special leave—Time limit—Extension—R.S.C. [1906] c. 139, s. 48(e).
After the expiration of sixty days from the signing or entry or pronouncing of a judgment of the Court of Appeal for Ontario, the Supreme Court of Canada is without jurisdiction to grant special leave to appeal therefrom, and an order of the Court of Appeal extending the time will not enable it to do so.
APPEAL from a decision of the Court of Appeal for Ontario reversing the judgment of a Divisional Court which sustained the verdict at the trial in favour of the plaintiffs.
The action was brought to recover compensation for injury to an engine of the plaintiff company, which went through a bridge in the defendant municipality owing, it was alleged, to negligence of the defendants in failing to keep such bridge in a proper state of repair. The plaintiffs succeeded at the trial, and in a Divisional Court, but their action was dismissed by the Court of Appeal, which, on application
[Page 695]
of the plaintiffs, granted an order extending the time for appealing to the Supreme Court of Canada. As the damages recovered at the trial were only $807, there was no appeal to the latter court as of right, and the plaintiffs moved for special leave.
J.E. Jones for the motion.
Douglas K.C. contra was not called upon.
THE CHIEF JUSTICE.—In this case the judgment of the Court of Appeal for Ontario was pronounced on the 13th May, 1909. On the 31st December of the same year, the Court of Appeal made an order on the application of the present appellants, by which they purported to extend the time for appealing to the Supreme Court until the close of the present sittings, in order that an application might be made to the Supreme Court for leave to appeal. The appellants now apply, on notice, for such leave, under section 48(e), although the amount involved is less than $1,000.
Before considering the latter question, however, we have to determine whether we have power to grant leave at all in view of section 69 of the Supreme Court Act, which provides that every appeal shall be brought within 60 days from the signing, or entering, or pronouncing of the judgment appealed from. Although the 60 days have elapsed, the appellants contend that we have power to grant leave under section 71, which provides as follows:—
Notwithstanding anything herein contained the court proposed to be appealed from or any judge thereof may, under special circumstances, allow an appeal, although the same is not brought within the time hereinbefore prescribed in that behalf.
[Page 696]
The jurisprudence of this court is entirely against our having any power to grant leave to appeal after the 60 days have expired.
In Walmsley v. Griffith, and News Printing Co. of Toronto v. McCrae, this court held that neither the Supreme Court nor any judge thereof has jurisdiction under this section to extend the time within which an appeal must be brought.
In Barrett v. Syndicat Lyonnais du Klondyke, it was held that even where the court below, as in this case, had extended the time for bringing the appeal, nevertheless the Supreme Court had no power to grant leave to appeal per saltum.
In Canadian Mutual Loan and Investment Co. v. Lee, the court said:
More than 60 days have elapsed since the judgment, * * and under a constant jurisprudence our power to grant special leave is gone, and the time cannot be extended for such a purpose either under sec. 42 (now section 71), which applies exclusively to appeals as of light, or under rule 70 (now rule 108), which has always been construed as not applying to delays fixed by statute.
We hold, therefore, that the court has no jurisdiction to grant the leave asked for, and the application must be dismissed with costs.
Motion dismissed with costs.
Solicitors for the appellants: Cowan & Towers.
Solicitor for the respondent: J.E. Thompson.
Email this Content