Province of Quebec v. Province of Ontario, (1909) 42 SCR 161

Supreme Court of Canada

Province of Quebec v. Province of Ontario, (1909) 42 S.C.R. 161

Date: 1909-05-28

The Province of Quebec Appellant;

and

The Province of Ontario Respondent.

In re Common School Fund and Lands.

On Appeal From The Award of Dominion Arbitrators In The Arbitration Respecting Provincial Accounts.

1909: April 5, 6; 1909: May 28.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

Arbitration and award — Statutory arbitrators — Jurisdiction — Awards "from time to time"—Res judicata.

The statutes authorizing the appointment of arbitrators to settle accounts between the Dominion and the Provinces of Ontario and Quebec and between the two provinces, provided for submission of questions by agreement among the governments interested; for the making of awards from time to time; and that, subject to appeal, the award of the arbitrators in writing should be binding on the parties to the submission.

The provinces submitted to the arbitrators for determination the amount of the principal of the Common School Fund to ascertain which they should consider not only the sum held by the Government of Canada but also "the amount for which Ontario is liable." In 1896 by award No. 2 the arbitrators determined that moneys remitted to purchasers of school lands unless made in fair and prudent administration, and uncollected purchase money of patented lands, unless good cause were shewn for non-collection should be deemed moneys received by Ontario, and in 1899 the amount of liability under these heads was fixed by award No. 4. In 1902 the Privy Council held that the arbitrators had no jurisdiction to entertain a claim by Quebec to have Ontario declared liable for the purchase money of school lands yet unpatented allowed to remain uncollected for many years. In making their final award in 1907, the arbitrators refused an application by Quebec for inclusion therein of the amounts found due from Ontario for remissions and non-collections and

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held that they had exceeded their jurisdiction in determining such liability. On appeal from this determination embodied in the final award: —

Held, Fitzpatrick C.J. and Duff J. expressing no opinion, that the arbitrators had no jurisdiction to determine the liability of Ontario for moneys remitted or not collected. Attorney-General for Ontario v. Attorney-General for Quebec ((1903) A.C. 39) followed.

Held, also, Fitzpatrick C.J. and Duff J. dissenting, that awards Nos. 2 and 4 in so far as they determined this liability were absolutely null, and, therefore, not binding on Ontario.

APPEAL from an award of the arbitrators appointed to settle the account between the Dominion of Canada and the Provinces of Ontario and Quebec respectively, by which they decided that awards Nos. 2 and 4, relating to the common school fund determining that Ontario was liable to accounts for sums remitted on the purchase money of school lands and the price of lands patented which had not been collected had been made in excess of their jurisdiction.

The following is the award appealed against, dated the sixth day of January, A.D. 1908, omitting the formal parts.

"Whereas by an agreement made on the tenth of April, 1893, on behalf of the Government of Canada of the first part, the Government of Ontario of the second part, and the Government of Quebec of the third part, it was, among other things, agreed by and between the said several Governments, parties thereto, that the following questions, among others, mentioned in the order of the Governor-General in Council of the twelfth day of December, eighteen hundred and ninety, be, and they were thereby, referred to the said arbitrators for their determination and award, in accordance with the said statutes, namely:—

'The ascertainment and determination of the amount of the principal of the Common School Fund,

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the rate of interest which should be allowed on such fund, and the method of computing such interest.

'In the ascertainment of the amount of the principal of the said Common School Fund, the arbitrators are to take into consideration, not only the sum now held by the Government of the Dominion of Canada, but also the amount for which Ontario is liable, and also the value of the school lands which have not yet been sold.'

"And whereas certain questions respecting the Common School Fund were submitted to the said arbitrators, and among others a claim made on behalf of the Province of Quebec that the Province of Ontario is liable to the Common School Fund for the following amount:

"1. Moneys collected by Ontario which they have omitted to credit to the Common School Fund in their accounts as rendered...........$ 9,468.59

"2. Deductions made by Ontario on balances due in capital and interest on sales of land prior to the 30th June, 1867...............260,445.19

"3. Deductions on balances due in principal and interest on sales made subsequent to the 1st July, 1867.........................2,975.99

"4. Balances due in principal and interest on lots sold prior to the 30th June, 1867, patents having been issued by the Ontario Government to the occupants of lots without payment of any money........................7,270.62

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"5. Amounts due in principal and interest on sales made prior to the 30th June, 1867, but subsequently cancelled and re-sold by Ontario at reduced rates...............20,662.58

Total................$300,822.97

"And whereas dealing with that claim, among others, and exercising their authority to make an award in respect thereof, the said arbitrators did, on the sixth day of March, 1896, among other things (Sir John Alexander Boyd dissenting from so much of the award as made the Province of Ontario liable for any sums of money remitted to or not collected from the purchaser of any common school lands and for interest on any sums so remitted or not collected) award and adjudge in and upon the premises as follows, that is to say:

"2. That in computing the amount of principal money of the Common School Fund for which the Province of Ontario is liable, the following sums shall be deemed to be and shall be treated in all respects as moneys received by the province from or on account of the common school lands set apart in aid of the common schools of the late Province of Canada, that is to say:

'(a) Any sum of money due for principal or interest from any purchaser of said common school lands, remitted by the Province of Ontario to the purchaser, unless it be shewn by the province that such remission was made in a fair and prudent administration of the common school lands and fund; and

'(b) Any sum of money due for principal or interest from any purchaser of said common school lands,

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at the time when letters patent for such lands were issued to him by the Province of Ontario, and not collected by the province, unless it be shewn by the province that there was good cause for not collecting the same.

'3. That where, in a fair and prudent administration of the common school lands, any sale of such lands has been cancelled by the Province of Ontario, and the same re-sold at a price less than that first obtained, the province shall not be liable for the loss resulting therefrom.'

"And whereas the parties having proceeded further with the said claims, and having filed statements shewing the particulars thereof, and having submitted evidence in respect thereto; and the said arbitrators having heard the parties and considered the evidence, did, on the 21st day of October, 1899, make a further award in the premises whereby they did, among other things, award, order, and adjudge as follows, that is to say:

'1. That subject to any revision and correction of the amount of the item in each case (which shall be ascertained by accountants, to be appointed by the arbitrators, in case the parties themselves do not otherwise agree) that may appear necessary and proper in the further taking of the accounts, that the Province of Ontario shall be debited with the sum of $9,468.59 hereinbefore mentioned for moneys collected on account of the common school lands and not credited to the Common School Fund in the accounts as rendered. This amount, being the difference in sums omitted to be credited to that fund and sums wrongly credited thereto, the several items as they appear in the statement prepared by Mr. Hyde and laid before us are

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(subject to such revision and correction) allowed as claimed by Quebec.

'2. That subject to such revision and correction as aforesaid, the Province of Ontario shall be debited, and the Common School Fund credited, with the several items and amounts shewn in the said statement prepared by Mr. Hyde, that go to make up the amount of $260,445.19 hereinbefore mentioned, and for which the Province of Quebec claims that the Province of Ontario is liable, with the exception of an item of $359.31, which appears at page 54 of the said statement in connection with sale numbered 9762.

'3. That subject to such revision and correction as aforesaid the Province of Ontario shall be debited and the Common School Fund credited with the several items and amounts shewn in the said statement prepared by Mr. Hyde that go to make up the sum of $2,975.99 hereinbefore mentioned, and for which the Province of Quebec claims that the Province of Ontario is liable.

'4. That subject to such revision and correction as aforesaid the Province of Ontario shall be debited and the Common School Fund credited with the several items and amounts shewn in the said statement prepared by Mr. Hyde that go to make up the sum of $7,270.62 hereinbefore mentioned, and for which the Province of Quebec claims that the Province of Ontario is liable.

'5. In respect to the amount of $20,662.58 hereinbefore mentioned, and for which the Province of Quebec claims that the Province of Ontario is liable in respect of the cancellations of certain sales of land and the re-sale thereof at reduced rates, that the Province of Ontario, subject to such revision and correction as

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aforesaid, be debited and the Common School Fund credited with certain items amounting in the whole to the sum of $ 6,230.35. * * *"

"And whereas no final award and declaration of the amount for which the Province of Ontario is liable to the Common School Fund as mentioned in the submission of the 10th day of April, 1893, has been made, and counsel for the Province of Quebec have moved the said arbitrators to give, among other things, orders and directions as to the method of making up the accounts of the Common School Fund referred to in the said agreement of submission, brought down and extended to the 31st December, 1892, inclusive, carrying into the same all the items and figures resulting from the various awards or orders of the Board made or to be made affecting the said Fund;

"And whereas on that motion the question has arisen as to whether in the final award and disposition of the said matter effect should be given to the directions and provisions mentioned and contained in the second and third paragraphs of the said award of the 6th day of March, 1896, and in the second, third, fourth and fifth paragraphs of the said award of the 21st day of October, 1899, as being within the jurisdiction and authority of the arbitrators under the submission of the 10th day of April, 1893;

"And whereas the parties have been heard in respect to the said question;

"Now, therefore, we, the said John Alexander Boyd, George Wheelock Burbidge and Francois Langelier, the said arbitrators, exercising our authority to make a separate award at this time respecting the said matter, and proceeding upon our view of a disputed question of law, do answer the said question in the

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negative, and do award, order and adjudge in and upon the premises that the directions and provisions mentioned and contained in the second and third para- graphs of the said award of the 6th day of March, 1896, and in the second, third, fourth and fifth paragraphs of the said award of the 21st day of October, 1899, were in excess of the authority and jurisdiction of this Board under the said submission of the 10th day of April, 1893, and that no effect should be given to such directions and provisions in the final award and declaration of the Board as to the amount for which the Province of Ontario is liable to the Common School Fund.

"The Honourable Sir Francois Langelier dissents from the present award on the grounds that the Board of Arbitrators had jurisdiction to deal with claims heretofore allowed in the awards of the 6th day of March, 1896, and the 21st day of October, 1899, and is of opinion that the said awards should not be disturbed."

Paragraphs 2 and 3 of the award of the sixth of March, 1896, which the arbitrators held in their final award to be in excess of their jurisdiction are as follows:

"Now, therefore, we the said arbitrators, exercising our authority to make a further award at this time respecting the same do award and adjudge in and upon the premises as follows, that is to say:

"2. That in computing the amount of principal money of the Common School Fund, for which the Province of Ontario is liable, the following sums shall be deemed to be and shall be treated in all respects as moneys received by the province from or on account of the common school lands set apart in aid of the

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common schools of the late Province of Canada, that is to say:

"(a) Any sum of money due for principal or interest from any purchaser of said common school lands, remitted by the Province of Ontario to the purchaser, unless it be shewn by the province that such remission was made in a fair and prudent administration of the common school lands and fund; and

"(b) Any sum of money due for principal or interest from any purchaser of said common school lands at the time when letters patent for such lands were issued to him by the Province of Ontario, and not collected by the province, unless it be shewn by the province that there was good cause for not collecting the same.

"3. That where in a fair and prudent administration of the common school lands any sale of such lands has been cancelled by the Province of Ontario, and the same re-sold at a price less than that first obtained, the province shall not be liable for the loss resulting therefrom."

And the award No. 4 dated the 21st day of October, 1899, of which paragraphs 2, 3, 4 and 5 were also held to be beyond the jurisdiction of the Board contained the following recitals and determinations: "Whereas we did, among other things (Sir John Alexander Boyd dissenting from so much of the award as made the Province of Ontario liable for any sums of money remitted to or not collected from the purchaser of any common school lands and for interest on any sums so remitted or not collected) award and adjudge in and upon the premises as follows, that is to say:

'That in computing the amount of principal money of the Common School Fund for which the Province of

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Ontario is liable, the following sums shall be deemed to be and shall be treated in all respects as moneys received by the province from or on account of the common school lands set apart in aid of the common schools of the late Province of Canada, that is to say:

'(a) Any sum of money due for principal or interest from any purchaser of said common school lands, remitted by the Province of Ontario to the purchaser, unless it be shewn by the province that such remission was made in a fair and prudent administration of the Common School Lands and Fund;

'(b) Any sum of money due for principal or interest from any purchaser of said common school lands, at the time when letters patent for such lands were issued to him by the Province of Ontario, and not collected by the province unless it be shewn by the province that there was good cause for not collecting the same.

'That where in a fair and prudent administration of the common school lands any sale of such lands has been cancelled by the Province of Ontario, and the same re-sold at a price less than that first obtained, the province shall not be liable for the loss resulting therefrom.'

"And whereas it is claimed on behalf of the Province of Ontario that the Common School Fund should be debited and the Province of Ontario credited with certain refunds of money collected, or received on deposit, on account of certain common school lands and credited to the said fund, amounting in all to the sum of $11,558.24.

"And whereas the parties have proceeded further with the said claims made by the Provinces of Quebec and Ontario, and have filed statements shewing the

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particulars thereof, and have submitted evidence in respect thereto, and in respect of the value of the school lands which had not at the date of the said agreement of submission been sold;

"And whereas we have heard the parties and considered the evidence;

"Now, therefore, we the said Louis Napoleon Casault, and George Wheelock Burbidge, two of the said arbitrators exercising the authority given to make an award at this time, and deciding, not according to strict rules of law, but upon equitable principles (the said John Alexander Boyd dissenting as hereinafter mentioned) do award, order and adjudge in the premises as follows, that is to say:

"1. That subject to any revision and correction of the amount of the item in each case (which shall be ascertained by accountants to be appointed by the arbitrators, in case the parties themselves do not otherwise agree) that may appear necessary and proper in the further taking of the accounts, that the Province of Ontario shall be debited with the sum of $9,468.59 hereinbefore mentioned[1], for moneys collected on account of the common school lands and not credited to the Common School Fund in the accounts as rendered. This amount being the difference in sums omitted to be credited to that fund, and sums wrongly credited thereto, the several items as they appear in the statement prepared by Mr. Hyde and laid before us are (subject to such revision and correction) allowed as claimed by Quebec.

"2. That subject to such revision and correction as aforesaid the Province of Ontario shall be debited and the Common School Fund credited with the several

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items and amounts shewn in the said statement pre- pared by Mr. Hyde, that go to make up the amount of $260,445.19 hereinbefore 'mentioned[2], and for which the Province of Quebec claims, that the Province of Ontario is liable, with the exception of an item of $359.31 which appears at page 54 of the said statement in connection with sale numbered 9762.

"3. That subject to such revision and correction as aforesaid the Province of Ontario shall be debited and the Common School Fund credited with the several items and amounts shewn in the said statement prepared by Mr. Hyde that go to make up the sum of $2,975.99 hereinbefore mentioned2, and for which the Province of Quebec claims that the Province of Ontario is liable.

"4. That subject to such revision and correction as aforesaid the Province of Ontario shall be debited and the Common School Fund credited with the several items and amounts shewn in the said statement prepared by Mr. Hyde that go to make up the sum of $7,270.62 hereinbefore mentioned2, and for which the Province of Quebec claims that the Province of Ontario is liable:

"5. In respect to the amount of $20,662.58 hereinbefore mentioned[3], and for which the Province of Quebec claims that the Province of Ontario is liable in respect of the cancellations of certain sales of land and the re-sale thereof at reduced rates, that the Province of Ontario, subject to such revision and correction as aforesaid, be debited and the Common School Fund credited with the following items and amounts:

"Here follows the items amounting to $6,230.35."

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Lafleur K.C. and Aimé Geoffrion K.C. for the appellant. The arbitrators had jurisdiction to determine the liability of Ontario to account for amounts remitted to purchasers of school lands. Consideration of the judgment of the Privy Council in Attorney-General for Ontario v. Attorney-General for Quebec[4], shews that this matter is very different from the one in question in that case and does not fall within the principle of the decision.

If the arbitrators had jurisdiction Ontario, of course, is liable. In re Bourne[5].

In any case, as no objection to the jurisdiction of the Board was taken until long after the awards were made, and as they were acquiesced in and acted upon by Ontario, the objection cannot prevail now.

Sir AEmilius Irving K.C and Shepley K.C. for the respondent. Under the submission Ontario can be made liable for moneys actually received and for those alone.

The case of Attorney-General for Ontario v. Attorney-General for Quebec4, concludes the matter against the appellants.

Lafleur K.C. and Aimé Geoffrion K.C. for the appellant.

Sir AEmilius Irving K.C and Shepley K.C. for the respondent.

Hogg K.C. for the Dominion of Canada did not wish to be heard.

The Chief Justice (dissenting) agreed with Duff J.

Davies J.—The substantial questions raised in this appeal are whether or not the arbitrators appointed under certain identic statutes of Canada, Ontario and

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Quebec, for the ascertainment and determination of the amount of the principal of the Common School Fund of the late Province of Canada had jurisdiction to entertain and decide upon the claim of Quebec against Ontario with respect to portions of the price for which certain of the common school lands had been sold and which Quebec alleged Ontario had improperly remitted to the purchasers of those lands; and secondly, assuming the submission under which the arbitrators acted was not wide enough to confer such jurisdiction upon them, whether or not the arbitrators in making their final award were concluded and estopped by their previous interim award upon the said claim and unable to rectify their error in assuming such jurisdiction.

The first question depends upon the proper construction of the agreement or submission defining the scope and extent of the arbitrator's jurisdiction made between the three Governments of the Dominion, and of the Provinces of Ontario and Quebec.

That agreement of submission was entered into on the 10th April, 1893, pursuant to the terms of identic legislation passed by the Parliament of Canada and by the legislatures of the two Provinces of Quebec and Ontario.

The powers of the arbitrators are therefore statutory and it is important to bear this in mind in view of one of the arguments pressed by the Province of Quebec in support of its appeal as to the arbitrators being concluded by a previous award they had made whether strictly within the terms of the submission or not to which I will refer later on.

The terms of the deed of submission of the 10th April, 1893, so far as they relate to the questions arising on this appeal, are as follows:

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3. It is further agreed that the following matters shall be referred to the said arbitrators for their determination and award in accordance with the provisions of the said statutes, namely:

(h) The ascertainment and determination of the amount of the principal of the Common School Fund, the rate of interest which should be allowed on such fund, and the method of computing such interest.

(i) In the ascertainment of the amount of the principal of the said Common School Fund, the arbitrators are to take into consideration not only the sum now held by the Government of the Dominion of Canada, but also the amount for which Ontario is liable, and also the value of the common school lands which have not yet been sold.

The question as to the true meaning and construction of the terms of this submission came before this court in the year 1901 on an appeal from an award made by a majority of the arbitrators holding that they had no jurisdiction to entertain a claim of the Province of Quebec that the Province of Ontario should be debited with such part of the uncollected balances of the sale price of the common school lands theretofore sold as the arbitrators should determine was under the circumstances right, fair and just.

I was a member of this court at that time and concurred in the judgment delivered by Chief Justice Strong,[6], at page 529, holding that the arbitrators had jurisdiction to entertain such claim. The Chief Justice speaking for the majority of the court said:

The clear and distinct words of the reference which require the arbitrators "to take into consideration the amount for which Ontario is liable" seems to us to make it impossible that a claim that Ontario is liable for uncollected balances of purchase moneys as well as for the wilful default and neglect of its officers can possibly be outside the terms of the reference.

On appeal to the Judicial Committee of the Privy Council, this judgment was reversed and the award of

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the majority of the arbitrators declining jurisdiction affirmed.

The reasons of their lordships for reversing and for holding that the Board of Arbitrators had not jurisdiction to entertain Quebec's claim for any portion whatever of the uncollected balances of purchase money were delivered by Lord Robertson,[7]. They seem to me conclusive against the present appeal in so far as it asserts jurisdiction in the Board of Arbitrators to entertain a claim of Quebec to charge Ontario with remissions to the purchasers of the purchase price of the common school lands sold to them whether made in the course of wise and prudent administration or otherwise.

Lord Robertson in delivering the reasons of the Judicial Committee says:

In ascertaining the true nature of the claim of Quebec, it is necessary to observe that the claim relates to the uncollected prices of lands sold by Ontario and to nothing else. The case, be it understood, is that of lands sold but no title to which has yet been granted. The gravamen is that those sales ought to have been completed and the prices ought to have been collected long ago, and that those prices have not been collected. Apart from this, Quebec has no case and does not profess to have one. The respondent endeavoured to make out that he was not necessarily committed to the very strong statements made in the claim of wilful violation of duty. Now, while it may not be of the essence of the claim to advance, as the respondent has done, the theory that those moneys have not been collected because it is the settled purpose of Ontario to keep them in the province, the facts set out in the claim amount to a case of wilful neglect and default and to nothing else, and the remedy sought is that those moneys which are not in the hands of the defaulter shall be treated as if they were and shall be debited against him. This; is. the gist of the claim—a claim against a trustee who, whether from intention or from negligence-, leaves moneys uncollected which he ought to have in his hands. The remedy claimed by Quebec is that Ontario shall be debited with a specific sum, to wit, $485, 801.65, interest to run on it from a stated date. This is an appropriate remedy for breach of trust, but it can be justified on no other ground.

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Now the question is whether such a claim falls within heads (h) and (i) of the submission. "The Common School Fund" the principal of which is to be "ascertained and determined" according to the conception of the statutes which relate to it, consists of moneys in the hands of Government. Now, the substance of the claim of Quebec is that the Ontario Government is to be debited with what in fact is not in their hands, and is alleged to be uncollected owing to the fault of that Government. Their lordships are unable to hold that a claim of this nature is to be found within the language of arts, (h) and (i) of the submission when there is no recital or suggestion of it in the rest of the submission. The question is not whether the claim is suitable for arbitration, but whether it has been submitted by this instrument. As their lordships read the claim, it is a claim founded on wilful neglect and default and of the nature of damages, and is heterogeneous to the questions which are clearly included in the submission. The specified matters which the arbitrators are to take into consideration do not include the present claim, and the fact that they are mentioned makes it impossible to suppose that the parties would have omitted to mention the matter now in question, if it had been within the scope of the reference.

I agree with the majority of the Board of Arbitrators that this reasoning is entirely applicable to the claims for remissions allowed in the awards of 1896 and 1899, now under review in this appeal and that the Judicial Committee's declaration of the law as to the scope of that submission is conclusive and binding upon us. On the question of the construction of the submission and the jurisdiction of the arbitrators I am quite unable to distinguish between a claim by Quebec to charge Ontario for a loss of the Common School Funds arising out of the improper refusal or wilful neglect of the Ontario Government to collect the purchase price of the school lands sold by them and a similar claim for a loss arising out of the improper and unjust abatement or remission to the purchasers of part of their contract price of purchase. In each case alike the moneys have not been received by the Province and each alike comes within the words of Lord Robertson

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a claim founded on wilful neglect and default, and of the nature of damages and is heterogeneous to the questions which are clearly included in the submission.

Holding, therefore, as I do that the decision of the Judicial Committee above referred to covers the question of the arbitrators' jurisdiction over improper and unjust remissions of the purchase money for which the lands were sold as well as for wilful neglect and default in not collecting such purchase moneys, I would be prepared to dismiss this appeal.

There remains, however, for consideration the second question raised by the Province of Quebec, namely, that the Board of Arbitrators were incompetent to decline jurisdiction in making their final award with respect to the sums remitted to the patentees (after the grants of their patents) out of the purchase moneys of such lands because they had already decided that Ontario was chargeable with such remissions up to an ascertained amount specified in a previous interim award made by a majority of them and the question was res judicata.

I confess myself entirely unable to appreciate this argument. Once it is conceded that the powers of the arbitrators were statutory, it seems to me to follow as a necessary consequence that anything they did beyond what they were authorized to do could not be binding upon the parties to the statutory submission or have any possible effect. If there was no jurisdiction in the Board of Arbitrators to consider and determine the question of Ontario's liability for remission of the purchase price of the lands, how can it possibly be maintained that an award made on the false assumption of such jurisdiction can be binding on the arbitrators or on any or on either of the Provinces parties to the submission?

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When, as in the case now before us, the Board was invited by the Province of Quebec to make a final award and to carry into that final award the interim award it had already made with regard to these re-missions of the purchase prices at which the lands had been sold it surely was open to them to decline doing so when they found that the highest judicial court of the Colonial Empire had determined that the scope of the statutory submission made by the Dominion and the two Provinces was not broad enough to enable them to deal at all with these questions of remissions. It is true that in its answer to Quebec's statement of claim charging Ontario with these remissions, Ontario had not raised any objection to the Board's jurisdiction over the claim although Chancellor Boyd, one of the arbitrators, dissented from the award on that ground.

But the absence of protest by Ontario against the Board assuming jurisdiction could not alter or enlarge the scope of the submission nor operate to estop the Province from disputing the jurisdiction of the arbitrators when it was found afterwards that the scope of the submission has been misunderstood. When Quebec moved the arbitrators in terms of the motion set out at page 34 of the case and practically asked them to assemble in a final award the results of their interim awards upon the subject of the Common School Fund including the awards Nos. 2 and 4 holding Ontario liable for purchase moneys of such lands improperly forgiven or remitted to the patentees it was clearly in my opinion open to Ontario to protest against the Board of Arbitrators doing so on the ground of want of jurisdiction. It does seem to me reasonably clear that if the submission did not authorize the arbitrators to deal with these remissions their

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attempts to do so in their interim awards Nos. 2 and 4 were nullities as being beyond their statutory powers, and that any further attempt to give vitality to their interim awards would necessarily be ultra vires. The jurisdiction of this court to hear an appeal from the award of the arbitrators is dependent upon the fact that the arbitrators should certify that in making the award they proceeded upon their view of a disputed question of law. In the present appeal the arbitrators did so certify upon the face of the award and our jurisdiction therefore to hear the appeal cannot be questioned.

It may be true also that Ontario did not until long after the rejected interim awards were made protest against the jurisdiction of the arbitrators to entertain the claim, and that after making award No. 4 the arbitrators declined on application made to them to certify that in making that interim award they had proceeded upon their view of a disputed question of law, and so an appeal against it to this court was defeated. But I am not able to see what these facts combined have to do with this question now before us. None of them nor all of them combined could operate either to extend the scope of the statutory submission or create a power in the arbitrators which it did not confer. The Board of Arbitrators now called upon by Quebec to make their final award and incorporate in it the interim awards they had previously made refuse in the light of the fuller knowledge they had gained of their jurisdictional powers to repeat the mistakes they had previously made. They formally decline to exercise a jurisdiction which they now learn they never possessed and never should have attempted to exercise and substantially award, order and adjudge that their awards Nos. 2 and 4 so far as they relate to this claim

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for remissions were made in excess of their authority and jurisdiction under the submission of the 10th April, 1893. In doing so I think they acted properly and are not estopped by their previous action. There is no principle upon which a Board of Arbitrators or a court acting under statutory authority can be called upon, by reason of some supposed estoppel, to assert a jurisdiction which it does not possess, merely because the tribunal, in a previous and interlocutory stage, had deemed itself jurisdictionally seized of the subject matter. The rule is that absence of jurisdiction must invalidate any proceedings, at any stage, and the arbitrators, being asked in their final award to bring in and include a liability over which they had, at a previous interlocutory stage, erroneously deemed themselves to have jurisdiction, were not only justified in correcting the previous error, but were in my judgment bound to do so.

Then with respect to the argument pressed upon us so energetically by Mr. Geoffrion arising out of the passing by Ontario of the Act 35 Vict. ch. 22, which professed to authorize in certain cases a reduction or an abatement in the prices of common school lands without affecting the share or interest of the Province of Quebec, I confess I find it difficult to understand the principle upon which the Act can be relied on as conferring any additional jurisdiction on the Board of Arbitrators. I gather from the reasons of Chancellor Boyd and Mr. Justice Burbidge for the award made by them and now under appeal, that it was common ground for both parties when awards Nos. 2 and 4 were made that this statute had never been acted upon and that the remissions and reductions in price of which Quebec complained were not authorized by it.

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But even if I was to go so far as to assume, contrary to the conclusion I have reached, that this statute and its amendments of 1877 could be invoked as applicable to the actual remissions made, it is difficult to see how that would assist the argument that the Board had jurisdiction over the claims in question. The moneys claimed were not in fact received by Ontario whether the failure to receive them is referable to the Act in question or not; and whether such failure is attempted to be justified by Ontario under that Act or otherwise, the foundation of the claim of Quebec is not altered. It is a claim as put by Mr. Shepley based upon neglect or default with or without the sanction of the ex parte legislation of Ontario and so stamps itself as "heterogeneous" to the questions included in the submission of 10th April, 1893, made by the Dominion and by the two Provinces of Ontario and Quebec to the Board of Arbitrators.

Idington J.—The submission now in question received the interpretation in the case of Attorney-General for Ontario v. Attorney-General for Quebec[8], which binds us.

It was held there that it did not authorize the arbitrators to adjudicate upon the liability of the respondent herein to account for moneys that might but for its wilful neglect or default have been collected.

The words "but also the amount for which Ontario is liable" which are used in the submission and pressed herein on our attention were under consideration in that case. Though they are possibly, if unlimited in any way, of wide enough import to have included the uncollected moneys then in question and also to include

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those now in question, yet the court held they did not when limited as the court found cover the case of moneys uncollected yet collectable.

It is easy to distinguish the facts of that case from those of this case but impossible to distinguish the interpretation adopted from that which must govern us herein. It is not an argument founded on reason to say that because the court properly and with due regard to accuracy limited its decision to the actual facts before it we must infer it intended to hold that the interpretation adopted and applied should be limited in its operation only to identical facts.

The court was careful not to embarrass by including other possible cases not before it.

For that obvious reason as well as the observation of a safe rule of judicial expression not to presume or seem to decide anything but the case in hand or needlessly extend by anticipation the principles necessary for its decision the court left it open to appellants ably to argue in many ways here that the other cases thus distinguishable in fact and circumstances are not to be governed by that case.

When however we look at the judgment in that case to find why the comprehensive words of reference are not to extend so far as they at first blush seem to imply we observe that the entire legal history of the trust is outlined in the judgment; that by the award of the 3rd September, 1870, it was laid down that the moneys received by Ontario since the 30th June, 1867, from the common school lands should be paid to the Dominion subject to certain deductions; that a new set of questions having arisen this submission now in question was made, and thereupon there had been raised a question of the jurisdiction of the arbitrators to adjudicate

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in respect of a claim of the now appellants that from the long delay of a quarter of a century to get in from sales of said land the uncollected balances of principal and interest they

ought to be and be deemed held and treated in all respects as moneys received by Ontario from or on account of the common school lands and as part of the Common School Fund or moneys in the hands of Ontario.

It was held by the arbitrators that they had not jurisdiction but upon appeal to this court such decision was reversed and hence the appeal cited above.

It was thereupon decided that such a claim put in the mildest form it was possible in law to state it was but

a claim against a trustee who, whether from intention or from negligence leaves moneys uncollected which he ought to have in his hands, * * * and the remedy sought was an appropriate remedy for a breach of trust.

And it was held accordingly that such an issue was beyond the language of the submission or suggestion of it in the rest of the submission.

How can the refusal to collect now in question be held to be different in quality from the wilful neglect there? Both are covered by the express words above quoted of "intention or from negligence."

The intention is made clear in regard to the remissions now in question. The twenty-five years of failure there in question was almost as expressive of intention as of neglect. But the questions of intention as well as of neglect are classed as of the same kind as a legal basis for complaint or reason for remedy and held beyond the submission.

I cannot understand, notwithstanding the argument so lucidly and so well put, how the moneys now in question can be held any more than those there in question to be deemed as money received.

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The legal wrong done if any is of the same character. The appropriate legal remedy sought here is absolutely the same.

Can it make any difference what the reason or motive leading to the intention was? If the remedy is not to be found in the one case in the exercise of the powers conferred I fail to see how it can be found in the other by looking at the motive which formed the foundation for the act complained of.

It is said there was a statute passed by the Ontario Legislature which expressed what was to be done but as the statute never was observed and never formed part of the constituting instruments establishing the trust I fail to see how it can in any case be relied upon by the appellant.

Much less can we find in its non-observance reason for holding that its existence can constitute in law the remission of moneys, within or without its provisions as a receipt of said moneys.

The failure to receive remains but an intention or neglect such as passed upon in the case I have cited.

Nor can I see how the granting of titles to the purchasers thus relieved from payment can convert the legal wrong as regards the appellant, if any, into anything but wilful default.

As regards the theory strongly urged of "constructive receipt" as the embodiment of results following Ontario legislation it seems but a twin brother to the conception put forward in the former case that the moneys should be "deemed * * * as moneys received by Ontario." Neither seems more than an ingenious hypothesis. I cannot find the one more workable than the other.

I am not passing upon this whole matter any opinion of whether or not a legal wrong in truth exists.

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It may or may not have been. We have nothing for that but a tribunal unauthorized to pass upon it. If there was no power in the tribunal that passed upon it to do so its findings in that regard must be treated as null.

And if through oversight they did pass upon it I fail to see how or why they cannot so declare and refrain from giving any countenance to its validity.

Nay more, on the face of each award there appears clearly set forth the ground (now found prohibited as ill-founded ground), upon which they proceeded.

I might add that of any or of the whole of the means suggested (outside of the actual receipt of the money) to rectify the matter each ends when analyzed in a reconstitution of the trust the Dominion has to execute.

We are asked in substance to find that the Dominion remain not as the trust declared the trustee of the fund to pay out its whole income in certain defined proportions but become as to a part a trustee for Quebec only.

This equalizing method was to my mind much more clearly beyond the range of the submission than anything I have already dealt with.

I think the appeal must be dismissed.

Duff J. (dissenting).—I think the appeal should be allowed. Upon the point of law raised by Ontario the Board was it seems to me concluded by its previous deliverances. The claim of Quebec was that Ontario be charged with the sums remitted to patentees (after the grant of their patents) out of the purchase money of patented lands as well as with the unpaid balances of purchase money due in respect of such lands. The

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Board had already decided that Ontario was chargeable in respect of these moneys. These adjudications phad been embodied in two formal instruments in which the arbitrators declare they "award and adjudge" upon the points in issue. Assuming these documents to be "awards" within section 5 of the identic statutes under which the submission took place the argument in favour of the view that they were binding on Ontario seems difficult to answer. The statutes authorize the submission of certain questions to the Board; empower the Board to make awards from time to time; provide that where the Board decides upon a disputed question of law the question shall be stated on the face of the award; and that an appeal shall lie from the decision of the Board upon any such question to the Supreme Court of Canada and thence to the Privy Council. The statutes further declare, subject to any such appeal, that "the award of the arbitrators in writing" shall be binding on the parties to the submission.

Now it has not been doubted that a question touching the scope of the submission would be a question of law which if disputed the arbitrators should state in. their award and in respect of which the appropriate mode of questioning their decision would be by the appeal provided by the statutes. The language used is quite broad enough to embrace such a question; and in Attorney-General for Ontario v. Attorney-General for Quebec[9], the question of the competence of the arbitrators to entertain the claim of Quebec was treated as, and indeed expressly declared, at page 42, to be a question of law within these provisions. Section 8, moreover, seems to make any award under the

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statute binding on the parties notwithstanding it should involve the determination of some question of law which not having been disputed or stated on the face of the award could not be raised by way of appeal under the statute.

There is nothing startling in the view that this section extends to questions relating to the scope of the submission, when one considers the character of the tribunal and the fact that where there is a dispute upon a question of law. the arbitrators are peremptorily required to state it—and that in such cases an appeal is given as of right. When the Governments concerned agreed to constitute a tribunal empowered to dispose finally of the questions arising on the settlement of the accounts in question, it is not, I think, to be supposed that the final award of this tribunal (to be composed as the statute provided, exclusively of judges, one of whom should be nominated by each of the Provinces, and one by the Dominion and each of whom should be approved by all the Governments) was to be open to dispute by any one of the parties on the ground that some matter had been taken into consideration by the tribunal which was outside of the scope of the submission (unless indeed the question raised by the objection should be stated in the award in the manner provided for by the enactments). On the contrary it would seem that one might confidently assume all parties to have intended that any such objection (escaping both the vigilance of counsel and the attention of the tribunal) should be finally set at rest by the award of the tribunal. Consider the effect of the opposite view. Let us suppose the very objection which was the subject of the adjudication in question on this appeal to be taken by Ontario for the first

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time after the final (i.e. the last) award of the arbitrators; that in other words, Ontario should then for the first time dispute the validity of the award on the ground that the claims to which the objection is directed were outside the scope of the submission. There would be no court to which such a controversy as between Ontario and Quebec could be submitted without the consent of both parties. It could only be determined, therefore, by a submission to another arbitral tribunal or with the consent of all parties to one of the courts of the country. Is it really conceivable that the parties could have intended that such a second submission should in any circumstances be necessary? It seems to me that to state the question is to answer it. Finality upon all questions as to the scope of the submission was just as important as finality upon other questions of law and upon questions of fact. The importance of the questions involved, and the composition of the tribunal, were such as to make it in the last degree improbable that any serious objection to any claim as being outside the submission would be overlooked. It must be essential to finality that any such objection if overlooked should be set at rest by the adjudication of the arbitrators upon the claim; and we should not, I think, be justified in so limiting the language of section 8 as to give to that section a construction which would have the effect of frustrating the common purpose which all the legislatures plainly had in view in agreeing to the constitution of the Board.

I do not understand Sir John Boyd to have raised, by his dissent, the question of the competency of the Board, under the submission, to pass upon the point on which his dissent was based. The awards, moreover, have not been attacked in the only way in which, if I

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am right in the views above expressed, they could be attacked, namely by appeal under section 6 of the constituent statutes.

Nor (with great respect to the learned Chancellor of Ontario) do I think there is any room for the implication he finds in the legislation to the effect that until the last award should be made, the "interim awards" so called should be open to review. The enactment seems explicit. The Board is empowered to make "awards" from time to time; and "the award in writing" of the arbitrators, it is declared, is to be binding on the parties. Morover if on this ground open to review on a question of law any such adjudication must (pending the final settlement of the precise sum payable by Ontario) be open on any question of fact; and having regard to the character of the inquiry, it is difficult to suppose that the legislatures could have intended that.

I think also that the instruments in which the adjudication upon the point under consideration is embodied are "awards" within the meaning of the statute.

It was argued by Sir AEmilius Irving that being in their nature interlocutory deliverances having only a temporary operation they lack the essential features of awards. I do not think that is the character of them. The Board does not in these documents profess to be regulating the proceedings or making provisional rulings upon the subject of the dispute: it, (as already mentioned) deals with the rights of the parties and in respect of their rights "awards and adjudges" languages which does not seem consonant with the intention that those pronouncements should have only a provisional effect. The circumstance alone that the instruments in question did not determine

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the precise sum which should be chargeable against Ontario in respect of the heads of controversy under which that Province was held to be liable does not I think effect the finality of the adjudications upon the points dealt with; Re Herbert Reeves & Co.[10], at pages 32-33; Ex parte Moore[11], at pages 633-34; the precise sum had in fact been determined pursuant to the directions contained in the awards long before the question of competency was raised.

If I am right in the view I have expressed that the statutes empowered the Board to decide finally and conclusively from time to time upon such controversies as those dealt with in the instruments in question then on this branch of the case the only remaining point upon which controversy could arise would be whether the Board has in these instruments manifested an intention of so deciding. That, as I have already said, seems to me very plain on the face of the instruments.

Anglin J.—Two distinct questions are presented by this appeal—one a question of the jurisdiction of the Board of Arbitrators; the other a question of res judicata, or estoppel.

By an award, dated the 6th March, 1896, (known as No. 2) the arbitrators determined (Boyd C., dissenting) that the following should be deemed moneys received by Ontario, viz.: (a) moneys remitted to purchasers of school lands, except in so far as Ontario should shew that the remissions were made in fair and prudent administration; (&) purchase moneys not collected by Ontario for lands for which patents have issued, unless Ontario should shew good cause for such non-collection. This adjudication was made upon a

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claim submitted by Quebec, and entertained by the arbitrators without any exception to their jurisdiction being taken by Ontario. The representatives of Ontario accepted the award and proceeded with the trial of the issue thereby defined, adducing evidence by which they sought to justify the reductions in and non-collection of purchase moneys. A further award, dated 21st October, 1899 (known as No. 4) determined the amounts with which Ontario should be charged in respect of the liability declared by the earlier award, subject only to a revision of the figures which were declared to be complete on the 21st of August, 1901.

Meantime Ontario had sought to appeal from both these awards. Neither award contained a declaration by the arbitrators that they had proceeded on their view of a disputed question of law. Upon this ground a motion by Quebec to quash the appeal prevailed.[12].

In 1899, Quebec brought before the arbitrators a supplemental claim that Ontario should be held liable to pay, as part of the Common School Fund, purchase moneys of school lands yet unpatented, but which Ontario had allowed to stand uncollected for upwards of 25 years. By her plea to this claim Ontario contested the jurisdiction of the Board to entertain it. The decision of a majority of the arbitrators that they had not such jurisdiction, set aside by the Supreme Court[13], was restored by the Judicial Committee[14].

In December, 1907, Quebec moved the Board for directions as to the inclusion in its final award of the amounts found due from Ontario in respect of remission and non-collections, interest upon the same, etc. On the return of this motion Ontario raised the question whether the awards of the Board as to remissions

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and non-collections of purchase money in the case of patented lands were within its jurisdiction. The arbitrators (Sir François Langelier, dissenting) held that in making these awards the Board had exceeded its jurisdiction by dealing with matters not within the submission, and that, as to them, in the final award effect should not be given to the former awards. From this determination, embodied in an award, dated 6th January, 1908, in which the arbitrators stated that they proceeded upon their view of a disputed question of law, Quebec has taken the present appeal.

Counsel for Ontario maintain that the matter of jurisdiction is conclusively determined in her favour by the decision of the Judicial Committee in the matter of the "Uncollected Balances"[15]. The question in that case was whether or not the arbitrators had jurisdiction to entertain the claim that Ontario should be charged with balances of purchase moneys of lands not yet patented, which she had failed to collect. The answer to this question depended, in the judgment of the Privy Council, upon whether or not Quebec's claim fell within the terms of the submission. The function of the arbitrators in regard to the principal of the Common School Fund was

the ascertainment and determination of its amount, taking into consideration not only the sum now held by the Government of the Dominion of Canada, but also the amount for which Ontario is liable.

Lord Robertson answers the contention, that the latter words confer jurisdiction to entertain the claim for "uncollected balances," by pointing out first that the Common School Fund "consists of moneys in the hands of Government"—according to article IX. of the award of 1870, moneys then in the hands of the Dominion and moneys theretofore or thereafter received

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by Ontario as proceeds of the sale of common school lands—and secondly that

the substance of the claim of Quebec is that the Ontario Government is to be debited with what in fact is not in their hands and is alleged to be uncollected owing to the fault of that Government * * * a claim founded on wilful neglect and default and of the nature of damages * * * heterogeneous to the questions which are clearly included in the submission.

The Judicial Committee determined that the words, "the amount for which Ontario is liable," (having regard to the nature of the Common School Fund, to the matters specified in the submission and to its recitals and general tenor) extend only to moneys received by Ontario from sales of school lands and do not include moneys uncollected "from intention or from negligence," which she ought to have in her hands—"moneys which are not in the hands of the defaulter" through her "wilful neglect or default," and which it is sought to treat as if they were in her hands and to debit against her. "This," say their lordships,

is an appropriate remedy for breach of trust, but it could be justified on no other ground.

In effect conceding that, under the decision of the Privy Council, the submission does not empower the Board to entertain claims against Ontario in the nature of claims for damages for breach of trust, counsel for Quebec maintain that the sums representing purchase moneys remitted or not collected in respect of patented lands should be deemed moneys constructively received by Ontario. In support of this contention they refer to Ontario legislation of 1872[16], whereby the Lieutenant-Governor in Council was

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authorized to reduce the prices of school lands sold prior to the 1st July, 1867, and to abate interest on unpaid instalments of purchase money,

provided that such reductions and abatements be made only in respect of and in proportion to the shares of Ontario and do not in any wise extend to or affect the share or interest of Quebec in such lands or the price thereof.

The statute further provided that a reduction or abatement should be affected by paying the amount thereof to the person entitled out of the Consolidated Revenue Fund, on his paying the full amount of the purchase money and interest, and it enabled the Lieutenant-Governor by Order in Council to confer on the Commissioner of Crown Lands authority to make such reductions or abatements.

The admitted facts are that no reductions or abatements in purchase money or interest were made by the Lieutenant-Governor in Council; all were in fact made by the Commissioner of Crown Lands; and there never was an Order in Council conferring authority on him pursuant to the statute. The position, having regard to what was actually done, is the same as if the statute had contained a provision that it should not come into force until declared operative by an Order in Council and such Order in Council had not been passed. Without an Order in Council conferring them upon him, the Commissioner could not exercise these statutory powers. Whatever he might do would not be done under the statute. No payments were ever made out of The Consolidated Revenue Fund, and, where there were reductions or abatements, the full purchase money and interest was not paid by the settler, but only the reduced amount.

The statute of 1872 was carried into the revisions

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of 1877 and 1887, the provisions as to payment in full and repayment out of The Consolidated Revenue Fund being omitted.

For Quebec it is contended that, although the statute was not complied with, the reductions and abatements made by Ontario should be deemed to have been made under its authority and that her liability and accountability should be the same as if the statute had been strictly carried out. I do not pause to inquire whether this position is now taken by Quebec for the first time, or whether it is or is not consistent with the allegations in her statement of claim. I assume that Quebec is within her right in presenting her present contention.

Ontario has always maintained that the reductions and abatements were made not as a matter of grace or favour to her settlers under the statute, but in the course of fair and prudent administration and for the advantage and benefit of both cestuis que trustent.

Notwithstanding one or two allusions to it in a couple of early letters from the Commissioner of Crown Lands, referred to by Mr. Lafleur, it is clear that the Act of 1872 was not acted upon, and I am unable to perceive why its mere presence upon her statute books should estop Ontario from so asserting.

The arbitrators have not found upon what authority Ontario purported to make reductions and abatements. Sir John Boyd states that the statute was never acted upon. Mr. Justice Burbidge, who had formerly said that Ontario should be deemed to have acted under it, though its terms were not followed, in his reasons in support of the award now in appeal, says:

Whatever view one may take of this statute, it is clear of course that the moneys in question have never been received by Ontario, and

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by the award of 1870 the province is liable to the Common School Fund for moneys received, and a claim to have the fund augmented by moneys not so received is, as their lordships have pointed out, in the case of The Attorney-General for Ontario v. The Attorney-General for Quebec[17], a claim in the nature of damages for some neglect or default which, as decided in that case, is heterogeneous to the questions included in the submission of the 10th of April, 1892.

Sir François Langelier, the dissenting arbitrator, in his reasons makes no reference to the Ontario statute.

While it is, therefore, quite correct to say that the arbitrators have not in fact determined that the reductions and abatements were not made, or professedly made, by Ontario under the authority of the legislation of 1872, the admitted fact, that the reductions and abatements in question were all made by the Commissioner of Crown Lands without the authority of an order in council, appears to render that conclusion so clearly inevitable that it would seem supererogatory to require a formal statement of it by the arbitrators.

Even if the Commissioner of Crown Lands had assumed to act upon the authority of the statute of 1872, he having in fact acted without its authority and in a manner quite inconsistent with its provisions, a case of constructive receipt by Ontario of the amounts by which the purchase moneys were reduced or interest thereon was abated, could not, in my judgment, be made out. Had the order in council necessary to clothe the Commissioner with the statutory powers been in fact passed, the situation would have been very different. All that Quebec would then need to ask would be that the Commissioner's acts should be ascribed to the exercise of powers which he actually possessed. She is, however, asking that he should be

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deemed to have exercised powers which he did not possess. This, in my opinion, cannot be done.

No other ground has been suggested upon which it could be held that these moneys not actually received by Ontario should be treated as having been constructively received. Unless actual or constructive receipt of the moneys is established, any claim that Ontario should account for them as if they had been so received must be a claim "founded on wilful neglect or default and in the nature of damages,'" and as such not within the scope of the reference.

I fully realize that in the Privy Council judgment Lord Robertson defines precisely the immediate subject of the appeal and carefully points out that the claim then under consideration was not for moneys remitted or abated and not for moneys uncollected in respect of patented lands, but only for uncollected balances of purchase moneys of "land sold but no title to which had yet been granted." I do not read this portion of the judgment as meaning that the principles upon which it proceeds have no application to the case of reductions and abatements of purchase money of patented lands, but merely as pointing out that that particular question was not then presented for adjudication.

I am of opinion that the majority of the learned arbitrators were right in. concluding that the awards Nos. 2 and 4 dealt with matters dehors the submission upon which they were founded.

If Ontario should be held bound by awards of the arbitrators as to matters not within the terms of the submission formally approved of by her Government by order in council, it must be either because a further parol submission binding upon her has been made

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by the acts or conduct of her representatives and what has been thus submitted is now res judicata, or I because she is estopped by her representatives and the arbitrators having, owing to a misconception of its scope, treated the matters now in question as within the terms of the formal submission.

As against the subject the terms of a written submission may be enlarged by acts of the parties and an award upon matters not within them may be supported by a parol submission so made. The scope of the submission is deemed to be thus widened although the extraneous matters have been dealt with only because, by common mistake of parties and arbitrators, they were assumed to be within it. Thames Iron Shipbuilding Co. v. The Queen[18], cited with approval in Russell on Awards (10 ed.) p. 54, and in Redman on Awards (3 ed.) p. 165.

But we are here dealing with a statutory reference and it. is against the Crown that an estoppel is asserted.

The reference, according to the Acts of Ontario and Quebec, is of such "questions as the Governments of the Dominion and of the two provinces shall mutually agree to submit"; and, according to the Dominion Act,

of such questions as the Governor-General and the Lieutenant-Governors of the said provinces shall agree to submit.

The three Acts were intended to be identic and, read together, they authorize the submission only of such questions as the several Governments with the concurrence of their respective heads, the Governor-General and Lieutenant-Governors, shall approve. Action by a Governor-General and his Government, or by a Lieutenant-Governor and his Government is invariably

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taken by order in council. Its constating Acts, therefore, restrict the functions of the Board to matters the submission of which is sanctioned by orders in council, and the Governments themselves could not empower their representatives to submit, or the arbitrators to entertain, matters the submission of which had not been so authorized.

Moreover, apart entirely from the provisions of these statutes, executive acts in matters of such importance must be authorized by order in council. Todd's Parliamentary Government (2 ed.), Vol. II., p. 673. In these matters acts of representatives of the Crown not so authorized—even acts of individual ministers—will not bind the Government. Reg. v. Lavery in 1896[19], at page 322; Reg. v. Waterous Engine Works Co. in 1893[20], at pages 235-6-7; see, too, Jacques Cartier Bank v. The Queen[21], at page 92. It would be exceedingly dangerous if, where a Government has taken the precaution to determine and define by order in council the terms of a reference, matters not covered by the order in council could be brought within the jurisdiction of the arbitrators and the scope of the reference intentionally or unintentionally enlarged by the acts or conduct of counsel or solicitors. Neither counsel nor solicitors representing it could bind the Government of Ontario by a parol submission of matters not included in the formal submission ratified by order in council. Their deliberate acts beyond the tenor of their instructions would have no effect upon the rights of the Crown. Neither can their mistakes or accquiescence estop it, since the Crown may not be held bound by estoppel or be prejudiced by the

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laches, mistakes, or defaults of its servants or agents. The failure of its representatives to call in question the jurisdiction of the arbitrators and their subsequent acquiescent attitude towards the awards now said to have been made without jurisdiction cannot therefore be successfully invoked against Ontario.

The 5th section of the Ontario statute authorizing the submission empowers the arbitrators, or any two of them "to make one or more awards," and the 8th section provides that

the appointment of the arbitrators by order in council and their award in writing shall bind this province save in case of appeal on questions of law as hereinbefore mentioned.

The corresponding sections of the Quebec and Dominion statutes are couched in the same language. But these provisions, when read with the other sections of the statute, seem plainly to be applicable only to awards within the terms of the submission. Otherwise, although the statute by its first section restricts the scope of the arbitration to questions which "the Governments * * * shall mutually agree to submit," they might find themselves bound by an award in which the arbitrators had disposed of matters not merely dehors the submission, but which neither parties nor counsel intended should be dealt with, and such an award would not be subject to appeal unless the arbitrators had certified that in making it they had proceeded "on their view of a disputed question of law." A consideration of the results which would follow from holding that the words "awards" and "their awards in writing," in sections 5 and 8, respectively, include awards upon matters outside the submission and, therefore, made without jurisdiction, makes it clear, in my opinion, that the operation of these sections

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is confined to awards which the arbitrators had jurisdiction to make and that it is such awards only which are declared binding.

Counsel for Quebec also argued that, because Ontario did not raise the question of jurisdiction in her statement of defence as required by the third of the general rules regulating their proceedings promulgated by the arbitrators, she cannot now be heard to say that awards Nos. 2 and 4 were made without jurisdiction. This is tantamount to saying that, unless their jurisdiction has been contested in the manner which the arbitrators have prescribed, it is to be deemed established as to all matters of claim dealt with by their awards. A sufficient answer to this contention seems to be that a Board constituted with defined statutory jurisdiction cannot by promulgating rules without statutory sanction enlarge that jurisdiction.

If the arbitrators were not fundi officiis in regard to Quebec's claims in respect of reductions and abatements, Ontario was not precluded, however late in the proceedings, from raising before them the question of their jurisdiction, for "the King shall not be concluded if he has matter to serve him." (Brown on Estoppel, p. 206.) That Quebec did not consider the Board to be functus regard to the matters covered by awards Nos. 2 and 4, is made reasonably clear by her application to the arbitrators on the 18th of December, 1907., for "an order and directions as to the method of making up the accounts of the Common School Fund * . * . * carrying into the same all the items and figures resulting from the various awards or orders of the Board, etc." It was on this motion that the question of jurisdiction arose. What, the arbitrators have done is not to reconsider a question upon which they had formerly pronounced (this question of jurisdiction was not then

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raised), but merely to refuse to perform a fresh act which, had their former awards been valid, might have been requisite to carry them into effect—an act, the performance of which would involve a further assumption by them of a jurisdiction with which they are now satisfied that they have not been clothed.

But, though the award now in appeal should be regarded as a re-consideration by the arbitrators of questions upon which they had already passed and a reversal of decisions which they had already formulated, the position taken by them would, in my opinion, be correct. To support it, it does not seem to me to be necessary to consider whether awards Nos. 2 and 4 are interim awards or final awards. The power of a Board of Arbitrators to re-consider matters within its jurisdiction and upon which it has definitely pronounced, although it has not made an award finally disposing of all matters submitted, may possibly be questionable. But that, which has been merely coram non judice, cannot be res judicata. An award made entirely without jurisdiction is absolutely void, and it is therefore unnecessary to set it aside. Whenever the nullity of their former action becomes apparent arbitrators not only may, but must, decline to hold themselves bound thereby. As to any future action on their part their duty in this respect is the same whether their former action be regarded as interim or as final in its character. Made without jurisdiction awards Nos. 2 and 4 are simply null and must be ignored. Nor does their nullity at all depend upon its declaration by the last award. That declaration may be viewed as a statement by the arbitrators of their reason for refusing to act upon awards Nos. 2 and 4, and the last award may itself be treated as merely a refusal so to act. In substance and reality it amounts to that. From what

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I have said it follows that in my opinion, such refusal was fully justified.

For these reasons, which are perhaps stated at unnecessary length, I am of opinion that the appeal fails and should be dismissed.

Appeal dismissed with costs.