Supreme Court of Canada
Great Northern Ry. Co. of Canada v. Furness, Withy & Co., (1908) 40 S.C.R. 455
Date: 1908-06-16
The Great Northern Railway Company of Canada (Defendants) Appellants;
and
Furness, Withy And Company and Others (Plaintiffs) Respondents.
1908: June 16
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Appeal—Delay in approval of security—Jurisdiction—Extension of time—Stay of execution.
Application for approval of the security on an appeal to the Supreme Court of Canada was made within the time limited by the statute, but the hearing of the application was not completed until afterwards, and the judge made an order, after the expiration of sixty days from the rendering of the judgment appealed from, approving of the security offered by the appellants.
Held, Idington J. dissenting, that although the record did not shew that the judge had expressly made an order to that effect he impliedly extended the time by accepting the security offered, and that this was a sufficient compliance with the statute.
An objection that the security approved was not such as contemplated by the 75th and 76th sections of the "Supreme Court Act," (the amount thereof being insufficient for a stay of execution), was not entertained for the reason that the amount in controversy was sufficient to bring the case within the competence of the court and it was immaterial whether or not execution could be stayed. The Attorney General of Quebec v. Scott (34 Can. S.C.R. 282) and The Halifax Election Cases (37 Can. S.C.R. 601) referred to.
MOTION to quash, an appeal from the judgment of the Court of King's Bench, appeal side, varying the judgment of the Superior Court, District of Quebec,
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Lemieux J., and maintaining the plaintiffs' action for the sum of $3,992, being the amount of a debt thereby claimed, with costs.
The judgment from which the appeal is asserted was delivered on 9th March, 1908; the notice of application to have security approved on appeal to the Supreme Court of Canada was served on the respondents on 30th April, and the application was presented to Mr. Justice Blanchet on 5th May, within sixty days from the judgment appealed from, as limited by the "Supreme Court Act." It does not appear from the papers before the court whether or not the names of any proposed bondsmen or other security were mentioned at the time of this application, the learned judge made no order at that time, but took the matter en délibéré. On 3rd June, the respondents were served with a further notice that a bond by a guarantee corporation would be filed as security for the appeal in the office of the clerk of appeals, at Quebec, on 9th June, and, on the latter day, the respondents appeared before the same judge and objected to the security being approved on the ground that the time limited for such proceeding had elapsed. After hearing counsel, Mr. Justice Blanchet, on the date last mentioned, approved of the security thus offered.
Surveyer, for the motion.
Cannon, contra.
The judgment of the court was delivered by
GIROUARD J. (oral).—The respondents move to quash the appeal, taking the same objection as was
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taken before Judge Blanchet, and also contending that the security approved by him is not the security contemplated by the 75th and 76th sections of the "Supreme Court Act," the amount being insufficient to stay execution.
The second objection cannot be entertained, the amount being sufficient to bring the case before this court under section 75, whether execution can be stayed or not is immaterial.
As to the objection based on expiration of time, we are, with the exception of Mr. Justice Idington, of opinion that the learned judge before whom the application was made on the 5th May, although the record does not shew that he expressly made an order to that effect, impliedly extended the time by accepting the security, and we think it is a sufficient compliance with the statute. The Attorney General of Quebec v. Scott, and The Halifax Election Cases. are in point.
The motion is dismissed with costs fixed at $50.
Idington J. (oral).—I am of opinion that if the learned judge intended to extend the time he should have said so distinctly. He did not do so, consequently, I think we cannot assume that the time was extended as required by the statute.
Motion dismissed. with costs.
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