Supreme Court of Canada
Beck Manufacturing Co. v. Valin, (1908) 40 S.C.R. 523
Date: 1908-10-06
The C. Beck Manufacturing Company (Plaintiffs) Appellants;
and
J.A. Valin and The Ontario Lumber Company (Defendants) Respondents.
1908: May 26; 1908: October 6.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Mandamus—Lumber driving—Order to fix tolls—Past user of stream—Appeal—R.S.O. [1897] c. 142, s. 13.
By R.S.O. [1897] ch. 142, sec. 13 the owner of improvements in a river of stream used for floating down logs may obtain from a district judge an order fixing the tolls to be paid by other parties using such improvements. On application for a writ of mandamus to compel the judge to make such an order:
Held, affirming the judgment of the Court of Appeal (16 Ont. L.R. 21) Davies J. dubitante and Idington J. expressing no opinion, that such an order had effect only in case of logs floated down the river or stream after it was made.
Held per Idington J.—As sec. 15 gives the applicant for the order an appeal from the judge’s refusal to make it mandamus will not lie.
Held, per Duff J.—The mandamus could issue if the judge had jurisdiction to make the order though he refused to do so in the belief that a prior decision of a Divisional Court was res judicata as to his power.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of the Divisional Court which sustained the refusal of a judge in chambers to issue a writ of mandamus.
In 1903 the C. Beck Mfg. Co. obtained an order from the judge of the District of Nipissing fixing the tolls to be paid on logs floated down a stream called
[Page 524]
Post Creek. This order was set aside by a Divisional Court on the ground that it related to operations before it was made and that the judge had not the necessary evidence before him to make a proper order and had not considered certain matters required by the Act. A fresh order was then obtained fixing the tolls, as the respondents, the Ontario Lumber Company, claimed, for future operations. The C. Beck Company claimed to be entitled under this to payment of tolls for logs floated before it was made and brought action to recover the same, but failed in all the courts. The decision of the Court of Appeal in that action is reported, and affirms that of the Divisional Court.
In 1906 the C. Beck Co. applied to the district judge to take evidence for the purpose of fixing tolls which might be charged for logs driven on Post Creek in 1903 and on his refusal to hear the evidence or make the order they applied to a judge of the High Court for a writ of mandamus to compel him to do so. The writ was refused and the refusal sustained by the Divisional Court and the Court of Appeal. The company then appealed to the Supreme Court of Canada.
Bicknell K.C., for the appellants. The respondents, the Ontario Lumber Co., in floating their logs down the stream and taking the benefit of the appellants’ improvements must be held to have done so subject to payment of reasonable tolls therefor under the statute. See Burnett v. Lynch; Moule v. Garrett; Kelloch v. Enthoven; Woodhouse v. Walker.
[Page 525]
If the statute had not provided a mode for fixing the tolls the reasonableness or otherwise of appellants’ demand would have been a question for the jury. Gunning on Tolls, p. 61.
If the judge has jurisdiction to make the order asked for, the judgment of the Divisional Court was wrong and cannot be res judicata against us. The judge may, in that case, be compelled by mandamus to exercise the jurisdiction he possesses. See Attorney-General for Trinidad and Tobago v. Eriché; Toronto Railway Co. v. City of Toronto; Reg. v. Judge of Southampton County Court; Sawyer Massey Co. v. Parkin.
Shepley K.C. and A.G.F. Laurence, for the respondents. The statute by its terms only authorizes tolls to be fixed for the future. See judgments in C. Beck Mfg. Co. v. Ontario Lumber Co., and in appeal.
The only remedy given to appellants for user of their improvements when no tolls are fixed is the lien on the logs passing through or over the same. Vestry of St. Pancras v. Batterbury; Atkinson v. Newcastle & Gateshead Waterworks Co.; The Queen v. County Court Judge of Essex.
GIROUARD J.—I would dismiss this appeal. It involves a mode of taxation, and as I read the statute its language does not justify the imposition of tolls for the past. I agree with Mr. Justice Meredith.
[Page 526]
DAVIES J.—At the close of the argument in this case my inclination was to concur in the construction of the Act reached by Mr. Justice Garrow in the Court of Appeal and to hold that the fixing of what was a reasonable rate of toll to be charged for the use of the river improvements by those who used them applied as well to past as to future uses.
I also reached the conclusion that in obedience to what he considered the judgment of the Divisional Court had declared the law to be the district judge had declined to hear or consider the application made to him to fix rates under the statute for the past user of the applicant’s river improvements.
I afterwards gave the case much consideration without changing the inclination I had reached after the argument at bar.
I have since carefully read the judgments prepared by my brother judges and confess that their consideration has left my mind in some doubt on the main question of the construction of the statute authorizing rates to be fixed.
Under these circumstances I do not feel justified in reversing the judgment of the Court of Appeal or in dissenting from the judgment now proposed to be given.
IDINGTON J.—We are asked, as it seems to me, under the guise of an application for an order by way of mandamus, to sit in appeal upon not only an opinion of a Divisional Court of the High Court of Justice, but also by way of anticipation upon what that or another Divisional Court might see fit hereafter to hold; and that in a case in which the legislature created certain rights and deliberately decided that
[Page 527]
such rights should in the measuring of the same abide by the arbitrament of a power or powers the legislature saw fit to entrust with the determination in regard thereto.
I decline to express any opinion upon any phase of the question raised save so far as to the necessity for, or right to make an application for writ of mandamus.
The applicants, now appellants, seem to have found a great deal of difficulty in getting to the point they set out to reach.
I see none. It applied under R.S.O., [1897] ch. 142, for an order settling certain tolls which that Act provided for being paid, upon certain things happening, and according to a scale to be determined by the district judge. He made an order on appellant’s application which provided, it is alleged, for tolls for uses of the stream improvements anterior to the application under the Act as well as posterior thereto. This was set aside. The reason for setting aside did not of necessity give rise to the consideration of the questions whereon the Divisional Court, setting it aside, passed an opinion. The learned judge thereupon made an order of the 30th March, 1904, upon the application of the appellants herein and in presence of counsel for all parties, but in accordance with the expressed opinions of the learned judges of the Divisional Court as he understood them, confined his order, it is said, to future uses of the improvements. Just here I would remark that if the appellants supposed this judgment erroneous they should at once have appealed to the court of appeal duly appointed by the said Act to hear any appeal from such erroneous decision, and have asked that the order be amended so as to decide as to, and if possible in law
[Page 528]
to embrace, the establishment of tolls for these anterior services.
That appellate jurisdiction was given by the following section fifteen of the said Act as follows:
In case a party interested is dissatisfied with the order or judgment of the judge or stipendiary magistrate, he may within fifteen days from the date thereof appeal from the order or judgment to a Divisional Court of the High Court; and a judge of the said court shall determine the time within which the appeal shall be set down to be heard, the security (if any) to be given by the appellant, and the persons upon whom notice of the appeal shall be served, the manner of service and all such other matters as he may deem necessary for the most speedy and least expensive determination of the matter of the appeal.
Instead of asking the learned judge in disposing of that application to formulate a judicial order setting forth (which I have not the slightest doubt he, if asked, would have done) his reason for refusing, in such a way as to remove, if any doubt existed thereupon, all question of right to appeal to the proper court, the appellants dropped the application there, failed to take out any order, failed to appeal to the Divisional Court and applied afterwards for an order by way of mandamus which was refused and hence this appeal. I think section 15, quoted above, wide enough to have covered all and everything that could arise and which the legislature ever intended should arise in the way of regulating or enforcing the rights created by the statute.
The right to assert an appeal against a court asserting jurisdiction where it has none is a very common case, and I have not the slightest doubt of the right to appeal on the converse ground of failure to assert jurisdiction.
Prohibition and mandamus are useful remedies but not in either alternative the only remedies, where
[Page 529]
so wide and comprehensive an appellate right is given as here.
The appellant has not shewn any real difficulty to have arisen. It merely seems to have shied at the appearances in its way.
If authority be needed for the proposition that an objection for want of jurisdiction may be taken successfully in appeal though overruled in the court appealed from, I may refer to the case of Ferguson v. Corporation of Howick, and the numerous authorities therein cited.
The original theory was that the court when it found itself without jurisdiction or was found by an appellate court to be so, could neither make an order, nor be directed to make an order even as to costs.
Howard v. Herrington illustrates the later development.
I am not concerned to do more here than shew that, where the words conferring appellate jurisdiction are unrestricted, no words specially dealing with the question of the inferior court’s jurisdiction are needed.
The question of its jurisdiction is the first one an inferior court has to determine, whether arising on demurrer, or by plea in abatement as of old, or thrown in as an ingredient in the mixture composing a statement of defence under the modern system, or upon the mere suggestion that reaches the ear of the court in any regular way, or taken by the court, of its own mere motion.
I cannot accept the theory that where the very essence of the matter over which jurisdiction is given
[Page 530]
is so limited in its sphere of existence or of operation as in this section, and that a jurisdiction is conferred, and is conditioned upon certain things having been done, it could ever have been intended to exclude from an appellate inquiry all that relates to such conditions or otherwise affects the limits of power.
An application for mandamus or for prohibition may not be merely discretionary when it comes to a question of having right done and no other way open.
But assuredly we should be slow to lead suitors to feel at liberty to travel beyond the assigned path for asserting rights created by a legislature that designated the path to be travelled to assert such rights.
I do not think that path has been properly tried and for that if no other reason I would as already intimated reject this attempt to enlarge the sphere of action of this court.
I think the appeal should be dismissed with costs.
MACLENNAN J. concurred in the dismissal of the appeal for the reasons stated by Duff J.
DUFF J.—This appeal arises out of an application of the appellants for a mandamus directing the respondent Valin, the judge of the district court of the District of Nipissing, to hear an application by the appellants for fixing tolls to be charged by them in respect of logs driven on Post Creek in the year 1903 under chapter 142, R.S.O. [1897]. The courts below have upheld the order of Mr. Justice Mabee in chambers dismissing the appellants’ application. The appellants admittedly effected certain improvements in Post Creek in the years 1900 to 1902 which are improvements within the meaning of the statute refer-
[Page 531]
red to. It is not disputed, either, that an order, made by the respondent upon the application of the appellants fixing the tolls to be exacted from persons using these improvements for the floating of logs after the date of the order, was properly made; but it is contended that the statute confers no authority upon him to fix any toll in respect of any use of the improvements anterior to the fixing of the toll; and consequently that the learned judge has now no jurisdiction to hear any such application as that which the appellants ask the court to direct him to hear.
Two questions arise. The first is a question of substance, viz.: whether the statute does or does not authorize the maker of such improvements to exact tolls for the use of them anterior to the fixing of the tolls in the manner provided by the statute; the second is the question whether or not, assuming the point just stated to be decided in favour of the appellants, they are entitled, in view of the proceedings which have taken place, to be heard upon an application to fix tolls in respect of the use of their improvements during the years 1902 and 1903.
To deal first with the last-mentioned question. At the outset I am unable to entertain any doubt that the learned district judge refused to hear the appellants’ application. What he did shews, I think, that he intended to decline to entertain it, and to decline on the ground that he had no jurisdiction. It follows that the appellants are right in the course they have taken to test the question of their right to a hearing.
The principal difficulty which in this branch of the argument the appellants have to meet is a difficulty which arises out of a previous judgment of the Divisional Court pronounced on the 10th of March,
[Page 532]
1904, in an appeal under the statute referred to from an order made by the respondent Valin on the 25th of January, 1904. The last-mentioned order; which was made upon the application of the appellants, professed to fix generally a toll to be paid by the respondents, the Ontario Lumber Company, to the appellants in respect of timber transmitted through their improvements. This order was rescinded by the Divisional Court in the judgment just mentioned. The formal order set aside the order of the district judge,
without prejudice to a further application by either party to the judge to fix a proper rate of tolls to be taken for the future by the Beck Company under the further evidence necessary.
The Divisional Court, therefore, did not profess to decide finally upon the merits of the application before the learned district judge; but they, assuming that the order of the learned district judge had the effect of fixing a toll in respect of a past user, did profess to determine finally that the district judge had no power under the statute to make an order with respect to such user. I think we may assume, for the purposes of this discussion, that the Divisional Court was right in its view of the scope of the learned judge’s order; still I do not think that their decision touching the point of jurisdiction finally concludes the appellants in respect of it.
The right of appeal from the county or district judge given by the statute is an appeal from an order fixing the “amounts which any person entitled to tolls under the Act shall be at liberty to charge”; without stopping to consider the extreme view that the function of the Divisional Court on the appeal is limited to a review of the decision of the judge upon any
[Page 533]
question of the amount of the toll, it does appear to me that, having regard to the provisions of the Act, it is hardly possible that the legislature could have intended the decision of a Divisional Court on such an appeal finally to conclude every question of law as well as of fact touching the power of the judge under the Act. It would have been easy to frame a statute in such terms as to make the decision of the county or district judge conclusive on every such question, subject only to an appeal to the Divisional Court. If the legislature had intended that I think some language would be found indicating it more pointedly than anything one finds in the Act. Indeed, I am quite unable to see how such a view can be taken of this statute consistently with what nobody of course disputes—that the proceedings of courts of special statutory jurisdiction are (notwithstanding a right of appeal now almost invariably given from the decisions of such courts) every day the subjects of process in prohibition and mandamus.
Moreover, here the case against such a construction appears unusually strong because of the circumstance that (for reasons to be mentioned presently) it seems clear that an order fixing tolls under this statute is very much in the nature of an order in rem, affecting quite conceivably, and I should think not uncommonly, people who hear of it for the first time long after the time prescribed by the Act for appeal has expired. I do not, of course, suggest that the Divisional Court may not have to consider, as the judge himself must have to consider, the scope of the judge’s powers under the Act, but that is a very different thing from saying that every judgment of theirs upon such a question is necessarily decisive.
[Page 534]
If the judge assumes through a misconception of the statute to exercise a jurisdiction which the statute does not give him what he professes to do is I think a nullity; and the Divisional Court cannot, I think, by concurring in the misconception make that nullity a valid proceeding. If he declines jurisdiction where the statute enjoins him to act the remedy of the party aggrieved is, I think, to be pursued through an application to the general jurisdiction of the High Court.
It was argued indeed that the appellants’ application ought not to be granted because the learned district judge would be bound on the hearing of the application by the decision of the Divisional Court already on appeal from him. It is quite clear, however, that no order for a mandamus could be granted except as the result of a determination that the respondent has the jurisdiction which the Divisional Court has held he has not; and it is not to be supposed that in such circumstances he would feel himself at liberty to disregard such a determination. It follows that if in substance the appellants are right there is nothing in the previous proceedings to prevent this court making the order which they ask.
I think, nevertheless, that the appeal must fail because the construction placed by the Divisional Court upon the Act is the true construction.
Under the statutes in force at the time the Act was passed the law of Ontario was that all persons had the right during freshets to float timber down rivers and streams; and, to facilitate the floating of timber, to remove obstructions and construct such works as might be necessary.
The Act under consideration affirms these rights, but in another respect alters the law. The earlier
[Page 535]
statute in effect gave to all persons the right for the purpose of floating timber down stream to use with out compensation improvements made by others; the law was thus settled by the decision of the Judicial Committee in Caldwell v. McLaren. The statute upon which the present dispute arises affirms this right also, but declares that it shall be subject to the payment of reasonable tolls to the person who has made the improvement; and the judge of the county court or the judge or stipendiary magistrate of the district where the improvement is situated is required, upon the application of the “owner thereof or of any person who may desire to use the same” to fix the amounts of such tolls, which amounts the judge, or stipendiary magistrate, as the case may be, is authorized to vary from time to time; and (section 13) the statute directs that
the judge or stipendiary magistrate in fixing the tolls shall have regard to and take into consideration the original cost of the construction and improvements, the amount required to maintain the same and to cover interest upon the original cost, as well as such other matters as under all the circumstances may seem just and equitable.
It would seem to be reasonably clear (although the language might have been perhaps a little more apt to the purpose) that the toll to be charged under the Act in respect of the use of a given improvement is to be a general toll equal in its operation; and what the judge or magistrate is authorized to fix is the amount of such a toll which, until varied under the power given by the Act, shall be chargeable uniformly against all persons alike who come under the statutory liability to pay. The power conferred upon these
[Page 536]
judicial officers is the power to determine the sum to be payable by the public in respect of the exercise of that which the statute declares to be a public right; and I think that the rule of construction applicable to such an enactment is that, in the absence of express provision, or at all events reasonable implication to the contrary, the statutory power is not to be exercised with reference to individuals as distinguished from the whole of those members of the public to whom the enactment may be applicable.
The construction placed by the Divisional Court upon the enactment is that the use of an improvement does not subject the user to any liability to the payment of tolls unless the amount of the toll was ascertained in the manner prescribed by the statute anterior to the use; and this construction the appellant impugns.
A very little consideration will shew that the adoption of the appellant’s construction will lead to rather startling results. It is common ground that the amounts payable in respect of tolls are not exigible until fixed by the statutory method. The statute prescribes no limitation upon the retrospective operation of an order fixing a toll; if such an order may operate retrospectively at all it may, it seems very clear, so operate over an unlimited period. Mr. Justice Street in delivering the judgment of the Divisional Court, to which reference has already been made, suggests a limitation of six years after the use of the improvement upon actions for tolls; but I think this is putting the case too favourably to the appellants’ contention. Since the cause of action would not arise until the amount is fixed one does not easily see why until then the Statute of Limi-
[Page 537]
tations should begin to run. It is not unimportant to observe here that where the statutory conditions are fulfilled, that is to say, where there is an improvement within the meaning of the statute, the proper judicial officer is required to entertain the application and to make the order fixing the amount of toll. If the construction contended for by the appellant be the true one it would, I have no doubt, lead to the conclusion that the judicial officer would have authority in fixing the amount of a toll to be exacted in respect of a given improvement to distinguish between the sums chargeable for a past use and those chargeable for the future; but if the liability to pay for a use anterior to the fixing of tolls is created by the statute, then I think the statute must be held imperatively to require the proper judicial officer upon application to fix the amount of such tolls; and, as I have already said, there is nothing in the statute, expressly or impliedly, limiting the time within which the application is to be made.
Again, if the liability imposed by the statute upon persons making use of such improvements be such as is contended for one would naturally have expected—in the view I have indicated that the incidence of the toll is general and equal—that the legislature is empowering the owner of the improvement to make the application at any time after the use would have put it in the power of persons using an improvement to take steps themselves in the same circumstances to have the amount of the toll ascertained. It is not easy to believe that the legislature could have contemplated as a result of their legislation that the amount of this impost, levied in respect of the exercise of what it was at pains to declare to be a public right, might remain
[Page 538]
undetermined for an indefinite period during which persons who should have incurred liability to pay it, should be unable to relieve themselves from that liability or definitely to ascertain its extent. Yet it seems to be very clear that as regards users the legislature did not contemplate any application for the purpose of fixing the amount of tolls in respect of a past use; the language employed points very clearly to future use only. It may be said that the intended user has it in his power to have the toll fixed before incurring any liability; but many cases might occur in which this would be impracticable or altogether impossible.
There are in the statute other indications, mentioned in the judgment of Mr. Justice Meredith in the court below, telling against the appellant’s contention. I will not dwell upon these, but say simply that if that contention were accepted, the exaction of this impost might be attended with circumstances of inconvenience, to say nothing of injustice, wholly disproportionate to any sort of public advantage that can be conceived as possibly arising from the ex post facto operation of orders fixing tolls. A statute creating a liability of this kind ought not, I think, to receive a construction having that effect unless, as a matter of interpretation, the case in favour of it be overwhelming. Here I do not think that is so. I see no difficulty in reading the 11th section, which creates the liability in such a way as to make the ascertainment of the amount anterior to the use a condition of liability.
I think, therefore, the appeal should be dismissed with costs.
[Page 539]
Appeal dismissed with costs.
Solicitors for the appellants: Bicknell, Morine, Bain & Strathy.
Solicitors for the respondents: Laurence & Wadsworth.
Email this Content