Holsten v. Cockburn, (1904) 35 SCR 187

Supreme Court of Canada

Holsten v. Cockburn, (1904) 35 S.C.R. 187

Date: 1904-02-03

Maria Holsten and Others (Plaintiffs) Appellants;

and

George R.R. Cockburn (Defendant) Respondent.

1904: February 3.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeal—Security for costs—Waiver—Consent.

The case on appeal to the Supreme Court of Canada cannot be filed unless security for the costs of the appeal is furnished as required by sec. 46 of the Act. The giving of such security cannot be waived by the respondent nor can the amount fixed by the Act be reduced by his consent.

THE CASE ON APPEAL in the above cause when transmitted by the Registrar of the Court of Appeal for Ontario contained an order made by a judge of that court approving of the bond for security for costs in the sum of two hundred and fifty dollars and stating that counsel for respondent had consented to that amount. The Registrar of the Supreme Court refused to accept the case and referred the matter to the Chief Justice who approved of the order refusing to receive the case and gave the following ruling as to the practice:—

THE CHIEF JUSTICE.—Though it would seem that, as a general rule, the giving of security is an enactment in favour of the adverse party, and that, consequently, the adverse party may waive it expressly or impliedly, yet, under the Supreme Court Act, that is not so. Under sections 40, 43 and 46, the case is taken out of the jurisdiction of the provincial court only by

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the approval of the security. It is only by that act that the Supreme Court of Canada acquires jurisdiction. That is why rule 6 requires that the case should contain a certificate that the security has been given. Fraser v. Abbott^[1]; In re Cahan^[2]; Whitman v. The Union Bank^[3], might perhaps be read as opposed to that view. But, to my mind, the statute is clear, and the clerk of the provincial court has no authority whatever, as a general rule, to certify a case (sec. 44, rule 1), when no security has been given. Our registrar should, therefore, refuse to receive such a case. Under rules 5 and 44, also, the security must be required. And the security, of course, must be as required by the statute.