Barrett v. Syndicat Lyonnais du Klondyke, (1903) 33 SCR 667

Supreme Court of Canada

Barrett v. Syndicat Lyonnais du Klondyke, (1903) 33 S.C.R. 667

Date: 1903-08-24

Joseph Barrett (Defendant by counterclaim) Appellant;

and

Le Syndicat Lyonnais du Klondyke (Plaintiffs by counterclaim) Respondents.

1903: August 24.

Present:—Sir Elzear Taschereau C.J. (in Chambers).

ON APPEAL FROM THE TERRITORIAL COURT OF YUKON TERRITORY.

Appeal per saltum —Extension of time for appealing —Jurisdiction—Supreme and Exchequer Courts Act, ss. 40, 42—Yukon Territory Act, 62 & 63 V., c. 11—North-West Territories Act, B.S.C. c. 50.

A judge of the court appealed from has no jurisdiction to extend the time for appealing per saltum to the Supreme Court of Canada.

After the expiration of sixty days from the signing, entry or pronouncing of judgment, leave to appeal per saltum to the Supreme Court of Canada cannot be granted.

Quare.—Whether under the provisions of section six of the Yukon Territory Act, 62 & 63 Viet. ch. 11, and of the North-west Territory Act, R.S.C., ch. 50, sec. 42, thereby made applicable to the Territorial Court of Yukon Territory, three judges of that court are necessary to constitute a quorum for the hearing of appeals from judgments upon the trial of cases therein?

MOTION, in Chambers, by way of appeal from the decision of the Registrar, sitting as a Judge in Chambers, refusing a motion for leave to appeal per saltum to the Supreme Court of Canada.

The motion before the Registrar in Chambers was for an order allowing the defendant by counterclaim to appeal per saltum from the judgment of Mr. Justice Craig at the trial in favour of the plaintiffs by counterclaim, direct to the Supreme Court

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of Canada, on grounds mentioned in an affidavit filed, setting out, among others, the circumstances of the case as follows:—Judgment was delivered in the action by Craig J. on 17th February, 1903, in the Yukon Territorial Court, directing judgment to be entered on the counterclaim in favour of the Syndicat Lyonnais du Klondyke, against the defendant by counterclaim for $40,500, with costs. On 2nd March, 1903, on application on behalf of the plaintiff by counterclaim, Mr. Justice Craig amended this judgment by directing an account to be taken of the amount owing by the defendant (Barrett) in the original action, to the Canadian Bank of Commerce, plaintiff therein, and that the difference between the amount of the judgment of the bank against the plaintiff by counterclaim (a defendant in the original action) and the amount owing by the defendant, Barrett, to the bank, should be set off pro tanto against the judgment in favour of the plaintiff by counterclaim against the defendant Joseph Barrett. The judgment as amended was issued on the 4th of March, 1903. On 2nd April, 1903, Barrett gave notice of appeal to the Territorial Court, en banc, and, on 8th April, applied to Dugas J., a judge of said court, to extend the time for filing the appeal books. The court, sitting en banc, is composed of three judges. On the application Dugas J. stated that, for special reasons, he would not sit on the hearing of the appeal and absolutely refused to act in the case, at any stage of the proceedings. The affidavit alleged that by reason of this refusal there could be no quorum for the purpose of the hearing en banc. On 8th April, applications were made, respectively by the Syndicat and Barrett, to extend the time for appealing to the Supreme Court to enable an application to be made for leave to appeal per saltum, and an order was made by one of

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The judges of the Territorial Court extending the time until 11th June, 1903. In April a notice of motion was given by the Syndicat returnable before the Registrar of the Supreme Court of Canada, in Chambers, on 18th May, 1903, for leave to appeal per saltum to that court from the judgment in favour of the Bank. Barrett thereupon gave notice of a similar motion for leave to appeal per saltum from the judgment on the counterclaim, but did not proceed with it in view of a settlement made between the Syndicat and the bank, on 6th May. Upon an application, on behalf of Barrett, on 8th June, 1903, an order was made by Mr. Justice Craig extending the time for appealing per saltum to the Supreme Court of Canada for the period of seventy-five days from 11th June, 1903.

Daly for the motion, cited Schultz v. Wood ([1]) Walmsley v. Griffith ([2]); Vaughan v. Richardson ([3]); and News Printing Company v. Macrae ([4]).

Bethune opposed the motion.       

On 18th August the following judgment was pronouncd by

THE REGISTRAR.—This is an application by the defendant, John Barrett, for leave to appeal per saltum from a judgment of Mr. Justice Craig of the Territorial Court of the Yukon, pronounced on the 19th of February, 1893, and subsequently amended on the 2nd of March, 1903, and issued on the 4th of March, 1903.

It is alleged, and not denied, that Mr. Justice Dugas, for personal reasons, refused to sit as a member of the Territorial Court upon the proposed appeal to that court from the judgment of Mr. Justice Craig, and in the affidavit in support of the application of Mr.

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Pattullo, it is alleged, and not denied, that without the presence of Mr. Justice Dugas there can be no quorum of the Territorial Court. I have had difficulty in obtaining any definite information with respect to the constitution and jurisdiction of the Territorial Court of the Yukon. Section 6 of the Act 62-63 Vict. ch. 11, provides as follows:

The law governing the residence, tenure of office, and oath of office of the judge or judges of the court and the rights, privileges, power, authority and jurisdiction of the court and the judge or judges thereof, shall be the same, mutatis mutandis, as the law governing the residence, tenure of office and oath of office of the judges, and the rights, privileges, power, authority and jurisdiction of the Supreme Court of the North-West Territories and of the judges of that court, except as the same are expressly varied by this Act.

Upon looking at the North-west Territories Act ([5]) we find that by section 42 as amended by 63 & 64 V. c. 44 the Supreme Court of the territories consists of a chief justice and four puisne judges; and by section 49 as amended by 61 V. c. 5, s. 3, three of the judges of the court constitute a quorum.

Upon inquiry at the Department of the Interior I find that the judges of the Territorial Court consist of Justices Craig, Dugas and Macauley. The Gold Commissioner, in certain cases, is also a member of that court, but would not be qualified to sit in the present case had it been taken to appeal.

The first question to be decided is whether, assuming. Mr. Justice Dugas unable to sit, would there be a properly constituted Territorial Court to hear this appeal, if that court consisted only of Justices Craig and Macauley; and would section 6 of 62 & 63 V. c. 11 so apply as to give them jurisdiction?

The answer to be given to this inquiry, in my judgment, is by no means clear. As I have before remarked the view of the lawyers in Dawson City and, I may (1) R. S. C, ch. 50.

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assume, of the Yukon Territorial Court, is that the three judges must sit to form a quorum. The affidavits filed on this application show that the time for appealing to the Territorial Court has expired, and if I should refuse this application the result would be that the appellant would be deprived of any appeal.

In a recent case in the Supreme Court from the Yukon Territory an appeal was taken direct to the Supreme Court from a judgment of Mr. Justice Craig, although, at that time by 2 Ed. VII. ch. 35, sec. 6, it was provided that the Territorial Court en banc might hear and dispose of motions for new trials, appeals and motions in the nature of appeals.

No motion to quash was made by the respondent, but the court, viewing the question as one of some doubt, of its own motion granted leave to appeal per saltum.

In the present case the matter is equally a doubtful one, and in my judgment it is a case in which, under all the circumstances leave to appeal per saltum should be granted, unless the objection taken by Mr. Bethune is allowed, namely, that sixty days having elapsed since the date of the judgment of Mr. Justice Craig, neither the Supreme Court nor the court below has or had power to extend the time for bringing the appeal. On this point I find the matter has been determined by the present Chief Justice of the court in an unreported case of Roberts v. Donovan, decided in Chambers on the 8th July, 1895. In that case, upon an application to the Registrar for leave to appeal per saltum the same was refused because more than sixty days had elapsed since the signing of the judgment proposed to be appealed from; the learned Registrar holding that sec. 40 applied, and that the application was too late. His judgment was affirmed by the present Chief Justice. The only distinction between that and

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the present application lies in the fact that an order has been made by a judge of the Territorial Court extending the time for making the application to the Supreme Court. I am unable to find in sec. 42, or elsewhere in the Supreme and Exchequer Courts Act, power given to the court below to make such an order. That section clearly, in my mind, applies only to cases where the court below could make an order allowing the appeal; but, in the present case, the court below has no jurisdiction to allow an appeal per saltum, and therefore, in my opinion, the order extending the time for the present application was made without jurisdiction. It has long been the settled jurisprudence of the Supreme Court; Walmsley v. Griffith ([6]); The News Printing Co. v. Macrae ([7]); that neither the court itself nor any judge thereof has jurisdiction to extend the time within which an appeal must be brought as provided for by section 40 of the Act. I regret I feel compelled to hold that neither has the court below such jurisdiction where the proposed appeal is per saltum from the trial judge. Cases must frequently arise like the present in which justice only can be done by extending the time for bringing the appeal.

By Parliament alone however can the remedy be provided. The motion must be refused with costs.

On the motion by way of appeal His Lordship the Chief Justice, in Chambers, after hearing the same counsel for the parties, affirmed the Registrar's decision.

Motion refused with costs.