Supreme Court of Canada
L’Association Pharmaceutique De Quebec v. Livernois, (1900) 30 SCR 400
Date: 1900-06-12
L'ASSOCIATION PHARMACEUTIQUE DE QUEBEC (PLAINTIFF)
Appellant;
And
J. E. LIVERNOIS (DEFENDANT)
Respondent.
1900: May 17; 1900: June 12
PRESENT:—Sir Henry Strong C. J. and Taschereau, Gwynne, Sedgewick and Girouard JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA APPEAL SIDE.
Appeal—Jurisdiction—Action for penalties—Plea of ultra vires of statute —Judgment on other grounds—R. S. C. c. 135 s. 29 (a).
To an action claiming $325 as penalties for an offence against the Pharmacy Act, the pleas were : 1. General denial. 2. That the Act was ultra vires. In the courts below the action was dismissed. for want of proof of the alleged offence.
Held, Strong C. J. and Gwynne J. dissenting, that an appeal would lie to the Supreme Court that if the court should hold that there was error in the judgment which held the offence not proved the respondent be etitled to a decision on his plea of ultra vires and the appeal would therefore lie under sec. 29 (a) of the Supreme Court Act.
MOTION to quash an appeal from a decision of the Court of Queen's Bench for Lower Canada (appeal side), affirming the judgment of the Superior Court by "which the action was dismissed.
The grounds for the motion to quash are stated in the above head-note.
Fitzpatrick Q.C. Solicitor General for Canada for the motion referred to City of Sherbrooke v. McManamy (); Longueuil Navigation Go. v. City of Montreal ().
Lajole, contra, cited Blachiford v. McBain ().
[Page 401]
The judgment of the majority of the court, TASCHEREAU, SEDGEWICK and GIROUAED was delivered by :
Taschereau J.—This case comes up on a motion to quash the appeal. The appellant sued the respondent under the " Quebec Pharmacy Act," 53 Vict. c. 46, for $325, amount of certain penalties for keeping open shops for retailing drugs without a license against the provisions of that Act. The respondent fyled a plea of general denial accompanied with a plea that the Act in question was ultra vires of the legislature of Quebec. In the Superior Court the action was dismissed for want of proof (). That judgment was con firmed upon the same grounds by the Court of Appeal, neither court having to pass on the question of ultra vires. The appellant now claims the right to appeal to this court from the judgment of the Court of Queen's Bench, on the ground that the matter in controversy involves the question of the validity of the said " Quebec Pharmacy Act."
I am of opinion that the appeal lies. The unconstitutionality of the Act having been pleaded by the respondent, if we should be of opinion that the appellant has proved its case and that there is error, on that point, in the judgment appealed from, the respondent would then have the right to argue the constitutional point before this court and ask that if the appellant's action be not dismissed for want of proof, as it was in the courts below, it be nevertheless dismissed on the ground that the statute upon which it is based was ultra vires of the Quebec legislature. Longueuil Navigation Co. v. City of Montreal (). On the part of the respondent the case of The City of Sherbrooke v. McManamy () has been cited as supporting his contention that the present case is not appealable. But
[Page 402]
there the case settled by the judge of the Court of Queen's Bench for the appeal to this court, as I have ascertained by the printed record itself was confined exclusively to the question whether the by-law there in question was authorized by the statute upon which it assumed to be based. King v. Pinsoneault (). Consequently, the constitutional question had been abandoned and could not under any circumstances be raised before this court. That case is therefore clearly distinguishable from the present one. It must be upon the appeal before this court that the constitutional question is in controversy upon the record to give us jurisdiction. The fact alone that it has been in controversy in the courts below cannot render the case appealable, if that controversy for some reason or another is at an end and cannot be re-opened before this court. In the case of City of Sherbrooke v. McManamy () it could not. Here it can. Bennett v. Missouri Pacific Railway Co. (); The Slate of Louisiana v. Tsni Ho (); The State, ex rel. Lamarque v. Burthe (); City of New Orleans v. Hill () The State of Louisiana v. Deffes ().
In Blachford v. McBain (), the judgment appealed from had dismissed the action upon the ground of want of jurisdiction without passing upon a plea which involved a controversy as to a title to real property, the only ground upon which the case could be brought to this court. This court held that the plaintiff had the right to appeal from that judgment because the controversy as to the title to real property, though not adjudicated upon in the courts below, still appeared upon the pleadings. The fact that we may
[Page 403]
have to pass upon a point which the courts below overlooked, or which they had not to pass upon because they disposed of the case on other grounds, cannot affect our jurisdiction.
If the constitutional point is raised by the plead ings it does not lie in the power of the provincial courts to take away the right of appeal to this court by refraining to adjudicate upon it.
The judgment of the dissenting judges, the Chief Justice and Gwynne J., was delivered by :
GWYNNE J.—The appellants sued the defendant
for the sum of $325 claimed to be due to the appellants for certain penalties alleged to have been incurred by the defendant in virtue of the provisions of an Act of the Legislature of the Province of Quebec, 53 Vict. c. 46, for retailing, as was alleged, drugs without a license for that purpose. To that action the respondent pleaded, 1st. a plea of general denial, and kindly, that the Act m question was ultra vires of the Provincial Legislature. The court rendered judgment dismissing the action upon the ground that, without any reference to the plea of ultra vires, the plaintiffs failed to prove the acts complained of as having been committed by the defendant in contravention of the Act, thus deciding the action upon the plea of general denial only. Having disposed of the action upon this ground it became wholly unnecessary for the court to adjudicate, and they therefore did not adjudicate, upon the question of ultra vires. Upon that question the judgment dismissing the plaintiff's action has no effect what ever. And the question now as it appears to me simply is : Have the appellants a right to appeal from the judgment which dismissed their action on the above grounds, for the purpose of obtaining the judgment of
[Page 404]
this court upon the question of ultra Vires which Was
not adjudicated, upon or necessary to be adjudicated upon for the purpose of supporting the judgment which was pronounced in the action, and by this means open an appeal in respect of the matters upon which the court has adjudicated, which matters per se are not appealable? In my opinion the appellants have no such right. From the judgment as rendered there is no appeal. Neither the Longueuil Navigation Co. v. City of Montreal (), nor City of Sherbrooke v. McManamy (), nor Blachford v. McBain (), has any application to the present case. In the two former cases the question of ultra vires was adjudicated upon in the court below, and such adjudication was the basis upon which the judgments rested, and in the latter the sole point was whether the facts of the cause of action being within the jurisdiction of the Circuit Court although the action was instituted in the Superior Court, was sufficient cause for depriving the appellant of a right of appeal which otherwise existed.
If this court should now adjudicate upon the question of ultra vires upon the record in the present case it would not be acting as a Court of Appeal from a judgment affecting that question, but as a court of first instance. In my opinion the appeal should be quashed with costs.
Motion refused with costs.
Solicitors for the appellant : Drouin, Pelletier & Belanger.
Solicitors for the respondent : Robitaille & Roy.
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