City of Montreal v. Cadieux, (1899) 29 SCR 616

Supreme Court of Canada

City of Montreal v. Cadieux (1899) 29 SCR 616

Date: 1899-06-05

THE CITY OF MONTREAL (DEFENDANT)

Appellant;

And

HECTOR G. CADIEUX (PLAINTIFF)

Respondent.

1899: May 22; 1899: June 5

PRESENT:—Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, APPEAL SIDE.

Evidence—Concurrent findings on questions of fact—Reversal on Appeal.

Although there may be concurrent findings on questions of fact in both courts below, the Supreme Court of Canada will, upon appeal interfere with their decision where it clearly appears that a gross injustice has been occasioned to the appellant, and there is evidence sufficient to justify findings to the contrary.

Taschereau J. dissented holding that as there had been concurrent findings in both courts below supported by the evidence; an appellate court ought not to interfere.

Appeal from, a judgment of the Court of Queen's Bench, for Lower Canada, appeal side, affirming the judgment of the Superior Court, District of Montreal, which maintained the plaintiff's action with costs.

A statement of the facts and questions at issue in this case as made by Mr. Justice Hall in the Court of Queen's Bench, is quoted in the judgment of His Lordship Mr. Justice Girouard.

Atwater Q.C. and Ethier Q.C. for the appellant.

Beaudin Q.C. for the respondent.

THE CHIEF JUSTICE concurred in the judgment of the majority of the court allowing the appeal with costs and dismissing the plaintiff's action with costs.

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TasChereau J. (dissenting.)—The appellant in this case asks to reverse, upon mere questions of fact, the concurrent findings of both the Superior Court and the Court of Appeal, in which the six judges who sat in the case were unanimous. There is nothing in the record which, in my opinion, would justify us in doing so.

Whatever personal opinion I may have of the respondent's claim I cannot forget, I need hardly say, that I am not a witness in the case, and that it is upon the evidence and only upon the evidence, as found in the record, that we have to determine the controversy between the parties. Now that evidence is with a single exception all one way, and the trial judge did not hesitate to maintain instanter the respondent's action. The Court of Appeal unanimously affirmed that decision.

That the respondent was employed by the appellant is admitted by the pleas to numbers 1, 2, 3, 4, 8 and 12, not by the day or by the month but, as he claims, at so much a lot and the only contestation raised by the appellant is as to the quantum merit and value of the respondent's services. Now the witness Bourque, a civil engineer, who was the secretary of the Expropriation Commissioners, swears that he notified the respondent of his appointment, that he requested him to proceed with his work, and only notified him to cease in November or December ; that he officially certified his claim as correct, and that leaving aside all tariffs and preceding relations between the parties in similar matters the claim of the respondent was a just and reasonable one and did not exceed the value of his services. James Nelson, an architect, who had a personal knowledge of the respondent's work, says:

I consider the plaintiff's account is a fair one. * * * I reason on the basis of the value of his services. Mr. Cadieux is a very compatent

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man indeed. * * * (By the Court.)—Then you think the amount charged in his account is a fair and reasonable one?—A. I think so, your honour.

James Rafter, a real estate agent, who also had a personal knowledge of the respondent's services, and of the nature of his claim, being asked:

Now will you tell us what is your opinion of the value of the plaintiff's services?—A. Well, I know that I would not like to go through the sanie work again for the same pay.

And on cross-examination, he says that the respondent was working for the city for the whole time from June to December, and that he considers his account a fair one. “For myself," he adds again, “I would not do the same work for the same pay."

Simeon Lesage, an architect and civil engineer, testifies in the same sense. The respondent himself, examined as a witness, testifies to the correctness of his claim as to the work done, the number of the lots and as to the valué of his services, and Isaïe Pré fontaine corroborates him in all particulars.

Against all that evidence the appellant invokes the evidence of Robb, the city treasurer, who simply swears, on cross-examination, that he adheres to the opinion he expressed in a report of a special committee of which he formed part filed in the case as exhibit 65 at enquête. Now, on reference to that document, it seems clear that all that was referred to that special committee and all that they could deal with, were the claims of the proprietor's witnesses, not the claims, as the respondent's is, of the city's witnesses. But assuming that Robb, with no personal knowledge whatever of the details of the respondent's services, has sworn that the respondent has been fully paid, and even overpaid therefore by the amount he has already received, I do not see how his evidence, entirely unsupported as it stands in the record, could preponderate

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against the evidence so clear and conclusive of the other six witnesses, each and every one of them heard before the trial judge, believed by him and by five judges in appeal. They have, it is true, claims of the same nature against the city, but that by itself alone is under the circumstances, insufficient to justify us in reversing the judgment appealed from. I would hesitate here to stigmatise as incredible and unworthy of belief all of these witnesses. And it seems to me that is what the appellant asks us to do upon this appeal. We cannot do so, it seems to me, without setting at naught a constant jurisprudence of the House of Lords and of the Privy Council, strictly adhered to by us heretofore, as to appeals upon questions of fact from the concurrent findings of two courts Smith v. St. Lawrence Tow Boat Co. ([1]) " Allen v. Quebec Warehouse Co. ([2]); McIntyre v. McGavin ([3]); Colonial Securityes v. Massery ([4]).

GWYNEE J.—Plaintiff could only recover on a quantum meruit, and although he claims for service of several mouths yet he had not offered any evidence whatever to show how much of such period was occupied in the service claimed for. In fact his only evidence is that upon a former occasion for like services he charged in the same manner and was paid; but we must bear in mind that the corporation are the ratepayers whose funds are sought to be made liable and that if their servants on a former occasion, or upon several former occasions, submitted to extortion that is no reason for the continuance of the practice being sanctioned by the court.

King J.—concurred with the majority of the court.

[Page 620]

GIROUARD J.—I entirely concur in the statement of facts as presented by Mr. Justice Hall, speaking apparently for the whole court, but I cannot accept his conclusions. The learned judge says:

The respondent and two others, with Mr. Nelson, architect, were appointed by the City Council of Montreal, on the 21st June, 1895, to act as experts for the tenants under the expropriation proceedings of 1894. Three other persons were appointed by the same resolution to act as experts for the proprietors under the same expropriations. Public notice was given that the commissioners for settling the terms of expropriation would not be appointed until 4th September. In the months of July and August the subject of discontinuing all expropriations was discussed in the City Council, and in the latter month a resolution was adopted that the Superior Court be asked to grant a month's delay in all the cases, which application was granted, and on the 19th of that month a formal judgment was pronounced, terminating all the procedure in the matters of expropriations. On the 21st December of that year the Legislature of the Province of Quebec confirmed and legalized this termination of the expropriation proceedings which had been commence in this city.

In the meantime the persons who had thus been appointed to act as experts in case the expropriations were proceeded with, without any instructions from the city officials, and without the knowledge, apparently, of those of the officials who would naturally have been called upon to superintend such work, but with a diligence which could not have been too highly applauded had it been exercised under other circumstances were quietly proceeding with the examination and valuation of all the properties which the expropriation proceedings of 1894 had designated as the next in order for the widening of streets in case the city should continue that work. Engrossed apparently in the discharge of these assumed duties, they appear neither to have heard in the public deliberations in the council nor to have read in the reports in the public press, the determination of the City Council for reasons of economy, to seek relief from the burden of these expropriations. The Act of the legislature in December appears to have been the first information which arrested their attention They ceased then their labonrs, and presented to the council their bills for the work thus performed by them since the preceding 21st June about five months, amounting to the sum of $7,605.60 each for the three unprofessional experts, and $9,278 for the architect—a little over $32000 for the tenants' experts alone—for work for which the city had no use which it never required and has never used The bills were

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made out upon the basis of $20 for each 25 feet frontage of imp proved. properties, and of $8 per 25 feet frontage of vacant properties, which it appears was the scale upon which the experts had been paid in the previous expropriations, Some opposition was made in the council to the payment of these bills, but principally upon the ground that a new tariff had been adopted of $20 per improved and $8 per vacant lot, irrespective of extent of frontage : but upon investigation it did not appear that this modification of the tariff had been communicated to those to whom it was intended to apply—and the experts therefore claimed payment upon the basis of their previous settlements.

A committee of the city officials was appointed to examine and report upon the matter, which they did to this effect, that one-half the amounts charged would be ample compensation for the work done under the existing tariff. By authority of the finance committee of the city, payments were made to these experts from time to time, amounting in the aggregate to one-half the amount of their several claims.

Payment of the balance being refused, the plaintiff took the present action for the balance of his account, $3,805. The city contested the action upon the ground that the plaintiff had never been employed or set to work to make the valuations in question and moreover, even if he had been so employed the value of his services did not exceed the tariff regulation therefor, to wit $20 per improved and $8 per vacant lot—being one-half the amount of the account sued upon.

The plaintiff examined as witnesses, himself his colleagues the secretary of the city expropriation bureau and the city treasurer The latter testified only to the payments made on account by order of the finance committee. All the others supported plaintiff's claim to its fullest extent, whether based on the tariff recognised for previous expropriations, or even for the actual value of the service rendered. The city examined no witnesses in defence.

It is doubtful if, independently of payment on account, the plaintiff had any legal right of action against the city for pretended services volunteered by him merely upon a resolution of the council appointing him, and without any instruction from a responsible city official as to the commencement, prosecution or termination of his work. But, by a payment of 50 per cent upon his claim, the city has deprived itself of this ground of its defence, and was left only with what remained, viz., a contestation over the real value of the services actually rendered. When it is considered that plaintiff's bill is upon the basis of $18,000 per annum for the services of a carpenter expert,

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whose regular business, it is proved, was not much interfered with by the attention he was obliged to give in examining the properties designated for expropriation, and that three others were engaged to perform the same service it would seem that a reasonable opportunity existed of sustaining defendant's plea in this respect. The city, however appears to have considered the effort a hopeless one, or was per-haps convinced that this estimate of the value of the plaintiff's s services was after all not exaggerated. At all events, they examined no witnesses in support of their plea, and hence the trial judge, with nothing before him but plaintiff's own evidence, had no alternative but to maintain plaintiff's action to its fullest extent, without the formality even of taking it en délibéré, and we equally, for the same reason have none but to dismiss the city's appeal.

I do not agree that there is no evidence adduced on behalf of the city. When Treasurer Robb is cross-examined Mr. Archambault Q.C. of counsel for the defendant,

declares his intention of examining witness as his own witness to save recalling him.

The witness is asked:

Q. Will you pléase look at this exhibit, Mr. Robb, now shown you, marked plaintiff's Exhibit P. 5, and state whether this purports to be signed by you at the end of the report ?—A. Yes.

Q. That's your signature there?—A. Yes, I have no doubt that it is an exact copy of the report which has been prepared by Mr. Ethier and myself.

Q. And you are still of the same opinion as you were when you gave that?—A. I am still of the same opinion as I was then.

Exhibit P. 5 is the report of the city officials to which Mr. Justice Hall refers in which the majority of them, MM. Ethier Q.C, Defence and Robb (Bourque, dissenting), considers that half of the amount charged is ample compensation for the work done and Mr. Robb, under oath, persists in his report. It is true that there is some evidence that the value of the respondent's services was as claimed by him. That evidence was given by interested parties, his colleagues, who have similar claims still pending—

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and also by the secretary of the city expropriation commissioners, Bourque, who, for reasons not explained, dissented, from the three other city officials, Ethier, Defence and Robb It is based upon the fact that like services were previously paid at the same rate; but if the corporation or their servants, on a former occasion, or upon several previous occasions, submitted to what appears to have been most exorbitant claims, that is no reason for the continuance of the practice in the present instance where it is resisted. The evidence of Mr. Robb and his report concurred in by MM. Ethier and Defense are more satisfactory ; they establish clearly, to my mind, that a gross injustice has been done to the appellants, and although this appeal only involves a question of facts decided by two courts, we have no hesitation in arriving at the conclusion that the respondent has been well paid and that his action for the other half of his account must be dismissed We are therefore of opinion that the appeal must be allowed with costs.

Appeal allowed with costs.

Solicitors for the appellant: Ethier & Archambault.

Solicitors for the respondent: Beaudin, Cardinal, Loranger & St. Germain.