Prevost v. Bedard, (1915) 51 SCR 629

Supreme Court of Canada

Prevost v. Bedard, (1915) 51 S.C.R. 629

Date: 1915-05-18

Prevost v. Bedard.

1915: May 10; 1915: May 18.

Present: Sir Charles Fitzpatrick C.J., and Idington, Duff, Anglin and Brodeur JJ.

Practice—Recalling judgment—Defect—Correction of omission— Amendment of pleadings—Jurisdiction—Costs—Settlement of minutes.

Where by an accidental slip or oversight the formal judgment on an appeal failed to express the clear intention of the court that certain amendments in the pleadings should be allowed for the purpose of effective relief to the successful party the Supreme Court of Canada, on application subsequent to the transmission of the formal judgment to the court below, ordered that its judgment should be varied by inserting therein a direction that the judgment appealed from and the plaintiff’s declaration should be varied so as to correct the inadequate description of certain lands therein mentioned. Rattray v. Young (Cout. Dig. 1123), and Penrose v. Knight (Cout. Dig. 1122), referred to Idington and Duff JJ. dissented from this order.

Per Duff J.—The judgment that the court in fact pronounced, and intended to pronounce, was simply that the appeal should be dismissed; such judgment does not involve any consequences whatever in respect of the amendment of the judgment or pleadings in the court of original jurisdiction. The power of the court to amend a judgment after it has become a record of the court is specially limited to making the record conform to the judgment pronounced or intended to be pronounced; it does not authorize the recalling of the judgment in order to deal with a collateral matter not actually or constructively involved in the court’s decision. The proper course was to apply to the court of original jurisdiction for an amendment of the record of that court.

The application was allowed only upon payment of costs thereof by the party moving inasmuch as it had been his duty to have seen that the provision was inserted at the time of the settlement of the minutes of judgment.

APPLICATION, by motion on behalf of the respondent, for an order varying the formal judgment

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transmitted to the court below, upon the dismissal of the appeal in this cause[1], by correcting an omission therein.

The formal judgment issued and certified to the court below, upon the dismissal of the appeal to the Supreme Court of Canada failed to provide for a formal amendment of the plaintiff’s declaration (which had been asked for) by supplying a reference to the cadastral number of the lot of land in respect of which the action had been brought, according to the official plan of subdivision of the lands of which it formed part. The formal judgment had been regularly transmitted to the proper officer of the court appealed from before the omission was discovered and the object of the application was to have this defect cured.

St. Germain K.C. supported the motion.

Lamarche K.C. contra.

The Chief Justice agreed in the judgment allowing the motion.

Idington J. dissented from the judgment allowing the motion.

Duff J. (dissenting).—This was an appeal from a judgment of the Court of Review, in Quebec dismissing an appeal from a judgment of the Superior Court in an action brought by the respondent for a declaration that he was the owner of a certain property which his auteur of certain land had professed by notarial

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deed to convey to the Phœnix Land Co. The appellant is curator of that company which is now in process of winding up. The appeal was dismissed and the judgment of the court dismissing the appeal was settled and entered and certified by the registrar in the usual way to the proper officer of the court of original jurisdiction.

It now appears that the lands which were the subject matter of the action were inadequately described in the respondent’s declaration and that in consequence the respondent cannot obtain effective registration of his title; and an application is made for an order amending the judgment of this court by directing an amendment of the declaration and the judgment of the Superior Court in order to cure this defect.

I should have thought that in the circumstances the respondents would have pursued the course of applying to the Superior Court for an order amending its judgment. The status of that judgment as a judgment of the Superior Court could not be and was not altered or affected by the appeal to this court which was simply dismissed. And I should have supposed it not open to doubt that the Superior Court of the Province of Quebec must possess authority to correct errors in the record of one of its judgments to whatever extent it might be necessary to do so for the purpose of making the record conform to the judgment which the court obviously intended to pronounce.

This court has power, under section 54 of the “Supreme Court Act,” to make all such amendments in the pleadings as may be necessary for the purpose

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of determining the question in controversy between the parties, but the power conferred by section 54 can only be exercised, by the express terms of the section itself, during the pendency of the appeal; and that section alone is obviously not sufficient to justify the order asked for at this time after the appeal has been brought to an end by the simple dismissal of it.

In England the courts, including the House of Lords and the Judicial Committee of the Privy Council, at common law possess authority, to quote the language of Romer J., in Ainsworth v. Wilding[2], to make the amendment:—

(1) Where there has been an accidental slip in the judgment as drawn up in which case the court has power to rectify it under Order XXVIII., Rule 11; (2) when the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.

Romer J. is here specifically dealing with the power of the High Court of Justice and he naturally, for the first case, referred to the specific rule—the “slip order,” as it is known. But the decision of the Judicial Committee in Milson v. Carter[3], is authority for the proposition that this power is one of the inherent powers of a court of record notwithstanding the absence of any specific rule; that the rule is simply declaratory of the common law. At page 640, Lord Hobhouse says their Lordships do not doubt that the court has power at any time to correct “an error” in a degree or order arising from a “slip or accidental omission” whether there is or is not a general order to that effect.

I have come to the conclusion that the power does not extend to the circumstances of this case.

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The application for amendment was in point of fact mentioned during the argument. But in fact it cannot be said that when the court gave judgment it had any intention in relation to this application or that the amendment was in any way necessary to give effect to the judgment of the court. It was a collateral matter which a court might or might not have thought it right to deal with.

It is desirable I think to add a word or two as to the limits of this jurisdiction because my impression is that some misapprehension prevails upon the subject.

The whole matter is summed up in the following sentence taken from the judgment of Lord Watson in Hatton v. Harris[4]:—

When an error of that kind has been committed, it is always within the competency of the court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce.

That is the limit of the jurisdiction of this court in such cases. Once the judgment has been passed and entered once it has become a record the appeal transit in rem judicatam; and the court has no power to re-open it for the purpose of passing upon points which were not actually or constructively involved in the judgment pronounced or intended to be pronounced.

There is not the least reason for relaxing this rule, which is no mere rule of practice, but a rule of high policy for the protection of litigants; there must some time be an end of litigation. The practice of this court is liberal to a fault in hearing parties with respect

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not only to the frame of the judgment, but with respect to the topics not dealt with in the judgment up to the time when the judgment has been passed and entered; and it would be a distinct violation of the rule to grant the present application.

Anglin J.—The respondent moves to amend the judgment of this court as issued on the ground that it fails to provide for a formal amendment of the declaration and of the judgment based upon it pronounced by the Superior Court. By an accidental slip or oversight the declaration omitted a reference to the cadastral number of the subdivided official lot which covered the property in respect of which the plaintiff brought his petitory action. The judgment of the Superior Court in this respect followed the declaration and in this court an appeal from the judgment of the Court of Review affirming it was dismissed. At the hearing of the appeal counsel for the respondent directed attention to the mistake and asked that the judgment of this court should provide for the necessary amendment. That the amendment would be made if the respondent should be successful would appear to have been taken as a matter of course, and that probably accounts for the fact that in disposing of the case on the merits the judges omitted to mention the amendment. The matter also appears to have escaped the attention of the solicitors in issuing the certificate of judgment and the omission was not discovered until after the formal certificate had been transmitted to the provincial courts.

In Rattray v. Young[5], this court appears to have

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held that it has jurisdiction after its formal judgment has been issued to recall it for the purpose of amending errors or omissions in it due to oversight or mistake—the same power which is exercised by the Supreme Court of Judicature in England under O. 28, R. 11. Similar jurisdiction was exercised in Penrose v. Knight[6].

In E. v. E.[7], the President of the Probate Division directed the amendment of the judgment of that court by providing for the date from which certain payments ordered were to run. This date had been inadvertently omitted in delivering the opinion of the court. Exercising similar jurisdiction the Master of the Rolls in Ireland, where the plaintiff through an error of account in the notice of motion had obtained a judgment for less than he was entitled to, directed the necessary amendment to be made. McCaughey v. Stringer[8]. Of course this jurisdiction is distinct from the inherent power which the court possesses to correct its formal judgment when it finds that as drawn up it does not correctly state what the court actually directed and intended. There can be no doubt that the omission to provide in the judgment for the amendment was due to an accidental slip or oversight. Had the request and necessity for it been present to the minds of the judges when delivering judgment it would certainly have been directed. In delivering its judgment dismissing the appeal, the purpose of the court clearly was that the respondent should have an effective judgment for the relief which he sought. That intention might be defeated if

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the court were powerless to grant the amendment now asked. Under these circumstances I am of the opinion that the motion should be granted, but only upon payment of the costs of it by the respondent as he should have seen that the amendment was provided for in the judgment of the court as issued, and should, if necessary, have spoken to the minutes of judgment for that purpose. Re Swire[9].

Brodeur J. concurred with Anglin J.

Application granted.