Supreme Court of Canada
The St. John Lumber Company v. Roy, (1916) 53 S.C.R.
310
Date: 1916-05-16
The Saint John
Lumber Company (Defendants) Appellants;
and
William Roy (Plaintiff)
Respondent.
1916: May 16.
Present: Sir Charles Fitzpatrick C.J. and
Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW
BRUNSWICK.
Appeal—Final, judgment—Substantive right—"Supreme
Court Act," s. 2 (e)—3 & 4 Geo. V., c. 51—Procedure—Service out of
jurisdiction—Costs.
No appeal lies to the Supreme Court of Canada
from a judgment of the Supreme Court of New Brunswick affirming the decision of
a judge who refused to set aside his order for service of a writ out of the
jurisdiction. Idington J. dissenting.
Per. Davies
and Anglin JJ.—The judgment did not dispose of any substantive right * * * in
controversy in the action and therefore was not a final judgment as that term
is defined in 3 & 4 Geo. V., ch. 51.
The appeal was quashed but respondent was
only given the general costs of appeal to the date of the motion to quash as he
had not conformed to the requirements of Supreme Court Rules 4 and 5.
APPEAL from a judgment of the Supreme Court
of New Brunswick affirming the refusal of a judge to set aside his order for
service of the writ out of the jurisdiction.
The respondent moved to quash on the ground
that the appeal was not from a final judgment. He claimed; also, that if the
appeal would lie it only related to a matter of procedure and should not be
entertained.
M. L. Hayward on behalf of the respondent
moved to quash referring to Martin v. Moore;
Reg. v. Toland;
Pritchard v. Norton
[Page 311]
J. T. F. Winslow for the appellants
contra cited Bray v. Ford
The Chief
Justice.—This is an appeal from a judgment of the
Supreme Court of New Brunswick which affirmed an order of a Judge in Chambers
who refused to set aside an earlier order made by himself granting leave to
serve a writ of summons out of the jurisdiction.
It seems a point of practice and there is no
final judgment. The case of Martin v. Moore, seems in point. In the
later case of Rowland & Co. v. Dominion Bank, the question of
jurisdiction of the Supreme Court does not appear to have been considered.
It seems to me the only question here is whether
the amendment of the "Supreme Court Act" 1913 defining a final
judgment would cover a case such as this. The amount involved is only $48.
With some hesitation I have come to the
conclusion that no appeal lies.
Davies J.—I concur in the opinion of Mr. Justice Anglin.
Idington J. (dissenting)—The respondent's motion to quash this appeal should
turn upon a consideration first, of the question whether or not the case is
covered by the general refusal of this court in mere matters of procedure to
entertain an appeal dependent on procedure as was held under the construction
heretofore put upon the "Supreme Court Act" defining the words
"final judgment," and secondly, the substitutionary
[Page 312]
amendment of that Act in 1913 by the first
section of 3 & 4 Geo. V., ch. 51, quoted hereinafter.
The appeal involves the question of the
jurisdiction of a New Brunswick court to try a case brought there against
appellant, a foreign corporation. The appellant contends there is none because
by the law of New Brunswick there is no power given in the circumstances to
serve the appellant as such. We are not concerned in this motion either with
the merits of the case, which is for a trifling amount, or with the law
relative to the question of jurisdiction.
It so happens that the case may yet be tried on
its merits as the judgment appealed from stands. But in principle the converse
case might arise any day, of a suitor prosecuting his rights being denied
justice by an order refusing to exercise the jurisdiction of the court and he
suffering in such a case would, if the holding of the majority herein is
maintained, be driven to a foreign court to prosecute his remedy.
It is alleged that is a mere question of
procedure.
Even so this court has affirmed in many cases
its jurisdiction to hear appeals involving only questions of procedure.
Of these cases, there is the case of Lambe v.
Armstrong,
in which the late Mr. Justice Girouard, speaking for the court, succinctly
stated the law as follows:—
This appeal raises only a question of
procedure in the court below, and consequently the respondent contended that we
should not interfere with the judgment appealed from. But questions of practice
cannot be ignored by this court when their decision involves the substantial
rights of the litigants, or sanctions a grave injustice. We believe that this
is one of those cases.
[Page 313]
That case involved a question of procedure in
regard to a sheriff's sale and this court reversed a mere practice order of the
Quebec Court of Queen's Bench.
This court in the case of Eastern Townships
Bank v. Swan,
followed that decision in a case involving a mere question of practice as
to the making of an ex parte order fixing peremptorily a date for the
adduction of evidence, and hearing, and again reversed the same Court of
Queen's Bench.
In the case of Price v. Fraser, this court again
entertained an appeal where a mere question of procedure was involved and again
reversed the same Court of Queen's Bench which had held that the Court of
Review had no jurisdiction to make the order it did respecting the mere inscription
of a case.
That case raised in principle exactly that which
is raised herein. The facts upon which the question of jurisdiction turned, of
course, were not the same as here, but simply raised the question of the
jurisdiction of the court. And the neat point as here was, whether or not the
Court of Queen's Bench, in holding the court below had no jurisdiction, was
right or wrong.
In Finnie v. City of Montreal, this court affirmed
its jurisdiction to review and reverse the court below on a mere question of
practice. I pointed out in the argument of this motion that the law is as laid
down in these cases without referring to authority, for the point has been
taken so many times and decided that it was no more a question of this court's
jurisdiction that was involved in the cases of mere procedure but one of
expediency generally decided by regard to
[Page 314]
whether or not there was involved a question of
the denial of a right sometimes tested by an appeal to the principles of
natural justice.
I know of nothing more grave in the
administration of justice than a decision of whether or not a court presuming
to try a case had jurisdiction to do so.
The appellate court haying such power of
determination relative to the jurisdiction of an inferior court, which refuses
to assert that power, I most respectfully submit, fails to discharge its duty.
In those cases involving the jurisdiction over
foreigners and presuming to assert that which it has not, the question becomes
more grave and delicate than when only our own citizens are concerned.
In the case of Arpin v. Merchants Bank
of Canada,
the late Chief Justice Strong laid down the law in refusing a new practice
appeal, as follows:—
We have always said that on points of
practice like this we will follow the course of the Privy Council, as laid down
in the Mayor of Montreal v. Brown and Springle, and we have already
acted on that principle in the cases of Gladwin v. Cummings, Dawson v. Union
Bank
and Scammell v. James.
These cases illustrate his meaning and the
dictum relied upon in Brown's Case is to be found at page 184 of the
report wherein it appears.
I think therefore that the motion should be
refused and the case heard.
Then let us pass that ground and coming, to that
involved in the amendment by section 1 of ch. 51 of 3 & 4 Geo. V.
which is as follows:—
[Page 315]
Paragraph (e) of section 2 of the
"Supreme Court Act," chapter 139 of the Revised Statutes, 1906, is
repealed and the following is substituted therefor:—
(e) save as regards appeals from the
Province of Quebec, "final judgment" means any judgment, rule, order
or decision which determines in whole or in part any substantive right of any
of the parties in controversy in any action, suit, cause, matter or other
judicial proceeding, and, as regards appeals from the Province of Quebec,
"final judgment" means, as heretofore, any judgment, rule, order or
decision whereby the action, suit, cause, matter or other judicial proceeding
is finally determined and concluded.
A long line of decisions by our predecessors in
this court refusing to hear appeals from judgments and orders, sometimes of an
interlocutory character, and at other times determining some of the rights of
litigants, seemed to bind us, now sitting in this court, and several decisions
were given which seemed within meaning of the "Supreme Court Act," so
interpreted, to prevent appeals from what in effect were final judgments though
not supposed to be such as intended to come here for review.
This amendment I have just quoted was designed
to furnish a remedy therefor.
It was stated by counsel supporting this motion
that the Honourable the Minister of Justice had in effect stated in Parliament
that the amendment emanated from this court.
I may be permitted to disclaim any
responsibility for it. I declined to take part therein for I conceived another
method was desirable and the amendment as framed not unlikely to be productive
of undesirable results.
I am free, therefore, to interpret and construe
it as I should any other new statute enacted to remedy what was considered an
obvious evil.
Surely if ever there was a case falling within
the scope of legislation such as this, when we have regard
[Page 316]
to the numerous decisions which gave rise to a
need for reform, this case presents it, if the jurisprudence of the court had
not already settled the question as against the view entertained by my brother
judges in proposing to quash this appeal.
If the jurisdiction to try the case brought
against a man who disputes that jurisdiction, does not involve the
determination of a substantive right of any of the parties to the controversy,
I fail to understand what would.
As I have already shewn this court has held in
the cases I have cited there was perhaps no need for the amendment to give the
right of appeal.
Or are we to be told that there was need for an
amendment to take the right of appeal away in cases turning upon what may be
called procedure though involving substantial questions of justice as in those
I have already cited? And I have by no means exhausted the list of cases
wherein the like relief has been got here. If the interpretation counsel
supporting the motion tried to put upon the words is correct, such would be the
effect of the amendment; it would give relief in a few cases and deprive others
of the right of relief they have heretofore had.
I am not concerned on which ground the appellant
goes. Whether on the jurisprudence of this court or the amendment, clearly the
appellant is entitled to have its appeal heard.
I therefore think the motion should be
dismissed.
Anglin J.—This is a purely common law action. The subject of appeal must,
therefore, be a "final judgment." That an order dismissing a motion
to set aside the service of a writ of summons out of the jurisdiction is a
final judgment apart from the statutory
[Page 317]
definition of that term is scarcely arguable.
(See cases collected in Snow's Annual Practice, 1916, pp. 1108-9 and 1121-3.)
That such an order was not a final judgment within the definition of that term
in the "Supreme Court Act" prior to 1913 is settled jurisprudence. Martin
v. Moore.
The appellant maintains that the case falls within the amendment of 1913.
In my opinion the right to serve a writ of
summons out of the jurisdiction is not
a substantive right of any of the parties
in controversy in any action,
within the meaning of section 2 (e) of
the "Supreme Court Act," as enacted by 3 & 4 Geo. V., ch. 51,
sec. 1. It is not "a substantive right" at all; and it is not "a
right in controversy in the action" within the meaning of that phrase as
used in section 2 (e).
The question disposed of by the judgment before
us is one of remedy rather than of substantive right. The obligation of the
contract, which is the substantive right in controversy in the action, Reg. v.
Toland,
is not affected by the giving or withholding of this additional remedy for its
enforcement. Cooley's Constitutional Limitations, 5 ed., pp. 346-9. I say
additional, because the existence of a remedy in the forum of the domicile of
the defendant is unquestioned. No doubt the plaintiff may gain a substantial
advantage and the defendant suffer a corresponding detriment as a result of the
judgment in appeal—but no more so than may result in many cases where some
right of discovery or other purely incidental right of procedure has been
accorded the one or denied the other. Nobody would dream of maintaining that a
judgment or order dealing with such a matter of procedure had
[Page 318]
determined a substantive right in controversy in
the action. To do so would involve holding that every interlocutory order of
the highest provincial court which materially affects the remedy or prospect of
recovery is appealable to this court as a final judgment. No line of exclusion
could be drawn. It can scarcely be necessary to state that Parliament did not
intend to do anything so irrational as to limit the right of appeal to a
"final judgment" and then, by a definition of that term, to render
the limitation thus imposed useless and absurd. While
a court of law has nothing to do with the
reasonableness or unreasonableness of a provision, except in so far as it may
help them in interpreting what the legislature has said, (Cooke v. Chas.
A. Vogeler Co.),
you are not to construe the Act of Parliament so as to reduce it to rank
absurdity, * * * You must give it such meaning as will carry out its objects. The
"Duke of Buccleuch".
The language should not unnecessarily be applied
to something not within the mischief contemplated by the Act if to do so will
produce manifest absurdity or inconvenience. Yates v. The Queen. In my
humble-opinion the language used in the definition of "final
judgment" given its literal meaning does not lead to any such absurdity.
On the contrary, it seems apt to preclude precisely the contention which the
appellants present in this case. The right determined must be substantive. The
judgment must affect the existence or the enforceability of the obligation sued
upon—the right in controversy in the action. That, I take it, means that a
judgment appealable to this court as a "final judgment" must at least
in part dispose of the merits of the action. The amendment of 1913 leaves
untouched the considerations which led
[Page 319]
this court to decline jurisdiction in Martin v.
Moore.
In fact it seems designed to make it clear that they are still to prevail
This amendment was enacted to meet the
difficulties exemplified and emphasized by the then recent decisions in Union
Bank of Halifax v. Dickie;
Wenger v. Lamont;
Clarke v. Goodall;
Crown Life Ins. Co. v. Skinner;
and Hesseltine v. Nelles.
In construing it, it is our duty
to look to the purpose of the enactment,
the mischief to be prevented, and the remedy which the legislature intended to
apply.
The Queen v. Allen; to suppress the
mischief and advance the remedy; Heydon's Case, Peek v. North
Staffordshire Railway Co.;
to find out what the meaning of the
legislature is; and to attach a rational and beneficial meaning, if possible,
rather than an irrational and injurious meaning.
Mersey Steel and Iron Co. v. Naylor, Benzon & Co.,
in 1882. The mischief which the amendment of 1913 was designed to remedy was
the fact that theretofore, because no judgment was considered final for
purposes of appeal to this court unless it not only disposed of the rights of
the parties in controversy in the action but also concluded the action itself,
in a common law action, subject to a few special exceptions, a judgment which
conclusively determined that the plaintiff was entitled to the relief he sought
was not appealable unless it also finally dealt with and disposed of the
quantum of the recovery to which he was entitled. That was
[Page 320]
the result of the definition of "final
judgment" as enacted by 42 Vict., ch. 39, Sec. 9—a provision not
unreasonable when it was made, but which afterwards became productive of
consequences not anticipated owing to the introduction into common law actions
of methods of procedure formerly peculiar to courts of equity. Hesseltine v.
Nelles.
It was certainly not intended by the amendment of 1913 to make appealable
to this court any judgment purely interlocutory in character. The purpose of
confining the right of appeal to judgments determining substantive rights of
the parties in controversy in the action was to exclude judgments or orders
dealing with matters of remedy and procedure, only. The order maintaining the
service of the writ is such an order. It does not determine any substantive
right in controversy in the action. I am for these reasons of the opinion that
the judgment of the Supreme Court of New Brunswick from which the defendant
seeks to appeal is not a final judgment appealable to this court and that this
appeal should be quashed.
Brodeur J.—I am in favour of granting the motion to quash because it is not
a final judgment.
The appellant relied on the 1913 amendment but I
am of opinion that the order from which he is appealing does not dispose of a
"substantive right" of any of the parties in controversy in
the action.
On a subsequent day His Lordship the Chief
Justice delivered the following opinion as to the costs of the appeal.
[Page 321]
The Chief
Justice.—This appeal has been quashed for want of
jurisdiction. The respondent asks not only for the costs of the motion but also
for the general costs of the appeal on the ground that he moved as soon as he
could and that by consent of counsel the motion, which was returnable on the
first day of the May session, stood over until the appeal came on to be heard
on the merits.
Rule 4 of the Supreme Court Rules provides for
the respondent moving to quash within fifteen days after the security has been
approved. Rule 5 provides that all proceedings in the appeal shall be stayed
after service of the motion to quash until that motion has been disposed of or
unless a judge of the Supreme Court shall otherwise order.
These two rules were adopted when the rules were
revised in 1907. Previous to that time it frequently happened that appeals were
quashed for want of jurisdiction when they came on to be heard on the merits
and when the appellant had expended a very large sum of money in connection
with the printing of his appeal book. The rules were devised to save
unnecessary expense of this kind.
In the present instance it would appear that the
solicitors took it upon themselves to ignore the provisions of Rule 5 and
proceeded with the printing of the case and factums before the time had expired
within which the appellant could move to affirm jurisdiction and the appeal was
inscribed for hearing at the present session. This was entirely irregular and
if permitted, would nullify the entire object for which the said rules were
passed.
Under these circumstances the respondent is
certainly not entitled to obtain anything more than the
[Page 322]
ordinary costs of the motion to quash and what
if the rules had been observed would have been the general costs of the appeal
up to the date when the motion to quash was served.
Appeal quashed with costs.
Solicitors for the appellants: Gregory & Winslow.
Solicitor for the respondent: M. L. Hayward.
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