International Metal Industries Ltd. v. City of Toronto, [1939] SCR 271

Supreme Court of Canada

International Metal Industries Ltd. v. City of Toronto, [1939] S.C.R. 271

Date: 1939-03-21

International Metal Industries Ltd appellant;

and

The Corporation of The City of Toronto Respondent.

1939: February 27; 1939: March 21.

Present: Duff C.J. and Rinfret, Cannon, Kerwin and Hudson JJ.

ON APPEAL FROM HIS HONOUR, JUDGE DENTON, A JUDGE OF THE COUNTY COURT OF THE COUNTY OF YORK, PROVINCE OF ONTARIO

Appeal—Jurisdiction—“Highest court of final resort having jurisdiction in the province”—Supreme Court Act, R.S.C., 1927, c. 35, s. 37 (as amended by I Geo. VI, c. 42).

In s. 37 (3) of the Supreme Court Act (R.S.C., 1927, c. 35, as amended by I Geo. VI, c. 42), the words “highest court of final resort having jurisdiction in the province “(from which court only, save as provided, an appeal lies to the Supreme Court of Canada) mean the highest court of appeal having jurisdiction generally in the province, and do not refer to the highest court in the province to which appeal can be taken in the particular case sought to be appealed to the Supreme Court of Canada.

An appeal to the Supreme Court of Canada from the decision of a County Court Judge in Ontario dismissing an appeal from the decision of a court of revision affirming an assessment made under a city by-law passed under the provisions of s. 120a (enacted in 1934, c. 1) of The Assessment Act, R.S.O., 1927, c. 238, was quashed for want of jurisdiction.

MOTION on behalf of the Corporation of the City of Toronto, respondent, for an order quashing the appeal herein from the decision of His Honour. Judge Denton, a Judge of the County Court of the County of York, dismissing the appellant’s appeal from the decision of the Court of Revision for the City of Toronto affirming an assessment of appellant in respect of income for the year 1936, made under a by-law of the city passed in 1934 under the provisions of s. 120a (enacted in 1934, c. 1) of The Assessment Act, R.S.O., 1927, c. 238. Corresponding provisions are now in R.S.O., 1937, c. 272, s. 123.

The first two grounds of the motion were: (1) that the Assessment Act, R.S.O., 1937, c. 272, s. 123, subs. 8, provides that no appeal shall lie from the decision of the County Court Judge; (2) that the judgment of His Honour Judge Denton is not a judgment of the highest court of

[Page 272]

final resort established in the province of Ontario within the meaning of the Supreme Court Act, R.S.C., 1927, c. 35, ss. 35 to 41, as amended by 1 Geo. VI, c. 42.

J. P. Kent K.C. for the motion.

H. F. Parkinson K.C. and H. C. F. Mockridge contra.

The judgment of The Chief Justice and Rinfret, Kerwin and Hudson JJ. was delivered by

The Chief Justice—In Farquharson v. Imperial Oil Co.[1], Strong C.J. said:

In the case of Danjou v. Marquis[2], which was an appeal to this court from a judgment of the Court of Review in the Province of Quebec, instituted before the original Act had been amended by the addition of the provision now contained in subsection 3 of section 26, it was held that the words “highest court of last resort” were to be construed as meaning the highest Court of Appeal having jurisdiction generally in the province, and not as referring to the highest Court of Appeal in the particular case sought to be appealed; thus excluding jurisdiction in a case in which the Court of Review was by provincial legislation made the court of last resort in the province.

The phrase “highest court of last resort” is not distinguishable from the phrase “highest court of final resort” in section 37 (3) of the Supreme Court Act as it now stands. The words “whether the judgment or decision in such proceeding was or was not a proper subject of appeal to such highest court of final resort” appearing in the section as it formerly stood were discarded as being surplusage in the amending Act of 1 Geo. VI, ch. 42, s. 1. Nevertheless, their presence in the section in its earlier form would be sufficient to demonstrate that the words “highest court of final resort in the province” had and have the meaning ascribed to “highest court of last resort” by Strong C.J. in the passage quoted.

Pearce v. City of Calgary[3], cited on behalf of the appellant, was a decision of the Registrar upon the construction of section 41 of the Supreme Court Act (R.S.C., 1906, ch. 139) which has since been repealed. The phrase under consideration there was “the judgment of any court of last resort created under provincial legislation to adjudicate

[Page 273]

concerning the assessment of property for provincial or municipal purposes.” That decision has no relevancy to the question now decided.

The appeal is quashed with costs.

Cannon, J.—I would quash the appeal with costs.

Appeal quashed with costs.

Solicitors for the appellant: Osler, Hoskin & Harcourt.

Solicitor for the respondent: C. M. Colquhoun.