Supreme Court of Canada
St. Francis Hydro Electric Co. Ltd. v. The King and
Southern Canada Power Co. Ltd., [1934] S.C.R. 566
Date: 1934-06-06.
St. Francis Hydro
Electric Company Limited and Others (Plaintiffs) Appellants;
and
His Majesty The
King and Southern Canada Power Company Limited (Defendants) Respondents.
Present: Duff C.J. and Rinfret, Cannon,
Crockett and Hughes JJ.
1934: May 21; 1934: June 6.
ON APPEAL FROM THE COURT OF KING’S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Appeal—Jurisdiction—“Final judgment”
(Supreme Court Act, R.S.C. 1927, c. 85, ss. 2 (b), 36)—Appeal from judgment referring the record back to
the trial court in order that some historical evidence, refused by the trial
judge, might be received.
The Supreme Court of Canada is without jurisdiction
to hear an appeal from a judgment of an appellate court maintaining an appeal
because of the refusal of the trial judge to admit some historical evidence and
referring the record back to the trial court in order that such proof might be
received in the record. Such judgment is not a final judgment within the
meaning of s. 2 (b) of the Supreme Court Act as it does
not, in whole or in part, determine or put an end to the issue raised and in
respect to which the judgment was rendered: it determined nothing with regard
to the titles or the rights relied on by the parties and it is purely
provisional. Such judgment is even not one in the nature of a judgment “directing
a new trial” contemplated by s. 36 of the Supreme Court Act.
MOTION by each of the respondents to quash
for want of jurisdiction an appeal from a judgment of the Court of King’s
Bench, appeal side, province of Quebec.
Aimé Geoffrion K.C. and J. D. Kearney K.C. for the motion.
Ls. St. Laurent K.C. contra.
The judgment of the Court was delivered by
Rinfret J.—A motion has been launched by each of the respondents to quash this
appeal for want of jurisdiction.
The action was brought by way of a petition of
right against His Majesty the King and Southern Canada Power Co. Ltd., seeking
to set aside an emphyteutic lease entered into between the province of Quebec
and the Power Company comprising the bed of the St. Francis River at or near
[Page 567]
Spicer Rapids, on the grounds: (a) that
the river was neither navigable nor floatable, and consequently belonged not to
the Crown but to the appellants usque ad medium filum aquce as riparian
owners; and, (b) that, even if the river were floatable or navigable,
the petitioners’ titles having been granted in free and common soccage carried
with them the right to the bed and banks of the river.
In the Superior Court, on the question of
navigability and floatability, the respondents tendered certain historical
evidence concerning the condition of the river at or about the time the
appellants’ lots were granted at the beginning of the nineteenth century. The
learned trial judge rejected the evidence thus submitted.
The learned judge found that the river was
neither floatable nor navigable opposite the appellants’ properties, and set aside
the lease between the Crown and Southern Canada Power Co. Ltd.
The Crown and Southern Canada Power Co. appealed
to the Court of King’s Bench, which maintained the appeal because of the
refusal of the trial judge to admit the historical evidence and referred the
record back to the Superior Court for further enquête, in order that the
historical proof might be received in the record, the right of the adverse
party to contradict it being reserved, and that, upon the said proof being
submitted, the Superior Court might deal with the case on the merits; Mr.
Justice Howard and Mr. Justice Bernier dissenting—the first named judge being
in favour of maintaining the appeal and the second named judge being in favour
of dismissing it.
The respondents allege that the judgment of the
King’s Bench is not a final judgment, and that consequently this Court is
without jurisdiction to hear an appeal from that judgment.
We have come to the conclusion that the motion
to quash should be granted.
As pointed out in Davis v. The Royal
Trust Company, in
order that a judgment may come under the definition of a “final judgment” in s.
2 (b) of the Supreme Court Act, it must have, “in whole or in part,” determined
or put an end to the issue raised and in respect to which the judgment was
rendered.
[Page 568]
Dealing with the judgment a quo only as a
matter of interpretation, it seems to us that it determined nothing with regard
to the titles or the rights relied on by the parties, and that it is
purely provisional. The dispositif, in our view, makes that clear. It
says:
Fait droit à l’appel, avec dépens; In firme
le jugement final de la Cour Supérieure, ainsi que les décisions à l’enquête
refusant la preuve historique offerte par les défendeurs; Déclare cette preuve
admissible en loi, sauf au tribunal à en apprécier la force ou la valeur
probante, lorsqu’il s’agira du mérite de la cause, et Renvoie les parties à l’enquête
pour que là, cette preuve déjà offerte et toute autre de même nature soient
reçues au dossier, que la partie adverse puisse la contredire, s’il y a lieu,
et que cela fait, la Cour Supérieure puisse à nouveau adjuger au mérite de la
cause, suivant que de droit.
It will thus be seen that all the judgment does
is to refer the record back to the trial court for further enquête. It does not
even decide that if the evidence already tendered or other evidence of a
similar character be established, a certain result will conclusively follow. No
directions, in that respect, are given to the Superior Court; far less is there
to be found in the judgment any declaration to that effect binding upon the
Court of King’s Bench. Both courts are left entirely free to appreciate the new
evidence and to decide upon it, concurrently with the facts already of record,
in absolute independence. To paraphrase the words of M. Lacoste (“De la chose jugée,” n° 50):
La juridiction d’appel n’a donné à la partie
qui a obtenu l’interlocutoire qu’une simple espérance; elle était en présence d’une
instruction imparfaite et n’a pas apprécié les faits d’une manière définitive.
Nor is a judgment like the present one in the
nature of the judgment “directing a new trial” contemplated by s. 36 of the Supreme
Court Act. While it may be said perhaps that in enacting subs, (b)
of s. 36 (“a judgment granting a motion for a nonsuit or directing a new
trial”) Parliament, had in mind only jury trials—as to which it is unnecessary
to decide here—there is no doubt that, in the premises, the judgment does not
order a new trial. The supplementary enquête will be merely the continuation of
the original trial. The record will remain exactly as it is, and the future
judgment will have to be pronounced upon that record, except that special leave
is given to adduce further evidence upon the particular point and within the
limited scope therein expressly stated. Otherwise the parties remain precisely
in the same position as they were before, apart from
[Page 569]
the fact that the first judgment is set aside.
(And see Hudon v. Tremblay).
The appellants, however, pointed to the
following considérant:
Considérant que les requérants ont primâ facie établi leurs titres, mais qu’il convient de dire qu’il ne résulte pas
de la stipulation de franc et commun soccage qui est à l’acte de
concession originaire de ces terrains, que l’on puisse appliquer au cas qui
nous est soumis une autre règle que celle du code civil;
and they expressed the fear that, if their
appeal were not asserted, this considérant might constitute res
judicata against them.
We are of opinion that this is not well founded.
Under the Civil Code (art. 1241) the authority of res judicata “applies
only to that which has been the object of the judgment.” At bar, Mr. Geoffrion,
while conceding—as well he might—that res judicata will sometimes result
from the implied decision (though stated only in the motif), which is
the necessary consequence of the express dispositif of the judgment
(Refer Ellard v. Millar), was
frank to admit that, in the ensuing proceedings, it would not be possible for
his clients to contend that the issue raised in respect of the title under
franc and common soccage was finally determined between the parties in virtue
of the above considérant.
In our view, the whole case is left open by the
judgment appealed from. It may be that the trial judge and even the Court of
King’s Bench will feel inclined to follow the opinion expressed in that considérant.
In no way, however will that be as a result of chose jugée; and we
are definitely of the view that the parties will not be bound by it in such a
way as to be prevented from raising the point before a higher court, should
there be an appeal to such court after the final judgment has been delivered. (Davis
v. Royal Trust).
We are the more influenced in giving that
interpretation to the judgment a quo and towards construing it as not
having determined the issue now in question, because, in their reasons for
judgment, two only of the judges of appeal have expressed any opinion upon the
point which forms
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the subject of that considérant and, of
those two, one (Howard J.) does so only inferentially.
The motions to quash will therefore be granted
with costs.
Motions granted with costs.
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