Supreme Court of Canada
American Securities Corp. Ltd. v.
Woldson, [1928] S.C.R. 432
Date: 1928-04-25
American
Securities Corporation, Limited v. Woldson
1928: April 24; 1928: April
25
Present: Duff, Mignault,
Newcombe, Lamont and Smith JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR BRITISH COLUMBIA
Trusts and trustees—Order to
trustee—Trustee directed to give notice of assignment of moneys—Discretionary
nature of the order—Appeal—Jurisdiction—Pecuniary value attached to the order—Supreme
Court Act, s. 39.
APPEAL by the plaintiff from
the decision of the Court of Appeal for British
Columbia, affirming the judgment of McDonald J.—Appeal
dismissed for want of jurisdiction.
The appellant assigned to the
Royal Trust Company, inter alia, future instalments of moneys which
might become payable to the appellant under a designated option to the Granby
Consolidated Mining, Smelting and Power Company, to purchase mining property.
The assignment, was to secure the payment of a bond issue. A bank in Seattle was
by deed nominated to keep a record of the bonds which might be registered there
and to retire them out of the moneys which should be paid into it from time to
time by the payee of the instalments, the Granby Company. Matters went on
smoothly for a time until the bank at the request or instigation of the
appellant, diverted some
[Page 433]
of the said moneys to a purpose
not authorized by the deed. On discovering this act the respondent, a holder of
more than one-fourth of the said bonds, made a demand upon the trustee that it
should notify the Granby Company of the assignment and require payment of the
instalments in future to itself.
The order granted by the trial
judge was held by the Court of Appeal to have been within his discretion and,
therefore, one which should not be interfered with, since it was not based on
an error in principle or made in the absence of materials affording ground for
the exercise of the discretion.
On conclusion of the argument of
counsel for the appellant, and without calling on counsel for the respondent,
the judgment of the court was orally delivered by
DUFF J.—We think the appeal
should be dismissed for want of jurisdiction. Section 39 of the Supreme
Court Act limits the right of appeal to cases in which the amount or value
of the matter in controversy exceeds the sum of $2,000. The question of the
jurisdiction to entertain this appeal came before us on a motion to quash, and
for the purpose of enabling the parties to provide further material, and in
order that the court might be more fully informed as to the precise facts, the
disposition of the motion was deferred until the hearing of the appeal.
It is now suggested by Mr.
Griffin that there should be an adjournment to enable him to file an affidavit.
I think, in the circumstances, that this is an indulgence which cannot be
allowed. On the facts before us there is really nothing to show what (if any)
pecuniary value attaches to that control of which the appellants have been
deprived by the order of which they now complain. It seems to be precisely one
of those cases which the statute provides for by giving an appeal only upon
condition that special leave shall be obtained.
However we think it right to say—after
consultation with my colleagues—that, having had an opportunity to consider the
questions at issue since the close of Mr. Griffin's argument, we are all quite
clearly of the opinion that the appeal could not succeed on the merits. We
think it right to say that, in the circumstances.
[Page 434]
We think that the appeal should
be dismissed on the point of jurisdiction, because we are quite clear, on the
material before us, that there is no jurisdiction. We are equally clear, if we
did not deal with the appeal on that ground, that we should be obliged to
dismiss it on the merits.
Appeal dismissed with
costs.
Martin Griffin for the
appellant.
W. D. Herridgefor the
respondent.
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