Supreme Court of Canada
Scully
Signal Co. v. York Machine Co., [1954] S.C.R. 783
Date:
1954-11-18
Scully Signal Company Appellant;
and
York Machine Company Respondent.
1954: November 10; 1954: November 18.
Present : Kerwin C.J. in Chambers.
MOTION FOR LEAVE TO APPEAL.
Appeal—Jurisdiction—Exchequer Court Judgment-—Appeal as
of right dismissed—Motion Renewed—Leave Granted—Provisions of s. 82 no bar to
application made under s. 83 of the Exchequer Court Act R.S.C. 1927, c. 34.
The provisions of s. 82 of the Exchequer Court Act do
not apply to an application made under s. 83 of that Act, any more than the
jurisdiction of the Supreme Court in respect of an appeal in exercise of a
[Page 784]
right of appeal given by the Exchequer Court Act is
affected by what is now s. 44 of the Supreme Court Act. British American
Brewing Co. Ltd. v. The King [1935] S.C.R. 569.
MOTION by appellant under s. 83 of the Exchequer Court
Act, before Kerwin C.J. in Chambers, for leave to appeal from a judgment of
the Exchequer Court.
Christopher Robinson, Q.C. for the motion.
Gordon Henderson, Q.C. contra.
The Chief Justice (In
Chambers) :—The Court has decided that there was no appeal as of right from the
judgment of the Exchequer Court in this case dated January 25, 1954, and the
plaintiff now moves under s. 83 of the. Exchequer Court Act for leave to
appeal.
I have read and considered all the decisions referred to,
particularly Western Clock Co. v. Oris Watch Co. , including Chief Justice Anglin's
statement at 399:—
"Whether the time can now be extended and leave granted
by virtue of such extension, under s. 83, is a question for the consideration
of the appellant. (Goodison v. McNab)..
The McNab case was an appeal from a decision of the
Court of Appeal for Ontario under the provisions of The Supreme Court Act. Section
82 of the Exchequer Court Act deals with appeals to the Supreme Court of
Canada from judgments of the Exchequer Court. Sub-section 2 thereof provides
that "an appeal under this section" shall be brought by serving a
notice of appeal, and s-s. 2(a) provides that the notice of appeal "shall
be served and filed and the security shall be deposited within sixty days …
from the signing or entry or pronouncing of the judgment appealed from, or
withtin such further time as a judge of the Exchequer Court … may either before
or after the expiry of the said sixty days fix or allow." These provisions
do not apply to an application under s. 83, any more than the jurisdiction of
the Supreme Court in respect of appeals in exercise of a right of appeal given
by the Exchequer Court Act is affected by what is now s. 44 of The
Supreme Court Act. (British American Brewing Co. Ltd. v. The King ).
[Page 785]
I, therefore, have jurisdiction to make the order requested.
On the argument I intimated that if I came to this conclusion permission would
be given, and the order may go accordingly. Costs in the cause.
Motion granted.
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