Ace Holdings Corporation et al. v. Commission des Écoles catholiques de Montréal, [1972] SCR 268

Supreme Court of Canada

Ace Holdings Corporation et al. v. Commission des Écoles catholiques de Montréal, [1972] S.C.R. 268

Date: 1971-06-28

Ace Holdings Corporation et al. Appellants;

and

The Montreal Catholic School Board Respondent.

1971: February 4; 1971: June 28.

Present: Fauteux C.J. and Abbott, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Appeals—Revision of the taxation of costs by Superior Court judge—No right of appeal to Court of Appeal—Code of Civil Procedure, art. 26, 28, 29, 480.

An order of the Public Service Board in an expropriation matter having been homologated by judgment of the Superior Court, the costs were taxed by the prothonotary. A motion for revision of the taxation of the bill of costs was granted by a judge of the Superior Court and the amount was reduced. An appeal to the Court of Appeal was dismissed on the ground that this was not a final judgment or a judgment subject to appeal. An appeal was launched to this Court.

Held: The appeal should be dismissed.

The Court of Appeal was correct in ruling that no appeal lies to it from a judgment on a motion to revise a bill of costs taxed in the Superior Court. The meaning of the provision regarding the revi-

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sion of the taxation of costs has been fixed by a century-long series of cases which have construed the provision as exhaustive of the subject-matter and, consequently, as excluding any other remedy. In spite of the obvious inconvenience, it is impossible to depart from such case law especially when the statutory provision on which it rests has recently been reenacted without appreciable change.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, dismissing an appeal from a judgment of Cousineau J. Appeal dismissed.

Jules Deschênes, Q.C., for the appellants.

Jean Martine au, Q.C., and Michel Lassonde, for the respondent.

THE CHIEF JUSTICE—I am in substantial agreement with the reasons for judgment of Mr. Justice Pigeon and would dispose of the appeal as he proposes.

The judgment of Abbott, Hall, Spence and Pigeon JJ. was delivered by

PIGEON J.—The appellants, Ace Holdings Corporation, Rojack Corporation and Ivanhoe Corporation, were the owners of a building expropriated by respondent. The order of the Public Service Board, dated March 3, 1967, set compensation at $1,589,225 as compared with an offer of $699,570, and concluded as follows:

[TRANSLATION] WHEREAS the parties have agreed that the legal costs and fees for expert opinions incurred for the two cases P.S.B. Nos. 20-3458-X and 20-3519-X shall be included in those taxed in this record;

WHEREAS therefore it is proper to set at $2,500.00 the taxable portion of expert fees for the three cases;

FOR ALL THESE REASONS, the Board SETS the compensation to be paid to the expropriated parties in the amount of ONE MILLION, FIVE HUNDRED EIGHTY-NINE THOUSAND TWO HUNDRED AND TWENTY-FIVE DOLLARS ($1,589,225.00), to indemnify them for the value of the immoveable expropriated and all damages caused to them by the expropriation, the whole with taxed costs of a contested action against the expropriating

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party, for the aforementioned amount, in the Superior Court, and additionally the amount of $2,500.00, representing the taxable portion of the fees for expert opinions in the three cases.

This order was homologated by judgment of the Superior Court on March 22, 1967. On September 17, 1968, the costs were taxed by the prothonotary in the amount of $16,648.75. Within the prescribed time, the attorneys for the expropriating party made a “motion for revision of the taxation of the bill of costs” addressed to “one of the Honourable Judges of the Superior Court sitting in and for the District of Montreal.” This motion alleged that the taxed amount included a sum of $15,892.25 (1 per cent of the compensation) claimed as attorney’s fees under art. 81.2 of the Tariff of Advocates’ Fees. It also stated that this amount was not due under the terms of the homologated order.

By judgment of the Superior Court given by Maurice Cousineau J. on February 11, 1969, this motion was granted, the amount of $15,892.25 deducted and the total costs reduced to the sum of $756.50. The main part of the reasons are:

[TRANSLATION] …there are two recent decisions of the Superior Court on this point. In one, the Court refused to allow the 1% fee, while in the other the 1% fee was added to fees already allowed in the bill of costs, based on the tariff for a contested action in the Superior Court for the same amount…

There is… an important difference between the terms costs according to the tariff, and the costs of a contested action for a similar amount in the Superior Court, which in the opinion of this Court include only the costs of an action, and exclude all other costs covered by articles which have nothing to do with fees due on a contested action before the Superior Court.

The expropriated parties and their attorney appealed from this decision to the Court of Queen’s Bench, and on May 15, 1969, the latter issued the following judgment:

THE COURT, on respondent’s motion to dismiss an appeal from the revision of a bill of costs in an expropriation case;

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Seeing that this is not a final judgment or a judgment subject to appeal:

GRANTS the said motion, DECLARES that the appeal is irregular and DISMISSES it, the whole with costs.

The appeal to this Court is from this judgment. It should first be noted that this decision of the Court of Appeal is clearly a “final judgment” within the meaning of s. 2(b) of the Supreme Court Act, that the amount in question is in excess of $10,000, and that consequently the appeal to this Court is as of right under s. 36(a), Clarke v. Millar[1]. However that is not the question on the merits.

What is to be decided is whether the Court of Appeal was correct in ruling that no appeal lies to it from a judgment on a motion to revise a bill of costs taxed in the Superior Court. The provision governing such revision is the second paragraph of art. 480 of the Code of Civil Procedure:

The taxation may be revised by the judge within thirty days, upon motion served on the opposite party; but such motion does not suspend the execution, saving the debtor’s contingent right to recover.

The relevant provisions regarding the right of appeal are the following:

26. Unless otherwise provided, an appeal lies:

1. from any final judgment of the Superior Court;

2. from any judgment or order rendered in virtue of the provisions of Book Six of this Code;

* * *

28. An appeal also lies from any judgment of the Superior Court rendered upon a motion to quash a seizure before judgment.

29. An appeal also lies from an interlocutory judgment of the Superior Court:

1. when it in part decides the issues;

2. when it orders the doing of anything which cannot be remedied by the final judgment; or

3. when it unnecessarily delays the trial of the suit.

* * *

Any judgment is deemed to be interlocutory which is rendered during the suit, between the institution of the action and the final judgment disposing thereof.

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In his argument, counsel for the expropriated parties cited many decisions holding that an appeal lies from various judgments rendered after the primary contestation has been disposed of. These are the following:

Shannon v. Turgeon[2]—revocation of a stay of execution;

Connelly v. Stanbridge[3]—order for sale of several immovables as a whole;

Fournier v. Attorney General[4]—condemnation for contempt of court;

Procopis v. Poulin[5]—imprisonment for disobeying a writ of habeas corpus;

Hoffman v. United Amusement[6]—condemnation for disobeying an injunction;

Dupré v. Industrial Acceptance[7]—denial of a petition in revocation of judgment;

Caisse Populaire de St. Irénée v. Clément[8]—judgment fixing the value of services rendered to a garnishee;

Giroux v. Kirby[9]—condemnation for contempt of court.

In all these cases it was held that an appeal did He because it was considered that the decision was a final adjudication on a contestation separate from the primary contestation. In other cases to which we were referred, the character of a final judgment, subject to appeal, was attributed to decisions adjudicating definitively, while the primary contestation was still pending, on a right found to be a distinct right:

Everest v. Champion Savings Corp.[10]—per emption of suit;

Picard v. Warren[11]—right to trial by jury;

Wabasso Cotton v. Labour Relations Board[12]—interlocutory injunction.

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In the case of the last mentioned proceeding, the decisions of the Court of Appeal have varied. An appeal was held to lie in Méthot v. Town of Montmagny[13], as in Liberty Tobacco Shops v. Lapointe[14], but denied in L’Association Patronale v. Dependable Slippers[15], a leading case which was afterwards followed. As we shall see, the situation is quite different regarding the revision of the taxation of a bill of costs. For more than one hundred years, the courts have uniformly denied the right of appeal in such case.

The oldest and perhaps the most interesting decision is Brown v. Lowry[16]. The final judgment was delivered by the Court of Appeal on June 20, 1866. The Court of Review had dismissed an inscription in review against a judgment given by a judge of the Superior Court on the taxation of a bill of costs, for the reason [TRANSLATION] “that the right of having the taxation of a bill of costs revised by this Court does not exist.” This decision was unanimously affirmed on appeal, the appellant having to no avail invoked the old French law. To appreciate the significance of this judgment, which appears to underlie all the cases decided in Quebec on that point, a short history of the legislation seems appropriate.

The 1667 Ordonnance on procedure allowed appeals from the taxation of costs. Article 28 of Title 31 read as follows:

[TRANSLATION] If the losing Party appeals from the taxation of costs his Attorney shall within three days cross out on the statement the items he is appealing against; if this be not done on the first Motion his appeal shall be dismissed.

On this point, Pothier states (Traité de la Procédure civile, para. 425, vol. 10, p. 191):

[TRANSLATION] An appeal may be made against the taxation of costs.

In jurisdictions where execution is issued by the examining commissioner or other examining magistrate, the appeal is brought before the bench, according to several rulings reported by Mr. Jousse on article 28 of Title 31.

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Guyot for his part states (volume 5, p. 444):

[TRANSLATION] As appeals from the taxation of costs, which had been liquidated by judgments given in the lower courts, often give rise to appellate proceedings exceeding the costs of the principal action, the royal attorney-general in the Paris Parliament submitted a motion for the purpose of regulating procedure on this type of appeal…

Legislation on this matter in Quebec seems to have been first enacted by the Act to amend the Judicature Acts of Lower Canada, (1857) 20 Vict., c. 44:

The Prothonotary of the Superior Court, and the Clerk of the Circuit Court at any place, shall have full power to tax costs in causes and proceedings in their respective Courts at such place; and such taxation shall be made under and in the same manner and subject to the same rules, and shall have the same effect, as if made by a Judge of the Court, except that it shall be subject to revision by any Judge of the Superior Court in the same District and at the same place in any term of the Court in which the judgment was rendered, at any time within six months after such taxation by the Prothonotary or Clerk, and after sufficient notice (of which sufficiency the Judge shall decide) to the opposite party or his attorney…

This provision has been preserved without any other change than of phraseology. At the time the Brown v. Lowry judgment was handed down it had become s. 151 of c. 83 of the Revised Statutes of Lower Canada. It was art. 479 in the 1867 Code of Procedure and art. 554 in the 1897 Code of Procedure. It still is, in substance, art. 480 of the present Code. Because the first judgment dealt with an inscription in review, it is to be noted that the right to inscribe in review was, at that time, given in the same terms as the right to inscribe in appeal to the Court of Queen’s Bench (27-28 Vict., c. 39, s. 20, subsequently art. 494 of the 1867 Code of Procedure).

Here then is the list of decisions which followed Brown v. Lowry.

Belleisle v. Lyman[17];

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Ryan v. Devlin[18];

Compagnie du Chemin de fer de Montréal & Sorel v. Vincent[19];

Bélanger v. Corporation of Montmagny[20];

Compagnie du Chemin de fer de la Vallée Est du Richelieu v. Ménard[21];

Mireault v. Deslauriers[22];

Gossack v. Michael[23].

In view of this consistent series of decisions on the interpretation of a provision which has been re-enacted without substantial alteration, this appears to be a proper case for the application of the principle adopted in Village of la Malbaie v. Boulianne[24]. In that case Rinfret C.J., as he then was, said for the majority:

[TRANSLATION] While the case law and practice of the Province of Quebec thus held consistently in that sense, the Municipal Code was completely revised in 1916: this is the code we have at present. At that time the decisions of our courts had invariably interpreted art. 743 of the Code (now art. 670) as we have seen; however in 1916 the Legislature did not amend the wording of the article so as to indicate an intent contrary to the meaning given it by the courts.

Counsel for the expropriated parties did not fail to point out at the hearing that this Court had not hesitated to intervene to reverse decisions of the Court of Appeal on procedural questions, when an important right such as the right of appeal was involved, and he referred particularly to Everest v. Champion Savings Corp.[25], which dealt with the right of appeal from a judgment dismissing an application for peremption of suit. The right of appeal is definitely not a mere question of procedure (City of Jacques-Cartier v. Lamarre[26]). But this is not where the difficulty lies. In the la Balbaie case an important right was also in question, the right to vote, and the decision not to overrule consistent case law on the

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interpretation of a re-enacted statutory provision was based on considerations which apply with even greater force here.

In short, what the case law shows is that the statutory provision regarding the revision of the taxation of costs has been construed as exhaustive of the subject-matter and consequently, as excluding any other remedy. Recently, this Court interpreted in a similar way a provision regarding the right of appeal in divorce proceedings: it was held that this special provision operated to exclude implicitly the application of the general law concerning appeals to this Court; Massicotte v. Boutin[27].

I cannot hold otherwise in the present case, in spite of the obvious inconvenience of such a situation. The result is that, on that question of interpretation of the advocates’ tariff, which involves very considerable sums of money, resort cannot be had to the Court of Appeal to resolve a series of contradictory decisions. Further, while the cases now recognize the right of appeal from all final judgments of the Superior Court on a distinct right, even if this is not the subject-matter of the primary contestation, the same right of appeal must be denied in the case of the taxation of costs. Finally, this happens just after the legislature has, by a new Code of Civil Procedure, eliminated the requirement of special leave to appeal from interlocutory judgments which are final in nature, thereby suppressing the reason which, under Ontario law, led to the denial of the right of appeal in Clarke v. Millar[28]. Such considerations, however, cannot govern our decision unless they are compatible with the wording of the statute. In the case now before us, the meaning of the provision has been fixed by a century-long series of cases. It is impossible to depart from such case law especially when the statutory provision on which it rests has recently been reproduced without appreciable change in a new code which has been painstakingly drafted by a group of jurists and from which there has been eliminated the only article of the former code which could possibly have been the basis for holding that an appeal lies from a judgment

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on a motion for the revision of the taxation of costs. This was article 72, which was not found in the 1867 Code, and never seems to have been relied on to that end.

72. Decisions rendered by the judge in chambers or the Prothonotary, upon matters within the jurisdiction assigned to him, have the same force and effect as judgments of the court, and are in like manner subject to appeal and other remedies against judgments.

It must be added that, in the instant case, the ultimate conclusion certainly cannot depend on the fact that the judgment on the motion for the revision of the taxation of costs was given by the judge in the name of the Court because, in accordance with Montreal practice, the motion was argued before the court sitting in what is called “Practice Division.” This procedure is permitted by art. 40 of the Code of Procedure:

40. The judge in chambers may refer to the court any matter submitted to him if he considers that the interests of justice so require.

It cannot be concluded from this wording that, by availing himself of this provision, a judge makes subject to appeal a decision from which otherwise no appeal would lie; especially when, as in the case at bar, the conclusion that no appeal lies is due to the implicit exclusion of any other recourse by the statutory provision governing the remedy in question, the revision of the taxation of costs.

For these reasons, I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Deschênes, de Grandpré, Colas, Godin & Lapointe, Montreal.

Solicitors for the respondent: Martineau, Walker, Allison, Beaulieu, Tetley & Phelan, Montreal.