Ace Holdings Corporation et al. v. Montreal Catholic School Board, [1970] SCR 217

Supreme Court of Canada

Ace Holdings Corporation et al. v. Montreal Catholic School Board, [1970] S.C.R. 217

Date: 1969-11-07

Ace Holdings Corporation et al. Petitioners;

and

The Montreal Catholic School Board Respondent.

1969: October 20; 1969: November 7.

Present: Fauteux, Abbott and Pigeon JJ.

MOTION FOR LEAVE TO APPEAL

Appeal—Leave to appeal—Jurisdiction—Amount in controversy—Final judgment—Taxation of costs—Supreme Court Act, R.S.C. 1952, c. 259, ss. 36, 41

The petitioners applied for leave to appeal to this Court against a judgment of the Court of Appeal dismissing, upon motion, an appeal against a judgment of the Superior Court which had revised the amount at which the costs had been taxed, by deducting the sum of $15,892.25, being fees in the amount of one per cent of the compensation as provided by s. 81(2) of the tariff of advocates’ fees, in an expropriation matter.

Held: As the judgment of the Court of Appeal is a final judgment in a case where the matter in controversy exceeded $10,000 and, consequently, there was a right of appeal to this Court, it appears proper to treat the application for leave as a motion for an extension of the time allowed to bring the appeal and to allow it.

APPLICATION for leave to appeal from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, dismissing an appeal from a judgment of the Superior Court.

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

Jean Martineau, Q.C., and M. Lassonde, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—The appellants, Ace Holdings Corporation, Rojack Corporation and Ivanhoe Corporation, were the owners of a property expropriated by the respondent. Compensation having been fixed at $1,589,225 when the offer made was $669,770, costs were allowed. These were taxed by the protonotary at $16,648.75. On respondent’s motion, the Superior Court revised

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the amount taxed by deducting the sum of $15,892.25, being fees in the amount of 1 per cent of the compensation as provided by s. 81(2) of the tariff of advocates’ fees.

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

[TRANSLATION] THE COURT, having considered respondent’s motion for dismissal of an appeal brought against the revision of a bill of costs on an expropriation;

Whereas this is neither a final judgment nor one from which an appeal lies:

ALLOWS the said motion, DECLARES that this appeal is not allowable and DISMISSES it, with costs.

Following this decision, the appellants applied for leave to appeal to this Court under s. 41 of the Supreme Court Act. At the hearing, we pointed out to counsel for the appellants that, in respect of the jurisdiction of this Court, this case is identical with Clarke v. The Attorney General of Ontario et al[1] As in this case, the Court of Appeal had dismissed, upon motion, an appeal against a judgment of trial court judge concerning an application for revision of a taxation of costs amounting to more than $10,000—namely $29,230.50. The appellant having inscribed an appeal in this Court as of right, the respondent moved to quash on February 17 last (1969). At the hearing of the motion this Court after a review of the authorities, especially Montreal Tramways v. Creely[2] and Wabasso Cotton Co. v. The Labour Relations Board[3], as well as Fiset v. Morin[4], reached the conclusion that the judgment of the Court of Appeal was a final judgment in a case where “the matter in controversy” exceeded $10,000 and, consequently, there was a right of appeal to this Court under section 36. The decision delivered orally by the Chief Justice was as follows:

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We are all of opinion that the decision of the Court of Appeal that the appellant had no right to appeal to that Court without leave from the judgment of Lieff J. was a decision determining a substantive right of the appellant. If that judgment stands unreversed, the result is that the appellant must pay to the respondents $29,230.50 and therefore the amount in controversy in the appeal to this Court is more than $10,000.00. The motion to quash is dismissed with costs.

Under the circumstances of the present case, it appears proper, as counsel for the appellants has suggested, to treat his application for leave as a motion for an extension of the time allowed to bring the appeal and to allow it on the usual terms for such a motion.

For these reasons, the time allowed for bringing an appeal in this Court against the judgment delivered by the Court of Queen’s Bench of the Province of Quebec, sitting in appeal on May 15, 1969, is extended for two weeks from the date of this judgment, the costs of the application to be against the appellants.

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

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