Foundation Co. of Canada Ltd. v. Prince Albert Pulp Co. Ltd., [1976] 1 SCR 33

Supreme Court of Canada

Foundation Co. of Canada Ltd. v. Prince Albert Pulp Co. Ltd., [1976] 1 S.C.R. 33

Date: 1974-12-19

The Foundation Company of Canada Limited (Plaintiff) Appellant;

and

Prince Albert Pulp Company Ltd. (Defendant) Respondent.

1974: November 6; 1974: December 19.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Practice—Judgment obtained in mechanics’ lien action—Execution stayed by trial judge pending appeal to Court of Appeal—Appeal dismissed—Stay of execution continues pending further appeal to Supreme Court of Canada—New fiat by Court of Appeal not required—Supreme Court Act, R.S.C. 1970, c. S-19, s. 71(2).

On April 16, 1973, the appellant (Foundation) obtained a judgment in a mechanics’ lien action brought against the respondent (Papco) and against Parsons and Whittemore Pulpmills Inc. Pulpmills, under contract with Papco, had, as general contractor, constructed a pulp mill for Papco. Foundation was a subcontractor under contract with Pulpmills.

Pending an appeal to the Court of Appeal for Saskatchewan, Papco and Pulpmills applied to the trial judge for a stay of proceedings under the judgment. A stay of proceedings until the conclusion of the appeal was granted in favour of Papco, but not in favour of Pulpmills. An appeal by Foundation from the order granting the stay was dismissed by the Court of Appeal.

The appeal by Papco and Pulpmills from the judgment at trial was dismissed by the Court of Appeal on April 19, 1974, and these two companies then commenced a further appeal to this Court.

On April 24, 1974, a writ of execution was issued against Papco and Pulpmills. Papco then applied to the Court of Appeal for an order to stay execution against it pending the appeal to this Court and for an order to strike out, as against it, the writ of execution. The writ of execution was set aside by the Court of Appeal. With leave, Foundation then appealed from the judgment setting aside the writ of execution.

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Held: The appeal should be dismissed.

Section 71(2) of the Supreme Court Act, R.S.C. 1970, c. S-19, provides that “Where the court appealed from is a court of appeal, and execution has been already stayed in the case, the stay of execution continues without any new fiat, until the decision of the appeal by the Supreme Court.” Accordingly, in the present case, the stay granted by the trial judge continued without any new fiat by the Court of Appeal.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1] setting aside a writ of execution. Appeal dismissed.

A.J. Lenczner and E.A. Odishaw, for the plaintiff, appellant.

R.L. Barclay and M.A. Gerwing, for the defendant, respondent.

The judgment of the Court was delivered by

MARTLAND J.—On April 16, 1973, the appellant, hereinafter referred to as “Foundation”, obtained a judgment, in the amount of $1,997,749.61, in a mechanics’ lien action brought against the respondent, Prince Albert Pulp Company Ltd., hereinafter referred to as “Papco”, and against Parsons and Whittemore Pulpmills Inc., hereinafter referred to as “Pulpmills”, this amount including all of the claims of lien claimants listed in the judgment. Pulpmills, under contract with Papco, had, as general contractor, constructed a pulp mill for Papco. Foundation was a subcontractor under contract with Pulpmills.

Papco and Pulpmills appealed from this judgment to the Court of Appeal for Saskatchewan. Pending the appeal, Papco and Pulpmills applied to the trial judge for a stay of proceedings under the judgment. A stay of proceedings until the conclusion of the appeal was granted in favour of Papco, but not in favour of Pulpmills. An appeal by Foundation from the order granting the stay was dismissed by the Court of Appeal for Saskatchewan.

The appeal by Papco and Pulpmills from the judgment at trial was dismissed by the Court of

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Appeal for Saskatchewan on April 19, 1974. A notice of appeal by these two companies, dated April 25, 1974, was filed and was served upon the solicitors for Foundation. The required deposit of security for costs in this Court was filed on April 30, 1974, pursuant to s. 66 of the Supreme Court Act, R.S.C. 1970, c. S-19.

On April 24, 1974, a writ of execution was issued against Papco and Pulpmills. Papco then applied to the Court of Appeal for Saskatchewan for an order to stay execution against it pending the appeal to this Court and for an order to strike out, as against it, the writ of execution. The Court of Appeal set aside the writ of execution and also held that no security was required to be given by Papco pending the appeal to this Court because the case did not fall within any of the security requirements of s. 70 of the Supreme Court Act. That section provides as follows:

70. (1) Upon filing and serving the notice of appeal and depositing security as required by section 66, execution shall be stayed in the original cause, except that

(a) where the judgment appealed from directs an assignment or delivery of documents or personal property, the, execution of the judgment shall not be stayed until the things directed to be assigned or delivered have been brought into court, or placed in the custody of such officer or receiver as the court appoints, nor until security has been given to the satisfaction of the court appealed from, or of a judge thereof, in such sum as the court or judge directs, that the appellant will obey the order or judgment of the Supreme Court;

(b) where the judgment appealed from directs the execution of a conveyance or any other instrument, the execution of the judgment shall not be stayed until the instrument has been executed and deposited with the proper officer of the court appealed from, to abide the order or judgment of the Supreme Court;

(c) where the judgment appealed from directs the sale or delivery of possession of real property, chattels real or immovables, the execution of the judgment shall not be stayed until security has been entered into to the satisfaction of the court appealed from, or a judge thereof, and in such amount as the last mentioned court or judge directs, that during the posses-

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sion of the property by the appellant he will not commit, or suffer to be committed, any waste on the property, and that if the judgment is affirmed, he will pay the value of the use and occupation of the property from the time the appeal is brought until delivery of possession thereof, and also, if the judgment is for the sale of property and the payment of a deficiency arising upon the sale, that the appellant will pay the deficiency; and

(d) where the judgment appealed from directs the payment of money, either as a debt or for damages or costs, the execution of the judgment shall not be stayed until the appellant has given security to the satisfaction of the court appealed from, or of a judge thereof, that if the judgment or any part thereof is affirmed, the appellant will pay the amount thereby directed to be paid, or the part thereof as to which the judgment is affirmed, if it is affirmed only as to part, and all damages awarded against the appellant on such appeal.

(2) Where the court appealed from is a court of appeal, and the assignment or conveyance, document, instrument, property or thing as aforesaid, has been deposited in the custody of the proper officer of the court in which the cause originated, the consent of the party desiring to appeal to the Supreme Court, that it shall so remain to abide the judgment of the Supreme Court, is binding on him and shall be deemed a compliance with the requirements in that behalf of this section.

(3) In any case in which execution may be stayed on the giving of security under this section, the security may be given by the same instrument whereby the security prescribed in section 66 is given.

The gist of the judgment of the Court of Appeal is found in the following paragraph from its reasons:

Exceptions (a) and (b) are obviously not here applicable. I consider exception (c) to be inapplicable as the judgment does not direct a sale of land and moreover all the provisions of (c) indicate clearly that it is to be applied to a judgment of a different nature or type to that herein. Exception (d) applies to a judgment which “directs the payment of money, either as a debt or for damages or costs.” Limiting my consideration to the judgment roll alone and the whole of it, it cannot be said that it can be classified as a judgment for a debt or for

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damages claimed against the applicant.

From that judgment Foundation, with leave, appealed to this Court.

The Court of Appeal did not find it necessary to consider s. 71(2) of the Act, but in my opinion it is decisive of the matter in issue. Subsections (1) and (2) of s. 71 read as follows:

71. (1) When security has been deposited as required by section 66, any judge of the court appealed from may issue his fiat to the sheriff, to whom any execution on the judgment has issued, to stay the execution, and the execution shall be thereby stayed whether a levy has been made under it or not.

(2) Where the court appealed from is a court of appeal, and execution has been already stayed in the case, the stay of execution continues without any new fiat, until the decision of the appeal by the Supreme Court.

The scheme established by ss. 70 and 71 appears to me to be this. By virtue of s. 70, when notice of appeal has been filed and served and the security required by s. 66 has been deposited, execution in the original cause is stayed, but, in the instances described in paras, (a) to (d) inclusive, there are additional requirements in order to make the statutory stay of execution effective. These paragraphs concern:

(a) appeal from a judgment which directs an assignment or delivery of documents or personal property;

(b) appeal from a judgment which directs the execution of a conveyance or other instrument;

(c) appeal from a judgment which directs the sale or delivery of real property, chattels real or immovables;

(d) appeal from a judgment which directs the payment of money, either as a debt or for damages or costs.

Section 71(1) empowers a judge of the Court from which an appeal has been taken, if execution

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has been issued, to issue a fiat to the sheriff to stay the execution.

Section 71(2) provides for the situation in which the appeal is from a Court of Appeal and execution has already been stayed. In such case the stay of execution continues without any new fiat from the Court of Appeal, until the decision of the appeal in this Court.

In the present case the appeal is from a Court of Appeal. Execution was stayed by the trial judge prior to the decision of that Court. That stay meets the requirement of subs. (2) that “execution has been already stayed in the case”. The subsection does not require that such stay have been granted by the Court of Appeal. The stay is continued without any new fiat by the Court of Appeal.

Counsel for the appellant contended that the operation of s. 71(2) depends on security having been given where the case falls within the exceptions in s. 70(1). I see no ground upon which to read this qualification into s. 71(2).

In my opinion s. 71(2) was effective to continue the stay granted by the trial judge until the decision of the appeal by this Court.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Balfour, MacLeod, Moss, Laschuk, Kyle, Vancise & Cameron, Regina.

Solicitors for the defendant, respondent: MacPherson, Leslie & Tyerman, Regina.