Seafarers’ International Union of Canada et al. v. Glasgow et al., [1975] 1 SCR 164

Supreme Court of Canada

Seafarers’ International Union of Canada et al. v. Glasgow et al., [1975] 1 S.C.R. 164

Date: 1974-04-29

The Seafarers’ International Union of Canada and John Royce Appellants;

and

William Glasgow et al. Respondents;

and

Leonard J. McLaughlin

and

Leonard J. McLaughlin Appellant;

and

William Glasgow et al. Respondents.

and

The Seafarers’ International Union of Canada and John Royce.

1974: March 14; 1974: April 29.

Present: Laskin C.J. and Judson, Pigeon, Beetz and de Grandpré JJ.

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

Mandamus—Order to issue writ—Ancillary conclusions—Right of appeal—Renunciation—Code of Civil Procedure, art. 29, 476, 834, 835.

Following an election for the presidency of the Seafarers’ International Union in which appellant McLaughlin was declared elected, respondent Glasgow, his opponent, filed a petition in the Superior Court, asking that a writ of mandamus be issued under arts. 834 and 835 of the Code of Civil Procedure. This petition also asked that respondents be ordered to transfer to the office of the Court the complete record of the election and that McLaughlin be ordered to refrain from any act in the capacity of president elect. Despite the statement made by counsel for the respondent when the petition was presented, that he did not intend to proceed on the two other conclusions, and reserved the right to do so if the writ was issued, the judgment of the Superior Court, besides authorizing issuance of the writ of mandamus, allowed the other conclusions of the petition. The Union and McLaughlin both entered an appeal from this judgment. The Court of Appeal held that it lacked jurisdiction and dismissed the appeals. Appellants appealed from that decision to this Court. Respondents’ motions to quash the appeals were dis-

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missed in this Court and they subsequently filed a renunciation to the judgment regarding the conclusions other than that authorizing issuance of the writ of mandamus.

Held: The appeals should be dismissed save as to costs up to the partial renunciation.

There is no longer any dispute between the parties as to the relief allowed in error by the trial judge. The partial renunciation was made, served and filed in accordance with the requirements of art. 476 of the Code of Civil Procedure. Though respondent Glasgow’s counsel gave no reason why the Court, in applying art. 29 of the Code of Civil Procedure should make a distinction not made by the law, there is no reason in the present instance to depart from the rule usually followed, of not intervening when the substantive issues have been settled.

As to the authorization to issue the writ, appellants presented at the hearing no serious argument against the decision of the Court of Appeal. Costs should however be allowed to the appellants up to the filing of the partial renunciation by respondent Glasgow. Even if it is established that the ancillary conclusions were allowed in error, a judgment of the Superior Court is a solemn act which cannot simply be ignored. Art. 476 C.C.P. imposes special requirements for a renunciation to a judgment, and implies that it cannot be renounced in any other manner.

APPEALS from judgments of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1]. Appeals allowed for costs up to the partial renunciation.

J. Nuss, for the appellants Seafarers’ International Union.

L. Poitras, Q.C., for the appellant McLaughlin.

P. Cutler, Q.C., and P. Langlois, for the respondents.

The judgment of the Court was delivered by

PIGEON J.—Respondent Glasgow was a candidate in an election held in November 1971 for the office of President of a seamen’s union

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known as the Seafarers’ International Union of Canada, an unincorporated association. The other candidate was the current President, appellant McLaughlin, who on December 8, 1971 was declared to have been elected. Glasgow maintained that he had in fact received a majority of the votes cast, and filed a petition in the Superior Court for the District of Montreal, asking, first:

(1) that a writ of mandamus be issued;

(2) that respondents be ordered to transfer to the office of the Court the complete record of the election;

(3) that McLaughlin be ordered to refrain from any act in the capacity of President elect.

The petition then requested that the final judgment declare Glasgow to have been elected President or, alternatively, that a new election be ordered.

Following an examination on discovery and the filing of exhibits, the petition was presented to a judge of the Superior Court for an order authorizing the issuance of a writ of summons in accordance with art. 834 and 835 of the Code of Civil Procedure. Counsel for Glasgow indicated that he did not intend to proceed on the two other heads of his prayer for relief. The judge granted the parties leave to submit notes and authorities in support of their respective contentions, and in those submitted on behalf of McLaughlin as in those submitted on behalf of the Union and Royce, its secretary-treasurer, there is reference to the fact that at the hearing counsel for Glasgow did indicate he would proceed only on his request for the issuance of a writ. However, the decision rendered on January 25, 1972 concluded as follows:

[TRANSLATION] FOR THESE REASONS THE COURT:

GRANTS the issuance of a writ of mandamus against respondents, the Seafarers’ International Union of Canada, Leonard J. McLaughlin and John Royce;

ORDERS respondents to transfer to the office of our Superior Court, at the Court House in Montreal,

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the complete record of the proceedings relating to the election of the officers of respondent Union, in particular the ballots used in the election of the offciers of the said Union during 1971; the register, if any, used at that election to record the votes cast; the results of the tallying of the ballots cast; the documents indicating the procedures followed by the Tallying Committee, and the final report of that Committee on the said election;

ORDERS the individual respondent, Mr LEONARD J. McLAUGHLIN, to refrain in his capacity as President elect from carrying on any activity inherent in that office, and particularly from exercising any power relating to expenditures and remuneration, until a final judgment on the merits is rendered in the present case.

The following day the Union and Royce entered an appeal from this judgment, and the next day McLaughlin did likewise.

On January 3, 1973, both appeals were dismissed with costs of a motion to dismiss only. The reasons for judgment were given by Mr. Justice Lajoie, and concurred in by his colleagues. He held, first, that this was not a final judgment, but rather an interlocutory judgment which was not subject to appeal as it did not fall within any of the cases provided in art. 29 C.C.P. He then went on to say:

[TRANSLATION] Referring to the operative portion of the Superior Court decision, set out at the beginning of these reasons, it will be seen that the judge not only authorized issuance of the writ but also allowed other relief prayed for.

On a motion by Seafarers’ and Royce on May 8, 1972, this Court granted appellants leave to file affidavits by M^e Pierre Lamontagne and M^e Joseph R. Nuss. These are set out on pp. 7-10 of the supplementary joint record. They show that when the petition for issuance of a writ was presented on December 14, 1971, counsel for Glasgow stated that he would proceed only on the first head of his prayer for relief, reserving the right to proceed on the second and third if the writ was issued.

These statements under oath were not challenged by counsel for the other parties, who indicated their concurrence.

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It was submitted that for this reason at least the appeal should be allowed, and the judgment of the Superior Court varied in so far as it was rendered ultra petita.

I do not consider we have this jurisdiction.

This is a proceeding on mandamus, not on an injunction, and the second and third paragraphs of the operative portion of the decision of the Superior Court are ancillary to the first. If there is no right of appeal from the authorization granted by the Court, there cannot be any from the order made by it in consequence; this Court cannot intervene, even with the consent of the parties.

Moreover, as the parties are agreed on what was to be the object of the first judgment, I do not see why the problem is not settled by a partial renunciation of the judgment as authorized by Art. 476 C.C.P.

This decision on the two appeals was appealed to this Court as of right under s. 36 of the Supreme Court Act. Respondents challenged this right of appeal, but their motions to quash were dismissed with costs by judgments of this Court rendered on February 28, 1973.

Following these judgments respondent Glasgow signed a renunciation, dated March 14, to the judgment of January 25, 1972, in so far as that judgment allowed relief other than an authorization that a writ of mandamus be issued. There is thus no longer any dispute between the parties as to the relief allowed in error by the trial judge. The partial renunciation was made, served and filed in accordance with the requirements of art. 476 C.C.P., and it is not vitiated by the fact that in the notice served on the opposing parties counsel for the respondent added:

[TRANSLATION] The aforementioned partial renunciation is made only if needed, without in any way modifying the admissions already made by counsel for the parties herein, and without affecting the affidavits of the said attorneys which have been filed in the record.

At the hearing counsel for the appellants referred to the importance of the principle involved so as to invite us to decide against

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what the Court of Appeal held, i.e., that in deciding whether an interlocutory judgment is subject to appeal, only the principal conclusions must be examined, even if it is accompanied by ancillary conclusions that would otherwise be appealable. He pointed out that art. 29 C.C.P. makes no distinction between principal and ancillary conclusions, as may be seen from its first paragraph:

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.

Though respondent’s counsel gave no reason why the Court, in applying this provision, should make a distinction not made by the law, it seems to me that there is no reason in the present instance for this Court to depart from the rule usually followed, of not intervening when the substantive issues have been settled.

As to the remaining portion of the judgment rendered at first instance, namely the authorization to issue a writ, appellants really presented at the hearing no serious argument against the decision of the Court of Appeal. The only decisions they were able to cite were cases in which the right to appeal from a judgment refusing to issue a writ was affirmed. These judgments are final but those authorizing that the writ be issued are not. Accordingly the decision of the Court of Appeal should not be reversed.

On the matter of costs, it must be considered that both parties are responsible for what happened. By their haste in entering an appeal, the Union and its President prevented the judge at first instance from correcting his error under art. 475 C.C.P. Respondent Glasgow, on the other hand, only filed his renunciation after his motions to quash the appeals to this Court had been dismissed. Even if it is well established that the ancillary conclusions were allowed in error, a judgment of the Superior Court is a solemn act which cannot simply be ignored. Furthermore, art. 476 C.C.P. imposes special

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requirements for a renunciation to a judgment, and implies that it cannot be renounced in any other manner. Respondent Glasgow offered no explanation as to why he delayed so long in renouncing the portion of the judgment which his counsel acknowledged he was not entitled to, adding that he did not in any way intend to rely on the fact that these conclusions had been allowed.

On the other hand, appellants continued with their appeals to this Court after the renunciation had been filed. Under these circumstances it seems proper to award them costs in this Court only up to the filing of the renunciation. Further, it does not seem proper to award the subsequent costs to respondent, since he will retain the benefit of some costs awarded by the Court of Appeal.

I therefore conclude that the appeals should be dismissed, but that appellants should be awarded costs up to the filing of the partial renunciation by respondent Glasgow.

Appeals allowed for costs up to the partial renunciation.

Solicitors for the appellants: Ahern, de Brabant, Nuss & Drymer, Montreal.

Solicitors for the appellant McLaughlin: Laing, Weldon, Courtois, Clarkson, Parsons, Gonthier & Tétrault, Montreal.

Solicitors for the respondents: Cutler, Langlois & Castiglio, Montreal.