Cheyenne Realty v. Thompson, [1975] 1 SCR 87

Supreme Court of Canada

Cheyenne Realty v. Thompson, [1975] 1 S.C.R. 87

Date: 1974-01-22

Cheyenne Realty Limited (Plaintiff) Appellant;

and

Delmont Thompson

and

His Honour Provincial Court Judge S.R. Roebuck (Defendants) Respondents.

1973: October 11, 12; 1974: January 22.

Present: Judson, Ritchie, Spence, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Mandamus—Extraordinary remedy—Appeal by stated case—Criminal Code, s. 762—The Summary Convictions Act, R.S.O. 1970, c. 450, s. 3.

The appellant was charged with a contravention of section 4 of by-law 21484 of the Corporation of the City of Toronto. A motion to quash the information was made by counsel for the appellant and it was argued that by-law 21484 was invalid since it contained an unauthorized delegation of judicial or discretionary functions to the municipal clerk and an advisory committee. The trial judge, second respondent, adjudged that objection taken by counsel was a proper one and that the by-law was inoperative. Delmont Thompson, first respondent as informant applied for a mandamus and this was granted by Parker J. whose decision was affirmed in the Court of Appeal. The appellant appealed to this Court on (1) whether mandamus was appropriate or whether appeal should have been by stated case and (2) whether by-law 21484 was invalid.

Held: The appeal should be allowed and the order for mandamus be quashed.

Mandamus is available to require an inferior court to accept its jurisdiction, but it is an extraordinary remedy available for that purpose and will not ordinarily issue when there is another remedy available. The disposition of the trial judge, notwithstanding the precise words used by him, was what amounted to a verdict of acquittal from which an appeal by way of stated case was available; the proceedings by way of mandamus were therefore not proper.

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[The Queen v. Sheets [1971] S.C.R. 614 applied; The Queen et al. v. Leong Ba Chai [1954] S.C.R. 10; The Queen v. The Commissioners of Inland Revenue (In re Nathan) (1884), 12 Q.B. 461; Kipp v. Attorney General for the Province of Ontario [1965] S.C.R. 57; Dressler v. Tallman Gravel & Sand Supply Ltd. [1962] S.C.R. 564; Lattoni and Corbo v. The Queen [1958] S.C.R. 603; Regina v. Tanner et al. [1971] 2 O.R. 510; Regina v. G. & P. International News Ltd. and Judd (1973), 12 C.C.C. (2d) 169.]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of Parker J. Appeal allowed and the mandamus issued by Parker J. quashed with no order as to costs.

K.M. Smookler, for the appellant.

D.C. Lyons, for the respondents.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on February 14, 1972 whereby that court dismissed an appeal from the judgment of Parker J. pronounced on April 8, 1971.

In the latter judgment, Parker J. had allowed an application made by Delmont Thompson, the informant, for mandamus requiring the provincial court judge to proceed with the hearing and determination of a charge against the present appellant, Cheyenne Realty Limited. No written reasons were given by the learned Supreme Court judge. The reasons of the Court of Appeal were given orally at the close of the argument in two short paragraphs.

The appellant was charged that it did:

AT THE CITY OF TORONTO FAIL TO CLOSE AND KEEP CLOSED A GASOLINE SHOP KNOWN MUNICIPALLY AS NO. 117 STRACHAN AVE., IN THE SAID CITY OF TORONTO BETWEEN THE HOURS OF SIX O’CLOCK IN THE AFTERNOON ON SEPTEMBER 4TH, 1970, AND SIX O’CLOCK IN THE FORENOON OF THE NEXT FOLLOWING DAY, CONTRARY TO THE PROVISIONS OF SEC. 4, OF BY-LAW 21484 OF THE CORPORATION OF THE CITY OF TORONTO.

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The appellant, through counsel, pleaded not guilty and then made a motion. The motion was evidently produced in writing but the appeal case does not include any copy thereof. The motion, however, was based upon the argument of counsel that by-law 21484 of the Corporation of the City of Toronto, of which the appellant was alleged to be in breach, was invalid in that it contained an unauthorized delegation of judicial or discretionary functions to the municipal clerk and an advisory committee which was the scheme of the by-law. His Honour Judge Roebuck heard the argument upon that issue and delivered judgment in which he concluded:

Under the circumstances I find that the objection taken by Counsel is a proper one; that the by‑law is inoperative; on both counts that I have no jurisdiction to hear this matter.

The informant, Delmont Thompson, then proceeded by application for a mandamus before Parker J. and, as I have said, was successful upon that application, such disposition being affirmed by the judgment of the Court of Appeal.

The appellant presented to this Court two grounds of appeal in law. Firstly, whether the mandamus was the appropriate remedy to be sought in these circumstances or whether the matter should have been appealed by way of stated case and, secondly, whether by-law 21484 of the Corporation of the City of Toronto was invalid.

The reasons for judgment given by Aylesworth J.A. in the Court of Appeal for Ontario dealt only with the second issue although we were informed by counsel that the first issue had also been argued before that Court.

After the appellant’s argument upon this appeal, we informed counsel for the respondent that we did not require any argument upon the second ground and therefore there remains to be disposed of upon this appeal only the first

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issue, that is, whether mandamus was the appropriate remedy to be sought in the circumstances.

It is, of course, true that mandamus does lie to require an inferior court to accept its jurisdiction and discharge such duty. The writ of mandamus is, however, an extraordinary remedy available for that purpose: The Queen et al. v. Leong Ba Chai[1]; Halsbury, 3rd ed., vol. 11, pp. 84-5. The writ being an extraordinary remedy will not ordinarily issue when there is another remedy available: The Queen v. The Commissioners of Inland Revenue (In re Nathan)[2].

Upon this appeal, the appellant advanced the argument that the respondent was able to proceed to appeal by way of stated case. The Criminal Code in s. 762(1) provides:

762. (1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, order, determination or other proceeding of a summary conviction court on the ground that

(a) it is erroneous in point of law, or

(b) it is in excess of jurisdiction,

by applying to the summary conviction court to state a case setting forth the facts as found by that court and the grounds on which the proceedings are questioned.

This was a proceeding to which Part XXIV of the Criminal Code applied, the prosecution being under The Summary Convictions Act, R.S.O. 1970, c. 450, s. 3 of which applies Part XXIV of the Criminal Code except for inconsistency to proceedings upon a summary conviction. Certainly, His Honour Judge Roebuck’s disposition of the prosecution was an “order, determination or other proceeding”, and certainly the attack thereon by the informant was on a point of law. I therefore am of the opinion that an appeal could have been taken by way of stated case. Although the words used by the learned provincial court judge “I have no jurisdiction to hear this matter” were perhaps unfor-

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tunate, one must have regard for what actually occurred. The accused, through its counsel, pleaded not guilty and then submitted that the charge should be dismissed because the by‑law upon which the charge was based was invalid. That the learned provincial court judge expressed his dismissal in the form of a statement that he had no jurisdiction should not be permitted to affect the situation. In Kipp v. Attorney General for the Province of Ontario[3], Judson J., in giving the judgment for the majority, said at p. 60:

The use of the word “jurisdiction” in this context does not help one towards a solution. There is no dispute that the judge had the power to deal with the form of the indictment and that he was acting within his jurisdiction when he quashed the indictment.

Although in this case, the learned provincial court judge was not dealing with the form of the indictment and for that reason a different result ensues, Judson J.’s words are appropriate to the present appeal. In Kipp v. Attorney General for the Province of Ontario, supra, a charge had been laid of a breach of certain provisions of the Food and Drugs Act. The accused had been committed for trial after a preliminary hearing and had elected trial under Part XVI of the Criminal Code by a judge without a jury. Upon the case being called for trial and before a plea was entered by the accused, counsel on his behalf objected to the form of the indictment as being duplicitous. The provincial court judge accepted this objection and quashed the indictment on that ground alone. The Crown then moved for an order of mandamus directing the said provincial court judge to proceed with the trial. Such an order of mandamus was made by a High Court Judge and affirmed by the Court of Appeal. This Court dismissed a further appeal. At p. 60, Judson J. said:

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It is common ground that the Crown has no right of appeal from this erroneous quashing of the indictment.

In this present appeal, it is not common ground. The appellant, on the other hand, submits that the Crown had a right of appeal proceeding by way of stated case and I am ready to accept that submission.

In Dressler v. Tallman Gravel & Sand Supply Ltd.[4], this Court was called upon to deal with a similar issue. The information had been laid under the Employment Standards Act of Manitoba, R.S.M. 1957, c. 20. The police magistrate dismissed an information against the respondent on the ground that the information was concerned with an offence which had taken place more than six months before the commencement of the proceedings and further that the information was void for duplicity. The informant proceeded by way of stated case under the provisions of what was then s. 734 of the Criminal Code. The respondent moved before the Court of Appeal to quash or dismiss the appeal and in a majority judgment the Court of Appeal for Manitoba granted such application. This Court allowed an appeal from such judgment of the Court of Appeal for Manitoba, adopting the dissenting judgment of Tritschler J.A., as he then was. Locke J., giving the unanimous judgment of this Court, said at p. 569:

As to the objection that the proper procedure was not by way of stated case but by mandamus to compel the magistrate to exercise his jurisdiction, he pointed out that this was not the case of a magistrate declining to enter upon a hearing because he was of the opinion that he had no jurisdiction, but one in which, exercising his jurisdiction, he had dismissed the information on grounds of law which appeared to him sufficient.

With these conclusions I agree and, with the greatest respect for the contrary opinion of the learned Chief Justice of Manitoba, I consider that the motion of the respondent to dismiss or quash the stated case, as it was expressed, should have been dismissed and the

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questions of law, which appear to me to be clearly raised, determined.

In my opinion, the matter was settled by the decision of this Court in The Queen v. Sheets[5], where Fauteux C.J. gave the unanimous judgment of the Court. There, the accused had appeared before Riley J. in the Supreme Court of Alberta on an indictment under s. 103 of the Criminal Code. On the arraignment, the accused moved, before plea, to quash the indictment on the ground that it did not disclose an offence known to law. After argument, the learned trial judge reserved his decision and subsequently quashed the indictment for reasons thus expressed:

A municipal officer or a municipal official cannot be charged under section 103 as the Code makes it clear that there is a difference between an official and a “municipal official”. The word official is defined and it is clearly an office which is involved with either the federal or provincial government.

The Crown appealed from that decision to the Appellate Division of the Supreme Court. At the hearing of the appeal, counsel for the accused submitted that the judgment quashing the indictment was not a judgment or verdict of acquittal within the meaning of the present section 605(1)(a) of the Criminal Code and consequently the Crown had no right of appeal.

Counsel for the accused relied on Kipp v. Attorney General of Ontario, supra. The Chief Justice of this Court said at p. 618:

The situation in the Kipp case, supra, is quite different. Indeed, as it appears from the reasons of Judson J., who delivered the judgment for the majority, the Court proceeded on the basis that the objection of counsel for the accused was to “the form of the indictment”, and that the indictment was quashed by the County Court judge “on the sole ground that it was void for duplicity”. This Court, having then found the judgment of the County Court judge to be erroneous and having noted that it was common

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ground that there was no right of appeal from that decision, held that it was proper, in the circumstances, to issue a writ of mandamus directing the County Court judge to proceed with the trial.

The Chief Justice expressed the opinion that the case was governed by the decision in Lattoni and Corbo v. The Queen[6]. In that case, prosecutions had been commenced charging various breaches of sections of the Criminal Code. The same offences had been dealt with under various sections of the Immigration Act and the judge of the Sessions of the Peace granted a defence motion to quash the indictment on the ground that the prosecutions had been commenced after the limitation period applicable to offences under the Immigration Act. The Crown appealed to the Court of Appeal in the ordinary course and that Court ordered that the record be returned to the Court below and that the trial of the accused proceed according to law. Again, it was argued on behalf of the accused in this Court that the judgment of the learned judge of the Sessions of the Peace did not acquit and therefore there was no right of appeal. Kerwin C.J., giving the judgment of the Court, said at p. 607:

Reading all of these documents in their entirety I agree with the Court of Appeal that the judgment of Judge Proulx was a final judgment quashing the indictment because he considered that all criminal proceedings as a result of the alleged acts of the accused were prescribed. I also agree that it was not a judgment on procedural grounds owing to a defect in the indictment and therefore if the accused were charged subsequently with the same offences as those embodied in the indictment, they could plead autrefois acquit. It was a decision on a question of law alone and being a judgment or verdict of acquittal was appealable under s. 584 of the Code.

In Regina v. Tonner et al.[7], Brooke J.A., giving the judgment for the Court of Appeal for

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Ontario, considered a case where, before pleading, although called upon to do so, the accused successfully moved for an order quashing the indictment contending that it did not contain an adequate statement of the offence which he was alleged to have committed, and that it was bad for duplicity. Citing the three cases which I have cited from this Court, that is, Lattoni and Corbo v. The Queen, Kipp v. Attorney General of Ontario, and The Queen v. Sheets, Brooke J.A. held that the particular objection made had not resulted in a verdict of acquittal and that therefore there was no appeal under the provisions of the Code. There, the proper course would have been by mandamus.

Similarly, in Regina v. G. & P. International News Ltd. and Judd[8], the British Columbia Court of Appeal considered an appeal in a case where the County Court judge had quashed two counts against the accused on the ground that they were not contained in an indictment signed by the Attorney General himself or preferred with the written consent of the judge. The Crown had then applied to the Supreme Court of British Columbia for a mandamus directing the County Court judge to try the charges. That mandamus had been refused by Kirke Smith J. who was of the opinion that an appeal had been available to the Crown and therefore no mandamus lay. McFarlane J.A. giving the judgment for the Court referred to the three cases which I have cited and also to R. v. Tonner, supra, and for the reasons given by Brooke J.A. in the latter case, held that the County Court judge’s order did not amount to a judgment or verdict of acquittal and therefore no appeal was available and that mandamus was the proper procedure.

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In the present appeal, the accused pleaded not guilty. His counsel then moved to quash the information. Unlike the situation in Kipp, in Tonner and in G. & P. International News, counsel did not object to the form of the information but his objection was an objection that the offence was not known to the law because the by-law upon which it was based was invalid.

I am therefore of the opinion that unlike the situation in Kipp, in Tonner and in G. & P. International News, the disposition by the learned provincial court judge was what amounted to a verdict of acquittal and that an appeal did lie and, therefore, proceedings by way of mandamus were not proper. In order to arrive at what I have said amounted to a verdict of acquittal, it was quite unnecessary that the learned provincial court judge should hear evidence. All that was needed was to consider the provisions of the by-law which was before him and apply thereto what the learned provincial court judge thought was the proper decision in law as to the power of a municipality to delegate discretionary function.

For these reasons, I would allow the appeal and direct that the order for mandamus issued by Parker J. be quashed. I would make no order as to costs.

Appeal allowed; no order as to costs.

Solicitor for the appellant: Kenneth M. Smookler, Toronto.

Solicitor for the respondent: W.R. Callow, Toronto.