Kyle v. The Canada Co.

)4 SIJPRr.EE sion on further consideration of the judge who tried the cause, without any appeal to the Divisional Court or the Court of Appeal for Ontario.

The grounds urged in support of the application are fully set out in the judgment of His Lordship.

Godfrey supported the application.

McCracken contra.

J.-This is an application for leave to appeal directly to this court from the judgment pronounced on further consideration by the judge who tried the action, there having been no intermediate appeal either to the Divisional Court, or to the Provincial Court of Appeal.

The application is of course made under section of the " Supreme Court Amendment Act of 1879," the only enactment which authorises the making of such an order as is sought to be obtained. I am of opinion that the section referred to authorises an order being made in any proper case, as well when the proceeding in the court below is an action at law as where it is a suit in equity; and, indeed, as regards the province from which this case comes it would be almost impossible, in the altered state of the practice under the Judicature Act, to give effect to any such distinction. But I am clear that no such distinction ever existed. Then, it is objected that this section 6 does not apply to a case like the present, where it is sought to appeal directly from the judgment of the judge who tried the case (without a jury), no recourse having been had to the jurisdiction of the Divisional Court. I am against this objection also. Under the practice now prevailing in Ontario the judgment of the judge at the trial is in effect the judgment of the Divisional Court, and appeals directly from a judgment such as this to the Court of Appeal are according to the general course of practice. Every appeal from this province to the Supreme Court heard during the present session has been a proceeding of this kind, that is, one in which the appeal to the Court of Appeal was directly from the judgment of the judge at the trial on further Strong j. consideration.

It remains, however, to be considered whether this is a case in which section being, as already said, applicable, it is proper to exercise the power thereby conferred, and I am clearly of opinion that it is not. It is suggested as a reason for allowing an appeal directly tp this court that an appeal to the Court of Appeal would be useless, as that court has already decided the point in dispute viz., that the period of limitation to an action on a covenant for the payment of rent is 20 years and not 10 years as the defendant contends.

It is, therefore, said that this abstract point of law having been thus decided, and subsequent cases in England having, as it is urged, since decided otherwise, it would be useless now to appeal to the Court of Appeal, inasmuch as that court, without regard to the English cases referred to, would adhere to its previous decisions. I could not admit this as a sufficient reason for making the order asked for even if I thought that the English cases referred to at all affected the question decided by the learned judge whose decision is ,sought to be brought under review.

Under these circumstances it was manifestly a proper case for giving leave for a direct *appeal, since the Court of Appeal could not be expected to take a different view of the legal consequences flowing from the identical state of facts upon Strong J. which they had lately pronounced.

Here, however, it is, at the most, said that the Court of Appeal has decided the same abstract proposition of law which it is proposed to raise in this court if the appeal is admitted. I should regard this as an insufficient ground even if the assertion was found to be warranted upon a consideration of the decided cases. But it is clear the Court of Appeal has never pronounced any decision which would debar them from acting on the English authorities referred to if they applied.

These English cases, however, have no application whatever. The question which arises here was in England set at rest by Foley v. Paget a decision which is wholly untouched by the recent English authorities.

To my mind an appeal to this court on any such grounds as those suggested would be frivolous and unfounded, and as the foundation of an application under section of the Act of 1879 for leave to appeal direct must be some reasonable ground of appeal, I hold that for want of any such ground this motion must be refused with costs.

Motion refused with cost. HISLOP v. THE TOWN OF McG-ILLEVRAY.

APPLICATION to J. in Chambers for leave to appeal to the Supreme Court of Canada from the judgment of the Queen's Bench Division of the High

Court of Justice for Ontario without an intermediate appeal to the Court of Appeal.

The grounds of the application are sufficiently set out in the judgment.

J.-This is an action brought by the appellant who, by means of an injunction in the nature of a mandamus, seeks to compel the respondent, through its.municipal officers, to open up a highway reserved for the purpose adjoining the land of the appellant. Henry J. A verdict on the trial was given in favor of the appellant, but it was ordered to be set aside and judgment entered for the respondent by the Queen's Bench Divisional Court. Proceedings were then taken by the appellant for an appeal to the Court of Appeal for Ontario, but the same have remained in abeyance, pending an application to a judge of this court to order an appeal directly to this court under sec. 6 of the Supreme Court Amendment Act of 1879.

The application was opposed and I have now to dispose of it.

The section in question provides, amongst other things, that by leave of this court or a judge thereof an appeal shall lie to it " from the final judgment of any superior court of any province, other than the province of Quebec, in any action, suit, cause, matter or other judicial proceeding originally commenced in such superior court, without any intermediate appeal being had to any intermediate court of appeal in the province."

Under the provisions of that section ample discretionary power is, in my opinion, given to this court or one of its judges to make an order such as that applied for in this case, but I cannot assume that it was intended to be acted on unless some good reason could be found for doing so.

The reason advanced in this case is that the Court of Appeal in Ontario, in a case before it, decided the main point in this case; and that inasmuch as that court has in their judgment virtually settled that point against the appellant, it would be an useless ex- [VOL. XV. pense to have an intermediate appeal to that court.

The case referred to is re Moulton and Ialdimand

I have carefully considered it and am of the opinion. vT that the decision of this case ought not to be affected by the decision in that. It was heard by four of the learned judges of that court. It was an application to J. the court by a writ of mandamus to compel the county of Haldimand to repair an existing bridge or the erection of a new one-the bridge being part of a highway then opened up and used. The court decided that the duty to repair the bridge or erect a new one was on the county of Haldimand, but were equally divided as to the remedy sought, and the court below having decided to refuse the mandamus, the appeal was dismissed-two of the learned judges arriving at the conclusion that the remedy by indictment was alone available.

The case now under consideration differs from that just referred to. The latter was virtually to compel the repairing of a bridg6 forming part of a highway then in use by the public. In this the proceeding is to compel the opening up of a new highway on land appropriated for it. The Appeal Court in Ontario, by an equal division of its members, dismissed an appeal from a decision that the remedy by indictment was alone available as applicable to the matter of the repair of the existing highway, but I could hardly conclude that any member of that court would be heard to say that the respondent township could be indicted for not opening up a new highway.

The decision of the one case does not therefore, in my opinion, in that respect affect the other, and the same learned judges who were of opinion that an indictment was the only means of remedy may be of the opinion that although mandamus is not the proper remedy in the one case, it may be in the other. I

YOL. XV.]