Robertson v. Wigle

Sir W. J. RITCHIE O.J.-I think the court only had authority to make rules for regulating its practice and procedure, and had no power to make rules affecting the jurisdiction of the Supreme Court of Canada. If the rule relied on in this case has that effect it is ultra vires; if it has not that effect it merely relates to practice and procedure, and in that case it could be waived and, in my opinion, it was waived.

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As there was no judgment delivered in open court on August 31, 1887, I am not prepared to differ from the opinion that the time would not run until entry of the judgment on September 15, 1887, and therefore the appeal is properly before this court.

J.-The action having been heard on the 13th of March, 1886, at Sandwich, the judgment of the Maritime Court was handed (not in court) by the surrogate to the registrar on 31st August, 1887.

The judgment or decree was, however, not drawn up until some days afterwards; the exact day on which it was drawn up by the registrar does not appear, but I understood it to be conceded on the argument of the motion, that within fifteen days after the judgment wiE. was actually drawn up by the registrar notice of appeal to the Supreme Court of Canada was given.

The appeal was perfected by the allowance of the Strong J. security by Mr. Justice Henry on the 28th of September, 1887.

The Maritime Court Act, R. C. ch. 137 sees. 18 and

19 are as follows:- By rule 269 of the Maritime Court it is provided that:

At the time this appeal was taken the Supreme

Court Act required notice of an appeal from a final judgment to be given within thirty days from the date of the judgment being pronounced.

In the view I take I do not feel called upon to express any opinion as to whether rule 269 of the

Maritime Court is ultra vires or not. I am inclined to think it comes within the powers conferred by sec.

of R. C. ch. 137.

But whether this is so or not I consider that the motion to quash must be refused on the ground that inasmuch as the notice of appeal was served within fifteen days of the date at which the order was actually drawn up by the registrar it comes within the terms of rule 269.

I do not recognize the handing by the judge to the registrar, not in open court but in his office or perhaps in the street, as a "pronouncing of a decision" within the terms of rule 269.

Then, we are not to take the date of the 31st August, 1886, as the time from which the fifteen days n Jbegan to run, to what other date are we to ascribe the commencement of that period?

There is only one other date to which it can be referred, and that is the date at which the registrar completed the judgment, and before the fifteen days, calculated from that time, bad run out it is admitted that notice of appeal was duly served.

The motion to quash must be refused with costs. J.-I concur in the judgment of the Chief Justice.

TASCHEREAU J.-I was inclined to think the notice of appeal too late, but I will not dissent on a question of practice.

J.-I entirely concur in the judgment of my brother Henry in chambers when the matter was before him, and in the judgment of the Chief Justice pronounced in open court to-day.

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