McGreevy v. The Queen

T. McG. who claimed a large sum of money from the Government of the Province of Quebec under a contract he had for the construction of a portion of the North Shore Railway, agreed to submit to three mediators or amiables compositeurs all controversies and difficulties existing between the Government and himself, and the submission stated that these mediators should enquire into, inter alia, the extent of the obligation of the contract passed between the Government of Quebec and the said T. McG. ; the alterations and modifications made in the plans, particulars and specifications mentioned in the said contract ; what influence the said alterations and modifications may have had on the obligations of the said T. McG. and on those of the Government ; the delays caused by reasons irrelevant to the action of the contractor ; the pecuniary value, whether for more or for less, of the alterations or any increase in the works; and finally, all things connected with the matter and the execution of the said contract, and with regard to the charges and obligations of both the Government and the said contractor, according to the terms of the The submission also provided that the award was to be executed as a final and conclusive judgment of the highest court of justice. The mediators by their award, after reciting the matters in controversy between the parties, found that the Government of tht Province of Quebec was indebted to T. McG. in the sum of $147,473, and annexed thereto an affidavit stating they had inquired into all matters and difficulties submitted to them as appeared in the deed of submission.

This amount being much less that the amount claimed by T. McG. he filed a petition of right, asking that the *PRESENT.-Sir W.

award be set aside on the ground that it did not cover the matters referred to the arbitrators in the submission. The Superior Court for the district of Quebec set aside the award, and on appeal to the Court of Queen's Bench for Lower Canada (appeal side) that THE court reversed the judgment of the Superior Court and dismissed the petition of right. On appeal to the Supreme Court of Canada: Held, affirming the judgment of the Court of Queen's Bench for Lower Canada (appeal side) that the object of the submission was to ascertain what amount the contractor T. McG. was to receive from the Government, and the specification of the several matters referred to in the submission was merely to secure that in determining the amount the mediators should fully consider all these matters, and that all matters having been so considered the award was valid.

.

Per Fournier J. Mediators (amiables compositeurs) are not subject to the provisions of art. 1346 C.P.C. and their award can only be set aside by reason of fraud or collusion if given on the matters referred to them.

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) reversing a judgment of the Superior Court in the District of Quebec (1). The appellant had, under a contract with the Government of the Province of Quebec, built the eastern section of the North Shore Railway between Montreal and Quebec.

He had claimed as a balance due him considerable sums of money which the government refused to pay, and the difficulties between the parties had been referred to arbitrators and mediators (amiables compositeurs), who by their award declared that the government owed the sum of $147,473 as the total balance. The appellant applied to the Superior Court by petition of'right to have the award set aside. The following are the materials parts of the submission to, and affidavit and award of, the mediators:- " Before Louis N. Dumouchel, the undersigned notary public for the Province of Quebec, in the Dominion of (1) See Can. R. 735 this appeal for want of jurisdicwhere a motion was made to quash tion.

Canada, residing and practising in the city and district of Montreal, came and appeared:

The Honorable Joseph Adolphe Chapleau, of the city of Montreal, acting hereto for and in behalf of the Executive Government of the Province of Quebec, in his capacity of Commissioner of Railways for the said province, and as such having the control and management of the " Quebec, Montreal, Ottawa and Occidental Railway," under an act of the Quebec Legislature, 43 & 44 Vic. ch. 3, and being also specially authorized to all and every the effects of these presents, under and by virtue of the authority of an .order in council in that behalf, duly passed and adopted by the said Executive Council on the second day of May last (1881), and whereof a copy is hereto attched-party of the first part;

And the Honorable Thomas McGreevy, of the city and district of Quebec, contractor, party of the second part: Which said parties, for the better intelligence and understanding of the present deed of submission and arbitration bond (compromise), did previously say and declare as follows:- Whereas, &c., &c., &c.

Now therefore, these presents and I, the said notary, witness :- That the said respective parties hereto, in order to settle definitely all the controversies and difficulties existing between themselves in the premises, do hereby mutually covenant and agree to and with each other to submit such controversies and difficulties, with all questions connected therewith, to the final decision of Walter Shanly, of the city of Montreal, Esquire, civil engineer, arbitrator and mediator (amiable composileur) named by the said party of the first part, and Chas. Odell, of the city of Quebec, Esquire, civil engineer, arbitrator and mediator (amiable compositeur) named by the said Thomas McGreevy, who (both hereto present and accepting such charges) shall act and proceed under the authority of the law and in conformity with these presents with Sandford Fleming, of the city of Ottawa, Esquire, civil engineer, also present and accepting, the third arbitrator and mediator, umpire, (tiers arbitre et amiable composileur,) hereby named and appointed by them the said Messrs. Shanly and Odell.

And it has been specially understood

That the powers conferred upon these persons shall be those above enumerated, and that before proceeding in their work they shall subscribe the oath provided by law.

THus

Province of Quebec

Walter Shanly, Esquire, *civil engineer of the city of Montreal, in the district of Montreal, Charles Odell, Esquire, civil engineer, of the city of Quebec, in the district of Quebec, and Sandford Fleming, Esquire, civil engineer, of the city of Ottawa, in the county of Carleton, province of Ontario, all three duly appointed experts, arbitrators and mediators (amiables compositeurs), by and in virtue of an act passed in the said city of Quebec, before and in the presence of L. N. Dumouchel, public notary, on the thirtieth day of July of last year (1881) being a deed of submission and arbitration bond (compromis) between Hon. Joseph Adolphe Chapleau, in his capacity of Railway Commissioner of the Province of Quebec, and the Hon. Thomas McGreevy, member of the House of Commons, railway contractor, of the said city of Quebec, by which act we, the said Walter Shanly, Charles Odell and Sandford Fleming, were especially charged with examining into the matter in litigation and inquiring into and determining the extent of the obligations of the contract passed between the Government and the said Thomas Mc- Greevy, the alterations and modifications made in the plan, particulars and specifications mentioned in the said contract, what influence the said alterations and modifications may have. had on the obligations of the said Thomas McGreevy and on those of the government, the delays caused by the reasons irrelevant to the action of the contractor, the pecuniary value, whether for more or for less, of the alterations or in any increase in the works, and finally all things connected with the matter and execution of the said contract and with regard to the charges and obligations of both the government and the said contractor, according to the terms of the said contract, as the whole appears more fully in a copy of the said deed of submission and compromise hereunto annexed, having been duly sworn on the Holy Evangelists do make oath and swear that we will faithfully proceed as experts, arbitrators and mediators (amiables compositeurs) to the view, the examination, the inquiry, the investigation, and report into and upon all the matters, and difficulties submitted to us by and in virtue of the said act of submission and compromise hereunto annexed; and that we will truly report our opinion in the premises without favor or partiality towards the said parties; so may God help (Signed,)

" W. SHANLY,"

t

" CHAS. FLEMING." SWORN, &C.

AWARD.

PROVINCE

?

City of Hull.

We, the undersigned, Walter Shanly, of the city and district of Montreal, Civil Engineer ; Charles Odell, of the same place, Civil Engineer ; and Sandford Fleming, of the City of Ottawa, in the Province of Ontario, also Civil Engineer;

Send greeting - Whereas matters in controversy between the Government of the Province of Quebec, and the Honorable Thomas McGreevy, of the city and district of of Quebec, contractor, were by them submitted to us, the undersigned, as experts, arbitrators and mediators, (amiables conpositeurs) as set forth and more fully appears in a certain deed of submission and arbitration bond (compromis), executed by the said parties respectively before Louis N. Dumouchel, notary public, of the City of Montreal, and bearing date the thirtieth day of July last past, (1881) the time fixed and determined to render our award on said compromis having been extended and enlarged by the mutual consent of said parties to the fifteenth day of June instant (1882) inclusive, under and by virtue of four different deeds to that effect executed before the same notary, and bearing date respectively as follows : twenty-eighth December last (1881). twenty-fifth February last (1882), twenty-seventh April last (1882), and thirtieth May last (1882) : Now therefore, we, the said experts, arbitrators and mediators (amiables compositeurs), having been first duly sworn as appears by the document hereto annexed, bearing date the twenty-fifth day of January last past (1882), and marked A; heard the allegations of the said parties and their respective witnesses under oath, and having carefully examined the matters in controversy by them submitted, to wit:- " The extent of the obligations of the contract passed " between the Government of Quebec and the said " Thomas lcGreevy; the alterations and modifications " made in the plans, particulars and specifications "mentioned in the said contract; what influence the said alterations and modifications may have had on "the obligations of the said Thomas McGreevy and on those of the Government ; the delays caused by reasons irrelevant to the action of the contractor, the pecuniary value, whether for more or for less, of the alterations or any increase in the works; and finally, all things connected with the matter and the execu- "tion of the said contract, and with regard to the . charges and obligations of both the Government and the said contractor, according to the terms of the Do unanimously make and render our award in writing, under and in execution of the said deed of submission and arbitration bond (compromis), in the following manner to wit:- That we find that the Government of the Province Quebec is indebted to the Honourable Thomas Mc- Greevy in the sum of one hundred and forty-seven thousand, four hundred and seventy-three dollars.

In witness whereof, we have signed these presents at the city of Hull, in the Province of Quebec, this fourteenth day of June, eighteen hundred and eighty-two. (Signed,)

" W.

The Superior Court set aside the award on the ground that it did not cover the matters referred to the arbitrators in the submission, but on appeal to the Court of Queen's Bench for Lower Canada thai court reversed the judgment of the Superior Court and dismissed the Petition of Right.

The grounds upon which the award was discussed by counsel and authorities relied on are referred to in the judgments hereinafter given.

Sir W. J. C.J.-It is abundantly clear from the recitals in the submission that the contractor was claiming from the government large sums of money for the execution of the works, and that the Minister in the capacity of Commissioner of Railways did not feel justified in taking upon himself the task of determining the value of the claims of the contractor ; that the contractors and Railway Commissioner did agree to refer and submit all such claims and demands to the decision of a board of arbitrators.

" Now, therefore," as the submission expresses it, " the respective parties in order to settle definitely all the controversies and difficulties existing in the premises did mutually agree to submit the same with all questions connected therewith to the final decision of the arbitrators." This makes it to my mind very clear that the sole object of the arbitration was to ascertain what amount the contractor was entitled to receive from the government, and the specification of the several matters referred to in the submission was merely to secure that in determining the amount the assessors should fully consider all these matters.

It is clear from the award that the arbitrators did take into consideration and did fully consider and decide on all the matters referred to them.

There is nothing whatever to show or from which it ca4 be inferred that they did not do so, and the result was the finding that the Government of the Province of

Quebec was indebted to the suppliant in the sum. of

$147,473, and this was a final determination of the claims and demands of the contractor, and of all things connected with the matter and execution of the said contract, and with regard to the charges and obligations both of the government and the said contractor, according to the terms of the said contract, and I think there is no ground whatever for disturbing this award, and that the appeal should be dismissed.

J.-The appeal should be allowed and judgment of Superior Court restored, with costs in this court and in the courts below.

FOURNIER J.-Le 24 septembre 1875, l'appelant contracta avec le gouvernement de la province de Quebeo, pour la construction de la partie est du chemin de for de la Rive Nord.

Les travaux furent compl6t6s et le chemin remis en la possession du gouvernement en

Durant la construction il fut fait des changements dans la location de la ligne.

A la fin des travaux un estim6 du coxt total du chemin, comprenant les extra fut pr6par6 par Mr. Light, l'ing6nieur du gouvernement.

Mais des difficult6s 6tant survenues entre les parties intbress~es, elles convinrent par un acte de compromis pass6 en juillet 1881, de s'en rapporter A la d6cision de Mr. Walter Shanly, nomm6 par le gouvernement, et Mr. Charles O'Dell nomm6 par l'appelant pour agir comme arbitres et amiables compositeurs, et Mr. Sandford Fleming comme tiers- Fournier j. arbitre et amiable compositeur choisis par les deux -derniers.

Les arbitres et amiables compositeurs ayant proc6d6 A 1'examen de l'affaire qui leur avait 6t0 r6f6r6e rendirent leur sentence d~clarant que le gouvernement devait A l'appelant une balance totale de $147,473.00. McGreevy s'adressa par p6tition de droit A la cour Sup~rieure pour faire annuler la sentence, et obtint jugement; mais ce jugemeni fut infirm6 par la cour du Bano de la Reine. L'appel est de ce jugement. Le compromis donne aux arbitres et amiables compositeurs les pouvoirs les plus amples pour la d6cision des matibres en dispute qui sont Anum6r6s comme suit dans 1'acte de compromis :- 1. That the three above named persons shall act as experts, arbitrators and mediators (amiables compositeurs,) in the examination of the matter in litigation, and they shall enquire into and determine the extent of the obligations of the contract passed between the Government of Quebec and the said Thomas McGreevy ; the alterations and modifications made in the plans, particulars and specifications mentioned in the said contract ; what influence the said alterations and modifications may have had on the obligations of the said Thomas McGreevy and on those of the Government ; the delays caused by reasons irrelevant to the action of the contractor ; the pecuniary value, whether for more or for less, of the alterations or any increase in the works; and finally, all things connected with the matter and the execution of the said contract, and with regard to the charges and obligations of both the Government and the said contractor, according to the terms of the said conti act.

Les proc6d6s pour arriver h cette sentence out en lieu A Ottawa, du consentement des parties int6ress6es, bienqu'il n'y en ait pas d'6crit, et en leur presence, et leurs t6moins et conseils out Ut entendus en dehors de la province de Qubbec.

Le 14 juin 1882, avant 1'expiration du d4lai fix6 pour prononcer la sentence, les arbitres et amiables compositeurs se rendirent A Hull, dans la province de Quebec, et y sign~rent leur sentence qui fut ensuite d6pos6e chez un notaire.

La sentence d6clare en ces termes:

L'appelant dit dans son factum:

Voilh une admission bien formelle de la part de l'appelant que sa principale raison d'attaquer ]a sentence, c'est quelle ne lui accorde pas un montant assez 61ev6. II alligue aussi que les arbitres n'avaient aucun pouvoir de decider d'autres questions que celles 6nonc6es dans le compromis, et qu'ils 6taient oblig6s de d6cider tous les points qui leur 6taient soumis.

Il se plaint encore que la seule question d~cid~e par eux est que dans leur opinion le gouvernement est endett6 envers l'appelant en la somme de $147,473.00. II pr6tend que cette question ne leur 6tait pas r6f6re. D'apris lui les amiables compositeurs auraient dd se borner A d~finir, 10 l'6tendue des obligations du contrat; 20 les changenents et modifications faits aux plans et specifications ; 30 l'effet de ces changements out pu avoir sur les obligations respectives des parties ; les d6lais caus~s au contracteur; la valeur en plus on en moins des changements faits, enfin, 60 toutes matibres ayant rapport A l'ex~cution, en prenant en consideration les obligations respectives des parties.

Les amiables compositeurs n'ont sans doute pas proc6d6 comme une cour ordinaire, et ne sont pas entr~s dans les d6tails des proc6d6s et des motifs sur lesquels ils ont fond& leur sentence arbitrale.

Leur qualit6 MCGREEVY d'amiables compositeurs les en dispensait.

I en eft t6 autrement s'ils eussent t seulement nomm6s arbitres.

Fournier j.

Notre code de proc6dure, article 1346, dit

Les arbitres doivent entendre les parties et leur preuve respective, on les constituer en d6faut, et juger suivant les rigles de droit, h moins qu'ils n'en soient dispenss par le compromis, ou qu'ils ne soient 4tablis amiables compositeurs.

Le code u'a fait aucun changement A 1'ancien droit an sujet des amiables compositeurs.

Ils sont encore aujourd'hui comme auparavant, dispens6s d'observer les r6gles de droit et les formes de la proc6dure, ils d6cident suivant 1'6quit6 et la bonne conscience. Leui sentence, pourvu qu'elle soit dans les limites de leUrs attributions ne pent 6tre mise de c6t6 que pour fraude ou collusion.

Dalloz Vo. Arbitrage, (1)

Les amiables compositeurs sont les arbitres qu'on nommait autrefois arbitrateurs.

Ce sont ceux qui ont pouvoir de juger sans formalit6 judiciaire; ils peuvent tempirer la rigueur de la loi, 6couter '6quit6 naturelle que Forateur romain appelle laxamentum legis et prononcer non pro ut pro humanitas aut misericordia impellit regerer. Les arbitres au contraire doivent juger suivant la loi et observer les r~gles de la proc6dure.

Les amiables compositeurs sont affrancbis en outre des rgles du droit.

C'est ce qui les distingue des arbitres volontaires (2). Bioche, (3)

Cependant, lorsque les parties leur ont donn6, par le compromis, la facult6 de prononcer comme amiables compositeurs, ils peuvent se dipartir des rkgles du droit et suivre PWquit6 naturelle.

D'apris ces autorit6s, il est 6vident que les amiables compositeurs avaient le droit de rendre leur sentence dans la forme qu'ils ont adopt6e, c'est-h-dire d'une (1) Vol. 5, p. 67, No. 1019, ch.

525, No. 463.

manibre g~n6rale et sans entrer dans des d6tails. Mais leur sentence u'en est pas moins complite et porte sur McGREVY toutes les mati6res r6f~r6es comme on le voit par 1'extrait suivant de la sentence:- Now therefore, we, the said experts, arbitrators and mediators Fournier J. (amiables compositeurs),having been first duly sworn as appears the document hereto annexed, bearing date the twenty-fifth day of January last past, (1882), and marked A; heard the allegations of the said parties and their respective witnesses under oath, and having carefully examined the matters in controversy by them submitted to wit the extent of the obligations of the contract passed between the Government of Quebec and the said Thomas McGreevy; the alterations and modifications made in the plane, particulars and specifications mentioned in the said contract ; what influence the said alterations and modifications may have had on the obligations of the said Thomas

McGreevy and on those of the Government; the delays caused by reasons irrelevant to the action of the contractor, the pecuniary value, whether for more or for less, of the alterations or any increase in the works; and finally, all things connected with the matter and the execution of the said contlact, and with regard to the charges and obligations of both the Government and the said contractor, according to the terms of the said contract.

Comme ils le d6clarent, les amiables compositeurs out entendu les parties et leurs t6moins, et examin6 soigueusement toutes les matibres en contestation qui leur ont t soumises, qu'ils 6numbrent, en citant textuellement la partie du compromis qui les d6finit.

Ainsi il ne peut pas y avoir eu d'omissions, toutes les matibres r6f6rbes out t examin6es et d6cid6es.

Et c'est apris cela qu'ils out fix6 le montant dd par le gouvernement A 1'appelant.

I suffit de lire le compromis pour comprendre que la proposition de 1'appelant que la fixation de la somme due n'6tait pas r6f6r6e aux arbitres, n'est pas soutenable.

C'est l'unique but que les parties avaient en vue, celui d'arriver & un r~glement final et de mettre un terme aux incessantes r6clamations que faisait 1'appelant pour de grandes sommes d'argent lui revenant pour 1'ex~cution des travaux de son contrat. I'ailleurs la chose

193, est clairenent dite dans la clause du compromis que l'on trouve A la page 20 du dossier, comme le fait voir l'extrait suivant

And whereas, ever since the Government has taken possession of the Fournier J. said road, the contractor has never ceased to claim from the party of the first part the payment of large sums of money for the execution of the said works.

And whereas the said party of the first part does not feel justified in taking upon himself, not even with the assistance of the ordinary officers of hisDepartment, the task of determining the value of the claims of the said contractor, nor does he believe himself qualified to make a just appreciation of the definitive estimates of the Chief Engineer Mr. Light.

Now therefore, these presents and I, the said notary witness That the said respective parties hereto, in order to settle definitively all the controversies and difficulties existing between themselves in the premises, do hereby mutually covenant and agree to and with each other, to submit such controversies and difficulties, with all questions connected therewith, to the final decision of Walter Shanly, of the City of Montreal, Esquire, Civil Engineer, arbitrator and mediator (amiable compositeur) named by the said party of the first part, and Chas. Odell, of the City of Quebec, Esquire, Civil Engineer, arbitrator and mediator (amiable compositewr) named by the said Thomas McGreevy, who (both hereto present and accepting).

Comme on le voit par cet extrait la n6cessit6 de fixer le montant des r6clamations de l'appelant a t6 la raison d6terminaute du compromis, les autres questions inentionn6es dans la r6f6rence ne sont que des sujets d'examen pour en arriver & la solution principale, la fixation du montant dt par le gouvernement A l'appelant.

Si les amiables compositeurs n'eussent fait rapport d'une somme d6termin6e, ils auraient totalement failli A leur devoir, et leurs proc6d6s auraient t6 sans valeur. Non seulement il n'y a pas en en cela excis de pouvoir, mais en supposant m~me que le compromis eut t6 silencieux sur cette question, les amiables compositeurs avalent d'apris la loi et la jurisprudence le pouvoir de statuer sur le montant dAt & Pune des deux parties sans exc6der leur juridiction suivant 1'autorit6 de Dalloz (1) :

' Que charg6s de prononcer sur tous les diff6rends 61ev6s entre les THE parties, ils peuvent s'il a lieu, ordonner des compensations entre elles sans excider leur mandat ; ils peuvent en pareil cas, a dit la cour Royale, prescrire aux parties tout ce que, par voie de transaction, Fournier J. celles-ci auraient pu faire (Angers ler juin 1822, m~me esphee) ; c'est on le voit, donner la plus grande latitude au pouvoir des amiables compositeurs; et certes quand on examine, et la nature des ddbats qui divisent les parties et 1'intention manifest6e dans le compromis, on reste convaincu que le pouvoir des arbitres avait pu aller jusque-1h (2). L'appelant s'est aussi plaint que la sentence arbitrale est nulle parce que les amiables compositeurs n'ont pas donn6 les motifs de leur d6cision.

O'est meconnaltre compltement la loi qui r6git leurs fonctions que de les assimiler en cela aux cours ordinaires, en les pr6tendant soumis a l'obligation que la loi ne leur impose nullement de donner les motifs de leurs d6cision.

Bioche, (3).

Toutefois, le d6faut de motifs n'entraine pas la nullitd, si les arbitres sont amiables compositeurs.

Dans la cause de Allien v. Allien, (4) la cour de Bordeaux a d6cid6, le 28 novembre 1835, que les amiables compositeurs n'6taient pas oblig6s de motiver leur sentence.

L'appelant a invoqu6 un autre moyen pour attaquer la sentence en pr~tendant que les amiables compositeurs et les t6moins n'avaient pas prt. serment. C'est une 6vidente erreur de faits. La sentence contient la formule du serment pr.t6 par les amiables compositeurs et la minute de leurs proc6d6s contient la formule de l'assermentation des t6moins.

Un dernier moyen de l'appelant, encore moins fond que le pr~cedant, c'est que la sentence a 6t6 rendue ?A (1) Vo. Arbitrage, cb. 10, art. 3,

No. 1026, note 2, 3 et 4.

19.5 Hull, au lieu de I'tre dans la cit6 de Qu6bec. Il est McGN vrai que dans le compromis, il est dit que les amiables .

compositeurs rendront leur sentence A Qu6bec, dans les quatre mois de sa date.

II 6tait n6cessaire de fixer le Fournier J. d6lai dans lequel devait 6tre rendue la sentence. Cette formalit6 est 6tablie par l'article 1344, code de proc6dure: Il n'est nullement question de la fixation du lieu oi la sentence doit 6tre prononce, ni dans cet article, ni dans aucune autre loi.

Le fait que la sentence a 6t6 rendue A Hull, au lieu de Qu6bec, n'a aucune importance quelconque et n'affecte nullement les pouvoirs des amiables compositeurs.

L'appelant est le dernier qui devait offrir-une telle objection, puisque c'est A sa demande que les amiables compositeurs out procd6 & Ottawa, comme le prouve le t6moignage de Mr. Walter Shanly, l'un des amiables compositeurs. II a acquiesc6 A tous les proc6d6s en y assistant en personne, en s'y faisant aussi repr~senter par son frbre Robert McGreevy et par son conseil, Mr. Irvine.

Si cette objection avait quelque valeur, le defendeur a, par sa conduite, formellement acquiesc6 A la proc~dure des amiables compositeurs et renonc6 au droit, s'il en avait eu, de s'en pr6valoir. L'appel doit Atre d6bout6 avec d~pens. J.-The judgment appealed from in this case was rendered by the Court of Queen's Bench for the Province of Quebec, reversing a judgment of the Superior Court, in the district of Quebec.

The circumstances which have given rise to the present proceedings are as follows:- Thomas McGreevy, the present appellant, entered into a contract with the government of the Province of Quebec on the 24th September, 1875, for the construction of the eastern portion of the North Shore

Railway.

This railway was finally completed and handed over to the government in the month of Jannary, 1880.

During the course of the construction of the road various changes were made in the location of the line, causing extra expense and delay to the con- J. tractor, and at the period of the completion of the work and the delivery of it to the government, an estimate of the total cost of the road including allowance for extra work was made by Mr. Light, the government engineer.

Thereupon various questions and difficulties arose between the government and the appellant, he claiming more than the amount allowed by the government, and the government offering him a less amount, and in the month of June, 1881, an agreement was made between the government and McGreevy that the matters in dispute between them should be referred to the arbitration of Mr. Walter Shauly, appointed by the government,Mr.Charles O'Dell appointed by the contractor, and Mr. Sandford Fleming agreed upon as umpire by the first named gentlemen. The submission to the arbitratorsrecites the agreement between the parties, the variations in the location of the road and certain of the extra work which the appellant had been called upon to do, and the delays which various circumstances had caused in the construction of the work, and that the parties had agreed to refer the matter to arbitration in the way already mentioned. The matters referred to these arbitrators were : - The submission then goes on to specify the manner in which the proceedings are to be carried on, .the time within which the award is to be made and other particulars of minor importance.

The proceedings under this submission were held in the City of Ottawa.

On the 14th June, 1882, the arbitrators signed a document which was afterwards deposited with a notary as their award.

The document, after reciting a portion of the submission, contains the following finding:-" That we find that the government of the Province of Quebec is indebted to the Honorable Thomas McGreevy in the sum of $147,473." This amount being very much less than the amount claimed by the appellant he is now asking, for the reasons given in the petition, that this award should be held to be null and void. The Lieutenant-Governor having granted his fiat on the petition of right, proceedings were then taken in the usual way before the Superior Court, and on the 2nd March, 1885, Mr. Justice Caron rendered a judgment in which he granted the conclusion of the petition of right and declared the award to be null and void and of no effect whatever, mentioning as his reagon that the award did not cover the matters referred to the arbitrators in the submission. The Court of Appeals reversed the judgment of the Superior Court and dismissed the petition of right. The judges have not given their reasons for this judgment, and the only considdrant given in the judgment was a general one ,that the arbitrators had determined all the questions submitted to them, and that whatever irregularities there might have been in the proceedings of the arbitrators had been waived by the appellant.

I am of opinion that we should restore the judgment of the Superior Court. The arbitrators were bound to dispose of all the points submitted to them, the adjudication which they had undertaken. The only matter decided of by them was the simple fact that in their opinion the government owed the appellant the sum of $147,473. Now, in order to reach that final result, the submission provided that they should decide these several points: 1st. The extent of the obligations of the contract passed between the Government of Quebec and the said Thomas McGreevy.

2nd. The alterations and modifications made in the plans, particulars and specifications, mentioned in the 3rd. What influence the said alterations and modifications may have had on the obligations of the said Thomas McGreevy and on those of the government. 4th. The delays caused by reasons irrelevant to the action of the contractor.

5th. The pecuniary value whatever for more or for less of the alterations or any increase in the works and finally,

6th. All things connected with the matter and the execution of the said contract and with regard to the charges and obligations of both the government and the said McGreevy according to the terms of the said contract.

Not one of these points (the only matters referred to the arbitrators) was decided by them.

They have simply struck a balance of account and statedl the amount to which they considered the appellant entitled. The appellant, it seems to me, had the right to a decision on the various details mentioned in paragraph one of the matters submitted to the arbitrators. It was not sufficent, in my opinion, for the arbitrators to state that they had examined all the points referred to them. The submission obliged them to pass and determine on each of them which they have not done.

On this ground alone I would allow the appeal.

J.

GwYNNE J.-The whole contention upon this appeal, as argued before us, was that the award which the appellant seeks to set aside as null and void purports to decide a point which, as is contended, never was at all submitted to the arbitrators, namely, the amount in which the government of the Province of Quebec are justly indebted to him upon his contract for the construction of a portion of the North Shore Railway; and that it does not determine certain points which, as is contended, were the only points submitted to the arbitrators to be determined.

The construction of the submission deed appears to me to be that the sole object of the reference to the amiables compositeurs was to obtain their final determination of the true and just amount (under the particular circumstances recited in the. deed and having due regard to those circumstances) of the appellant's claims and demands against the government of the province of Quebec under his contract, which circumstances, " in the examination of the matter in litigation," between the parties to the reference, that is, in the examination of the amount due to the contractor by the government, the amiables compositeurs were required to inquire into, and to be governed by, in making their award as to the amount of the contractor's claim against the Government which was " the matter in litigation." The deed recites the various circumstances which the appellant relied upon as increasing the amount of his claims, viz:-the alterations in the route and plans of the railway from those originally designed when the contract was entered into; the delays alleged to have been caused to the contractor proceeding with the work which operated to his prejudice; the facts that, "with the view of determining and settling as quick as possible the claims of the contractor," it was agreed J. between him and the provincial government, that final estimates should be prepared by the Chief Engineer of the provincial government, and that so soon as these estimates should be approved the government should pay all moneys which should appear to be due and owing to the contractor; that those estimates were prepared by the chief engineer, and that the contractor (the now appellant) never ceased to claim from the provincial government large sums of money for the execution of the said work, and that the minister, representing in that matter the provincial government, not feeling himself justified in taking upon himself the task of determining the value of the claims of the contractor, or of appreciating the definitive estimates of the chief engineer, it was agreed between the contractor and the minister acting on behalf of and representing the provincial government to refer and submit all such claims and demands of the contractor to the decision of a board of arbitration. And in order to settle definitively all the controversies and difficulties existing in the premises, the appellant and the minister mutually covenanted and agreed to submit such controversies and difficulties with all questions connected therewith to the final decision of three aniables compositeurs named in the deed.

Now, from these recitals and the submission thereupon made, it is abundantly clear that the whole matter in controversy between the parties to the submission was as to the amount of the just claims and demands which the appellant under the special circumstances recited in the deed had against the provincial government, an inquiry into which matter V* involved, of course, an inquiry into the correctness of the estimate of such amount as made by the chief j. engineer.

The object of the reference plainly was that the persons named as arbitrators in the submission deed should, as competent experts and as amiables composileurs, finally determine the amount of the contractor's just claims which the minister, feeling himself not qualified to make a just appreciation of the definitive estimates of the chief engineer, declared himself to be incompetent to determine.

It was "the claims and demands " of the contractor for the amount contended by him to be due to him by the Provincial Government which constituted the special matter expressly agreed to be referred to the decision of the experts (amiables compositeurs) and the parties to the reference covenanted, that they should respectively execute and perform in every respect the award to be made by them, or by a majority of them, as a final and conclusive judgment of the highest court of justice. Now, from the terms of the deed of submission, there does not appear to have been anything which can be suggested, nor has there been anything suggested, which the provincial government could be called upon to execute and perform, or which they could execute and perform in obedience to an award made in pursuance of the submission, unless it be to pay the amount which should be awarded as due by the provincial government to the appellant in respect of the contract in the deed of submission mentioned.

The award instead of being made defective by pro. fessing to determine such amount would have been, in my opinion, wholly defective, barren and useless, if it had not done so finally and conclusively, so that it should operate, as it was expressed by the deed of submission and intended that it should operate, as a final and conclusive judgment of the highest court of justice. The award upon its face declares (and the truth of what is stated in it is not disputed) that the amiables compositeurs, in their examination of the matter owynne J. in litigation which as I have already said was, in my opinion, the true amount of the appellants' just claim against the government of the province of Quebec, did carefully inquire into and take into their consideration the several matters which the appellant relied upon as increasing the amount of his claim, stating them seriatim as they are set out in the deed of submission, and that having done so they unanimously found the true amount in which the government of the province of

Quebec were indebted to the appellant to be the sum of $147,473.

They have thus, in my opinion, complied with the object and intent of the deed of submission, and we should defeat the intention of the parties as expressed in that deed if we should pronounce the award to be null and void upon the ground urged, and as this was the only ground which was relied upon, the other points of objection stated in the petition of right not having been pressed, I am of opinion that the appeal should be dismissed with costs.

J.-I am also of opinion that this appeal should be dismissed with costs.

Appeal dismissed with costs.