Majority
fin un d6lai de six mois h partir de la signification du jugement de cette cour, pass6 lequel elle sera d6chue de cette option.
L'appelant aura les frais de la Cour du Bane du Roi, Mignault J. mais, suivant la condition de la permission d'appel qu'il a obtenue, il devra payer A l'intim6e ses frais devant cette cour.
Appeal allowed.
Solicitors for the appellant: St. Laurent, Gagnd, Devlin &
Taschereau.
Solicitor for the respondent: Elziar Livesque.
GATINEAU POWER COMPANY (PETI- TIONER) .................................
May *May28. AND
FREEMAN F. T. CROSS (RESPONDENT) . .. RESPONDENT.
ON APPEAL FROM THE KING'S BENCH, APPEAL SIDE,
PROVINCE
Judgment of the Court
Coss.
RINFRET J.-The Gatineau Power Company applied to the Quebec Public Service Commission for authority to expropriate a portion of the lot twenty-four in the fifteenth range of the township of Hull
*
*
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, power-house and portion of the penstock connecting the said power-house with the dam on Meech's Creek and forming part of a water-power known as Meech's Creek power, belonging to Freeman T. Cross.
It is alleged that the development of the applicant company's water-power at Chelsea Falls would have the effect of submerging these lands, constructions and water-power, which have a permanent force of less than two hundred horse-power.
The petition was made under section 28k of the Public Service Commission Act (R.S.Q. 1925 c. 17 as amended by 16 Geo. V, c. 16, s. 6).
The Quebec Public Service Commission refused to give the authorization applied for.
Under the Public Service Commission Act, an appeal lies to the Court of King's Bench as follows:
58. An appeal shall lie to the Court of King's Bench (Appeal Side) in conformity with article 47 of the Code of Civil Procedure, from any final decision of the Commission, upon any question as to its jurisdiction, or upon any question of law, except in expropriation matters, but such appeal may be taken only by leave of a judge of the said court, given upon a petition presented to him within fifteen days from the rendering of the decision, or from the homologation thereof in cases where the same is required, notice of which petition must be given to the parties and to the Commission within the said fifteen days. The costs of such application shall be in the discretion of the judge.
An application for leave to appeal under the above section was made to a Judge of the Court of King's Bench, who granted it.
On motion of Cross, however, the full court subsequently quashed the order for leave on the ground that this was an appeal " in expropriation matters," which are specially excepted from the jurisdiction of the Court of King's Bench. The Gatineau Power Company then served notice of appeal to the Supreme Court of Canada, and Cross now moves to quash for want of jurisdiction.
The appeal is from the judgment of the Court of King's Bench only and the question to be decided on the motion is therefore: Whether an appeal lies to the Supreme Court o"n of Canada from a judgment rendered in a provincial court where the appeal to that court was quashed for want of jurisdiction.
J. Since the amendments to the Supreme Court Act (10-11 Geo. V., c. 32) which came into effect on the first day of July, 1920, and " except as otherwise provided by sections thirty-seven and forty-three " (which have no application here):
(i.e. from the highest court of final resort having jurisdiction in the province in which the judicial proceeding was originally instituted).
Here, no special leave to appeal was obtained. In order therefore to entertain jurisdiction, this court must find that the amount or value of the matter in controversy in the appeal exceeds the sum of two thousand dollars.
The matter in controversy in this appeal, as we have seen, is whether in the premises there exists a right of appeal to the Court of King's Bench from the decision of the Quebec Public Service Commission refusing to allow the expropriation.
Should we come to the conclusion that such right exists, all that we could do would be to remit the case to the Court of King's Bench to be there heard on the merits. In turn, the only question then to be decided by the Court of King's Bench would be whether the Quebec Public Service Commission was right in holding, as it did, that it had no jurisdiction, under section 28k of c. 16 of the statute of 1926, to authorize the expropriation of an established industry or of a water-power already developed.
Assuming this was held otherwise by the Court of King's Bench or by us on a further appeal, the application would return before the Commission, which might or might not then authorize the expropriation. Its order, in any event, would be made in the exercise of judicial discretion. Thus, the whole matter in controversy, even if traced back to the Commission-and
Statutes and regulations cited
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Unresolved citations
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