Judgment of the Court
DUFF C.J.-This is an application to affirm the jurisdiction of this Court to entertain an appeal from a pronouncement of the Court of Appeal for Ontario dated 17th of February, 1933.
The pronouncement of the Court of Appeal was given in exercise of that court's jurisdiction under s. 26 of the Arbitration Act, ch. 97 (R.S.O., 1927), which is in these words:
An arbitrator or an umpire may at any stage of the proceedings and shall, if so directed by the court, state in the form of a special case for the opinion of the court any question of law arising in the course of the reference and an arbitrator or umpire appointed under the authority of a statute or by a court or judge shall, when so directed by the court, state the reasons for his decision and his findings of fact and of law. This section originally appeared in the Arbitration Act of 1897 (60 V., c. 16) as s. 41, reading as follows:
Any County Judge, referee, arbitrator or umpire may at any stage of the proceedings under a reference, and shall, if so directed by the Court or a Judge, state in the form of a special case for the opinion of th2 Court any question of law arising in the course of the reference. By an amendment in 1927, the section was altered and brought into the form in which it appears in the Revised ciry Statutes of Ontario, 1927, as quoted above. The amendment does not materially affect the point I am about to discuss. The section, in its original form, in s. 41 of c. 16 of Co.,, the Statutes of 1897, was taken almost verbatim from s. 19 of the Arbitration Act of 1889 (Imp.), the only difference being that,
Duff CJ. Any referee, arbitrator, or umpire may at any stage of the proceedings
* * * in s. 19, was altered to read,
Any County Judge, referee, arbitrator, or umpire may at any stage of the proceedings in s. 41.
In 1892, the Court of Appeal had to consider in In re Knight and Tabernacle Permanent Building Society (1) whether an opinion pronounced by a Divisional Court in exercise of the jurisdiction given by s. 19 of the Arbitration Act of 1889 was a judgment from which an appeal would lie to the Court of Appeal.
The Court, Lord Esher, M.R., Bowen and Kay, LL.J., held that it was not. Lord Esher points out that the question of law is not under the statute stated "for the 'determination' or 'decision' of the Court," and he held that no determination or decision amounting to an appealable judgment was contemplated by the section.
Bowen, L.J., said (p. 619) that the submission of the case is an interlocutory proceeding in the reference, and I do not think that it can have been intended that, Whenever a case is stated under this section for the opinion of the Court, such opinion when taken is to be treated as an absolute determination of the rights of the parties with the result that there may be an appeal from it which may be carried to the House of Lords.
Kay, L.J., said (p. 621),
I think that it is impossible, looking to the language of the Arbitration Act, to say that the opinion given on the special case stated under s. 19 is a judgment or order. I do not think that the section contemplates that the Court should give any judgment or make any order, but simply that it should express an opinion.
These views, expressed by the judges of the Court of Appeal, constitute the ratio of the decision in that case.
As we have seen, s. 41 of the Ontario Arbitration Act of 1897 reproduces with no material modification the words of %1) [18921 2 Q.B. 613.
S.C.R.]
s. 19. The note in the margin shows the origin of s. 41. Indeed, the Arbitration Act of 1897 is in great part a reproduction of the English Arbitration Act of 1889.
is now, perhaps, permissible to say that the observations of Sir Montague Smith in Trimble v. Hill in the Judicial Committee (1), as to the authority which in this Court should be ascribed to the decision of the Court of Appeal upon the construction and effect of an English statutory enactment which has been reproduced in a Canadian statute, are a little too absolute. Robins v. National Trust Co. (2).
Nevertheless, it is difficult to suppose that the framers of the Arbitration Act of 1897 were unaware of the construction which had been attributed to s. 19 of the English Arbitration Act of 1889; and, be that as it may, the reasoning of the eminent judges who considered s. 19 in 1892 appears to me to be unanswerable.
It follows that the pronouncement of the Court of Appeal for Ontario in this matter is not a final judgment in the sense that it binds the parties to it and concludes them from taking exception to any ultimate award by the arbitrator founded on that opinion.
It may be observed further that this view is confirmed by the judgment of Lord Haldane in British Westinghouse Electric & Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. (3).
The application must be dismissed with costs.
Application dismissed with costs.
Statutes and regulations cited
-
Unresolved citations
- s. 26 of the Arbitration Act
- s. 41
- s. 19 of the Arbitration Act
- s. 19
- s. 41 of the Ontario Arbitration Act
- s. 19 of the English Arbitration Act