St. Francis Hydro Electric Co. Ltd. v. The King and Southern Canada Power Co. Ltd.

19st

ST. FRANCIS

HYDRO

ELECTRIC

*May 21.

COMPANY LIMITED AND

OTHERS

APPELLANTS; une6.

(PLAINTIFFS)

.......................

AND

HIS

MAJESTY

THE

KING

AND

SOUTHERN

CANADA

POWER

RESPONDENTS. COMPANY LIMITED (DEFENDANTS) J

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

RINFRET J.-A motion has been launched by each of the respondents to quash this appeal for want of jurisdiction. The action was brought by way of a petition of right against His Majesty the King and Southern Canada Power Co. Ltd., seeking to set aside an emphyteutic lease entered into between the province of Quebec and the Power Company comprising the bed of the St. Francis River at or near *PRESENT:-Duff CJ. and Rinfret, Cannon, Crockett and Hughes JJ. Spicer Rapids, on the grounds:

(a) that the river was neither navigable nor floatable, and consequently belonged &. not to the Crown but to the appellants usque ad medium filum aquce as riparian owners; and, (b) that, even if the river were floatable or navigable, the petitioners' titles having been granted in free and common soccage carried with them the right to the bed and banks of the river. Rinfret J. In the Superior Court, on the question of navigability and floatability, the respondents tendered certain historical evidence concerning the condition of the river at or about the time the appellants' lots were granted at the beginning of the nineteenth century. The learned trial judge rejected the evidence thus submitted.

The learned judge found that the river was neither floatable nor navigable opposite the appellants' properties, and set aside the lease between the Crown and Southern Canada Power Co. Ltd.

The Crown and Southern Canada Power Co. appealed to the Court of King's Bench, which maintained the appeal because of the refusal of the trial judge to admit the historical evidence and referred the record back to the Superior Court for further enqu~te, in order that the historical proof might be received in the record, the right of the adverse party to contradict it being reserved, and that, upon the said proof being submitted, the Superior Court might deal with the case on the merits; Mr. Justice Howard and Mr. Justice Bernier dissenting-the first named judge being in favour of maintaining the appeal and the second named judge being in favour of dismissing it.

The respondents allege that the judgment of the King's Bench is not a final judgment, and that consequently this Court is without jurisdiction to hear an appeal from that judgment.

We have come to the conclusion that the motion to quash should be granted.

As pointed out in Davis v. The Royal Trust Company (1), in order that a judgment may come under the definition of a "final judgment" in s. 2 (b) of the Supreme Court Act, it must have, " in whole or in part," determined or put an end to the issue raised and in respect to which the judgment was rendered.

S.C.R.]

Dealing with the judgment a quo only as a matter of &r.

interpretation, it seems to us that it determined nothing with regard to the titles or the rights relied on by the parties, and that it is purely provisional. The dispositif, in our view, makes that clear. It says:

A It will thus be seen that all the judgment does is to refer the record back to the trial court for further enqu~te. It does not even decide that if the evidence already tendered or other evidence of a similar character be established, a certain result will conclusively follow.

No directions, in that respect, are given to the Superior Court; far less is there to be found in the judgment any declaration to that effect binding upon the Court of King's Bench. Both courts are left entirely free to appreciate the new evidence and to decide upon it, concurrently with the facts already of record, in absolute independence.

To paraphrase the words of M. Lacoste ("De la chose jug6e," no 50):

Nor is a judgment like the present one in the nature of the judgment "directing a new trial" contemplated by s. 36 of the Supreme Court Act. While it may be said perhaps that in enacting subs. (b) of s. 36 ("a judgment granting a motion for a nonsuit or directing a new trial") Parliament had in mind only jury trials-as to which it is unnecessary to decide here,-there is no doubt that, in the premises, the judgment does not order a new trial. The supplementary enquite will be merely the continuation of the original trial. The record will remain exactly as it is, and the future judgment will have to be pronounced upon that record, except that special leave is given to adduce further evidence upon the particular point and within the limited scope therein expressly stated. Otherwise the parties remain precisely in the same position as they were before, apart from the fact that the first judgment is set aside.

(And see Hudon v. Tremblay (1)).

ar. The appellants, however, pointed to the following considdrant:

and they expressed the fear that, if their appeal were not asserted, this considirant might constitute res judicata against them.

We are of opinion that this is not well founded. Under the Civil Code (art. 1241) the authority of res judicata " applies only to that which has been the object of the judgment."

At bar, Mr. Geoffrion, while conceding-as well he might-that res judicata will sometimes result from the implied decision (though stated only in the motif), which is the necessary consequence of the express dispositif of the judgment (Refer Ellard v. Millar (2)), was frank to admit that, in the ensuing proceedings, it would not be possible for his clients to contend that the issue raised in respect of the title under franc and common soccage was finally determined between the parties in virtue of the above consid6rant.

In our view, the whole case is left open by the judgment appealed from. It may be that the trial judge and even the Court of King's Bench will feel inclined to follow the opinion expressed in that considgrant. In no way, however will that be as a result of chose jug6e; and we are definitely of the view that the parties will not be bound by it in such a way as to be prevented from raising the point before a higher court, should there be an appeal to such court after the final judgment has been delivered. (Davis v. Royal Trust (3)).

We are the more influenced in giving that interpretation to the judgment a quo and towards construing it as not having determined the issue now in question, because, in their reasons for judgment, two only of the judges of appeal have expressed any opinion upon the point which forms