In s. 37 (3) of the Supreme Court Act (R.S.C., 1927, c. 35, as amended by I Geo. VI, c. 42), the words "highest court of final resort having jurisdiction in the province"
(from which court only, save as provided, an appeal lies to the Supreme Court of Canada) mean the highest court of appeal having jurisdiction generally in the province, and do not refer to the highest court in the province to which appeal can be taken in the particular case sought to be appealed to the Supreme Court of Canada.
An appeal to the Supreme Court of Canada from the decision of a County Court Judge in Ontario dismissing an appeal from the decision of a court of revision affirming an assessment made under a city by-law passed under the provisions of s. 120a (enacted in 1934, c. 1) of The Assessment Act, R.S.O., 1927, e. 238, was quashed for want of jurisdiction.
MOTION on behalf of the Corporation of the City of Toronto, respondent, for an order quashing the appeal herein from the decision of His Honour Judge Denton, a Judge of the County Court of the County of York, dismissing the appellant's appeal from the decision of the Court of Revision for the City of Toronto affirming an assessment of appellant in respect of income for the year 1936, made under a by-law of the city passed in 1934 under the provisions of s. 120a (enacted in 1934, c. 1) of The Assessment Act, R.S.O., 1927, c. 238.
Corresponding provisions are now in R.S.O., 1937, c. 272, s. 123. The first two grounds of the motion were: (1) that the Assessment Act, R.S.O., 1937, c. 272, s. 123, subs. 8, provides that no appeal shall lie from the decision of the County Court Judge; (2) that the judgment of His Honour Judge Denton is not a judgment of the highest court of * PRESENT:-Duff C.J. and Rinfret, Cannon, Kerwin and Hudson JJ. S.C.R.]
final resort established in the province of Ontario within the meaning of the Supreme Court Act, R.S.C., 1927, 35, ss. 35 to 41, as amended by 1 Geo. VI, c. 42.
J. P. Kent K.C. for the motion.
H. F. Parkinson K.C. and H. C. F. Mockridge contra.
Farquharson v. Imperial Oil Co. (1), Strong C.J. said:
The phrase " highest court of last resort " is not distinguishable from the phrase "highest court of final resort" in section 37 (3) of the Supreme Court Act as it now stands.
The words " whether the judgment or decision in such proceeding was or was not a proper subject of appeal to such highest court of final resort " appearing in the section as it formerly stood were discarded as being surplusage in the amending Act of 1 Geo. VI, ch. 42, s. 1. Nevertheless, their presence in the section in its earlier form would be sufficient to demonstrate that the words "highest court of final resort in the province " had and have the meaning ascribed to " highest court of last resort " by Strong C.J. in the passage quoted. Pearce v. City of Calgary (3), cited on behalf of the appellant, was a decision of the Registrar upon the construction of section 41 of the Supreme Court Act (R.S.C., 1906, ch. 139) which has since been repealed. The phrase under consideration there was "the judgment of any court of last resort created under provincial legislation to adjudi-
Statutes and regulations cited
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Unresolved citations
- s. 37