The King Ex Rel. Tolfree v. Clark et al.

are satisfied it would not be proper to grant leave to appeal in this case.

The Legislature of the Province of Ontario, by a statute passed in 1942 as chapter 24 and known as The Legislative Assembly Extension Act, 1942, enacted as follows:- But for this statute, the twentieth Legislative Assembly of Ontario would have expired, we are informed, by operation of law on or before the 19th of October, 1942; but pursuant to its enactments a session of the Legislative Assembly was convoked for and continued to sit from the 9th of February, 1943.

On the 30th of June, 1943, the "then present" Legislative Assembly was dissolved by the Lieutenant-Governor of the Province.

On the 15th of March, 1943, notice of motion in the nature of quo warranto was given on behalf of the relator, Carl Powis Tolfree, for an order that the respondents should show cause why they did unlawfully exercise -or usurp the office, functions and liberties of a Member of the Legislative Assembly of Ontario during and since the month of February, 1943, contrary to the provisions of the British North America Act,

The respondent then moved to strike out this notice of motion as frivolous and vexatious and as disclosing no reasonable cause of action. On the 17th of April, 1943, an order was made by Mr. Justice Hope striking out the notice of motion. An appeal to the Court of Appeal was dismissed on the 11th of June, 1943, and on the 23rd of June, 1943, an application to the Court of Appeal for leave to appeal to this Court was refused.

Admittedly the application by way of quo warranto was for the purpose of obtaining a judicial pronouncement upon the validity of the statute of 1942 extending the life of the Legislative Assembly, as well as section 3 of The Legislative Assembly Act.

Nevertheless, the direct and immediate object of the proceeding was to obtain a judgment forejudging and excluding the respondents from sitting and exercising the functions of members of the "then present" Legislative Assembly; and obviously, the Legislative Assembly having been dissolved since the delivery of the judgment of the Court of Appeal, such a judgment could not now be executed and could have no direct and immediate practical effect as between the parties, except as to costs. It is one of those cases where, the state of facts to which the proceedings in the lower Courts related and upon which they were founded having ceased to exist, the sub-stratum of the litigation has disappeared.

In accordance with well-settled principle, therefore, the appeal could not properly be entertained. The fact that some important question of law of public interest was -or might be pertinent to the consideration of the issue directly and immediately raised by the proceedings does not affect the application of the principle. Archibald v. Delisle (1); Delta v. Vancouver Rly. Co. (2). The application must be dismissed with costs.

Application dismissed with costs.