Greenlees v. Attorney-General for Canada

law. The suppliant then served a notice of motion for an UNIoN order that the following question of law should be set down and disposed of before the trial:- Whether a cause of action against His Majesty is disclosed in the THE KiNa Petition of Right herein or such other or additional preliminary question Kerwin j.

of law as is raised by the statement by defence herein.

Upon that motion it was suggested that the agreement of October 30th, 1940, and P.C. 4076 as amended by P.C. 4553, should be considered, and the order was made accordingly. Under all the circumstances, the costs of that application and of the argument on the question of law and of this appeal should be costs in the cause.

J.:-L. K. Greenless brought an action against the Attorney-General for Canada, claiming a declaration that he is a minister of a religious denomination within the meaning of section 3, subsection 2, of the National Selective Service Mobilization Regulations, 1944. By subsection 1, the Regulations are stated to apply to such age classes, or parts of age classes, of men as the Governor in Council may, from time to time, by proclamation in the Canada Gazette, designate for the purpose. Then comes subsection 2, which so far as material provides:

A preliminary objection was raised that the appellant was not entitled to bring the action but the trial judge, Mr. Justice Hogg (2), concluded that he had jurisdiction and that it came within such cases as Dyson v. Attorney- General (3).

However, while inclining to the view that there is a religious denomination known as Jehovah's Witnesses, he held that the plaintiff was not a "minister" of that denomination, and dismissed the action.

Upon appeal to the Court of Appeal for Ontario (1), the Chief Justice of the province, writing the judgment of J. the Court, expressed no opinion upon the preliminary objection. He concluded that notwithstanding the stand taken by Jehovah's Witnesses as to "religion", it would be proper to say that the word "religious" in Regulation 3(2(c)) might be applied to them. He had more difficulty with the question whether they constituted a denomination, and he concluded that he was far from satisfied that, the onus being upon the plaintiff to bring himself within an exception, the evidence warranted a finding that those calling themselves "Jehovah's Witnesses" constituted a "religious denomination" within the meaning of the Regulation. That was sufficient for the dismissal of the appeal but he agreed with the conclusion arrived at by Mr. Justice Hogg that, even assuming they were a religious denomination, the appellant was not a minister thereof.

The plaintiff sought leave from the Court of Appeal for leave to appeal from its decision but that leave was refused. He then applied to this Court for special leave and admitted that the only provision giving this Court power to grant leave must be found in clause (c) of section 41, Supreme Court Act, reading as follows:

Mr. How endeavoured to distinguish the decision of this Court in Bland v. Agnew (2), where it was held that section 41, when enacted substantially in its present form in 1920 by chapter 32, section 2, did not profess in terms to introduce any change in the well-settled practice that no appeal would lie unless the matter in controversy involved or affected something in the nature of a pecuniary or economic interest, present or future.

It was there held that there was no jurisdiction in this Court to grant special leave to appeal from the Court of Appeal for British Columbia dismissing the applicant's appeal from an order allowing the adoption by respondents of the applicant's daughter.

Mr. How argued that this rule had been broadened by this Court since that decision, and he referred to Forcier v. Coderre (1), Christie v. The York Corporation (2) and Le Comitg Paritaire v. Dominion Blank Book Company Limited (3). In the first of these cases the application was actually refused -and the statement of the present Chief Justice, at page 551:

must be read in the light of what was involved, viz., the title to real estate under clause (d) of section 41. In the

Christie case (2) there was an economic interest involved as the plaintiff claimed, among other things, damages, while in the third case, the judgment at the trial was finally restored, as would appear by a reference to the report of that decision (4), wherein, besides other relief, damages in the sum of $33.80 had been ordered to be paid.

None of these decisions has made any inroads upon the principle set forth in Bland v. Agnew (5).

Mr. How then sought what would really amount to a reversal of the jurisprudence of this Court in connection with applications for special leave to appeal under section

41 (c) by emphasizing the fact that the paragraph speaks of matters by which rights in future of the parties "may"

be affected; and he suggested that the plaintiff's right to exemption as a minister or clergyman in charge of a diocese, parish or congregation under Rule A to the First Schedule to the Income War Tax Act, or his claim to a railway pass under the provisions of the Railway Act, or his standing under various other enactments might be affected. That overlooks that Bland v. Agnew (5) merely reiterates the well-settled jurisprudence set forth in a line of decisions, some of which are there referred to, that it is the matter in controversy in the appeal that must be looked at, and the mere fact, that, even in a case sought to be appealed to this

Court, a judgment would deal with incidental matters involving a condemnation in money, would not give the

Court jurisdiction to entertain the appeal.