Surveyer et al. v. H.G. Acres and Co. Ltd.

ABBOTT J.:-This appeal, by leave under s. 41 of the Supreme Court Act, is from a majority judgment of the Court of Queen's Bench' reversing an interlocutory judgment of the Superior Court made under art. 292 of the Code Taschereau, Fauteux, Abbott, Martland and Ritchie JJ. 1[19611 Q.B.

S.C.R.

of Civil Procedure, which ordered that four actions then pending in the Superior Court be tried at the same time and decided on the same evidence in so far as the pleadings would permit.

In two of the said actions, appellants were the defendants and the plaintiffs were respectively the Quebec North Shore Paper Company and the Laurentian Forest Protective Association Limited, both claiming substantial damages arising from a forest fire allegedly due to negligence on the part of employees of appellants. A third action was taken by the said Laurentian Forest Protective Association Limited against the Quebec Hydro-Electric Commission, for damages arising out of the same cause of action. These three actions were ordered joined for trial by a previous judgment of the Superior Court.

Some eighteen months after the said three actions were taken, appellants instituted the present action against respondent, asking that by reason of a contractual arrangement alleged to subsist between the parties, appellants be indemnified by respondent in the manner set forth in their declaration.

Two questions arise on this appeal:

(1) Whether under art. 292 C.C.P. the court has any authority to join for trial actions in which the parties are not the same.

(2) If s.uch authority exists, whether it should have been exercised.

On the first question the substance of appellants' argument, shortly stated, is that art. 292 C.C.P. must be read independently of art. 291 C.C.P. Respondent's argument is the opposite, namely that art. 292 C.C.P. must be read as subject to the provisions of art. 291. On this point there appear to have been conflicting opinions expressed in the Quebec courts, and Mr. Mercier in his able argument suggested to us that this Court should resolve those differences. For the purposes of this appeal, however, we do not find it necessary to resolve such a difficulty if it exists.