Majority
PETITION by way of requete civile to have a judgment of this court, pronounced on 1st May, 1897, set aside and the proceedings in the cause re-opened. The petitioner was plaintiff and appellant in the case decided on 1st May, 1897, in the report of which (1) will be found a statement of the matters there in issue. The petition in revocation(requdte civile) now presented asks to have the judgment of the Supreme Court of Canada and of the courts below set aside on the ground that the dismissal of a petitory action brought by the petitioner had been obtained through fraudulent concealment by the respondent of a deed of lands, which the petitioner had discovered only since the judgments were rendered.
Prior to the presentation of the petition, the certified judgment of the Supreme Court of Canada had been transmitted tolthe court of original jurisdiction under the provisions of the sixty-seventh section of " The Supreme and Exchequer Courts Act." Belcourt for the petitioner, quoted C. P. Q. arts. 505 and 1177; R. C. c. 135, ss. 59, 61, 96"& 98; and cited Cooke v. Caron
Geoffrion Q.C. for the respondent.
So far, at least. as this court is concerned, the judgment in question is DURoHER final and conclusive, between all parties and privies, as ** to material facts; C. C. P. arts. 505 to 509 and art. 1166; See also Law v. Hansen, (1); and cases cited by Mignault (2) at 505 0. 0. P. also R. S. C. c. 135 s. 67. The petition cannot be entertained.
Judgment of the Court
TASCHEREAU J.-The appellant, in 1894, brought a petitory action against the defendant.
His action was dismissed by the Superior Court and the Court of Appeal in Montreal, by a judgment which was confirmed by this court in May last. The case is reported at page 363 of vol. 27, Supreme Court Reports, where the details fully appear. The appellant now seeks to set aside the judgment of this court, and the judgments against him in the courts below, by a requete civile, under article 1177 of the new Code of Civil Procedure.
The conclusions of his petition are: That by the judgment to be rendered upon this present petition, he will be held and declared to be the proprietor of five-twelfths of the lot above described, and bearing the number 22 of the official plan and book of reference for St. Louis Ward of the City of Montreal, as he would have been so held and declared, pursuant to the conclusions of his said action, cited in the course of the proceedings taken on the present petition, had the defendant declared the truth at the trial, and the judgment of the Superior Court of the District of Montreal, rendered in this suit on the thirteenth of April, one thousand eight hundred and ninety-five, the judgment of the Court of Queen's Bench sitting in appeal side for the District of Montreal, rendered in this suit on the twenty-ninth of October, one thousand eight hundred and ninety-six, and the judgment of the Supreme Court of Canada, rendered on or about the first day of May last (1897) be considered as not having been rendered, and be set aside and annulled.
The ground upon which this petition is based is that he has since the judgment of this court discovered a (1) 25 Can. S.C.R. 69.
(2) Code de Procddure Civile (annotd).
deed of the 25th November, 1867, which said deed, he alleges, was fraudulently concealed by the respondent, V"
and that it is by fraud that the respondent obtained the dismissal of appellant's action.
Without entering upon the merits in law of the allegations of the petition, or upon their sufficiency insufficiency, if proved, to support a requdte civile, we dismiss it upon the simple ground that we have no jurisdiction to entertain it.
Section 67 of The Supreme Court Act enacts that:- Now, in this case, the judgment and the record have been sent back to the Superior Court at Montreal, and this court has now no jurisdiction over it of the nature of the remedy asked for by the petitioner. We do not, of course, determine whether the Superior Court has, has not, in this case, upon the allegations of the petitioner, jurisdiction to entertain his demand. We determine nothing but that we have no jurisdiction. There are cases in which this court has, as every court must have, power to annul errors in its own judgments, as we did for instance, in Rattray v. Young but this is clearly not one of them.
See also Providence Washington Insurance Co. v. ; and Dawson v. Macdonald
Petition dismissed with costs. Solicitors for the petitioner : Robidoux, Chinevert 4- Robillard. Solicitors for the respondent: Geofrion, Dorion 4- ............
Re COAL MINES REGULATION ACT, 1890. MOTION to quash an appeal from an opinion or judgment of the Supreme Court of British Columbia en banc pronouncing the Statute of the Province of British Columbia cited as the " Coal Mines Regulation Amendment Act," 1890, to be within the scope of the legislative authority of the legislature of the Province of British Columbia.
The Lieutenant-Governor of British Columbia in Council made a reference to the Supreme Court of British Columbia pursuant to the provisions of 54 Vict. ch. 5, (B.C.) intituled " An Act for expediting the decision of constitutional and other provincial questions," for hearing and consideration of a case submitted to ascertain whether in the opinion of that court the legislature of the province had jurisdiction to pass the Act 53 Vict. ch. 33, (B.C.) intituled " An Act to amend the Coal Mines Reogulation Act." The or full court heard and considered arguments by parties interested in the decision of the question and certified to the Provincial Secretary that the conclusion arrived at was that the statute in question was within the scope of the legislative authority of the Province of British Columbia.
The present appeal is from the opinion so expressed by the court upon such reference which by the provincial statute (1) is declared to be a judgment of the court.
The respondents moved to quash the appeal for want of jurisdiction.
Robinson Q.C. for the motion, McCarthy Q.C. and McInnes with him.
The certificate given by the court is not in any way a final judgment binding upon any person, but is merely intended to advise the Provincial Secretary that in the opinion of the judges a certain statute was within the legislative competence of the Provincial Assembly. It is not in any sense resjudicata; it decides no controversy.
The Queen v. Robertson per Strong J.
See also remarks by Taschereau J. in The Attorney General of Canada v. The Attorney General of Ontario (3); and In re Provincial Fisheries (4). It is not a final judgment within the meaning of " The Supreme and Exchequer Courts Act," sections 24, 26 & Hogg Q.C. contra.
Judgment of the Court
J.-54 Vict., ch. 5, of the statutes of British Columbia, authorizes the Lieutenant-Governorin-Council to refer to the Supreme Court of the province, or to a Divisional Court thereof, or to the full court, for hearing and consideration, any matter which he thinks fit so to refer, and the opinion of the court, or upon such a reference, is to be deemed a judgment of C . the court, and an appeal shall lie thereon, says the Act, as in the case of a judgment in an action.
This appeal is taken from the opinion of the court of British Columbia upon a reference under the afore- .Tasehereau said Act.
We clearly have no jurisdiction to entertain J. the appeal. There is no judgment to be appealed from. The British Columbia statute itself says " shall be deemed a judgment."
That is saying that it is not a judgment. There is no action, no parties, no controversy perhaps, and the British Columbia legislature, did it intend to do so, cannot extend our jurisdiction, and create a right to appeal to this court.
The motion to quash is allowed, and the appeal quashed without costs.
Appeal quashed without costs.
Solicitors for the appellants: Davie, Pooley J. Luxton.
Solicitor for the respondent, The Attorney General:
The Attorney General in person.
Solicitors for the respondents, The New Vancouver
Coal Mining & Land Co.: Drake, Jackson 4 Helmcken.
Solicitors for the respondents, The Miners & Mine Labourers Protective Association of British Columbia:
W. W. B. McInnes.
Statutes and regulations cited
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Supreme Court Act
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Unresolved citations
- ss. 59
- 61
- 96
- s. 67