Bain v. Anderson & Co.

OMar. *May 14. ANDERSON

& CO., AND THE

ANDERSON FURNITURE COM- RESPONDENTS. PANY (DEFENDANTS)..................I

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

J.-Objection to our jurisdiction in this case was taken by the respondent in limine, on the ground that the amount demanded does not exceed the sum of $1,000 as required by 60 and 61 V. ch. 34 (D).

The amount claimed by the action exceeds $1,000, but the amount awarded to the plaintiff by the court of first instance is only $408.

Upon appeal by the defendants, the Court of Appeal dismissed the action in toto, and now upon this appeal by the plaintiff, all he claims is that the original judgment in his favour for $408 be restored.

And that being so, the respondent argued that as the amount demanded does not exceed $1,000, the case is not appealable under paragraph "f," of section 1 of said statute, the amount demanded, in that section, meaning as he contended, the amount demanded upon the appeal.

We held that under the ruling in Laberge v. The Equitable Life Assurance Society it is the amount demanded originally by the action, not the amount demanded upon the appeal, that.governs where the right to appeal is dependent upon the amount in dispute, and the case proceeded upon the merits. As no reference has been made to paragraph " c " of the same section of the statute, it was taken for granted that the enactments in pari materia, as to Quebee appeals, were the same as those now existing by the said statute for the Ontario appeals, but since, upon reference to the statutes, I find that for the Quebec appeals, it is the amount in controversy that governs, whilst for the Ontario appeals it is the amount in controversy in the appeal. So that to reconcile paragraphs and 'fy" section 1lof this statute, 60 & 61 V. 34, we should perhaps read paragraph "f " as if it meant the amount demanded upon the appeal. However, as we are to dismiss the appeal upon the merits, it is unnecessary in this case to rehear the parties on this question jurisdiction, or to further consider it. And what I say of it now is a mere expression of my personal opinion upon the question, as at present advised.

I may add, again speaking for myself, that it clearly appears by the preamble of this last Dominion statute, that the intention of Parliament was to confirm the Ontario Acts on the subject.

Now, these Acts (2) clearly restrict the right of appeal to. cases where the amount in controversy sn the appeal exceeds $1,000.

So that to apply the ruling in Laberge v. The Equitable Life Assurance Society to Ontario appeals would seem to be contrary to the intention of Parliament.

On the merits, assuming that we have jurisdiction, A.

(The Great Western Railway Company of Canada Braid we are of opinion the appeal should be dismissed.

The learned judge who tried the case found that the appellant had been dismissed without reasonable notice, and was entitled to damages

The Court of Appeal, however, held that upon the evidence there was no definite engagement of appellant, but merely a temporary employment, and dismissed his action. It cannot at the present day be contended that, as a rule of law, where no time is limited for the duration of the contract of hiring and service, the hiring has to be considered as a hiring for a year.

The question is one of fact, or inference from facts, the determination of which depends upon the circumstances of each case. Here, we think, with the Court of Appeal; first, that it was to appellant's knowledge that the Hay Company's. business had before May, 1895 been a losing concern, which it was impossible to keep going without reductions of expenses and salaries; secondly, that on the 18th May, in the only interview between Anderson and appellant that took place, there was upon appellant's own evidence no hiring for any definite period, but merely a temporary arrangement until Anderson should have time to consider the changes to be made after the new organization was completed. Appellant was expressly told by the foreman that Hay's contracts with his employees had not been assumed by Anderson, and he had to admit in his& examination that he anticipated there would be changes. On the 22nd of August, they notified him that his salary thereafter would be reduced to $600 if he desired to remain in the service of the new company.

Now, under all the circumstances, this is.