Desormeaux v. Village of Ste. Thérèse de Blainville

STANISLAS DESORMEAUX (Mis- APPELLANT; *Feb.

EN-CAUSE) .......................

AND

THE VILLAGE OF STE. THERESE

DE BLAINVILLE

OTHERSI RESPONDENTS. (PLAINTIFFS).....................

APPEAL FROM THE OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

JUSTICE.-This motion to quash an appeal from the judgment of the Court of King's Bench affirming a judgment of the Superior Court for the District of Terrebonne, granting a writ of prohibition, on the ground that no appeal lies to the Supreme Court of Canada from the Province of Quebec in any suich case.

In Shannon v. The Montreal Park and Island Railway Co.(1), Taschereau J. gave the judgment of the court in which he held that the provisions of section 39 of the "Supreme Court Act," formerly 54 & 55 Vict. ch. 55, sec. 2, gave an appeal in cases of prohibition from the Province of Quebec.

I regret that is impossible for me to concur in that judgment. That section 39 of the "Supreme Court Act" applies to the whole Dominion is perfectly true, but the general jurisdiction conferred by that section is limited in so far as appeals from the Province of Quebec are concerned by the provisions of section 46.

In other words, section 39 would seem to be a general section, like sections 36 and 38, which, notwithstanding the generality of their provisions, are subject to the special limitations provided by section 46, in Quebec, and by section 48 as to Ontario.

This motion must, therefore, be granted as this case does not come within any of the provisions of section 46, which determines the limits of our jurisdiction in appeals from Quebec.

(DE- THE McDONALD-McMILLAN CO M- PANY

APPEAL from the judgment of the Court of Appeal for Manitoba affirming the judgment of Macdonald J., on an interpleader issue, whereby it was adjudged that money paid into court to abide the result of the trial of the issue was the property of the plaintiffs. While the defendant was in the employ of the plaintiffs, as superintendent of their works as contractors for the construction of a railway, he entered into a contract with the Canadian White Co. for the building of certain bridges forming part of the line. This sub-contract was made in the defendant's name, but, on being shown to the plaintiffs, they consented that it should be so made. During the time that the defendant was building the bridges under this subcontract, he continued to draw his salary from the plaintiffs, but, on their completion, he claimed the amount due for this part of the work on the ground that he had undertaken the contract solely on his own behalf.

The Canadian White Co. applied for an interpleader order, and, on their application, affidavits were filed by both parties setting forth their respective claims, the money due was deposited in court, and an order was made for the trial of an issue to decide between the parties to this appeal as to whom they belonged. It was necessary for the decision of the issue to determine the relationship existing between the parties prior to the contract with the Canadian White Co. and the trial judge held that the defendant was the servant or agent of the plaintiffs, and that the contract in question had been made by him for the benefit of his employers.

This decision was affirmed by the judgment appealed from.

THE (oral).-The only question at issue on this appeal is one of fact, the determination of which depends largely, if not entirely, on the weight to be attached to the evidence given by the two witnesses, Weller and 31cMillan.

The trial judge who saw the witnesses and had opportunities to test the relative merits of the different versions of the facts, which we have not, came to the conclusion that Mc- Millan's version was absolutely correct and finds as a fact

The conclusion reached by the trial judge has the unanimous approval of the Court of Appeal, a matter not lightly to be disregarded.

The jurisprudence of this court is well settled;

we will not interfere with the concurrent findings of two courts on a pure question of fact unless we are satisfied that the conclusion reached is absolutely wrong.

Appeal dismissed with costs.