Rodd v. Corporation of the County of Essex

for Ontario(1) reversing the judgment at the trial in favour of the plaintiff.

The plaintiff, as County Crown Attorney and Clerk of the Peace for the County of Essex, applied for a mandamus to compel the municipality to provide him a proper office.

In his statement of claim he set out the fact that Windsor is by far the most important place in the county, and that an office there instead of at Sandwich, the county town, would be the most convenient for the public; also that the office had been at Windsor for many years prior to 1908, when the County Council refused to continue it and provided and could provide none at Sandwich.

At the trial Falconbridge C.J. held that the allegations in the statement of claim were proved while those in the statement of defence were not; that suitable offices could not be provided at Sandwich; and that the plaintiff was entitled to a mandamus to compel the corporation to provide one at Windsor.

This judgment was reversed by the Court of Appeal.

By the Ontario "Municipal Act" certain officers of the county must reside in the county town. No such provision is made as to the County Crown Attorney and Clerk of the DUFF J.-The appellant, Mr. Rodd, is the County Crown Attorney and Clerk of the Peace for the County of Essex, and the municipal corporation of that county is bound to provide him as the incumbent of these offices with proper office accommodation under section 506 of the "Municipal Act" of Ontario. The county town of Essex is Sandwich.

Mr. Rodd resides and carries on the practice of his profession in Windsor.

The County Council profess their willingness to provide office accommodation for Mr. Rodd at the court house in Sandwich.

The learned Chief Justice of the Court of King's Bench, who tried the action, held that there is no place in the court house or in the county town which is suitable or which can be made suitable for the performance of the official duties of Mr. Rodd, who, indeed, before the commencement of the action, had informed the council that he would not occupy an office in Sandwich. .

I think the Court of Appeal rightly dismissed the action, because I do not think the evidence warrants the conclusion that the County Council might not in a reasonable exercise of their discretion decide that the plaintiff in his official capacities ought to be domiciled in the county town.

That being so, it follows, of course, that a refusal to provide an office in Windsor accompanied by an offer to furnish accommodation at Sandwich does not necessarily amount to a refusal to perform the duty of providing "proper offices" in accordance with the enactment mentioned.

In view of the position taken by Mr. Rodd criticism of the accommodation actually furnished at Sandwich appears to be irrelevant. A mandatory order at the suit of the plaintiff directing something which the plaintiff has from the outset declared would be useless to him would involve a startling disregard of the considerations which govern the court in the exercise its discretionary powers; and there can be no remedy in damages first because there has been no refusal to provide accommodation at Sandwich, and secondly, because if there had been, the plaintiff, whose action, if any, is an action on the case (1), cannot be said to have suffered any harm through the failure to furnish accommodation which admittedly he would not have used.

J.-I agree in the view that, having regard to the provisions of section 506 of the "Consolidated

Municipal Act of Ontario," the selection of the place at which it shall provide an office for the Crown

Attorney and the Clerk of the Peace rests with the

County Council, and while the courts may compel the performance of the duty of making the selection, a conscientious judgment has been exercised by the body to whom that duty is committed, the court will not substitute its sense of fitness for that of such body. Judicial interference might be warranted if it were shewn that the discretion of the County Council had not been exercised "in a manner fair, candid and unprejudiced."

Upon the evidence, such a case has not here been established. Having regard to the fact that some of his duties render it necessary that the Crown Attorney should have an office in the county court house, it is impossible to say that in determining that any office which it should provide must be in the court house, the conduct of the council was "arbitrary, capricious or biassed." Rex v. Askew(1).

If it be necessary for the discharge of some of his duties, as is admitted, that the Crown Attorney should have an office in the court house, however desirable it may be that lie should also have an office in Windsor, the statute does not, I think, impose on the County Council the duty of providing it.

Although it would appear from their judgments that the learned. judges of the Court of Appeal regarded the right of the appellant to an office in the City of Windsor, at the expense of the County of Essex, as the only substantial question in this action, it is now urged that the right of the appellant to a proper office in Sandwich, (which it has been found the County Council failed to furnish for him,) was also in issue. This right is asserted in the statement ' claim, and is repeated in the reasons against appea I in the Court of Appeal. The prayer for relief covers it.

The finding of the learned Chief Justice of the Court of King's Bench that the office provided in the county court house was unsuitable and inadequate, is well supported by the evidence, and has been affirmed in appeal. The statutory duty of the council to provide a proper office, etc., is clear.

If there were nothing more in the case, assuming that a private action for such relief might be maintained by the appellant, his prayer for a mandamus requiring the County Council to provide him with a proper office should perhaps be acceded to.

But mandamus is a discretionary remedy which will not be granted merely to enforce some abstract right so as to entail upon the defendant expense and trouble without any substantial benefit or advantage accruing therefrom to the plaintiff.

To the remedy of mandamus the maxim lex neminen cogit ad vana seu inutilia peragenda applies.

The King v. The Bishop of London (1).

Moreover, notwithstanding that an applicant may have made out a case of strict legal right, in the exercise of its discretionary power the court will consider his motives, and if not convinced of their propriety, will withhold relief. The Queen v.

Liverpool, Manichester and Newcastle-upon -Tyn e Railway Co. (2).

Antecedent demand and refusal must also be made clear.

The plaintiff gave the following evidence at the trial:- In view of this attitude of the plaintiff, the discretion of the court will, in my opinion, be properly exercised in refusing the mandamus for which he asks. His apparent failure to press this part of his claim before the Court of Appeal renders this course all the more proper.

The appeal should, therefore, be dismissed with costs.

Appeal dismissed with costs.