Canadian Northern Quebec Ry. Co. v. Naud

Arbitration and award - Procedure the judgment of the Court of King's Bench (Q.R. K.B. 221), declaring the award to have been validly made was, consequently, dismissed with costs.

Charles Fitzpatrick 'C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.

Bench, appeal side(1), by which an appeal from the judgment of Lemieux J., in the Superior Court, trict of Quebec(2), was dismissed with costs and the Ry. award of arbitrators under the "Railway Act," R.S.C., yAk. 1906, ch. 37, stood confirmed.

THE CHIEF (dissenting).-I have read Sir Louis Davies's judgment and were it possible for me to accept his construction of the arrangement made between counsel and the arbitrators at the adjournment of the proceedings on the 18th of January, I would have no hesitation in adopting his conclusion. Unfortunately the evidence of what occurred as given by Mr. Belleau, the respondent's counsel, and Mr. Mayrand, his arbitrator, convinces me that it was then agreed there would be an adjournment until the 26th of January, on which latter date the arbitrators would again meet, and if counsel were not then able to be present, a further postponement would be made until their return from England. The minute of the proceedings of the 18th January is very clear and explicit; it reads: "L'Enqubte est ajourn6e au 26 Janvier courant h 2 heures p.m."

It is significant that Mr. Belleau drew the attention of the arbitrators to the statute and insisted that the delay to make the award should be extended if there was to be a postlponemelnt beyond the 15th of February, the date fixed SEBE for that purpose at their first meeting, as required by the express terms of section 204 of the "Railway Act." This was clear notice to the arbitratork and if, at the time they did not intend to meet on the 26th January as the appellants contend, it is inconceivable that they did not then provide for the important contingency indicated by respondent's counsel.

The award was not made within the delay and the time was not enlarged. There was io meeting on the 26th January nor on any day until after the delay fixed by the arbitrators at their first meeting on or before which their award would be made, and the award made at a subsequent date should be set aside.

I would allow the appeal with costs.

J.-This was an appeal from the judgment of the Court of King's Bench, affirming the judgment of the Superior Court of Quebec, refusing to set aside an award made in the respondent's favour for the value of a piece of land expropriated by the railway company. The ground mainly relied upon by the appellants for setting aside the award was that the arbitrators in extending the time for making the award to a further day than that which they had first fixed upon, had not strictly complied with section 204 of the "Railway Act" of Canada, but had made such extension after the time first fixed had elapsed.

It appears to me that the result of this appeal must depend upon the appreciation given to the understanding and agreement made and reached by all the parties and their counsel on the 18th January, as to the postponement of the arbitration proceedings. After the arbitrators were appointed they met, and, on the 18th January, after having heard some evidence, counsel intimated that they desired to have the proceedings adjourned so as to enable them to attend the Judicial Committee of the Privy Council in London, and suggested that an adjournment should take place till the 2ith January on the understanding that if they were then unable to be presenft the proceedings should be prolonged until counsel's return from England, and should then be resumed. The 15th February had been originally fixed by the arbitrators as the date, under the section of the statute, for making their award and, when the proceedings were adjourned at counsels request as above stated, no definite day was named by the arbitrators extending the time from the 15th February. On the return of counsel from England, however, a majority of the arbitrators met and fixed the 15th June as the time for making the award. The company's arbitrator and counsel refused to recognize or attend any of these later arbitration proceedings on the ground that, failing to make an extension of the time for making their award before the 15th day of February, the arbitrators had ceased to have any jurisdiction, and all further proceediigs were uiltra cires.

Whether in making the extension at the time they did the arbitrators acted within their powers or not, depends, in my opinion, upon the construetion of the consent agreement respecting -the postponement.

As I construe that agreement, it provided for a prolongation of the proceedings and their resumption after counsel's return to Quebec. The fact that the arbitrators failed to make an entry before the 15th February of an extension of time for the making of their award either at the ad- Journment on the 18th or on the 26th January, does not vitiate or render null and void all the further proceedings.

Such extension was made by the majority of the arbitrators who met after counsel's return when Davies J. they fixed the 15th June. The company's arbitrator had full notice of all these meetings.

I do not think, under the circumstances and the agreement and understanding reached, that it was too late to name and fix such a date when the return of counsel enabled the arbitrators to resume the proceedings.

Their action in so naming the day was an action which must be held to have been made with the consent of the parties; and I do not think the technical point relied upon by the appellants that such prolongation must necessarily be made before the lapse of the day originally fixed for making the award should, under such circumstances as existed in this case, be given effect to, or that it is open to the railway company, after a delay obtained at their own request, to ask that effect be given to such an objection.

The appeal should be dismissed with costs. J.-The first question raised herein is upon the construction of section 204 of the "Railway Act," which is as follows:- The arbitrators had proceeded at some considerable length with their inquiry after having as required by this section named the fifteenth of February 'then next as the date on or before which their Ry. award should be made.

On the eighteenth of January it seems they had a meeting at which it was intimated counsel on both sides had business that would call them before the

Privy Council and they might have to leave for England on or before the 26th January, then named as an otherwise convenient day for further proceeding with the continuation of the reference.

'There is no dispute about the fact that it was agreed as a matter of courtesy to counsel that the continuation of the reference should be enlarged if counsel were called away on or before the 26th January until such time as they should have returned from England.

The counsel left Quebec for England, as anticipated, either on the 26th January or before.

When the arbitrators assembled pursuant to adjournment at the place of sitting on the 26th January, no one met them, and they found or assumed as fact that counsel had gone to England.

SfPREME COURT OF CANADA. [VOL. XLVIII. There is no such record. There is not a scrape of a.pen to indicate that the consent of appellants was expreSly made so conditional,. and so peculiarly con- Rditional, and the learned trial judge has made a finding of fact undisturbed in appeal which leaves no room for such conditional form of consent having any operation.

There is not a shadow of doubt that all of them and appellant had agreed that the matter of further proceeding with the reference should stand over and await the return of counsel from England.

That they could not return within the time originally fixed for making the award must have been well known to all concerned.

This consent by appellants seems to me, in any view one takes consistently with the findings of fact, clearly to delegate to the arbitrators the naming of a new day (which was ultimately done by the arbitrators) and to imply that it mattered not when this was done if done within a reasonable time. The reasonableness of the time fixed, under the circumstances, is not questioned.

The reasonable course of awaiting their return before fixing a new date which perchance might prove too early or too remote does not seem open to question.

The date was fixed as soon as the counsel had returned from England and the proceedings were then renewed, but the arbitrator named by the appellant, no doubt acting on its suggestion, refused to act longer.

Such a course of dealing seems to me a wretched piece of bad faith which deserved the rebuke the courts below have given it.

. The action of the arbitrator was within what was manifestly the purpose of the appellant's own consent and the respondent is not to be penalized because they chose to act within that but failed to give it the consecration of forms theY might have adopted and acted upon without Such consent.

Then in the next place appellant contends that in dealing with the imtters sulnitted the majority of the aribitrators exceeded the terms of the submission .J. by allowing for items they had no power to make any allowaice for. The submission was intended to cover the estimating of to be made for taking real estate of which part was taken from the respolentsn mill-dam.

Clearly that involved or might involve just such iteis is allowances were niade for and now coiplained of.

But appellant's conisel, it seems, proposed some questions to a witness which the learned trial judge ruled were not admissible and now claims that as a result the trial ought to be set aside.

The learned trial judge when making his ruling pointed out to counsel that it would not be possible to pass sat isfactorily upon the question relative to excess of jurisdietion without knowing what the evidence was which had been put before the board. I think the learned judge was right in this view whether technically or not his ruling was correct. The ruling itself did not cause any miscarriage of justice.

As counsel refused to place before the court the evidence by means of which alone the limits of the inquiry could be properly understood, I think he cannot now complain.

Even now, as he declines to tell us just what in substance had been so refused to the learned judge, and why it should not have been given, or wherein exactly he does complain, save in regard to the ruling, I think the inferences relative to its substantial nature must be against his contention.

The appeal should be dismissed with costs. DUFF J.-I concur in dismissing this appeal. The J. respondent appeared at the first meeting of the arbitrators and was ready to proceed.

To meet the convenience of -the railway company there was an adjournment, and it was distinctly understood that in consequence of the adjournment it might not be possible for the arbitration to proceed until the return of counsel from Europe; and that if that proved to be so the arbitration was to go on, on a date to be fixed by the arbitrators.

It was, I think, clearly implied that the railway company would concur in any steps that might be necessary to enable that to be done.

It is true it was supposed that the time would be prolonged by the action of the arbitrators themselves; but it was never in the contemplation of anybody that the respondent should lose his status by an oversight of the arbitrators.

The railway company ought not to be permitted in violation of the spirit of the arrangement entered into at their behest and for the purpose of conferring a benefit upon them to raise the purely technical and altogether conscienceless objection which is now put forward.

As to the other point I can see no ground whatever for thinking that the arbitrators have considered elements of compensation that ought not to have been considered.

(dissenting) .- I have very reluctantly come to the conclusion that the appeal should be allowed.

VOL. XLVIII.j SUPREME COURT OF CANADA.

While I think the evidence open to the construetion that it was understood between counsel on the 18th of January that in the event of their being unable to proceed on the 26th of January the arbitra- R.Co. tion proceedings should stand enlarged until their return from their prospective trip to England, and J. that there should be a corresponding extension of the time for making the award, it leaves no room for doubt that it was intended and agreed that this extension should be effected by the arbitrators at a meeting to be held on the 26th of January.

It was never agreed or intended that the extension of the time for making the award required by section 204 of the "Railway Act" should be effected by the consent of counsel proprio vigore.

The 15th February was originally fixed by the arbitrators as the date on or before which their award should be made.

There was no extension of that period before it expired, and upon its expiry the arbitrators were functi and they were thereafter incapable of extending the time for, or of making a valid award.

But assuming in favour of the respondent that the understanding between counsel on the 18th of January and what occurred on the 25th of January, when they met and expressed to one another their purpose not to appear pro formd before the arbitrators on the following day, should be taken as implying and evidencing a consent that the time for the making of the award should be extended until after their return from England, that would not, in my opinion, suffice to keep the arbitration alive beyond the 15th of Febmary.

Section 204 of the "Railway Act" is as follows

The clear purpose of this section appears to be to require that from 'the initiation of the proceedings of the arbitrators there shall always be a definite and certain date, original or extended, on or before which the award shall be made, and upon the expiry of which without an award being made the arbitration shall come to an end and the statutory consequences shall ensue.

The requirement that the date to be fixed originally shall be a definite and ascertained day is, I think, equally applicable and for the same reason to any date to which the time may be extended. The statute, in my opinion, does not contemplate an extension for an indefinite period or to a date which is not certain.

Assuming that counsel and arbitrators agreed that the time for making the award should be extended until after the return of counsel from England and to a day to be then fixed, that, in my opinion, would not be such an extension as the statute contemplates or authorizes and the arbitration came to an end on the 15th of .February, the only date ever fixed as the limit of time for the making of the award. I, therefore, find myself driven to the conclusion that the alleged award of the 1st June, 1911, cannot stand. I feel, however, that I should not part with this case without animadverting upon the conduct of the plaintiffs in pressing this action as most dishonourable and reprehensible. It is sharp practice of a kind which, fortunately, we rarely encounter. But unfortunately upon the view which I hold as to the purpose and effect of section 204 of the statute we are in this instance powerless -to prevent its success.

J.-NOus dans cette cause interpr6ter l'article 204 de l'Acte des Chemins de fer

Canada qui se lit comine suit:- L'appelante et Pintibu 6taient h procder devant les arbi-tres pour faire d4terminer l'indemnit6 qui devait 6tre pay6e au d6fendeur pour son terrain expropri6. L'enqute 6tait h peu prbs termin6e lorsque le 18 janvier, 1911, la compagnie de chemin de fer demanda h faire remettre la cause an 26 du mome mois, afin de pouvoir produire une preuve additionnelle qu'elle esprait se procurer pour cette date. L'avocat du defendeur, intim6, s'y objecta et entr'autres raisons i all~gua qu'il devait sous peu partir pour 'Angleterre avec l'avocat de l'appelante pour plaider cause devant le Conseil Priv4. II fut convenu alors que si les parties ne pouvaient pas procder le 26 janvier, l'enqute serait ajournbe jusqu'a ce que les avocats fussent revenus de leur voyage, et alors un jour serait fix6 pour la continuer.

Les arbitres avaient an commencement de Penquite fix( le 15 fWvrier comme date h laquelle ils devaient rendre leur sentence arbitrale, et h raison de cela, lorsqu'il fut question d'ajourner la cause, de 1intim6 avait demaDd6 aux commissaires de ne pas oublier d'6tendre le delai si toutefois ils ne proc6daient pas le 26 janvier.

Le 26 janvier les arbitres se rendirent au palais de justice, qui 6tait P'endroit oii se faisait 1'enqudte, et comme les avocats J. 6taient partis, on sur le point de partir pour 'Angleterre ne se sont pas r6unis et aucune entr6e ne fut alors faite dans leur livre de minutes.

Au retour des avocats, dans le mois de mai suivant, deux des arbitres, (celui qui repr6sentait la compagnie refusant de proc6der,) donn6rent avis aux parties de terminer et entrorent dans leur livre de dblib6rations les faits tels qu'ilss'6taient pass6s. Mais 1appelante refusa de proc6der et les deux arbitres rendirent leur sentence. Par son action 1appelante demande h faire mettre de c6t6 cette sentence arbitrale parce que les arbitres n'avaient plus le droit d'agir et elle veut faire condamner le d6fendeur, intim6, h accepter le montant qu'elle avait offert avec son avis d'expropriation. L'article 204 de 1'Acte des chemins de fer a d6jh fait 'ebjet de plusieurs jugements et dans chaque cas il a t6 d6cid qu'il ne devait pas Otre appliqub rigoureusement lorsque 1intention des parties est 6vidente.

Ainsi dans la cause de Shannon v. The Montreal Park and Island Railway Co.(1), 1honourable juge Taschereau s'est exprimb comme suit:- La cour d'appel dans la cause Ontario and Quebec Railway Co. v. La Fabrique de Sainte-Anne(1), a dcid6 que le consentement d'ajourner peut rbsulter des faits et des circonstances. Cette dernibre cause a beaucoup d'analogie avec la cause actuelle. Les parties avaient proc6d6 h Penqute et avaient ajouru6 de temps J. en temps, et par oubli ou autrement on n'avait pas prorog6 la date oi la sentence devait 4tre rendue de sorte que quand 1'enqute ffit termin6e et que la cause prte a Otre d6cid6e, le d6lai fix6 par les arbitres 6tait expir6. Les tribunaux ont d6cid6 qu'il y avait un consentement implicite d'ajourner a plus tard la sentence arbitrale et que par cons6quent la compagnie de chemin de fer ne pouvait Stre justifiable de r6voquer le consentement qu'elle avait donn6.

Il est incontestable que dans la pr~sente instance la compagnie a consenti &i ce que la cause fut continu6e jusqu'au retour d'Angleterre de son avocat et de Pavocat de Pintim6.

Les minutes des proc~dures des arbitres 6taient ordinairement tenues par Parbitre de la compagnie et s'il y a eu omission de sa part d'entrer Pajournement et la convention qui avait 6th faite le d6fendeur, intim6, ne dolt certainement pas en souffrir.

Je considre que ce serait une grave injustice que de priver dans les circonstances ce dernier de 1'indemnit6 que la majorit6 des arbitres lui a accord6e et je suis d'opinion que le jugement de la cour d'appel est bien fond6. Pour ces raisons 1appel doit 4tre renvoy6 avec d~pens.

Appeal dismissed with costs. J.