THE PRACTICE DIVISION OF THE SUPERIOR COURT
S. W. Weber, Q.C.*
What is the Practice Division of the Superior Court at Montreal and how
does it function? Except during the months of July and August when a
different judge presides every week, the rest of the year the change is made
every two weeks. This division of the Superior Court hears Motions, Peti-
tions and other similar applications.
When no appeal is (or can be) taken from an interlocutory judgment the
dissatisfied party sometimes files an exception to the judgment, so that the
opposite party cannot say that the judgment in question has been acquiesced in.
The exception also acts as a reminder to the trial judge that he is being asked
to revise the interlocutory judgment. This practice was disapproved of in
Laterreur vs. Canadian National Railway Company,’ where it was held as
follows:
“Le Code de procidure civile ne contient aucune disposition autorisant un plaideur
a produire proprio motu une declaration &rite i I’encontre d’un jugement non d6-
finitif. Pareil document sera rejet6 sur motion A cet effet.”
Wednesdays and Thursdays are called “Enqu&e days” in the Practice
Division, in view of the fact that proceedings, which necessitate the exam-
ination of witnesses, are heard on these two days only. On Enqu&e days an
additional judge presides in another room to help dispose of Enqu&e matters.
Lawyers are required to wear gowns, under Rule 12 of the Superior Court
Rules of Practice for the District of Montreal. It reads as follows:
“A toute s6ance de la Cour, y compris la Cour de Pratique. les avocats et les
officiers de la Cour devront porter le costume lorsque des t6moins sont susceptibles
de comparaitre
At all sessions of the Court. including the Practice Division. when witnesses are
to be interrogated, every advocate and Court official must wear a black coat, white
shirt, collar and bands and the appropriate gown.”
This rule, therefore, does not apply to an advocate presenting a proceeding
on an Enqu&e day which does not require any proof to be made, for such
proceedings. if they are not contested. can be submitted to the Court on any
day. If, however, the opposite party objects to the granting of the proceeding,
it is then postponed to a non-Enquete day, unless it is an urgent matter.
All Motions, Petitions. etc., which have been previously served, have to
be filed at the office of the Prothonotary at least a day before the proceeding
in question is made presentable before the Practice Division. This enables the
Clerk of the Court to include, on the daily typewritten roll (a copy of which
is put before the judge) the proceedings fixed for hearing for that day. Such
proceedings if they are handed to the Clerk on the morning of their pre-
*Of the Bar of Montreal, Lecturer on Civil Procedure at McGill University, Law
Faculty.
‘(1938) 42 P.R. 316.
No. 1]
THE PRACTICE DIVISION
sentation, are continued sine die, and a notice has to be served on the opposite
party, giving a new date of presentation.
In the Practice Court there is a deputy prothonotary who has special
powers in Montreal and Quebec under art. 70a C.P. For example, he can
grant, in his own name, motions asking for special modes of service of
writs; he can give the plaintiff permission to return a writ within three days
of the day that it should have been returned, etc.
At 10:30 A.M., when the judge arrives on the bench, inscriptions for
judgment (by default to appear or to plead) which have been made present-
able before the Court, are first called. The judge who presides over the
Court when the inscription is presented, is the judge who ultimately signs the
judgment. The evidence must be given immediately after the inscription
Ex Parte is presented and not on another day, if the attorney for the de-
fendant appears on the presentation of the Inscription, for he is entitled to
cross-examine the plaintiff’s witnesses.
The Practice Division looks after all inscriptions for judgment, if they
are presented to the Court, although the Prothonotary may also have jurisdic-
tion in the matter (seeing that the Court has jurisdiction in all matters).
If proof is necessary, before judgment can be rendered, such as actions for
rent, revendications, damages, the Clerk or the Practice Division marks down
the name of the Judge (who is sitting that day in the Practice Division) on
the back of the inscription and the following words, “Referred for proof to
the office of the Prothonotary –
judgment to be verified”, which means that
the action will be maintained if the proof will support the allegations in the
declaration. This practice is criticized by Herv6 Roch in his :Actes et Re-
gistres de l’Etat Civil et Rectification, at p. 162, where he says as follows:
“Dans certains districts judiciaires, la requite en rectification est accord6e par le
tribunal ou le juge a verifier. Et la vrification de la preuve est faite par le proto-
notaire ou ses d~put~s-protonotaires autoris6s i ces fins. A notre sens. cette pratique
est irrigulire, elle constitue un illogisme legal. Que la preuve ne justifie pas la
demande en rectification, la requite est rejetie. On aura donc sur la mime reqnte
rendu deux jugements, l’un accordant la requate, l’autre la refusant; c’est-i-dire
qu’on se serait d6dit du premier jugement, qu’on disavouerait son propre jugement.
Nous sommes plut6t d’avis, et c’est ce que la loi semble exiger, que le tribunal on
le juge entende la preuve, ou que la requite soit rifirie au greffe pour la preuve, que
le tribunal ou le iuge pourra ensuite appr&ier pour rendre jugement.”
In cases where there is an appearance but no plea, the inscription ex parte,
as it is commonly called, is similarly marked, with the additional words
“defendant and attorneys called make default”, if no one answers on behalf
of the defendant. If the inscription is in an action which does not necessitate
any proof, as in a claim based on a bill of exchange where interrogatories
have not been answered or have been answered in the affirmative, the Clerk
marks the words “judgement to be verified”. This means that the judgment
will only be prepared by the Judgment Department, if it finds that the
amount claimed is justified by the documents produced, that the action is not
McGILL LAW JOURNAL
[Vol. 3
prescribed, that it was served on the defendant, and/or that the failure to
answer the interrogatories warrants a judgment for the plaintiff.
If the attorney for the defendant appears when an inscription ex parte is
called out in open Court and asks for permission to plead, he must present a
motion to that effect, under art. 205 C.P., unless the attorney for the plaintiff
consents to the Inscription being struck and to accept a plea, although it is
late. Article 205 C.P. has been applied to mean that the plea should accompany
the motion. See Tobin vs. Clement,2 where it was held as follows:
de son difaut sans produire la pice avec motion.”
“La partie en difaut de r~pondre A une pike de plaidoirie ne peut se faire relever
This decision, however, is rarely followed in Montreal, where the Defendant
is generally given a short delay to file his plea, if he gives in his motion a
good excuse for not having done it within the legal delays. He is then
ordered to pay the costs incurred by the plaintiff, as a result of his default
to file his plea on time, which means that the defendant has to pay the fee
on the motion made by him, the stamps put on the certificate of default and
on the inscription, and the difference in the fee between items 20 and 21 of the
Superior Court tariff.
The defendant may, on the presentation of the Inscription ex parte, ask for
the dismissal of plaintiff’s action or attack part of the conclusions, without
producing a plea, by arguing in law only. Where a defendant admits liability
in an action claiming damages, but disputes the amount claimed, it is prefer-
able not to file a plea (so as not to increase the costs) but to cross examine
the plaintiff’s witnesses so as to reduce the amount of the eventual condemna-
tion. The court will, of course, not grant the damages asked for if they have
not been proven, even in cases where the defendant does not appear.
After the inscriptions, the Clerk reads all the motions and petitions that are
on the typewritten roll. Proceedings which generally are not contested, such
as motions for examinations of a plaintiff before plea, motions for substitu-
tion of attorney, and any other matter where the Court is informed by an
attorney representing either party to a proceeding that there is no objection
to it being granted, are so granted immediately, unless the judge is of the
opinion that the proceeding in question is not well-founded in law. Proceedings
that are contested, or if no one is present at the first calling of the roll, are
then suspended, to be called again. After the typewritten roll is called, the
proceedings that have not been previously filed but presented in open Court,
for the first time, are then called. When the roll is read a second time. the
proceedings which have been suspended are now heard in their term. if both
parties are present, or if the party present insists upon proceeding in the
absence of the adverse party.
Judgment is either given on the Bench or the matter is taken under ad-
visement, the decision to be given later, after the judge has had an opportunity
to study the points argued before him and look into the authorities, if any
2[19361 P.R. 310.
N’,o. 1 ]
THE PRACTICE DIVISION
were cited to him. When these authorities are numerous, it is advisable to
prepare a list, with a copy for the adverse party.
If a proceeding which has been served has not been filed nor presented,
the attorney who has come to Court with his copy, may obtain an entry of
default (cong6 d~faut), with costs aginst the party that failed to present
the said proceeding.
Judgments are drawn up by former members of the Bar who form part
of the judgment department. They are deputy prothonotaries. They also draw
up judgments in actions based on bills of exchange, goods sold and delivered,
work done, professional services rendered, etc., as authorized by art. 532 c.p.
These officials sign themselves the judgments that are within their jurisdic-
tion.
It is to be noted that many inscriptions by default to plead or to appear
are presented to the Practice Division, although they could very well be
submitted to the prothonotary, thus obviating the necessity of filing the in-
scriptions a day before the presentation date, in ex parte matters. This
method also eliminates many of the delays in having a judgment signed by
the judge who presides over the Practice Division, for the latter has to check
the complete record submitted to him, before signing the judgment, besides
studying all the cases that have been argued before him, and which he has
taken under advisement.
The Practice Division of the Magistrate’s Court of Montreal has not
enough work to occupy one judge for a whole morning. There the judge,
who presides over the Practice Division, hears contested cases in lessor-
lessee matters as soon as he is finished with Practice matters. A different
judge presides over this division of the Magistrate’s Court every week. At
10:00 A.M. when the judge opens the Court, the Clerk calls all motions for
rule nisi and the rules nisi themselves, followed by Inscriptions ex parte,
Inscriptions by default to appear, and Motions. No typewritten roll is kept.
The judges do not refer any cases for proof before the Clerk, but they hear
the evidence in open Court. The plaintiff, or someone else who knows the
facts, is examined by his attorney. The judge then gives judgment on the
bench for the amount proved, if the action is otherwise well founded, or he
takes the matter under advisement.
Inscriptions for judgment on promissory notes, goods sold and delivered,
etc., in default cases should be presented before the Clerk of the Court, who
has jurisdiction in these matters under arts. 532 and 1126 c.p., and not
before the Practice Division.
CASE AND COMMENT
DUPLESSIS v. RONCARELLI
ADMINISTRATIVE LAW –
PERSONAL LIABILITY OF PUBLIC OFFICERS
CIVIL LAW – 1053 C.C. –
DUTIES OF APPEAL COURT RE. DECISIONS
OF TRIAL JUDGE ON QUESTIONS OF FACT
The much-publicized case of Duplessis v. Roncarelli has brought into focus
interesting questions of legal principle, both in the sphere of Administrative
law and in that of the Civil law. This case illustrates the intermingling of
administrative and civil law elements. In Quebec, as in the rest of Canada,
administrative and constitutional law are of Common ‘Law origin, as modified
by the relevant Canadian and Quebec statutes. Hence, the question of whether
there is liability of public officers for their acts is determined upon principles
of common law. However, once such liability is established in adininistrative
law, we must turn to the criteria of delictual liability in the Civil Code to
determine if in the case in point, the acts of the party constituted a delict or
a quasi-delict.
The facts of this case are very involved and the writer will outline only
those that are essential to the course of argument selected for this Comment.
The plaintiff-respondent was an adherent of the religious group known as
the Witnesses of Jehovah, though he occupied no office in the organization.
During 1945 and 1946, this group intensified the dissemination of its beliefs
by house to house canvassing and the distribution of pamphlets in the streets,
particularly in the city of Montreal. The substance of some of these pamphlets
was offensive to the majority of the population of this Province, and in fact
the defendant-appellant, at the time the cause of this action arose, had reason-
able cause to believe one of these to be seditious.2 Several of the Witnesses
were brought before the Recorder’s Court in Montreal for infractions of city
by-laws concerning the distribution of written matter in the streets. The
plaintiff, during 1945 and up to November 1946, had provided bail bonds in
approximately four hundred of such arrests. However, he had ceased to do so
1The judgment of Mr. Justice Mackinnon in the Superior Court is reported at [1952]
1 D.L.R. 680. See the comment on this judgment by Professor E. C. S. Wade in (1951)
29 Canadian Bar Review, page 665. This judgment was overruled by the Court of
Queen’s- Bench, Appeal Side. Bissonette, Pratte. Casey and Martineau JJ. formed the
majority, Mr. Justice Rinfret dissenting. The latter judgment is reported at
[1956]
Q.B. 447. This decision is under appeal to the Supreme Court of Canada. The judge-
ment of the Supreme Court will be suceptible of appeal to the Privy Council.
2in Boucher v. R, [1949] K.B. 238. the Court of Appeal of Quebec held that one of
these pamphlets, entitled Quebec’s Buirning Hate, was seditious. This decision was later
overruled by the Supreme Court by a five to four majority. See [1951] S.C.R. 265.
No. 1]
CASE AND COMMENT
prior to the appearance of the pamphlet entitled Quebecs Burning Hate3
in November of 1946. After the publication of the latter pamphlet, the action
of the public authorities to curb the activities of the Witnesses was intensified.
In the months of November and December of 1946, plaintiff was the owner
and operator of a restaurant and cafe in Montreal, and was the holder of a
liquor permit which had been granted to him by the Quebec Liquor Commis-
sion on May 1, 1946, for the sale of alcoholic beverages. in his restaurant-
cafe. This restaurant had been operated by the plaintiff’s family for thirty-five
years, and had had a liquor permit, renewed from year to year, since its
inception. Plaintiff and his restaurant had unblemished reputations and the
restaurant had always been conducted according to law. The provisions of the
Alcoholic Liquor Act’ had been scrupulously observed and there was no
evidence that plaintiff had allowed his restaurant to be used for meetings of
the Witnesses. Nor had it ever been employed as a distribution centre for the
literature of the Witnesses of Jehovah. Neither was there any evidence that
plaintiff directly participated in this distribution, nor did he have any con-
nection with the writing or editing of these pamphlets.
‘On December 4th, 1946, plaintiff’s liquor licence was cancelled without
notice by an order of the Manager of the Quebec Liquor Commission, in
virtue of section 35 of the Alcoholic Liquor Act.5 The defendant admitted
that the liquor permit was cancelled before the expiration of its term as a
measure of repression against the Witnesses. This fact becomes evident
from a statement made by defendant to the press shortly after the cancella-
tion.6 Following these events and the subsequent notoriety, the plaintiff lost
most of his clientele and was forced to close his establishment in the spring of
1947, with great financial losses resulting.
The plaintiff sought the authorization of the Chief Justice of the Appeal
Court to sue Mr. Archambault, the Manager of the Quebec Liquor Com-
mission.7 Plaintiff’s petition was rejected.8 The plaintiff then sought the
SSee footnote no. 2.
4R.S.Q. 1941, c. 255.
SSection 35.
“1. Whatever be the date of issue of any permit granted by the Commission such
permit shall expire on the 30th of April following, unless it be cancelled by the Com-
mission before such date, or unless the date at which it must expire be prior to the
30th of April following. The Commission may cancel any permit at its discretion.”
6″Roncarelli est indigne de binfficier d’un privilige accordi par la Province qu’il con-
tribue i vilipender et i calomnier de la fa~on la plus misrable. C’est moi-mime, i titre
de procureur gbniral et de responsable de l’ordre dans cette Province, qui ai donni l’ordre
i la Commission des liqueurs d’annuler son permis.”
7Such consent is required by the terms of the Alcoholic Liquor Act, R.S.Q. 1941, c.
255, section 12:
“No one appointed under this Act as Manager of the Quebec Liquor Commission may
be sued for acts done or omitted to be done by him in the exercise of the duties vested
in him under this Act, except by the Government of this Province, or with the
McGILL LAW JOURNAL
[Vol. 3
consent of the Attorney-General to sue the Commission.7 This too was denied.
The plaintiff then took action in the Superior Court against the defendant
in his personal capacity, claiming $118,741 as damages for the cancellation
of his liquor permit. The plaintiff contended that defendant had ordered Mr.
Archambault to cancel the permit. As such, in acting arbitrarily and outside
the scope of his authority, the defendant had incurred personal liability for
his acts. Furthermore, defendant had defamed plaintiff in public statements
to the press to the effect that plaintiff was a leader and organizer of a
seditious and criminal group.
The defendant pleaded that:
1. Plaintiff’s permit was cancelled by the Quebec Liquor Commission, and
in so doing, the Commission was exercising a discretionary power formally
conferred on it by section 35 of the Alcoholic Liquor Act.9
2. Defendant cannot be held liable for any part he may have played in the
cancellation of plaintiff’s licence as whatever he did was done in the exercise
of his duties as Prime Minister and Attorney-General. The Courts cannot
question the act of a Minister of the Crown acting in a matter concerning
the executive power and in the public interest.’0
3. Furthermore, defendant did not order the Manager to cancel the permit.
The defendant merely approved a decision already taken by Mr. Archam-
bault.
Mr. Justice Mackinnon decided in favor of plaintiff and awarded damages
in the amount of $8.123.53. The Appeal Court quashed this judgment. Rinfret
J. dissenting. the majority being formed by Bissonette, Pratte. Casey and
Martineau JJ.
RESPONSIBILITY OF PUBLIC OFFICERS
It is noteworthy that not one Judge accorded any weight to the defendant’s
argument that as head of the executive power arid a Minister of the Crown.
he cannot be held accountable to the Courts for his acts. Each one of the
learned Judges affirmed that the law governing this point is the Common
Law. ‘Mr. Justice Mackinnon in the Superior Court’
cited Dicey:
“Every official, from the Prime .Minister d.wn to a constable or a collector of taxes.
lcne uithout legal justificat.Un as
is under the same responsibility for every act
any other citizen.” 12
Mr. Justice Pratte. even though he ruled in favor of the defendant in the
authorization of the Chief Justice of the Province or. if he be prevented from granting
such authorization, by the senior Judge of the Court of Appeal.
The Commission itself may be sued only with the consent of the Attorney-General.”
SSee Roncarelli v. Archambault, [1947] K.B. 105.
9See footnote no. 5.
‘0 Italics are the author’s.
11[1952] 1 D.L.R. 680, at page 696.
12Dicey, Law of the Constitution, 1939. Ch. V. pages 193-4.
No. I1]
CASE AND COMMENT
Appeal Court, also recognized the English origin of this branch of our law,
and quoted with approval the statement by Mr. Justice Kellock 13
“It is a fundamental principle of our public law that if an official wrongs a private
person, he is accountable to the ordinary Courts and it is no defence that he acted
in good faith… The highest Minister of the Crown and the humblest official are
equally answerable for the legality of their acts to the ordinary tribunals.”
The writer does not consider it necessary to review the dicta of each Judge
on this point. Suffice it so say that all the Judges agreed that even Cabinet
Ministers and Attorneys-General are liable to answer before the Courts for
their acts.
Now the problem arises: by what acts does a public officer render himself
liable to punishment or damages? It is obvious that if a public official is
authorized by a specific text of law to do a certain act, and in so doing
damage is caused to some person, the official will not be liable if he acted in
good faith and according to the rules of natural justice. However, every act of
a public officer must find its source in some positive provision of law. Mr.
Justice Rinfret cited 14 Halsbury on this point :15
“The private citizen can act as he wishes, provided he does not transgress the
substantive law, or infringe the legal rights of others. The public officer, however,
may do nothing but what he is authorized to do by some rule of common law or
statute.”
Beullac wrote in this connection :16
“Toutes les fonctions publiques doivent trouver leur source dans un texte de loi.”
It thus becomes relevant to determine whether defendant acted within
his authority, as prescribed by statute, in taking part in the administration
of the Quebec Liquor Commission. Does any statute entitle the defendant,
whether as Prime Minister or as Attorney-General, to play any part in the
administration of the Commission? It is respectfully submitted that, based
on the following review of the relevant statutes, a negative reply is in order.
AUTHORITY OF THE PRIME ‘MiNISTER AND OF THE ATTORNEY-GENERAL
1. In the Alcoholic Liquor Act,’7 the Manager of the Commission is vested
with the control of all the activities of the Quebec Liquor Commission,’ 8
namely:
“To grant, refuse or cancel permits for the sale of alcoholic liquor . . . to inform
the Attorney-General of the infractions of this Act of which it has knowledge.”‘ 9
In virtue of section 148 of the same Act,
13 Cha put v. Romain et al, [1955J S.C.R. 834, at page 854.
14[1956] Q.B. 447, at page 516.
15 Halsbury, Laws of England, 1932, Vol. 6, No. 435. page 389.
16Beullac, La Responsabiliti Civile, page 514.
17R.S.Q. 1941, c. 255.
‘5 See section 5 of the Act.
“The exercise of the functions, duties and powers of the Quebec Liquor Commission
in Council,
shall be vested in one person alone, named by the Lieutenant-Governor
with the title of Manager.”
‘0 Section 9 of the Alcoholic Liquor Act.
McGILL LAW JOURNAL
[Vol. 3
“The Attorney-General shall be charged with:
1. Assuring the observance of this Act and of the Alcoholic Liquor Possession and
Transportation Act, and the investigating, preventing and suppressing of the in-
fringements of such Acts, in every way authorized hereby;
2. Conducting the suits or prosecutions for infringements of this Act or of the
said Alcoholic Liquor Possession and Transportation Act.”
In 1937, an Act entitled, An Act to Guarantee the Independence of the
Quebec Liquor Commission20 was passed by the Legislature. The provisions
of this Act are now found in section 5 of the Alcoholic Liquor Act.
It is the opinion of the writer that the structure of the Acts cited above
restrict the activity of the Attorney-General in relation to the Commission
to the policing function,2 while confining the administration of the Act
entirely in the hands of the Manager. Surely the very title of the 1937 Act
indicates the intention of the Legislature to remove the Commission from
the departmental structure of the public Administration of this Province and
from the influence of the Cabinet.
2. The Executive Power Act2 2 recognizes the office of the Prime Minister,
“… who shall ex officio be president of the Council . . . ” and ‘”…
a min-
ister charged with the administration of justice, called the Attorney-General.”-
Nothing here would seem to indicate a text of law authorizing the defendant
to assume any part in the administration of the Quebec Liquor Commission.
3. The Attorney-General’s Department Act2 4 outlines the duties of the At-
torney-General. The only text in this Act which might suggest some rela-
tionship to the Quebec Liquor Commission is section 5, subsection 2:
“He advises the heads of the several departments2 5 of the Government of the
Province upon all matters of law concerning such departments, or arising in the
administration thereof.”
Is the Quebec Liquor Commission a department of the Government of this
Province? The Public Department Act 26 lists the fifteen Departments con-
stituting the Government of this Province, and the Liquor Commission is not
mentioned as one of them.
Thus, the learned Judges found that the defendant could rest upon no
text of law authorizing him to take part in the administration of the Commis-
sion. Mr. Justice Mackinnon stated :27
“Nowhere can it be found any authority granted the Prime Minister or the At-
torney-General to interfere in the administration of the Alcoholic Liquor Act or to
order the cancellation of a licence.”
201937, I George VI, c. 22.
21Note that by section 32 of An Act Respecting the Provincial Police and the Liquor
Police, R.S.Q. 1941, c. 47.
“The direction and control of the Liquor Police shall be under the Authority of the
Attorney-General.”
22R.S.Q. 1941, c. 7.
2SIbid, section 5.
24R.S.Q. 1941, c. 46.
25Italics are the author’s.
26R.S.Q. 1941, c. 43.
2711952] I D.L.R. 680, at page 699.
No. 1 ]
CASE AND COMMENT
It would thus seem that there is no text of law authorizing the defendant to
act in any way in the administration of the Quebec Liquor Commission.
The campaign of the Witnesses of Jehovah no doubt caused, at the time,
serious disturbances in the Province. It is certain that the battle against them
undertaken by the Prime Minister met with the approval of the vast majority
of the Quebec population. By reason of certain decisions of the Supreme
Court of Canada, we now know that the writings of the Witnesses are not
seditious. 28 However, in view of the differences of judicial opinion through-
out the Boucher Case, surely the defendant had reasonable cause to believe
the pamphlet Quebec’s Burning Hate to be seditious, and no doubt acted
in good faith in his attempt to suppress it. It was his duty to oppose it by all
legal means within his power as Attorney-General. Thus acting, within his
functions and in good faith, he would incurr no personal responsibility. How-
ever, acting as he did outside his authority, if what he did amounted to a
delict or quasi-delict within the meaning of article 1053 C.C.,29 then he
would be personally liable for the damage which his act caused.
LEGAL SIGNIFICANCE OF THE ACT OF THE MANAGER OF THE
QUEBEC LIQUOR COMMISSION
It must be noted at this point that the question of whether or not Mr.
Archambault acted rightly and within his powers in cancelling the permit
need not enter this case. If it is proved that defendant actually ordered the
revocation and as such was at fault, it matters not if the Manager had just
cause to cancel the permit. This is a recognized principle of civil law.
Mazeaud remarked on this subject 9 o
“Quand la faute du d~fendeur a provoqu6 le fait du tiers d’oii est r~sult6 le dommage,
cette faute est la cause vritable du prejudice.”
He adds at page 531:
“Si le fait du tiers n’est pas faiitif, on sait que ce fait n’a certainement aucune inci-
dence sur la responsabilit6 du d~fendeur.”
Savatier, in his Traitg de la Responsabilit6 Civile, comments on this topic :31
“Si. dan- la trame de la causalit6, on ne dcouvre qu’une faute, l’auteur en supporte
tout le pr6judice.”
Further on this point, see the case of Leroux v. City of Lachine.3 2 It was
here held (headnote) :
“Where, at the request of a City Council, the Collector of Provincial Revenue
cancels the permit issued by the Provincial authority to hold and operate a dance
hall. an action in damages against the city should be maintained if it appears that
the City Council was wholly unjustified in adopting such a condemnatory resolution
2 8See footnote no. 2.
29″Every person capable of discerning right from wrong is responsible for the damage
caused by his fault to another, whether by positive act, imprudence, neglect or want
of skill.”
30H. & L. Mazeaud, Trait de la Responsabilit Civile, 4th ed., Vol. 2, page 526, para.
1629.
31 Savatier, Traiti de la Responsabiliti Civile, Vol. 2, page 22.
32[1942] S.C. 352.
McGILL LAW JOURNAL
[Vol. 3
without verifying the facts and without opportunity to the plaintiff to defend himself
against the charges made.”
Here, Mr. Justice McDougall awarded damages against the city without even
discussing the discretion or the fault of the Collector of Revenue, the latter
being the one who actually cancelled the permit.
QUESTIONS OF FAcT
To return to our analysis regarding the defendant, it now remains to de-
termine if the defendant actually did take part in the administration of
the Quebec Liquor Commission. Did he order the Manager to cancel the
liquor permit, and if he did, was such order the causa causans, the determin-
ing factor causing Mr. Archambault to effect the cancellation? It might be well
to note here some of the events leading up to the cancellation and the
testimony relating thereto.
At about the time of the appearance of the pamphlet Quebec’s Burning
Hate, the chief Crown prosecutor at Montreal, Mr. Oscar Gagnon, notified
Mr. Archambault that a holder of a liquor permit was a member of the
Witnesses of Jehovah and had been providing bail in numerous cases in-
volving the Witnesses. The manager of the Commission, presumably with
the idea of cancelling this permit, telephoned the defendant to inform him of
the matter. Mr. Archambault’s testimony on this point ran as follows P’
“Certainement, ce jour U, j’avais appel6 le premier ministre en l’occurence le pro-
cureur g-nral, lui faisant part des constatations, c’est-i-dire des renseignements que
je poss~dais, et de mon intention d’annuler le prizlI1ge,3 4 et le premier ministre m’a
rgpondu de prendre mes prgcautions, de bien v&rifier s’il s’agissait de la m;me
personne, qu’il pouvait y avoir plusieurs Roncarelli.”
Mr. Archambault then had an agent investigate and when this agent ascertain-
ed that the person who was providing the bail bonds and the holder of a
liquor permit were one and the same, namely the plaintiff, the Manager again
telephoned the defendant and notified him of these results. Whereupon the
defendant said to him :
“Vous avez raison, 6tez le permis, 6tez le privilige.”
The Manager’s interpretation of defendant’s statement at that time was:’
” .. . et la, le premier ministre m’a autoris6, il m’a donn6 son consentement, son
approbation, sa permission et son ordre de proc~der.”
The defendant stated in his testimony :7
“… j’ai approuvi et c’est toujours un ordre que l’on donne. Quand l’officier sup&
rieur parle, c’est un ordre que l’on donne, mime s’il accepte la suggestion de l’officier
dans son dipartement, c’est n ordre qu’il donne indirectement.”
Yet, at another point in his testimony, defendant stated 38
33[1956] Q.B. 447, at page 483.
341talics are the author’s.
35Excerpt from the testimony of the defendant, cited in [1952] 1 D.L.R. 680, at page
692.
483.
3SExcerpt from the testimony of Mr. Archambault, cited in [1956] Q.B. 447, at page
37Excerpt from the testimony of the defendant, cited in [1956] Q.B. 447, at page 501.
38[1956] Q.B. 447, at page 464.
No. 1]
CASE AND COMMENT
“Non, je n’ai pas donn6 un ordre i M. Archambault… C’est i la suggestion du
juge Archambault, apris qu’il efit port6 A ma connaissance des faits que j’ignorais,
que la dkeision a iti prise.”
However, a few days after the cancellation of the licence, defendant made
the following statement to the newspapers:
“C’est moi-m~me, A titre de procureur g6niral et de responsable de l’ordre dans
cette province, qui ai donn6 l’ordre A la Commission des liqueurs d’armuler son
permis.”
Finding on the above evidence, there was a divergence of opinion among
the .Honourable Judges on these questions of fact. In the Superior Court,
Mr. Justice Mackinnon found that :3
“In the light of the foregoing, the Court can reach no other conclusion than that
defendant gave an order to Mr. Archambault to cancel the plaintiff’s licence and
it was his order that was the determining factor.”
On the other hand, Mr. Justice Bissonette found that :40
“Il est prouvE, en fait, que le grant de la Commission avait pris sa d~cision d’annuler
le permis avant de demander conseil au difendeur.”
Mr. Justice Pratte found that :41
“II parait donc certain qu’Archambault n’a pas rivoqu6 le permis pour se confor-
mer i l’ordre du d~fendeur, mais parce qu’il avait lui-m~me jug6 A propos de le
faire.”
Mr. Justice Casey added:42
“The burden was on plaintiff to establish the relationship of cause and effect and,
like my colleagues Mr. Justice Pratte and Mr. Justice Bissonette, I do not think
that he made this proof.”
Mr. Justice Martineau ruled that :43
“Je ne crois pas que le d fendeur ait fait plus que d’approuver la d~cision dejA prise
par M. Archambault.”
On the other hand, Mr. Justice Rinfret, in dissenting, held that :44
“Il faut donc, avec le premier juge, conclure que la dcision du premier ministre a
&6 le determining factor et qu’elle doit itre tenue pour Etre la dcision difinitive
du procureur gfnral. L’on en a vu, en effet, que tant le premier ministre que le
grant consid&raient la Commission des liqueurs comme faisant partie du d6parte-
ment du procureur g&inral.”
To recapitulate at this point, we see that there was general agreement
among the learned Judges that the defendant did not have the authority by
statute to take part in the administration of the Quebec Liquor Commission.
Whether he in fact did so act is a matter of divided opinion. Mr. Justice Mac-
kinnon found that defendant did order the cancellation and that such order was
the determining cause of the- cancellation, rendering the defendant liable for
the ensuing damages. Mr. Justice Rinfret, dissenting in the Court of Queen’s
Bench, agreed with Mr. Justice Mackinnon’s finding of fact and expressed
the opinion that the defendant and Mr. Archambault acted under the mistaken
impression that defendant, as Attorney-General, had authority over the
Commission, and that the Manager treated defendant as his hierarchical
39[19521 1 D.L.R. 680, at page 692.
40[1956] Q.B. 447, at pages 450 to 459.
41[1956] Q.B. 447, at page 466.
42[1956] Q.B. 447, at page 468.
43[1956] Q.B. 447, at pages 494-495.
44[1956] Q.B. 447, at page 503.
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superior. On the other hand, the four remaining Judges in Appeal found that
defendant did not order the cancellation of the permit.
DUTIES OF THE QUEBEC APPEAL COURT
Thus, the reversal by the Court of Appeal resolves itself into one on a
question of fact. Let us examine what are the duties and mode of procedure
of the Appeal Court when confronted with a decision by a trial Judge on a
question of fact. Rivard, in his Manuel de la Cour d’Appel, wrote :5
“Elle, (the Quebec Court of Appeal) observe en principe et dans ses lignes g.nrales,
la rigle suivante, pose en Cour Supreme:”
“A Court of Appeal should not reverse the findings upon matters of fact of the
Judge who tried the cause and had the opportunity of observing the demeanor of the
witnesses, unless the evidence be of such a character as to convey to the minds of
the Judges sitting in appellate tribunal the irresistable conviction that the findings are
erroneous.”A.6
Mr. Justice McDougall, speaking of the conclusion reached by the trial
Judge in the Superior Court, recognized that Judges in Appeal are so bound.47
This rule regarding the conduct of Appeal Tribunals with reference to the
finding of the trial Judge on a question of fact can be summarized as fol-
lows: Ordinarily, an Appeal Court will not set aside the finding on fact of a
trial Judge merely because the Judges of Appeal would have arrived at a
different conclusion ; the finding must be clearly unsupported by the evidence.
An Appeal Court should bear in mind that it has not heard or seen the
witnesses while the trial Judge has.48
The surprising result when we apply this rule to the case under considera-
tion is that even though four learned Judges in the majority in the Court of
Queen’s Bench overruled the trial Judge on a question of fact, not one of
them acknowledged this rule. However, in dissenting, Mr. Justice Rinfret did
so when he stated :4
“En regard de cette preuve, je ne puis pas conclure que le juge de premiere
instance a commis une erreur manifeste en tenant . .
In so finding, the learned Judge felt constrained to agree with Mr. Justice
Mackinnon on his finding that the order was in fact given by defendant and
that such order was the determining cause of the cancellation of the liquor
licence.
. ”
However, we must keep in mind the fact that there is a converse rule to
the one discussed above. It is clear that there are cases when the Appeal
Court not only has the right but the duty to overrule the trial Judge on a
question of fact.
4 5 Rivard, Manuel de la Cour d’Appel, at page 45.
4 6 Mr. justice Gwynne in Ryan v. Ryan, (1882) 5 S.C.R. 387, at page 406.
4 7 Leclerc v. Robitaille, [19521 R.L. 257, at page 295.
48 For further support of this proposition see: Ruthman v. La Citi de Qu5bec. (1913)
22 KB. 147; De Felice v. O’Brien, (1918) 27 K.B. 192, and (1918) 59 S.C.R. 684; Powell
v. Streathen, [1935] A.C. 243; McMillan v. Murray, [1935] S.C.R. 572; Montreal
Transportation Co. v. The King, [1926] 2 D.L.R. 862; Labadie v. McMillan, [1926] 3
D.L.R. 655; and Johnston v. O’Neill, [1911] A.C. 552.
49[1956] Q.B. 447, at page 502.
No. I1]
CASE AND COMMENT
“Tout en tenant compte des avantages que le juge de la Cour Sup~rieure a sur eux
(the Judges in Appeal), ils sont tenus dinfirmer son jugement 5 s’ils sont convaincus
qu’il s’est tromp&”5
Therefore, if the majority of the Court of Appeal felt that the conclusions
which Mr. Justice Mackirmon reached were clearly wrong and unsupported
by the evidence, they were bound to overrule. However, it is submitted, with
all due respect, that the learned Judges of the majority in the Appeal Court
should have at least explicitly recognized the principle of the maintenance of
findings of fact in the trial Court, and proceeded to demonstrate how the trial
Judge was clearly wrong and unsupported by the evidence.
APPEAL TO THE SUPREME COURT OF CANADA
it is submitted –
The present case now goes before the Supreme Court of Canada to be
decided –
entirely on questions of fact. There can be no
doubt that the Prime Minister and the Attorney-General is nowhere authorized
to play any part in the administration of the Quebec Liquor Commission.
Thus, the Supreme Court will have to decide: did defendant give an order to
the Manager of the Commission and if he so did, was that order the causa
causans, the determining cause of the cancellation of the plaintiff’s permit?
What is the rule in the Supreme Court regarding the treatment to be
accorded to the findings of fact in the Courts below?
“The Supreme Court of Canada will not disturb concurrent findings of fact in the
Courts below unless exceptional circumstances are shown.”52
It must be noted that the above is the rule to be followed when the findings
of fact in the Courts below are concurrent. Such is not the situation in the
present instance. Thus, the learned Judges of the Supreme Court will re-
open the questions of fact de novo. What their decision on these facts will be
is a matter of conjecture at this point. While the trial Judge, who saw and
heard the witnesses first hand, and one Judge of the Court of Queen’s
Bench found that defendant did give an order, it must be kept in mind that
four learned Judges in Appeal were of the firm conviction that he did not.
In conclusion, it is this writer’s opinion that no matter how the Supreme
Court finds on the facts of this case, it will not disturb the holding of the
lower Courts on the principle of law regarding the liability of public officers.
The salient and precedent-making characteristic of Roncarelli v. Duplessis
will be the confirmation and reiteration of the principle of law that the Courts
maintain the authority to review and pass upon the legality of the acts of
public officers, even if they be the highest Ministers of the Crown. In this
era of vastly expanding functions of Government and the increasing contacts
of the private citizen with government officials, it is in this power of the
50Italics are the author’s.
51Rivard, op. cit., page 47. See Les Commissaires du Hdvre de Montrial v. The Montreal
Grain Elevating Co., (1908) 17 K.B. 385.
52Premier Gold Mining Co. v. Coastwise S.S. & Barge Company, [1926] 1 D.L.R.
1009.
92
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“Ordinary Courts” that the citizen must find his protection. The Judges are
the guardians of the liberties of the citizen.
“The public official must act according to the rules of reason and justice, not
according to private opinion, according to law and not humour. It is to be not
arbitrary, vague and fanciful, but legal and regular. The Court is always entitled
to examine the facts. va”5 4
BENJAMIN J. GREENBERG*
*Third Year Law Student.
53Italics are the author’s.
54Lord Halsbury in Sharp v. Wakefield, [1891] A.C. 173, at page 179.
