Supreme Court Judgments

Supreme Court of Canada

Corporation des Opticiens d’ordonnances du Québec v. Valentine et al., [1972] S.C.R. 478

Date: 1971-12-20

Corporation of Dispensing Opticians of the Province of Quebec (Plaintiff) Appellant;

and

The Legal Heirs and Representatives of the Late Pierre Valentine and Le Service D’optique Élite Ltée (Defendants) Respondents.

1971: October 5; 1971: December 20.

Present: Fauteux C.J. and Abbott, Ritchie, Hall and Pigeon JJ.

MOTION TO QUASH

Appeal—Jurisdiction—Motion to quash—Fines for 32 offences against Dispensing Opticians Act—Judgment not in “criminal cause”—“Amount in controversy” total amount of fines—Dispensing Opticians Act, R.S.Q. 1964, c. 258, s. 32—Supreme Court Act, R.S.C. 1952, c. 259, ss. 36, 40, 41—Code of Civil Procedure, art. 66.

The respondent’s predecessor was condemned in the Superior Court to pay to the appellant Corporation $12,600 in fines for 32 offences against the Dispensing Opticians Act, R.S.Q. 1964, c. 258. This judgment was reversed by the Court of Appeal. The Corporation appealed to this Court and the respondent moved to quash the appeal on the grounds (a) that the judgment is in a “criminal cause” within the meaning of the Supreme Court Act and no leave

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to appeal has been granted, and (b) that the amount of the “matter in controversy” does not exceed $10,000, because each offence constitutes a separate matter in controversy.

Held: The motion to quash should be dismissed, Pigeon J. dissenting.

Per Fauteux C.J. and Abbott, Ritchie and Hall JJ.: The Corporation could validly lodge an appeal de plano. According to the very terms of s. 32 of the Dispensing Opticians Act authorizing it, the action instituted by the Corporation is a “civil” suit belonging exclusively to the Corporation, and the fines that may be imposed belong to the Corporation in its own right and may be recovered by the ordinary means of execution of a civil judgment. Therefore, the provisions of s. 41(3) of the Supreme Court Act cannot apply, for that section has nothing to do with civil proceedings.

This is a case where a single creditor is suing its debtor in order to recover its own debt of $12,600 owed because of 32 offences committed by the debtor. These 32 offences represent so many causes of action which were joined in the same suit, as art. 66 of the Code of Civil Procedure allows.

Per Pigeon J., dissenting: What is decisive of the question as to whether a judgment is in a “criminal cause”, is not the nature of the right in dispute, but the procedure adopted in enforcing it. The first ground is therefore unfounded.

It has been held in many cases that when a single judgment disposes simultaneously of several cases joined in the same suit, the amount of the “matter in controversy” is not the total amount, but the amount in issue in each separate case. We are dealing here with 32 separate claims, based on as many offences, and accordingly this is not a “matter in controversy” in which the amount is the sum claimed, but actually 32 separate cases in which the amount in controversy is $200 for the first case and $400 for each of the others. In determining the jurisdiction of this Court, the fact that the provincial statute authorizes the joinder of the causes of action and makes such joinder the basis of jurisdiction cannot be considered.

MOTION TO QUASH an appeal from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], reversing a judgment of Dorion C.J. Motion dismissed, Pigeon J. dissenting.

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Gilles St-Hilaire, for the plaintiff, appellant.

André Joli-Coeur, for the defendants, respondents.

The judgment of Fauteux C.J. and of Abbott, Ritchie and Hall JJ. was delivered by

THE CHIEF JUSTICE—On May 13, 1967, appellant, the Corporation of Dispensing Opticians of the Province of Quebec, brought a civil suit against respondents’ predecessor, the late Pierre Valentine, under the Dispensing Opticians Act, R.S.Q. 1964, c. 258, claiming the sum of $13,400 for offences against that Act. Appelant’s action was allowed in the Superior Court and respondents’ predecessor was ordered to pay appelant $12,600, but this judgment was reversed in the Court of Appeal¹ on the grounds that plaintiff had not proved the offence alleged in its action.

Hence the appeal to this Court.

In their motion respondents request that the appeal, lodged de plano, be quashed for two reasons: (1) they contend that the judgment a quo is a judgment in a criminal cause within the meaning of s. 41(3) of the Supreme Court Act, and no leave to appeal from that judgment to this Court was granted to appellant; (ii) even if this were not a criminal but a civil case, each offence must, it is submitted, be considered as constituting a separate matter in controversy, resulting in each case in a fine of much less than $10,000, namely a fine of $200 or $400. Accordingly, there can be no appeal de plano to this Court.

In order to dispose of the first ground it is sufficient to cite s. 32 of the Dispensing Opticians Act, R.S.Q. 1964, c. 258, under which the action was initiated by the Corporation:

32. The right of process for the offences provided by this act shall belong exclusively to the Corporation. It shall be exercised by civil action before the court having jurisdiction according to the amount of the fine fixed by this act for the place where the offence was committed or for the place where the action is served. The fines shall belong to the Corporation.

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It is thus clear that the action initiated by the Corporation is a “civil” suit belonging exclusively to the Corporation, and that, moreover, the fines that may be imposed, consequent on such a suit, belong to the Corporation in her own right and may be recovered by the ordinary means of execution of a civil judgment.

Not only are these views in accordance with the wording of s. 32, but also, as we shall see, with the decision of the Privy Council confirming the decision of this Court in The King v. Nat Bell Liquors, Limited[2]. That case turned, in particular, on the determination of the true meaning of the words “criminal causes” in the context of s. 36 of the Supreme Court Act, as it was at the time in the English version:

36. Subject to sections thirty-eight and thirty-nine an appeal shall lie to the Supreme Court from any judgment of the highest court of final resort now or hereafter established in any province of Canada pronounced in a judicial proceeding, whether such court is a court of appeal or of original jurisdiction (except in criminal causes and in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge, or in any case of proceedings for or upon a writ of habeas corpus arising out of any claim for extradition made under any treaty) where such judgment is,—

(a) a final judgment; or

(b) a judgment upon a motion for a non suit or directing a new trial.

It will be noted that since 1922 the exception provided in s. 36 has now become the subject of the provisions of the present s. 40, the English version of which is also worth citing:

40. No appeal to the Supreme Court lies under section 36, 38 or 39 from a judgment in a criminal cause, in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge, or in proceedings for or upon a writ of habeas corpus arising out of a claim for extradition made under a treaty.

Expressing his opinion on the meaning of the word “criminal” as it then appeared in s. 36, and thereafter in s. 40, Lord Sumner said:

The issue is really this. Ought the word “criminal” in the section in question to be limited to the sense

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in which “criminal” legislation is exclusively reserved to the Dominion Legislature by the British North America Act, s. 91, or does it include that power of enforcing other legislation by the imposition of penalties, including imprisonment, which it has been held that s. 92 authorizes Provincial Legislatures to exercise? It may also be asked (though this question is not precisely identical) under which category does this conviction fall of the two referred to by Bowen L.J., in Osborne v. Milman (1887) 18 Q.B.D. 471, when he contrasts the cases “where an act is prohibited, in the sense that it is rendered criminal”, and “where the statute merely affixes certain consequences, more or less impleasant, to the doing of the act”.

Their Lordships are of opinion that the word “criminal” in the section and in the context in question is used in contra-distinction to “civil”, and “connotes a proceeding which is not civil in its character …”.

Since the procedure adopted by the Corporation in exercising its rights is clearly civil in nature, according to the very terms of the statute authorizing such procedure, the provisions of s. 41 (3) cannot apply, for that section has nothing to do with civil proceedings, and it follows that, subject to a consideration of the second ground submitted by respondents, this Court has jurisdiction under the present s. 36 to hear this civil suit, in which, prima facie, the matter in controversy in the appeal exceeds $10,000.

In their second ground respondents suggest that the matter in controversy here is not the amount of the totality of the fines applicable to the totality of the offences, but the amount of the fine applicable to each individual offence, namely $200 for the first, and $400 for each of the others.

In support of this contention this Court was referred to several decisions that need to be distinguished from the case at bar. Thus, in Duchesse Shoe Limited v. Comité Paritaire[3], Cousins v. Harding[4] and l’Autorité v. Ibbotson[5], several creditors, represented or joined in the

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same suit, were concerned. That is not the case here, where a single creditor is suing its debtor in order to recover its own debt of $12,600. Also inapplicable is Watt & Scott, Ltd. v. The City of Montreal[6], in which appellant had brought two separate suits against the City, and the Court, in accordance with art. 291 and 292 of the old Code of Civil Procedure—now 270 and 271 of the new Code—ordered that these suits be joined for purposes of evidence only. In the case at bar there is no joinder of actions, but a joinder of causes of action in the same suit, which art. 66 of C.C.P. allows. Lastly, in Glenn Falls Ins. Co. v. Adams[7], there were a number of defendants sued, under separate contracts, in a single action. As already noted, this case is an action by a creditor against his debtor.

These decisions are therefore readily distinguishable from the case at bar and, be it said with all respect for the contrary view, have no application to this case.

In short, appellant claims, under the above-mentioned statute, that it is owed a sum of $12,600 because of thirty-two offences committed by respondents’ predecessor. These thirty‑two offences represent so many causes of action which may be, and were, joined in the same suit, as art. 66 of C.C.P. allows. According to other provisions of that Code, the courts’ jurisdiction is determined by the amount of the claim. If the conditions specified in art. 66 of the C.C.P. had not been met, defendant would have been entitled to oppose the joinder of these causes of action; this it has not done.

It is worth citing here the following extract from the reasons for judgment given in this case by Salvas J. of the Court of Appeal:

[TRANSLATION] In its action plaintiff was claiming $13,400.00. “The right of process for the offences provided by this act shall belong exclusively to the Corporation. It shall be exercised by civil action before the court having jurisdiction according to the amount of the fine fixed by this act… The fines belong to the Corporation” (R.S.Q. c. 258,

[Page 484]

s. 32), for each of the offences. The reference is to a court of civil jurisdiction. That jurisdiction is not exclusive in so far as the amount claimed is concerned. We must therefore refer on this point to the rules of the Code of Civil Procedure, “applicable to all actions” in civil matters. Plaintiff is the creditor in respect of a sum of $12,600.00 owing to it by defendant under several causes of actions which “may be joined in the same suit” (C.C.P. Title 3, Chap. 2, art. 66).

If respondents’ claim were accepted, the provision contained in s. 32 of the statute, to the effect that the action must be brought before the Court having jurisdiction according to the amount, would have no object because in every case the largest fine attaching to an offence being $400, the action would necesarily have to be brought in the Provincial Court.

The Corporation could therefore, in my opinion, validly lodge an appeal de plano before this Court, as it has done.

I would dismiss respondents’ motion with costs.

PIGEON J. (dissenting)—The appeal by the Corporation is from a judgment rendered by The Quebec Court of Appeal on January 29, 1971. This decision reversed a judgment delivered by the Superior Court on August 16, 1968, whereby respondents’ predecessor, Pierre Valentine, was condemned to pay the Corporation $12,600 in fines for thirty-two offences against the Dispensing Opticians Act.

The motion of the respondents, the heirs of the defendant Pierre Valentine, prays that the appeal be quashed on two grounds.

(1) The judgment is in a “criminal cause” within the meaning of s. 40 of the Supreme Court Act;

(2) The amount of the “matter in controversy” in the appeal does not exceed $10,000, because each offence constitutes a separate matter in controversy.

On the first ground it must be noted, at the outset, that it is well established, by conclusive precedents, that a criminal prosecution for an offence against a provincial statute, that carries a penalty by fine or imprisonment, is as much a “criminal cause” as a similar prosecution under

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the Criminal Code or any other federal statute. This clearly appears from the decision of this Court in The King v. Nat. Bell Liquors Limited[8], affirmed by the Privy Council[9]. This is not decisive of the point, because the provincial statute under which the prosecution was initiated (Revised Statutes 1964, c. 258) provides in s. 32:

32. The right of process for the offences provided by this act shall belong exclusively to the Corporation. It shall be exercised by civil action before the court having jurisdiction according to the amount of the fine fixed by this act for the place where the offence was committed or for the place where the action is served. The fines shall belong to the Corporation.

It is therefore necessary to consider whether the expression “criminal cause” describes the nature or the object of the prosecution. Shortly after the above-mentioned case, this question was examined by this Court, in The King v. Charles Bell[10]. The case dealt with a fine for an offence against the Income War Tax Act. Sentence had been passed on summary conviction by a magistrate who, taking the view that the penalty mentioned in the statute was a maximum, had set a much lower amount; his decision had been upheld on appeal by stated case. This Court held that it was without jurisdiction because this was a “criminal cause”. The significant point is that, in the reasons of Anglin C.J. as well in those of Duff J., it was said that “criminal cause” should be interpreted in the same way as “criminal cause or matter” in the English Judicature Act, and the reasoning of the Court of Criminal Appeal on this point in the Hausmann case[11] was relied on. That case dealt with a fine for an offence against the Customs Act. The proceedings had been commenced by information in the Court of King’s Bench, and it was held that this was a civil suit, in which an appeal could be taken only to the Court of Appeal not to the Court of Criminal Appeal.

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Duff J., as he then was, commented that, under the federal statute in question, the penalty was also recoverable by civil suit in the Exchequer Court but, since the proceedings had been by summary conviction under the Criminal Code, there was a right of appeal only as provided for such cases in the Criminal Code, and there was accordingly no right of appeal to this Court. It is true that he expressly stated that his opinion was limited to offences against a federal statute. However, I fail to see how a different conclusion could be reached with respect to a provincial statute. Once the principle is accepted that what is decisive is not the nature of the right in dispute, but the procedure adopted in enforcing it, the conclusion must be the same whether the offence is against a provincial or a federal statute. I therefore conclude that the first ground is unfounded.

The second ground involves a decision on the meaning of the words “matter in controversy” in s. 36 of the Supreme Court Act.

36. Subject to sections 40 and 44, an appeal to the Supreme Court lies from a final judgment or a judgment granting a motion for a nonsuit or directing a new trial of the highest court of final resort in a province, or a judge thereof, pronounced in

(a) a judicial proceeding where the amount or value of the matter in controversy in the appeal exceeds ten thousand dollars, or

(b) proceedings for or upon a writ of habeas corpus or mandamus.

It has been held in many cases that when a single judgment disposes simultaneously of several cases joined in the same suit, the amount of the “matter in controversy” is not the total amount, but the amount in issue in each separate case. Thus, in La Duchesse Shoe v. Le Comité Paritaire[12], respondent was claiming wages in proceedings instituted in its own name for the benefit of several workers, under a provincial statute allowing it to join all its claims in one action. It was held that the amount in controversy which

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was to be considered was that of the claim made for each worker. Effect was given to what Rinfret J., as he then was, had said, in Cousins v. Harding[13]:

Under s. 22 of the Fair Wages Act the claims of several employees against the same employer may be cumulated in a single action. But the statute is only permissive, not compulsory, and the mere fact that several plaintiffs have joined their claims in a single action does not affect our jurisdiction. So far as this Court is concerned, each claim by itself must be considered as separate for purposes of jurisdiction.

In Watt & Scott, Ltd. v. City of Montreal[14], appellant had brought two separate actions in succession against the municipality for damages resulting from sewage system overflow on two different occasions. The suits had been consolidated by interlocutory judgment under art. 291 and 292 of the Code of Procedure then in force. This Court unanimously held that the appeal was to be quashed as to the amount claimed for the first incident, which was under $2,000. Brodeur J. said in this regard (at pp. 532 and 533):

[TRANSLATION] The purpose of consolidating actions for trial is to reduce costs, and such consolidation does not result in the constitution of a single action. The actions do not lose their identity after consolidation and it often happens that one of them is allowed and the other is dismissed. Thus in the present case we see that the Court of Appeal, which on the second action was unanimously of opinion that defendant was responsible, was divided on the first. There were circumstances, in the consideration of these two cases, which could be relied on in one case and not in the other.

* * *

To decide whether this Court has jurisdiction we must therefore look at the amounts in the two actions.

In a case decided recently by this Court l’Autorité v. Ibbotson (57 Can. S.C.R. 340), we held that if eleven persons join in a single action for the purpose of claiming damages in the amount of $22,000,

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payable $2,000 to each person, such action must be treated as if there were eleven different actions.

The following decisions of this Court are to the same effect: Hearn v. Nelson & Fort Sheppard Ry. Co. (8 West. W.R. 99), Glen Falls Ins. Co. v. Adams (54 Can. S.C.R. 88), Ontario Bank v. McAllister (Cameron’s Practice, 2nd. ed. 265).

The only difference between the present case and the Watt & Scott case is that here the Corporation itself joined the causes of action in the same suit, in accordance with art. 66 of the present Code of Procedure, instead of bringing them separately and then asking the Court to consolidate them. I do not see why this would make any difference respecting the jurisdiction of this Court. Here, as in the other case, there are circumstances peculiar to each claim: so much so that the action alleging thirty-four separate offences was sustained for thirty-two of them only. In fact, therefore, a decision was made by the judgment in question, on thirty-two separate causes of action. This is not a case, as in Magillo v. Moore Township[15], (59 S.C.R. 9), of a suit based on a single cause of action, a fatal accident, in which the amount was apportioned by the judgment among several claimants. We are dealing here with thirty-two separate claims, based on as many offences, and accordingly I am of the opinion that this is not a “matter in controversy” in which the amount is the sum claimed, but actually thirty-two separate cases in which the amount in controversy is $200 for the first case and $400 for each of the others.

In determining the jurisdiction of this Court, the fact that the provincial statute authorizes the joinder of the causes of action and makes such joinder the basis of jurisdiction cannot be considered. The provincial statutes governing the claims involved in Cousins and La Duchesse Shoe expressly authorized the joinder of several claims in one action, and this Court held that this was not to be taken into consideration in determining its jurisdiction. This view was adhered to in Le Comité Conjoint des Métiers de la Construction du District de Hull v. Canada China Clay &

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Silica Co. Ltd.[16], although the legislature had added in 1940 enactment (4 Geo. VI, c. 38, s. 53) the words: “the total claimed shall determine the competency of the court of original jurisdiction as well as of appeal”. Rinfret C.J. said (at p. 257):

It is now well settled that where a joint committee claiming, on behalf and for the benefit of workers and apprentices, an amount alleged to be due as wages under a collective agreement and also claiming under other provisions of the Act for sums payable to the committee itself as liquidated damages or as penalty, the jurisdiction of this Court is not to be established by the aggregate sum claimed on behalf of all the workers and apprentices, but that each individual claim by itself must be considered as separate for purposes of jurisdiction. (Cousins v. Harding, (1940) 3 D.L.R. 272, S.C.R. 442; La Duchesse Shoe Ltd. v. Le Comité Paritaire de l’Industrie de la Chaussure, (1941) 4 D.L.R. 480, S.C.R. 538). This rule has been followed ever since in this Court.

With deference to the contrary opinion, I do not think any other conclusion is possible. As Taschereau J. noted in L’Association St-Jean-Baptiste de Montréal v. Brault[17]:

… the provincial legislatures have not power to restrict in any way the jurisdiction of this Court or to add to it.

For these reasons, I would allow respondents’ motion and quash the appeal with costs.

Motion dismissed with costs, Pigeon J. dissenting.

Solicitors for the plaintiff, appellant: St. Hilaire, Boucher, DeBlois, Parent, Proulx & Leclerc, Quebec.

Solicitors for the defendants, respondents: Joli-Coeur, Joli-Coeur & Mathieu, Québec.