Supreme Court of Canada
Keable v. Attorney General (Can.) et al., [1978] 2 S.C.R. 135
Date: 1978-03-21
Maître Jean F. Keable (Appellant) Applicant;
and
The Attorney General for Canada and The Solicitor General of Canada Respondents;
and
The Attorney General for Quebec and The Commissioner of The Royal Canadian Mounted Police Mis en cause.
1978: March 13; 1978: March 21.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
APPLICATION FOR STAY OF EXECUTION
Courts—Proceedings of a Commission of Inquiry suspended by the Court of Appeal—Application to Supreme Court for stay of execution of judgment—Supreme Court Act, R.S.C. 1970, c. S-19, s. 70.
The Quebec Court of Appeal, setting aside a judgment of the Superior Court, issued a writ of evocation against the appellant, a Commission of Inquiry established under provincial legislation, and in consequence ordered the suspension of all proceedings of the Commission. The appellant, to which this Court had given leave to appeal from the judgment of the Court of Appeal, moved for a declaration that, pursuant to s. 70 of the Supreme Court Act, the order of the Court of Appeal suspending the Commission’s proceedings is stayed or, alternatively, for an interlocutory order that this Court, pending the determination of the merits of the appeal, permit the Commission to resume its inquiry within such limits as this Court may fix.
Held: The application should be dismissed.
Section 70 of the Supreme Court Act does not support the application. However, this Court will not depart in this case from its practice, under which it does not, as a general rule, interfere with procedural questions arising under provincial legislation and under orders of provincial superior Courts. As to the alternative claim, even if this Court had the power to grant the relief sought here, there was no ground, taking into consideration the serious jurisdictional and constitutional questions involved, for disposing of this appeal in part or truncating the order of the Court of Appeal.
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Michel Décarie, for the applicant.
Joseph Nuss, Q.C., for the respondent the Attorney General for Canada.
Michel Robert, for the respondent the Solicitor General of Canada.
Gérald Tremblay, for the mis en cause the Attorney General for Quebec.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—On March 6, 1978, this Court gave leave to Jean F. Keable and to the Attorney-General of Quebec to appeal from an adverse judgment of the Quebec Court of Appeal, dated February 21, 1978. They immediately filed a notice of appeal and perfected the security required by s. 66 of the Supreme Court Act, R.S.C. 1970, c. S-19.
By the judgment in appeal, the Quebec Court of Appeal set aside a judgment of Hugessen A.C.J., dated December 9, 1977, refusing recourse by evocation against Jean F. Keable, a Commission of Inquiry established under provincial legislation, and granted to the Attorney General of Canada and to the Solicitor General of Canada the relief set out in its formal judgment, as follows:
[TRANSLATION]…
AUTHORIZE the issuance of the writ of assignation sought;
ORDER to the respondent ès qualités the suspension of all proceedings and the transmission to the office of the Superior Court, within fifteen days of the present judgment, of the record of the case and all the exhibits connected therewith…
Kaufman J.A. dissented in part and would have ordered a partial suspension only of the Commission’s inquiry.
On February 22, 1978, the successful appelants in the Quebec Court of Appeal had the writ of evocation issued by the prothonotary of the Superior Court. This writ includes a command in the terms of the judgment of the Court of Appeal, and it was served the same day upon the Commission, together with a copy of the judgment, in order to have the record of proceedings before the Commis-
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sion and all exhibits pertaining thereto transmitted to the registry of the Superior Court, pursuant to the judgment of the Quebec Court of Appeal.
The appellants in this Court have now moved for a declaration that, pursuant to s. 70 of the Supreme Court Act, R.S.C. 1970, c. S-19, the order of the Quebec Court of Appeal suspending the Keable Commission’s proceedings is stayed or, alternatively, for an interlocutory order that this Court, in the exercise of its powers relating to proceedings therein and pending the determination of the merits of the appeal brought by the appellants, permit the Keable Commission to resume its inquiry within such limits as this Court may fix, the suggested limits being those indicated in the partial dissent of Kaufman J.A.
It is evident from the reasons of the majority of the Quebec Court of Appeal (Paré and Monet JJ.A.) that, having decided that the Keable Commission is subject to the supervisory jurisdiction of the Quebec Superior Court under art. 846 of the Quebec Code of Civil Procedure, and that, prima facie, an excess of jurisdiction on its part appeared in respect of demands made upon the Solicitor General of Canada in his official capacity for production of certain documents and in the resort to and use of certain other documents pertaining to national security, a writ of evocation should issue out of the Superior Court and that, pursuant to art. 848 of the Code of Civil Procedure, the consequences therein mentioned should follow, namely, the suspension of all proceedings of the Commission. Paré J.A. noted that it was unnecessary to decide if art. 848 authorized a partial suspension of proceedings of the inferior tribunal to which a writ of evocation was directed.
It is relevant to point out that the issue of a writ of evocation, as directed by the Quebec Court of Appeal, is merely the first of a two-step procedure, and that further proceedings are involved following the return made to the writ. There is, therefore, an interlocutory aspect to the proceedings in their present state, and this Court does not, as a general rule, interfere with procedural questions arising under provincial legislation and under
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orders of provincial superior Courts. I would not depart from this practice in this case.
It is my opinion, in any event, that reliance on s. 70 of the Supreme Court Act as prescribing an automatic stay of the order of suspension of the Keable Commission proceedings is misconceived. That provision has in view, as the exceptions therein make clear and as is evident from ss. 71 and 72, the intervention, for example, of a sheriff to carry out a direction in implementation of a judgment, where the judgment itself is left unimpaired pending the determination of an appeal to this Court. It does not operate as an interlocutory stay of an order addressed to a party himself: see Battle Creek Toasted Corn Flake Co. Ltd. v. Kellogg Toasted Corn Flake Co.[1]
I come then to the alternative claim for interlocutory relief. Our orders in Poje v. Attorney‑General of British Columbia, order made October 16, 1952, and in Cotroni v. La Commission de Police du Québec, order made February 18, 1975[2], do not touch the present application. Those orders merely released the applicants from goal, on terms, pending the outcome of their appeals. Assuming, as did this Court in Steinberg’s Limitée v. Comité Paritaire de l’Alimentation[3], and in Laboratoire Pentagone Limitée v. Parke, Davis and Co.[4], that it has the power to grant the relief sought here, we would be disposing of this appeal in part on an interlocutory motion if we were to accede to the contentions of the appellants. There are serious jurisdictional and constitutional questions involved in the appeal, questions to which the Quebec Court of Appeal was sensitive, and I think the proper course is not to truncate its order for the issue of a writ of evocation and for suspension of the Keable Commission’s proceedings prior to the determination of the appeal proper.
For all these reasons, I would dismiss the application. There will be no order as to costs.
Application dismissed.