PRIVY COUNCIL

                    Canada Cement Company Limited

                    Vs.

                                     La Ville De Montreal Est
(Lord Buckmaster, CJ, Lord Atkinson, Lord Sumner, Lord Wrenbury and Lord Carson

                                                  JJ.)

                    20.12.1921

                    JUDGMENT

Lord Buckmaster J.

1.By Article 5755 of the Cities' and Towns' Act of Quebec, 1909, it is provided that ;

       "The payment of Municipal taxes may be claimed by an action brought in the
       name of the Corporation, before the Magistrate's Court, or the Circuit Court for
       the county or district, or before the Mayor, or two or more councilors acting ex
       officio as justices of the peace, or before the Recorder's Court if there be one."
2. Their Lordships are unaware of any statutory definition of a Circuit Court for the
county or district and none has been called to their attention; but they have been
definitely informed that a Circuit Court for the district - or, as it is generally known, a
District Court-is the Court sitting at the chief place in the county, and the other Courts
are called the County Courts.

3. The respondents, who are the Corporation of the town of Montreal East, availed
themselves of the provision of the section above quoted and took proceedings against
the appellants, the Canada Cement Company, in the Circuit Court, for the recovery of
taxes which had been imposed upon them to the extent of $. 60,253. On 5th January,
1921, Archambeault, J., sitting in the Circuit Court, gave judgment for the respondents
as against the appellants for the amount claimed. From this judgment the appellants
appealed to the Court of King's Bench for the Province of Quebec, but on a motion
made to dismiss the appeal for incompetency, the Court held, by a majority of three
Judges to two, that the judgment of the Circuit Court was final and was not susceptible
of appeal. From that judgment the present appeal has been brought.

4. The whole question that is raised is covered by determining whether or no the
judgment of the Circuit Court of the chief place of its district was final. The
respondents contend that it is, on three distinct grounds, the first being that, as the
jurisdiction of the Circuit Court owed its origin to the Cities' and Towns' Act, 1909, all
rights of appeal must be found in that statute, and none are thereby conferred. Their
Lordships do not think that this contention is sound. The power that was given to take
proceedings before the different Courts mentioned in Article 5755 enabled those
proceedings to be taken as part of the ordinary business of the Courts mentioned, and
the rights of appeal that exist from judgments given by those Courts are applicable to
such proceedings. The case of the National Telephone Co. v. Postmaster General 1 is
an illustration of this principle. The statement of Dorion, J., in Ville de Grand, Mere v.
Baker 2 where he points out that there is a right of appeal under Article 5533 where
penalties can be recovered in the Civil Courts, is doubtless based upon this view, and
their Lordships think it correct. The judgment of Lemieux, C.J., in the same case,
where he says that no appeal lies under Article 5755, does not appear necessarily to
depend upon the absence of appeal provisions in the statute, but may be due to other
considerations.

5. The second and by far the most important argument urged by the respondents is that
the Circuit Court is created and governed by the provisions of the Code of Civil
Procedure, and that in order to ascertain if any appeal exists in such a case as the
present, it is essential to ascertain what are the powers conferred by the Code, and,
according to their contention, by these no right of appeal exists. Section 54 of the
Code establishes the Circuit Court and defines and limits its jurisdiction. It is in the
following terms:-

       "54. The Circuit Court has ultimate jurisdiction to the exclusion of the Superior
       Court :- (1) In all suits wherein the sum claimed or the value of the thing
       demanded is less than $.100, saving the exceptions contained in the following
       article, and such cases as fall exclusively within the jurisdiction of the
       Exchequer Court of Canada in matters of petition of right; (2) In all suits for
       school-taxes or school-fees, and all suits concerning assessments for the
       building and repairing of churches, parsonages, and church-yards whatever may
       be the amount of such suits."
6. From this it will be seen that, so far as this section is concerned the District Court as
part of the Circuit Court has no jurisdiction in cases of $ 100 and upwards excepting
in cases relating to school-taxes, school-fees, and other matters specifically mentioned
in sub-Section 2. With regard to both branches of the section, its jurisdiction is
ultimate and complete. The Country Court - that is, a Court sitting elsewhere than at
the chief place of the District - has, however, in addition to the jurisdiction conferred
upon it by Section 54, a further jurisdiction between $ 100 and $ 200, conferred upon
it by Section 55, but this is subject to appeal. It also has jurisdiction with regard to
matters specified in sub-Section 2 of Section 55. There is, therefore, so far as these
sections are concerned, no power whatever to appeal from any judgment of the
District Court.

7. Section 52 provides for the Court to which the appeals lie. The first three sub-
clauses, which are all that are material, are as follows:-

       "52. An appeal lies to the Court of Review: (1) From every final judgment of
       the Superior Court or of the Circuit Court susceptible of appeal to the Court of
       King's Bench. (2) From any final judgment of the Superior Court in suits in
       which the sum claimed or the value of the thing demanded is less than $ 500.
       (3) From any final judgment of the Circuit Court in which the sum claimed or
       the value of the thing demanded amounts to or exceeds $ 100 except in suits for
       the recovery of assessments for schools or school-houses or for monthly
       contribution to schools, and in suits for the building and repairing of churches,
       parsonages, or church yards..."
8. Sub-section (1) relates to the appeal given in certain named cases by Section 44.
Sub-Section 2 has nothing to do with the present dispute. The right to appeal, if it
exists, must be found in sub-Section 3.

9. The appellants contend that the power there conferred is adequate, as it includes
any final judgment of the Circuit Court exceeding $ 100. But it must be remembered
that under this Code no judgment of the District Court could be given in any matter
exceeding $ 100 excepting the matters specified in sub-Section 2 of Section 54, and
they are expressly excluded. Any final judgment of the Circuit Court referred to in
Section 52 is, in their Lordships' opinion, a judgment contemplated by the Code of
Civil) Procedure itself, for their attention has not been directed to any statute under
which further and more extended jurisdiction was conferred upon the Court at the time
of the passing of the Code. The consequence is that the right to recover the taxes has
been conferred upon the municipality with regard to a Court from whose judgment no
right of appeal exists, and it cannot, in their opinion, be introduced by giving the
words in sub-Section 3 of Section 52 a meaning which would only be apt if they were
considered in relation to an extended jurisdiction not provided for by the Code in
which the section finds its place.
10. There is a further point also raised by the respondents to which, in their Lordships'
opinion, no sufficient answer has been found. By the statute of Quebec, 10 Geo. 5, c.
79, the whole of the sections of the Code of Civil Procedure in which the provisions
relating to the Circuit Court and the rights of appeal find place are declared to be
replaced by other provisions, and so far as the Circuit Court is concerned, the
provisions as to appeal drop out. Section 42, however, provides that the Court of
King's Bench shall have jurisdiction in all matters from all Courts wherefrom an
appeal by law lies, and Section 64 provides

       "Unless otherwise provided by this Act, all cases, matters or things which, at
       the time of its coming into force, were within the competence of the Court of
       Review, shall be within the competence of the Court of King's Bench, sitting in
       appeal."
11. Now this appeal had not been brought when the statute was passed, although the
proceedings before the Circuit Court had been instituted. Consequently the statutes
giving whatever right of appeal may have existed were replaced by sections which
gave none, and Section 64 of the Act, which provided that matters within the
competence of the Court of Review should be subject to the Court of King's Bench,
must be regarded as qualified by the provision that the powers of the Court of Review
with regard to the Circuit Court had been taken away, and consequently to that extent
the statute "had otherwise provided."

12. For these reasons their Lordships think that the appeal fails and must be dismissed
with costs. The petition to quash the appeal as in competent lodged by the
respondents, which was before the Board on 27th July, 1921, and was ordered to stand
over until the hearing of the appeal will be formally dismissed, and the appellants will
be entitled to set off their costs in relation to it against the costs which they are now
ordered to pay. Their Lordships will humbly advise His Majesty accordingly.

Appeal dismissed.

Cases Referred.

   1. (1913) A.C. 546
   2. Q.R. 45 S.C. 109