TMI Blog1936 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... the old Province of Canada. Its issued capital stock consisted (in addition to 12,500,000 4 per cent. Guaranteed Stock) of Preference and Common Stock (hereinafter referred to as the junior stocks) of an aggregate nominal value of 37,073,492. In addition there were issued and outstanding debenture stocks of the Grand Trunk exceeding 31,000.000. By an Act of the Parliament of Canada ( viz., the Grand Trunk Railway Acquisition Act, 1919), the Minister of Railways and Canals of Canada was authorised to enter into an agreement with the Grand Trunk for the acquisition by the Government of the junior stocks of the Grand Trunk subject to certain terms and conditions to be embodied in an agreement between the Government of Canada and the Grand Trunk. The agreement was to be submitted for the approval of a meeting of all the stock holders of the Grand Trunk including holders of the debenture stocks and guaranteed stock. The Act also provided that the Governor in Council might make such orders as were deemed requisite to vest in the Government any of the junior stocks not transferred to the Government or its nominees under the terms of the Act. The draft of an agreement embodying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or agent of the Grand Trunk entered on the stock register of the Grand Trunk a transfer of the junior stocks to the Minister of Finance. Subsequently an amalgamation took place between the Canadian National Railway Company (a company incorporated in the year 1919 by Special Act of the Parliament of Canada 9-10 Geo. V, cap. 13, and hereinafter referred to as the old Canadian National) and the Grand Trunk, as a result of which a company came into existence which also was called the Canadian National Railway Company and which is hereinafter referred to as the new Canadian National. By the amalgamation agreement (dated the January 30, 1923) it was amongst other things provided that the amount of the capital stock of the new Canadian National should be the equivalent in Canadian money at 4.86. 2 / 3 dollars to the pound sterling of 37,073,492 the total of the junior stocks of the Grand Trunk, and that the said capital stock should be issued in one share of the face value of 180,424,3270 dollars to the Minister of Finance in trust for His Majesty; and that upon such issue the shares held by the Minister of Finance in trust as aforesaid in the capital stock of the Grand Trunk should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rand Trunk or the Canadian National (but whether the old company or the new company is not clear) should appropriate or acquire 100 First Preference Stock, 100 Second Preference Stock, 700 Third Preference Stock, and 1,100 Common Stock of the Grand Trunk and transfer and register the same in the books of the Grand Trunk in his name as the holder thereof. Neither the request nor the demand made by him on December 16, 1931, was complied with; and accordingly he issued the writ in the present action of December 26, 1931. He is the only plaintiff, but he sues "on behalf of himself and on behalf of himself and all others the registered holders on January 18, 1923, of first, second and third preference stocks and of common stock of the Grand Trunk Railway Company of Canada their personal representatives or assigns." The defendants are the Grand Trunk, the Canadian National Railway of Canada and the Attorney-General of Canada. By his statement of claim he states either in terms or inferentially the facts already narrated, and alleges as to each Act of Parliament, Order in Council and agreement that it is invalid, illegal and void. From para. 3 of the statement of claim it would appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, 1923; or "( h ) an order directing the defendants Grand Trunk and Canadian National to appropriate or acquire 100 First Preference Stock, 100 Second Preference Stock, 700 Third Preference Stock and 1,100 Common Stock of the defendant Grand Trunk of which stock the plaintiff was the registered owner on January 18, 1923; or "( h ) an order directing the defendants Grand Trunk and Canadian National to appropriate or acquire 100 First Preference Stock. 100 Second Preference Stock, 700 Third Preference Stock and 1,100 Common Stock of the defendant Grand Trunk and to transfer and register the same in the books of the defendant Grand Trunk in the name of the plaintiff as the holder thereof; or "( i ) in the alternative damages in the amount of 9,733,33 dollars for the refusal or failure of the defendants Grand Trunk Canadian National to obtain and register such stock, or cause the same to be obtained and registered in the name of the plaintiff: and, "( j ) damages in the amount of 4,379 95 dollars for the unlawful acts of the defendants Grand Trunk and Canadian National in registering the invalid transfer referred to in clause ( a ) of this paragraph and in depriving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "11. The plaintiff denies the allegation in para. 23 of the Statement of Defence and says that the stock ownership whereof is in question in this action is now held by the Canadian National." An order was subsequently made for the points of law raised by paras. 23, 24 and 25 of the defence to be set down for hearing before the trial of the action, and they were set down and argued accordingly before Kerwin, J., who on February 24, 1933, made an order which so far as material was in the following terms: "and this Court having directed that the motion be turned into a motion for judgment 2. This Court doth declare that the plaintiff's claim impugns the title acquired by the Crown to the preference and ordinary stocks of the Grand Trunk and cannot be maintained by action but only by petition of right as alleged in para 23 of the statement of defence herein and doth order and adjudge the same accordingly. 3. And this Court doth further declare that the Exchequer Court of Canada has exclusive original jurisdiction to determine the matters in question in this action as alleged in para 24 of the statement of defence herein and doth order and adjudge the same accordingly. 4. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have done. They both treated the McLean case as justifying them in holding that proceedings by petition of right were the only proceedings available when the relief sought involved the putting an end to an existing title of the Crown. The thief justice of Ontario treats the junior stocks as standing in the name of the Minister: "the stock in question," he says, "has been transferred to the Minister of Finance." The Chief Justice in appeal speaks of the "extinguishment" of the Crown's, title. Riddell, J., goes further, for he said: " If the Crown ever owned the stock, the plaintiff has no standing to assert in any Court that he has any rights by reason of his ownership thereof": and, making the assumption in the plaintiff's favour that the Crown had transferred the stock to a third person, he held that upon the authority of the McLean case no proceedings except by petition of right were open to the plaintiff. Middleton, J., seems to have taken the same view, as did also Masten, J. The plaintiff has now appealed to His Majesty in Council, and in the argument addressed to their Lordships' Board has contended (1) that the McLean case has no application to his action, since it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeareth in M. 4, Ed. IV., f . 21 25, and M. 24, Ed. III,/. 64, and Travers 34 36. Like law is it if I have a rent-charge out of certain land, and the tenant of the land enfeoffeth the king by deed enrolled; now during the king's possession I must sue by petition, but if his; highness enfeoffe a stranger; and so it is in the cases before,) where a man may have is traverse" or "monstrans de droit : iff the lands be once out of the king's hands the party then may; have is remedy that the common law giveth him, for in all these-cases a petition did lye only for the dignity of his person and not for the right that he had to the possession of the thing'. Stdunford's Prerogative Chap, xxii, fol. lib, 75a. Again at p. 107 occurs the following passage: "There is, however, another fact which should be noticed in connection with this branch of the subject. We have seen that where the king's wrongful title is by matter 'in pais', if he grant over his interest, the party grieved is not put to his petition, but can recover at common law against his patentee; this, does not seem to be the case when the king's title accrues to him by a judicial record, or as Gascoigne (9 H 4) says by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tocks are still in the Minister's name, and the orders claimed in para 32 ( a ), ( g ) ( h ) , ( k ) , could only be granted by taking stock away from the Crown's trustee. Such relief can only be obtained by the subject on petition of right. Even if the allegation made in para. II of the reply be treated as incorporated in the statement of claim, the position remains in their Lordships' opinion the same. The Canadian National (whether the old or the new) has no beneficial interest in the stock; if it did get it, it was only received for the purpose of terminating its existence. The only person who, if the stock still exists and the plaintiff's claim succeeds, would be deprived of the stock and any beneficial interest therein, would be the Crown. Their Lordships are accordingly of opinion that the orders of Kerwin, J., and the Court of Appeal were right in so far as they operated to prevent the plaintiff from seeking by action to obtain the orders on the Grand Trunk and the Canadian National claimed by para. 32 ( a ), ( g ) , ( h ) and ( k ) of the statement of claim. The order of Kerwin, J., however, goes much further in its operation; it dismisses the action. Now the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of damages, and if it becomes necessary to determine the validity of any legislation of the Parliament of Canada, the presence and assistance of the Attorney-General for Canada and the Attorney-General of Ontario can be obtained at a later stage under the Ontario Judicature Act (1927 rule S.O. c. 88) sct. 32. In the view which their Lordships take, it is unnecessary for them to express any opinion in regard to the questions raised in paras. 24 and 25 of the defence. The question raised by the second appeal is a short one, but it had revealed considerable divergence of judicial opinion. It is whether the appellant was entitled as of right to appeal to His Majesty in Council from the order of the Court of Appeal of Ontario dated the June 28, 1933; and the answer depends upon whether this appeal is covered by the words "where the matter is controversy in any case exceeds the sum or value of 4,000 dollars" within the meaning of section 1 of the Privy Council Appeals Act of Ontario (R.S.O. 1927, c. 86). On the one hand it is said that the question for consideration on the appeal is a question of procedure or jurisdiction, and that there is no controversy of a pecuniary nature. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e costs of the motion referred to in an order of the Chief Justice of the High Court dated the January 14 1933), (3) of the appeal therefrom to the Court of Appeal, and (4) of the appeal to His Majesty in Council, the costs of the Attorney-General in each case being taken to be one-half of the aggregate costs of the three defendants. If the plaintiff has in fact paid the costs which he was ordered to pay by the order of Kerwin, J., by the order of the Court of Appeal of June 28, 1933, and by the order of the Court of Appeal of November 1, 1934, he is to be at liberty to deduct the amount of one-half of the costs so paid from the costs ordered to be paid by him to the Attorney-General as aforesaid. As to the costs of the other defendants of the matters aforesaid numbered (2), (3) and (4), it must be remembered on the one hand that the plaintiff has been partially successful on the first appeal and wholly successful on the second appeal, but on the other hand that the plaintiff has been unsuccessful in regard to the matters to which almost the whole of the time occupied by the hearing of the appeals must be attributed. The plaintiff has failed in regard to the main object of his acti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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