The last Canadian case in the Privy Council (2)

This is a postscript to the blog I posted recently. Once again I am indebted to the same Canadian source.

[I have now added two comments, in the form of additional information, at the end of this piece]

In the edition of The National (the newsletter for the Canadian Bar Association) for June-July 1995, Robert (Bert) MacKinnon wrote this memory of that last Canadian case in the Privy Council.

I can add information to the discussion of the last case that went from Canada to the Privy Council.  I was a junior counsel for the Respondent on that case:  Ponoka Calmar Oils Ltd.v. Earl F Wakefield Co [1960] A.C. 18.  The case was a mechanic’s lien action, as they were then called, by the driller of an oil well against the owners of the well for the drilling bill.  The case started by a Statement of Claim issued on December 5, 1949.  On application, the court appointed a Receiver to take the proceeds of production.

At first, there was very little production.  The well was at the edge of the Leduc Oil field and produced mostly salt water and for that reason little was done with the litigation.  However, technology improved, production increased and by 1956 there was a fund of money sufficient to pay the bills.    At trial the claimant driller was successful.  In the Court of Appeal, however, the Claimant lost in a 3-2 decision.  The Supreme Court of Canada allowed the Claimant’s appeal and restored the Trial Judgment.  At that point, Bill Morrow acting for the Owners, looked back at the Statement of Claim and discovered it was issued three days before the cut-off date for appeals to the Judicial Committee of the Privy Council– December 8, 1949.  Away we went to London.

Canadian Counsel in the Privy Council were William Morrow Q.C. and William Stevenson for the Owners, Appellants; J.V.H. Milvain Q.C. and J.H. Laycraft for the Claimants, Respondents.  One of the defences to the Mechanic’s Lien was that, even though the Court had appointed a Receiver, the Mechanic’s Lien should have been renewed every two years.  If that were so, there was a possible claim against the Claimant’s lawyers and R.A. Mackimmie Q.C. was appointed to argue that sole point.

I remember David Smout joining our team.  He asked to join for the experience at no fee.  We discovered that ancient rules forbad that so we paid him, I think, ten guineas.  I was glad to have him because I was no longer the absolute junior.

The case was argued over four days during the first week of July 1959.  Judgment was received in October 1959.  The judges were Viscount Simonds, presiding, with Lord Reid, Lord Radcliffe, Lord Tucker and, as junior judge, the redoubtable Lord Denning.

Of course, the theory of the Judicial Committee of the Privy Council was that it was not a court.  Rather, the Queen had received a petition saying that the Appellant had gone through the court system to the end but had not received justice.  Therefore he was “at the foot of the throne” asking the Queen for justice.  The Queen appoints “a Committee of my Privy Councillors” to investigate.  Thus the Judges were not robed. They appeared sitting at an ordinary table in somewhat tweedy suits of indeterminate age and tailoring.  But we were appearing as counsel so we were fully robed and wearing wigs.  I rented my wig, but Bill Morrow, with a better sense of history, bought his.

After hearing the appeal, they reported to the Queen and we received a formal Order-in-Council bound with a red ribbon, and sealed with the Great Seal.  The Queen stated that her

“right trusty and beloved Privy Councillors having advised us that no injustice has been done, the petition is dismissed”.

After more than 40 years there is an old world, somewhat unreal aspect to my memories of that appearance before the Judicial Committee of the Privy Council.  It seemed a natural enough thing at the time.  But in retrospect I am left with the feeling that the traditions of that place were not our traditions.  It was also a long way to go and a lot of legal process to determine an Alberta Mechanic’s Lien action.

Jack Watson, who sits in the Alberta Court of Appeal today, has added this comment when he read Herb Laycraft’s description of the case (which I published in my last blog):

One post-script to Chief Justice Laycraft’s summary of the last Privy Council case from Canada is to note that he went on to become Chief Justice of Alberta.  His ‘senior’, the late Valentine Milvain, had previously become Chief Justice of the Trial Division of the Supreme Court of Alberta, as it then was.  As for William Morrow, he became famous in the north of Canada as a travelling justiciar, almost, for the aboriginal people there, and thereafter joined the Alberta Court of Appeal.  William Stevenson [became Chief Justice of Alberta, and was then promoted to be a justice on the Supreme Court of Canada].[1]  Mackimmie came to be the head of a large Calgary law firm.  I don’t know what happened to Smout.[2]

On the general issue of appeals to the Privy Council, as long ago as 1902 Richard Haldane QC (as he then was)  told a story of a mythical traveller ‘who had penetrated a remote part of India where he found the natives offering up a sacrifice to a far-off but all-powerful god who had just restored to the tribe the land which the Government of the day had taken from it.  He asked the name of the god.  The reply was:

“We know nothing of him but that he is a good god, and that his name is the Judicial Committee of the Privy Council.”’[3]

John de P Wright, my Canadian source, has commented:

It has always struck me that from the British point of view the Privy Council was like an appendix in the body politic: a vestigial remnant of something once useful but something that could be ignored unless it caused trouble.

On the other hand, for those of us in the Empire, the Privy Council held a fascination the British could not understand.  It was the ultimate source of justice and authority.  Canadians complain that the Privy Council rewrote our constitution and converted a federal system into a confederation of equal states.

Many Canadian jurists lost confidence in the Privy Council during the 1930s when its approach to issues of constitutional law in the New Deal appeals, in particular, denied the Canadian federal government powers that were then considered necessary to deal with the Depression.

There was a strong rumour that the casting vote in these appeals, decided in January 1937, was delivered by Sir Sydney Rowlatt, a retired High Court Judge who had specialised in taxation law. In the judicial salary dispute of 1931 he had made threats to the Lord Chancellor to the effect that he and others would retire, since they could earn more in retirement than if they had stayed on the bench. In the event he was persuaded to stay on, and on his retirement he was rewarded with a Privy Councillorship.[4]  An observer of the New Deal appeals reported[5] that Sir Sydney

 sat through the . . . hearings in his overcoat making neither note nor comment.

Although in those days there were in fact no overt dissenting judgments in the Privy Council, another Canadian jurist, J.V.Clyne QC, has written[6]:

The judgments of the Privy Council in its capacity as a judicial committee advising the Crown were always unanimous.  The Judges would, of course, discuss the case thoroughly amongst themselves before judgment was written.  On one occasion the Registrar showed me a draft judgment that had been passed around to the several Judges sitting on a particular case at the bottom of which Lord Sumner, who in my opinion was probably the most businesslike of the Judges, had written, “I agreed but disagree” thereby pointing out that while the judgment had to be unanimous he wanted to indicate his disagreement with the opinion of his brother Judges.

The secession of Canada from the jurisdiction of the Privy Council was delayed by the war, and it did not formally take place (save for actions commenced before the cut-off date of 8 December 1949) until 1949. The final obsequies appear to have been cordial enough (even if much remained unsaid that might have been said) . The British High Commissioner in Ottawa reported on the dinner to celebrate the confirmation of the Supreme Court of Canada as the final court of appeal in these terms:

“From the standpoint of the U.K., the proceedings could not have been happier or more gratifying. Every speaker was at pains to make it clear that there was nothing but the highest admiration and respect in Canada for the Judicial Committee of the Privy Council and for the work which it had done for Canada over the years. The change now being made had certainly not come about from any sense of dissatisfaction; on the contrary, there was no court in the world which had a higher standing than the Judicial Committee and no court in the world which surpassed it in wisdom, integrity and professional competence; the present change had merely arisen, as it was bound to do in time, in the course of Canada’s natural evolution and development.’[7]

 

 

[1] I met Bill Stevenson in 1990 at a conference in Edinburgh, and still correspond with him occasionally. He made an immense contribution to the development of judicial training in Canada.

[2] He had taught at Osgoode Hall, in Toronto, in about 1951 when he was putting in his mandatory absence from the practice of a solicitor before being called to the Bar. He formed many friendships within the Canadian legal profession which no doubt accounted for him appearing before the Privy Council so early in his career at the Bar. [I can add that His Honour Judge David Smout QC, who took silk in 1975 and became an Official Referee of the High Court in 1983, died in 1987 at the age of 64.]

[3] ‘The Appellate Courts of the Empire,’ Education and Empire, page 135.

[4] Robert Stevens: The Independence of the Judiciary – The View from the Lord Chancellor’s Office (Clarendon Press, 1993) p. 54.

[5] B.J.MacKinnon: Correspondence to the Editor (1956) 34 Can Bar Rev. 115 @ 117. See John T. Saywell: The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (2002, Osgoode Society for Canadian Legal History) p. 221.

[6] J.V. Clyne: Jack of All Trades: Memories of a Busy Life (1985,  McClelland and Stewart) p.65.  In the same book he wrote: “During the winter months the Privy Council chambers were inclined to get somewhat chilly.  To ward off the cold, Lord Shaw of Dunfermline always had a plaid shawl over his stooped shoulders and another one over his knees.  At half past 11 every morning one of the ushers would bring him a glass of what I took to be hot water and lemon.  One morning I asked the usher why he brought hot water to Lord Shaw in the middle of the morning.  ‘Ssh’ he replied, ‘it’s not hot water, it’s hot gin.’” Ibid, p.66.

[7] Sir Alexander Clutterbuck to the Dominion Office, 12th October, 1950.

 

3 thoughts on “The last Canadian case in the Privy Council (2)

  1. Laura Hoyano

    I appeared as counsel before Bill Stevenson in the Alberta Court of Appeal many times. His intellect was formidable. However he had an equally formidable comb-over laterally which would become unstuck. It would form a springing arc away from his head in the opposite direction from what was intended when pasted down that morning, and it would bounce spring-like as Stevenson JA put his question. It was very distracting!

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  2. What a good case for the retention of the wig…

    As an addendum to my piece, here is a note (from the same Canadian source) which describes the origins of the Judicial cCommittee of the Privy Council:,

    “The origins of this venerable institution [the Judicial Committee of the Privy Council] lie back before the fifteenth century in the ashes of the Court of the Star Chamber. After a series of changes over the ensuing three centuries, it took on its modern form with the reforms recommended by Lord Brougham in 1833. Prior to that date none of the three privy councillors who constituted the committee were required to have judicial experience. After Lord Brougham’s reforms, however, the Judicial Committee took on a formal judicial character. The Judicial Committee Act of 1833 required at least three qualified judges, but they were to remain unpaid. In 1871 the government decided that the judges of the Judicial Committee should be paid and members of the newly constituted court were drawn from those members of the House of Lords who were barristers.”

    Vaughan: Viscount Haldane “The Wicked Step-Father of the Canadian Constitution” (2010 Osgoode Society For Canadian Legal History) p.120

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  3. Here is some additional information, kindly supplied by John de P Wright:

    While Canada abolished appeals to the Privy Council in a friendly manner, the Privy Council had shaken its faith:

    In one case it began: “This is an appeal from a judgment of the Court of Queen’s Bench in Canada affirming a judgment of the Superior Court of the Province of Montreal.” [Montreal is a city, not a Province]

    In another case it referred consistently to the money of Canada as “Rupees”.

    “There were, moreover, important blunders by the Judicial Committee during the 1920s – at least in political terms. In Nadan v. The King, [1926] A.C. 482 the Judicial Committee reconfirmed the application of the Colonial Laws Validity Act with respect to the Canadian Criminal Code, striking part of the Code down. The decision had a 19th century colonial ring to it. Then the Privy Council proceeded to mishandle Wigg v. Attorney General of the Irish Free State [1927] A.C. 674. This so-called Transferred Civil Servants case was highly dubious from a legal point of view. After the decision, the Registrar of the Privy Council wrote to warn the Lord Chancellor that the Judicial Committee had misunderstood the meaning of “lump sum allowance” as well as the meaning of a Treasury minute. The Lord Chancellor, Cave, then decided that legislation would not be an appropriate way to remedy the Privy Council advice (decision) lest it set a bad example to the Irish. Schuster therefore arranged for the Privy Council to rehear the case, since Haldane and Dunedin publicly in the House of Lords, and Lord Cave, on his deathbed, in a letter to the Prime Minister, all advised that the earlier opinion was wrong in law. In short a majority of the members of the Judicial Committee hearing the case had publicly admitted their decision was wrong. The case was referred back to the Judicial Committee under the 1833 legislation. The Privy Council, composed, it is true, rather differently, celebrated the rehearing by reaffirming its previous decision, to the embarrassment to both the British and Irish governments.”

    Robert Stevens: The Independence of the Judiciary – The View From the Lord Chancellor’s Office (Clarendon Press, 1993) p. 65-66.

    “It could be that Ivor Jennings, writing soon after the New Deal judgments were delivered [striking down the federal government’s power to address the Depression] was right when he speculated that “it is possible, though it cannot be proved, that the desire of Mr.Ramsay MacDonald in 1935 to safeguard his son’s political career, and the anxiety of Lord Hailsham to leave the lower office for the more exalted and better paid position on the Woolsack, – circumstances which sent lord Sankey into retirement- invalidated a large part of the Canadian ‘New Deal’.” (With MacDonald wanting his son in the Cabinet and Hailsham wanting the Woolsack, a deal was struck which removed Sankey as Lord Chancellor. His liberal approach to the British North America Act [Canada’s “constitution”] was lost because he declined to sit on the Privy Council thereafter. The reactionary Atkin sat on these cases and struck them down. . . )”

    John T. Saywell: The Lawmakers, Judicial Power & The Shaping Of Canadian Federalism (2002, University of Toronto Press) p. 220.

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