May 1, 1902

CON

Edward Frederick Clarke

Conservative (1867-1942)

Mr. CLARKE.

Was that agreement made contingent on their being permitted to issue the stock ?

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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The MINISTER OF JUSTICE.

It is made contingent on the Order in Council authorizing the issue.

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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CON

Edward Frederick Clarke

Conservative (1867-1942)

Mr. CLARKE.

I presume that principle can be applied to other legislation ?

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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The MINISTER OF JUSTICE.

That is a matter for the House to determine.

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

I understood from the government that an Order in Council had been passed by which the cost of the construction of the Canadian Pacific Railway was to be submitted to the courts for determination. Has the minister got the Order in Council ?

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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The MINISTER OF JUSTICE.

Yes, 1 will hand it to the hon. gentleman.

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

This is a different submission from what the minister stated when the Bill was introduced. This is as to the effect or interpretation of section 20 of the company's charter of incorporation, as found in 44 Victoria, chapter 1, schedule A. The statement was made to the House that the actual cost of the construction of the road was to be determined bjs this submission in order to find out whether the 10 per cent earnings of the road had been effected or not upon the actual cost of construction. I see now that what is submitted to the courts is only an interpretation of the clause.

Bill reported ; read the third time, and passed.

Topic:   CANADIAN PACIFIC RAILWAY-INCREASED CAPITAL.
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CONSIDERED IN COMMITTEE-THIRD READING.


Bill (No. 1141 to amend the Exchequer Court Act (the Minister of Justice).


PETITION OF RIGHT ACT AMENDMENT.


Bill (No. 135) to amend the Petition of Right Act (the Minister of Justice), read the second time, and House went into committee thereon. On section 1,


CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I would like to ask the Minister of Justice to state on what principle the Crown proceeds in withholding or granting fiats for petitions of right. I have had my attention directed to a large number of petitions which were submitted for fiats about two years ago. They relate to contracts between the Crown and persons who carried the mails. The Crown undertook to cancel the contracts under some supposed power contained in the contracts. * Counsel have advised the persons interested that the Crown had no right under the circumstances to cancel those contracts, and that they have good cause for claiming such damages against the Crown as would arise by reason of its having broken the contracts. These matters have been standing about two years. I brought them to the attention of the Postmaster General last evening, but, as the Minister of Justice as well as the Postmaster General is concerned in matters of this kind, I would like to ask him for more information on the subject. I have looked into the cases somewhat hurriedly; but it seemed to me that there was a fair case for the consideration of the courts in respect to a large number of claims, I think thirty or forty-at all events, over twenty; and these people have been held up, so far as any proceedings are concerned, for nearly three years. It appears to me that where there is an arguable case, there should bo no difficulty placed in its way, and I think the House might very well hear from the Minister of Justice at the present time what the policy of the Crown is in regard* to the matter. I have looked into the rule in England, and I do not see anything that would justify the government in keeping these people at bay so long. It seems to me that if there is any tendency at all in this matter, it is to allow the subject the freest possible right to proceed against the Crown. The Postmaster General may think that these claims are groundless, and that he was perfectly justified ini cancelling the contracts; but the real point for the consideration of the House and the country is not what the Postmaster General thinks about it, but what the courts will think about it when these claims are put before them. It amounts to a denial of justice to these people-'because their claims cannot be regarded as frivolous-that they should be held up in this way for a period of nearly three years.

Topic:   PETITION OF RIGHT ACT AMENDMENT.
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The MINISTER OF JUSTICE.

My attention has not been directed, so far as I can recollect, to the cases which the hon. leader of the opposition refers to, and therefore, I would not like to say anything at the present time in reference to them. If they have been before the department for three years, they have probably been disposed of by my predecessor. But the hon. leader of the opposition, I presume, not only wants

Topic:   PETITION OF RIGHT ACT AMENDMENT.
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CON

Edward Frederick Clarke

Conservative (1867-1942)

Mr. CLARKE.

to know wliat the reasons may be which necessitated the long delay of the government in granting flats in the cases mentioned, but a statement of the principles which the present Minister of Justice intends to apply in all cases where applications are made for fiats for petitions of right. My hon. friend will understand immediately that that is a question of policy, and therefore, I should not like to state what my personal views are on the subject until such time as I have an opportunity to have those views confirmed by the government. I should not like to say that I would grant a fiat if an arguable case were submitted, if that were my view, because before I state my view, I should like to put it in writing and have the government approve of it, and then place it before the House not merely as my personal view, but the view of the government. I will therefore ask the committee to rise, and when I bring down a statement with reference to the Canadian Pacific Railway matter, I will also make a statement on the point to which my hon. friend has referred; because I quite understand that it is important that the House should have some authoritative statement of the views of the government on that subject.

Mr. CASGIiAIN. I think what the hou. gentleman has just said is perfectly fair and correct. The rule, so far as X have been able to gather it in placing petitions of right before the provincial government and before this government, is this, that when the claim on its face is not frivolous, or when a prima facie claim has been made out, or when there is nothing improper in the claim, the Minister of Justice recommends that a fiat do issue and that a petition be lodged in the court. X think that is the proper rule, which ha^ always been followed in England. My learned and hou. friend the Minister of Justice knows that is the view laid down in Clode on petitious of right. I do not agree with the minister when he says that he does not give his own advice to the House, but would rather submit his views to the government to see whether the views of his colleagues coincide with his own. It seems to me In a matter of this kind that his colleagues should be to a great extent swayed by the Minister of Justice, because after all the thing to be decided is not a question of policy. The question to be decided is not a question of policy. The question is not whether, in the interest of such and such a party, it would be right to grant or refuse the petition, but, whether or not, the petition bears on its face, that stamp of bona fides, which should recommend it to the Minister of Justice as the legal adviser of the government. I have every confidence in the judgment of my hon. friend, and I know that if it were left to him alone, whenever I or anybody else had a bona fide claim before the government, the petition would be granted, but if my hon. friend submits the question to the 124

Topic:   PETITION OF RIGHT ACT AMENDMENT.
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administration it wll!l Ibe .hard for him to get a unanimous opinion. If this is the rule which is to be followed, in many instances those members of the cabinet who do not belong to tire legal fraternity and cannot see with the same pair of eyes as my hon, friend, would likely set up some other reasons than reasons of law against the granting of the petition. I submit that when he comes down again with this Bill, he should give his own views, as Minister of Justice, as to the course he will follow, and the rule he will carry out when petitions of right are lodged with the government.


CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I recollect hearing a very eminent authority in the British House of Commons, say, on a question somewhat analagous to this, that the government could have no opinion except the opinion of the law officers of the Crown. My hon. friend holds a position which corresponds with that of the law officers of the Crown in England, and, as has been well pointed out by my hon. friend behind me (Mr. Cas-grain), this is not so much a question of policy, in the ordinary acceptation of the term, as a question of what is right, from the standpoint of justice, with regard to these petitions. I entirely concur in the view that in respect of matters of this kind the government should adopt the opinion of the Minister of Justice, and, I .should also like to point out that, the provision in this Bill maxing it necessary, when security for costs is ordered, that somebody should give security, goes in the direction of granting the fiat with more liberality than in the past. The only reason why so called frivolous petitions were not allowed in the past was that it was not in the public interest to allow a claim to go to litigation for which there was no foundation and public moneys should not be wasted in .contesting such claims ; but, by the very proper Bill introduced by the Minister o,f Justice, providing that iu certain oases, where it seems expedient to the Governor in Council, security for costs should be given, the fiat should be issued, as a matter of course, on that condition being complied with.

I have no objection, to passing the Bill, as I think it is a proper one, but it is understood we are to have a statement from the Minister of Justice on the subject later in the session.

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The MINISTER OF JUSTICE.

My view, of course, is that of the government, and my hon. friend has correctly expressed my own view with respect to this question, when he says that this Bill was not introduced merely for the purpose of adding something to the legislation already in existence. The object I have in view is to widen the gate, so far as 1 can, consistent with my duty to the Crown.

Topic:   REVISED
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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

When the Bill was first introduced, the argument advanced was that it would assimilate the law in Canada

Topic:   REVISED
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EDITION

May 1, 1902