June 2, 1921

UNION

Avard Longley Davidson

Unionist

Mr. DAVIDSON:

Mr. Chairman, I submit that the subject introduced by the hon. gentleman would be relevant if this were the second reading of the Bill, but we are discussing clause 3, and I submit that the discussion is not pertinent to this particular clause.

Topic:   REVISED EDITION. COMMONS
Permalink
L LIB

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

The point of order

taken by the hon. member for Annapolis

would certainly be well taken if we were following in committee the rules of procedure which should be followed. When the second reading was called from the Chair, it was understood between the Minister of Justice and the hon. member for Three Rivers that there would be no discussion of the principle of the Bill then but that it would take place in committee. It is absolutely impossible for the Chair to decide when discussion of the principle ceases and of the clauses begins. Therefore under the circumstance's I do not think that I can very well call the hon. member for Quebec to order.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I simply want to

have a ruling upon this question, not on the ground of adherence to a particular section but whether or not this is the proper time to enter into a discussion as to whether the Governor in Council should or should not have suspended the Scott Act in the city of Quebec. We have this Bill before us in its entirety. I am quite prepared to deal with it if in your judgment that is a question which we should discuss as being germane to the principle of this Bill. All I desire, and this is the view that occurs to me, is that we should proceed in some method that will be regular and will lead us somewhere. Might I point out to the hon. gentleman that the amendment he has suggested should not be proposed until we have first dealt with the clauses of this Bill? It would have to be an addition to this Bill, and I think it is at least a little premature to discuss it before we have disposed of these clauses, even if then it be a proper matter for amendment.

Topic:   REVISED EDITION. COMMONS
Permalink
LIB

Lawrence Geoffrey Power

Liberal

Mr. POWER:

I am simply suggesting,

perhaps at an inopportune time, but before the Bill is ultimately carried, that the minister bring down an amendment to the Canada Temperance Act which will permit the people of the city of Quebec to obtain that for which they have expressed a wish, and which is the overwhelming desire of themselves and their representatives. I am sure the minister could draw up an amendment in a very short time that would give effect to the will of the people of Quebec.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Alexander Kenneth Maclean

Unionist

Mr. MACLEAN (Halifax) :

Mr. Chairman, the first two clauses having been passed, there is only one issue left to be determined by the committee, and that is as to the treatment which shall be meted out to the pending litigation, and I think we can determine it very quickly. I propose moving an amendment that clause 3 be

struck out and the following be substituted, if I can get a seconder. Before reading the amendment, let me say that I think we should not consider this Bill, having in mind the litigation before the Supreme Court of Canada or other litigation pending in any other courts. It seems to me that it is better to close our eyes to such facts. Nor do I think the suggestion of the hon. member for Parkdale practicable at the present time.

I think the Minister of Justice is perfectly right in declining to accept that suggestion. My amendment is:

That clause 3 in the present Bill be stricken therefrom and replaced by the following:

3. Any proceeding pending in any court in Canada at the coming into force of this Act in which the validity of any proclamation referred to in section one of the present Act is questioned shall not be affected by the provisions of this Act hut shall be determined in the same manner as though this legislation had not been enacted.

Topic:   REVISED EDITION. COMMONS
Permalink
L LIB

Edmond Proulx

Laurier Liberal

Mr. PROULX:

Does my hon. friend

think that this might have the effect of nullifying the vote taken last fall in Alberta?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

It certainly will.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Alexander Kenneth Maclean

Unionist

Mr. MACLEAN (Halifax) :

It is too

large a question to express an opinion on here, but I would not th-iink so.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I think if the hon. gentleman reflects for a moment he will realize that the effect of the amendment will be this: That if there be any defect in the

proclamation the whole plebiscite of Alberta will be set aside and count for naught; and I may tell him that the same thing will be true in regard to Manitoba, because though I am not aware how far the proceedings in that province have advanced there are proceedings pending there. The effect of the amendment is to defeat the purpose of this legislation as regards those two provinces.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Alexander Kenneth Maclean

Unionist

Mr. MACLEAN (Halifax):

But sections 1 and 2 of the Bill validate all the proceedings. The amendment is intended only to preserve the right of existing litigants, as to costs.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

But the right that

existing litigants are urging is the right to have all these proceedings declared invalid. If we declare them valid and say, nevertheless, that our declaration of their validity shall not affect any pending pro-

ceedings; if in those proceedings the court is asked to declare, contrary to our statute, that they are valid-if we tell the court that it is to decide that question just as it would have decided it if this legislation had not been passed, then we make this legislation entirely inapplicable as regards the plebiscites held in Alberta and Manitoba. One of the principal purposes of this Bill is to validate the proceedings as regards those provinces as well as provinces in which suits have not as yet been instituted -Ontario, for instance. Now, what would be the effect of our doing that? We would make a discrimination as between citizens. The hon. member for Calgary spoke of the rights of the people who had voted against the prohibitory legislation. Those rights, whatever they may he, are just the same in a province where the suit has not yet been instituted as in a province where a suit has been instituted, and the man who instituted the suit in Alberta has no greater rights than every other man in Alberta who would have been entitled to have liquor shipped if he had asked for it.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Alexander Kenneth Maclean

Unionist

Mr. MACLEAN (Halifax) :

I do not

object to the passage of clauses 1 and 2 of the Bill, which seek to validate certain proceedings. The amendment I propose does not seek to disturb anything enacted in clauses 1 and 2 of the Bill. If judgment is given it will be inoperative, but the proposed amendment will affect costs. If the amendment is not properly drafted my right hon. friend might cure that.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

The hon. gentleman

does not want to affect the judgment to be rendered under the clause, or to prevent the application of the two previous clauses to the Alberta plebiscite. If he does not want to do that and if theydo apply, then as regards this formality the question remains before the court to be decided, so far^ as costs are concerned, .by the law as it stood irrespective of this legislation. So that interpreting his amendment as I understand him to interpret it, that is to say, as saving the rights as to costs and providing that they will be decided just as if the law had not been changed-the present section 3 confers that power upon the court and is, I think, the usual section drafted for precisely that purpose-should the court arrive at the conclusion that if it were not for this legislation the prohibition would have been invalid, it will then be free to adjudicate the cosfs in favour of the party who brought the suit. It is for that purpose that this section is included, but the suggested amendment

of the hon. gentleman entirely overshoots the mark and produces the result that not only as to costs but as to ithe merits or substance itself the court would have to he guided not by this law, which we are passing to guide it, but by the law as it stood irrespective of this legislation.

Topic:   REVISED EDITION. COMMONS
Permalink
L LIB

Rodolphe Lemieux

Laurier Liberal

Mr. LEMIEUX:

I do not object to the Bill in itself; it would be unfortunate, I think, if after the expense of a plebiscite in a given province it should become necessary, on account of some technical omission in a proclamation, to hold another plebiscite. But as has been pointed out, litigants in pending cases are supposed to be proceeding in good faith, and with the passing of this legislation there must he a decision by the court as to which party shall pay the costs. It would seem upon a reading of the third section of the Bill that it simply gives discretion to the judge with regard to costs and that the parties may be sent back without having the question of costs determined. On the other hand, having cured whatever defect there was in the proclamation, will the Supreme Court, if an appeal is inscribed in that court, care to adjudicate as to costs in a purely hypothetical case? If I remember rightly, some three or four years ago a hypothetical case was submitted by the Government to the Supreme Court of Canada and the court refused to adjudicate upon it. With the passing of this legislation there remains only the question of costs, and as neither party would win I do not know how the court would deal with that phase of the matter.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I do not think that

Parliament should impose an obligation on the court to decide the costs in a particular way. The purpose of this section is to obviate any suggestion that because this Act might make one party lose who otherwise would have won the court is called upon to give casts to the party winning. It is to emphasize the fact that the costs remain in the discretion of the court, and that it may give the costs to the party who lost, supposing that he lost by reason of this legislation. I think hon. gentlemen will agree with me that it is a general principle that costs are in the discretion of the court. No doubt it is a sound discretion for the court to exercise to give the costs to the winning party, and that is the rule. But hon. gentlemen will recollect, I have no doubt, numerous cases in which the court has said: "Yes, this plaintiff

is right on the abstract law, and I have to give him a judgment, but there are circumstances connected with Ms conduct in Connection with this case which make me feel that he should not be entitled to his costs." That is one instance. Take tMs particular case and see what might happen.

Topic:   REVISED EDITION. COMMONS
Permalink
L LIB
UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

That might be so. Take this particular case. As I mentioned, this alleged irregularity is only one ground upon which this matter is contested. There are several other questions of much greater importance, questions involving the constitutionality of the Temperance Act, and the constitutionality of the provincial legislation. It would be perfectly proper for the court to consider, supposing it arrived at the conclusion that, under the law as it stood without this amendment, the plaintiff was right on this particular question, but was wrong on all the other issues raised, that the exercise of a sound discretion would be to divide the costs or to deal with them otherwise than to condemn a man, who was right on, say four or five of the questions raised, but wrong on this minor question, to pay all of the costs. I would very much regret if this Parliament felt it to be its duty to take away from the court any discretion with regard to these costs. What we are doing makes a perfectly safe position for any party who would have won without this legislation. The court will not deprive him of his costs if it would otherwise have given them to him had it not been for this legislation. That is what we want to secure. I think I am quite safe in saying that this is the clause in practice adapted to produce exactly that result. It was drawn up by the deputy minister, and I might add that the only observation that the deputy minister made when I suggested it was that it was not a necessary clause because, by laiw, costs are in the discretion of the court. I thought, and I still think it is a wise clause, because I want to make it clear to the courts that they shall he at perfect liberty to give costs even to the man whose case may fail by reason of this amendment, but who would have been right if it were not for this amendment.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Alexander Kenneth Maclean

Unionist

Mr. MACLEAN (Halifax) :

Does my

right hon. friend not think that clause 3 in the Bill will absolutely prevent courts from granting costs to the party who fails to prove that the proclamation was valid. The discretion is given to the court to give costs, but then the sentence ends with the following words:

Having in view the provisions of this Act.

The provisions of this Act are that the proclamation and other proceedings are valid. It looks like a deliberate enactment to prevent-

M. DOHERTY: I am quite willing to strike out those words, if they are thought to-

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Alexander Kenneth Maclean

Unionist

Mr. MACLEAN (Halifax) :

I think my

amendment is the better way of bringing about that end.

Topic:   REVISED EDITION. COMMONS
Permalink

June 2, 1921