Pieces of History: Alberta Privy Council Cases

Again, we have the honour of sharing a blog from LESA’s Distinguished Adviser – the Honourable J.E. Côté. Today he shares some interesting facts about Alberta cases that made it all the way to the Privy Council in the first half of the 20th century.

A number of the Canadian cases that were heard in London came from the Edmonton area, and today’s blog points to a few of them.

Happy reading!


Before 1949, any litigant dissatisfied with a decision of the Alberta Court of Appeal had two choices: an appeal to the Supreme Court of Canada or a direct appeal to the Judicial Committee of the Privy Council in London. The two choices were usually alternates, not sequential. If it was not a constitutional case, the Privy Council expected the litigant to go straight to the Privy Council or to go to the Supreme Court and stop there.

So a number of senior Alberta litigators were well used to taking an ocean liner to London and appearing before the Privy Council. Its offices are in Downing Street, very close to the Prime Minister’s residence. Its members do not gown and sit at an ordinary table, not a dais. Their decision is issued as a recommendation. There is no formal judgment; instead the British Cabinet issues an Order in Council. Ms MacMillan’s seduction suit against Premier Brownlee ended up before the Privy Council: Brownlee v MacMillan, [1940] UKPC 36, [1940] AC 802. The resulting Order in Council was granted by King George and several Cabinet members in June 1940, just as France fell and Britain faced mortal peril from Germany.

The Privy Council rarely heard criminal appeals (though Louis Riel’s appeal was heard there: Louis Riel v The Queen, [1885] UKPC 37, 10 App Cas 675). The Canadian Parliament ended those in the 1920s. But civil appeals were quite common, as the old volumes of the Appeal Cases or the Western Weekly Reports demonstrate.

Alberta grew a bumper crop of interesting appeals on basic legal topics. When Lord Denning addressed a banquet in Edmonton, he was introduced by the retired Dean of Law, Wilbur Bowker. The Dean explained to the banqueters how they were surrounded by the nearby sites of many famous decisions reported in the volumes of the Appeal Cases published in England.

The seminal case deciding a host of aspects of administrative law is R v Nat Bell Liquors Ltd, [1922] 2 AC 128, [1922] All ER Rep 335 (PC). That involved a police raid on a liquor warehouse at 97 Street and Jasper Avenue in Edmonton. The building now houses the Hardware Grill Restaurant, near the Law Courts.

The old Edmonton Court House itself (now the site of Edmonton City Centre mall) generated three famous Privy Council decisions. One was McPherson v McPherson, [1936] AC 177, [1936] 1 WWR 33 (PC). A provincial Cabinet Minister and his wife permanently swapped spouses with another couple via divorces and remarriages. Buyer’s remorse set in, and the ex-wife of the Cabinet Minister contended that her divorce from him was a nullity because Tweedie J held the trial in the Judges’ Library, not in an open courtroom. She won in law but failed in the result: her divorce was voidable, but she had waited too long to complain.

The vital case on the almost unlimited powers of superior courts is Board v Board, [1919] AC 956, [1919] 2 WWR 940 (PC). There the Privy Council agreed with the Alberta Court of Appeal that Alberta courts could grant divorces (though they never had before) without any specific legislation, because old English law in force here in Alberta must have some court to enforce it. And of course the Privy Council had to decide who was Chief Justice of Alberta: Chief Justice Harvey or Chief Justice Scott? That case had political overtones. Chief Justice Scott got the nod (Scott v Canada, [1923] 3 WWR 929, [1923] 4 DLR 647 (PC)) but then died soon after.

The Privy Council clarified and cemented most basic principles of negligence law in London Guarantee & Accident Co v Northwestern Utilities Ltd (1935), [1936] AC 108, [1935] 3 WWR 446 (PC). A few doors south of Jasper Avenue under 107 Street in Edmonton was a collection of pipes, near the present offices of Alberta Health Services and the LRT station. The City carelessly removed support from a natural gas pipe which sagged, but the gas company did not notice. The sagging pipe leaked, sending gas into the basement of the Corona Hotel. The hotel exploded spectacularly, though mercifully with no loss of life. The gas company had insufficient insurance or funds to pay the claims, so it litigated all the way to London before it earned enough money to pay the claims.

The Legislative Building on 107 Street in Edmonton generated a great deal of legislation. During Social Credit days, considerable parts of that legislation ended up before the Privy Council, which struck down almost all the contested Acts – that included the Alberta Press Bill, which allowed the Cabinet to insert items into newspapers, and force their publication, or to shut down newspapers. (See Alberta Legislation, Re (1938), [1939] AC 117, [1938] 4 DLR 433 (PC).) The Privy Council also held that Alberta could not legislate to change the interest rate on municipal bonds: Independent Order of Foresters v Lethbridge Northern Irrigation District, [1940] AC 513, [1940] 1 WWR 502 (PC).

The “Famous Five” – including Henrietta Muir Edwards – sued in Alberta for a declaration that women could be appointed to the Senate. They successfully carried their case to the Privy Council: Edwards v Canada (Attorney General) (1929), [1929] UKPC 86, [1930] AC 124.

There is a small, beautiful Ukrainian church at Star, east of Edmonton, which I have had the privilege of visiting. It was the subject of a 1908 decision written by a famous Scottish law lord. The Privy Council held that the church was Orthodox, not Roman Catholic: Zacklynski v Polushie (1907), [1908] AC 65, 1907 CarswellNWT 80 (PC). Both William Stevenson and I (when in practice) had later brief involvements with some persons from Star about that Privy Council judgment.

It was the Privy Council that decided the nature of land tenure and minerals royalties in Alberta: Alberta (Attorney General) v West Canadian Collieries Ltd, [1953] AC 453 [1953] 3 DLR 145 (PC); Alberta (Attorney General) v Huggard Assets Ltd, [1953] AC 420, [1953] 2 All ER 951 (PC).

One of the later Alberta appeals to the Privy Council decided the meaning of “accident” in insurance law after an explosion at the pioneer oil sands plant near Fort McMurray: Abasand Oils Ltd v Boiler Inspection & Insurance Co (1949), [1950] 1 DLR 81, [1949] 2 WWR 1068 (PC). Other later appeals decided the right to contest municipal taxation in the courts (Bennett & White v Sugar City, [1951] AC 786, [1951] 4 DLR 129 (PC)) and the meaning of a reservation of “petroleum” in a title (Borys v Canadian Pacific Railway, [1953] AC 217, [1953] 2 DLR 65 (PC)).

The last Canadian appeal to the Privy Council was decided in 1959. It was also an Alberta case: Earl F Wakefield Co v Oil City Petroleums (Leduc) Ltd (1959), [1960] AC 18, 29 WWR 638 (PC). William Stevenson was the most junior counsel on that case. It had to do with a builder’s lien on an oil well near Leduc.

 

Honourable J.E. Côté
LESA Distinguished Adviser

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