A-576-76
Willard James Leach and Verla Fern Leach
(Applicants)
v.
The Queen (Respondent)
Court of Appeal, Urie and Le Dain JJ. and
MacKay D.J.—Toronto, December 13, 1976.
Practice—Expropriation—Application for writ of posses-
sion—Whether right of appeal from Trial Division—Whether
decision may be judicially reviewed Expropriation Act,
R.S.C. 1970 (1st Supp.) c. 16, s. 35—Federal Court Act, s. 28.
Applicants seek to appeal from the decision of the Trial
Division refusing to order the re-attendance of the respondent's
deponents and the production of documents or to have that
decision reviewed under section 28 of the Federal Court Act.
Held, the appeal and the application are dismissed. There
can be no appeal from the decision of the Judge of the Trial
Division since a judge acting under section 35 of the Expro
priation Act is acting as a persona designata and not exercising
the jurisdiction of the Court. No attack may be made on a
decision incidental to the conduct of a hearing under section 28.
In re Anti-dumping Act and in re Danmor Shoe Co. Ltd.
[1974] 1 F.C. 22, applied.
APPEAL and APPLICATION for review.
COUNSEL:
D. Estrin for applicants.
T. Dunne for respondent.
SOLICITORS:
D. Estrin, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: The respondent herein applied to
Mahoney J. of the Trial Division of this Court
pursuant to section 35 of the Expropriation Act
for a writ of possession. Affidavits were filed in
support of this application upon which the learned
Judge permitted cross-examination. During the
cross-examination, certain deponents of affidavits,
on advice of counsel, refused to answer certain
questions, and the Crown refused to produce cer
tain documents. The applicants herein applied to
Mahoney J. for an order directing the re-attend
ance of the deponents to answer the questions that
they had refused to answer and to produce the
documents that had not been produced. The
learned Judge refused both branches of this
application on the ground that the questions and
documents were irrelevant to the issues before
him. It is from this order that the applicants bring
this section 28 application and an appeal.
At the outset of this hearing, the question arose
as to the right of the applicants to either appeal or
apply under section 28 in respect of the order of
Mahoney J. We are all of the opinion that this
Court lacks jurisdiction to entertain these proceed
ings. A Judge of the Federal Court of Canada
acting under section 35 of the Act must be regard
ed as a persona designata rather than one exercis
ing the jurisdiction of the Trial Division of the
Court, and there can accordingly be no appeal
from his decision. This would seem to be the only
conclusion to be drawn from the fact that jurisdic
tion has also been conferred on a Judge of a
Provincial Superior Court from whose decision
there could clearly not be a right of appeal. To
decide otherwise would be to give rise to an
anomalous position with respect to the right of
appeal which cannot be ascribed to the intention of
Parliament. While a decision to issue or refuse a
warrant of possession pursuant to section 35 may
be the subject of a section 28 application, a deci
sion incidental to the conduct of a hearing pursu
ant to section 35, such as the order in the present
case, cannot be the subject of such attack. See In
re Anti-dumping Act and in re Danmor Shoe Co.
Ltd. [1974] 1 F.C. 22 at pages 30-31, in which this
Court held that a decision concerning the admis
sion of evidence was not subject to attack under
section 28. Accordingly the section 28 application
and the appeal will be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.