420 EXCHEQUER COURT REPORTS. [VOL. P. 1897 THE DOMINION ATLANTIC RAIL- CLAIMANTS; Oct, 11. WAY COMPANY AND HER MAJESTY THE QUEEN.... DEFENDANT. Practice—Submission to Arbitration—Award—Rule of Court—Judgment. The Exchequer Court bas no jurisdiction to entertain an application to make an award under a submission to arbitration by consent in a matter ex fore, a judgment of the court. THIS was an application to make an award under a submission to arbitration in a matter not before the court, a judgment of the court. October 4th, 1897. C. .T. R. Bethune, in support of motion ; F. H. Gisborne, for the Crown, opposing only as to costs. THE JUDGE OF THE EXCHEQUER COURT now (October 11th, 1897) delivered judgment. This is an application on behalf of The Dominion Atlantic Railway Company to make an award made in matters in difference between the company and the Crown a judgment of this court. By the agreement of submission between the parties it was, among other things, provided that the award should, upon the application of either of the parties, be made a judgment of the Exchequer Court of Canada. Counsel appeared for the Crown upon the application and consented that the order asked for should be granted, provided it were made without costs. So there is nothing in the way of granting the application if the court has the necessary jurisdiction or authority ;
VOL. V.] EXCHEQUER COURT REPORTS. 421 but if it has not the agreement or consent of the 1897 parties will not give jurisdiction. E Before the statute 9-10 William III, chap. 15, Domam o when persons were out of court they could not RAILWAY by any agreement bring themselves into court and ANY COMti create a jurisdiction to issue process of contempt. THE QvEEN; (1). By that statute it was provided that mer- chants and others desiring to end any controversy Re for Judgment. by the submission of their suits to the award or umpirage of any person might make the submission a rule of any of His Majesty's Courts of Record which the parties should choose. A like provision occurs in the 17th section of The Common Law Procedure Act, where it is provided that : " Every " agreement or submission to arbitration by consent, " whether by deed or instrument in writing, not under " seal, may be made a rule of anyy one of the superior " courts of law or equity at Westminster, on the appli-" cation of any party thereto, unless such agreement or " submission contain words purporting that the parties " intend that it should not be made a rule of court, and " if in any such agreement or submission it is provided " that the same shall or may be a rule of one in par-" ticular.of such superior courts, it may be made a rule " of that court only ." There is a like provision in the Statutes of Ontario and some of the other provinces (2). There is, however, no statute conferring any such. jurisdiction upon the Exchequer Court of Canada, and in the absence of a statute the court has no jurisdiction. This view will, I think, be strengthened by reference to section 23 of The Exchequer Court Act, which provides that : "Any " claim against the Crown may be prosecuted by peti- (1) Nichols v. Chalie, 14 Ves. Jr. (2) R. S. O. c. 53, ss. 13-15; 265 ; Steers v. Harrop, 1 Bing. 133 R. S. N. S. 5th s., e. 115, s. 21; t.; Lyall v. Lamb, 4 B. & Ad. 468. 21 Gee. III (P. E. I.) c. 4.
422 EXCHEQUER COURT REPORTS. [VOL. V. 1897 " tion of right, or may be referred to the court by the T " head of the department in connection with the ad- DOMINION << ministration of which the claim arises." It is, I think, ATLANTIC RAILWAY clear that without a fiat or a reference by the head of COMPANY a department of a claim against the Crown there can THEE be no proceeding in this court which would result in QV i : F. N. a judgment against the Crown. Wagon/ JuaCorenc. Application refused.
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.