A-219-78
Saint John Shipbuilding & Dry Dock Co. Ltd.
(Appellant) (Plaintiff)
v.
Kingsland Maritime Corp., Scandinavian Conti
nental Line A.B., the Ship Scol Eminent her
owners and charterers, and all others interested in
her and Logistec Corporation and National Har
bours Board and the Queen in right of Canada
(Respondents) (Defendants)
and
Logistec Corporation (Respondent) (Third Party)
Court of Appeal, Urie and Ryan JJ. and Kelly
D.J.—Toronto, November 9, 1978.
Practice — Appeal from ruling concerning admissibility of
evidence made during trial — No judgment at trial yet pro
nounced — Whether or not Court has jurisdiction to entertain
appeal — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 27 — Federal Court Rule 337.
Appellant appeals against an order of the Trial Division,
made during the course of a long trial, refusing to permit the
introduction of a letter into evidence. The Trial Judge, follow
ing the closing of the parties' respective cases, adjourned the
trial in order to permit the parties to file written arguments
before a specified date. This and other appeals from the Judge's
ruling were launched prior to that date. No arguments have
been filed and no judgment has been pronounced in the action.
The Court raised the question of its jurisdiction to hear an
appeal on what was clearly a ruling as to the admissibility of
evidence, not an order or judgment.
Held, the appeal is dismissed. Since the so-called order in
issue was made during the course of trial, there has not been
judgment on a question of law determined before trial. The
Trial Judge neither pronounced nor delivered any judgment or
order which, at this stage, would give this Court jurisdiction to
hear an appeal. Even if a Trial Judge were to reduce his rulings
on matters arising during the course of trial to writing, they
would not provide the basis for an appeal. A Trial Judge's
rulings during the course of a trial, whether reduced to writing
and signed by him or not, cannot form the subject matter for
appeals until he has pronounced his judgment on the matters
put in issue by the pleadings.
APPEAL.
COUNSEL:
D. L. D. Beard, Q.C. and W. R. Chapman for
appellant.
C. G. McCormick for respondent Scandinavi-
an Continental Line A.B.
T. L. McGloan, Q.C. for respondents Kings-
land Maritime Corp. and the Ship Scol
Eminent.
Duff Friesen for respondents National Har
bours Board and the Queen in right of
Canada.
R. Langlois and R. Gaudreau for respondent
(third party) Logistec Corporation.
SOLICITORS:
Du Vernet, Beard & Winter, Toronto, for
appellant.
Stewart, MacKeen & Covert, Halifax, for
respondent Scandinavian Continental Line
A.B.
Gilbert, McGloan, Gillis & Jones, Saint John,
for respondents Kingsland Maritime Corp.
and the Ship Scol Eminent.
Deputy Attorney General of Canada for
respondents National Harbours Board and
the Queen in right of Canada.
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Montreal, for respondent (third party)
Logistec Corporation.
The following are the reasons for judgment
rendered in English by
URIE J.: By its notice of appeal the appellant
"appeals against the Order of the Trial Division of
the Federal Court of Canada delivered orally from
the bench at Saint John, New Brunswick on
Friday, the 21st day of April, 1978 by The Hon
ourable Mr. Justice Dubé, whereby the Court
refused to permit the introduction and the marking
thereof as an exhibit of a letter from the Respond
ent Logistec Corporation to Captain Leiv A.
Jakobsen, President, Shipping Aid International
Limited dated June 18th, 1975, (the agent of the
Respondent Scandinavian Continental Line A.B.),
during the cross-examination by the Appellant's
solicitor of the said Captain Leiv A. Jakobsen, as a
rebuttal witness by the Defendant Scandinavian
Continental Line A.B."
At the opening of the appeal, the Court raised
the question of its jurisdiction to hear an appeal on
what was clearly a ruling as to the admissibility of
evidence, not an order or a judgment. It was made
by the Trial Judge toward the end of a long and
apparently arduous trial. Following the closing of
their respective cases by the parties, it appears that
the learned Trial Judge adjourned the trial in
order to permit the parties to file written argu
ments before a specified date. This and other
appeals from the Judge's ruling were launched
prior to that date and, as we understand it, no
arguments have as yet been filed and, of course, no
judgment has as yet been pronounced in the
action.
The statutory jurisdiction of this Court to hear
an appeal from the Trial Division is derived from
section 27 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, which reads as follows:
27. (1) An appeal lies to the Federal Court of Appeal from
any:
(a) final judgment,
(b) judgment on a question of law determined before trial, or
(c) interlocutory judgment,
of the Trial Division.
(2) An appeal under this section shall be brought by filing a
notice of appeal in the Registry of the Court,
(a) in the case of an interlocutory judgment, within ten days,
and
(b) in the case of any other judgment within thirty days (in
the calculation of which July and August shall be excluded),
from the pronouncement of the judgment appealed from or
within such further time as the Trial Division may, dither
before or after the expiry of those ten or thirty days, as the case
may be, fix or allow.
(3) All parties directly affected by the appeal shall be served
forthwith with a true copy of the notice of appeal and evidence
of service thereof shall be filed in the Registry of the Court.
(4) For the purposes of this section a final judgment includes
a judgment that determines a substantive right except as to
some question to be determined by a referee pursuant to the
judgment.
The procedure for delivery and pronouncement
of a judgment in either division of the Court is
provided by Rule 337, paragraphs (1) and (2) of
which read as follows:
Rule 337. (1) The Court may dispose of any matter that has
been the subject-matter of a hearing
(a) by delivering judgment from the bench before the hear
ing of the case has been concluded, or
(b) after having reserved judgment at the conclusion of the
hearing, by depositing the necessary document in the
Registry,
in the matter provided by paragraph (2).
(2) When the Court has reached a conclusion as to the
judgment to be pronounced, it shall, in addition to giving
reasons for judgment, if any,
(a) by a separate document signed by the presiding judge,
pronounce the judgment (Form 14); or
(b) at the end of the reasons therefor, if any, and otherwise
by a special declaration of its conclusion, which may be given
orally from the bench or by a document deposited in the
Registry, indicate that one of the parties (usually the success
ful party) may prepare a draft of an appropriate judgment to
implement the Court's conclusion and move for judgment
accordingly (which motion will usually be made under Rule
324).
Counsel has been unable to show that any sepa
rate document signed by the presiding Judge ever
formed part of the record.
Clearly, no "final judgment" within the defined
meaning of that term in section 27 has ever been
pronounced. Nor has there been any interlocutory
judgment pronounced. It goes without saying that,
since the so-called order in issue was made during
the course of trial, there has not been a judgment
on a question of law determined before trial. What
the learned Trial Judge did here, as Trial Judges
are called upon to do in practically every trial, was
to rule whether or not certain evidence proposed
by a party to be adduced, was admissible or not.
The transcript discloses that after argument by
counsel, he ruled, orally, that the letter in issue
was not admissible and the trial proceeded to its
conclusion, at least in so far as the adducing of
evidence was concerned. He neither pronounced
nor delivered any judgment nor any order which,
at this stage, would give this Court jurisdiction to
hear an appeal. After final judgment has been
pronounced, his ruling may become a ground of
appeal, but it cannot, of itself, before judgment, do
so.
While the absence of a written judgment deliv
ered and pronounced in accordance with the Fed
eral Court Act and the rules of Court is fatal, even
if a Trial Judge were to reduce his rulings on
matters arising during the course of trial to writ-
ing, they would not, in our view, provide the basis
for an appeal. The Trial Judge is the master of the
proceedings in his Court after the commencement
of a trial. His rulings during the course thereof,
whether reduced to writing and signed by him or
not, cannot form the subject matter for appeals
until he has pronounced his judgment on the mat
ters put in issue by the pleadings.
Accordingly, the appeal will be quashed with
costs payable by the appellant to all parties repre
sented by counsel at the hearing of the appeal,
except Scandinavian Continental Line A.B., which
does not seek costs, such costs to be limited to the
taxable costs to which the parties might have
become entitled had they successfully prosecuted a
motion to quash.
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.