§ 308. “Final and Conclusive.”

The words “final and conclusive” mean, primarily and generally, that there is no appeal. (Waterhouse v. Gilbert, 15 Q.B.D. 569; Bryant v. Reading, 17 Q.B.D. 128; Lyon v. Morris, 19 Q.B.D. 139.)

A right of appeal may mean one of two things: the right of a party to claim an appeal to a higher court; or the right of a higher court to grant leave to appeal. In the case of the High Court, the only higher court of which there is any question is the Queen in Council; so that the discussion of rights of appeal from the High Court resolves itself into (1) the right of a party to claim an appeal to the Queen in Council; (2) the prerogative right of the Queen to grant leave of appeal to herself in Council.

APPEAL AS OF RIGHT.—An appeal as of right can only be created by statute; and the words of this section expressly negative the existence of such an appeal.

“The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the Legislature to have given to either tribunal, that is, to the Court of the First Instance, and to the Court of Error or Appeal respectively, the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one Court and an extension of the jurisdiction of another.” (Per Westbury, L.C., Att.-Gen. v. Sillem, 10 H.L.C., p. 720. See also Mayor of Montreal v. Brown, 2 App. Ca. 174, 184.

It has been held by the Privy Council in Canadian cases that the words “final and conclusive,” or the word “final” only, are apt words, even in a Canadian statute, to take away an appeal “as of right” to the Queen in Council, and to prevent the Court of Appeal in Canada from granting leave to prosecute such appeal. In Cushing v. Dupuy (5 App. Ca. 409), it was held that a provision in a Dominion Act that the judgment of the Court of Appeal in matters of insolvency should be “final,” excluded appeals “as of right” to the Privy Council, though it did not take away the Queen's prerogative right to grant leave of appeal. Sir Montague E. Smith, in the course of delivering the judgment of the Privy Council, said (at p. 416):—

“Then it was contended that if the Parliament of Canada had the power, it did not intend to abolish the right of appeal to the Crown. It was said that the word ‘final’ would be satisfied by holding that it prohibited an appeal to the Supreme Court of Canada, established by the Dominion Act of the 38 Vic. c. 11. Their Lordships think that the effect of the word cannot be so confined. It is not reasonable to suppose that the Parliament of Canada intended to prohibit an appeal to the Supreme Court of Appeal recently established by its own legislation, and to allow the right of immediate appeal from the Court of Queen's Bench to the Queen to remain. Besides the word ‘final’ has been before used in colonial legislation as an apt word to exclude in certain cases appeals as of right to Her Majesty. (See the Lower Canada Statute, 34 Geo. III., c. 30.) Such an effect may, no doubt, be excluded by the context, but there is none in the enactment in question to limit the meaning of the word. For these reasons their Lordships think that the Judges below were right in holding that they had no power to grant leave to appeal.” (See also Johnston v. Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159.)

APPEAL AS OF GRACE.—The law however is clear that the Queen's prerogative to entertain appeals from colonial courts (see Note, § 310, infra) cannot be taken away without express words. Cuvillier v. Aylwin, 2 Knapp 72, which seems an authority to

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the contrary effect, was questioned in Re Louis Marois, 15 Moore P.C. 189, and may be considered as overruled on that point. The true principle was laid down clearly in an Indian case, Modee Kaikhooscrow Hormusjee v. Cooverbhaee, 6 Moo. Ind. App. 448, and is now well established (see Theberge v. Laudry, 2 App. Ca. 102; Johnston v. Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159). The authorities are reviewed in Cushing v. Dupuy, 5 App. Ca. 409 (cited above) when Sir Montague E. Smith, delivering the judgment of the Privy Council, after holding that the appeal as of right was taken away, went on to say (p. 416):—“The question of the power of the Queen to admit the appeal, as an act of grace, gives rise to different considerations. It is, in their Lordships' view, unnecessary to consider what powers may be possessed by the Parliament of Canada to interfere with the royal prerogative, since the 28th section of the Insolvency Act does not profess to touch it; and they think, upon the general principle that the rights of the Crown can only be taken away by express words, that the power of the Queen to allow this appeal is not affected by that enactment.”

The Canadian Act establishing the Supreme Court (38 Vic. c. 2, sec. 47) provides that its judgments shall be “final and conclusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal prerogative.” In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, no attempt was made to argue that the saving words preserved anything more than the appeal as of grace.