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SPECIAL CASE. Staled for the opinion of the Judicial Committee of the Privy Council. TORONTO: PRINTED BY HUNTER ROSE & 00. 1877. i J \ IN THE MATTER OF ARBITRATION AND AWARD UNDER THE 142nd SECTION OF THE BRITISH NORTH AMERICA ACT, 1867. ^5$^*^ BETWEEN THE PROVINCE OF ONTARIO, IN THE DOMINION OF CANADA, AMb THE PROVINCE OF QUEBEC, IN THE DOMINION OF CANADA. SPECIAL CASE. Stated /or the opinion of the Judicial Committee of the Privy Council : Under the British North America Act of 1867, the Provinces of Canada, b.N.a. Act, Nova Scotia, and New Brunswick were united into one Dominion under the name 1867. of Canada ; the parts of the Province of Canada, as it existed at the time of the passing of the Act, which formerly constituted respectively the Provinces of Upper and Lower Canada, were severed and formed into two separate Provinces, the part which formerly constituted the Province of Upper Canada becoming the Province of Ontario, and the part which formerly constituted the Province of I owor Canada becoming the Province of Quebec , and it was by the said Act Sec 107. 10 provided, amongst other things, that all Stocks, Cash, Banker's Balances and Securities for money belonging to each Province at the time of the Union, except as in the said Act mentioned, should be the property of Canada, and should be taken in reduction of the amount of the respective debts of the Provinces at the Union ; that certain public works and property of each Province enumerated in sec 108. the third Schedule to the said Act, should be the property of Canada ; that all Sea 109. lands, mines, minerals and royalties belonging to thfi several Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then due or pay- able for such lands, mines, minerals or royalties, should belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which the 20 same is situate and arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same; that all assets connected Sec. no. with such portions of the Public Debt of each Province as were assumed by that *> i B N. Act, lfif)7. Sec. 111. Sec. 112. Sec. 117. Sec. 118. Sec. 142. Provinceshould belong to that Province ; that Canada shouhl be liable forthe debts and liabilities of each Province existing at the Union; that Ontario and Quebec conjointly should be liable toCanada for the anu mt (if any) by which the debt of the Province of Canada exceeded at the Union !5i«i:,yO(),()(H), and should be charged with interest at the rate of five per centum per annum thereon ; Sec. 113. that certain a.ssets enumerated in the fourth Schedule to the said Act, belong- ing at the Union to the Province of Canada, should be the proporty of Ontario and Queliec conjointly ; that the several Provinces shoidd retain all their respective public property, not otherwise disposed of in the said Act, subject to the right of Canada to assume any lands or public property requireil for for- 10 tifications or for the defence of the country ; that the following sums should be paid yearly by Canada to the Provinces of Ontario and Quebec for the support of their Governments and Legislatures, Ontario eighty thousand dollars, Quebec seventy thousand dollars, and an annual grant in aid of each Province should be made, ecjual to eighty cents per head of the population as ascertamed by the census of one thousand eight hundred and sixty-< ne ; that the division and adjustment of the debts, liabilities, properties and assets of Upper Canada and Lower t^anada should be referred to the arbitrament of three Arbitrators, one chosen by the Government of Ontario, one by the Government of Quebec,' and one by the Government of Canada ; that the selection of the Arbitrators should 20 not be made until the Parliament of Canada and the Legislatures of Ontario and Quebec had met ; and that the Arbitrator chosen by the Government of Canada should not be a resident either in Ontario or in Quebec. In pursuance of the said Act,after the Parliament of Canada, and the Legis- latures of Ojitario and Quebec respectively had met, the division and adjust- ment of the debts, credits, liabilities, properties and assets of Upper Canada and Lower Canada were duly referred to the Arbitrament of three Arbitrators, namely : The Honourable David Lewis Macpherson, who was chosen by the Government of Ontario on the thirteenth January, 1868 ; the Honourable Charles Dewey Day, who was chosen by the Government of Quebec on the 30 thirtieth January, 1868, and the Honourable John Hamilton Gray, who was chosen by the Government of Canada on the twenty-third May, 1868; the .said John Hamilton Gray not being a resident either in Ontario or in Quebec. The said Arbitrators having taken upon themselves the burden of the said arbitration, held their first meeting in the Committee Koom, No. 8, oftheParha- ment Buildings, House of Commons side, in the City of Ottawa, at noon on the 31st day of August, 1869. Present : The Honourable John Hamilton Gray the Honourable David Lewis MACPHE.tsoN.and the Honourable Chakles Dewey Day. The Honourable Edmund Burke Wood, the Treasurer of the Province of 40 Ontario, appeared on behalf of the Province of Ontario, and the Honourable Christopher Dunkin, the Treasurer of the Province of Quebec, appeared on behalf of the Province of Quebec, along with Mr. Kitchie, of Montreal, and Mr Casault, of QuebeC; as his Counsel. The Ar.)itrators ordered that the Commissions appointing the said Arbi- trators should be produced and read, and entered on the mil utes ; and they Wv>re produced and read accordingly, and are in the words following : (COMMISSIONS.) CANADA. 10 20 10 :SEAL: MONOK. ViCTouiA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, &c. To the Honourable John Hamilton Gray, of the City of St. John, in the Province of Xew Brun.swick, in our Dominion of Canada, Esquire, and to all to whom these presents shall come, Greeting : Whereas in and by the one hundred and forty-second Section of "the 10 British North America Act, 1867," it is enacted that the division and adjust- r.ient of the debts, credits, liabilities, properties and assets of Upper Canada and Lower Canada should be referrcMl to the arbitrament of three arbitrators, one chosen by the (rovernment of Ontario, one by the Government of Quebec, and one by the Government of Canrda; and that the selection of the arbi- trators should not be made until the Parliament of Canada and the Legislatures of (Ontario and Quebec had met ; an s: t a s a 1^ 1867 ";,.^ 1 'f ^lr^°" ^? "^^""^"^ "f "Th^^ «"tish North America Act 1867 and accordiuK to the tnie intent and nioaninK thereof ' To have and to hold the sai.l office of Arbitrator during, onr pleasure In 1 estimouy whereof we have caused these our Letters to bimtde Patent Kight Imsty and well-beh)/ed Cousin the Hifrht Honoumble rha ns Stanley Viscount Monck, Baron Monck of Ballytranuno,r[n he Cou tv of Wexford, in the Peerage of Ireland, and Baron uZkof Z\J gammon, m the Couiity of Wexford, iA the Peerage TtheUnSi Ic ,'&r&c """'' ^"'*" '^"^ '''^'^"^' ^>-ernor-Ge^neral of CWa "^ Altv ^'nTr'"* ^^°"'' 'V\ ^'^y "^ O"™' this twenty-third day of ^^ May .n the year of our Lord one thousand eight hun.irod and sLv eight, and in the thirty-first year of our Reign. """"•'^•l and sixty By Command. Hector L. Langevin, Secretm-y of State. SEAL : N. F. Belleau. Patent ap- pointing the Hon. Chas. Dewey Day, Arbitrator • for Quebec, under 142 Sec. B. N. A. Act, 1867. CANADA. PROVINCE OF QUEBEC S ». o i nominated, constituted^ndapp2ed S . T'" "^°''"" "^^^^ stitute and appoint you the sS Ch«Vh;« n^ these presents do nominate, con- sions of an Act of the Parli^mlt J f^ Dewey Day, to bo, under the provi- and Ireland, passed in tLhirteth t^^ ^^"^^""^ "^ ^''^' ^"^^'» the Union of Canad^Cva sSidN/ T ''^'S"' ,«"tituled "An Act for thereof, and for purposerconne Ted^l^^^ the Government Government of Quebec for the divi Jn,? fri r f ^'^'^^ator chosen by tiio o^ Habihtjes proper^ :^Z^J^ S^STolfr '^LIT' ''''''' the ^^^^^^S:^^SU;^^^f *^ /Irb'irrattchosen by Day, with all and every tt pLerSthorJi^^^^ ''" said Charles Dewey vantages to the said office bvTw ^nnprtl •^'- ^ ^^^'' ^"^'^^""^ents, and ad- And we do hereby require that vm, fL ' ,"1^{, "^T^ ""''' ^'^^'^^ i"^^^'^'^- from time to time ti rruTt TyJ^\^-,rZL?:^^'u''''' ''''' ^^° ^^P°^^ the Lieutenant-Governor of the s^d Prnv[n!f i /. ? ^" convenient speed, to 10 Witnoss our trusty and woll bolovod the Honourable Sir Narciase Kortunat Holloar. Knight, iJeutonant (rovernor of our said Province of (Quebec, at Quebec, this thirtieth day of January, in the year of our Lord one thousand eight hundred and sixty-eight, and in the thirty-firat year of our Ueign. By Command, P. J. O. Chauveau, Koconle.! 4th Fehruary, 1868, "^^" 10 In Libor A., folio 28. J* B. Meilleuk, Deputy Registrar. PROVINCE OF ONTARIO. skal: H. W. Stisted. 20 30 40- Victoria, by the Grace of God, of the United Kingdom of Groat Britain and Ireland, Queen, Defender of the Faith, &c., &c To the Honourable David Lewis Macpherson, of the City of Toronto, Es(iuire, and to all to whom these presents shall come. Greeting: Wheukas in and by the one hundred and forty-second Section of the British North America Act of 1867, it is enacted that the division and adjust- aoment of the debts, credits, liabilities, i)roperties and assets of Upper Caiiada and Lower Canada should be referred to the arbitrament of three arbinators, one chosen by the Government of Ontario, one by the Government of Quebec' and one by the Government of Canada; and that the selection of the arl)itra- tors should not be made until the Parliament of Canada and the Legislatures of Ontario and Quebec had met ; and that the arbitrator chosen by the (rov- ernmont of ('anada should not be a resident either in Ontario or (Quebec : And WHEUKAS the Parliament of Canada and the Legislatures of Ontario and Quebec have met ; and it is right and convenient that the said division and adjustment should bo proceeded with : Now know ye that reposing especial trust and aocontidonce m the loyalty, ability, and integrity of you, the said David LewLs Macpherson, We of our especial grace and of our will and pleasure do by these presents nominate, constitute and appoint you, the said David Lewis Macpher- son to be the Arbitrator for and on behalf of the Government of our Province of Ontario, touching the said matters undiT the said statute. And we do hereby C(jnfer upon you full power and authority as such Arbitrator as aforesaid, to act together with the other arbitrators in the said recited section referred to,' in and about the division and adjustment of the debts, credits, liabilities, pro- perties and assets of Upper Canada and Lower Canada, and concerning every matter and thing relating thereto, and to adjudicate and award thereon, by vir- 40 tue of the said British North America Act of 1867, and according to the true intent and meaning thereof. To have and to hold the said office of Arbitrator as aforesaid during our pitasure. Patent ap- pointiagthe Honourable Lewis Mac- pherson, ar- bitrator for Ontario, un- der 142, Sec. B. N. A. Act, 1867. OJ > o o o 6 In T«>stinu»ny whoreof wo hav,» caused t)ieso our Letters to be made Patent, nnd tlio (rrcat Seal of our said Province of Ontario to Ih> hereto attixed. Witu(^s.s, H«>nry William Sti.st(>d, (;oni|>aiiion of tlu^ Most Honourable Oriler of the Math, a Major ( reneral in our Service, and Lieutenant- ( Jovernor of our I'rovinc' of ( )utario. At Toronto, th(> thirteenth day of January, in the year of our Lord one thousand eight hundred and sixty- ei},d)t, and in the thirty-first year of Reit;n. liy Command, M. C. Cameuon, Secretary/. 10 The Honourahh^ Sir John Rose, Minister of Finance of Canada, being pre- sent, produced and tiled with the Arbitrators copies of certain Minutes of Council m reference to the public debt of t>ie late Province of Canada. The Trea- surers of ( )ntario iuul (,)uebec tiled a Menu.randum ir relation to the same subject, which is as follows : — "The Treasurers of On tan,) and Quebec state that ine above Orders in "Council have not yet been fonnally acted upon, by their respective Govern- " merits ; but assent to the same being received, tiled and considered ad interim " under reservj of the right hereafter to connnunicate to the x^.rbitrators such " action of their Governmiuits as shall be taken in the premises. ^0 " E. Is. Wood, . " Chhist. Dunkin." Durmg the i .-oceedings Mr. Langton, the Auditor-General of Canada, was sent tor, and questioned as to the matters under consideration. After discussion the Arbitrators adjoui-ned until Thursday, the second day of Septemljcr, at lo o'clock a.m. SECOND MEETING OF ARlJITKATOliS. All A.l.iira- Thursday, the second day of Sei)teml)er, 1800. The Arbitratoi-s met uur- torsproHent. suant to the adj( .iirnment. Present : The Honourable John Hamilton Gray the -o Honourable David Lewis Macpherson, and the llonourabie Charle.« Dewey Day Arbitrators; and the Honourable Mr, Wood on behalf of Ontario arid the Honourable Mr. Dunkin on l)ehalf of Quel )ec. * ' Or.i.., of , /V;^»' ^lis^eussion the Arl)iti-ators ordered that liie following statements ArbitratoiH. «lioul(l be prepared by Mr. Langton, the Auditor-tieneral of Canada and to be by him submitted iiiul sent as follows : — ' " I. A statement in detail by the Auditor-General of the assets enumerated mthe I-onrth .Schedule to ihe liritish North America Act, 18<>7 with such " observations in explanation tliereof as h( may tliink necessary. 30 i T^atent, noiiral)lo llltC'Mltlt- th (lay of 11(1 sixty- 10 (iiii^' pre- irites of ^he Trca- lie same rders in Gdvern- / interim ors such 20 IN." ada, was iond day net pur- jray, the 30 vey Day, and the itemeiits u(l to be merated ith such ^ f That the statoraent bo commnnicuvtod to the Treasurers of the two I rovincoa, ami that they l„. nilled upon either to udniit ils eornrtness as ^^ enmneratinfr the total assets to b. divided under the Act. or to lay bofore the Arbitrators, in writing, smh statements us n.ay - nable M.e Arbitnitors to judije ol Its accuracy, and to add or to amend it ;f necessary '• That a Jurther statement he prepared by the Au('ito. (leneral of the Order of '' ZS't ' ^T'lf '"'"' •'"'"' •'^" f'PP«'' ^'anadaand of l.ower Canada Siol™ lesptttively and all other accounts m the stiit(>nK!nts to be prepa'-ed, ),ftv,. '« '^' "tate- ,0 J^'uli ^'^'"■'?- ''■;"" '•"'/''■:* '''^y •'*" 'January, iHtJU. up to the first .lay of Jnly. '"""'« ^' t" 10 18 ,7. respect.yely ; and showing the annual pc-r ceuta^e on tlu> capital whicl EE ' ^^ has been paid on each ; with any other statement of facts beuring ('n the value olml ^^ of the several items m the said statements which he may think necessary and these be communicated to the Treasurers of the two Provinces and to the Aroitrators as so(m as (jossible." Se )t^ber^l869^^"''^ *^'^" adjourned' to W(>dne8day, the twenty-secmd day of Afte wards, Mid before the twenty-second day of Seotembe., 1869 by mutual arrangement between the Arbitrators an.' dl parties, the meeting for the wenty-sec.m( day of September, l,s(59, was postponed to the seventh day of THIRD MEETING OF AKBITUATOKS. The Arbitrators met at the City of Ottawa, at the place of theif former All Vrhitr, Uru^ K ]?'''Tr ^ '■'^?"^ \^^^" Honourable J(\hn Hamilton Gmy the Honourable David Lewis iMucpherson, and the I [onourable Charles Dewey Dav the Arbitrators. The Honourable Mr. Dunkin r.ppeare.l on behl f of ( )iobec' and he Honourable Mr. Wood, with the Honourable John JliUyard cLi eron as his Counsel, appeared on behalf of Ontario. ^ 3f> The Court of Arbitration preceded with *he refereiipo -in.] .ffo,. i,..o.,;. . , • • the discussion had m relation thereto, adjourned to Mimday, the twenty .Hfth ^i^h. day of October, 1S69, at 11 o'clock a.m., kt the same place. ^ FOURTH MEETING OF ARBITRATORS. . The Arbitrators met at the City of Ottawa, at the place of their former meetings, on the twenty-fifth .lay of October 18(39 TVos. t All /iL ft AlIArbitra- Arbitrat.u-s, Messrs. W00.I and'cWron appear ,L.^ Messrs. Diinkin and liitchie on behalf of Quebec. ^^ntario, and ^Q I I '^'^f ^^^■^'itrat.jrs after hearing discussLuis and arguments from Counsel on a ;^^\«>des up.,n the subject matter of the reference, adjourned Hue rytle ^^ "" twenty-sixth day of October, to meet at the same place, at 10 o'clock al^' 8 All the Ar- bitratoi'8 present. Arguments heaixl. FIFTH MEETING OF ARBITRATORS. The arbitrators met pursuant to adjournment, at the City of Ottawa, at the place of their former meetings, on the twenty-sixth day of October, 1869. Present : All the Arbitrators. Messrs. Wood and Cameron appeared for Onta- rio, and Messrs. Dunkin and Ritt ,ie for Quebec. The Arbitrators proceeded with the reference, and after hearing arguments and discussions of the Counsel on both sides, adjourned to next day, to meet at the same place at 11 o'clock a.m. \'i II All the Ar- bitrators present. Mr. Dun- kin's resig- nation as Treasurer of Quebec. SIXTH MEETING OF ARBITRATORS. The Arbitrators on the twenty-seventh day of October, 1869, met at the place and time aforesaid. Present : All the Arbitrators. The Honourable lo Mr. Dunkin announced that he had resigned the office of Treasurer of Quebec, L^ accordance with the statement made by him informally on Monday last. Messrs. Casault with Mr. Ritchie appeared on behalf of Quebec, and Messrs. Wood and Cameron on behalf of Ontario. Mr. Casault stated that the Honourable Mr. Irvine was to have been present, but that unforeseen circ amstances had prevented his attending ; however he was informed that the Honourable Mr. Chauveau, the Premier of the Quebec Govern- ment, intended to be in Ottawa that day, and until receiving instructions from him, Mr. Ritchie and himself declined to assume any definite responsibility in the matter, in consequence of the change in Mr. Dunkin's position. 20 Mr. Wood, the Treasurer of Ontario, and Mr. Cameron with him, stated that they were prepared to proceed, on behalf of Ontario, with full responsibility for the Govevnment of Ontario. The Arbitrators thereupon adjouri. d until five o'clock p.m. All the Ar- bitratora present. Order ■ SEVENTH MEETING OF ARBITRATORS. At five o'clock on the same day and at the same place as last aforesaid, the three Arbitrators met. The Honourable Mr. Chauveau, the Premier of the Quebec Government, and with his Counsel, Messrs. Casault and Ritchie, ap- pearing on behalf of Quebec, and Messrs. Wood and Cameron on behalf of On- tario, when, after further hearing from both parties on the subject matter of the ,30 said reference, the Arbitrators made the following order. " The Counsel for the Provinces of Quebec and Ontario shall prepare and " print their respective cases, and communicate them to each other for such " observations in response as they may deem necessary. The cases shall be " communicated to the Arbitrators (together with an authoritative declaration " by the Governments of Quebec and Ontario respectively, of their agreement ;awa, at r, 1869. r Onta- fuments meet at b at the Durable lo Quebec, ay last. Messrs. jresent, he was jovern- is from )ility in stated isibility 20 )resaid, r of the lie, ap- of On- I* of the 30 ire and •r such hall be aration eement 9 " with the Dominion Goveniment in the matter of the amount of debt of the of the Ar- " Province of Canada), on or before the fifteenth day of January next. bitrators as "The Arbitrators may order either mero motu, or, upon the suggestion J^P"°*J^ " of Counsel, an oral argument upon such points as they may deem necessary." exchange of The Arbitrators then adjourned to meet again on the day of the opening of same, the next Session of the Dominion Parliament (the fifteenth day of February. 1870, at noon). EIGHTH MEETING OF ARBITRATORS. The Arbitrators met at the City of Ottawa, on the fifteenth day of Febru- ^^ '^^^ '^'■- ary, 1870, pursuant to the adjournment. All the Arbitrators were present. JI.*"**'™ 10 Messrs. Chauveau, Casault, and Ritchie, and Mr. Drolet appeared on behalf of " Quebec. Messrs. Wood and Cameron not appearing on behalf of Ontario, the Arbitrators adj(mrned until Thursday, the seventeenth day of February, 1870, Noproeress at noon. made. NINTH MEETING OF ARBITRATORS. The Arbitrators met on the seventeenth day of February, 1870, at the City of Ottawa, pursuant to adjournment, in the rooms of the Civil Service Board. All the three Arbitrators were present. Mr. Chauveau, the Premier of Quebec, Mr. Robertson, the Treasurer of Quebec, and Mr. Drolet, Accountant in the Treasury Department of Quebec, and with them their Counsel, Messrs. 20 Casault and Ritchie, appeared on behalf of Quebec : and Messrs. Wood and Cameron on behalf of Ontario. It appeared that the cases of the two Provinces had been respectively in- terchanged, and also sent to the Arbitrators, as required by the order of the 27th of October, 1869 ; but that no statpmeut had been furnished of any settle- ment by the Provinces with the Dominion Government as to the definite amount of the debt, as required by that order. Mr. Casault then addressed the Arbitrators as to the preliminary objectiou raisi^d as to the jurisdiction of the Arbitrators over the debts and assets enu- merated in the Fourth Schedule to the British North America Act, 1867. Mr. 30 Cameron was heard in reply. The Arbitrators reserved judgment until the next day, to which they then adjourned, to meet in the same place, at 11 o'clock, a.m. All the Ar- bitrators present. Gases intei- changed. Definite amount of debt not settled or agreed on. The Arbi- trators heard argu- ments of Counsel. TENTH MEETING OF ARBITRATORS. The Arbitrators met on the eighteenth day of February, at their last place All the Ar- of meeting, at 11 o'clock, a.m,, pursuant to adjournment. All the Arbitrators ^•'■'"ators present. 10 (Question Judgment of Arbitra- torfli Proposition of Mr. Cam- eron — prin- ciple or mode of division. Objected to byfllessrs. Gasault and Eitchie. Argument heard. Adjourn- ment. Were present, the same persons appeared for Ontario and Quebec respectively as were present at the last meeting ; when the Honourable Charles Dewey Day, the Arbitrator chosen by Quebec, delivered the opinion of the Court of Arbi- trators on the point argued at the previous meeting, raised by the Counsel for Quebec, namely, " that the Court of Arbitration had no jurisdiction over the " subject matte? of the assets enumerated in tlte Fourth Schedule to the British "North America Act, 1867," and the following judgment was unanimously pro- nounced by the Court of Arbitration : — "The Arbitrators having heard Counsel upon the objection raised in behalf " of the Government of Quebec, to their jurisdiction over the subject matter of 10 " the assets enumerated in Schedule Four of the British North America Act, " 1867, and duly considered the question, are of opinion, and do adjudge, that " the assets so enumerated make part of the property and assets, the division " and adjustment whereof has been referred to them under the provisions of " Section 142 of the said Act ; and that they have by the said Act authority to "divide and adjust the same." Mr. Cameron then on behalf of Ontario, proposed to go into the argument upon the proposition as to tlie principle or mode of the apportionment oftlie excess of debt over and above $62,500,000 of the late Province of Canada, between Ontario and Quebec, and the diviMon between therf, of the assets belonging to the late Province « a of Canada under the British Ntyrth America Act, 1867, to which Messrs. Casault and Ritchie objected, contending that such a course would be excep- tional. After hearing counsel on both sides as to whether the hearing of the argu- ment on that point (the principle and mode of apportionment of the excess of debt and the division of the assets), and a decision thereon at that stage of the arbitration, would or would not expedite the business, the Arbitrators reserved judgment until next meeting. The Arbitrators then adjourned until Monday, the twentieth day of Feb- ruary, 1870, at 11 o'clock a.m. 30 All the Ar- bitrators present. Decision of Arbitrators. Argument heard on Indian Annuities. ELEVENTH MEETING OF ARBITRATORS. The Arbitrators met at the place last aforesaid, on the twentieth day of J^ebruary, 1870, at 11 o'clock a.m., pursuant to adjournment. All the Arbitra- tors were present. The same persons were present for Ontario and Quebec respectively, as were present at the last meeting. The iirbitrators declared their opinion that it was not desirable to interfere with the ordinary mode of proceedings in such cases ; and that, therefore, they would not at present hear the argument upon the point raised by Mr. Cameron and objected to by Quebec. By agreement the Counsel proceeded to the argument on the claim of 40 Quebec to charge against Ontario, the capitahzed portion of the "Indian An- nuities. 30 11 Messrs. Casault and Ritchie wore heard for Quebec, and Mr. Cameron for Arbi Ontario. The argument was closed, and the Arbitrators adjourned until next ^^^J" day, to meet at 11 o'clock a.m. TS TWELFTH MEETING OF ARBITRATOKS. The Arbitrators met at the place aforesaid, on Tuesday, the twenty-first All the day of February, 1870, at 11 o'clock a.m. All the Arbitrators were present. Arbitr The same persons appeared, and with them the Honourable Mr. Chauveau, the Pfesem, Premier of Quebec, and the Honourable Mr. Beaubien, the Commissioner of Crown Lands for Quebec, on behalf of Quebec. Mr. Wood and Mr. Cameron 10 appeared on behalf of Ontario. The Counsel selected and proceeded with the argument as to the principle Argument and mode of the apportionment of the excess of the debt of the late Province of^^^^ °^ Canada, over and above $62,500,000, and of the division of the assets belonging P""'=^^^« to the late Province of Canada, under the British North America Act, 1867. dLSion. Mr. Cameron opened the case, and closed his argument on behalf of Ontario, Mr. Came- contending that the basis of the population or the basis of the origin of local debts, ^'^ *"«»*■«'• was the correct and proper principle and mode on which such apportionment and division should take place. Counsel for Quebec to be heard the next day. Counsel for 30 The Court of Arbitration adjourned, to meet at the same place next day, Quebec to at 11 o'clock a.m. be heard next day. ^i»«^„^___^_^^,^,,^^„^^,„^ Arbitrators abjoumed. 30 THIRTEENTH MEETING OF ARBITRATORS. The Arbitrators .aet on Wednesday, the twenty-second day of February, 1870, at their last place of meeting, at 11 o'clock a.m., pursuant to adjournment. All the Arbitrators were present. The same persons who at the last preceding meeting appeared on behalf of Ontario and Quebec respectively, were present. Mr. Casault was heard in answer to Mr. Cameron on behalf of Quebec, on the principle and mode of the apportionment of the excess of debt and the division of assets. The Arbitrators then adjourned, to meet at the same place on Friday, the twenty-fifth day of February, 1870, at 11 o'clock a.m. All the Arbitrators present Mr. Casault heard in an- swer to Mr. Cameron. Arbitrators adjourned. FOURTEENTH MEETING OF ARBITRATORS. The Arbitrators met on Friday, the twenty-fifth day of February, 1870, at their last place of meeting, at 11 o'clock a.m., pursuant tq adjournment. All the Ar- bitrators present. Mr. Ritchie heard in sup- port of Mr. Casauit, Messrs. Cameron and Wood in reply. Arbitrators adjourned. 12 All the Arbitrators wore present, and the same persons who at the last pre- ceding meeting appeared on behalf of Ontario and Quebec respectively were present. Mr. Ritchie was heard in support of Mr. Casauit on behalf of Quebec. Mr. Cameron and Mr. Wood were heard in reply on behalf of Ontario and the argument was closed on both sides. ' The Arbitrators adjourned, to meet next day, Saturday, the twenty-sixth day of February, 1870, at the same place, at noon. All the Ar- bitrators present. Arbitrators consult and take time for delibera- tion. Arbitrators adjourned. FIFTEENTH MEETING OF ARBITRATORS. The Arbitrators met on Saturday, the twenty-sixth day of February, 1870 10 at their last place of meeting, at noon, pursuant to adjournment. AH the Arbitrators were present. Counsel and other officials interested appeared as at the last preceding meeting. The Arbitrators, after some time spent in the consideration of the questions submitted, agreed that it was necessary to take time to look into the points raised and the arguments oflFered for and against the same, and they intimated that they hoped they would be prepared to announce their decision thereon on the Monday then foUowmg, viz. : the twenty-eighth day of February, 1870. The Arbitrators then adjourned, to meet at the same place on Monday the twenty-eighth day of February, 1870, at 11 o'clock, a. m. 20 All the Ar- bitrators present. Arbitrators notpreparod to give a cisioD, and adjourn tc meet at some future day. SIXTEENTH MEETING OF ARBITRATORS. The Arbitrators met on Monday, the twenty-eighth day of February 1870 at their last place of meeting, at 11 o'clock a.m. All the Arbitrators were present' Counsel appeared on behalf of Ontario and Quebec respectively. The Arbitrators declared to the Counsel and Treasurers of the two Provinces that they were not prepared to give a decision on the points argued • and that they should adjourn, and would notify the Counsel at some future day when they would be prepared to meet again. ^ The Arbitrators adjourned accordingly. SEVENTEENTH MEETING OF ARBITRATORS. 30 ^rltt" ^ The Arbitrators met at the City of Montreal, on the twenty-sixth day of present. May, 1870, lor consultation on the points and arguments submitted on the Meeting ioiprmeiple and mode of tlie apportionment of the excess of debt over and above coi ''ultation last pre- vely were lebec. Ontario, !nty-8ixth iry, 1870, 10 All the aeared as :iuestiqns ts raised, tliat they Monday iday, the 20 ry, 1870, present, *rovinces and that hen they 30 h day of I on the ul above 13 162,500,000, and the division o/ assets helon(jing to the late Province of Canada, pursuant to arrangement between the Arbitrators, all of whom were present. A letter from Messrs. Casault and Kitchie, addressed to the Arbitrators, was received, enquiring whether two printed pamphlct.\ one purporting to be " Mr. Wood's Argument before the Arbitrators," the other styled " Proceedings of the Provincial Arbitrators, Ontario and Quebec," are to be received by the Arbitrators. Secondly : Whether the publication of the latter had been authorized by them, and whether such Keport is correct '\ Whereupon the following minute was i< greed to : — 10 "1. That the said pamphlets had been received, but had not been accepted " by the Arbitrators as part of the proceedings before them. " 2. That the publication of the pamphlet styled 'Proceedings of Provincial " Arbitrators Ontario and Quebec,' was not authorized by them, and that they " are not prepared to enter into a comparison of the alleged Report with their " Record of proceedings. " 3. That a copy of this minute be forwarded to the Counsel both for Ontario " and Quebec." The Arbitrators then proceeded to discuss among themselves the question, and arguments submittdd on the said principle and mode of apportionment of 20 debt and division of assets, and severally read and commented upon their various opinions which they had reduced to writing. The Arbitrators adjourned at six o'clock p.m., to meet the next day. EIGHTEENTH MEETING OF ARBITRATORS. The Arbitrators met on Friday, the twenty-seventh day of May, 1870, pur- suant to adjournment, all being present; and continued their investigations and discussions, and adjourned at six o'clock p.m., to meet the next day. Letter of Messrs. Cas- ault and Kitchie as to two pamph- lets. Minute of Arbitrators on the 'pamphlets. Copy of Minute for- warded to Counsel for Ontario and Quebec. Disccusion among the Arbitrators by them- selves. Arbitrators adjourned. 30 NINETEENTH MEETING OF ARBITRATORS. The Arbitrators met on Saturday, the twenty-eighth day of May, 1870, and Proposi- continued their investigations and discussions. tions of the The Honourable Charles Dewey Day submitted the following propositions:— Honourable " 1. It is proposed that the relation of Upper and Lower Canada created DeweyDay " by the Union Act, of 1840, be regarded as an association in the nature of a uni- " versal partnership ; and that the division and adjustment of the debts and " assets under the British North America Act, 1867, be made according to the " rules which govern in such associations, in so far as they can be made to apply. ■'2. It is proposed that the state of indebtedness of each of the Provinces of " Upper and Lower Canada at the time of the Union in 1841, be taken intoconsid- " eiai. ,>n by the Arbitrators, with a view to charge the Provinces of Ontario and m Ist proposi- tion nega- tived. -wi/.; wi uie line I'l'jvinco of r'-m-iWa ^„«. j i ^^"i'lus uuut (excess of ;;debt« have been deducted frouUMardm^^^^^^^^ »f'«-- «"ch be equa ly divided between the srid Provtee" ''™'*''"™ P^waees), ;;.^.e,i u„de. the a.thoHt, iffi T^ '^ dt^^^ S^.tSI^^ -?£ Dew^KnlTuul ZJ^^Ot^. "'' ^ "»""-•"» Cha.e, ,„ Honourable Charles Dewey I»av aoiinL ,1. i, "■■ *" Pf°Positioii, the 2„.p„p..i.*^''tprr' '''?«""««"« JohTCiL' Gray™""''" ''"" ^"^ the Honourable Charles D* weTC I^tal' 'H,^ ^or the second proposition! 3^ .„p..i- "^XZT.r' """HonourabijinXS 'n g;"'""'™'"^ David Wi^ £r- DeweXtiirpTltr'-d^Sirri"™?^^^^ Chanes proposition, the Honourable ( Ses De,± nT "" "' '^""""'^ ^ F""- «>o third ~»p. '^''lo'trwSrr'''' 'f «-'S.?XLrEito'n sl""™-^""' ^» SS"'^--erejeoied '"*"'' ?"*-*»»» "(the Honourable Srles''Lwey Day ..H..„„. Day^wh,ch were entered on ^e "iliLSrthl KeSSe St^t^l ...... "\^:p2^^^^t2^^Z:2^ ^-- "P- Canadi i^een inr ivi/i„oi„ „„j .1 . ."^fe""* i-" an ordinary assofiiat mn r*.. r,o„* 1 • D.:^C '^^ 2' e'*^""" '™ ftovinces. ' "'" '"'"""ty oi a Parliamentary ■"into„;ooS:^l,?flltwc"onSrti'^*f?^^''''™»° ""'hority to inomre ;; respectively, anterior to ort the toe'of t^e^' '^'^^ "" I-°^» SS ;;&?'ci^^-Te;Vi-^f^^ "tmnsoend their powe;:arruidffl „^*'tr t""'' ''J" '"■ *»y -<">" upon that Province eleven-fourteonthfof S T ,""' "" O"*™". by iaiposing « excess of the debt of the late Knee of cLd'' """PJ"' '''''" ('''"t is, thf or reducing it to figures, and assuSg the exctr„?71'^ ''^T »«2,500,;)00), /aDada re- (excess of fter such roviuces), le to the 1 and ad- f to their Charles 10 ;ion, the d Lewis Charles aosition, d Lewis Charles be third ourable 20 3y Day [lowing Dewey orators, Canada lership ire not 30 entary iiquire anada iew of 3y the n—to ^ould osing 40 i, the 000), »,oao, lebec fable ssets 15 " the result of a division under them would be most unequal and unjust, inas- " much as Quebec would get one-half of the value of the assets, while required "to bear only three-fourteenths of the surplus debt." The Honourable David Lewis Macpherson than submitted the following proposition, namely : — " That the division and adjustment of the suri)lus debt, and of the assets Proposition " owned conjointly by Ontario and Quebec, be upon the basis of the population °*" ^^^ ^on- " of those Provinces as shown by the census of 1861." DavWLewii Upon the question on this proposition being put, it was negatived on the Macpherson 10 following division : — For the proposition, the Honourable David Lewis Mac- negatived. pherson ; against it, the Honourable Charles Dev^^ey Day, and the Honourable John Hamilton Gray. So the proposition of the Honourable David Lewis Macpherson was rejected. Reasons of The Honourable John Hamilton Gray then expressed his reasons for dissent- abie^john"'^ ingfromthe propositions laid down by the Honourable Charles Dewey Day, which Hamilton were entered on the Minutes of the Proceedings of the Arbitrators, as follows: — Gray for " Because, for the reasons already assigned, he thinks the Union of Upper dissenting "and Lower Canada by the Imperial Act of 1840 cannot be likened to a part-^^^"*^ *v " nership or mercantile association of any character, and that the Arbitrators onhe^ Horf- " have no power and ought not to enter into the consideration of the political ourable " or financial state of Upper or Lower Canada previous to the Union, or the Charles " equivalents or inducements influencing the Imperial Government or the Pro- ^^^®y ^*y- " vinces, which led to it. That the Union of 1841, in pursuance of that Act, " concludes all enquiry into matters antecedent thereto, and that from that " time, for all purposes now under their consideration. Upper and Lower Canada " must be regarded as one, and the present division and adjustment be decided " on grounds entirely irrespective of the position of either Upper or Lower " Canada at the time of the l^nion." He then submitted the following proposition : — " That the division and adjustment of the surplus debt and assets, owned Proposition " conjointly by Ontario and Quebec, and enumerated in Schedule Four of the submitted "British North America Act, 1867, be based upon the origin of the debts, and ''y t^^eHon- 20 30 Upon the question on this proposition being put, it was affirmed on the Affirmed, following division ; — For the proposition, the Honourable John Hamilton Gray, and the Honourable David Lewis Macpherson ; against it, the Honourable Charles Dewey Day. So the proposition of the Honourable John Hamilton 40 Gray passed in the affirmative. The Honourable David Lewis Macpherson at the same time submitted the Memoran- following Memorandum, to be entered on the Minutes of the Proceedings of '^""^ °f ^^^ the Arbitrators, which was accordingly done, viz : — Honourable " That while adhering to his preference for population as the basis for Lewis Mac- " division and adjustment of the debts, credits, liabilities, properties and assets phersou. " of Upper Canada and Lower Canada, ho nevertheless assents to Colonel " Gray's proposition, with the view of arriving at some basis, and believing that "under it a just award may be made." 16 Judgment ordered to be commu- nicated. It was then ordered that the following Judgment bo communicated to the Counsel of both Provinces. JUDGMENT, li'il! fliil The Arbitrators under the British North America Act, 1867, having care- Judflment ^""^ Considered the statements made and the propositions submitted respectively by and on the behalf of the Provinces of Ontario and Quebec, and having heard Counsel at length thereupon, do award and adjudge as follows : — " Ist. That the Imperial Act of Union, 3rd and 4th Victoria, Chapter 35, " did not create in fact or in law any partnership between Upper and Lower " Canada, nor any such relations as arise from a state of co-partnership between lo " individuals. " 2nd. That the Arbitrators have no power or authority to enter upon any " enquiry into the relative state of the debts and credits of the Provinces of " Upper and Lower Canada, respectively, at the time of their Union in 1841, " into the Province of Canada. " 3rd. That the division and adjustment between Ontario and Quebec of " the surplus debt— beyond 162,600,000— for which under the 112th Section of " the B. N. A. Act, 1H67, Ontario and Quebec are conjointly liable to Canada, " shall be based upon the origin of the several items of the debts incurred b}^ " the creation of the assets mentioned in the Fourth, jhedule to that Act, and 20 " shall be apportioned and borne separately by Ontario and Quebec, as the same " may be adjudged to have been originated for the local benefit of either ; and " where the debt has been incurred in the creation of an asset for the common " benefit of both Provinces, and shall be so adjudged, such debt shall be divided " and borne equally by both. " 4th. That where the debt under consideration shall not come within the ''^ purview of the Fourth Schedule, whether the same shall or shall not have left " an as.set, reference shall be had to its origin under the same rule as in the last " preceding section laid down. " 5th. That the assets enumerated in the Fourth Schedule to the B. N. A. 30 "Act, 1867, and declared by the 113th Section to be the property of Ontario " and Quebec conjointly, shall be divided and adjusted, and appropriated or " allowed for, upon the same basis. " 6th. That the expenditure made by the creation of each of the said assets, II shall be taken as the value thereof : and where no asset has been left, the II amount paid shall be taken as the debt incurred— the Arbitrators having no " right to enter into or adjudicate upon the poUcy or advantages of expenditures " or debts incurred by authority of, and passed upon by Parliament. " 7th. It is therefore ordered that, in accordance with the above decision, " the Counsel for the said Provinces of Ontario and Quebec, do proceed with in " their respective cases. "J. H. Gray, »TiT . , ,, . " D. L. Macpherson. " Montreal, May 28th, 1870." Arbitrators ^he Arbitrators then adjourned to meet at Montreal, on some future day adjourned, to be agreed on. 10 17 Tlu! Honourable (^harkvs Dowoy Day, sulKS(!queutly to the a.ljouriiinent, reciuosted tliat the decision aiTiv(!d at should not he communicated to Counsel until ho could be heard from in a few days. Subsequently, the lloiioiuable Charles Dewey Day sent to the o' her two Diwent of Arhitrators, to bo entered upon the Minutes of the Proceedinj^'s of the Arbitra- *•»« Hon. tors, his dissent from the fore<,'oivifr judgment or decision, which is as follows - CJms.Dawey Day. DISSENT of the Hon Charles Dewey Day to the foregoing decision of the Arbitrators. " The undersigned Arbitrator dissents from the foregoing award and iud.^- ment of the Hon. I). L. Macpherson and the Hon. J. H. Gray, two of the " Arbitrators appointed under the B N. A. Act, 1867. "1st. Because the said award and judgment purports to be founded on " propositions which, in the opinion of the undersigned, are erroneous in fact "and in law, and inconsistent with the just rights of the Province of (>ebec. ' ^j^u ^^^^'^"^*^ therelati(m of the :'ro7ince3 of Upper and Lower Canada j^ created by the Union of 1841, ought to be regarded as an association in the nature of • a universal partnership, and tht» rules for the division and adjust- ' meut of the debts and assets of Upper and Lower Canada, under theautho- ^^ rity ot the said Act, ought to be those which govern such associations, in so far 20 as they can be made to apply in the present case. " 3rd. Becausi^ the state of indebtedness of each of the I'rovinces of Upper "and Lower Canada, at the time of the Union of 1^41, oughl to be taken into " consideration by the Arbitrators, with a view to charge the Provinces of ^'Ontario and Quebec respectively with the debt due by each of the Provinces ' ot Upper and Lower Canada at that time— and the remainder of the surplus ' ^^P}}!^ ^^}® ^^^« Province of Canada ought to be eiiually divided between the said Provinces of Ontario and Quebec. u . u '**??■ .?^f^"^6 ^^6 assets specified in Schedule Four, and all other assets to be divided under the authority of the said Act, ought to be divided equally 30 " according to their value. ^ J " oth. And therefore the undersigned presents an award and judgment based • upon his foregoing propositions, and upon the reasons assigned in his printed opinion (marked B) in the terms following, which in his view of the case ought ' to be rendered, namely :— The Arbitrators, under the B.N. A. Act, 1867, having " seen and examined the propositions submitted on the part of the Provinces of " Ontario and Quebec respectively, for the division and adjustmex.r of the debts ' and assets ol Upper Canada and Lower Canada, under the authority of the said ''Act, and having heard Counsel for the said Provinces respectively upim each " ot the said propo.'^itions, after due consideration thereof, are of opinion that the 40 " propositions submitted on behalf of the Province of Ontario do not, nor does ^' either of them, furnish any legal or sufficient rule or just basis for such division ^^ and aajustment ; and they do award and adjudge that the said division and ^^ adjustment ought to bo made according to the rules which govern the i)artition "of the ilebts and property of associations known as universal i)artnerships in u r , r^ ''"'■'', '""^''■'' '""^ '''' '"'^••'^ ^*' '^l*I''y- ^^"*' *''*' Arbitrators having also heard Counsel for the Provinces of Ontario and Que}>ec respectively upon the 18 i : All the Ai bitrators present. Hon. J. H. Gray sub- mitted a communica- tion from the Govern ment of Quebec. Copy of Report of a Committee of the Ex- ecutive Council of Quebec. ^objection made in behalf of th(^ former IVovinceto the jurisdiction and author- 'ity of the Arbitrator.^ to euiiuin' into the state of the" debts or credits of the ' Provinces of Upner and Lower t^anada prior to tht! Union of 1 H41, or to deal in any way with either the debts or credits with which either Province came into the Union at that time, and duly i onsidered the same, are of opinion that the said objection is unfounded, and that they have authority and are bound by the provisions of the said Act to eiKiuire into the state of the debts and credits of the I'rovinces of Upjier and Lower ( 'unada, e.xistinf? at the time of the Union of 1841, and so to deal with tlu?ni as may l)e necessary for a just, lawful and complete division and adjustment of the debts and assets of the said Provinces lo And thereupon it is ordered that the Counsel for the Provinces of Ontario and Quebec do proceed, in accordance with the foregoing judgment, to submit such statements ui support of their respective claims as they may deem expedient. " C. D. Day, " Arbitratur." TWENTIETH MEETING OF ARBITRATORS. The . Vrbitrators met at the CUty of Montreal, in the room of the Court of Appeals, on the fifth day of July, 1870, pursuant to.agreement and notice to all parties. AH tue Arbitrators were present. There appeared on behalf of Quebec 20 the Honourable Mr. Robertson, Treasurer, the Honourable Mr. Chauveau the 1 remier the Honourable Mr. Irvine, Solicitor-General, and Mr. Ritchie ; and on u^ // w'^r'i^^® Honourable J. Sandfield Macdtmald, Premier, the Honour- able Mr. Wood, Treasurer, and the Honourable J. Hillyard Cameron The Honourabia John Hamilton Gray submitted a communication from the Governme-t of Quebec, that had been addressed to each of the Arbitrators separately, which was read, and is as follows :— » " <^<-,o^'-7^^^' ^^'- ^? ^^l^ requirements of the British North America Act of ^^ 1867, respecting the Judgment of the Arbitrators. » " The Honourable the Treasurer of the Province, reports that it is the opinion « A \ }^oo2 "^^^'"^ ^^® ^''"^'^ ^^^^^' whereas the 142nd section of theB N A Act ot 186/ enacts that the division and adjustment of the debts, credits lia- bilities, properties and assets of Upper Canada and Lower Canada shall be ^ relerred to the arbitrament of three arbitrators, it is essential to the validity of any decision to be giveu by such arbitrators, that their judgment should be unanimous y concurred in He, thereft.re, recommends that a despatch be ^ transmitted to His Excellency the Governor-General with the views of this 40 ^^ Government, and requesting that no judgment of the said Arbitrators which is not so unammously concurred in be received. "The Committee concur in the foregoing report, and submit the same for the Lieutenant-Governor s approval. "Felix FoRTitK, " 0. E. C" and author- edits of the or to doal in ^0 canio into ion that the ound })y tho id credits of f the Union lawful and 1 Provinces. !(> 'Ontario and mbmit such 1 expedient. Y, itrator." 16 Court of lotice to all " of Quebec 20 mveau, the lie ; and on le Honour- )n from the Vibitrators i^e Council, 1 the sixth 30 ca Act of he opinion ho B.N. A. redits, Ma- la shall be validity of should be spatcli bo kvs of this 4(t ors which ' same for a E. c" 19 [Copy.] " Province of (Quebec, "Secretary's Olfice, Quebec, «th June. IH7(». "Sir, — T have the honour to transmit for your information copy of an (lider "in Council approved by 1 1 is Excellency the Lieutenant-Gov' '"'"• ^'"'y "'*'"•"'*' ^"'.J"'""' ""til tlio next .1 nujournod. o clock a.m. I'n^Hcn' : All tlu- Arl)itnito:-.s and all tl .) partios as at the lost Charlos lay at ten All tlio ArbitratdrH pri'sont. Diffennice of opinion as to delivery of judj^ment Arbitrators adjourned. All the Arbitrators present. Opinion of Hon. J. H. Gray. TWENTY-THIRD MKKTlNli OK AKIUTHATORS. r.-iv'^i'ir-./^''^"?"'''"'"" TV'^ ^'"' •''"'■'' "'"''"'''■ ''^"^ '"^'^'^'"^' "" t'"' •'*«•'»•' , a. ton oclock a.m., juusnant to adjonnnnent. Prosmit Ml tli,. Arl).trat..rs and all imiti..s a.s at tin. lunt p.v.c.dino meeting, with the exception 01 JYleHHrs. itohertson and livine * The Aibitiatursaniionnced that there wua a difference of opini .n between them iT:ip(.ctniK tlu! delive.-y of any preliminary jndginimt the Vihitrator for Ontario cont-jndinK tl.at the ind-nn-nt shonld I.e .h.liv.Mvd ; the Arl-trator for C^n. hec, .m the other hand, being of opinion that it .should I. reserved i nti the hnal hearn.g „t all argnmei t.s on both .sith-s. wh(m it might he delivered or not, an rendered neces.sury or unneee.s.sary by th<> points rai.sed being otherwise disposed of. or renmnnng to be a.ljn.licated npon. The Arbitrator apno nted S.|!k '"!'';'''' •''"■'''•'"';;'''''''^'' "" ^^Uoumment until next day, t'S TWENTY-KorUTIl MEETING OF AUHITRATORS. Tnlv?^7<^'?t'* ?^"'"' '"';^ 'i ^''" '•'''"^ ''^ ^^""'•' ^'''^ '"•'^'^•"f^' '^» the ninth day of •Tnly, 1S7(», at eleven o clock a.m., pnr.smmt to adjonrnment. AH the Arbitrators were present, and all part.es as at the last preceding meeting '"tratora sx'Srrriti'"""""- "■■ ""•• '"^■"- "■■«"'■■' ^'"^ -"■->: s Opinion of tiik Auiutuatok appointed by the J)ominion Cxovernment " In deciding on the point of difference between mv two coUeainies it is .. " at Ott-Z r?^/" ""V ^r ••-^-".^-^«- 1" the ai^uments ihl!; SoL p " '' at Ott.iwa, in February last, npon the different modes for the adinstment •m.l " lisuosc o/^n the «v ''; ■' T" ''^"'^ "!'••" ^y ^^'^" ^^^"""««l tbr C.tario to "bvX (^' "^'^.^^'^ ;"f^"^^^t^''••U'o^(.l^t,l^e«tion of partnership raised by the Cdmsel lor (Quebec. This was obict-H: to by th h tter and iffer ; considei-ation the Arbitrators on the f.U.umg lay stJ^tanie 1 u; icJ^n l.he argnn-euLs mn: then contin ned for .several day.s l,y the Counsel on Kli " «iil»o ...1,1 ti.« I 1 ■••,.■'" •"''^"" '^"ij'« "J Lne uounsel (m both 4!(^h d.W t ' w'""'" '"?•'' f '^'^''^i"" sngge..ted by Ontario an,l Quebec niembtr.so the government of each o^" those Provinces huiiL' nresent e-ich day ; and the Arbitrators, at the dose of the argument, were u torti v u^^^^^^^^^^^^^^^^ ^^;>y the Coun.sel on b.th sides to en departed from; further adding ' his belief that such announcement would tend to prevent a harmonious con- " elusion. That the Arbitrator for Ontario, on the contrary, contended that at ' the request of both parties, they had come to a decision ; that the decision ' had already been communicatiMl v.nofticially by both Arbitratoi-s to their re- " spective Governments ; that those Governments had a right to its announce- m I III Opinion — Continued. 22 " ment, and that it was the duty of the Arbitrators to make the communication " previously ordered. That all efforts to produce an agroement between his " colleagues had failed, and that it was therefore necessary for h.m to take " twenty -four hours to consider the course he should pursue. " A discussion, as you are aware, arose on this statement, but resulted in " no amicable arrangement, and I have now to decide. " If this was a private matter there would be no difficulty about it. Parties " having agreed to a reference, and having requested a decision, wheth< inter- " locutory or final, must take it unless by consent it is abandoned. "The point now to be considered is, whether in an important publi:: mat- lo " ter, such as this arbitration between Ontario and Quebec, sufficient grounds " exist for a departure from the ordinary mode. " I have exhausted every effort to bring about an agreement on this point " between my two colleagues, and have delayed giving any opinion jntil com- " pelled by the necessity of the arbitration being either abandoned or proceeded " with. A week has elapsed in unavailing eflForts to do so, and I am most re- " luctantly compelled to decide. " I have to observe that the decision of the 28th May last is not final. It " is not Uke an award of the arbitrators on the division and adjustment. It is " only an opinion of the majority of them as to the best mode to proceed in the 2<^ " division. If in working it out it is found to operate unfairly, it is open to be " reviewed and rescinded, and such other mode adopted as may be shown to " lead to a fairer result. It is admitted by the Arbitrator for Quebec that in " proceeding under this mode, the enquiry will necessarily expand itself into the " consideration of much that would be embraced under the view of partnership " advocated by himself ; but it does not admit the existence of a partnership, " or limit the investigation to the rules which would govern a partnership. " No appHcation has been made to have the matter re-heard or re-argued, or " any grounds taken, or alleged, to set aside the decision, or any reason assigned " why it should not be pronounced at this meeting, save that one party does 30 " not wish it, and that its delivery may tend to prevent a harmonious cnnclu- " sion. If both parties would assent to this, there would be an end of the " matter, for clearly every effort should be made to attain that end. " The third Arbitrator undoubtedly has a discretion, but the exercise of " that discretion must be on reasonable grounds. It should not be .he mere "expression of an arbitrary will. One party demands the delivery of the " decision at the meeting as part of the compact on which the arguments were " heard and the discussion took place. The other admits the compact, but ob- "jects to its being carried out. " The power to withhold judgments ready to be pronounced is frequently -to 'exercised by tribunals and judges, when it is manifest the interests of the " parties concerned will be promoted ; but it is generally by consent, and never " against the will of one of the parties, without good cause shown. " The decision in this case was communicated by lioth Ar})itrators to their "respective Governments unofficially, and I cannot see any ol)jection to doing " openly what each one has in that respect undertaken to do in his individual " capacity. " When the judgment is formally pronoimced, it will then be optional with 23 imunicjition >etweon his I m to take resulted in it. Parties ieth< inter- pubii:; mat- 10 nt grounds n this point jntil com- r proceeded m most re- )t final. It (lent. It is •ceed in the 2<^ open to be 3 shown to Dec tiiat in self into the partnership tartnership, 3rship. !-argued, or jn assigned party does 30 ous conclu- end of the exercise of •e .he mere ery ot the nents were let, but ob- frequently -lo ests of the , and never ars to their )n t<» doing individual itional with 10 20 either Government to assign the grounds of objection, and move for a re- Opinion— ' hearing or rescinding. Continued. " No party will go on with a reference or argument if after both parties ' have agreed to the submission, and have been heard — one may render it nuga- ' tory the moment he learns the result. " I have been most desirous to concur with the views expressed by the Arbitrator for (Quebec; but I have sought in vain for some rational ground on which, if compelled to decide, a refusal to announce the decision on the ' 28th of May last could be based. " I cannot find that the decision will inflict any wrong on the party object- ing. It is not conclusive. It is a mere mode of enquiry, and open to correc- tion. The decision made by us is no iron rule, but simply in the light of a guide to be construed liberally. " It is now earnestly to be hoped that, in view of the great interests at stake, the parties will pr')ceed without further delay, and that both will unite in endeavouring to ettbi^L a just distribution by the mode recommended, or failing that, by some other mode. " I agree, therefore, witii Mr. Macpherson. that the decision arrived at on the 28th of May last, should be formally anuounced to the Counsel and Pro- vinces concerned. "J. H. Gkay." After the foregoing expression of opmion, the Honourable Charles Dewey Day stated that he could no longer jict in the arbitration, as he could not agree in the decision arrivinl at on the '28th of May ; and that he had, therefore, that morning placed his resigration in the hands of the Government at Quebec. He thereupon handed to Messrs. Macpherson and Gray a written notice to that effect, and withdrew. Mr. Chauveau then stated that his C wernment had received the Honour- able Charles I)(>wey Day's resignation. 30 On the motion of Mr. (*ameron, the decision of the 28th May was formally read and pronounced. Hie Honourable Charles Dewey Day's dissent thereto was also read. Mr. Ritchie then presented and requested the following memorandum to be filed : — " The undersigned, of Counsel for the I'rovince of Quebec, hereby respect- " fully represents that the Honourable John Hamilton Gray, the Arbitrator "appointed by the Government of Canada, under the provisions of the B. .N. " A. Act, 1867, has become and now is disqualified to act as Arbitrator, inas- " much as the said the Honourable John Hamilton Gray is now, and for a con- 40 " siderable time past has been, a resident of Ontario ; and prays that all pro- "ceedings upon this arbitration be stayed until the Government of C'anada shall "have appointed a duly (jualified Arbitrator in the place and stead of the '' Honourable John Hamilton Gray, so dis(iualified as aforesaid. "T. W. Ritchie, " Of Counsel for Quebec." Hon. C. D. Day rvsigns. His resigna- tionreceived by Quebec. Decision of 28th May read. Dissent also lead. Memoran- dum of Mr. Ritchie is to the disquali- fication of Hon. J. H. Gray, " Montreal, 9th July, 1870. r 11 1 • ' 1 l! I II! Exception by Quebec to deciaion of Hon. J. H. Gray and Hon. D. L. Macpher- 8on. Arbitrators adjourned. p.m, 10 Present : Hon. J. H. Gray and Hon. D. L. Macpher- son. Arbitrators declined to take further proceedings and ad- journed. Arbitrators 24 filed f - ^^""^'^ '"'"'' presented the following memorandum, requesting it to be "dered^bvfhrTiT''^ H'"'?'.' refP^ctfulIy excepts to the decision now ren- " two of tL Arh; T'*"^^' '^*'^", ^^^"»^l^^".<^'-'^y ^^n^l David Lewis Macpherson. " Arbitmtors '' ''' "'''' "^' '' "^""'"^ judgment-not being that of the " Montreal, July 9th, 1870. "'''of^CouSL Quebec." The Arbitrators then adjourned to meet again the same day at four o'clock TWENTY-FIFTH MEETING OF ARBITRATORS. n'o^J^^ Arbitrators met on the same day as the last preceding meeting at four o clock p.m., pursuant to adjoi^rnraent. Present : The Honourable Davll Lewis Macpherson and the Honourable John Hamilton Gray. Messrs Wood a /d Cameron, and the Attorney-General for Ontario, wer/present on bXalf o- Ontario, and Mr. Kitchie appeared on behalf of Quebec tion Tht'ArEP'"T\^"''' P"''''";* ^\^^T^ ''' I^^^^^^^'» ^^'^'^ the investiga- tion 1 he Arbitrators dechned to take further proceedings that dav and de cided to adjourn, to meet again at Montreal, on some future ay H'ea^^^^^^ upon, and to be notified to all parties ^ ^ '■ 20 wrof^^n.^'fiTw'' *'' llth day of July, 1870, the Provincial Secretary of Quebec wrote to the Hon.mrable David Lewis Macpherson an.l tothe lIonourablfT. hn Hamilton Gray the following letter which was sent to each of them 1 ' ' " Secretary's Office, "Quebec, 11th July, 1870. "Your most obedient Servant, " PlERKE J. O. ChaUVEAU, "Secretary. TWENTY-SIXTH MEETING OF AHHITRATORS. It S:;£±. given to all iMieJ Tl e (w itn o,' iZ ,f w, ,;';.',''',!'''''*™'',^,'"..''''"™ ""'^ 30 40 ting it to be n now ren- iacpherson, that of the Quebec. " four o'clock 10 ing, at four avid Lewis Wood and 1 bohalf of ! investiga- ay, and de- • be agreed 20 t)f Quebec rable John y, 1870. lieutenant- iidored his nd section bej)leasod 30 o luive the le subject. .^EAU, cretary. Jitre;i,I, on utice duly vid Lewis able John 40 trators given to Hon. C. D. Day. ■ Arbitrators. 25 Hillyard Cameron, the Tlonourable John Sandfield MacdonaM, and the Honour- able L. B. Wood were present on behalf of Ontario, and the Honourable George Irvme Sohcitor-Gencral, and T. W. Kitchie, Esq., appeared on behalf of (Quebec, u ^^^^^^ ^^* *'^^' Honoiuiible Charles Dewey Dav of the meeting to be held that day was then produced and read ; the same haVing been duly posted, and IS as follows :— .. T^ , ,„ , "Toronto, July 12th, 1870. " xj 11 V?"^^/^-^'^ '^ ^^ "^^^'^^ y'^" **^^^ ^^*^ "^'''^'^ ^^^^^ *^ ^^^^ ^^- Lawrence Notice to Hall Hotel, m Montreal, on Thursday, the Lwenty-hrst instant, at two o'clock attend meet- 10 m the afternoon, to proceed with the arbitration between Ontario and Quebec. i°« "^ ^''^^ under the B. N. A. Act, 18 Hniwmi'sil.l,. m>.iT.l..c I^,>^ir,»w T^.>,'o .,...,..;.,* ^ .j.-. ^i of H DtHvey Day's iy)poiiitnieut, requesting the Quebec, of the Honounible (Iharlos same to be filed. It is a.s follows : " Province of Quebec. " N. F. Bellealf, Iseal! " ViCToitiA, by the (h'ace of God, of the United Kingdom of Great ^^^ \^ ^ " l>ntaiii and Inland, Queen, Defender of the Faith, &c. " To all to whom these presents shall come, oi- whom the same may con- " cern, greeting, " Whereas in and l)y our ceitain Letters Patent, bearing date, at our City of ^' („)uebec, tho liOth day of January, in thc^ :j1st year of our reign, we did noini- " nate, constitute, and ai»poiiit the Honourable Charles Dewoy Day, of the City "of Montreal, in our Province of Quebec, to be, under the provisions af an Act D on. C. D. Day's ap- pointment fis Arbitra- tor for Quebec. HI Be vocation Continued. 20 Protest by Quebec against fur- ther action. Demand by Ontario that proceedings should go on. Judgment on the ques- tion of " unanimi- ty." 26 ' of the Parliament of tlio United Kingdom of Great Britain and Ireland, ' passed in the thirtieth year of our reign/entitled ' An Act for the Union of ' ' Canada, Nova Scotia and New Brunswick, and the government thereof, for ' ' the purposes connected therewith,' the Arbitrator chosen for the Government ' of Quebec for the division and adjustment of the debts, credits, liabilities, ' properties and assets of Upper C-anada and Lower Canada during our royal ' pleasure : And whereas the said Charles Dewey Day has tendered his resig- ' nation of the said office, which lias been accepted by us, and for divers other " good causes us thereunto moving, we have been pleased to determine our " royal will and pleasure in relation to the said letters patent : Now know ye 10 " that we do hereby cancel, revoke and make void the said letters patent, and " do hereby discharge the said Charles Dewey Day from the office of Arbitra- " tor of the Government of Quebec as aforesaid. " In Testimony whereof we have caused these our Letters to be made " Patent, and the Seal of our Province to be hereunto affixed. " Witness, our Right Trusty and Well-Beloved the Honourable Sir Narcisse "Fortunat Belleau, Knight, Lieutenant-Governor of our said Provhice of " Quebec, at our Government House, in our city of Quebec, in our said " Province, this twentieth day of July, one thousand eight hundred and " seventy, and in the thirty-fourth year of our reign. " By command, " P. J. 0. Chauveau, " Secretarp." Thereupon Mr. Irvine rose and protested against further action being taken by the Arbitrators, stating that he considered the Arbitration determined, and that he and Mr. Ritchie would withdraw from all further proceedings. The Attorney-General of ( )ntario and Mr. Cameron stated that they con- sidered the Arbitration in full force, and in no way affected by the resignation of the Honourable Charles Dewey Day, or the revocation of his authority, and that they were ready, and demanded that the proceedings should go on. 30 The Arbitrator chosen by the Dominion thereupon read the Judgment of himself and Mr. Macpherson up()u the question of the necessity of unanimity raised and argued before them on the 6th day of July, 1870, and which is as follows : — , JUDOMENT UPON THE QUESTION OF " UNANIMITY." " At our last meeting a question was raised by the Counsel for Quebec, under " instructions from their Government (a copy of tlu^ Order in Council having been " transmitted to each of the Arbitrators) which would then have been decided but " for the abrupt withdrawal of Judge Day, and our subsequent immediate adjourn- " ment, namely : — 'That it is essential to the validity of any decision to be given " ' by the Arbitrators that their judgment should be unanimously concurred in.' It 40 " remains for me now to express the decision of the Arbitrators on that question, " It is to be regretted that a position of this imi)ortant character should not " have been taken before it was known that there was a division of opinion be- " tween trie Arbitrators; and it may well be assumed that it would hardly have " escaped the attention of so accomplished a jurist as Judge Day, the Arbitrator 27 i Ireland, Union of hereof, for Dvernment liabilities, our royal his resig- vers other (rmine our 7 know ye 10 ^tent, and if Arbitra- I be made ir Narcisse Province of in our said indred and 20 rVEAU, cretarp." jeing taken nined, and s. they eon- 'esignation lority, and • on. 30 idgment of unanimity which is as obec, under laving been lecidcd but te adjourn- to be given iirrediu.' It 40 it (question, should not opinion be- lardly have ! Arbitrator f 10 30 40 of Quebec, had he deemed it tenable, and in such case that he would, under the Judgment circumstances of that decision, undoubtedly have brought it to the notice of his —Continued co-arbitrators. The learned Judge heard the argument, but left with us no expression of his o})inion, save that the Arbitration was one of a public nature. The ' lews, therefore, now delivered are those of the remaining two Arbitra- tors, and consequently of a majority. " In matters of private reference the law is plain, that unless the terms of the submission pi'ovide that a majority may rule, all must agree in the award, or it would not be binding. The impracticabihty in private affairs of working out an arbitration, if unanimity was essential, led to the adoption in almost all cases of submission, of the majority clause, or the alternative provision of an umpire. So essentijil to the successful ccmducting of an arbitration has this become, that in the ordinary form of arbitration bonds, or of rules of reference, one of these clauses is almost always found inserted. Without such clause, in private arbitration, it is admitted unanimity is re(iuisite. The point now is : Does the same rule apply to pubhc references or arbitrations ? to which class, it is conceded, the present enquiry belongs — the 142nd section of the B.N. A. Act, 1867, under which the arbitration is held, containing no such clause. " Mr. Irvine, the Solicitor-General for Quebec, has properly narrowed the question to this point. " Mr. Ritchie, in his argument for Quebec, cited Ciiklwell on Arbitration, p. 202, to prove that undoubted position as to private arbitrations. In the note to that page by the able American editor, who republished the work in the United States, we find the following remark : — " ' There is a wide distinction to be observed between the case of a power • conferred for a public purpose, and an authority of a private nature. In the ' latter case, if the authority is conferred on several persons, it must be jointly ' exercised, while in the former it may be exercised by a majority.' " Further on, at page 204, he says, ' that referees appointed under a statute ' must all meet and hear the parties, but the decision of the majority will be ' bhiding.' The correctness of these views is sustained by the citation of many authorities. " In the case of Green against Millar, Johnson's New York Rep., p. 38, as far back as 1810, it is clearly laid down : — " 'When an authority is confided to several persons for a private purpose, ' all must join in the act ; alite-r in matters of public concern.' Thompson, J.- - ' A controversy between these parties was submitted to five arbitrators. The ' submission did not provide; that a less number than the whole might make an ' award. All the arbitrators met and heard the proofs and allegations of the 'parties, but four only agreed on the award made. And whether the award be ' binding is the (piestion now before the court. No case has been cited by the ' counsel where this question has been directly decided. I am, however, satis- ' fied that as a submission to arbitrators is a delegation of power Jor a mera ' primie purpose, it is necessary that all the arbitrators should concur in the ' award unless it is otherwise provided by the parties. In matters of public ' concern a ditierent rule seems to prevail; there the voice of the nuijority shall 'govern.' In the case of Grindly vs. Barker, 1 Bos. and Pul. 236/ Eyre C. J. ! II' ! ! 28 Jiidgrannt ~—Contiviw(l Arbitriitors adjourned. says -' It is now pretty well ostablisluid that when a luiniber of persons aro ' ontnistod witli jwiwer no of viere prinite ropjidevce, but in some rospocts of 'a j^cneral nature, and all of them an; ri' vs. IJeaton, Ih-d Term Rep. i?.*2. See also Taley on Agency, :Jrd Am. Ed, pages 177 8, Note G. ; and Croker vs. Crane, 21 Wendell 21 1-lS. In ev parte llogers, 7th Vol. 0ages 530 and oS;"), the whole position is ably and thoroughly reviewed; and in a long note citing the Enghsh authorities, as w(>ll as the .\nierican, bearing upon the same point, the distinc- 10 ti(m between public and i)rivate reference and the duties and powers resulting therefrom, are clearly shown, and the power oi the majority to decide clearly established. The English cases u})( )n the p( >hit are not so direct, Imt in the reason- ing of those which have been cited, or can be found, the same principle clearly manifests itself In the Courts of the Ignited States, decisions are constantly found bearing upon circumstances similar to those in our own Dominion. The varied nature of the business of that country, the ditl'erent aspects under which (juestions arise, frimi ; heir position as a cmigi-egation of States, the daily develoi)ment of new conllicts of rightH arising from the expanding nature of their society, raise questions which do not come up in England, but the solution 20 of which, after all, in the absence of any particular local statutory provisions, is governed by the law of Kngland. Under these circumstances our Courts are hi the habit of ttiking these decisions as guides. The.se then determine that in matters of I'ublic Arbitration or Reference, though pro\ision to that effect bi not si)ecitically made, the decision of a majority shall l)e incident to the reference. The i42nd Sec, of the B. N. \. Act, ]^H7, must c iu within this rule. Were it not so intended, the section would be supei-Huous ecaxise any one party in a grt>at (juestiou of pul)lic importanc(^ could prevent .^ dccisicni. "To work out the rea-^oniug of the C-ounsel of Quebec to its legitimate conclusion would })lace absolute power in the hands of the third or Domini(ni 30 Arbitrator. I have supposed that, on points on which Ontario and Quebec were agreed, it was my duty at once to assent, and that under such circum- stances, whether 1 diii'ered or not, was of no conse(|uence ; but as the powers of all the .Vrbitrators nuist be co-etiual, if unanimity is e.ssential, I might, by simply disagvc>eing, pi'event an award, even when both Ontario and (Quebec, the i)arties interested, had agreed upon it. Such a i)osition is untenable. Mr. Alacpherson and myself are, tiierefore, of opinion that the decision of a majority must govern. ■ ' "J. H. Gray. " Montreal, July 21st. 1h70." -to The Arbitrators tluni adjimrncd until the next day at ten o'clock a.m. TWKNTY-SEVKNTFl MEKTINO OF ARBITRATORS. The vVrltitralors met on ilu; twenty second ilay ol duly, I S7(>, at ten o'clock 29 )or.sons art' respects of ujority will The same vs. IJeatoii, ;g:os 177 8, "te llojjfers, tlie whole the EngHsh the (listinc- 10 rs resulting :i(le clearly the reason- iple clearly constantly Dominion, ects under !S; the daily ; nature of :he solution 20 provisions, Courts are irniine that • that effect lent to the within this ecaxise any decisicni. 1 legitimate ^ Dominion 30 md Quebec ich circum- the powers 1 might, by nd (Quebec, liable. Mr. L'ision of a Gray. U a.m. 40 a.m. Present: the Honourable John If tinilton (hay and the Honourable J)avid LeAvis Macphcrson - the Honoiirablc Charles Dewey Day not being pre- sent. Th(^ .Vttorney-Gcneral for Ontario, ami Messrs. Camenm and Wood ap- peared on behalf of Ontario. No one api)eared on btihalf of Quebec. Mr. Cameron stated that he wished an adjournment until two o'clock p. m. The Arbitrators adjourned accordingly ; and at two o\;lock p.m. resumed their sitting, when Mr. (jameron pioceijded, on the part of Ontario, to su1»mit to and discuss befon^ the Arbitrators, t\m resjjective debts of Ontario and Quebec for local purposes, with the view of In-inging the debts in both Provinces within the 10 principle of their decision. After progress made, the Arbitrators adjourned until ten o'ch)ck next tlay. Present Hon. J. H. , at ten o'clock a.m., pursuant to adjournment. I'res- ent : the Honourable David Lewis Macpherson and the Honoui-able John Ham- ilton Gray -the Honourable Charles Dewey Day not being present. Messrs. Cameron and Wood and the Attorney-General for Ontario," appeared on behalf of Ontario. No one api)eared on behalf of (Quebec. 20 The Arbitrators stati^l that, after the adjournment last evening, they were severally served with a Sunmions, or Writ in Prohibition, issued by order of Judge Beaudry out of the Superior C!ourt of the Province of Quebec, which with the papers annexed thereto were read. The Writ api)eared to be issued on affidavits severally made by the Honourable George Irvine, Solicitor-General for Queb(;c, and T. W. Ritchie, Es(i., Counsel for (Quebec; which athdavits and Writ severally bore date the twenty-second day of July, 1H7«). The affidavit, made by the said the Honourable George Irvine, was as follows :— Present Elon. D. L. Macpiierson and Hon. J. H. Gray. Arl)itrators announced service on them of Writ of Pro- hibition. Canada. " Province of (^uebe " District of Montr treal. ) ;iO " In the .Sui-eiuoh Court. tea o'clock 40 "The Honourable (reorge Irvine, of the City of Quebec, Her Majesty's Affidavit of ■ Solicitor-Ginieral for the Province of Quebec, being duly sworn, doth depose Hon. Geo. ' and say :- Irvine. " That on the ninth day of July instant, at the City of Monti-eal, in the .said Province, the llonimrable Charles Dewey Day, the Honourable John Hamilton (rray, and the Honourable David L(!wis Macpherson, Arbitrators, under tlie provisions of the I42iul Section of the liritish North America Act, 1867, held a sitting, and that then and tluH-e the .said the Honourable Charles ■ Dewey Day, who was the Arbitrator chosim by the I'rovince of Quebec, did, as this deponent is credibly informed and believes, notify the said other Arbi- trators that he had "esigned his (»f}ice of Arl)iti-iitor, and shouhl lu* longer act ilf ;:i i ! Affidavit— Cmdinwd. 30 " upon the said Arbitiafon, and thereupon lie withdrew from thd said sitting " of th(i said Arbitrators. " That afterwards, ui)(»n the said day, the said the HonourabU) John llam- "ilton Gray and the Honourable David J.ewis Maci)herson, as this deponent is " credibly informed, adjourned to a future day to be named, and thereafter " notified the Crovernment of (Quebec that they would meet and proceed with " the said Arbitration at the St. LaAvrence Hall in Montreal aforesaid, on the " twenty-first day of July instant. " That the resignation of the said the Honourable Charles Dewey Day was " duly accepted, and his commission and appointment as such Arbitrator was, 10 ' on the twentieth day of July instant, revoked and annulled by the Govern- " ment of Quebec. " That on the said twenty-first day of July instant, the said Honourable " John Hamilton Gray and the Honourable David Lewis Macpherson met at " Montreal aforesaid, and assumed to proceed with the said Arbitration, and " although they were then and there duly notified that the saiil the Honourable " ('harles Dewey Day had resigned his office as Arbitrator, and that his resignation " had been accepted, and his commission and appointment as such Arbitrator had " been revoked and annulled by the said Government of Quebec, they the said "the Honourable John Hamilton Gray and the Honourable David Lewis Mac- 20 " pherson did sit as Arbitrators upon the said Arbitration, and did proceed with " the same, and did then and there, notwithstanding the said Province of Quebec " protested against any further proceedings being had, render a certain Judgment " or decision as Arbitrators, and did declare their intention to go on with the " said Arbitration, and did for that purpose adjourn and continue their said sitting " until the twenty-second day of July instant, at ten o'clock in the forenoon, at " Montreal aforesaid ; and further deponent; saith not, and hath signed. " Sworn and acknowledged at Montreal, \ " twenty-second day of July, before us, > "G. Ikvine." " L. J. A. Pai'Ineau and J. 3. Honsy, P. S. C." ) 30 Appended to the writ was the petition of the Honourable Gedeon Ouimet, miey-General for Quebec, to the Chief Justice and Justices of the Superior Writ. AflRdayit of The affidavit made by T. W, Ritchie, Counsel for Quebec, was in substance Mr. Ritchie ^i^, gj^j^g ^^ ^v^^<^ „f tjjg Honourable George Irvine. same as Mr. Irvine's. Petition an- Attomey- nexed to Court, setting forth the facts stated in the foregoing affidavits, and praying for a Writ of Prohibition against the Honourable John Hamilton Gray and the Honourable David Lewis Macpherson to restrain them from further proceeding upon the said Arbitration. The Writ of Prohibition commanded the said two Arbitrators to refrain from further proceeding in the said Arbitration, and re- quired them to show cause wliy they should not so lefrain, on Thursday, the 40 first day of Septeml)er then next. The Arbitrators, after reading the foregoing papers, adjournehn llam- L^ponent is theroafter »co('(l with id, on the f Day was rator was, 10 le Govorn- onourable on met at ation, and on()ural)le esignation tratdr had sy the said owis Mac- oceed with < )f Quebec Jud^'ment n with the jaid sitting irenoon, at Bd. 20 [kvine." 30 substance )n Ouimet, e Supericir )raying for ly and the proceeding e said two on, and vi\- irsday, the 40 ntil Thurs- in the City ration, and ■ should be !, Esq., the 10 Note.— On the 7th Noveuibor, 1871, the Writ of I*rohibition was quashed J[^Jj°^P™' by Mr. Justice Boaudry. qliMhS. The following is the Judgment :■ — Puovi vcE OF Quebec. ) DlSTKICr OF MoNTKEAI-. ) Superior Court for Lower Canada. The seventh day of November one thousand eight hundred and seventy-one. In Chambers. Coram— 1\\e Honourable Mr. Justice Beaudry. The Honourable Gedeon Ouimet, Attorney-General of our Lady the No. 1801. Queen for the Province of Quebec (heretofore Lower Canada), who prosecutes for our said Sovereign Lady the Queen Petitioner. and The Honourable John Hamilton Gray, now of the City of Ottawa in Ontario, Esquire, and the Honourable David Lewis Macpherson, of the City of Toronto in Ontario aforesaid, Esquire Defendants. The Honourable Gdddou Ouimet, Attorney-General for Lower Canada, on behalf of Her Majesty, and the Defendants, by their Counsel, having been heard before me, one of the Judges of the Superior Court for Lower Canada, on the exception declinatoire fyled by the said Defendants to the Writ of Prohibition 20 issued in this cause. After examination of the proceedings and proof of record, and mature deliberation being had ; considering that the said Defendants are not by their commission respectively invested with the powers and jurisdiction of a court, nor could they, under the Imperial Statute intituled. The British North America Act of 1867, be considered as forming a Court, and having the powers and jurisdiction of a Court ; and considering that under Article i()31 of the Code of Civil Procedure of Lower Canada, writ of Prohibition can only be addressed to Courts exceeding their jurisdiction : and considering, therefore, that the writ of Prohibition issued m this cause has issued im- providently, I do hereby maintain the said exception declinatoire, and do 30 (luash the said writ and proceedings had thereon, and do relieve the said Defendants from further answering the Petition of the said Attorney General. (Signed) (True Copy.) Hubert, Honey & Gendron, P. S. C. This Judgment was 8ubse(iuently affirmed on appeal. J. CJ. Beaudry. I 82 Pruseiit ; Hon. J. H. Gray and Hon. D. L. MacpluT- 8on. Hon. C. I), bay being absent. Notice to Arbitrator and Counsel for Quebec to meet in Toronto. TWENTY-NINTH MKETlNr. OF .\RHITRATORS Tho Arbitrators mot at Osj;(Mtd«! Hall, in tlio City of Tontiito, on the tbtuth day of Auj,nKst, IH7(>, pursuant to adjournniont. rrt'scnt Tho Arhitratc»r.s, tho Honourable John HiiniiUou (iray and tho lloumu-abh' J)avibec. Mr. (Cameron [>r(Miuoo(l a notiri' which ho stated he had personally posted to the Honourable Charles Dewey ]^ay, to the Flouonrable (ieorgt) Irvine, S(»li- citor-(reneral for (Quebec, and to T. W. Ritchie, Es(|., Counsel for Quebec, which notice is as follows : — " In the matter of the Arbitration " Between the Provinces of (Quebec and Ontario. " The undersigned Arbitrators in the above mattei", have adjourned until "Thursday, the fourth day of August, 1S70. the'u to meet at Osgoodo Hall, " Toronto, at twelve o'clock noon, to proceed with the Arbitration. "Montreal, twenty-third day of July, 1H70. " D. L. Maoi'Hkuson, "J. H. Oka-." 10 Service of Qiu) War- ruiitu upon- Hon. J. H. Gray. Allegations in support of Writ. Order for isBueof writ. Endorsed on the back were these words, " Maih^l from Toronto o'> tho twenty-eighth day of July, 187o. J. 11. C. " '^^ The Honourable John Hamilton (iray re{»orted that after the adjournment at Montreal, on the twenty-third day of July last past, just before leaving Mon- treal by the evening train, he was served by a liaihlVor Sheriff's Otlicer, with a Writ of Quo Warrant'), to show cause by what authority he (exercised the oftice of an Arbitrator — he having (it was .said) b.ecom'i a resident of Ontario. The Petition and attidavits i!i su[)port tlu reof alleged inter Gedeon Ouimot, foregoing, and attidavits, thereto annexed, in snp])ort thereof, it is ordercMl that a writ of Sunmicns Quo Warranto do issue as prayed, to sununou the said John Hamil- \o Jiiriiidiction of HiijH'rior Criurt»,Que- h«c, over Arbitrate ni argued. Arbitrators adjourned. Qiw War- ra7i(« quash- ed by Mr. Juatice Tfeaudry. 33 ton (iray in sjiid Petition nanu«l, to appoar before one of the Jim1j,'os of the Suporinr Court to answer in the promiges, at the C'ourt HoiiHe. in tlie ('ity of Montreal afore.s.ii(l, on the First : Whereas by the British North America Act (1867) Section 142 it is decreed that " the division aud adjustment of the debts " credits liabilities properties and assets of Upper and Lower C'anada, shall " be referred to the arl)itrament of three Arbitrators, one chosen by the " Goverument of Ontario, one by the Government of Quebec, and one by the " (Tovernment of Canada, and whereas it is further decreed in and by the " same section of the said Act that the Arbitrator chosen by the Government " of Canada shall not be a resident either in Ontario or in Quebec." E Judgment. Continued. WiiKKKAH tUo I)cf(«ii(laiit in tliix uiu> St) wius appointed an Arbitrator 1 !)ovi' cited Alt hy the Govcrnnu^nt of pnrHimnt to tlic said .section of the «l fwenutll'inr I.';:;'""''^:^'';" ""'.''''" '•"■/''•••'" •^•''" -' '"<• f><»»ninion. .Iatc Hve hi 1. h^ '"" Pla"0<>l buHn,e.s.s in the said Province of New Hrun.swick and eubli£l^.':\"'"*'r""*^^ "'^'''^^-' '"""'-• '^"<' seventy, he d wtll!. -1 ''"»>'^''li' an.l r,..Huh.n,e at Ottawa, in the Province of Ontario 10 wt;;:?''' "' '^'"' 't '^"'' ■^"'^■" ^''^^ "'•^♦'^"^'••» -f ^•--^i<' ••.. t .. . ' 8ince hp 1^ \ n'^rT. •'""" '•' "<> ''vidence tha( the .said Defendant has 8inteheha.s e,stabh.shed h..s residence and donucile at Ottawa as a resS' exercsod or atten.pte.l to exerei.se the fnn.tinn.s of .Vrbitrator ft.'r lu- , ur , s^ VVk. :!±;,;;!: ;J;s,^'r';!:i.";"':':'','':""™'"» ":'■ •';''--"-" "...> -«„„ 01 the Jlonourablc. (JtSleon Oniniet, and mtormation and demand. do r(>Hev." the Defendant of the .said (Signed) J. U. This Judgment was sub.se(iuentl\ alhrned on appeal. Bkai'duv, ./. a s. Judgment affirmed on Appeal, oitrdy'^^'''' 'T'lr"''' '" ^^ I^^'^oi KAiM,E John Hamilton (Juav's .stxtkment ok Xgefdis- ^' ''' '"' ^''''"^''^ D,.S<,rAL,PICAT,ON TO ACT AS AN AkH.TUAtI.K " I have been all my life a r.-sident of the Provin.v of N.-vv linn.swiel- .... i TIMS qualificar tion. i " I was summoned hy Sir Jolm A Miedon.U t i "^ "''.><>' 1^«>N when 10 30 40 20 35 " IlndiTstantiiii^' tho work of the iirlutnitiim would coriHumi^ somo two or Mr. Gia>*« "thmc yf'H.H, I iiii.so(| n\y house iiiid pifiiiiscs in St. John for a tenn ofyoai-H ; '♦•atoraem— "and in the nio' th of S.'ptcnil.cr, 1m«{h, I npaiivd to Ottawa, takinj,' along with '•'"•''''^'• " nu) my wife and liiildron. I went to Ottawa t-xpiL'N.dy to discharKe my diitioH "as Arbitrator, hut with no intention whittcvor of bet'oming a resident either iu " C^mibec or Ontiirio. " K(>}j;ardin;4' my stay in Ottawa only as temporary, I took 'odj^inf^s for "myself and family in tho Ruwsell Hotel, wht^e I ((tntimied for nearly two " years. l(» " When I arrived in Ottawa in Septembjir, IM«W I found the preparatory "accounts, e.speeially those relalinjj; to the debt of the latc^ Province of ('ai»ada, "were not ready, and ie all probabdity would not be completed for some " time. " In the mean time \ was re(|UOHted by the head of the (lovernmeut at " Ottawa, to prepare a ri'port on the assnnilation nf the laws of ( )ntario, Nova " Scotia and New Ihunswiik, a work which [.performed. " Before thi^ .Vrbitratois commenced their rej,'ular sittiufjs. I also spent a "l^'ooddeal of time in investi<,'atin^ tlu^ tlnaucial le<,'islation, and the complicated "accounts, of the latt^ Province* of (Canada, and tho rehitivi^ bearing of these -0 " accounts to tln^ Provinces of ( )ntaii»» and (^hiebec ; th(»se accounts running over " a period of nearly twenty seven y(!ars - tlial is, from tlu^ Union in 1841, to Con- " fcHJeration in lSt»7. "The first regular moet'ng of tho Arbitrators took place on the wist of "August, 1H69, at the CMty of Ottawa, when the joint actual work of the arb' " tration n^ally coujineiiced. " During all this time, I was, as I havoalrcwiy remarked, lodging and board- " ing at a hotel, and lefused excellent otters of ready furnisluid dwelling-housos, "regarding my stay in Ottawa only as temporary, and terminable with the con- " elusion of the arbitrati(»n. 30 "The City of Ottawa is situate on the river Ottawa, and separated from " Quebec only by that liver. I slionld tlunk nearly one-half the population is " what is called ' Lower Canada French.' "Towards the close of the year !«(}{>, seeing that the arbitration was likely " to take more time than I had anticipated, and my family ))eing tirod of hotel "life, I took a house, but it was purely accidental that I selected (nie in Ontario "instead of in (Quebec ; that is, on the South side, instead of tho North side, of "the river Ottiiwa. In the first instance, I had chosen one in Quebec, but the " inconvenience at times in I'rossing tho river, finally determined the choice of a " hou.se on the south side of the river. 40 " At tho time of my apponitment, as I have already stated, I was a resident "of St. John. I came to Ottawa, the ( 'apital of the Dominion, to discharge "otticial duties, temporary in their nature, with no intention or purpose of " becoming a resident in either (Quebec or Ontario. I was obliged to bo some- " where, and it was manifestly for thi^ conveiui^nce of th(^ [mblic and of all " j)arti(\s coiK^erned as well as of my.solf, that I should be at the Capital of the " Dominion, lying on the confines of tho two Provinces int(u-osted in the arbitra- m. I 36 Mr. Gray'8 " sUtemeut — « CarUimied. u tion, and ^yhe^e tlio public sontiment was as much • Lower Canadian' as 'U[)por Canadian,' and where access could be had to all necessary papers and docu- ments, rather than in Montreal or in Toronto " If the mere matter of temporary residence during the arbitr tion is to be excepted to, it would seem that it would be imi»ossible that the arbitration can be carried on except at some place out of both Ontario and Quebec. " I am still occupying the house i i Ottawa I took in the latter part of the year 1869, but my sojourn there is only temporary. "I have become a lesident neither in Quebec nor in Ontario. My real domicile or residence, according to my view, is now, as it was when I was chosen lo Arbitrator, m the City of St. John, in the Province of JSew Biunswick. 1 have not ac(,uired nor do I own any property either in Ontario or in Quebec, except some household furniture of small value. "I close this memorandum by remarking that "t is somewhat singular, that ^{uebec should have attended twenty-three meetings of the Arbitrators with- out t iscovermg the fact that 1. have become a resident in Ontario, and that that tact should only be discovered now that I diflFer in opinion from the ilonourable Charles Dewey Day, the Arbitrator chosen by Quebec. 1 think I must disregard the exception taken to my residence by (Juebec and go on and complete the arbitration. ^ ^eii«i)et, ^^^ " Dated, 4th August, 1870." " (Signed) J. H. GuAV. 10 20 Present : Hon. J. H. Gray and Hon. D. L. Macpher- son. Hon. C. D. Day being absent. THIRTIETH MEETING OF ARBITRATORS. 2^y^f1^'![l.!!!:^^'].'^' fifth day of August, 1870. Present: Opinion of the Honour- able David Lewis Mao- pherson. TJ^l Huuourable Charles IJewey Day not being present. Messrs Came ro i ami Wo<"i aPl^-ed o„ behalf „f Ontario; „„ t£, appe-oring^ bS of The Arbitrators stated that thev were readv tn fh^iv^,. ti,^; ■ ■ Opinion of the Honourable David Lewis Mauphkhson. -hj; jt ^f^f^i^r jeXn'iirziss^^ Iho I rovince of Quebec is not represented before then. ••a„dt?:,mt?rr° ™"^ ""°»'"- '- P-eeTwith tl. „vi.,enee they n,et at Montreal, on the twent'y-hrst .H^tft. 'iTy t iS'TSt™ " 30 40 20 20 37 "the Premier and Secretary, the Honourable Mr. Chanveau, in which he fur-^P™ «^ - ther preferred tlie extiaordinary request that the remaining Arbitrators ' will ^^L dS" ^^ ^ be pleased to stay further proceedings imtil such time as they i.ceive notice Lema Mac- as to then- mtentions from the Government of this Province,'— the Province pherson.— " of Quebec. Continued. "A request to stay proceedings until the Government of Quebec shouhl " iletermme whether they would appoint another Arbitrator, was shortly after- " wards made by the Counsel for that Province, and was, upon consideration, " refused by the Arbitrators ; whereupon the Counsel for Quebec declared that 10 " the Provmce would no longer be a party to the Arbitration, and withdrew. "further, each of the two Arbitrators now present was, since the retire- " ment of the Arbitrator for Quebec, served, while in the City of Montreal, " with a writ issued from the Superior Court of the Province of Quebec, the • " purport of which is to prohibit them from the further exercise of their func- " tions, until a new Arbitrator should be named for that Province, or to show " cause to the contrary on the first September next. " The Arbitrators noticed that neither the letter of Mr. Chauveau, nor the " application of the Counsel for Quebec, named any time within which it was " expected such new appointment would be made. " The retirement of the Quebec Arbitrator took place on the 9th of July, " Mr. Chauveau s letter is dated on the 19th, and on the 22nd the writ was ob- " tained and served. But up to this moment the Arbritrators are not informed " that any new Arbitrator is appointetl, nor in fact that it is the intention of the " Government of Quebec to make a new appointment. " If the Government of Quebec has power under the statute to appoint " another Arbitrator, and if it is their intention to do so, they have had more " than reasonable time for the purpose, since their acceptance of the lionour- " able Chndes Dewey Day's resignation. It was the indefinite character of the " delay asked for, which induced the Arbitrators to refuse it. The writ which " was issued and served almost immediately after that refusal is e(iually indefi- " nite, and might tend to create the impression that delay in completing the " award, and not to obtain a reasonable time to appoint another Arbitrator, was " the object really desired, " It appears to me, who am unskilled in legal technicalities, taking an " ecpiitable, common-sense view of the question, to be beyond reasonable doubt " that ik: provincial tril)nnal has, or can claim, any jurisdiction to examine into " or decide any (juestion referred to arbitration by the 142nd Section of the " British North Ameriiia Act, 1867, and it may be confidently asserted that the " Imperial Parliament intended the award to be absolutely final. But other 40 " and not unimportant legal (luestions (even if not really difficult) present them- " selves which, if insistt^d on, must be determined by some competent tribunal. " Can one of the Arbitrators, who has umlertaken and entered upon the "duties assigned by the Statute, and who is under no mental or physical dis- " al)ility, retire Iroin, or abandon, these duties before their completion ? This "question is not one on which the other .Vrbitratorscan be expected to express " an opinion. " It is, however, connected with the, perhaps, more strictly legal imiuiry : 30 38 14^0. L. ]' -^*^,^'? '^'^^^ ^^!^ *^f the Imperial rarliauient aulhoiize the witlhhawal of an Macpherson '' Arbitrator with or without the concurrence of tlie party wlio appointed liim? -Continued. '' and does it provide for tlie substitution of anotlier in his place ? Ao-ain, are 'I the Arbitrators, who (though respectively appointed by the (lovernmelits of " the Dominion and of the two Provinces) derive all their power and authority Mrom the Imperial Statute, am nable to any provincial or local tribunal in " matters falling strictly within the scojje of their powers and duties ? "The Statute itself does not in terms confer any jiuthority whatever, with "regard to the reference, (m any tribunal but the Arbitrators, ('an 'there !! then by implication arise a power to delay, which might be so exeicised as to l« ^^ defeat the object of the enactment ? The parties interested are the Provinces " of Ortario and Quebec. Can either of tliem, as a matter of legal or moral ,] justice, call upon one of its own Courts to interrupt or control the proceediin^s ot a jurisdiction created for the sole purpose of deciding rights and interes'ts as between the two Provinces ? ^^ " If so, the authority must belong e(iua!ly to the Courts of either l"'rovince and what would be the effect of a not impossible conflict between them in their directions to the Arbitrators or otherwise ? ^' These and perhaps othur (piestions, are (jpencd by the events above stated u .^. . I ^ , ^"^^^ seriously and dispassionate! considered, and not the less o,) that their determination may involve personar responsibilities to an extent ^ which could not be, and was not, anticipated when the Arbitrators accepted tlieir appointment. I feel, however, that the first duty ,>f the Arbitrators is "l^'h^rtr''"''''?'''^' that they are not responsible for the embarrassment which the present state of thmgs has give - rise to, and which adds greatly to their responsibility whde it increases, if j.ossible, their anxietv to do right .. ,, . ^y f^l'^y P«rtorming what they believe to be their duty," if they do anv- " ™ r n -T'V'^ T''^''^^ '^'''' best judgment) thatf mav be looked '' CilftSp t\« '"terestsof Quebec in the voluntary absence of Counsel for that Province, the just resj.onsibility cannot be charged upon them. 30 If m proceeding, they act illegally, their award will not be binding, and " ance ofTnTb^-; ^''f^'f^ ]\' l>'"^'"^g- ^he lossof the judgment and assist " .ncA 1 1 f^^"^^^^^""- ^"'- the I'rovmce of Quebec, however much the remaiii- valuable aid of the Arbitrator who has resigned, is not their fault The with- drawal was his act. and it has been deliberately adopted by his (iovernmen Who have taken legal steps in one .f their own Courts by thesis niev' General, to stop further proceedings They have thus placed e Ar iSors in the invidious position of either retracting their refusd to granUn leh e "As a public functionary in tlu! matter, as well as in my Drivate c-u.acitv 1 desire to evince in every proper way my profound .^-siu. for ti ?C S whose process has been serve.l on the Arbitrat,.rs. Hut it ai.i.ears t me h^ v cannot, without a virtual abdication of their functions as £1^0^^^^^^^^^ as a justihcation for a departure from their previously dec a ^ t^'i iio'i £ preliminary order of j.rohibition (which I venVure to think will no rtinally m 10 20 confivmed) of a tribunal of that Trovince whose Arbitrator's course has uiine-Oj nionof cessanly brouglit about this ooniph'cation. I am of opinion that the Arbitra- H<»i. D. L. tors will best dischar<,'e the trust reposed in them by proceeding with the ^"'^pV""" reference and makinn, without unnecessary delay, an award which shall divide ^'"- '""*"• and adjust the debts, credits, liabilities, assets and properties of Upper and Lower Canada. " As already pointed out, if they have under ihe circumstances no power to make an award, the attempt to make one will create no prejudice to either party, " If they have the power, the duty arising under the Statute from an acceptance of their appointment imperatively requires them not by ray act of theirs to suffer the time occupied and tiie cost occasioned by the proceedings so far taken to be utterly wasted, or to unnecessarily postpone the rendering of a final award. " The Government of the Province of Quebec, and the Arbitrator appointed by them have had due notice that the present meeting would be held for the purpose of proceeding with business, and that it would be competent for the Arbitrators, therefore, to proceed, in accordance with well established rides. " In order, however, to remove any possibility of misapprehension or doubt, I think it better, under the peculiar circumstances, that notice should now be given to the Province of Quebec and to the Honourable Charles Dewey Day, of the intention of the Arbitrators to proceed in accordance with the opinions just expressed, and that the Arbitrators should adjourn until Wednesday, the 17th instant, giving notice to all parties to the rc-^erence that on that day they will proceed, should the Government of Quebec not think proper to be repre- sented or to assign any new or sufficient reason for their absence. 30 "Toronto, August nth, 1870." " D. L. Macphekson, " Arhitrator. 40 Ol'INION OF THE HONOURAHLE JoHN HAMILTON GuAY. "My colleague, the Arbitrator for Ontario, having expressed a desire to Opinion of adjourn for a week or ten days, in order to afford time for a notification to theHonour- the Government of Quebec that the Arbitrators would certainly proceed in ?!*''' '.y''^" the absence of .\rl)itnit r or Counsel on their part, unless at the next meeting q^' they are represented - I shall most certainly concur. I think we should exhaust every reasonable effort to induce co-operati»)n in this matter : but in order to i)revent the delay, which is now granted, being in any way attributed to a doubt as to the power or intention of tlie Arbitrators to proceed, it is as well to ex})lain with distinelni'ss the \ lews of the Arbitrators on the authoi-ity or the power of the Courts of any of the Provinci^s to prohibit or restrain their proceedings. With the highest respect for the t^ourts of Quebec, on any 40 Opinion of Hon. J. H. Gray — Cm- iinued. I 10 ^^ matter coming within their Jurisdiction, it is plain this Arbitration does not *^ It derives its authority from an Iinpe ial Acf. 'Y\\e (ioveniment and Province ^^ of Quebec, of which those Courts form a constituent part, is simply a party to " the Arbitration ; another Province, whose Courts and (Jovernment are entirely ^1 mdepeudent of and beyond the jurisdiction of the Courts of Quebec, is the other party ; while the Dominion Government simply appoints the third ^* Arbitrator by the authority of the Imperial Act. These constitute the tri- " bunal. How is it possil .le that a sul>ordinate part of one of the two Provinces " — b(!cause the Courts are only parts of the whole nxachine of (iovernment— " e;in control the action of another Province and Government, and of the Arbi l^rator ap|)ointed by a thiid Government, in a matter of submission, to which the Irovmce (whose Ct upon the point. The highest authorities, both in Chancery and tlommon Law, have decided that even where proceedings in arbitration were carried on within the 30 locahtyover ^v Inch the Com-ts hail j and in which their i)roce.s-s had full force, yet the Courts wou d exercise no jurisdiction to restrain an Arbi- trator from making^ Jus award, unless there was something in the conduct of M./,«r^e.. to M.r.^m/c. which rendered such interference necessary. The principle being as laid down by Kerr on Injunctions, page 142, that 'there is esS":n^A:i'fl''V''^'^' ^'*'""V"^ '^'' "^^"^'^ ^'^ ^'-'^ of prohibition t restiam an Arbitrator from pr ceding to make an award.' Mr. Camenni cited a great ma..yc..ses 111 which this p..sition is illustrated and sustained among others the King v. Bardell an.l others, T, A. & E., pa-e 61 <) • U^Zoxm "DeGex M #iV' d«r' ^/'^r^ ^ '^^T'^'i'^'" %• ^«- ' ^he Ulster liy. Co., 8 DeGex McN. & G 480 In Pope r. Lord Duncannon, where the plaintiffs hul 7r^f'^'^"^ 'T^T'^ !'^ '^''' f •'^•itrator and notihed the defenda^it d t e Arbitrator had refuse, to act, but the ether Arbitrators had notwi s an in" proceeded and made their award, the Court refused to restrain he ddeii laM from acting upon the award-the Vice-CI.ancellor saying : 'Anntlisc se -there IS nothing whatever to show that the power which theplaiS lad tt li « « <( <■ (( 10" <( (< « << << 20" It 30 40" « 41 ' given to the Arbitrator was revoked upon any just or reasonable grounds, I Opinion of . am Dpund to conclude the revocation was a wanton and capricious exercise Hon. J. F. of authority upon their parts, and consequently the motion must be refused.' ^77^""" The resignation of the Honourable Charles Dewey Day and the revocation of nis authority by the Quebec Government was no act of Ontario or of the Arbi- ti-ator appointed by the Dominion, and it is therefore difficult to see why the Province of Ontario should be perjudiced by that act, or why the Arbitrator appointed by the Government of Ontario, or the Arbitrator appointed by the Dominion Government, should not proceed to discharge their duty. In the case of the King V. Bardell (5 Adolphus & Ellis, 619), during the argument, Judge mteson says : ' Is there any instance in which the Court has interfered to pre- vent an Arbitrator making an award after revocation ? The award may be a 'nullity when made, but that is a different point.' Piatt replies, ' Search has been made for precedents, but none have been found.' Blackstone's Com- mentaries, vol. 3, edition of 1862, page 117, says : ' A prohibition is a writ ^ issuing properly only out of the Court of Queen's Bench, being a prerogative . one : but for the furtherance of justice it may also now be had in some cases out ot the Court of Chancery, Common Pleas, or Exchequer, directed to the judge and parties of a suit in any inferior court, commanding them to cease trom the prosecution thereof, upon a suggestion that either the cause origi- nally or some collateral matter arising therein, does not belong to that juris- diction, but to the cognizance of some other court' If old Blackstone is still law,— and the Imperial Act, British North America Act, 1867, is still in torce— no other Court but the Arbitrators' Court can have cognizance of the Arbitration. But apart from these authorities, on broad constitutional grounds, the right ot the Courts of Quebec to interfere with the proceedings of a tri- bunal created under authority of an Imperial Statute, acting on a subject matter exclusively withm its own Jurisdiction and for which it was created is denied. It is greatly to be regretted that there was no counsel— as in the case of the unanimity question— to argue the other side ; but as has been remarked by my colleague, that is not our fault. If these legal questions are to be raised on every occasion, it was manifestly of the highest importance that the Honourable Charles Dewey Day should have remained at his post He did not resign— so far as we know— because he differed with his colleagues m concluding that the decisions of the Arbitrators need not be unanimous. He assigned no such reason for his resignation, and on that question gave no decision, and, so far as his colleagues know, expressed no opinion ; although he was present at the argument, and subsequently looked into the authorities with his colleagues. His resignation, as stated at the time, was on other gi-ounds ; but whether they have his able assistance or not, the remainin*' Arbitrators must proceed with the work, and decide on all questions as they arise according to the best of their Judgment. "J. H. Gray. "Toronto, August 6th, 1870." t 42 Order of The following Order was then made : " That the Arbitrators do adjourn Arbitratora. "until i\^q jj^h instant, then to meet at Osgoode Hall, at two p.m., and proceed Adjourn- " peremptorily with the Arbitration ; and that notice thereof be served on the ment. " Government and Council of Quebec, and on the Honourable Charles Dewey "Day." THIRTY-FIRST MEETING OF ARBITRATORS. The Arbitrators met on the seventeenth day of August, 1870, at Osgoode Hall, in the city of Toronto, at tv •..'vi.'ik p.m., pursuant to adjournment. Present : The Honourable John Ii '' Gray and the Honourable David Lewis Macpherson, — The Honourable j. arles Dewey Day not being present, lo Messrs. Cameron and Wood appeared on behalf of Ontario ; no one appearing on behalf of Quebec. Mr. Cameron produced a notice duly endorsed by himself as having posted copies thereof to the Honourable Charbs Dewey Day, the Honourable Mr. Chauveau, Provincial Secretary for Quebec, and T. W. Richie, Esq., Counsel for Quebec, and stated that no answer had been received by him from any of the parties to whom he had so sent copies ; said notice being in the words and figures following : — " In the matter of the Arbitration " Between the Provinces of Ontario and Quebec. 20 " The undersigned Arbitrators have adjourned the proceedings of the Arbi- " tration to Wednesday, the seventeenth day of August instant, at two o'clock " p.m., at Osgoode Hall, Toronto ; and the Governments of the Provinces of Que- " bee and Ontario are notified that notwithstanding the Writ of Prohibition " served upon the Arbitrators, the undersigned will proceed with the considera- " tion of the matter of the Arbitration on the day and at the place above named, " peremptorily. "D. L. Macpherson, "J. H. Gray, " Arbitrators. 30 "Toronto, 5th August, 1870." t^S^Z^r ^*^®^ discussion and progress made, the Arbitrators adjourned until next nujoumea. ^j^y ^^ twelve o'clock noon, to meet at the same place. Present : Hon. J. H. Gray and Hon. D. L. Macpher- son. Hon. C. D. Day being ab- sent. Notice of meeting of Arbitrators to Hon. C. D. Day and Govern- ments of Quebec and Ontario served. 30 THIRTY-SECOND MEETING OF ARBITRATORS. Present ; The Arbitrators met on the eighteenth day of August. Present : The same Gra "^nd^ Arbitrators and parties as at the last preceding meeting. Ho? D. L. . ^^^^ Arbitrators stated that they had that morning received a communica- Macpher- ' ^ion from the Under Secretary of State at Ottawa, enclosing a copy of a despatch sou. Hon. from the Lieutenant-Governor of Quebec to the Governor-General on the subject 20 30 C. D, Day beingabsent Statement of Arbitra- tors. Letter from the Under Secretary of State for the Do- minion to Hon. J. H. Gray. 43 of the proceedings of the Arbitrators, which documents were ordered to be read and entered upon the Minutes of the Proceedings, and are as follows : — " Department of the Secretary of State of Canada. "Ottawa, 16th August, 1870. " Sir, — I have the honom- by conunand of the Governor-General to trans- " mit to you herewith copy of a protest received by His Excellency from the " Lieutenant-Governor of the Province of Quebec against the course which you " and the Honourable David Lewis Macpherson have notified the Governor of " that Province that you proposed taking in the matter of the Arbitration 10 " between the Provinces of Ontario uud Quebec. " I have the honour to be, Sir, " Your most obedient servant, " E. Parent, " Under Secretary, " The Honourable J. H. Gray." A similar letter mutatis mutandis was addressed to and received by the Similor let- Honourable David Lewis Macpherson. ter to Hon, ^ D. L. Mac The protest by the Lieutenant-Governor referred to is as follows : — pherson. (TranHlatimi.) 20 " Government House, " Quebec, 8th August, 1870. " Sir, — I have the honour to transmit, for the information of His Excellency Protest by " the Governor-General, copy of a document signed by the Honourable Messrs. tlie Lieut.- " Gray and Macpherson, which has been received by the Secretary of this q°^^°'' **' " Province. " I deem it my duty at the same time to call the attention of His Excel- " lency the Governor-General and of the Federal Government to the unjust and " illegal course jointly adopted by the Arbitrator appointed by the Federal " Government and the Arbitrator for the Province of Ontario, and respectfully 30 " to request, on behalf of the Government of this Province, the intervention of " the Federal Government. " I have the honour to be, " Your most obedient servant, "N. F. Belleau, " Lieuterutnt-Oovemor of the Province of Quebec. " To the Honourable The Secretary of State, " for the Provinces, Ottawa." The document referred to in the foregoing despatch, is the notice of the Notice re- Arbitrators set out verbatim in the proceedings of the meeting of the seven- ferred to 40 teenth day of August, 1870. SiTmeet 44 Aerators • .P^ Counsel for Ontario thtm proceeded to discuss the various items form- Subject of ' '"g Vnf ^""J*'F^ of reference to the Arbitrators. Arbitration J-he Arbitrators adjourned to Tuesday, the twenty-third day of Auinist. at discussed, uoou, to meet at the same place. jo. Arbitrators adjourned. ^— .^^-^«— .^^_^^_.^ Present : Hon. J. H. Gray and Hon. D. L. Macpher- son. Hon. C. D. Day being ab- sent. The Auditor General subpoenaed. Arbitrators adjourned. THIRTY-THIRD MEETING OF ARBITRATORS. The Arbitrators met at the place of their lao. preceding meeting, on the twenty-third day of August, 1870, at twelve o'clock noon, pursuant to adjourn- ment I resent : The Honourable John Hamilton Gray and the Honourable JJavKl Lewis Macphorson— the Honourable Charles Dewey Day not being present. Messrs Cameron and Wood appeared for Ontario. No one appeared in on behalf of Quebec. The Arbitrators stated that they had subpoenaed Mr. Langton, the Auditor- Uenerai tor the Dominion of Canada, to appear before them and give evidence and that they were informed he would be in attendance the next day, and that therefore they should adjourn to meet at the same place, on the next day at two O clock. tr > vj «,L THIRTY-FOURTH MEETING OF ARBITRATORS. Present : Hon. J. H. Gray and Hon. D. L. Macpher- son. Hon. CD. Day being absent Arbitrators adjourned. 'Die Arbitrators met at the place of their last meeting, on the twenty-fourth day ot August 1870, at two o'clock p. m., pursuant to adjournment. Present • Ihe Honourable John Hamilton Gray and the Honourable David Lewis Mac- pherson-the Honourable Charles Dewey Day not being present. Messrs ImTTouebt ^PP^^'^^'^d •^^ b^h^lf ot Ontario. No one appearing on be- The Auditor-General not having arrived, the Arbitrators adjourned until o\3bT m ^^^""^^-^^^^ ^^y ^f ^"g^^«t, to meet at the same place, at two 20 THIRTY-FIFTH MEETING OF ARBITRATORS. Same as at fifti T^® ^^^itrators met at the time and place last aforesaid, on the twenty- rrretbg^^^'^ '^y f August 1870. present: The same as at last preceding meetTnr Auditor- „. f^' ^fnfe'^^J^i^, the Auditor-General having arrived, and bein*.- uresent Mr General Wood on behalf of Ontario, proceeded with his case and argSiN Sirs twelve^\fo?k'nor ''^'"™'' '' ""^' ^'^ "^^^ ^'^ ^' '''' --« Pl-«' -^ .,o adjourned. ' Present : Same as at last meeting THIRTY-SIXTH MEETING OF ARBITRATORS. The Arbitrators met at the time and place aforesaid, on the twentv-sixth day ol August, 1870. Present : The same as at the last preceding meeting 10 20 45 Mr. Wood resumod his argimiont, and coutinued until six o'clock p.m., Argument when the Arbitrators adjourned to meet the next day at half-past one p.m. resumed. ^ Arbitrators ~~"~~'~~~"~~~"~~"~""^^"~^~ adjourned. THIRTY-SEVENTH MEETING OF ARBITRATOKS. The Arbitrators met on the twenty-seventh day of August, 1870. Present : Present : Mr. Lanjrton. Mr. Wood resumed his argument and closed it. Same as at last meeting Argument closed. THIRTY-EIGHTH MEETING OF ARBITRATORS. Monday, 29th August, 1870. Arbitrators met for consultation. Adjourned to (next day) to-morrow. 10 Present: The same Tuesday, 30th August, 1870. Hon.C.lT' 1} 7 - — -.Q *-.«-, *^, V, J.JLUU, \^, xy, Arbitrators met for consultation. Adjourned until (next day) to-morrow. ^^ ^'"8 Thursday, 1st September, 187C. Arbitrators met for consultation. Agreed upon the substance of the Award, and initiated the draft of the terms thereof. Adjourned until (next day) to- morrow. Friday, September 2nd, 1870. Arbitrators met. Discussed the form of the Award. Adjourned until (next day) to-morrow. Saturday, September .3rd, 1870. 20 Arbitrators met. Re-examined the award, and finally completed and exe- Award cuted the same, in the presence of Christopher Robinscm, Esq., of Toronto, Bar- made. rister-at-Law, and Mr. Frederick Finch, of the same place. Law Stationer. The same having been executed by a majority only, viz. : by the Honourable J. H. Gray, and the Honourable D. L. Macpherson ;— the Honourable Charles Dewey Day not being present, or having attended the meetings of the Arbitrators since his withdrawal in July last (1870), which Award is as follows :— AWARD. " To all to whom these Presents shall come — Award. " The Honourable John Hamilton Gray, of the City of St. John, in the " Province of New Bmnswick, and the Honourable David Lewis " Macpherson, of the City of Toronto, in the Province of Ontario, • " Send Greeting : " Whereas by the British North America, Act, 1867, it is enacted that the " division and adjustment of the debts, credits, liabilities, properties and assets i ii 4« clSii "u "/ ^^PP^*; f an*^a and Lower Canada, shall be referred to the arbitrament of tfiree Arbitrators, one chosen by the tJovornment of Ontario, and one by the " Crovernment of Quebec, and one by the Government of (;anada. " And whereas, the said John Hamilton Gray was duly chosen under and " m accordance with the provisions of the said Act, as Arbitrator, by the Govem- " ment of Canada, the said David Lewis Macpherson, by the (Jovemment of ' Ontario, and the Honourable Charles Dewey Day, of Glenbrooke. in the said " Provmce of Quebec, by the Government of Quebec ; u u '' ^^^ therefore; the said Arbitrators having taken upon themselves the burden of the said Arbitration, the said John Hamilton Gray and David Lewis 10 Macpherson being a majority of the said Arbitrators do award, order and adjudge of and upon the premises as follows, that is to say :— " ^- ^^^^ *?« amount by which the debt of the late Province of Canada exceeded, on the thirtieth day of June, one thousand eight hundred and sixty- ^^ seven, sixty-two millions five hundred thousand dollars, ($62,500,000) shall be ,< -A "i^^^^^y ^^J!?®*^ between and apportioned to, and shall be borne by the ^^ said Provinces of Ontario and Quebec respectively, in the following proportions that IS to say,— the said Province of Ontario shall assume and pay such a pro- portion of the said amount, as the sum of nine miUions eight hundred and « Sq «^« ^TZ^ u^^'Z ^r^'^^ "^"^ twenty-eight dollars and two cents. 20 ($9,808,728 02) bears to the sum of e ghteen million five hundred and eighty- "?J^.ft7^9^7^ ^^^^i^'^dred and twenty dollars and fifty-seven cents, ($18,D87,620 67) ; and the said Province of Quebec shall assume and pay such ^^ a proportion of i,he said amount, as the sum of eight millions seven hundred "pltf S^7flfSl^^??f ""^ seven hundred and ninety-two dollars and fifty-five cents, ($8, < 78,792 56) bears to the sum of eighteen millions five lundred and " (^$^8 ST 620 57?"'''"'^ ^""^ ''''"'^^®^ ^"^ ^^^^'^ty do"ars and fif.y-seven cents ^^ " II. That the assets hereinafter in this cause enumerated shall be, and the " of Ont^io ^namel ^"^ ^^ ^^^ property of and belonging to the Province 30 " 1. Debt from the Upper Canada Building Fund to the late " Province of Canada, (enumeratt d in the Fourth Sche- "dule to the said British North America Act, 1867, as "Upper Canada Building Fund, Lunatic Asylums, " ' Normal Schools,')— Lunatic Asylums $30,800, Nor- " mal Schools $6,000 $36 800 00 " 2. Debt from the Law Society, Upper Canada,' to'the 'late " Province of Canada 156015 61 " 3. Debts to the late Province of Canada underthe Consoli- ' 40 « .. ^^* r ^""^cipal Loan Fund of Upper Canada 6.792,136 39 Pebt from the Agricultural Society, Upper Canada, to the late Province of Canada 4 qoo 00 " 6. Debt from the University Permanent Fund to "the late " Province of Canada 1 220 63 u u 10 so 10 40 10 10 so 20 ao 30 40 10 47 " IIT. That the assets hereinafter in this clause enumerated shall be, and Awtri— •' the same are hereby declared to be the property of, and to belong to the Pro- Cantinmd. " vince of Quebec, namely : " 1. The debt from the Aylmer C^ourt House to " the late l*rovince of Canada for six per cent. " I'rovincial debentures issued on account of " the said Court House and assumed by the " Dominion of Canada, and charged in the " debt of the late Province . f Canada $2,000 00 "And for certain charges paid by the said " late Province of Canada in respect of the " said Court House 1,239 70 3,239 70 " 2. Debt from the Montreal Court House to the " late Province of Canada for six per cent. " Provincial debentures issued on account of "the said Court House and assumed by the " Dominion of Canada, and charged in the " debt of the late Province of Canada 95,600 00 " For advances made to the said Court House " by the said late Province of Canada 18,996 21 114,596 21 " 3. Debt from the Kamouraska Court House to the late P^o- " vince of Canada for balance of certain charges in respect " of the said Court House paid by the late Province of " Canada 201 27 " 4. Debt from the Royal Inrtitution, otherwise the McGill " College, to the late Province of Canad£(^ of the bala-noe " of a loan made by the said late Province to that Insti- " tution 7,790 00 " 6. Debt under the Consolidated Municipal Lc. n Fund of " Lower Canada to the late Province of Candida 2,939,420 97 " 6. Advances made in excess of the Legislative School Grant " (described in the Fourth Schedule to the said British " North America Act, 1867, as 'Lower Canada Legisia- " tive Grant') 28,494 73 " 7. Debt to the late Province of Canada under the Quebec " Fire Loan 264,254 65 " 8, Debt to the late Province of Canada for advances made " to or on account of certain municipalities in the county " of Temiscouata, (described in the said Fourth Schedule " as 'Temiscouata Advance Account.') 3,000 00 " 9. Debt from the Education Office in Lower Canada, to the " late Province of Canada for the balance unpaid of a de- " falcation in the said office to the said late Province (de- " scribed in the said Fouith Schedule as ' Education East') 290 10 Award — CmUnued. L II 48 " 10. Debt from the IJuildinK ami Jury Fund, Lower Canada, "to the hito Province of Canadii or loans and advances " made to it by the said luto I Vovinco of Canada 1 10,475 51 "11. Debt from the Municipalities Fund of Lower Canada to " the late I'rovinee of Canada, for advances ma«le to or " on the credit of that fund (described in the said Fourth " Schedule as ' Municipalities Fund.') 4^4 244 33 " 12. Debt from the Lower Canada Superior Education income " Fund to the late I'rovinee of Canada, foi- advances made " from time to time by the said late Province 234 281 40 10 " 13. Montreal Turnpike Trust ISs'ooO (X) »fi Jl^^fi ^"'^ *^ V* ^^? said Montreal Turnpike Trust, the said Arbitrators turther find, award and adjudge as follows :— "/•laJTmnw"'^ ^''^ said sum of one hundred and eighty-ei^ht thousjind dollars ^ (?188,()00) IS secured by debentures issued upon the credit of the said Trust and guaranteed by the late Province of Canada, and the said Trust has hitherto met the payments upon such debentures, and the payment thereof ^^ has therefore not been assumed by the Dominion of Canada, nor has the said sum of one hundred and eighty-eight thousand dollars (iS;188,0()0) been charged by the said Dominion in the debt of the lat- Province of Canada 20 which charge if made, would increase by one hundred and eighty-eight ^^ thousand dollars (3188,000) the excess of the said debt on the thirtieth day ot June, one thousand eight hundred and sixty-seven, above sixty-two niiUions hve hundred thousand dollars ($62,500,000); Know therefore, the said Arbitrators having assigned the said Trust as an asset of the ^^ said Province of Quebec, do herel>y adjudge and award that the said Province » ot Quebec shall hereafter indemnify, protect, and save harmless the said Do- " SI A r'J r^ '^'^ Province of Ontario, against any charge upon, or payment " or in resnpnM^"""'"" '" TFu'' "VS,'' ^"^^ debentures, m- the said guarantee or in respect in any way of the said Trust. 30 a "Z' ^^^\ ^i^ following Special, or Trust Fmids, and the moneys thereby payable, including the several investments in respect of th ame or any of them are, shall be, and the same are hereby declared to be .ne prooerty of " 1. Upper Canada Grammar School Fund. " 2. Upper Canada Building Fund. " 3. Upper Canada Municipalities Fund. "4. Widows' pensions and uncommuted stii)onds, Upper Canada, subject ^^ to the payment ot all legal charges thereon. '' 40 ^ 5. Upper Canada Grammar School Income Fund. " 6, Upper Canada Improvement Fund. 1 1 J^^^^ce of special appropriaticms in Upper Canada. » n 5^r^®y^ ordered in Upper Canada, before :30th June. 1867 9. Amount paid and payable by Upper Canada to the Canada Land and Jbmigration Company. i 30 40 10 « K <( >( (( l< 20" <( (( «( (( (( n II << l( 30" (( ), and shall thereupon become the absolute owner of such properties. * " XV. That the said several sums awarded to be paid, and the several mat- ters and things awarded and directed to be done by or with regard to the " parties to this reference respectively as aforesaid, shall respectively be paid, " received, done, accepted and taken as and for full satisfaction and discharge^ " and as a final end and determination of the several matters aforesaid. " In witness whereof, the said John Hamilton Gray and David Lewis Mac- " pher.son, two of the said Arbitrators, have hereunto set their hands this third " day of September, in the year of our Lord one thousand eight hundred and " seventy. "J. H. Gkay. " D. L. Macpuersgn. *0 " Signed and published the tiiird day of September, 1870, "in the presence of: 30 11 " Christopher liobinson, of the City ot Toronto, Barrister-at-I^w ; " Frederick Finch, of the City of Toronto, Law Stationer.' I Joint Ad- dress of Leg- islative Council and Assembly of Quebec. 52 The following is a Joint Address presented by the Legislative Council and noTaet'rll ''"'^'^ '' '^' ^^^"^"^^ ^^ Q"«^«« '^ «i« E^ceCcy trSo^^^^^ ^"^ "R«in«r"®'''? *^^ .?'^ n Honourable John, Baron Lisgar of Lisgar and nS J?^^^^' '" the County of Cavan, Ireland, in the Peerage of the United Kingdom of Great Britain and Ireland, One of Her Maiesty's ^L SrnY"7 Council K^ght Grand Cross of the Most nTnour ttliS^^H i f 1 ^^^^u^^^ H'^^^ ^^*"d ^r««« of the Most Dis- cSa i? rl ^*- ^'n^'^ ^"^. ^^- ^"^^S«' C^overnor General of fiSwtd, &c! &c. &r C"'»'»^d«™CWef of the Island of Prince ,o May it please Your Excellency : We, Her Majesty's dutiful and loyal subjects, the Legislative Council ird Legislative Assembly of the Province of Quebec/in ProXtl LegiX?ure^^^^ sembled humbly approach Your Excellency for the purp^s^S repr^esS - That, according to the provisions of the One hundred and fS-second Ser trdlfcreSS\at,r ^"^«"-,^«^' 1|«7' the divTlrlnd /d S^^^^^^^^^ lhl^^A^' u ' ^'^}''^'^'f^' properties, and assets of Upper and Lower Canada fy tt^GrernZuforOn^^^^^^^ 'f'T%'' '' three XbitratotTnecho-n by the G^verZent of r«S' T X*^' Government of Quebec, and the third 20 Sitario or7n"S^^ ' ^*^^-™«"^'-^<* ^^^ '^ be a resident either in torby^^JfeSro^&K Province of Ontario, and the Honourable J»hn HamikorTri^ffwhrp '^ mw S'T'"' "■'*'•'■'''"' J'^^'' A^»-'orhI^"/Senu^^ 10 53 testing against any ulterior action on the part of the Arbitration Commission, ^'**''?**T which was thus rendered incomplete. Conhmed. That, notwithstanding the representations so made to them, Messrs. Gray jind Macpherson entered upon the examination of the questions submitted by the two Provinces, without the Province of Quebec being in any way represen- J ted, and on the third day of September last, rendered a pretended award, against which His Excellency the Lieutenant-(jovernor of the Province of Quebec, by despatch, dated the thirteenth day of September last, and addressed to His Excellency the Governor-General, protested as unjust and illegal. 10 That the injustice of the said pretended award is evident, from the same having been rendered wholly in the interest of the Province of Ontario, and from the fact that, while Messrs. Gray and Macpherson refused to take into con- sideration the relative financial positions of the two Provinces at the time of the Union, they have taken into consideration the object and nature of certain items of expenditure as having been incurred in one or the other section of the Prov- ince of Canada from the period of the Union to Confederation : that the said pretended award is further unjust, inasmuch as the division of the credits, pro- perties, and assets of the late Province of Canada, does not even proceed upon the same basis and principles as those which appear to have been adopted in 20 relation to the division of the balance of the debt, and does not rest upon any principle whatsoever, but is purely arbitrary, and favours the Province of On- tario at the expense of the Province of Quebec ; that, lastly, the provisions of the said pretended award fully justify the apprehensions of the distinguished lawyer selected by this Province as its Arbitrator, and the firm and independent line of conduct which he adopted in the interests of justice. That the said pretended award is absolutely illegal, null, and void, for the reasons hereinbefore set forth, and also as having been rendered by two Arbitra- tors, who, by the resignation of their colleague, remained without any power or jurisdiction, and that, therefore, the intentions of the British North America 30 Act have not been carried out, and no valid title has been conferred upon either Province in relation to the credits, properties, and assets, which it was the duty of the said Arbitrators to apportion and divide between the two Provinces. That the Provin :e of Quebec can neither submit to its property being dis- posed of, or to any sum whatever being exacted from it; nor can it accept any property, credits, or assets in virtue of the said protended award, and that it is bound to resist, and will resist by all means within its power, the execution of the said pretended award, claiming as it does that justice be done, and that its rights, as recognized by the British North America Act, be maintained. Wherefore, we humbly pray that Your Excellency will be pleased to adopt iO such measures as are best calculated to insure justice to this Province. C. B. DE BOUCHERVILLE, Speaker of the Legislative Council. J. G. Blanchet, Speaker of the Legislative Assembly, 54 h^n^L K ^5'™-On^"o disputes the various ijrounds of objection which, in the S.^r!Stof J^"^^ documents, the Executive Council and the Le^ishitive Assembly of One- objections ^ ^^^^^ ^^ the award, both those objections relating to the merits and all others ; Ontario affirmmg that the award was made in good faith by two gentle- men of honour, experience and ability, that the award was not unjust to Que- bec ; that It was not made in tl.o interest of Ontario, or to the prejudice of Que- bec ; and that m fact it is much less favourable to Ontario than Ontario justly demanded before the Arbitrators. objections raised in Address. Order of His Excel- lency the Govemof- Greneral-in- Counc.il, dated 27th Febraary, 1871. The following is a copy of an order passed by His Excellency the Gover- nor-(jeueral in Council : Copy of a Kep()kt of a Committee of the Honourable the Privy Council ap- proved by His Excellency the (Joveruor-Geueral in Council on the 27th February, 187!. The Committee of Council have had under consideration the annexed Me- morandum, dated 2oth February. 1871, from the Honourable the Minister of Justice to whom was referred the matter of the Arbitration under " the British North America Act, 1867, between the Provinces of Ontario and Quebec, and they respectfully rep<.rt their concurrence in the opinion expressed in the said Memorandum, and advise that the same be adopted and communicated to the respective Provinces of Ontario and Quebec. 20 Certified. W. H. Lee, To the Honourable ^^''^' ^""^ ^"""'^"• The Secretary of State for the Provinces. 10 Memoran- dum by the Honourable Minister of Justice of Canada. In the matter of the Arbitration under " The British North America Act 1867 " between the Province of Ontario and Quebec, referred to the under- signed, he has the honour to report— werelp^dntSvL^-"' '"^"" '''''' ^^'^ ^''' ^^e following Arbitrators The Hon. David J ewis Macpherson, by the Government of Ontario ^^ Ihe Hon. Charles Dewey Day, by the Government of Quebec, and The Hon. John Hamilton Gray, of St. John, New Brunswick, by the Gov- ernment of Canada (his appointment dating from 21st March, 1868) , f c, 7 ^ I^espatch from the Lieutenant-Governor of Quebec to the Secre- tary of State for the Provinces, bearing date the 11th July last, an Order of the Executive Council of that Province was transmitted for the consideration of His E>«^ellency the Governor-General, which Order in Council sets forth that "Whereas the Hon. J R Gray has resided for more than one year, and ha! become a resident in the Province of Ontario, an<' has become thereby disqual ' 40 .0 55 fo Ihfi f.";!! M """"^ ^^iV^^'^f' it has become the duty of this Province to object Memoran- to the sad Hon John Hamilton Gray acting as such Arbitrator." "' dumofMin- 1 hat by a Despatch of the same date, the Lieutenant-Governor transmitted f^*^"" "l"'"' he' fecM wU"!ff S"™/'^ """•• ""Y^^ ^^^^y Bay^^reredlor^^-- undertre i^^^^^ re.gnnxg hzs appointment as Arbitrator m.hrrS^fi''/ '' ^^^f^l"'^^* Despatch of tho 19th July, the Lieutenant-Governor submitted a copy of an Order of his Council, accepting the resignation of Mr. Day, as the Arbitrator named for the Province of Quebec ,nn A.« nM^ ^ "T t^^'^ ^'^'^ ^^^ °^ September, Messrs, Gray and Macpher- ZC^fhT^VT .^'^:^!^\'''l ^'•^'^^'"itted a copy of the award made by them ^nt Ii .^.V^ n'^' '^^^''* '^^^ '"^^ ^^^^d ^'^^ been made in triplicate and sent also to the Governments of Ontario and Quebec rppitin^^.V^.ifT'^ is signed only by Messrs. Gray and Macpherson, and after reciting that the three Arbitrators were appointed by the several Governments as above-mentioned, proceeds to state that "the said Arbitrators havinTtakTupon themselves the burthen of the said Arbitration," the said John Hamilton Gray Wph^^"^ ^r'', Macpherson being a majority of the said Arbitrators 5o 20 to sly! &c &C&7: "^^ ^' ''^' '"^ "P""" '^' P'""^'""' "' ^""*^^'' '^^' '' ^A,J^^\ ^^u ^'i^^t^^ from the Lieutenant-Governor of Quebec, dated the 14th September, a copy of an Order of the Executive Council of Quebec was transmitted, protestmg, for the reasons therein given, against a.y force or valid- ity being given to the pretended judgment or award „f the said two Arbitrators by the Federal Authority, and advising of the intention of tlie Government " to appeal for redress and justice in every constitutional mode which it is the pri- vilege of British subjects under the British Crown to exercise when suffering under injustice or wrong from the hands of any. " ^ ,nT- J^^\^X ^ subsequent Despatoh, datod •22nd December last, from the 30 Lieutenant-Governor, he transmitted an Address from the Legislative Council and Legislative .Vssembly of the Province of Quebec to His Excellency the Governor-General, setting out-That the Hon. J. H. Gray having taken up his residence at Ottawa, the Government of Quebec having deemed it incumbent to protest against his continuing in office, and to express their ccmviction that the decision of the Arbitrators should be unanimous; that the Arbitrator appointed by the 1 rovince of Quebec resigned his office, that such resignatioii was ac- cepted, and that the Government of Quebec at the same time protested against any ulterior action on the part of the Commission which was thus rendered in- complete. Ihat Messrs Gray and Macpherson, notwithstanding such represen- 40 tation, entered upon the examination of the Questions submitted bv the two 1 rovmces, without the Province of Quebec being in any way represented, and made their award, against wliich the Lieutenant-Governor of Quebec protested a^ unjust and illegal. That the injustice of the pretended award is evident from the facts stated m the Address. That the pretended award is absolutely illetral null and void, for the reasons therein set forth, and as having been rendered by two Ai-bitrators, who, by the resignation of their colleague, remained without I 56 durofMin- P^^®^. o^ jurisdiction. That, therefore, the intention of " The British North uter of Jus- America Act " had not been carried out, and no title has been conferred tico.— Con- upon either Province in relation to the credits, properties and assets, which it hnued. was the duty of the said Arbitrators to apportion and divide between the two Provinces. That the Province of Quebec can neither submit to its prop'^rty being disposed of, or to any sum whatever being exacted from, nor can it accept any property, credits or assets in virtue of the pretended award, and will resist by all the means within its power the execution of the said protended award ; claiming as it does, that justice be done, and that its rights, as represented by the British North America Act be maintained. They, therefore, pray that His lo Excellency the Governor-General will he pleased to adopt such measures as are best calculated to ensure justice to tha<. Province. The case now stands thus : — The Government of Ontario maintains the validity of the award— The Gov- ernment of Quebec contends that it is altogether illegal and void, and declares its intention of appealing for redress and justice iu every constitutional mode and the Legislature of Quebec, also protesting against its validity, asks the Governor-General to adopt meauures to protect the rights of that Province. Now the Government of Canada has no power or means of intervening be- tween the parties, of enforcing the award as valid, or setting it aside as invalid, 20 or of granting the redress, or the measure of protection sought for by the Legis- lature of Quebec. It is for the Government of Ontario, if it desires to enforce the award, to take such steps as it may be advised that the law allows for that purpose, and it is for the Province of Quebec to take the necessary legal steps to resist any action on the part of that of Ontario. If the question of the validity of the award becomes a matter of litigation either Province will have the power of carrying it by appeal from the decision of any inferior tribunal to the Judicial Committee of the Privy Council as the Court of last resort. If the Governments of the two Provinces were to agree on a statement or 30 special case, with the view of submitting the question of the validity of the award to the Judicial Committee, it would be the duty of His Excellency the Governor-Genera], on being prayed so to do, to transmit such special case to the Secretary of State for the Colonies, with a request that it shall be submitted to such Judicial Committee for their opinion, under the 4th clause of the Imperial Act, 3 and 4 William IV., chapter 41. If the two Governments do not agree upon a joint submission of the case, It will be in the power of either Government to pray Her Majesty to refer the case, as stated by it, for the opinion of the Judicial Committee. As it is obvious that if the Governor in Council were to assume to decide 40 the questions in dispute, the Province against whom such decision would be given would not accept or submit to it, and as such decision would have no le- gal force whatever, the undersigned recommends that no expression of opinion be given by His Excellency in Council, and for the same reasons the under- signed refrains from making any report on the legal questions. 20 30 57 acuon w,th respect to it can properly betCb;Xt;UorrSlSr "<=-'- John A. Macdonald. tice. — CoH' tinned. >10 20 o^^^^'^s.^:^tzi^-^f^z:-:^^:^-^^ »•■ '^^ »^™ {Translation.) 118 Department of the Secretary of State for the Provinces 10 No. 624. Ottawa, 28th February, 1871. of ,ourVole™\S:„'T.™J^r^S^^^^^ T\^r^\ ">' "■« -f°""ati„„ General in Council, together with a Codv^^ ?L m ^^"'*",e''cy the Governor- to, of the Minister of Justice on the sSct of th^^Tf''?'''''" "'^"'''' '"'^"^ North An,ericaAct, .«e7, between S^Cints^^^^^^ Joseph Howe, Secretary of State for the Provinces. 20 The Honourable Sir N. F. Belleau, Lieutenant-Governor, Quebec. Despatches transmit- ting order to Lieutenant- Governors of Ontario and Quebec. 30 to 30 119 Office of the Secretary of State for the Provinces No. 624. Ottawa, 28th February, 'l87l. of yo'„;^^Jert:nt?SprofV;o'Xr :? ^SV^'T""' 'T ">« '"f°™««o- eral in Council, together Mdth a ConvTf ,f S E^'^^H^'^'y the Governor-Gen- on the subject of tie Arbuition nutte BST„''r/''*''?'" "'"'"^^°. between the Pro-rince. of Ontario and Queb^ '^°""" ^'^- "S"'. I have, &c., Joseph Howb Secretary of State for the Provinces. The Honourable W. P. Howland, C. B., Lieutenant-Governor' Toronto, Act of Pai^ littment of Ciuuula re- adjusting amounts payable in respect of debts of Pro- vinces, 58 On 23rd May. 1873, the foUowing Act was passed by the Parliament of Canada : — r j An Act to re-adjust the amounts payable to and chargeable against the several i rovmces of Canada l)y the Dominion Government so far as they depend on the debt with which they respectively entered the Union. Whereas by the provisions of the British North America Act, 1867, and by the terms and conditions under which the Provinces of British Columbia and Manitoba were admitted into the Dominion, Canada became liable for the debts and liabilities of each Province, existing at the time of its becoming part of the Dominion, subject to the provision that each Province should, in account with 10 Canada, be charged witli interest at the rate of five per cent, per annum on the amount by which its said del)ts and liabilities exceeded, or should receive interest at the same rate by half-yearly payments in advance, on the amount by which Its said debts and liabilities fell short of, certain fixed amounts : And whereas the amount fixed as aforesaid in the case of the Provinces of Ontario and Quebec, conjointly (as having theretofore fonned the Province of Canada), was sixty-two million five hundred thousand dolUirs (^62,.5(K),000), and the debt of the said late Province, as now ascertained, exceeded the said' sum by ten million five hundred and six thousand and eighty-eight dollars and eighty.four cents ($10,506,088.84) for the interest as aforesaid on which the said 20 two Provinces were chargeable in account with Canada : And whereas it is expedient to relieve the said Provinces of ( )utario and Quebec from the said charge, and for that purpose hereafter to consider the fixed amount in their case as increased by the said sum of ten million five hun- dred and SIX thousand and eighty-eight dollars and eighty-four cents ; and to compensate the other Provinces for this addition to the general debt of Canada • Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : 1. In the accounts between the several Provinces of Canada and the Domi- nion, the amounts payable to, and chargeable against, the said Provinces res- 30 pectively, in so far as they depend on the amount of debt with which each Province onteriKl the Union, shall be calculated and allowed as if the sum fixed by the one hundred and twelfth section of the British North America Act, 1867, were increased from sixty-two millions five hundred thousand dollars, to the sum of seventy-three millions six thousand and eighty-eight dollars and eighty- four cents, and as if the amounts fixed as aforesaid, as respects the Provinces of Nova Scotia and Xew Brunswick by The British North America Act, 1867, and as respects the Provinces of British Columbia and Manitoba by the terms and conditions on which they were admitted into the Dominion, were in- creased in the same proportion. ^ 2. The subsidies to the several Provinces, in July, one thousand eight hun- dred and seventy-three, shall be paid in accordance with the foregoine provisions of this Act. ofth as ot v follo^ Ham legall 10 of the in tht whetl to re effect 5 resign remai 20 « Hono as aff< V 59 3 All sums payable under this Act shall be a charge upon and payable out ot the Consolidated Revenue Fund of Canada, and accounted for in like manner as other moneys payable for like purposes out of the same. The questions for the Judicial Committee of the Privy Council are as follows : — 1. Whether under the circumstances herein before stated, the said John Hamilton Gray had become disqualified to act, or continue acting, as Arbitrator. 2. Whether, after a hearing before the three Arbitrators, two of them could legally render a decision or award; and if yea. could they do so in the absence 10 of the third. 3. Whether, after the subsequent ex parte hearing before two Arbitrators in the absence of the third, these two could legally render a decision. 4. Whether the arbitrator appointed by Quebec had the, right to resign ; whether the Government of Quebec had the right to accept his resignation and to revoke his appointment ; and whether such resignation or revocation was effectual and valid. 5. Whether, after one of the Arbitrators had so resigned his office, and his resignation had been so accepted, and his authority had been so revoked, the remaining two could legally proceed to hear the case, and to make a final award. 20 6. And whether the award of the 3rd of September, 1870, by the said Honourable David Lewis Macpherson and John Hamilton Gray is valid (save as affected by the Dominion Act above set forth), or is null and void. O. Mow AT, /or Ontario. C. B. DE BoucHERViLLE, foT Quebec.