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The Honourable Horace Harvey, Chief Justice of Alberta

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The Honourable Horace Harvey, Chief Justice of Alberta The Honourable Horace Harvey, Chief Justice of Alberta WILBUR F. BOWKER ,` Edmonton V11I. Practice and Procedure In the preceding instalment of this article we gave an account of Chief Justice Harvey's early career and of his leading decisions on various subjects-the criminal law, constitutional law, domestic relations, real propety and torts . These decisions on substantive law give some indication of his contribution to the jurisprudence. His judgments on matters of practice and procedure, often of equal importance to the administration of justice, help to give `a picture of other judicial characteristics and attitudes. Rules of Court, like statutes, are never exhaustive and the judges must fill in the gaps. It is always most disconcerting to the practitioner when the requirements in procedural matters at trial and in chambers differ from judge to judge. As the Chief Justice said in one case, "What the practice should be seems of less im- portance than that it should be authoritatively settled"J" He fre- quently spoke for the Appellate Division in laying down the prac- tice to be followed in the future. Thus in a case where a question arose as to the proper practice on applications for possession of land under wartime rental regulations, he wrote : As it was stated by counsel that the Chamber judges are not follow- ing a uniform practice in respect to such applications, we intimated that we would give some direction as to the proper practice so that there might be uniformity,172 and he proceeded to do so. *Wiibur Fee Bowker, Q.C, B.A., LL.B. (Alta.). LL.M. (Minnesota), Dean, Faculty of Law, University of Alberta The first instalment of Dean Bowker's article appeared in the November issue beginning at page 933 (1954), 32 Can, Bar Rev. 933. 171 Hayhurst v. Inrusfail Alotors Ltd., [1935] 1 W,W.R 385, at p. 391, [193512 D.L.R. 272, at p. 277. 172 Hurov v. Clyde, [1943] 2 W.W.R. 470, at p. 472, [194313 D.L.R. 701, at p. 703, See also Prudential Insurance Co. v Security Trust Co , [1942] 3 W.W.R. 494. 1954] The Honourable Horace Harvey 1119 Most decisions on practice concern of course the rules of court. During the Territorial period, the rules were contained in the Judicature Ordinance until 1898, when they were set out separate ly-171 On the formation of the province, the same rules remained in force until 1914, when a completely new set was made.174 Be- fore this the English practice applied where the local rules were silent, 171 but the 1914 rules, which basically remain in force to this day, are an exclusive code, under which the court has been able to develop an independent practice.176 In several cases interpreting the 1914 rules the Chief Justice referred to the fact that he had been a member of the commission that drew them,177 an approach that raises an interesting point of construction . In' 1305 Chief Justice Hengham said to counsel, "loo not gloss the statute, for we know better than you : we made it".1711 On the other hand, Lord Halsbury said that the worst per- son to construe a statute is the one who was responsible for its drafting, because he tends to give effect to what he meant, not what he said. 179 When Harvey C.J. had to construe the 1914 rules he referred to the intention of the framers, including himself.111 Yet many years later, interpreting the revised rules of 1944, in which he had had no hand, he aligned himself on the side of Lord Hals- bury, observing that "it seems to me to be a very unsafe principle on which to interpret a statutory provision or rule by reference to what the framers intended by it".181 One of the most important contributions he made to sound procedure was to insist on strict compliance with the requirements of statutes and rules. He would never tolerate careless or inept practices and on at least two occasions, in an effort to prevent the filing of untidy appeal books and factums, he deprived a success- ful appellant of his costs."' He insisted, though perhaps not always 173 R. O., 1898, c. 21 . The rules are set out in full with the ordinance. 174 The authority for these rules was the Supreme Court Act, 1907, c. 3. This act and the Judicature Ordinance were replaced by the Judicature Act, 1919, c. 3. 175 The Judicature Ordinance, R.O., 1905, c. 21, s. 21. 176 See Augustino v. Canadian Northwestern Railway Co. (1928), 23 Alta. L.R. 351, [19281 1 W.W.R. 481, [19281 1 D.L.R. 1110. 177 For example, McDougall & Secord Ltd. v. Merchants Bank (1919), 14 Alta. L.R. 564, at p. 566, [1919] 1 W.W.R. 830, at p. 831, 46 D.L.R. 672, at p. 673 ; Webster v. Solloway, Mills & Co. Ltd. (1930), 24 Alta. L.R. 632, at p. 633, [1930] 2 W.W.R. 514, at p. 515. ' 178 Plucknett, A Concise History of the Common Law (4th ed., 1948) p. 314. 171 Maxwell, Interpretation of Statutes (10th ed., 1953) p. 26. 186 Godfrey v. Marshall (1917), 11 Alta L.R. 37, at p. 42. 131 Cummings v. Reister, [1948] 1 W.W.R. 237, at p. 239, [1948] 2 D.L.R. 153, at p. 154. 112 Duggan v. Wadleigh and Rankin (1912), 4 Alta L.R. 114, 1 W.W.R. 1120 THE CANADIAN BAR REVIEW [VOL. XXXH with success, that counsel file their factums on time. When they were late he always knew it, because he had the clerk bring them to him as soon as they arrived. Invariably he read them before the appeal came on for hearing and it was obvious from his remarks to counsel that he knew what they contained, grasped the issues and had familiarized himself with the relevant statutes and cases. He was generally more ready than his brethren to set aside a garnishee summons, bill of sale or caveat because of a defect in the supporting affidavit. The rules of court specify certain information "necessary" in an affidavit in support of a garnishee summons, the Bills of Sale Act prescribes the contents of the affidavit that must accompany a bill of sale or chattel mortgage and the Land Titles Act requires an affidavit of bona fides to support a caveat. In the many cases where these affidavits were faulty the Chief Justice showed little inclination to invoke the "slip rule" or a curative section."' The leading case of McPherson v. McPherson seems to furnish an exception to his usual strictness in procedural matters. Here a divorced wife sued to set aside the divorce previously granted against her. She alleged, among other things, that the decree nisi had been made in the judges' library and not in open court. The Chief Justice held that the library became in fact an open court when the presiding judge declared it to be so, but that, even if it were not, the decree was not a nullity. The writer listened to the argument on appeal and formed the impression that the Chief Justice was influenced towards his conclusion by the fact that in his early days at the bar and on the bench court had sometimes to be held in a building other than a court house, even in a pool hall, and that he saw no objection to holding it in a library. The Privy Council held, however, that the hearing had not been in open court and the decree was therefore voidable, but that the divorced wife had waited too long to complain-114 595, 1 D.L.R. 871 ; Chadwick v. Stuckey (1912),5 Alta. L.R. 145, 3 W.W.R. 549, 8 D.L.R. 357. 133 See, on garnishee summons: Mohr v. Parks. Brown and National Manufacturing Co. (1910), 3 Alta. L.R. 252, 15 W.L.R. 250, Beaubier v. Lloyd (1918), 13 Alta. L.R. 47, [1918] 1 W.W.R. 772, 39 D.L.R. 439, Adams v. Adams (1921), 17 Alta. L.R. 109, [1922] 1 W.W.R 47, 62 D.L.R. 721, McParland v. Seymour (1925), 21 Alta. L R. 525, [1925] 3 W.W.R. 666, [192514 D.L.R. 944, and Banque Canadienne Nationale v. Labine, [1933] 1 W.W.R. 385 ; [1933] 2 D.L R 432 ; on bills of sale . MacKenzie v. Royal Bank (1931), 25 Alta. L.R. 281, [1931] 2 W.W.R. 129, [1931] 3 D.L.R. 884, rev'd [1932] S.G.R. 524,[1932] 2 D.L.R. 12, and Kendrew v. Cushing, [1946] 3 W.W.R. 571, 27 C.B.R. 272 ; and on caveats : Wilkinson v. Shackleton (1930), 24 Alta. L.R. 377, [1930] 1 W.W.R. 721, [1930] 3 D.L.R 304. 184 [193311 W.W.R. 321,11933] 2 D .L.R. 244 ; aff'd for different reasons, 1954] The Honourable Horace Harvey 112 1 On matters of practice arising under the rules of court, he helped to settle a number ofimportant principles, for example, on examina- tion for discovery of a company officer,"' inspection of documents where privilege is claimed,"' the right to a summary judgment,"' the striking of pleadings 188 and the amendment of pleadings at trial."' , The history of the provisions for jury trial in civil cases is of interest. Before 1914 either party could demand as of right a jury trial in certain enumerated cases, including nearly all common-law actions."" Horace Harvey drafted the new jury rules, 91 which al- lowed a jury as of right in a small number of actions.
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