In Re The Chief Justice of Alberta

In Re The Chief Justice of Alberta

By a majority the Court held the Judicature Act 1919 as amended did not abolish the pre‑existing office of Chief Justice of the Supreme Court of Alberta; the 15 September 1921 letters patent purporting to appoint D.L. Scott as Chief Justice and President of the Appellate Division and to reassign H. Harvey to the...

Source-derived case information.

Citation
(1922) 64 SCR 135
Parties
Nominee Chief Justice / Incumbent Chief Justice of the Supreme Court of Alberta: Horace Harvey; Nominee Chief Justice: David Lynch Scott; Referring Party / Represented by Federal Minister of Justice: Attorney-General of Canada
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 May 1922
Procedural Posture
Reference (advisory Opinion) / Hearing and Consideration Under S.60 Supreme Court Act; Advisory Judgment Returned to Governor General in Council
Outcome
Advisory reference answered: letters patent dated 15 Sept 1921 nominating D.L. Scott and nominating H. Harvey to the Trial Division are wholly ineffective to displace Horace Harvey; Horace Harvey remains Chief Justice of the Supreme Court of Alberta with the style Chief Justice of Alberta and is entitled to exercise...
Legal Topics
Validity of Letters Patent, Creation and Abolition of Judicial Offices, Construction of Provincial Judicature Act (alberta), Federal‑provincial Division of Powers Under BNA Act
Source Language
english
Constitutional Law Administrative Law Judicial Appointments Statutory Interpretation Validity of Letters Patent Creation and Abolition of Judicial Offices Construction of Provincial Judicature Act (alberta) Federal‑provincial Division of Powers Under BNA Act

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Summary, issues, holding and outcome

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Parties

Horace Harvey

Nominee Chief Justice / Incumbent Chief Justice of the Supreme Court of Alberta

David Lynch Scott

Nominee Chief Justice

Attorney-General of Canada

Referring Party / Represented by Federal Minister of Justice

Procedural Posture

Reference (advisory Opinion) / Hearing and Consideration Under S.60 Supreme Court Act; Advisory Judgment Returned to Governor General in Council

Legal Issues

  1. 1 Whether letters patent dated 15 Sept 1921 appointing D.L. Scott effective to constitute him Chief Justice and President of the Appellate Division
  2. 2 Whether letters patent dated 15 Sept 1921 appointing H. Harvey Chief Justice of the Trial Division effective
  3. 3 Whether H. Harvey by virtue of his 12 Oct 1910 letters patent or otherwise still holds the office and functions of Chief Justice and President of the Appellate Division

Ratio Decidendi

By a majority the Court held the Judicature Act 1919 as amended did not abolish the pre‑existing office of Chief Justice of the Supreme Court of Alberta; the 15 September 1921 letters patent purporting to appoint D.L. Scott as Chief Justice and President of the Appellate Division and to reassign H. Harvey to the Trial Division are wholly ineffective to displace Harvey; Horace Harvey continues to hold the office of Chief Justice of the Supreme Court of Alberta with the style Chief Justice of Alberta and is entitled to exercise the jurisdiction, office and functions of Chief Justice and President of the Appellate Division.

Court Disposition

Advisory reference answered: letters patent dated 15 Sept 1921 nominating D.L. Scott and nominating H. Harvey to the Trial Division are wholly ineffective to displace Horace Harvey; Horace Harvey remains Chief Justice of the Supreme Court of Alberta with the style Chief Justice of Alberta and is entitled to exercise...

Orders

  • Advisory opinion returned to Governor General in Council: To Question 1—No; Question 2—Wholly ineffective; Question 3—No; Question 4—Wholly ineffective; Question 5—Horace Harvey holds the office of Chief Justice of the Supreme Court of Alberta with the style Chief Justice of Alberta and is by law entitled to...