Ogilvie v. Davie

Ogilvie v. Davie

Majority held that because the defence of illegality was not pleaded and was first relied on at argument after evidence closed, and because the circumstances relied on were susceptible of explanation, the proper remedy was to allow the appeal, reverse the Court of King's Bench, and order a new trial limited to whether the contract was illegal, the true area of the land, and whether interest had been contracted to be paid to the plaintiffs; the Court did not finally decide the illegality issue on the record before it.

Citation
(1921) 61 SCR 363
Parties
Plaintiff/appellant: D. W. Ogilvie & Company; Defendant/respondent: A. C. Davie and Others (Davie & Co.)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 February 1921
Procedural Posture
Appeal to the Supreme Court of Canada From the Court of King's Bench, Quebec (appeal Side) / Final Decision on Appeal; Remittal for New Trial Ordered
Outcome
Appeal allowed; judgment of Court of King's Bench reversed (Idington J. dissenting); new trial ordered on specified limited issues; no costs to either party of the appeal.
Legal Topics
Illegality, Public Order, Commission, Influence/trafficking of Influence, New Trial/remittal, Measurement/area Dispute, Interest on Purchase Money, Sub Agent/payment Defenses
Source Language
English
Contract Public Policy Criminal Law Property (expropriation) Agency/mandate Illegality Public Order Commission +5 more

Case Brief

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Parties

D. W. Ogilvie & Company

Plaintiff/appellant

A. C. Davie and Others (Davie & Co.)

Defendant/respondent

Procedural Posture

Appeal to the Supreme Court of Canada From the Court of King's Bench, Quebec (appeal Side) / Final Decision on Appeal; Remittal for New Trial Ordered

Legal Issues

  1. 1 Whether the contract/retainer was illegal as trafficking in influence contrary to public order and s.158(f) Criminal Code
  2. 2 Whether the allegation of illegality, first raised at argument after close of evidence, required a new trial to permit explanation and proof
  3. 3 Whether a vendor's agreement to permit an agent to keep any amount obtained above a stated minimum when selling to the Government is per se illegal

Ratio Decidendi

Majority held that because the defence of illegality was not pleaded and was first relied on at argument after evidence closed, and because the circumstances relied on were susceptible of explanation, the proper remedy was to allow the appeal, reverse the Court of King's Bench, and order a new trial limited to whether the contract was illegal, the true area of the land, and whether interest had been contracted to be paid to the plaintiffs; the Court did not finally decide the illegality issue on the record before it.

Court Disposition

Appeal allowed; judgment of Court of King's Bench reversed (Idington J. dissenting); new trial ordered on specified limited issues; no costs to either party of the appeal.

Orders

  • Appeal allowed without costs
  • Declare defendants' pleas that the action was premature and that Barnard was partner or authorised to receive money for the plaintiff unfounded