Diamond v. The Western Realty Co.

Diamond v. The Western Realty Co.

The appeal was dismissed: the Appellate Division's discretionary interlocutory refusal to order payment of the residue was not a final appealable judgment under the Supreme Court Act, and earlier interlocutory rulings by Middleton J. on the referee's jurisdiction were binding (res judicata) because no appeal was taken; the damages assessment was accordingly affirmed as to substance (no entitlement to the larger sums claimed).

Citation
[1924] SCR 308
Parties
Appellant / Plaintiff: David Diamond; Respondent / Defendant: The Western Realty Company Limited; Respondent / Mortgagee / Defendant: Davidson
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
22 April 1924
Procedural Posture
Civil Appeal / On Appeal to the Supreme Court of Canada From the Appellate Division of the Supreme Court of Ontario
Outcome
Appeal dismissed with costs
Legal Topics
Interlocutory Judgment, Res Judicata, Final Judgment, Discretionary Relief, Damages, Payment Out of Court, Receiver/accounts
Source Language
English
Contract Civil Procedure Equity Appeal Property Law Interlocutory Judgment Res Judicata Final Judgment +4 more

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Parties

David Diamond

Appellant / Plaintiff

The Western Realty Company Limited

Respondent / Defendant

Davidson

Respondent / Mortgagee / Defendant

Procedural Posture

Civil Appeal / On Appeal to the Supreme Court of Canada From the Appellate Division of the Supreme Court of Ontario

Legal Issues

  1. 1 Whether the Appellate Division's order refusing to direct payment of funds held in court was a final appealable judgment under the Supreme Court Act
  2. 2 Whether an interlocutory decision of a judge on a question of law from which no appeal was taken operates as res judicata between the same parties
  3. 3 Whether the referee's assessment of damages was supported by evidence and properly measured

Ratio Decidendi

The appeal was dismissed: the Appellate Division's discretionary interlocutory refusal to order payment of the residue was not a final appealable judgment under the Supreme Court Act, and earlier interlocutory rulings by Middleton J. on the referee's jurisdiction were binding (res judicata) because no appeal was taken; the damages assessment was accordingly affirmed as to substance (no entitlement to the larger sums claimed).

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs
  • Appellate Division judgment affirmed as to the question of damages