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RETURN To an Address presented to His Honour the Lieutenant-Governor, asking him to cause to be laid… British Columbia. Legislative Assembly 1900

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 63 VtCT. Salaries of County Court Judges. 487
RETURN
To an Address presented to His Honour the Lieutenant-Governor, asking him to cause
J^rRe laid before the House copies of all correspondence, memorials and papers
between the County Court Judges of this Province and the Provincial Government, or any member thereof, and between the Dominion Government, or any
member thereof, and the Provincial Government, or any member thereof, relative
to the discontinuance of the salary as Stipendiary Magistrates heretofore paid by
the Province to each of the said County Court Judges.
By Command.
C. A. SEMLIN,
Provincial Secretary.
Provincial Secretary's Office,
18th January, 1900.
New Westminster, 28th November, 1898.
To His Excellency
The Governor-General in Council, Ottawa.
May it please Your Excellency:—We, the undersigned Judges of the County Courts
of British Columbia, have the honour to call Your Excellency's attention to the fact that the
Provincial Government, through the Honourable the Attorney-General, have notified us that
the salary of $500 a year each heretofore paid to us by that Government will cease after the
30th November, 1898.
We may be permitted to respectfully call Your Excellency's attention to the circumstances
under which we were appointed. In 1889, after considerable discussion between the Honourable Edgar Dewdney, representing the Dominion Government, and the Honourable John
Robson, representing the Government of British Columbia, it was finally arranged that each
County Court Judge should, on appointment, receive f 2,400 per annum as salary from the
Dominion Government, the Provincial Government to supplement that salary by $500 per
annum in consideration of each Judge acting also as Stipendiary Magistrate, for, as the
Honourable Mr. Robson pointed out at the time, $2,900 thus made up was the lowest salary
at which it would be possible to secure the services of competent men (vide Sessional Papers
of B. C, 1889, p. 164). This was only in pursuance of a similar policy adopted when Judge
Harrison, of Cariboo, was appointed for that District in 1884.
We beg most respectfully to direct Your Excellency's attention to the fact that even
the $2,900 thus made up is far from being an adequate payment for the services rendered,
having regard to the jurisdiction we possess, which is larger than that exercised by the County
Court in Great Britain or in any other Canadian Province, extending, as it does, to $1,000 in
contract or tort, $1,000 by way of counter-claim, $2,500 in equitable matters, and to any
amount by consent, and in mining matters; and besides this we have discharged many of the
duties (some of us all the duties) of a Supreme Court Judge without receiving any extra salary
therefor.
We venture to express the hope that such steps will be taken to repair the very serious
injury inflicted upon us by the proposed action of the Provincial Government, and to secure us
the full amount of salary agreed upon, so that we will not in future be exposed to similar
proceedings.
We have the honour to be
Your Excellency's obedient servants,
(Signed)        E. Harrison,
ii W. Norman Bole,
ii Clement F. Cornwall,
n Wm. Ward Spinks,
Copy circular enclosed. n J. A. Forin. 488 Salaries of County Court Judges. 1899
Attorney-General's Office,
Victoria, B. C, October 31st, 1898.
His Honour Judge	
Sir,—The Government have decided to discontinue the salary received by you from them.
Your salary will be paid for the month of November next, but on and after the 30th of that
month it will be discontinued.
I have, &c,
(Signed)        Joseph Martin,
Attorney-General.
The undersigned has*the honour to report, with reference to the memorial sent to His
Excellency the Governor-General in Council by the County Court Judges of this Province,
dated the 28th day of November last, a copy of which has been transmitted to His Honour
the Lieutenant-Governor by the Secretary of State, as follows:—
It is understood that some claim is made by the County Court Judges that there was
some kind of a bargain or arrangement between the Dominion Government and the Provincial
Government at the time that County Court Judges were first appointed in this Province, by
which it was agreed that the Provincial Government should supplement the salaries of those
Judges. A reference to the correspondence will show that no such arrangement was either made
or proposed. It was pointed out at the time by the Provincial Government that the salaries
which the Dominion Government proposed to pay were not adequate for this Province. The
Dominion Government, however, insisted that they could not make any discrimination between
the Provinces, and would not agree to appoint such Judges except at the same salary as was
paid in other parts of Canada. Thereupon the Provincial Government suggested that they
would supplement the salaries in order to obtain the services of competent men. This was an
entirely voluntary statement on the part of the Provincial Government, and was not asked
for in any way by the Dominion Government. There was, therefore, no bargain or arrangement of any kind whatever.
There appears to be no reason why, in the interests of this Province, the grants heretofore made to these Judges should be continued. For this reason the undersigned some time ago
recommended that the said grants should be discontinued, and said recommendation was duly
put in force.
The undersigned would suggest that if the memorial of the County Court Judges, which
is not at all clearly expressed, is intended to be an application to the Dominion Government
for an increase of salary, there appears to be no reason why the Provincial Government should
express any opinion upon the subject.
Dated this 11th day of February, 1899.
Joseph Martin,
A ttorney-General.
Approved the 11th day of February, 1899.
Robert E. McKechnie,
Presiding Member, Executive Council.
Ottawa, 15th June, 1899.
Sir,—We refer to previous correspondence respecting the salaries of County Court Judges
in the Province of British Columbia, I have now the honour to transmit to you, herewith,  a
Minute of the Privy Council, approved by His Excellency the Governor-General, on the 13th
instant, embodying the views of his Government upon the subject.
I have at the same time to observe, that for the reasons mentioned in the said Minute,
there can be no doubt that an arrangement was concluded and acted upon with respect to the
appointment and salaries of the County Court Judges which, in good faith, should be carried
out, and to request that the salaries withheld be restored.
I have, <fcc.,
(Signed)        R. W. Scott,
Secretary of State.
His Honour the Lieutenant-Governor of
British Columbia, Victoria, B. C. 63 Vict. Salaries of County Court Judges. 489
1207.
Extract from a Report of the Committee of the Honourable the Privy Council, approved by
His Excellency on the 13th June, 1899.
On a Report, dated 1st June, 1899, from the Minister of Justice, stating that by a memorial dated 28th November, 1898, the County Court Judges of British Columbia represented
to Your Excellency that the Provincial Government had intimated to them that the salary of
$500 a year, theretofore paid to each of them by the Province, would cease after 30th
November, 1898.
They called attention to the fact that in 1889, after a considerable discussion between
Mr. Dewdney, representing the Dominion Government, and Mr. Robson, representing the
Provincial Government, it was arranged that each County Court Judge should, on appointment, receive a salary of $2,400 per annum from the Dominion Government, and that the
Government of the Province should supplement that salary by $500 in consideration of each
Judge acting also as Stipendiary Magistrate, and they pointed out that Mr. Robson, on behalf
of the Province, had stated at the time that $2,900 was the lowest salary at which it would
be possible to secure the services of competent men. The Judges stated further that a salary
of $2,400 per annum was far from being adequate for the services rendered, having regard to
the jurisdiction which they possessed, and they expressed the hope that steps would be taken
to repair the loss which would be inflicted upon them by the proposed action of the Province,
and to secure the full amount of their salary as agreed upon.
The Minister observes that, in pursuance of the Minute of Council approved 23rd January,
1899, this memorandum was communicated to the Lieutenant-Governor of British Columbia
for his report. On 16th February, 1899, the Lieutenant-Governor transmitted to the Secretary of State an approved report of the Attorney-General of the Province upon the memorial
of the County Court Judges.
The Minister submits herewith copy of the said report of the Attorney-General, from
which it appears that the Government of the Province understand that a claim is made by the
County Court Judges that an arrangement exists between Your Excellency's Government
and the Provincial Government by which the latter Government ought to supplement the
salaries of the Judges. It is stated, however, that no such arrangement has been made or
proposed, and this is sought to be established by reference to the correspondence, by which, it
is stated, the Provincial Government pointed out that the salaries which the Dominion Government proposed to pay were not adequate for the Province of British Columbia; that the
Dominion Government, however, insisted that they could not discriminate between the Provinces, and would not agree to appoint County Court Judges for British Columbia except at
the same salary as was paid in the other parts of Canada, that thereupon the Provincial Government suggested that they would supplement the salaries in order to obtain the services of
competent men, but that this was an entirely voluntary statement on the part of the Province
and not asked for in any way by the Dominion. It is not denied that the Judges were
appointed upon and in view of the alleged statements in this correspondence.
The Minister further states that, he fails to apprehend, even upon the effects of the correspondence as stated by the Attorney-General, how it can be said that there was no bargain
or arrangement of any kind whatever. The ground which seems to be particularly emphasized
by the Attorney-General is that the proposal of the Provincial Government to supplement the
Judges' salaries for the purpose of obtaining the services of competent men was a voluntary
proposal, but the statemeent of that ground is merely an affirmation of a fact which is essential
to the validity of any contract or arrangement. It is assumed, or must be established in proper cases, when two parties, whether they be governments or individuals, have entered into
an arrangement by which they are afterwards to be bound, that each party acted voluntarily,
or as a free agent. In the present case, of course, it has never been suggested that the Government of the Province made the proposal, which was accepted by the Dominion Government,
and upon the faith of which the Judges accepted appointment to office, otherwise than in the
exercise of a free and sound judgment as to what was expedient in the general interest of the
Province. The ground urged by the Attorney-General for the purpose of escaping from the
obligation which, in the opinion of the Minister, the arrangement in question imposed upon the
Government of the Province, might be urged with equal force with regard to any imaginable
contract between individuals which a Court of Justice might be called upon to enforce. Offers
or proposals which the law recognizes are, and must always be, voluntary.    For that reason 490 Salaries of County Court Judges. 1899
they may freely be withdrawn previous to acceptance, but once the proposal has been accepted
and acted upon, as the proposal of the Province has been in this ease, it would be, the Minister
apprehends, impossible, upon legal or other reasons, to base a valid claim for relief upon the
ground that the offer, which resulted in the contract, had been made voluntarily.
The Minister further observes that, the Attorney-General states that there appears to be
no reason why, in the interest of the Province, the payments heretofore made to the Judges
should be continued. If, in the opinion of the present Provincial Government, competent
Judges for the County Courts may now be secured at a salary of $2,400, this remark of the
Attorney-General may hold so far as the future is concerned, but as to the present Judges,
good faith requires that the payments should be continued. They accepted office upon the
assurance that they would receive an allowance of $500 per annum from the Province in
addition to the salary paid by the Dominion, and, as it appears, in the opinion of the Provincial Government of the time, it was necessary to give that assurance in order to obtain competent men for the office.
The Minister further submits that there can be no doubt as to the meaning and object of
the memorial addressed to your Excellency by the County Court Judges. They state the
circumstances fairly and complain that they are now deprived of an allowance from the Province which they have hitherto received, and which they were entitled to expect would be continued, having regard to the circumstances attendant upon their appointment to office. While
the Judges would doubtless be satisfied to have their previous salary maintained, from whatever source the moneys were paid, it is clear from the correspondence to which they refer that
the obligation does not rest with Your Excellency to supply the allowance which is being withheld by the Province.
They seek, properly enough under the circumstances, the friendly offices of Your Excellency for the purpose of having the agreement between the Dominion and the Province carried
out; but there is, in the opinion of the Minister, no room for misapprehending the claim set
up by the memorial that the Government of the Province should continue to make the payments as heretofore.
Turning now to the evidence in support of the arrangement between the two Governments other than that which appears upon the Attorney-General's report, it appears that in 1883
Sir Alexander Campbell, then Minister of Justice, was authorised by the Government of
Canada to visit British Columbia and make arrangements relative to the various points then
remaining unsettled between the Governments ; that in pursuance of such authority he
visited the Province and had negotiations with the Provincial Government. One of the subjects engaging the attention of Sir Alexander Campbell and the Provincial Government at the
time was that of County Court jurisdiction, and it was arranged that an officer should be
appointed, who should be at the same time County Court Judge and Stipendiary Magistrate
for Cariboo and Lillooet, the Dominion Government paying his salary as Judge, and the Province paying his salary as Stipendiary Magistrate. With his report of 25th September, 1883,
to His Excellency the Marquis of Lorne, then Governor-General of Canada, Sir Alexander
Campbell submitted a memorandum dated 20th August, 1883, embodying the agreement between the two Governments. This agreement is signed by Sir Alexander Campbell and by
Mr. Smithe, then Premier of the Province, and states upon the subject of the Judiciary as
follows :—
" A County Court Judge shall be appointed by the Dominion Government for the District
" of Cariboo and Lillooet, at a salary of twenty-four hundred dollars, and he shall receive from
" the Local Government the appointment of Stipendiary Magistrate, at a salary of five hun-
" dred dollars, legislative authority for this arrangement, if necessary, and for the payment of
" the Judge, to be sought for." Then follows a statement that the agreement includes all
matters as to which there is any dispute or difference between the two Governments, and when
carried into effect will constitute a full settlement of all existing claims on either side or by
either Government. (See Sessional Papers of Canada 1885, Vol. XVIIL, No. 161, pages
25 to 28.)
Mr. Harrison was accordingly appointed by the Dominion Government Judge of the
County Court of Cariboo on 25th April, 1884, and he was also appointed by the Provincial
Government a Justice of the Peace and Stipendiary Magistrate for the Province on 8th May,
1884. He was paid by the Dominion as County Court Judge a salary of $2,400, and by the
Province, out of moneys specially voted for the purpose, an additional salary of $500. 63 Vict. Salaries of County Court Judges. 491
The Minister further states that, in the Sessional Papers of British Columbia, 1889, pages
161 to 165, will be found the report of Mr. Dewdney, then Minister of the Interior, to the
Governor-General in Council, dated 10th December, 1888, referring to the mission of Mr.
Robson, then Provincial Secretary of British Columbia, who held conferences with Mr. Dewdney in relation to various matters requiring adjustment between the Government of the
Dominion and the Government of British Columbia with respect to which Mr. Robson was
empowered by his Government to arrange a basis of settlement. Upon the subject of County
Court Judges, Mr. Dewdney reports as follows:—
The Government of British Columbia asks that four " County Court Judges may be
" appointed for the districts of Kamloops, New Westminster, Nanaimo, and Victoria, respect-
" ively, the Provincial Government to supplement the salary by $500 per annum, in considera-
" tion of each Judge acting also as Stipendiary Magistrate. In this connection, Mr. Robson
" offers the suggestion that the Dominion Government should not pay less than $2,400 per
" annum to each of these Judges, that sum, together with the amount to be paid by the
" Provincial Government, being the lowest salary at which that Government consider it would
" be possible to secure the services of competent men.
"Under the arrangement made between the late Minister of the Interior and Mr. Robson,
" two Judges were to be appointed, but the necessary legislation not having been enacted at
" the last Session of the Dominion Parliament, the Provincial Government has taken this
" opportunity to urge an increase in the number. The undersigned states that he has consulted
" with the Minister of Justice upon this point, who is of opinion that it might be advisable to
" make provision for an additional appointment at Nanaimo. Should this opinion be concurred
" in, the undersigned recommends that Mr. Robson be informed accordingly, and that the
" salaries must be on the same terms as in other parts of Canada."
The Minister further states that this Report was duly approved by the Governor-General
on the 16th December, 1888, and Judges were subsequently appointed pursuant to the
arrangement as so stated and confirmed.
Judge Harrison was transferred to Nanaimo on 3rd August, 1889; Mr. Bole was
appointed County Court Judge for New Westminster on 19th September, 1889; Mr. Spinks
for Yale and Mr. Cornwall for Cariboo on the same date, and Mr. Forin was appointed County
Court Judge for Kootenay on 22nd November, 1896. Judges Bole, Spinks, and Cornwall
were appointed, by the Government of British Columbia, Stipendiary Magistrates for the
Province in 1889, and received salaries from the Dominion and from the Province in accordance with the agreement. Judge Forin also was appointed Stipendiary Magistrate by the
Provincial Government at the time of his receiving his Dominion appointment as County
Court Judge, and he also received salary from both sources. The Commissions of these
gentlemen as Stipendiary Magistrates still remain in force, although the Provincial salary has
been withheld.
The Minister further observes that there can be no doubt, therefore, that an arrangement
was concluded and acted upon with respect to the appointment and salaries of the County
Court Judges, which in honour and good faith should be respected and upheld ; and, inasmuch
as the Dominion Government of the time was a party to that arrangement, he, the Minister,
considers that Your Excellency's Government ought to urge upon the Provincial Government,
as strongly as possible, the propriety of continuing the payments in question.
The Minister therefore recommends that a copy of this Minute, if approved, be transmitted to the Lieutenant-Governor of British Columbia, for the information of his Government,
with a request that, for the reasons herein stated, the salaries withheld be restored.
The Committee submit the above recommendation for Your Excellency's approval.
John J. McGee,
Clerk of the Privy Council.
His Honour
The Lieutenant-Governor of British Columbia. 492 Salaries of County Court Judges. 1899
Nanaimo, B.C., 10th November, 1899.
Sir,—I have the honour, in view of the correspondence which has taken place between
the Dominion and Provincial Governments with reference to the non-payment of the County
Court Judges' salaries, to place before you the following facts :—
I was appointed Judge of the County Court of Nanaimo in April, 1884, and Stipendiary
Magistrate for the whole Province by the Provincial Government, Sth May, 1884.
The supplementary $500 was voted in advance of these appointments. (Provincial Supply
Bill with Estimates for 1884-1885, and Supplementary Estimates, April to June, 1884.)
These appointments were made in consequence of negotiations between the Provincial
and Dominion Governments.    (Dominion Sessional Papers, 1885, No. 161, pp. 26-28.)
Judges Cornwall, Bole, and Spinks were appointed Judges of the County Courts of
Cariboo, New Westminster, and Yale, respectively, and I was appointed Judge of the County
Court of Nanaimo, in 1889.
They were also appointed Stipendiary Magistrates for the whole Province in the same
year, 1889.
The supplementary salaries for the appointments of 1889 were voted in advance by the
Provincial Legislature as "Additional to Dominion." (B. C. Supply Bill and Estimates,
1889; B. C. Sessional Papers, 1889; Dominion Supply Bill, 1889.)
The then County Court Judges were also constituted Local Judges of the Supreme Court
(B. C. Statutes, c. 8, 1891), and afterwards received Commissions as such from the Governor-
General (mine is dated 7th December, 1891), and have acted as such, but have never received
any fee or emolument for so doing.
The Nanaimo Judicial District was constituted by the Provincial authorities, and by
Provincial Order in Council it was provided that I should have, in Supreme Court business,
all the powers and authorities of a Judge of the Supreme Court.
My Commission has never been cancelled, and the Order in Council has never been
revoked, and from the time it was passed I have tried Supreme Court cases and exercised all
the powers and authorities referred to, and continue to do so—but no pay.
The $500 has, ever since my appointment, been paid, until withheld last year.
The Commissions as Stipendiary Magistrates are still uncancelled.
I repeatedly acted as Stipendiary Magistrate, and at the request of the Provincial Government, in different parts of the Province.
Until last year, 1898, the County Court Judges had, for years previously, been included
in the Commission of Assize and Oyer and Terminer and General Gaol Delivery, and I had
tried criminal cases at different Assizes under this Commission in New Westminster, Nanaimo
and Victoria.
At the end of September, 1898, I was requested by the Chief Justice to try a murder case
at the Victoria Assizes, and went there to do so, but without any previous notification a fresh
Commission was issued and the County Court Judges were not included.
In 1898 the Legislature of British Columbia voted the specific $500 until June of this
year, 1899, but in October last year, 1898, I received the following from the Provincial
Attorney-General:—
" His Honour Judge Harrison.
" Sir,—The salary paid you by the Provincial Government will be discontinued after
November 30th.
" I have, etc.,
"Jos.  Martin."
In November, 1898, the County Court Judges memorialized the Governor-General in
Council. Subsequently I was notified that my Commission as a Justice of the Peace had been
cancelled by the Provincial Government.
In April, 1899, I was informed by the Deputy Minister of Justice "that the Provincial
" Government deny any arrangement was made between the Dominion and Provincial Govern-
" ments, by which the latter should supplement the Judges' salaries, though it is stated in the
" Provincial Despatch that the Provincial Government suggested that they would supplement
" the salaries in order to obtain the services of competent men, but that this was an entirely
" voluntary statement and does not control." 63 Vict. Salaries of County Court Judges. 493
In June, 1899, the Minister of Justice wrote the Provincial Government urging the payment, by them, of what they had arranged with the Dominion Government to pay.
A former Premier and Attorney-General of British Columbia had in view taking a County
Court Judgeship, and more than one Judge of the Supreme Court, before his appointment as
Supreme Court Judge, desired the appointment of County Court Judge. Is it to be supposed
that they ever imagined that if they received it the supplementary salary of $500 would be
withheld".
If $2,400 only were to be paid to County Court Judges in British Columbia they would
not be paid as much as in Ontario.
There are no fees here—there are there. Some County Court Judges in Ontario, Nova
Scotia, New Brunswick and Prince Edward Island receive $3,000, besides fees.
In British Columbia County Court Judges are precluded by Statute from practising.
The County Courts of Ontario have jurisdiction in contested cases up to $200 only, and
have four terms a year, and sit semi-annually for the trial of issues of fact and assessment of
damages.
It is true that a County Court Judge there holds Division Courts—our Small Debts
Courts—but that Court is a purely Provincial Court and held as a Provincial appointee, and it
is not compulsory for him to do so under his Commission as a County Court Judge.
Here there are in reality no Counties or County organization.
Nor were Judges Cornwall, Bole, Spinks or myself appointed for Counties.
We were all appointed Judges of a Court of large jurisdiction, both as to area and subject-
matter.
We were appointed Local Judges of the Supreme Court, and some of us with unlimited
jurisdiction as to subject-matter.
We have unlimited jurisdiction in mining cases and as to mechanics' liens.
We are the Appellate Courts from the Small Debts Courts—Division Courts.
There is an appeal from the County Courts here to the Supreme Court of Canada.
The Provincial Government have withheld what was voted us by the Legislature until
June, 1899.
They should pay because they agreed to, and because they objected, and rightly should
now object, to payment by fees, except where absolutely unavoidable.
I have, etc.,
E. Harrison.
The lion. A.  Henderson,
Attorney-General,   Victoria.
VICTORIA, B. C:
Printed by Richard Wolfenden, Printer to the Queen's Most Excellent Majesty.
1900 

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