CONNORS BROS LTD Vs. BERNARD CONNORS

JUDGEMENT

(1.) This is an appeal from a judgment of the Supreme Court of Canada dated 19 December 1938, which (by a majority of three Judges to two) reversed the judgment of the supreme Court of New Brunswick, appellate division. The latter had dismissed an appeal from a judgment of Chief Justice of New Brunswick.

(2.) The divergence of judicial opinion is striking, since six Judges in Canada were in favour of the present appellants and three-the majority in the Supreme Court of Canada- took the other view. These differences have perhaps been accentuated by the curious shape which the proceedings assumed. The main question has throughout been whether certain covenants entered into by Bernard Connors, the present respondent, with the appellants or any of those covenants are enforceable or whether on the other hand they are unenforceable as being in restraint of trade. This question has been raised not in proceedings instituted by the covenantee to enforce some or one of the covenants, but by an Originating Summons issued under O. 54A of the Rules of the Supreme Court of New Brunswick by the covenantor (the respondent, seeking to have it determined whether upon the construction of the covenants he was barred from engaging in a certain business or from doing certain other acts. These questions were not in the main matters for construction at all, though incidentally some matters of construction might have arisen for the consideration of the Court. They were questions of law based on public policy depending to a large extent no doubt on the circumstances proved to exist at the time when the covenants were entered into.

(3.) It is to be noted that the Chief Justice of New Brunswick seems to have entertained grave doubts as to the propriety of such a proceeding under O.54A. To their Lordships it seems clear that those doubts were more than justified. In the event the case proceeded without the advantage of pleadings or particulars or discovery of documents. The respondent made a concise affidavit in support of his summons in which he stated no facts or circumstances relating to the covenants beyond the statement that he was advised that they were not reasonably necessary for the protection of the appellants in their business and were in the nature of an effort to stifle or prevent lawful competition. At the trial he was cross-examined on his affidavit and no further evidence was called on his behalf. The appellants then called three witnesses. In these circumstances it is not surprising that the evidence before the Court was not of a very satisfactory character, and that differing opinions as to its result have been formed by the Judges in Canada who have had to deal with the matter. Their Lordships have thus to deal with an appeal on questions raised under O. 54A, New Brunswick Judicature Act, which was not in their view an appropriate method of dealing with those questions; but, having regard to the fact that three Courts have delivered their judgments on the footing that the questions were properly raised before them, their Lordships feel bound to follow the same course and to express their opinion on the materials submitted to them. It should be added that the respondent did not lodge his case in the usual way and was not represented on the present appeal. Their Lordships naturally regret this circumstance which adds to their difficulties; but they think it right to state that counsel for the appellants argued on their behalf with great candour and fairness, and they do not think that the respondent has suffered by reason of the absence of counsel on his behalf.