Kelly v. Sullivan

"Kelly v. Sullivan" [1876] 1 S.C.R. 3 was the first case heard by the Supreme Court of Canada. The Court answered the simple question of whether a case ruling from the Supreme Court of Judicature of Prince Edward Island could be appealed to a provincial appellate court. On the evidence available the Court found that there was insufficient records to prove that an appellate court for the province was ever created.

Background

The Supreme Court had only just come into existence. On April 8, 1875 the bill creating the court was passed and the court was inaugurated on November 18th. The Court's very first sitting was on January 17th, but there were no cases to be heard so they adjourned until spring.

That April the Supreme Court was given a reference question from the Canadian Senate ("In Re "The Brothers of the Christian Schools in Canada"). The Senate wanted to know if a bill entitled "An Act to incorporate the Brothers of the Christian Schools in Canada" was constitutional and within the authority of the federal government. Only Ritchie, Strong, and Fournier JJ. were in attendance, each only giving a single-sentence judgement.

It was not until June that the Court had its first hearings with the case of "Kelly v. Sullivan".

The issue before the Court in this case was whether there existed a Court of Error or Court of Appeal for the province of Prince Edward Island. The appellants were arguing that there was no evidence of any such court existed. The respondent claims that instructions from the Crown to the Lieutenant Governor and his appointment as Captain-General and Governor-in-Chief of the Island was sufficient evidence of the creation of the Court.

Ruling

Present were the Chief Justice Richards, Ritchie, Strong, Taschereau, and Fournier JJ. Each judge wrote separate judgements.

The Court examined the basis of the claim within colonial law from the time when the island was governed by Governor Patterson in the 1770s. The Court examined the legislation from the period to see if there was any evidence that an Appellate-level court was created and whether there was any enabling legislation. The Court unanimously held that there was no Court created. In any event the respondent had no possibility to appeal as the limitations period had already expired.

ee also

* List of Supreme Court of Canada cases (Richards Court through Fauteux Court)