Canadian Law's Last Journey to London

What do eating Brussels (correct) sprouts at the House of Lords, an Alberta oilwell, a tenacious lawyer and Canadian legal history have in common? The thread that joins them all is the last trip to London by Canadian lawyers to argue a case before the Privy Council’s Judicial Committee.

Historically, the court of final appeal for Canadians and other British colonies was the Judicial Committee of the Privy Council, an august body of some of the finest legal minds in Britain. While travelling to London and wearing a rented wig in court was often the pinnacle of a colonial lawyer’s career, it was a cumbersome and expensive proposition. It also undermined the authority of the Supreme Court of Canada and after the First World War increasingly offended Canada’s growing sense of national self-sufficiency. So in 1933 Parliament ended appeals in Canadian criminal cases to London, and in 1949 they did the same thing for civil matters. A few civil cases already underway continued on to England, but by the mid-fifties appeals to the Privy Council by Canadians were a relic of our colonial past…or so, everybody thought.    

Ponoka-Calmar Oils Ltd. et al. v. Earl F. Wakefield (known in the Supreme Court of Canada as Wakefield v. Oil City Petroleums et. al. [1958] SCR 361) was a complex, dragged out fight over a small oil drilling project in the burgeoning oil fields near Leduc, Alberta. It was a matter which wended its way through the court system for more than ten years. And when all the issues had been reduced to a single controversy - that being who would pay a $30,000 oil drilling bill - it landed, quite unexpectedly before the Judicial Committee of the Privy Council. It was the last Canadian case to make the long journey to London and the foot of the throne. As such, in spite of its rather uninspiring facts, it holds a special place in Canadian legal history.    

It was an inventive and tenacious Alberta lawyer, Bill Morrow, who got the case before the Judicial Committee. He represented a group of Edmonton area lease holders (Ponoka-Calmar Oils Ltd.) in a dispute with a Kansas oil driller (Earl F. Wakefield). Morrow would later gain distinction as Justice Morrow in both the Northwest Territories and Alberta. James “Herb” Laycraft, the former Chief Justice of Alberta, died in 2015, but a few years before his death he recalled his involvement in that last legal trip to London. He remembered Morrow as “a litigator who never gave up” and a man with a well-honed sense of history. This case is a classic example of Morrow’s determination. He repeatedly said of his cases if he felt he was right he was prepared “to go all the way”. In his autobiography Northern Justice, Morrow outlined the remarkable history of this case and what he meant by, to go all the way. “My client and I were involved with the Supreme Court of Alberta five times, the Court of Appeal three times, the Supreme Court of Canada twice and finally the Privy Council.”    

Bill Morrow’s final appeal before the Supreme Court of Canada on this matter in 1958 did not go well. He had hoped that because his appearance fell on the same day as his birthday, February 5, it might be a good omen. But he wasn’t feeling especially confident as he made his way back to Edmonton by plane. He was mulling over what he could do next for his client, when a remarkable idea hit him. He wrote later, “I was asking myself if by chance our case was old enough to be appealable to the Privy Council.”    

And indeed it was. 

The original Statement of Claim in the matter had been issued on December 5, 1949. The Supreme Court Act making the Supreme Court the “exclusive ultimate” appeal court for Canada had been proclaimed on December 23 of the same year. “By these few days” Morrow recalled, “history was to allow my side another chance." And just as Morrow had anticipated, things did not go well in Ottawa. The Supreme Court judgment came out against his clients so Morrow almost immediately sought leave to appeal to the Privy Council and went to London to make his case. Leave was granted and in the summer of 1959, the Canadian lawyers including Morrow as lead counsel for Ponoka-Calmar and Herb Laycraft as junior for Earl F. Wakefield Company headed for London. Another junior on that last trip was William Stevenson who was to go on to serve on the Supreme Court. He now lives in retirement in Edmonton.    

In London, the lawyers were to see some of the ancient traditions associated with the highest level of the British judicial system, which is, of course, the root of our own system of justice. They had to rent wigs, a novel experience for Canadian lawyers, and appear gowned before the Judicial Committee even though the Law Lords, Laycraft recalled, wore “rather tweedy business suits”. Among the Law Lords was Lord Denning (Alfred Thompson Denning). He was already building an extraordinary reputation for his writings on the law and his special turn of phrase in his judgments. Several years later Denning wrote his famous judgment in Miller v Jackson [1977] QB 966, a lyrical tribute to English country cricket.

The Dickensian surroundings in London led Morrow to write some years later: “As I made my daily trips to and from the Inns of Court and to No. 3 Downing Street (the Court room used by the Privy Council) I was able to, in my romantic mind’s eye, relive hundreds of years of legal history.”

Laycraft would smilingly recall being taken to lunch at the British House of Lords. Laycraft and the other lawyers representing Wakefield, accompanied by their London solicitor, walked from the Privy Council building in Downing Street “fully robed, wigs on and in single file to the House of Lords, across six or eight lanes of traffic.” A London police officer brought cars to a halt so they could cross with ease. At the dining room “we were received with great ceremony and ushered into a magnificent room and seated.” But Laycraft, who had an aversion to Brussels sprouts remembered it as “one of the worst meals of my life with lots of those little cabbages”. He said, “I have always wondered what our London solicitors paid for that dreadful lunch.”    

The Judicial Committee was in no hurry to get through the arguments, and it took four days to hear them. Laycraft said he came away with a profound admiration for “the English court system at its peak, but it wasn’t needed for a $30 thousand dollar case." He said at the time it seemed natural enough. “But in retrospect” he said “I am left with the feeling that the traditions of that place were not our traditions, that the law for Canadians should be made by Canadians.”    

In the end, the Law Lords found for Earl F. Wakefield, and the Kansas oil man got his money. The loss also meant that Morrow who was working on what we would now call a contingency basis got nothing. But buoyed by his brush with a never-to-be-repeated historic event he wrote sometime afterward: “It is true I had worked hard for no fee – to have had one chance to appear before the Judicial Committee would have to be my fee. I think I was well paid.”

This is an updated version of a story that appeared in Lawyers Weekly in the spring of 2011.


Geoff Ellwand is a Calgary criminal lawyer with an MA in history. A former CBC reporter, he continues to write about the law and history. Geoff is also a member of the CBA Alberta Editorial Committee, and has leant his many talents to guest-editing this edition of Law Matters.