Supreme Court of Canada
Town of Beauport v. Quebec Railway, Light & Power
Co. / Quebec Railway, Light & Power Co. v. Town of Beauport, [1945] S.C.R.
16
Date: 1944-03-15.
Quebec Railway
Light & Power Company (Petitioner). Appellant;
and
The Town of Beauport and Others (Respondents) Respondent;
and
The Attorney
General for Canada and The Attorney General for Quebec
Intervenants.
ON APPEAL FROM THE
BOARD OF TRANSPORT COMMISSIONERS FOR CANADA
1943: October 26, 27, 28; 1944: March 15.
Present: Rinfret, Davis, Kerwin, Hudson and
Rand JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Constitutional law—Carriers—Railway company—"Undertaking"
of company declared "for general advantage of Canada"—Added power to
operate auto bus service—"Subject to all provincial * * * enactments"—Tariff
of tolls—Jurisdiction—Federal or provincial authority—Whether auto busses are
"works"—Section 91 (29) and section 92 (10 c) B.N.A. Act.
The Quebec Railway, Light & Power Company
applied for an order of the Board of Transport Commissioners approving its
tariff of tolls for the carriage of passengers on the motor busses operated by
it; while the town of Beauport
petitioned the Quebec Public Service Board for an order by which the same tolls
would be fixed. The Board of Transport Commissioners dismissed the company's
application for want of jurisdiction; while the appellate count of Quebec, reversing the decision of the
President of the Public Service Board, held that that Board was without
jurisdiction to deal with such tolls
[Page 17]
on the ground that the railway company fell
under the exclusive jurisdiction of the federal board. The decisions being
contradictory, both the railway company and the town of Beauport appealed to this Court.
Held, Davis
and Hudson JJ. dissenting, that the fixing of fares, or tolls, to be charged by
the railway company in respect of its motor bus service, was within federal
jurisdiction; but that federal legislation was lacking, as regulation of tolls
over such service is not included in the powers granted to the Board of
Transport Commissioners.
Per Davis and
Hudson JJ. dissenting.—Jurisdiction over the fares, or tolls, of the railway
company's autobus system is vested in the province. Such jurisdiction has not
been transferred to the Dominion under Dominion Acts and should be exercised by
the Quebec Public Service Board.
Per Rinfret J.
and Kerwin J.:—A Dominion Act of 1895 declared the "undertaking of the
(railway) company * * * a work for the general advantage of Canada" and
thus brought the company under the legislative authority of the Parliament of
Canada (Quebec R. L. & P. Co. v. Montcalm Land Co. [1927]
S.C.R. 545). The word "undertaking" as used in the statute comprises
the whole of the works of the company, not only the works existing in 1895 but
all its future enterprises. The auto busses owned and operated by the company
fall within the meaning of the term "works" in head 10 (c) of
section 92 B.N.A. Act and, therefore, can properly be brought and integrated
into the "undertaking".
Per Rand
J:—The steam railway and the tramway system of the company are both within the
legislative jurisdiction of the Dominion (Montcalm Land Co.'s case, supra).
The works of the company are, in the jurisdictional aspect, to be
considered as if they had been specifically set forth in section 91 (29) of the
B.N.A. Act. The federal legislation of 1939, adding the power to operate auto
busses is within the scope of the legislative field appropriate to the subject
matter of the declaration in the Dominion Act of 1895. It cannot be denied to
such an undertaking modifications in operational means and methods designed
more efficiently to carry out its original and essential purposes. The
controlling fact is that the identity of the works is presented: they remain in
substance the works of transportation dealt with by the declaration.
Per Rinfret,
Kerwin and Rand JJ:—The proviso of the amending federal Act of 1939 whereby the
power to operate auto busses "subject to all provincial and municipal
enactments" was conferred, does not give to the provincial Board
jurisdiction to deal with the fares and tolls to be charged by the company.
Such proviso made autobus service amenable to provincial laws for certain
purposes, e.g. the right to license and regulate traffic, but the exclusive
field of the Dominion as to regulation of rates is unaffected by that Act.
Per Davis J. (dissenting):—The generality of
the language of the subsection (2) added by the Dominion Act of 1939, imposing
a condition on the grant of the power to operate auto busses, is sufficient to
involve the regulation and control by the province of the motor busses on the
municipal and provincial highways of the province, and
[Page 18]
the fixing of fares or tolls, for uniformity
or otherwise, by a provincial board comes within the condition, upon a proper
construction of the subsection.
Per Hudson J.
(dissenting):—The declaration contained in the Dominion Act of 1895 does not,
and never was intended by Parliament to, extend to the operation of auto busses
on the highways, either in respect of the regulations of rates or otherwise.
APPEAL from an order of the Board of
Transport Commissioners for Canada, ruling
that the Board had no jurisdiction in the matter of the fares, or tolls, to be
charged by the Quebec Railway Light & Power Company in respect of the motor
bus service operated by it; and
APPEAL from the decision of the Court of
King's Bench, appeal side, province of Quebec,
which, reversing the judgment of the President of the Quebec Public Service Board, held that such matter was within the
exclusive jurisdiction of the federal Board.
The material facts of the case and the
questions at issue are stated in the above head-notes and in the judgments now
reported.
In the first appeal:
Paul Taschereau K.C. for the appellant.
Y. Prévost for
the respondent: Town of Beauport.
F. Dorion K.C. for
the respondent: Town of Courville.
C. Stein for the
Attorney General for Canada.
Aimé Geoffrion K.C. and R. Genest K.C. for
the Attorney General for Quebec.
In the second appeal:
Guy Hudon K.C. for the appellant.
P. H. Bouffard K.C. for the respondent.
C. Stein for the
Attorney General for Canada.
Aimé Geoffrion K.C and L. A. Pouliot K.C.
for the Attorney General for Quebec.
[Page 19]
Rinfret J.—These are two appeals, heard together by this Court, which raise
an identical question: whether the fares, or tolls, to be charged by the Quebec
Railway Light & Power Co. in respect of its motor bus service are within
the jurisdiction of the Quebec Public Service Board, or whether they are within
the jurisdiction of the Board of Transport Commissioners for Canada, or, in
other words, whether these fares and tolls come under the provincial or under
the federal authority.
I do not propose to go in detail into the
history of the Quebec Railway Light & Power Co., except in so far as it
seems to me necessary for the purpose of explaining the grounds upon which I
base my conclusions.
The company was originally incorporated by an
Act of the legislature of the province of Quebec (Statutes of Quebec, 44-45 Victoria, c. 44) under the name of the Quebec, Montmorency and Charlevoix Railway Company. It was then
undoubtedly a local provincial company, operating a railway solely within the province of Quebec.
Later, in 1894, the powers of the company were
extended to permit it to operate an electric tramway within the limits of the
city of Quebec and this was
also done by legislation of the province of Quebec.
But in 1895 the parliament of Canada passed an Act (58-59 Victoria, c. 59) constituting the company a
federal corporation; and sections (1) and (2) of that Act read as follows:—
(1) The undertaking of the Quebec,
Montmorency and Charlevoix Railway Company, a body incorporated as mentioned in
the preamble, and hereinafter called "the Company", is hereby
declared to be a work for the general advantage of Canada.
(2) The Company as now organized and
constituted under the said Acts of the province of Quebec is hereby declared to
be a body politic and corporate within the legislative authority of the
Parliament of Canada; and this Act and The Railway Act of Canada shall
apply to the Company and its undertaking, instead of the said Acts of the
province of Quebec and The Railway Act of Quebec: Provided that nothing
in this section shall affect anything done, any rights or privilege acquired,
or any liability incurred under the said Acts of the province of Quebec, prior
to the time of the passing of this Act,—to all which rights and privileges the
Company shall continue to be entitled and to all of which liabilities the
Company shall continue to be subject.
The undertaking of the company was, therefore,
"declared to be a work for the general advantage of Canada"; and, furthermore, the company
was
[Page 20]
declared to be a body politic and corporate
within the legislative authority of the Parliament of Canada;
and
this Act (that is to say, the Dominion Act
of 1895) and The Railway Act of Canada were declared to apply to the company and its undertaking, instead
of the Acts of the province of Quebec and The Railway Act of Quebec.
The same Act also contained the following
section:—
(8) The Company may use and employ for the
locomotion and propulsion of its cars, vehicles and rolling stock, where such
power is required, electricity in all its forms, steam, and any approved
mechanical power or other means, agency or force for such purposes that science
or invention may develop,—and shall have all rights, powers and privileges
necessary and essential to the management, operation and maintenance of its
line as an electrical system either in whole or in part; and may acquire, use
and develop every kind of electrical force, power and energy required or useful
in the working of the undertaking, and apply such agencies and motive power for
all its uses and purposes aforesaid.
In 1899 the name of the company was changed to
the Quebec Railway Light and' Power Company, its present name.
In 1939 the following subsection (2) was added
by Parliament to the above section (8) by statute of Canada, 3 Geo. VI, c. 56:—
(2) It is enacted and declared that the
Company's now existing powers apart from any limitations with respect to the
use of steam, include the power to own, maintain, lease, possess and operate
auto busses, trolley busses and all kinds of public or private conveyances
whether propelled or moved by oil, vapour or other motor or mechanical power
in, over and throughout any of the territory in which it is now authorized to
operate, subject to all provincial and municipal enactments, in respect to
highways and motor vehicles operated thereon and applicable thereto.
In my mind the legislation already reproduced is
all that is necessary to be referred to for the purposes of the decision which
we have to render.
As will be noticed, by the amendment of 1939 it
was declared that the company's powers "include the power to own,
maintain, lease, possess and operate auto busses".
Accordingly, the company applied for an order of
the Board of Transport Commissioners approving its tariff of tolls for the
carriage of passengers on the motor busses operated by it between the village
of Boischatel and the city of Quebec. On the other hand, the town of
Beauport petitioned
[Page 21]
the Quebec Public Service Board for an order
prescribing certain improvements in the service of the same auto busses, but
mainly with the object of having fixed the rates and tolls on the same line.
The Board of Transport Commissioners dismissed
the application of the railway company on the ground that it had no
jurisdiction to deal with the company's tariffs of tolls or rates in question
here; but on the petition of the town of Beauport to the Quebec Public Service
Board, while the President of that Board
held that it had jurisdiction to entertain the request of the town, the
judgment of the President went before the Court of King's Bench (appeal side) which held that the provincial board had no
jurisdiction and that the railway company, in the exercise of its statutory
rights, fell under the exclusive jurisdiction of the Board of Transport
Commissioners for Canada.
The two decisions being contradictory, the
result was that both the town of Beauport appealed to this Court from the judgment of the Court of King's
Bench (appeal side) and the Quebec Railway Light and Power Company appealed
from the decision of the Board of Transport Commissioners.
The question to be decided is whether the
control of the tariffs of the autobus rates and tolls of the Quebec Railway
Light and Power Company comes under the jurisdiction of the provincial Public
Service Board of Quebec, or under the jurisdiction of the Dominion Board of
Transport Commissioners; and that is the only question at issue in the two
appeals before this Court.
It is common ground that the railway company
operates its autobus service between Jacques Cartier Square in the city of
Quebec and the village of Boischatel, and that it holds a permit from the
Public Service Board of the province; but also that, since the legislation of
1895 declaring the undertaking of the company to be a work for the general
advantage of Canada, both the steam railway and the tramway system of the
Quebec Railway Company are under the legislative jurisdiction of the Dominion.
[Page 22]
It was so decided in a judgment of this. Court
in Quebec Railway,
Light & Power Co. v. Montcalm Land Co..
In my opinion the autobus system also comes
within the jurisdiction of the Dominion.
In 1895 the Dominion Act (58-59 Victoria, c.
59), declared the "undertaking of the company * * * a work for the general
advantage of Canada".
Obviously this was done to bring the company under the legislative authority of
the Parliament of Canada by force of subsection (10) (c) of
section (92) of The British North America Act. The effect of such a declaration
is to bring the work which is the subject thereof under subsection (29) of
section (91) of the Act,
Moreover, the company, by section (2) of the
Dominion Act (58-59 Victoria,
c. 59), is specifically declared to be "a body politic and corporate
within the legislative authority of the Parliament of Canada"; and it is
further enacted by the same section that
this Act and The Railway Act of
Canada shall apply to the Company and its undertaking, instead of the said Acts
of the province of Quebec and The
Railway Act of Quebec.
It was argued that the declaration that the work
was for the general advantage of Canada applied only to the undertaking as it
stood in 1895, but, in my view, the declaration extends to the whole of the
undertaking of the company, railway, tramway and autobus, for several reasons.
Most of what was said and decided by this Court
in the Montcalm Land case
equally applies in the premises. As was said by Mr. Justice Newcombe, at p. 559
of the report of that case:—
One must look to what the respondents'
claim involves; it is nothing less than provincial statutory compulsion of a
Dominion railway corporation, either to exercise powers which Parliament has
not conferred, or, in the exercise of its competent Dominion powers, to submit
to provincial review and regulations, followed in either case by the
consequence that, for failure to comply with the provincial order, the company
may forcibly be deprived of its property, powers, rights and management, and
ultimately subjected to an action for its dissolution; and this notwithstanding
what is undoubtedly true that neither the constitution and powers of the
company nor its authorized undertaking is subject to the legislative authority
of the province. It is needless to say that these things cannot be done.
[Page 23]
The declaration that the undertaking is for the
general advantage of Canada may
not be severed; it must be understood to apply to the whole of the undertaking.
As was said Mr. Justice Newcombe, it is impossible to admit of a dual control
over the essential functions of a federal work.
It may be true that it was only by the Act of
1939 that the power to own, maintain, lease, possess and operate auto busses
was for the first time specifically mentioned in the Acts respecting the
company, but the Act of 1939 (3 Geo. VI, c. 56) was only declaratory. It must
be noted that it is expressed in the following words:—
The Company's now existing powers * * *
include the power to own, maintain, etc., auto busses.
While it may be said that the word
"undertaking" in the Act of 1895 covers all future enterprises of the
company and means the railway and works of whatsoever description which the
company has authority to construct and to operate (Railway Act, section
2-35), it must be noted that the powers of the company, as defined in its
original charters, although making no reference to auto busses in particular,
are very broad and include the
propulsion of vehicles and rolling stock by
any means, agency, or force that science or invention may develop
(section (6) of the statutes of Canada, 58-59 Victoria, c. 59).
It was further argued that a bus line is neither
a physical thing nor a work susceptible of being made the subject of a
declaration under subsection (10) (c) of section (92) of The British
North America Act; and that, consequently, the declaration that the
undertaking of the company was for the general advantage of Canada was
ineffective to bring the autobus service under the federal jurisdiction. It was
said that a work must have a locus, which obviously, it was alleged, the
autobus service was utterly incapable of possessing and that, therefore, the
declaration contained in the Dominion Act was inappropriate to bring the
autobus system under the legislative authority of the Parliament of Canada.
[Page 24]
However, I would refer to what was said by Lord
Dunedin in In re Regulation and Control of Radio Communication in Canada.
"Undertaking" is not a physical
thing, but is an arrangement under which, of course, physical things are used.
Applying that statement to the situation in the
present case, I would be inclined to think that the word
"undertaking" as used in the statute comprises the whole of the works
of the company, which, upon that interpretation, were all included in the
declaration that they were for the general advantage of Canada.
Accordingly, I am of opinion that the auto
busses of the company can properly be brought and integrated into the
undertaking which was declared to be for the general advantage of Canada. It would appear that it was the
intention of Parliament that newly acquired works would fall within the
declaration.
Much was made in the argument of the amendment
inserted in 1939, whereby the power to operate auto busses was stated to be
subject to all provincial and municipal
enactments in respect to highways and motor vehicles operated thereon and applicable
thereto.
Undoubtedly it could not be contended that for
certain purposes the autobus service is not amenable to the provincial laws,
but, in my view, that must mean: provincial laws of general application. (Lukey
v. Ruthenian Farmers' Elevator Co. Ltd.; John Deere Plow Co. Ltd. v. Wharton.
The province has the control of its highways (Provincial
Secretary of Prince Edward Island v. Egan. It has to maintain
them and to look after the safety and convenience of the public by regulating
and controlling the traffic thereon. An instance of the exercise of that
control by the province might be the fact that the railway company held a
permit from the Quebec Public Service Board; but I do not think that the
submission to provincial and municipal enactments can be extended to anything
beyond the regulations of the character just mentioned and surely not, in my
opinion,
[Page 25]
to the tariffs of rates and tolls of the
company, which are made the subject of special laws and enactments under
federal legislation and, in particular, under The Railway Act of Canada. Otherwise there would be that dual
control, already adverted to and rendering the proper working and operations of
the company practically impossible.
Now, The Railway Act of Canada deals with
tolls and, having regard to all that I have said so far, my conclusions would
have been that, in the premises, the Act should apply mutatis mutandis to
the fixing of rates for the autobus system of the Quebec Railway Light &
Power Co., in respect of which the Board of Transport Commissioners may
exercise its jurisdiction.
It is true, nevertheless, that the Dominion Railway
Act does not specifically refer to the regulation of bus lines and it may
be that the specific power to deal with autobus traffic is not given to the
Board of Transport Commissioners.
Two of my colleagues who, like me, are of the
opinion that there is federal jurisdiction in relation to the auto bus tolls
have come to the conclusion that the regulation of tolls over services of auto
busses is not included in the powers of the Board of Transport Commissioners.
In the circumstances, although personally I would be inclined to share the view
expressed in his reasons for judgment by the Deputy Chief Commissioner, I will
agree with the conclusions of my brothers Kerwin and Rand.
It follows that each appeal should be dismissed
with costs, except that there should be no costs to or against either
intervenant.
Davis J.—The
appeals in these two cases were heard together. They raise the question whether
the Quebec Public Service Board (a provincial board) or the Dominion Transport
Board has the authority to fix the fares or tolls to be charged by the Quebec
Railway, Light & Power Company in respect of its motor bus services. One
appeal is from the judgment of the Court of King's Bench (appeal side) of the province of Quebec which, reversing the decision of the President of the Quebec Public
[Page 26]
Service Board,
held that it was not a matter properly for determination by the provincial
board on the ground that the Dominion Board of Transport Commissioners had
exclusive jurisdiction in the matter. The other appeal is from the order of the
Board of Transport Commissioners which decided that it had no jurisdiction in
the matter of fares or tolls on motor buses. While it was not suggested on the
argument, I should have thought it might well be that neither the provincial
board nor the Dominion Board had clear authority to control and fix the fares.
It seemed to be taken for granted, however, that one or the other of the boards
must have authority.
If the railway company were a provincial
company, there would appear to be no lack of jurisdiction in the provincial
board, but the railway company having been declared by Dominion legislation
some years ago to be a company within the legislative authority of the
Parliament of Canada, it was contended that it was beyond the control of a
provincial board, and that it was only the Dominion Transport Board that has
jurisdiction over the company and the fares and tolls that it is entitled to
charge. Shortly stated, that is the problem which is presented to the Court in
these appeals.
The railway company, under the name of the Quebec, Montmorency and Charlevoix Railway
Company, was originally incorporated, in 1881, by an Act of the legislature of
the province of Quebec, 44-45
Vic., c. 44. It was a local provincial company, owning and operating a railway
solely within the province of Quebec. In 1894 the province of Quebec, by
57 Vic., c 71 (passed January 8th, 1894), extended the power of the Company to
operate an electric tramway within the city of Quebec Subsequently, in 1895, by
58-59 Vic., c 59, the Parliament of Canada constituted the company a body
corporate within the jurisdiction of the Parliament of Canada. Sections 1 and 2
of the said Act of Parliament read as follows:—
1. The undertaking of the Quebec,
Montmorency and Charlevoix Railway Company, a body incorporated as mentioned in
the preamble, and hereinafter called "the company", is hereby
declared to be a work for the general advantage of Canada.
[Page 27]
2. The Company as now organized and
constituted under the said Acts of the province of Quebec is hereby declared to
be a body politic and corporate within the legislative authority of the
Parliament of Canada; and this Act and The Railway Act of Canada shall
apply to the Company and its undertaking, instead of the said Acts of the
province of Quebec and The Railway Act of. Quebec: Provided that nothing
in this section shall affect anything done, any rights or privilege acquired,
or any liability incurred under the said Acts of the province of Quebec prior
to the time of the passing of this Act,—to all which rights and privileges the
Company shall continue to be entitled and to all of which liabilities the
Company shall continue to be subject.
Much of the argument turns upon an amendment to
the Dominion statute made by Parliament in 1939 whereby a subsection was added
to section 8 of the original Act. It is important, therefore, to set out
section 8 as it appeared in the original Act and remained untouched until 1939:
8. The Company may use and employ for the
locomotion and propulsion of its cars, vehicles and rolling stock, where such
power is required, electricity in all its forms, steam, and any approved
mechanical power or other means, agency or force for such purposes that science
or invention may develop,—and shall have all rights, powers and privileges
necessary and essential to the management, operation and maintenance of its
line as an electrical system, either in whole or in part; and may acquire, use
and develop every kind of electrical force, power and energy required or useful
in the working of the undertaking, and apply such agencies and motive powers
for all its uses and purposes aforesaid.
In 1939, then, by Act of Parliament, 3 Geo. VI,
c. 56, the following was added as subsection (2) of section 8 of the original
Act:
(2) It is enacted and declared that the
Company's now existing powers apart from any limitations with respect to the
use of steam, include the power to own, maintain, lease, possess and operate
auto busses, trolley busses and all kinds of public or private conveyances
whether propelled or moved by oil, vapour or other motor or mechanical power
in, over and throughout any of the territory in which it is now authorized to
operate, subject to all provincial and municipal enactments, in respect to
highways and motor vehicles operated thereon and applicable thereto.
It almost strikes one at a glance that the
controversy must turn upon the meaning and scope of the concluding words of the
added subsection
subject to all provincial and municipal
enactments, in respect to highways and motor vehicles operated thereon and
applicable thereto.
The railway company appears to have acquired and
operated motor busses some little time prior to the amendment
[Page 28]
of 1939 and has continued to own and operate
motor busses on municipal and provincial highways solely within the province of Quebec since that time. The town of Beauport desired to have the fares or tolls to be charged by the company in
connection with the operation of its motor busses fixed by the provincial board
known as the Quebec Public Service Board and the company desired its tariff to
be fixed by the Dominion Board of Transport Commissioners.
Those who argued against the authority of the
Dominion board and in favour of the authority of the provincial board, very
strenuously pressed upon us the contention that the word
"undertaking" used in section 1 of the Act of Parliament, 58-59 Vic.,
c. 59, above quoted, was not an appropriate word to cover, and does not cover,
the rolling stock of the company, particularly the motor busses; the specific
purpose of this argument being to establish the contention that the motor
busses of the company cannot be regarded in law, under the wording of section
1, as "a work for the general advantage of Canada." What is said is
that the authority of Parliament under section 92, head 10 (c) of the
British North America Act is limited to "Works"—and does not mention
"undertakings." It may be convenient here to set out section 92 (10):
92. In each province the legislature may
exclusively make laws in relation to matters coming within the classes of
subjects next hereinafter enumerated; that is to say,—
10. Local works and undertakings other than
such as are of the following classes:—
(a) Lines of steam or other ships,
railways, canals, telegraphs, and other works and undertakings connecting the
province with any other or others of the provinces, or extending beyond the
limits of the province;
(b) Lines of steam ships between the
province and any. British or foreign country;
(c) Such works as, although wholly
situate within the province, are before or after their execution declared by
the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more
of the provinces.
While the opening words of 10 are "Local
works and undertakings" and (a) uses "other works and
undertakings," (b) uses neither word "works" nor
"undertakings," and (c) uses only the word "works."
The argument is that the "undertaking" of the company was not validly
declared a work for the general advantage of Canada—that the authority
[Page 29]
of Parliament is by 10 (c) limited to
"works". A sentence is taken from the judgment of Lord Dunedin in the
Radio case, as a
definition of these words "undertaking" and "works" and
applied to the construction of the particular Act of Parliament which is before
us. The sentence used by Lord Dunedin is,
"Undertaking" is not a physical
thing, but is an arrangement under which of course physical things are used.
It was argued from that that when the Act of
Parliament, 58-59 Vic., c. 59, declared the "undertaking" of the
company to be a work for the general advantage of Canada, it did not touch or
affect the "works" of the company and, particularly for the argument
of these appeals, that the word "undertaking" does not touch or
affect the motor busses of the company because they are physical things moving
about from place to place. I find it difficult to accept such an interpretation
of the particular statute. The effect of the statute would be nugatory on such
an interpretation. It seems to me that the word "undertaking" there
used involves the totality of the works of the company and that the effect of
the statute was that they were declared to be for the general advantage of Canada. Such a declaration was within the
competence of the Dominion Parliament when the meaning and scope of the statute
is fairly construed. The argument was advanced obviously to put the motor
busses of the company beyond Dominion control and place them within provincial
control, but I do not think that any such strained construction of the statute
as contended for is necessary even to accomplish that end.
Section 2 of the Act of Parliament, 58-59 Vic.,
c. 59, declares the company
to be a body politic and corporate within
the legislative authority of the Parliament of Canada.
In my opinion when Parliament in 1939 amended
section 8 of its original Act of 1895 by adding thereto subsection (2) above
quoted, it extended, or at least expressly defined, the power of the company to
own, maintain and operate auto busses in, over and throughout any of the
territory in which the company is authorized to operate. But Parliament made a
conditional grant of the power—the condition
[Page 30]
being that the exercise of the power was to be
subject to all provincial and municipal enactments in respect of highways and
motor vehicles operating thereon and applicable thereto. It might well lead to
a state of chaos if a Dominion company had a right to operate motor vehicles on
municipal and provincial highways according to its own ideas without reference
to the provincial laws, rules and regulations governing the operation of other
motor vehicles on the public highways in the province. For instance, you could
not in any practical sense have a province requiring all motor vehicles to
travel on the right hand side of the road and a Dominion company denying any
authority of the province over it because it was a Dominion company, and
asserting the right to run its motor vehicles on the left hand side of the
road. Counsel for the company, confronted with such situations, admitted
frankly that the company was undoubtedly liable to what he called "all ordinary
regulations of general application," respecting motor vehicles on
provincial and municipal highways, but contended that that does not include the
control or fixing of fares or tolls, because according to his argument you
cannot read the word "tolls" into the general words of the subsection
to which the power to operate motor busses is made subject. His contention is
that the fixing of tolls for the motor busses, because the company itself is a
railway company, comes under the Dominion Railway Act and the Dominion Transport
Act.
In my opinion the generality of the language of
the 1939 amendment imposing a condition on the grant of the power is sufficient
to involve the regulation and control by the province of the motor busses on
the municipal and provincial highways of the province; and the fixing of fares
or tolls, for uniformity or otherwise, by a provincial board comes within the
condition of the subsection upon a proper construction thereof. It was
contended by the Dominion that that construction involves an unwarranted
delegation of legislative authority beyond the power of Parliament. I think the
principle is that stated in the John Deere Plow case:
[Page 31]
It is enough for present purposes to say
that the province cannot legislate so as to deprive a Dominion company of its
status and powers. This does not mean that these powers can be exercised in
contravention of the laws of the province restricting the rights of the public
in the province generally. What it does mean is that the status and powers of a
Dominion company as such cannot be destroyed by provincial legislation.
And in Bank of Toronto v. Lambe:
They (their Lordships) cannot see how the
power of making banks contribute to the public objects of the provinces where
they carry on business can interfere at all with the power of making laws on
the subject of banking, or with the power of incorporating banks.
The appeals should in my opinion be disposed of
in accordance with the above conclusion.
Kerwin J.—The Quebec Railway, Light and Power Company was formerly known as
the Quebec, Montmorency and
Charlevoix Railway Company. That company was incorporated by a special Act of
the legislature of the province of Quebec. This Act was amended from time to time until by the year 1895 the
Company had been authorized to own and operate a railway within a certain area
of the province of Quebec and
to own and operate an electric tramway within the city of Quebec and its environs. In 1895, the
Parliament of Canada passed an Act embodying therein such provisions of the
provincial Acts as were desired to be retained in force and enacting the
following as sections 1 and 2:
1. The undertaking of the Quebec, Montmorency and Charlevoix Railway
Company, a body incorporated as mentioned in the preamble, and hereinafter
called "the Company", is hereby declared to be a work for the general
advantage of Canada.
2. The Company as now organized and
constituted under the said Acts of the province of Quebec is hereby declared to be a body politic and corporate within the
legislative authority of the Parliament of Canada; and this Act and The
Railway Act of Canada shall
apply to the Company and its undertaking, instead of the said. Acts of the
province of Quebec and The Railway Act of Quebec: Provided that nothing
in this section shall affect anything done, any rights or privilege acquired,
or any liability incurred under the said Acts of the province of Quebec prior
to the time of the passing of this Act,—to all which rights and privileges the
Company shall continue to be entitled and to all of which liabilities the
Company shall continue to be subject.
Subsequently the Company acquired from the
Montmorency Electric Power Company the latter's business and
[Page 32]
undertaking and also the business and
undertaking of the Quebec District Railway Company, and in 1899 its name was
changed to its present title. The appellant company and the other companies
mentioned were incorporated for provincial objects and it is only by virtue of
the declaration in section 1 of the Act of 1895 that the Dominion could acquire
any jurisdiction. That section was passed in pursuance of exception (c)
to head 10 of section 92 of The British North America Act and no more
extended meaning than the word "works" therein bears on its proper
construction may be ascribed to the word "undertaking" in section 1
of the 1895 Act.
In the year 1939, section 8 of the Dominion Act
of 1895 was amended by adding thereto subsection 2. As thus amended section 8
now reads:—
8 (1) The Company may use and employ for
the locomotion and propulsion of its cars, vehicles and rolling stock, where
such power is required, electricity in all its forms, steam, and any approved
mechanical power or other means, agency or force for such purposes that science
or invention may develop,—and shall have all rights, powers and privileges
necessary and essential to the management, operation and maintenance of its
line as an electrical system, either in whole or in part; and may acquire, use
and develop every kind of electrical force, power and energy required or useful
in the working of the undertaking and apply such agencies and motive powers for
all its uses and purposes aforesaid.
(2) It is enacted and declared that the
Company's now existing powers apart from any limitations with respect to the
use of steam, include the power to own, maintain, lease, possess and operate
auto busses, trolley busses and all kinds of public or private conveyances
whether propelled or moved by oil, vapour or other motor or mechanical power
in, over and throughout any of the territory in which it is now authorized to
operate, subject to all provincial and municipal enactments, in respect to
highways and motor vehicles operated thereon and applicable thereto.
It appears that some time prior to the enactment
of the amendment of 1939 the Company had commenced to operate auto busses in
the city of Quebec and
adjoining territory. The meaning to be ascribed to the word "works"
in exception (c) to head 10 of section 92 of The British North
America Act has been considered in City of Montreal v. Montreal
Street Ry. Co.;
Wilson v. Esquimau and Nanaimo Railway Company; In Re Regulation
and Control of Radio Communication in Canada.
Whatever the precise construction may be, I am satisfied that the busses owned
and operated by the Company fall within
[Page 33]
the meaning of that term so that they would be
part of the Company's works as much as the rails and tramcars of the Company's
electric tramway system. As to these, it has been decided by this Court in Quebec
Railway, Light and Power Company v. Montcalm Land Company, that the Quebec
Public Service Commission (now the Public Service Board) had no jurisdiction to
order the Company to cause its tramcars to run more frequently. Unless,
therefore, the concluding words of the amendment of 1939,
subject to all provincial and municipal
enactments, in respect to highways and motor vehicles operated thereon and
applicable thereto,
have the effect of altering the position, the
Public Service Board has no jurisdiction to deal with the fares or tolls to be
charged by the Company for travel on its auto busses. The words quoted are not,
in my opinion, apt to confer such a power. The proviso might apply to such
things as the necessity of the busses to carry license plates and of the drivers
thereof to obey the provincial or municipal regulations as to traffic, but it
does not cover the fixing of fares. It was submitted by the Attorney General
for the Dominion that Parliament would have no power to delegate such authority
but, since I deem the proviso inapplicable, it is unnecessary to express any
opinion upon the point.
It does not follow that jurisdiction must reside
in The Board of Transport Commissioners for Canada. Upon the declaration being made that the works of the Company were
for the general advantage of Canada,
the effect of subsection 10 of s. 92
of The British North America Act is * * * to transfer the * * * works
mentioned * * * into s. 91 and thus to place them under the exclusive
jurisdiction and control of the Dominion Parliament. City of Montreal v. Montreal Street Ry. Co..
It is the "works", however, and not
the Company that is thus brought within the jurisdiction of the Dominion.
Section 2 of the 1895 Act cannot by itself effect any such result but the
"works" being considered as an enumerated head of section 91,
Parliament may enact such further legislation as is necessarily incidental to
the exercise of its jurisdiction over them, and, in a proper case, it may be
necessary to consider how far particular provisions of The
[Page 34]
Railway Act apply
to them. Section 323 of that Act was referred to but in my view it has no
application. The "tolls" therein mentioned are defined by clause 32
of section 2 but it seems plain that these provisions refer only to tolls for
railways as defined in clause 21 of section 2. The word "rolling
stock" used in the last mentioned clause, as defined in clause 24, clearly
refers only to railways. It is not all charges made, even by a railway company,
that fall within the jurisdiction of the Dominion Board. In re Powers as to
Wharfage Charges.
The appeal in each case should be dismissed with
costs, except that there should be no costs to or against either intervenant.
Hudson J.—The main controversy in these appeals is whether the right to
control rates on busses operated by the Quebec Railway, Light and Power Company
on the streets and highways in the town of Beauport lies within the authority
of the Transport Board of Canada or the Public Service Board of Quebec.
The Quebec Railway, Light and Power Company was
incorporated by a statute of the legislature of Quebec but in 1895, by an Act
of the Parliament of Canada, the undertaking of the Company was "declared
to be a work for the general advantage of Canada", and the Company as then
organized was declared to be a body politic and corporate within the
legislative authority of the Parliament of Canada and that the Railway Act of
Canada should apply to the Company and its undertakings, instead of the Acts of
the province of Quebec and the Railway Act of Quebec. By this and
subsequent Acts the Company was given the ordinary powers of railway and
tramway companies.
In 1939, by Act of Parliament, the Company's
powers were extended by providing:
8. (2) It is enacted and declared that the
Company's now existing powers apart from any limitations with respect to the
use of steam, include the power to own, maintain, lease, possess and operate
auto busses, trolley busses and all kinds of public or private conveyances
whether propelled or moved by oil, vapour or other motor or mechanical power
in, over and throughout any of the territory in which it is now authorized to
operate, subject to all provincial and municipal enactments, in respect to
highways and motor vehicles operated thereon and applicable thereto.
[Page 35]
The right to license regulate and control
traffic on streets and highways within a province lies with the legislature of
such province. Such right has been actively exercised by the provinces since
Confederation and has never been seriously challenged. It has been recognized
by provincial courts on numerous occasions, and recently by this Court in the
case of Provincial Secretary of Prince Edward Island v. Egan.
The right of the Dominion to interfere with such
licence, regulation and control is confined strictly to matters falling within
one or other of the enumerated heads of section 91 of The British North
America Act.
It is contended here that the busses of the
Quebec Railway, Light and Power Company and the operation thereof became part
of the undertaking of the Company and fell within the exclusive jurisdiction of
the Dominion by virtue of the declaration made in 1895.
Unlike other legislative powers allotted to the
Dominion on the one hand and the provinces on the other, the jurisdiction transferred
by declaration under section 92 (10) (c) of The British North America
Act is conferred by an Act of the Parliament of Canada itself and may be
repealed, varied, qualified or limited in its application, whenever that
Parliament so decides. This is the effect of a decision of the Judicial
Committee of the Privy Council in the case of Hamilton, Grimsby and
Beamsville Railway Company v. Attorney-General for Ontario. There the Hamilton, Grimsby and Beamsville Railway
had been incorporated by an Act of the legislature of Ontario. One of its lines crossed the railway line of the Grand Trunk
Railway Company, a Dominion railway. By reason of the provision then existing
in the Railway Act, all railways connected with or crossing a Dominion
railway were deemed to be works for the general advantage of Canada. Subsequently, the Dominion Railway
Act was amended and it was provided that such provincial railway should be
a work for the general advantage of Canada, in respect only of the connection or crossing, and certain other
matters not here relevant. A provincial board made an order with respect to
sanitary conveniences on the provincial railway cars. This was contested
[Page 36]
on the ground that the railway had become a
Dominion railway under the original declaration. However, it was held by the
Judicial Committee that this was not so, that the Act could be repealed, or
amended and, as stated by Lord Buckmaster,
the declaration is a declaration which can
be varied by the same authority as that by which it was made
and that in this instance it was properly
varied.
New and subsequently acquired works may fall
within such a declaration but it must appear that Parliament so intended.
In the present case the claim is that a
declaration made in 1895 extended to works first authorized by Parliament in
1939.
The operation of autobusses was not necessarily
incidental to the operation of the railway. Somewhat similar situations have
been the subject of discussion in the House of Lords. In the case of London County Council v. Attorney-General.
Reading at p. 169 Lord Macnaghten
said:
The London County Council are carrying on two businesses—the business of a
tramway company and the business of omnibus proprietors. For the one they have
the express authority of Parliament; for the other, so far as I can see, they
have no authority at all. It is quite true that the two businesses can be
worked conveniently together; but the one is not incidental to the other. The
business of an omnibus proprietor is no more incidental to the business of a
tramway company than the business of steamship owners is incidental to the
undertaking of a railway company which has its terminus at a seaport.
In the case of Attorney-General v. Mersey
Railway Company,
a similar decision was arrived at.
Here, as in the two above mentioned cases, it
appears that the railway company undertook the autobus business because of
competition on the highway. I am satisfied that the railway company had no
authority to carry on this autobus business until 1939.
The amendment of 1939 does not in terms transfer
jurisdiction to the Dominion. In effect it rejects any assumption of control by
the Dominion and expressly recognizes maintenance of provincial control. It is
difficult to see how an authority to operate a new kind of service,
[Page 37]
subject to all provincial and municipal
enactments in respect to highways and motor vehicles operated thereon and
applicable thereto,
can be construed as evidencing an intention by
Parliament to place such services under Dominion control.
Neither in the Dominion Railway Act nor
in any legislation applicable to this company is there any provision for
control of traffic on the highways in respect of rates or otherwise. It has
been suggested that the regulation of tolls and rates is essentially different
from the control of physical things on the highways. I cannot see this. The
highways are owned by the municipality or the province and it is the duty of
the municipality to maintain them and to provide for the safety and convenience
of the public thereon.
The regulation of rates charged by common
carriers using highways is nowadays universally recognized as in the public
interest. The fact that Parliament has not seen fit to make any provision for
such regulation in the present case strongly supports the view that it was
intended that such regulation should be left with the province, where such
regulation was already in force.
My conclusion then is that the declaration of
1895 does not and never was intended by Parliament to extend to the operation
of autobusses on the highways, either in respect of the regulation of rates or
otherwise.
It was strongly argued that Parliament had no
power to make a declaration under section 92 (10) (c) of the British
North America Act affecting the right of control here in question. It was
pointed out that on several occasions the Judicial Committee held that the word
"works" used therein is confined to physical things, and that here
the only physical things involved were busses which were not moving on rails
the property of the railway company but freely amidst general traffic on a
public highway. To my mind, this question is open to some doubt and, in view of
the conclusion I have arrived at as to the intention of Parliament, it is
unnecessary for me to express my opinion.
I would allow the appeal in the case of Town of Beauport v. Quebec Railway, Light and Power
Company, and dismiss the appeal in Quebec Railway, Light and Power Company v.
Town of Beauport.
[Page 38]
Rand J.—These two appeals raise the same questions of law and were argued
together. The first is by the town of Beauport from a judgment of the Court of
King's Bench, appeal side, holding that the regulation of tolls for autobus and
tramway services, and of the quantum and quality of those services furnished by
the Quebec Railway, Light and Power Company, was not within the legislative
powers of the province; the second is from an order of The Board of Transport
Commissioners dismissing an application by the Company for the approval of
tolls for the same services.
At the time the proceedings were initiated, the
Quebec Railway, Light and Power Company was carrying on within the city of
Quebec and surrounding district a line of steam railway between the city and
Cape Tourment, a point about thirty miles to the east, a tramway system serving
the city proper, and as well an autobus service both within and without the
city.
By a judgment of this court rendered in 1927 (Quebec
Railway, Light and Power Co. v. Montcalm Land Co.), it was held that,
under the legislation of 1895 declaring the undertaking of the company to be a
work for the general advantage of Canada, both the steam railway and the
tramway system were within the legislative jurisdiction of the Dominion.
In 1939 (3 Geo. VI, c. 56) the powers of the
company were enlarged by the following provision:
(2) It is enacted and declared that the
Company's now existing powers apart from any limitations with respect to the
use of steam, include the power to own, maintain, lease, possess and operate
auto busses, trolley busses and all kinds of public or private conveyances
whether propelled or moved by oil, vapour or other motor or mechanical power
in, over and throughout any of the territory in which it is now authorized to
operate, subject to all provincial and municipal enactments, in respect to
highways and motor vehicles operated thereon and applicable thereto.
The autobus services have been integrated with
those of both the railway and the tramway system. The company has provided for
joint carriage by railway and autobus and by tram and autobus, both within and
beyond the city. Questions may, therefore, arise as to tolls between points on
the tramway system proper, between points on the autobus routes, and between
points on either the railway
[Page 39]
or the tramway and on the autobus routes, and vice
versa. Admittedly, all rates confined to the railway and the tramway are
within the federal jurisdiction and the application of The Railway Act 1919.
The question raised is whether the tolls applicable between points on the
routes of the autobus services and between those points and points on the
tramways are likewise within that exclusive jurisdiction and, if so, whether
they come within the scope also of that Act.
The works of the company are, in the jurisdictional
aspect, to be considered as if they had been specifically set forth in section
91 (29) of the B.N.A. Act. Was, then, the legislation of 1939, adding to the
powers of the company, within the scope of the legislative field appropriate to
the subject-matter of the declaration? I think it was. We cannot deny to such
an undertaking modifications in operational means and methods designed more
efficiently to carry out its original and essential purposes. The controlling
fact is that the identity of the works is preserved: they remain in substance
the works of transportation dealt with by the declaration.
Nor do I think there can be attributed to the
last clause of that provision an effect which would nullify the operative part
of the subsection. What was intended to be and was done was the creation of new
powers in the federal works as such, and not merely the addition of a corporate
capacity. The contrary view involves the introduction of a dual control over
the essential functions of such an undertaking. The concluding language,
therefore, must be taken to refer only to provincial regulation arising from
ownership and control of highways which might affect features of the autobus
operations. It is, at most, a legislative disclaimer of intention to encroach upon
an area, in different aspects common to both jurisdictions: but the exclusive
field of the Dominion, within which lies the regulation of rates, is
unaffected.
The further question arises, however, whether The
Railway Act 1919 extends to tolls either in respect of the autobus services
proper or the joint services of autobus and tramway. By the enactment of 1895,
section 2, The Railway
[Page 40]
Act of Canada is
to apply to the undertaking of the company, and by section 323 of The
Railway Act 1919 it is provided:
Nor shall the company charge, levy, or
collect any toll or money for any service as a common carrier, except under and
in accordance with the provisions of this Act.
Can the regulation of tolls for autobus or joint
autobus and tramway services be brought within the language of that
legislation?
There can be little question that The Railway
Act 1919, as its title indicates and as its provisions confirm, is
concerned primarily with transportation by railways. Service "as a common
carrier," in the absence of a context clearly extending it, means,
therefore, as a carrier by railway. All services incidental to that form of
transportation are within the clause of section 323 quoted. But autobus
services are not incidental to either the railway or the tramway: they are a
new form of primary transportation. Now the word "railway" imports
locomotion on or over "rails," furnishing a service within fixed and
rigid limits: and precise language would be necessary to bring within its scope
transportation operations by means of power and vehicles unknown when the
legislation was first enacted, with a service of a highly mobile character and
involving different considerations of public policy. Closely associated with
railway service is carriage by water, but this is the subject of special
provisions of The Railway Act 1919. That enactment cannot, therefore, be
held to embrace the regulation of tolls for autobus transportation, either
alone or in conjunction with the tramway.
Then, does the specific application of "The
Railway Act of Canada" to the undertaking of the company by the
legislation of 1895 add in any way to what otherwise would follow from the
declaration? To hold that it does would be to imply a very broad mutatis
mutandis which is not, in my opinion, warranted. The enactment of 1895 did
no more than to apply the Dominion Act to such of the company's activities as
were within its ambit.
There is, then, federal jurisdiction in relation
to these tolls, but federal legislation is lacking. It is not suggested that
there was in force in the province at the time of
[Page 41]
Confederation any law of carriers adequate or
appropriate to fill the hiatus in that legislation. However inconvenient it may
appear, therefore, it follows that the regulation of tolls for services in
whole or in part by autobus is not within the powers of the Board of Transport;
and as The Provincial Transportation and Communication Board Act is
inapplicable within the exclusive dominion field, these tolls lie outside of
any existing statutory control.
The same conclusion follows as to the regulation
of the autobus services in the manner proposed.
The appeals should be dismissed with costs
except as to the Intervenants.
Both appeals
dismissed with costs, no costs to or against intervenants.
In the first appeal:
Solicitors for the appellant: Taschereau,
Parent & Cannon.
Solicitors for the respondent: Town of Beauport: Gagnon,
DeBilly, Prévost & Hone.
Solicitors for the respondent: Town of Courville: Dorion,
Dorion & Noël.
Solicitors for the respondent: Village of Boischatel: Dumoulin & Rémillard.
Solicitor for the Attorney General for Canada: F. P.
Varcoe.
Solicitor for the Attorney General for Quebec: L. A.
Pouliot.
In the second appeal:
Solicitor for the appellant: Yves Prévost.
Solicitor for the respondent: P. H. Bouffard.
Solicitor for the Attorney General for Canada: F. P.
Varcoe.
Solicitor for the Attorney General for Quebec: Achille
Pettigrew.
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