Essex Terminal Ry. Co. v. Windsor, Essex & Lake Shore Rapid Ry. Co., (1908) 40 SCR 620

Supreme Court of Canada

Essex Terminal Ry. Co. v. Windsor, Essex & Lake Shore Rapid Ry. Co., (1908) 40 S.C.R. 620

Date: 1908-10-06

The Essex Terminal Railway Company Appellants;

and

The Windsor, Essex and Lake Shore Rapid Railway Company Respondents.

1908: June 5; 1908: October 6.

Present: Girouard, Davies, Idington, Maclennan and Duff JJ.

ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.

Board of Railway Commissioners—Jurisdiction—Location of railway —Consent of municipality—Crossing—Leave of Board—Discretion.

On 12 Aug., 1905, the Township of Sandwich West passed a by-law authorizing the W., E. etc., Ry. Co. to construct its line along a named highway in the municipality but the powers and privileges conferred were not to take effect unless a formal acceptance thereof should be filed within thirty days from the passing of the by-law. Such acceptance was filed on 12 Sept., 1905. This was too late and on 20 July, 1907, the council of Sandwich West and that of Sandwich East respectively passed by-laws containing the necessary authority.

In April, 1906, the location of the line of the E. T. Ry. Co. was approved by the Board. In June, 1906, the Board made an order allowing the W. E. etc., Ry. Co. to cross the line of the C.P.R. In March, 1907, another order respecting said crossing was made and also an order approving the location of the W. E. Ry. Co., the municipal consent being obtained three months later.

The E. T. Ry. Co. applied to the Board to have the orders of June, 1906, and March, 1907, rescinded and for an order requiring the W. E. Ry. Co. to remove its track from the highway at the point where the applicant proposed to cross it to discontinue its construction at such point or, in the alternative, for an order allowing it to cross the line of the W. E. Ry. Co. on said highway. The applicants claimed to be the senior road and that the W. E. Ry. Co. had never obtained the requisite authority

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for locating its line. On a case stated to the Supreme Court by the Board.

Held, that the Board had power to refuse to set aside the said orders; that, the by-laws passed in July, 1907, were sufficient to legalize the construction of the W. E. Ry. Co.'s line on said highway; and that the Board can now lawfully authorize the latter company to maintain and operate its railway thereon.

Held, further, that leave of the Board is necessary to enable the E. T. Ry. Co. to lay its tracks across the railway of the W. E. Ry. Co. on said highway.

Held, also, that the Board, in exercise of its discretion has power by order to authorize the maintenance and operation of the W. E. Ry. Co. along said highway and to give leave to the E. T. Ry. Co. to cross it and the line of the C.P.R. near the present crossing and to apportion the cost of maintaining such crossing equally between the two companies instead of imposing two-thirds thereof upon the E. T. Ry. Co. as was done by a former order not acted upon; and to order that if the E. T. Ry. Co. finds it necessary in its own interest to have the points of crossing differently placed it should bear the expense of removing the line of the W. E. Ry. Co. to the new point of crossing.

APPEAL on a case stated by the Board from a decision of the Board of Railway Commissioners for Canada[1], on application of the Essex Terminal Co. The material facts are stated in the above head-note. The text of the questions submitted will be found in the judgment of Mr. Justice Idington.

Armour K.C. and Coburn, for the appellants.

Matthew Wilson K.C. for the respondents.

Girouard J.—I agree in the opinion stated by Mr. Justice Duff.

Davies J.—I agree with the general reasoning of the late Chief Commissioner Killam when proposing the judgment of the Board of Railway Commissioners

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on the application of the appellant and, in answer to the sixth question submitted to us in the stated case, I would say that the order proposed to be made by the Board is one which, in the exercise of its discretion, the Board has power to make.

I would also answer questions two, four and five in the affirmative. In view of these answers, it does not seem necessary to answer questions one and three.

Idington J.—This is a case submitted by the Board of Railway Commissioners in the lifetime of the late Chief Commissioner.

We are asked to answer some half dozen questions submitted.

In order to understand thoroughly the bearing of these questions one would have to read the case and the judgment of the late Chief Commissioner.

Briefly put, however, the contest between the two railway companies is to have the senior right of the one over the other determined.

Incidentally to that determination, it is said that by reason of settled jurisprudence of the Board there ought to flow results much different from those settled by the Board in the order now in question.

I am not prepared to assent to this contention.

However desirable it may be to observe as a general rule as between contesting railway companies that, presumptively, a senior may or even should have advantages over its junior in settling such questions as have arisen between those before us, it would never do for us to treat such settlement of prior right in regard to such contests as so determined and fixed by law as to remove all discretion from the Board in the consequent results of such a matter as adjusting

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the respective burthens to be borne by the contestants. It was quite competent for the Board to have said here, as the judgment of the late Chief Commissioner practically does say, that, assuming the legal status of the respondent company was not technically that of senior, yet, in substance, it might by reason of the march of events be treated as in such a position as to have claimed seniority but for an unfortunate mistake made in the legal proceedings that were designed to complete its title and to give it that seniority.

This position of the Board was the more apparently right when we consider that so much had been done on the faith of a supposed acquired right as to give rise to quite exceptional considerations and quite exceptional treatment which was given.

The respondent company, in my opinion, had not until the 20th of July, 1907, acquired, as it supposed it had, the right to build upon the highway.

But, notwithstanding that, I agree with the late Chief Commissioner in thinking that if an application were made to the Board merely to approve of plans locating a proposed railway and the order were confined to that approval of location and in no way to be assumed to be a determination of right to proceed to build, regardless of all other considerations, or consideration such as the title in law to go upon or over any property covered by the location adopted and build thereupon, it could be properly made.

The orders complained of so far as before me (for they are not all copied in the copy of the case I have), do not seem expressly confined to this question of location and might be read as going beyond it, but for the explanation given in the judgment I have referred to,

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and the statutory declaration in section 159 of the Railway Act as to the meaning of such an order. That section, sub-section 2, reads as follows:

The Board by such sanction shall be deemed to have approved merely the location of the railway and the grades and curves thereof, as shewn in such plan, profile and book of reference, but not to have relieved the company from otherwise complying with this Act.

I doubt if this entirely covers this case. It is not a question here of relief from otherwise complying with the "Railway Act" that is to be guarded against, but that the respondent company "should not be relieved from" otherwise complying with the Dominion Act which declared the work in question to be for the general advantage of Canada.

It is not the "Railway Act," but this latter Act that prohibited the laying down of a railway upon any highway without the consent of the municipal council, which was not effectively got till after the 20th of July, 1907.

If the orders in question are to be construed as the following quotation from the judgment of the late Chief Commissioner indicates they were intended to be construed, then I see nothing in them to complain of.

The land across which a railway is sought to be located may belong to the Crown, or be a part of an Indian Reserve, and the consent of the Governor in Council to its use or occupation by the company may be necessary under sections 172 or 175 of the Railway Act, or it may have been reserved for naval or military purposes, when the license and consent of the Crown under the hand and seal of the Governor-General is required by section 174. It may belong to another railway company, in which case the new company cannot use or occupy it without the leave of the Board. under section 176, which, in approving the location plan, would not bind itself to grant such leave. The line may cross navigable waters, when the site, as well as the plans, must be approved by the Governor in Council, under section 233.

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In deciding whether to sanction plans and profiles shewing the proposed location of a railway, the Board does not usually consider matters of this kind or questions as to the existence of public highways along the route, or whether such highways or railways shall be crossed by the proposed new railway, or, if so, where or how, or the measures to be taken for the safety of the public or otherwise in connection with such crossings, or' whether, or where, the railway shall be operated upon or along a highway, or on what portions thereof, or the provisions to be made in connection with the same; and orders sanctioning such locations should not be considered as impliedly authorising obstruction of highways by railway works.

This is the settled jurisprudence of the Board.

And it was not a necessary condition precedent to the approval of the location plans that the party should first have the consent of the municipal authority to the construction of the railway upon the public highway. This might be left until the company ascertained whether the proposed location would meet with the approval of the Board from an engineering standpoint.

Can we say, however, that the orders do not go further?

Are they in such shape as to enable us to categorically answer the questions put regarding them?

I still adhere to the interpretation I gave in the case of the Montreal Street Railway Co. v. The Montreal Terminal Railway Co.[2], at page 391, to what, in substance, is now in sections 54 and 56, sub-section 9, of the "Railway Act," Revised Statutes of Canada, 1906, ch. 37.

We are told that a much wider effect is given by some courts to unauthorized orders of the Board that I am disposed to give and that a danger exists unless the orders in question are repealed that they may have such a wider effect than intended by the Board as above set forth.

Having regard, however, to the limitation, by section 159 above quoted, in regard to the meaning of

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such orders as within its scope, and the cognate nature of the orders in question, I think they can be similarly limited and ought to be read as so limited. As to the rescinding of any order beyond the jurisdiction of the Board, the doing so must be to a certain extent a matter of discretion.

In the view I have taken and referred to as above expressed, there may be for the protection of those who acted under such an order, as exceeded the jurisdiction of the Board, a duty to let the order stand for that purpose.

I assume, of course, that in default of such need or similar proper purpose it is desirable to rescind any order found not to have fallen within the jurisdiction making it.

I would answer, therefore, the questions submitted, as follows:

Q. (1) —Whether the Board of Railway Commissioners had jurisdiction, prior to the 20th day of July, 1907, to make the orders above complained of and each of them?

A.—Yes, so far as approving merely the location of the railway and the grades and curves thereof as shewn in a plan, profile and book of reference such as the "Railway Act" contemplates, but not to operate in the way of relieving the company from the condition imposed upon it of obtaining consent of the municipality or municipalities having jurisdiction over the highway in question.

Q. (2)—Whether the Board of Railway Commissioners had power to refuse to set aside its said orders so complained of?

A.—Yes.

Q. (3)—Whether, in view of the said by-law of the said Township of Sandwich West, passed in the year 1905, and the acceptance thereof at the time and in the matter herein above set forth, and the construction of the railway of the Windsor-Essex company

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upon and along the said gravel road, without objection on the part of the said municipality of Sandwich West, the Windsor-Essex company is now entitled to maintain and operate its railway upon and along the said gravel road?

A.—No.

Q. (4)—Whether the said by-laws of the said municipalities of the Townships of Sandwich East and Sandwich West, respectively passed on the 20th of July, 1907, are valid and sufficient to make lawful the construction and operation of the railway of the Windsor-Essex company upon and along the said gravel road; and whether the Board of Railway Commissioners may now lawfully authorize the Windsor-Essex company to so maintain and operate its said railway upon and along the said gravel road?

A.—Yes.

Q. (5) —Whether the leave of the Board of Railway Commissioners is necessary to enable the Terminal company to lay its tracks across the railway of the Windsor-Essex company upon the said gravel road?

A.—Yes.

Q. (6) —Whether the order proposed to be made by the said Board as aforesaid is one which, in the exercise of its discretion, the said Board has power to make?

A.—Yes.

I think there should be no costs to either party.

Maclennan J.—I agree in the opinion stated by Mr. Justice Duff.

Duff J.—The late Chief Commissioner of the Board of Railway Commissioners has summarized the views expressed by him in his judgment in the following passage:

Then the position which we have is this:—The railway of one company has been constructed along a public highway without the necessary authority from the municipality or the Board; the required consent of the municipality or the municipalities has since been obtained, but not the requisite leave of the Board; with the authority of the Board it crosses, upon that highway, another railway; another company, having its location plan properly sanctioned by the Board and the leave of the Board to cross the highway on the line of that location, seeks to have the existing railway removed

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from the highway or to be allowed to cross it at the expense of the former, and to have the orders sanctioning the location plans of the first company and giving that company leave to cross the previously existing railway, set aside.

While, as I have said, I think the Board has jurisdiction to require the removal of the rails from the highway at the point where the Essex Terminal Railway Company has leave to cross, I do not think that we are bound to do this. I think that we are entitled to exercise our discretion, in view of all the circumstances; that, in the fair exercise of that discretion, we may now authorize the maintenance and operation of the Windsor, Essex and Lake Shore Rapid Railway Co. along the gravel road, and give leave to the Essex Terminal Railway Company to cross it and the Canadian Pacific Railway Company's line, near the present railway crossing in such manner and with such protective appliances as our engineer shall recommend, but varying the condition as to the apportionment of the cost of maintenance and operation by dividing it equally between the two companies, instead of imposing two-thirds upon the Essex Terminal Railway Company. But, if the Essex Terminal Railway Company still finds it necessary in its own interests to have the point or points of crossing differently placed, that company should bear the expense of removing the line of the Windsor, Essex and Lake Shore Railway to the new point of crossing.

In such a case as this, I do not think that we are bound to recognize that an absolute right of priority in regard to such crossings is acquired by priority of sanction of location plans, or priority of leave to cross or run along highways. The two railways were being constructed almost simultaneously. The original by-law of the Township of Sandwich West failed to take effect only through one day's default and, possibly, through a slip in the method of attempted acceptance, but for which the railway would have been lawfully upon the highway when the Dominion Act was passed, and long before the Essex Terminal Railway Company obtained the Board's leave to cross the highway. The case appears to be one for the exercise of the Board's discretion.

With every word of this passage I agree.

It follows that questions two, four, five and six should all be answered in the affirmative; and, in this view, there would appear to be no necessity for expressing any opinion upon either of questions one or three.

Solicitors for the appellants: Cunningham & Lyon.

Solicitors for the respondents: Purdom & Purdom.