Luscar Collieries Ltd. v. McDonald, [1925] SCR 460

Supreme Court of Canada

Luscar Collieries Ltd. v. McDonald, [1925] S.C.R. 460

Date: 1925-05-18

Luscar Collieries Limited Appellant;

and

N. S. McDonald and The Canadian National Railway Company Respondents.

1924: December 10; 1925: May 18.

Present: Anglin C.J.C. and Idington, Duff, Mignault Newcombe and Rinfret JJ.

ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS

Constitutional law—Railway—Agreement—Provincial line—Constructed by a coal company—Operated by a federal railway company—Applicability of the federal Railway Act—Power of federal parliament to pass s.s. c. of s. 6 of the Railway Act, (D) 1919—B.N.A. Act, 1867, s. 92, s.s. 10, par. c.

The appellant is a colliery company and had been authorized by a statute (c. 78 of 1921) of the province of Alberta to construct a railway known as the Luscar Branch to connect with the railway of the Mountain Park Coal Company, Limited, at or near Leyland station. In April, 1923, the appellant entered into an agreement with the Mountain Park Coal Company, the Grand Trunk Pacific Branch Lines Company and the Grand Trunk Pacific Company, the two latter companies now represented by the Canadian National Railways, for the construction and operation of this railway. It also submitted its railway to the operation of certain agreements between the three other companies concerning the construction and operation of the railway of the Mountain Park Coal Company. The effect of all these agreements is that these railways were built by the Grand Trunk Pacific Branch Lines Company at the expense of the two colliery companies, the cost of construction to be reimbursed to the latter by certain rebates allowed them on the shipment of all coal over these railways, it being agreed that when the companies are fully reimbursed the railways will become the property of the Grand Trunk Pacific Branch Lines Company. The Grand Trunk Pacific Company undertook to operate the railways and to furnish such Tolling stock as would be necessary. In the agreement made by it with the three other companies, the appellant consented to any necessary application of the Grand Trunk Pacific Branch Lines Company (or the Canadian National Railways) to the Board of Railway Commissioners for Canada for approval of the location of the Lusgar branch and the maintenance and operation thereof by the Grand Trunk Pacific Branch Lines Company. The respondent McDonald was the owner of Tarns coal lease, Mountain Park Branch, Canadian National Railways, in the vicinity of the Luscar branch, and desired to obtain from the Board of Railway Commissioners permission to use a "Y" on the Luscar branch and also to construct from this "Y" a spur track to serve his coal lease approximately 1,000 feet in length. This application was opposed by the appellant which denied the jurisdiction of the Board to grant it. At the time of the application, the legal title to the ownership of the Luscar Branch was still in the appellant company's name.

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Held, Idington J. dissenting, that the Board of Railway Commissioners had jurisdiction to entertain and grant the application made by the respondent N. S. McDonald.

Per Anglin C.J.C. and Duff and Rinfret JJ.—The Luscar Branch is a railway within the meaning of s. 185 of the Railway Act and therefore comes within the operation of the Railway Act by force of s. 5 of this Act.

Per Newcombe J.—The Canadian National Railways, by the effect of the above agreements, acquired and exercised, subject to the terms specified, operating rights upon the Luscar Branch and it thus comes within the description of par. (c) of s. 6 of the Railway Act, as being a railway operated by a company which is wholly within the legislative authority of the Parliament of Canada, and therefore a work declared to be for the general advantage of Canada.

Per Anglin C.J.C. and Idington, Duff and Rinfret JJ.—S.s. (c) of s. 6 of the Railway Act, which provides in general terms to what railways the Act shall extend and apply and enacts that these railways shall be deemed and are thereby declared to be works for the general advantage of Canada, is not within the legislative powers of the Dominion and does not constitute an effective declaration under par. (c) of s.s. 10 of s. 92 of the B.N.A. Act. Mignault and Newcombe JJ. contra.

APPEAL by leave of a judge of this court from a decision of the Board of Railway Commissioners for Canada holding that it had jurisdiction to entertain an application by the respondent McDonald for an order of the Board granting him running rights over a spur track in use by the appellant and for an order of the Board requiring the respondent, the Canadian National Railways, to grant him permission for the construction of a spur track to serve his coal lease.

The material facts of the case are stated in the above head-note. The Board having decided that it could entertain the respondent McDonald's application, the appellant applied to a judge of this court for leave to appeal from the decision of the Board. This leave was granted and the order specified as follows the points of jurisdiction which were in question:—

(1) Whether subsection (c) of section 6 of the Railway Act of Canada is within the legislative powers of the Dominion of Canada.

(2) Whether assuming that Parliament has power to legislate as to the subject matter, a general declaration not specifying any particular railway or railways, as under subsection (c) of section 6 of the Railway Act of Canada, is a declaration complying with subsection (c) of subsection 10 of section 92 of the British North America Act.

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(3) Whether having regard to the provisions of chapter 78 of the Statutes of Alberta, 1921, subsection (c) of section 6 of the Railway Act of Canada has any application to the Luscar Collieries Limited.

(4) Whether the Board of Railway Commissioners for Canada under section 6, subsection (c) of the Railway Act of Canada has jurisdiction to make any order establishing connection with or giving any running rights over the railway constructed by Luscar Collieries Ltd., and if not, has the Board of Railway Commissioners for Canada otherwise any jurisdiction to make such order.

The Attorney General of Canada intervened to support the jurisdiction of the Board of Railway Commissioners. The Attorney General of Alberta, although notified of the order granting leave to appeal, did not instruct counsel to appear on his behalf at the argument, although subsequently, in answer to certain questions put by the court, a factum was filed on his behalf. The Canadian National Railways, respondents, were represented by counsel who stated that he neither asserted nor disputed the jurisdiction of the Board to make the order applied for.

S. R. Woods K. C. for appellant.

H. Aylen K.C. and J. A. Aylen for the respondent

Geo. F. Macdonnell for the respondent

S. R. Woods K. C. for appellant.—Ss. 185 and 186 of the Railway Act do not apply to the Luscar Branch which has not been originally constructed pursuant to s. 185 but which has been originally constructed by the appellant company with their own money on their own right of way pursuant to powers granted by the legislature of Alberta.

The power conferred upon the Parliament of Canada by par. c. of s.s. 10 of s. 92 of the B.N.A. Act has not been effectively exercised in the way it is sought to be exercised in s.s. c. of s. 6 of the Railway Act, so as to bring a purely provincial enterprise under the exclusive legislative control of the Parliament of Canada.

The legislative declaration in s.s. c of s. 6 of the Railway Act is ineffective because upon the true interpretation of the pertinent provisions of the B.N.A. Act, the declaration can competently be made only with reference to a work existing at the time or particularly specified.

O. M. Biggar K.C. and C. P. Plaxton for the Attorney General of Canada. Under the provisions of par. c. of s.s. 10 of s. 92 of the B.N.A. Act, the Dominion Parliament has jurisdiction to declare, in general terms, whole classes

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of works to be for the general advantage of Canada and is not bound to specify individually the works to which the declaration is directed. Therefore s.s. c. of s. 6 of the Railway Act is intra vires of the Parliament of Canada.

H. Aylen K.C. and J. A. Aylen for the respondent N. S. McDonald.

Geo. F. Macdonnell for the respondent C.N.R.

Anglin C.J.C.—I concur with Mr. Justice Duff.

Idington J. (dissenting).—The appellant is a company incorporated under the Companies Ordinance of Alberta, and was so incorporated with power inter alia to mine coal and other minerals under the provisions of certain leases upon lands situated in the Mountain Forest Reserve in said province.

It petitioned the legislature of Alberta setting forth that for the proper development of said coal fields and the marketing of its products it would be necessary that said company be given power to construct and operate a railway, and the said legislature, by c. 78 of its 1921 statutes, passed the desired Act, assented to on the 19th of April, 1921.

S. 1 thereof enabled the said company to construct the desired railway from a point in or near township 47, range 24, west of the fifth meridian, by the most feasible route, to connect it with the Mountain Park Coal Company's railways in said province, at or near Leyland station, or any other feasible point of juncture with said line.

S. 2 provided for the company entering into an agreement with certain named railways for operating appellant's road when built, and providing thereby for repayment of the cost of building out of rebates to be given by the operating company over any extended term of years of operation to be agreed upon and thus, if so agreed for the acquisition of appellant's railway.

S. 3 thereof provides that the several claims of the Railway Act (which I take it means the Alberta Railway Act) shall be incorporated with and shall be deemed part of this Act, and shall apply to the company and to the said railway except so far as the same may be inconsistent with the express enactments thereof, and the expression "this Act" when used herein shall be understood to include the

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said clauses of said Railway Act and for greater certainty declared that the several clauses of the said Railway Act referring to the construction of the branch lines and spur lines or tracks are incorporated herein; but ss. 9 to 61, and ss. 143 to 228 of the said Railway Act shall not apply to the said company; and where others so inconsistent, provision is made in the articles of the company in the matters dealt with in the Railway Act, the provisions of the said memorandum and articles shall prevail, and in the event of an operating agreement or agreements being entered into, as aforesaid, by the said company notwithstanding anything in said Railway Act, the said railway may, if so provided in the operating agreement, be operated under and pursuant to the provisions of any statute of Canada, applicable to any company incorporated by or under the authority of the Parliament of Canada and the purview of said Railway Act, so far as necessary, be superseded, but nothing herein contained shall be taken to prevent said railway being operated either by the company or other company under the provisions of said Railway Act.

Provided that notwithstanding anything herein contained, upon the acquisition of said railway by the Canadian National or other railway company, the provision of s. 143 of the Railway Act shall apply to the company so acquiring said railway.

S. 4 provided for the appellant company, or the Canadian National Railway Company, or other railway company entering into such operating agreement applying to the Board of Railway Commissioners of Canada (or other proper authority, provincial or federal) for all necessary and proper orders and authorities to provide for the operation of said railway.

S. 5 provided for the construction of said railway being commenced within one year and its completion within three years from date of the coming into force of said Act.

S. 6 provided power for the purposes of said undertaking to construct and operate an electric telephone and telegraph lines, etc.

S. 7 provided as follows:—

7. Any railway line duly constructed under legislative authority may be joined on to the said line of railway upon application to the Minister of Railways and upon such terms as the Minister may determine.

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I have tried to outline the foregoing Act of incorporation in order to present the many angles therein presented looking, I submit, to becoming the very humble creation of a local legislature in preference to being considered and held to be a work for the general advantage of Canada, unless and until it had been acquired by the Canadian National Railway, or other railway, agreeing to operate it.

The appellant's railway in question is only five and a half, or five and three-quarter miles long, and evidently but a spur line enabling the appellant to have the coal recovered from its mine, transported to the Canadian National Railway, or other railway, and thereby carried to where a market may be found for its coal products.

In short it seems of no more importance than (if so much as) many switches provided by large manufacturers for transporting such goods on to the tracks over which they are destined to be carried by means of freight cars belonging to the said road.

The respondent, McDonald, having discovered, or got possession of, a coal mine near to the appellant's spur, conceived the idea of saving himself the expense of building a spur of his own connecting with another line of railway, or the line the appellant's spur is connected with, and applied to the Board of Railway Commissioners for Canada for permission to connect his proposed spur line with that of appellant.

The (appellant's counsel resisted the application and pointed out that putting such a project into operation would necessitate running respondent's cars through appellant's yard and render it a rather dangerous expedient for which no provision had been made or anticipated as likely to be necessary. He said the appellant's spur had cost it from $200,000 to $220,000 and offered, if McDonald, the respondent, would pay half of that amount, that the appellant might try to overcome all these difficulties, but respondent would not listen to such a proposal.

The Board seemed doubtful of its powers but finally decided to make the order applied for and give the appellant an opportunity for testing the matter by an appeal to this court. And hence this appeal by leave of Mr. Justice Mignault under the provision of the Railway Act of Canada relevant to the powers and duties of said Commissioners.

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The question thus raised turns upon the interpretation and construction of, first, the item no. 10, of s. 92 of the British North America Act, 1867, which reads as follows:—

10. Local works and undertakings other than such as are of the following classes:—

(a) Lines of steam or other ships, railways, canals, telegraphs, or 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 steamships 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;

and secondly, the interpretation and construction of s. 6, s.s. (c) of the Railway Act, 1919, enacted by the Dominion Parliament, and which read's as follows:—

(c) every railway or portion thereof, whether constructed under the authority of the Parliament of Canada or not, now or hereafter owned, controlled, leased, or operated by a company wholly or partly within the legislative authority of the Parliament of Canada, or by a company operating a railway wholly or partly within the legislative authority of the Parliament of Canada, whether such ownership, control, or first-mentioned operation is acquired or exercised by purchase, lease, agreement or other means whatsoever, and whether acquired or exercised under authority of the Parliament of Canada, or of the legislature of any province, or otherwise howsoever; and every railway or portion thereof, now or hereafter so owned, controlled, leased or operated shall be deemed and is hereby declared to be a work for the general advantage of Canada.

The said item 10 of s. 92 of the British North America Act, in its s.s. (c), it was stoutly contended by counsel for appellant, contemplated a specific designation of the particular railway, or other work, that was to be declared by the Parliament of Canada to be for the advantage of Canada and that it was not competent for said Parliament to classify in an abstract and imaginary manner "such works" as it pleased, and declare any entire class of the kind to be "for the advantage of Canada."

I certainly was surprised to find such a classification and declaration as in the s. 6 (c) above quoted, for I have never had occasion to consider same until this case was presented to us, unless the early legislation providing for the cases of local railways crossing Canadian through lines.

The said assumption of authority if upheld, I respectfully submit, would leave it open to Parliament to assume control of all our highways, all our elevators, all our local hydro electric systems, now existent or hereafter to come

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into existence; all our local public utilities, which have become so manifold, especially in some of our western provinces, and which would include telephone systems and, if I mistake not, telegraph systems: and all the sidings and switches I have adverted to above, built by manufacturers for their own personal service and benefit, but operated by the railway to which they gave their transportation business, and perhaps preference in cases of competition, and in such cases possibly to a Dominion railway and alternating to a local railway, by simply passing a declaratory Act as to their being for the general advantage of Canada.

I cannot follow all the possible consequences of such a holding, or of its manifold implications.

I cannot assume that any such consequences, or anything like thereto, were ever expected to ensue upon or flow from any single enactment by the Parliament of Canada pretended to have been made within the meaning of the reservation of s.s. (c) of item 10, of s. 92 of said British North America Act, and thereby to fulfil its requirements for a declaration as to any works for the general advantage of Canada.

Indeed I submit that it was in order to avoid any possibility of such like results that the said item 10 (c) was framed as it was, and so remains.

Subsections (a) and (b) of said item 10 deal with works which can safely be classified and are dealt with accordingly, but beyond that the framers of the British North America Act apparently felt they could not proceed by the classification process, and hence proceeded to deal with the residue of what could not be so properly dealt with by the classification process; by entrusting said residue by s.s. (c) to the Parliament of Canada, on which it cast the onus of deciding whether or not anything further could properly be declared to be a work for the general advantage of Canada.

In other words it seems to me quite clear that Parliament was entrusted with the quasi judicial duty of determining after hearing all those concerned, whether or not a specific work, either before or after its execution, could properly be declared to be for the general advantage of Canada, or of two or more of its provinces.

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Any one conversant with how matters are dealt with by parliament must recognize the vast difference in possible results (to say nothing derrogatory of that body) when considering the abstract general proposition and a specific case.

And no men ever knew that better than the framers of the British North America Act, and, to repeat what I have had so frequently to advert to in considering their work, I think we must consider and apply the point of view they took in any question arising upon the interpretation and construction of the British North America Act which was, though enacted by the British Parliament, essentially a product of the best thought of our Canadian statesmen engaged in trying to frame something for the future delimitations of the powers of Parliament and local legislatures.

The early legislation that ensued thereon in regard to anything like unto that with which we are now confronted was such as already adverted to in the case of local railways crossing Canadian through lines; and that came before this court in the case of a submission by the Railway Committee of the Canadian Privy Council to this court in Re Portage Extension of the Red River Valley Ry. Co., in which this court, in a judgment prepared by the late Mr. Justice Patterson, seems to have decided that the contentions set up by the through lines were unfounded.

So far as it went that decision was in principle against the contention of the respondent herein, largely, I submit, because of want of specific basis for the declaration relied upon and merely a class of railway. See Coutlée's Digest of 1875-1903.

There does not seem to have been any other important question raised upon said earlier Dominion legislation.

These earlier Acts were all repealed in 1907, and thereafter there arose no case in principle exactly like the question now before us so far as it could arise under said earlier Acts which, by no means, ever attempted such an extension of authority as above quoted s. 6, s.s. (c) of the Dominion Act, 1919.

The decision of this court in the Through Traffic Case, so called, being Montreal Street Railway Company v. The

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City of Montreal[1], upheld by the judgment of the Judicial Committee of the Privy Council[2], which was delivered by Lord Atkinson, and his remarks on page 338, as follows, are relied upon by counsel for appellant herein:—

There is not a suggestion in the case that the "through" traffic between this federal and this local line, or between any other federal or local line, had attained such, dimensions before this Railway Act was passed as to affect the body politic of the Dominion. If it had been so, the ready way of protecting the body politic was by making such a statutory declaration in any particular case or cases as was made in reference to the Park Line.

That case presented some curious features and in light of said judgment is well worthy of consideration herein, though not exactly in point.

The case of Re Ross and Hamilton, Grimsby and Beamsville Ry. Co.[3], was an appeal from a decision of the Ontario Railway and Municipal Board dealing with said railway, which, it was argued by virtue of a crossing section in the Dominion legislation, brought it under Dominion authorities, and the Appellate Division held not and dismissed the appeal. On appeal to the Judicial Committee of the Privy Council, under the name of Hamilton, Grimsby and Beamsville Ry. Co. v. The Attorney General of Ontario[4], that court of last resort held that the Act relied upon had been repealed and hence that it was not necessary to decide the other points raised and accordingly dismissed the appeal.

Such being the brief record of decided cases I must turn again to the consideration of said s. 6, s.s. (c) and its bearing upon the actual facts herein.

The appellant entered into an agreement between the Mountain Park Coal Company, Limited, the appellant, and the Grand Trunk Pacific Branch Lines Company and the Grand Trunk Pacific Railway Company, on the 2nd of April, 1923, pursuant to the powers given it, by the Act I have outlined above and that provides for the repayment to appellant of the cost of the construction and maintenance meantime, and interest thereon, of allowance or allowances by way of a rebate on the usual tolls of freight on shipments by appellant over said spur line in question.

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This agreement is so connected thereby with other agreements made by one or more of the parties thereto, that it would be imposing too much upon my readers to enter into a demonstration of the interpretation and construction I have readied as to the same, as stated, that I must content myself with saying such is the conclusion I have reached.

In short the whole scheme of said agreement and those with which it connects up, is that if the appellant is repaid by said means, then this spur in question herein will in effect ultimately become the property of the Canadian National Railway Company, or one of its subsidiaries, and completely subject to the statutory powers of the Board of Railway Commissioners for Canada.

Meantime it is a local provincial work under the authority of the legislature of the province of Alberta, and the enactments of that legislature.

If these, at any time, conflict with what Parliament desires, the only way out for the latter is to declare it under item 10 (c) of s. 92 of the British North America Act, in specific terms as, I submit, the subsection requires "a work for the general advantage of Canada."

Of course it is rather like reducing the phrase "a work for the general advantage of Canada" to a point of ridicule, to bring thereunder the five miles and a half, or three-quarters of a spur line in Northeastern Alberta, serving, or originally intended only to serve, the appellant's Luscar Colliery, where collieries seem to be numerous.

But I am not to blame therefor. It is giving assent to such a proposition, as that such a pigmy thing can be declared by Parliament for the general advantage of Canada, when such phrase is used as the determining limit of the powers that are to be invoked and acted upon by Parliament alone, and not by any of its delegates.

I respectfully submit that when provincial rights which were prima facie sure, are to be invaded and transferred to the rule of the Dominion Parliament, something more important was contemplated by the framers of said item 10 (c) of the 92nd section of the British North America Act, than such a comparatively trifling item as this little spur railway to afford appellant transportation for its mine.

It may turn out that the mine is not worth the expenditure

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of running an engine and cars for five miles of it; then the agreement, of necessity, will drop out of sight.

On the other hand it may be such as to find it necessary for appellant to keep entirely to itself the said spur for its own uses, until the cost of construction and interest thereon is paid by the rebates provided for by said agreement.

In such latter event the spur in question drops into and becomes part of the Canadian National Railway property.

Why anticipate and peremptorily deal with such a situation in the way the order appealed from does? It is none of our business to interfere with the administration of the powers of the Board for which I entertain great respect. I am only illustrating alternatively the varying aspects of law in which the case presents itself to my mind in this rather novel case.

I am sorry that none of the factums herein present what the powers of the Canadian National Railways are relative to agreeing to run over a spur or switch or siding to get freight to be carried perhaps thousands of miles and thereby win very substantial earnings relative to, or compared with, which the five mile spur haul would be a mere nothing.

Moreover, I infer there must have been some application to the Board, but possibly that was by some of appellant's predecessors named in the agreement.

And I am also sorry to find that Lord Atkinson's view, expressed as above quoted, or the like attitude, surely desirable in transferring a provincial railway to Dominion jurisdiction, seems to have been overlooked by all concerned in promoting the order appealed from herein.

I am surprised to find respondent, McDonald's, counsel, by their factum herein, frankly concede that Parliament has delegated any part of its functions, conferred on it by said item 10 (c) of the British North America Act, to said Board.

It submits the following on behalf of their said client:—

The Parliament of Canada deemed it proper to enact s.s. (c) of s. 6 of the Railway Act in general terms and make same applicable to railways wherever situate, coming within the classes therein stated to be for the general advantage of Canada or for the general advantage of two or more of the provinces. Such general enactment relieves Parliament of innumerable applications by way of private bills which otherwise would come before it. Parliament, in enacting this legislation, has, in the language of May, "exercised its legislative powers" and delegated to the Railway

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Commission the judicial powers of determining if the facts and circumstances bring any particular railway within the scope of the legislation in question.

I most respectfully submit that this proposition is not well founded in law for said item 10 (c) clearly casts the onus of any such decision upon Parliament itself and so clearly so as to destroy any pretence of foundation for delegation of its said powers by enacting in the Railway Act, s. 6 (c), such enactments as contained therein, especially that relative to future operations.

It is precisely that, which I have been attempting to demonstrate in several ways, which had been done by using a classification system to be determined by future results, and acts of others instead of specifically designating; either before or after the execution of the work, what it was that Parliament intended to be declared to be for the general advantage of Canada.

The constitutional rights of the people in any single province, and of its legislature to protect them and their property, are, I respectfully submit, of too much importance to be maintained, clear of all endangering thereof by their being invaded, or set aside, by any such like legislation as, said s. 6 (c) of the Railway Act.

Attempts such as made by the order herein appealed against founded upon features of said s. 6 (c), clearly ultra vires, cannot be too carefully watched and guarded against.

I, therefore, am of the opinion that this appeal should be allowed with costs and the said order set aside.

Duff J.—The controversy as to the jurisdiction of the Board of Railway Commissioners, with which this appeal is concerned, turns upon the question whether or not a certain line of railway, which may be referred to as the Luscar Branch, is a railway within the meaning of s. 185 of the Railway Act, and one to which that enactment applies. This railway line runs from the Luscar Collieries Mine to the Leyland Siding, and there connects with a line referred to herein as the Mountain Park Branch, running from the Mountain Park Coal Mine, at its western terminus, to a point on the Alberta Coal Branch of the Grand Trunk Pacific Railway, known as Coal Spur, the Alberta Coal Branch having been constructed by the Grand Trunk Pacific Branch Lines Company, apparently under the

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authority of its charter as amended in 1911 ([1911] Dominion Statutes, c. 83, s. 1 (37)). The Alberta Coal Branch, about fifty-eight miles in length, connects by a switch at Bickerdike with the main line of the Grand Trunk Pacific Railway, constructed under the authority of c. 161, Dominion Statutes, 1903. The Mountain Park Branch was constructed by the Mountain Park Coal Company, pursuant to an agreement dated the 23rd of January, 1912, under which the coal company was to construct the line, the Grand Trunk Pacific Railway company was to operate it, and the cost of construction was to be reimbursed to the coal company by allowances in respect of freight shipped from the coal company's mine and specifically dealt with in paragraph four of the agreement. Thereupon, the title to the railway line, the right-of-way, stations, station grounds and other buildings and erections connected therewith, water stations, telegraph and telephone lines, and all other property of the Coal Company, was to pass to the Grand Trunk Pacific Branch Lines Company. By an agreement of the 10th of May, 1921, this agreement of 1912 was varied, by providing conditionally for the construction of the Luscar Branch and repayment of the cost of construction on similar terms to those affecting the obligation to repay the cost of the Mountain Park Branch; and further, that the obligation to operate the branch should cease upon the failure of the coal company to ship in any year 150,000 tons of coal on the Mountain Park Branch, or 75,000 tons per annum on the Luscar Branch.

On the 2nd of April, 1923, a further agreement was entered into by which the Luscar Collieries became party to the two preceding agreements already mentioned. The two coal companies were authorized to enter these agreements by provincial statutes, c. 42, Statutes of Alberta, 1912; and c. 78, Statutes of Alberta, 1921, respectively.

By the interpretation section of the Railway Act, c. 122 of 1903, it is declared (s. 12) that the main line of railway and branches authorized,

together with such other branch lines and any extension of the said main line of railway as are hereafter constructed or acquired by the company shall constitute the line of railway to be called The Grand Trunk Pacific Railway.

By c. 99 of the Dominion Statutes of 1906, the Grand Trunk Pacific Branch Lines Company was incorporated

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with authority to construct certain named lines of railway, with authority (s. 28) to enter into arrangements with the Grand Trunk Pacific Railway Company for the sale and purchase of any of these lines, or for the operation of them. In 1911, by the statute already referred to, the Branch Lines Company acquired power to construct the branch known as the Coal Branch, and, with the authority of the Governor in Council, to construct from the Coal Branch branches connecting with the coal mining areas in the vicinity. Apparently it was under the authority of this provision that the agreements were entered into with the Luscar Company and the Mountain Park Company.

If the Mountain Park Branch and the Luscar Branch are generally within the operation of the Railway Act, then there appears to be no good reason for holding that s. 185 does not apply to these branches, or that the Board would not have authority under that section to make an order as against the Grand Trunk Pacific Company, the operating company.

By the definition section, "railway" includes any railway which the company has authority to construct or to operate; and by s. 5, the Act applies to all persons, railway companies and railways within the legislative authority of the Parliament of Canada, with certain exceptions which are immaterial. S. 5 apparently contemplates railways which, apart from any declaration under s. 92 (10) of the British North America Act, are under Dominion jurisdiction. S. 7 deals with the effect of the Act as regards railways in respect of which such a declaration has been made; and s. 6 (c) contains such a declaration, affecting, if it be legally operative, all railways owned or operated by a railway company under the legislative jurisdiction of the Dominion. S. 6 (c) obviously and admittedly applies, and if it be within the competence of the Dominion, unquestionably has the effect of bringing these branches within the scope of the Railway Act. The authority of the Dominion Parliament to enact s. 6 (c) will be discussed later. For reasons to be stated, it appears to be inoperative as a declaration under s. 92 (10c) of the British North America Act.

But this is not necessarily conclusive on the question of the application of the Railway Act. If the Luscar Branch

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is part of a railway in respect of which the Dominion has jurisdiction in the absence of a declaration under s. 92 (10c) of the British North America Act, then by force of s. 5 the Railway Act applies to it. Whether or not a line of railway operated as a branch of a Dominion railway—that is to say, a railway within s. 92 (10a), extending beyond the limits of a province or connecting two or more of the provinces—is an integral part of the Dominion railway in such a way as to give the Dominion jurisdiction over the branch, must be largely a question of fact to be determined from all the circumstances of the case.

The Mountain Park Branch and the Luscar Branch are, with the Coal Branch, operated under the joint authority of the Grand Trunk Pacific Railway Company's charter and the Grand Trunk Pacific Branch Lines Company's charter. The contracts are virtually contracts entered into by the coal companies with the authority of the provincial legislature for the construction of these branches for the Branch Lines Company, the cost of construction to be paid in the first instance by the coal companies, and reimbursed by a rebate on charges for the carriage of coal. The intention of the contracts is that the Branch Lines Company shall ultimately become the owner of both branches, and that they shall be operated as parts of the Grand Trunk Pacific system. We have not before us any information as to the arrangements between the Grand Trunk Pacific Company and the Branch Lines Company, or as to the relations between the companies, but no dispute has been raised as to the authority of the Dominion to enact the Branch Lines Company's Act of 1906 or the amending Act of 1911. S. 36 of the Act of 1906, by which it is declared that the company's undertaking is a work for the general advantage of Canada, seems to be of very doubtful validity, as applied, at all events, to works subsequently authorized. But it may be assumed that, if the facts were disclosed, it would appear that in fact the Coal Branch is a part of the Grand Trunk Pacific Railway undertaking, and therefore within the authority of the Dominion.

In fact, the Mountain Park Branch and the Luscar Branch are worked as part of the undertaking of the Grand Trunk Pacific Railway Company as a railway in operation; they are part of the railway which, under the name of the

[Page 476]

Grand Trunk Pacific Railway, connects the province of Alberta with the other provinces of the Dominion. The fact alone that the legal title has not yet passed to the Grand Trunk Pacific Branch Lines Company does not seem in itself to be a circumstance sufficiently important to segregate them from the principal line for the purposes of legislative jurisdiction. The proper conclusion seems to be that they come within the operation of the Railway Act by force of s, 5.

The grounds on which it can be argued that s. 6 (c) of the Railway Act does not constitute a valid declaration within s. 92 (10c) of the British North America Act, can be very concisely stated. The object of this provision, it is said, was not to enable the Dominion to take away jurisdiction from the provinces in respect of a given class of potential works; works, that is to say, which are not in existence, which may never come into existence, and the execution of which is not in contemplation; the purpose of the provision is rather to enable the Dominion to assume control over specific existing works, or works the execution of which is in contemplation. The control intended to be vested in the Dominion is the control over the execution of the work, and over the executed work. If a declaration in respect of all works comprised within a generic description be competent, the necessary consequence would appear to be that, with regard to the class of works designated by the description, provincial jurisdiction would be excluded, although Dominion jurisdiction might never be exercised, and although no work answering the description should ever come into existence.

In support of this view it may be said that the purport of the declaration authorized appears to be that the work which is the subject of it either is an existing work, beneficial to the country as a whole, or is such a work as ought to be executed, or, at all events, is to be executed, in the interests of the country as a whole. An affirmation in general terms, for example, an affirmation that all railways owned or operated hereafter by a Dominion company are works which ought to be or will be executed, as beneficial to the country as a whole, would be almost, if not quite, meaningless, and could hardly have been contemplated as the basis of jurisdiction.

[Page 477]

Of course, this provision of s. 92 must be construed reasonably, and reasonably applied. Parliament having assumed control of a work, such, for example, as a trunk line of railway within the limits of a province, may well, as included within the jurisdiction intended to be conferred by s. 92 (10c), have ample authority with regard to subsidiary works existing and non-existing, even though such subsidiary works should not have been specifically in contemplation at the date of the declaration. It is in light of this consideration, it would appear, that the observation of Lord Macnaghten, in The City of Toronto v. The Bell Telephone Company[5], ought to be construed and applied.

There seems to be a preponderance of argument in support of the view that s. 6 (c) is not an effective declaration under s. 92 (10c) of the British North America Act.

The appeal should be dismissed with costs.

Mignault J.—This is an appeal by leave of a judge of this court from a decision of the Board of Railway Commissioners for Canada holding that it had jurisdiction to entertain an application by the respondent McDonald for an order of the Board granting him running rights over a spur track in use by the appellant and for an order of the Board requiring the respondent, the Canadian National Railways, to grant him permission for the construction of a spur track to serve his coal lease.

The appellant is a colliery company and had been authorized by a statute (c. 78 of 1921) of the province of Alberta to construct a railway to connect with the railway of the Mountain Park Coal Company, Limited, at or near Leyland station. In April, 1923, the appellant entered into an agreement with the Mountain Park Coal Company, the Grand Trunk Pacific Branch Lines Company and the Grand Trunk Pacific Company, the two latter companies now represented by the Canadian National Railways, for the construction and operation of this railway. It also submitted its railway to the operation of certain agreements between the three other companies concerning the construction and operation of the railway of the Mountain Park Coal Company. The effect of all these agreements is

[Page 478]

that these railways were built by the Grand Trunk Pacific Branch Lines Company at the expense of the two colliery companies, the cost of construction to be reimbursed to the latter by certain rebates allowed them on the shipment of all coal over these railways, it being agreed that when the companies are fully reimbursed the railways will become the property of the Grand Trunk Pacific Branch Lines Company. The Grand Trunk Pacific Company undertook to operate the railways and to furnish such rolling stock as would be necessary. In the agreement made by it with the three other companies, the appellant consented to any necessary application of the Grand Trunk Pacific Branch Lines Company (or the Canadian National Railways) to the Board of Railway Commissioners for Canada for approval of the location of the Luscar branch and the maintenance and operation thereof by the Grand Trunk Pacific Branch Lines Company.

The respondent McDonald was the owner of Tarns coal lease, Mountain Park Branch, Canadian National Railways, in the vicinity of the Luscar branch, and desired to obtain from the Board of Railway Commissioners permission to use a "Y" of the Luscar branch and also to construct from this "Y" a spur track to serve his coal lease approximately 1,000 feet in length. This application was opposed by the appellant which denied the jurisdiction of the Board to grant it. The Board having decided that it could entertain the application, the appellant applied to a judge of this court for leave to appeal from the decision of the Board. This leave was granted and the order specified as follows the points of jurisdiction which were in question:—

(1) Whether s.s. (c) of s. 6 of the Railway Act of Canada is within the legislative powers of the Dominion of Canada.

(2) Whether assuming that Parliament has power to legislate as to the subject matter, a general declaration not specifying any particular railway or railways, as under s.s. (c) of s. 6 of the Railway Act of Canada, is a declaration complying with par. (c) of s.s. 10 of s. 92 of the British North America Act.

(3) Whether having regard to the provisions of c. 78 of the Statutes of Alberta, 1921, s.s. (c) of s. 6 of the Railway Act of Canada has any application to the Luscar Collieries Limited.

(4) Whether the Board of Railway Commissioners for Canada under s. 6, s.s. (c) of the Railway Act of Canada has jurisdiction to make any order establishing connection with or giving any running rights over the railway constructed by Luscar Collieries Ltd., and if not, has the Board of Railway Commissioners for Canada otherwise any jurisdiction to make such order.

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The Attorney General of Canada intervened to support the jurisdiction of the Board of Railway Commissioners. The Attorney General of Alberta, although notified of the order granting leave to appeal, did not instruct counsel to appear on his behalf at the argument, although subsequently, in answer to certain questions put by the court, a factum was filed on his behalf. The Canadian National Railways, respondents, were represented by counsel who stated that he neither asserted nor disputed the jurisdiction of the Board to make the order applied for.

The third point of jurisdiction mentioned in the order granting leave to appeal does not require any special consideration if the appellant is wrong as to the other points. For if s.s. (c) of s. 6 of the Railway Act (of Canada) is within the legislative powers of the Dominion, and if the declaration therein contained complies with par. (c) of s.s. 10 of s. 92 of the British North America Act, the Board of Railway Commissioners has jurisdiction to allow the application of the respondent McDonald, and nothing in the Alberta statute can stand in the way of the exercise of this jurisdiction. If on the other hand the appellant is right in its attack on s.s. (c) of s. 6 of the Railway Act, the Board is without jurisdiction to grant the order applied for and no opinion need be expressed as to the effect of the Alberta statute. The outstanding question for determination on this appeal is whether s.s. (c) of s. 6 of the Railway Act is within the legislative jurisdiction of the Dominion, and it can be so considered only if it complies with the requirements of par. (c) of s.s. 10 of s. 92 of the British North America Act.

Subsection 10 of s. 92 of the latter Act deals with the jurisdiction of the province as to local works. It reads as follows:

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 steamships 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.

[Page 480]

The power conferred on Parliament to declare that works wholly situate within the province are for the general advantage of Canada or for the advantage of two or more of the provinces, is obviously a far-reaching power. Parliament is the sole judge of the advisability of making this declaration as a matter of policy which it alone can decide. And when the power is exercised in conformity with the grant, it vests in Parliament exclusive legislative authority over the local work which it removes from the provincial to the federal field of jurisdiction.

It is a matter of common knowledge that this power is frequently exercised by the Canadian Parliament. It has often done so in wide and comprehensive terms, as can be seen by the different enactments of the Railway Act. Thus in 1883, in an Act further to amend the Consolidated Railway Act, 1879, 46 Vict., c. 24, s. 6, Parliament declared ten named lines of railway to be works for the general advantage of Canada, and after this declaration it stated that

each and every branch line or railway now or hereafter connecting with or crossing the said lines of railway, or any of them., is a work for the general advantage of Canada.

This enactment was repeated in the Railway Act, c. 109 of the Revised Statutes of 1886, s. 121, and in the Railway Act of 1888, 51 Vict., c. 29, s. 306. In 1893, by 56 Vict., c. 27 Parliament declared that the railway of any company should not be crossed, intersected, joined or united by or with any other railway, nor should any railway be intersected or crossed by any street railway, electric railway or tramway, whether constructed under Dominion or provincial or municipal authority or otherwise, unless the place and mode of the proposed crossing, intersection, or junction or union, are first approved by the Railway Committee. This, it was stated in a subsequent statute, 63-64 Vict., c. 23, 1900, did not imply that street railways and tramways, by reason only of crossing or connecting with one or other of the lines of railway mentioned in s. 306, should be taken or considered to be works for the general advantage of Canada. And in 1903, by 3 Edw. VII, c. 58, an Act to amend and consolidate the law respecting railways, which repealed in toto previous railway Acts, including of course s. 306 of 51 Vict., c. 29, it was declared by s. 7, that railways, steam or electric street railways or tram-

[Page 481]

ways, the construction or operation of which is authorized by a special Act passed by the legislature of any province, connecting with or crossing a railway which, at the time of such connection or crossing, is subject to the legislative authority of Parliament, is a work for the general advantage of Canada in respect only to such connection and crossing or to through traffic thereon.

In 1919, by the Railway Act now in force, 9-10 Geo. V, c. 68, it was enacted by s. 6 as follows:

The provisions of this Act shall, without limiting the effect of the Last preceding section, extend and apply to,—

(a) every railway company incorporated elsewhere than in Canada and owning, controlling, operating or running trains or rolling stock upon or over any line or lines of railway in Canada either owned, controlled, leased or operated by such company or companies, whether in either case such ownership, control, or operation is acquired by purchase, lease, agreement or by any other means whatsoever;

(b) every railway company operating or running trains from any point in the United States to any point in Canada.

(c) every railway or portion thereof, whether constructed under the authority of the Parliament of Canada or not, now or hereafter owned, controlled, leased, or operated by a company wholly or partly within the legislative authority of the Parliament of Canada, or by a company operating a railway wholly or partly within the legislative authority of the Parliament of Canada, whether such ownership, control, or first-mentioned operation is acquired or exercised by purchase, lease, agreement or other means whatsoever, and whether acquired or exercised under authority of the Parliament of Canada, or of the legislature of any province, or otherwise, howsoever; and every railway or portion thereof, now or hereafter so Owned, controlled, leased or operated shall be deemed and is hereby declared to be a work for the general advantage of Canada.

This latter provision the appellant attacks as transcending the legislative jurisdiction of Parliament. Under the agreements above referred to, its railway is operated by the organization now known as the Canadian National Railways, which is subject to the legislative authority of the Parliament of Canada, and it will become the property of this organization when the appellant is fully reimbursed the cost of construction. It thus comes within the scope of the declaration made by Parliament that any railway so operated shall be deemed and is declared to be a work for the general advantage of Canada.

The argument on behalf of the appellant is that the power which the British North America Act confers on Parliament to declare for the general advantage of Canada local works and undertakings is a power which can be exercised only in respect of a specified work, a work not necessarily

[Page 482]

named, but so identified by its description that it can be located on the plans or upon the ground. This, the appellant contends, cannot be said of the declaration made in s. 6, which comprises railways now or hereafter owned, controlled, leased or operated by a company wholly or partly within the legislative authority of the Parliament of Canada. It argues that the judgment of Parliament must be exercised as to the particular work which it declares to be a work for the general advantage of Canada, that the line must be drawn somewhere, and that a general declaration or a declaration applicable to a class of works, as distinguished from a specific work, is inoperative to remove the class of works from the provincial to the federal field of jurisdiction.

The learned counsel for the appellant could cite no decided case on the point at issue, for beyond a statement in the headnote, but not in the reasons for judgment, of a decision of the late Mr. Justice Street in Grand Trunk Ry. Co. v. Hamilton Radial Electric Ry. Co.[6], there is nothing in the reports bearing on this constitutional problem. The precise point now to be determined was indeed mentioned, but not decided, by their Lordships of the Judicial Committee in Hamilton, Grimsby & Beamsville Ry. Co. v. Attorney General for Ontario[7]. This decision, may however be usefully referred to as it holds that Parliament can at any time repeal a declaration which it has made under s.s. (c) of s.s. 10 of s. 92 of the British North America Act.

In 1888, the Railway Committee referred to this court a question as to the validity of a Manitoba statute authorizing the construction of a railway which crossed a branch of the Canadian Pacific Railway. The formal answer of the court is alone reported (In re Portage extension of the Red River Valley Ry.) [8], and was that the statute was valid and effectual to confer authority on the Railway Commissioner of Manitoba to construct the railway. The reasons on which the answer was based were not reported, but in the archives of the court an extended memorandum, (so termed) or draft judgment of the late Mr. Justice Patterson was found. The learned judge was inclined to

[Page 483]

favour the provincial contention as to the exercise of the declaratory power, but affirmed the validity of the Manitoba statute on the ground that a federal statute, not cited at the argument, impliedly recognized that the provincial Act governed the construction of the railway. He was of opinion that a declaration made by Parliament under s.s. (c) of s.s. 10 cannot be recalled, but this can no longer be said in view of the decision of the Judicial Committee in the case above mentioned.

The argument addressed to the court upon this reference by four very eminent counsel, Messrs. Edward Blake, Q.C. and Christopher Robinson, Q.C. for the Canadian Pacific Ry. Co., and Messrs. Oliver Mowat Q.C. (afterwards Sir Oliver Mowat) and Dalton McCarthy, Q.C. for the Manitoba Government, has fortunately been preserved and of this argument we have been furnished copious extracts. It does not seem possible to add anything to the discussion of the important constitutional problem which the court however did not solve. So the question submitted is in every way an open one.

Expressing now the opinion which I have formed after full consideration, it seems obvious that if Parliament can declare for the general advantage of Canada a specified work, it can also, in one declaration, comprise several works having the same distinguishing characteristics, or a class of works sufficiently described so as to leave no doubt as to the identity of each member of the class, as coming within the description of the enactment. Certainly if the works declared to be for the general advantage of Canada are adequately described, it is no objection that the enactment has grouped them together or described them as a class of works, each member of which can be identified as having been contemplated by Parliament when it made the declaration. And such a declaration cannot be termed a general declaration, if that really is an objection, because it comprises all the works so described. However, wide may be its application, it is specific in its description, and the judgment of Parliament is necessarily directed to each particular work which may now or hereafter come within this description.

It must not be forgotten that the power conferred on Parliament applies to such works as are, before or after

[Page 484]

their execution, declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces. The work may not be in existence when in advance of its execution it is declared for the general advantage of Canada. It must therefore be described so that when it does come into existence it can be identified as being the work which Parliament had in mind when it made its declaration. If this condition be fulfilled, there can be, in my judgment, no possible complaint against a declaration that a class of works, and each member of the class, is for the general advantage of Canada. It matters not that new members of the described class may come into existence after the declaration is made, for the declaration can be made before or after the execution of the work. Parliament has considered in advance each new member coming within the described class, and has exercised its judgment as to each. And it would seem as inconvenient as it would be contrary to the wide terms of the grant of power to require that each member of the class should be the object of a new declaration by Parliament when it comes into existence or when plans have been prepared for its construction.

If this interpretation of par. (c) of s.s. 10 of s. 92 of the British North America Act be sound, there is no room for the objection that the legislative jurisdiction of the provinces as to local works and undertakings is swept away by the declaration here in question. The argument before the court took a very wide range. It was urged that Parliament might conceivably declare all railways wholly situate within a province to be works for the general advantage of Canada, that a line must be drawn somewhere, and that the whole provincial jurisdiction as to local railways might be thus taken away.

With these objections or these fears we need have no concern. It is unnecessary to discuss where the line should be drawn, for the present case is certainly well within the line of a reasonable construction of par. (c) of s.s. 10. That is the only point on which we have to pass judgment. And it would seem as unreasonable as it would be impracticable to require that each time a provincial line is operated by a Dominion company a special declaration should be made by Parliament. The policy or the reason for the declaration

[Page 485]

is a matter for the consideration of Parliament alone. All that it is necessary to say here, and that is the conclusion at which I have arrived, is that in enacting s. 6, s.s. (c) of the Railway Act, Parliament has not overstepped its legislative jurisdiction.

The appeal against the decision of the Board of Railway Commissioners should be dismissed. The appellant should pay the costs of both respondents and of the Attorney General of Canada.

Newcombe J.—In the distribution of legislative powers by the British North America Act 1867 it is in effect enacted by the joint operation of s. 91 (29) and s. 92 (10) that the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the class of subjects described as local works, which,

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.

There is no longer any question that works within the purview of this provision include railways.

The Railway Act, 1919, c. 68 of the Dominion, by s. 6 (c), which is one of the clauses defining the application of the Act, enacts that the provisions of the Act shall extend and apply to

every railway or portion thereof, whether constructed under the authority of the Parliament of Canada or not, now or hereafter owned, controlled, leased or operated by a company wholly or partly within the legislative authority of the Parliament of Canada or by a company operating a railway wholly or partly within the legislative authority of the Parliament of Canada, whether such ownership, control, or first mentioned operation is acquired or exercised by purchase, lease, agreement or other means whatsoever, and whether acquired or exercised under authority of the Parliament of Canada, or of the legislature of any province, or otherwise howsoever; and every railway or portion thereof, now or hereafter so owned, controlled, leased or operated shall be deemed and is hereby declared to be a work for the general advantage of Canada.

By Act of Alberta, c. 78 of 1921, power was granted to the appellant company to construct and operate a railway in the province of Alberta, known in the case as the Luscar Branch, for the transport of its coal to the railway line of the Mountain Park Coal Company, and in the execution of the power so conferred the appellant company constructed the Luscar Branch; assuming as I shall, because it was not questioned at the bar, that the agreements submitted are within the powers of the respective companies,

[Page 486]

the Canadian National Railways, by the effect of these agreements, acquired and exercise, subject to the terms specified, the operating rights upon the Luscar Branch, and it thus comes with the description of par. (c) of s. 6 above quoted, as being a railway operated by a company which is wholly within the legislative authority of the Parliament of Canada, and therefore a work declared to be for the general advantage of Canada.

But it is said that the legislative declaration is ineffective because upon the true interpretation of the pertinent provisions of the British North America Act, 1867, the declaration can competently be made only with reference to a work existing at the time or particularly specified. The question is like that which was decided favourably to Dominion authority by Street J. in Grand Trunk v. Hamilton Electric Railway Co.[9]. A similar question was left undecided by their Lordships of the Judicial Committee in Hamilton, Grimsby and Beamsville Co. v. Attorney General for Ontario and others[10]. The latter case however removes some of the doubts which formerly existed with regard to the meaning and effect of the 10th enumeration of s. 92. The Lord Chancellor (Buckmaster) in pronouncing the judgment said:

Their Lordships are clearly of opinion that s. 92, s.s. 10, never intended that a declaration once made by the Parliament of Canada should be incapable of modification or repeal. To come to such a conclusion would result in the impossibility of the Dominion ever being able to repair the oversights by which, even with the greatest care, mistakes frequently creep into the clauses of Acts of Parliament. The declaration under s. 92, s.3. 10 (c), is a declaration which can be varied by the same authority as that by which it was made. In the present case their Lordships see no reason to doubt that if the statute of 1888 effected such a declaration as to place the whole railway under Dominion control, that declaration has been properly and effectually varied, and the appellant company have ceased to be, even if they ever once were, under the control of the Dominion Board.

From this it would seem logically to follow that the exclusive power of Parliament to declare works wholly situated within a province, either before or after their execution, to be for the general advantage of Canada is a legislative power to be exercised in the manner and subject to the incidents which are appropriate or belong to the general subjects of legislation which fall to the Parliament in the distribution effected by ss. 91 and 92; and since the

[Page 487]

declaration once made is susceptible of modification or repeal, it would not be an unreasonable consequence that it may be enacted for a temporary purpose, or to be effective conditionally.

Now it is common knowledge that the Parliament of Canada when acting within those limits by which its powers are circumscribed is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of the latter Parliament. The Queen v. Burah[11]. The authority conferred upon the Parliament of Canada is as plenary and as ample within the limits prescribed as the Imperial Parliament in the plentitude of its power possessed and could bestow. Within these limits the Parliament of Canada is supreme and has the same authority as the Imperial Parliament. Hodge v. The Queen[12]. It was in the exercise of powers such as these, conferred by ss. 91 and 92 (10) of the British North America Act, 1867, that the Parliament, of Canada enacted the Railway Act. In par. (a) of s. 92 (10) it was not necessary for the Imperial Parliament to mention specifically or to describe individually every work and undertaking which was to come within the Dominion powers; every work of the general description passed under the words

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.

Railways are works within the meaning of par. (a), because they are mentioned as exceptions from the general class of local works; so likewise are they works within the meaning of par. (c), and the word "works" as used in the latter paragraph is no less comprehensive, as to the character of the works embraced, than it is in paragraph (a), except that, in locality, area or extent, the works included within paragraph (c) are limited to the province; these are strictly local or provincial works, whereas in paragraph (a) the works although described as local are in reality Dominion or interprovincial; that I take it is the only distinction. The effect of paragraph (c) is that railways and other works wholly situate within a province may, before or after

[Page 488]

their execution, in the exercise of the uncontrolled judgment and legislative authority of the Parliament of Canada, be brought within its exclusive jurisdiction; and, by the force of the Imperial Act, the Parliament of Canada has the same power in this particular as is possessed by the Imperial Parliament, although of course the power must be executed in the prescribed manner, by way of declaration for the general advantage. It is thus a sovereign legislative power which the Parliament of Canada exercises; and, when it comes to execute that power, it is no more excluded from the use of general language to describe the works to which the declaration is to apply than the Imperial Parliament was in describing the works which were without any further legislative declaration assigned to the Parliament of Canada. In either case the general rules of legislative expression and interpretation must govern, and, applying these rules, it follows that the definition of the subject matter of the declaration may be in general terms or specific, so long as the language be apt to ascertain with certainty the works to which the declaration is to extend.

The practical difficulties and the inconvenience and inadequacy of the interpretation for which the appellant contends will be manifest upon reflection. It might for example not unnaturally be found expedient for the Parliament to assume permanent authority over factories for the manufacture of arms and ammunition, and no one of these factories might be too insignificant or of a character too local to be neglected in the general taking over. Then how could the project reasonably be effected save by a comprehensive declaration in general terms? It would be impracticable to specify every factory or every locality in Canada; and, if the declaration as affecting a particular work could be made only after the work was actually constructed or projected, and so could be identified as a separate individual of the class, it would during an interval escape the regulations for the enforcement of which it was the object of the declaration to provide.

It may be that the general advantage of Canada with relation to a work or class of works is in the judgment of Parliament determined by a characteristic or quality or effect which is common to all works of a certain class, and

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therefore that the public interest or general advantage requires that Parliament should assume authority over every work of the particular kind or class. For example it might be considered that every local railway which terminates on the seaboard should, by reason of having that terminus and its connection with navigation and shipping, be regulated by Parliament. Must there be as many separate declarations as there are such railways, or may not Parliament invoke the expedient of general description to include all which possess the common and determining-factor? I see no reason to the contrary so long as the declaration operates by way of description to recognize the works before or after their execution as being for the general advantage, and not as comprehending the whole subject matter from which Parliament is empowered to make its selections. Perhaps another apt illustration would be local wireless broadcasting stations as to which reasons for a comprehensive declaration suggest themselves, or are not difficult to imagine.

It will be perceived that by the express words of clause (c) declaration may take place before or after the execution of the work. It is mere conjecture that the imperial Parliament contemplated that the power should not be exercised with regard to a future work until it had become a fixed and definite design, or until it could be identified as a work actually in contemplation. The declaration may be made at any time, although it operates only when the work shall have come into existence, because the subject matter is defined as works of a class declared by the Parliament of Canada to be for the general advantage of Canada; therefore it would seem that until there is actually a work of the kind described in the declaration there would be nothing in the declaration except its potential authority, and therefore in the interval no disturbance of the preexisting distribution of legislative power. Both in the introductory lines of s. 92 (10) and in s. 91 (29) works and undertakings belonging to classes are the subjects to which the exclusive legislative authority of Parliament attaches. Under s. 92 (10 c.) it is Parliament which creates the class by its declaration. Why may not Parliament, as it has done in practice, call into existence a class uno flatu? Why is it necessary that it should create the class by the less

[Page 490]

convenient method of specifying each constituent unit? I am utterly at a loss to discover in s. 92 (10 c.) any word or accent of Parliamentary intention that it is essential to the execution of the power to name a work to which the declaration is to apply, if the description be otherwise adequate to identify and include the work, or to define a class of works by describing the individual specimens rather than by apt words descriptive of the whole.

The judgment of the Judicial Committee of the Privy Council in City of Toronto v. The Bell Telephone Company[13], an authority which was not mentioned in the Hamilton, Grimsby and Beamsville Case[14], indicates that in the opinion of their Lordships, who constituted a strong board not unused to the interpretation of the British North America Act, the declaration in the former case, which was expressed in general terms, would have been effective if the works had been wholly situate within the province. The Bell Telephone Company of Canada was incorporated by Dominion statute, c. 67 of 1880, and it was subsequently amended by c. 85 of 1882. By s. 2 of the Amending Act it is provided that the company shall have power

to build, establish, construct, purchase, acquire or lease, and maintain and operate, or sell or let any line or lines for the transmission of messages by telephone, in Canada or elsewhere, and to make connection, for the purpose of telephone business, with the line or lines of any telegraph or telephone company in Canada or elsewhere.

By s. 4 of the original Act it is enacted that:

4. The said company shall have power and authority to purchase or lease for any term of years any telephone line established or to be established, either in Canada or elsewhere, connecting or hereafter to be connected with the lines which the company is authorized to construct, or to purchase or lease for any term of years the right of any company to construct any such telephone line.

S. 4 of the Amending Act is as follows:

4. The said Act of incorporation as hereby amended, and the works thereunder authorized, are hereby declared to be for the general advantage of Canada.

Two minor points were mentioned as worthy of notice in the judgment of their Lordships, and the second was concerned with the effect of the section last quoted. Lord McNaghten said, referring to the company's Act of incorporation as amended.

It is not very easy to see what the part of the section declaring the Act of incorporation to be for the general advantage of Canada means.

[Page 491]

As regards the works therein referred to, if they had been "wholly situate within the province," the effect would have been to give exclusive jurisdiction over them to the Parliament of Canada; but, inasmuch as the works and undertakings of the company authorized by the Act of incorporation were not confined within the limits of the province, this part of the declaration seems to be unmeaning.

The works referred to are described in the most general terms and they are ascertained and identified only by their description as telephone lines to be built, established, constructed, purchased, acquired or leased by the company; or as telephone lines established or to be established, connecting or to be connected with the lines of the company, and purchased or leased by the company. S. 4 of the Act of 1880 even goes so far as to provide that the telephone lines which the company shall have power to purchase or lease may be those which connect or may be connected with lines which the company is authorized to construct, and some of the lines which were the subject of the legislative declaration were therefore lines which were not only to be established in the future, but further to be identified by their connection with lines to be constructed by the company in the future. Nevertheless it is said that the effect of this general declaration, as to the works therein referred to, if they had been wholly situate within the province, would have been to give exclusive jurisdiction over them to the Parliament of Canada.

It was suggested on behalf of the appellant that the legislative declaration that every railway now or hereafter operated by a Dominion company shall be deemed to be a work for the general advantage of Canada should be interpreted to mean that such a railway should be deemed to be for the general advantage of Canada only while it is in fact being operated by the Dominion company; this is not the necessary effect or interpretation of the clause; but if it were the meaning, the objection would perhaps be fatal to the validity of the enactment if it were held that the power resulting from s. 92 (10 c.) could, as to any work or class of works, only be exercised permanently and in its entirety, that the power is exhausted by the exercise of it, and is in its effect irrevocable; but, seeing that the declaration is not incapable of modification or repeal, it may be enacted originally in a modified manner or to endure for a limited period; and, while of course care must be taken to see that

[Page 492]

the declaration is not uncertain, the general maxim certum est quod certum reddi potest would apply. Although conceivably there might be some difficulty in ascertaining the facts upon which such a declaration is to operate, or the existence of the conditions which are to accompany its operation, that is no more than a trouble which is incident to any statute, the operation of which is by its terms declared to depend upon facts or a condition of things which it may be necessary to establish by proof. It is in the abstract no valid objection to an Act of Parliament that it operates only for a limited time, or occasionally, or at intervals depending upon conditions, and the statutes abound with examples of such legislation. The declaration for general advantage of Canada is in effect a mere constitutional formula by the use of which Parliament, in the general public interest, assumes exclusive legislative authority, whether temporarily or without limitation of time, according to the intention, over works of the character specified in s. 92 (10 c.) which would in the absence of the declaration be regarded as local works within a province. I apprehend that if Parliament be endowed with the authority to declare a work to be for the general advantage of Canada and thus to acquire over it the exclusive legislative authority, and after a time to repeal that Act, thereby remitting the subject to its original provincial jurisdiction, it has equally the power to limit its declaration at the time of the enactment and to prescribe the time or the conditions at or upon which the declaration shall cease to apply and when the jurisdiction shall in consequence revert to the province; it is only necessary to express the casus legis. In this view it is unnecessary to determine whether the declaration in the present case would continue in force if the railway cease to be operated by the Dominion company. No doubt is suggested that in fact, at the time of the order of the Board of Railway Commissioners, the railway was operated, and is still operated, by the National Railways, and indeed will always be so operated if the existing dispositions be fulfilled, and it will be possible to determine any question as to the status of the railway at a time in the future if it should arise. At present the railway is clearly of the kind described by the clause of the Railway Act which embodies the declaration.

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It may be observed that the declaration of the appellant company's railway to be for the general advantage of Canada is not out of line with the general policy of the British North America Act, and not in that sense an interference with provincial rights, because this railway connects with the National Railway system and is therefore a connecting railway as well as a railway operated by the National authorities; but I do not find it necessary, in the view which I take of the case, to determine whether or not the Parliament could have exercised its authority, with respect to the Luscar Branch, situated and connected as it is, in the absence of a declaration for the general advantage.

Rinfret J.—I concur with Mr. Justice Duff.

Appeal dismissed with costs.

Solicitors for the appellant: Woods, Field, Macalister & Craig.

Solicitors for the respondent N. S. McDonald: Parlee, Freeman & Howson.

Solicitor for the respondent C.N.R.: Geo. F. Macdonnell.