City of Windsor v. Town of Walkerville, [1933] SCR 341

Supreme Court of Canada

City of Windsor v. Town of Walkerville, [1933] S.C.R. 341

Date: 1933-04-25.

The Corporation of The City of Windsor Appellant;

and

The Corporation of The Town of Walkerville and Others Respondents

1933: March 21; 1933: April 25.

Present: Duff C.J. and Lamont, Smith, Cannon and Crocket JJ.

ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA

Railways—Jurisdiction of Board of Railway Commissioners for Canada— Railway Act, R.S.C., 1927, c. 170, s. 39—Whether municipality “interested or affected” (and liable to be assessed for part of cost) by order for construction of subway in another municipality.

The matter of where traffic through a subway under a railway originates and the volume of it from various districts is not a factor in deciding whether or not a particular municipality is “interested or affected” by the work of constructing the subway, within the meaning of s. 39 of the Railway Act, R.S.C., 1927, c. 170. (City of Toronto v. Village of Forest Hill, [1932] Can. S.C.R. 602). In the present case it was held that the Board of Railway Commissioners for Canada had no jurisdiction to order the appellant city to pay a portion of the cost of a subway wholly situate within the limits of the respondent town and at some distance from the limits of the appellant city, notwithstanding that access to and from the appellant city (having a large population) from and to other municipalities might be largely through said subway.

[Page 342]

APPEAL, by leave of the Board of Railway Commissioners for Canada, from an order of that Board (No. 48,736, of June 14, 1932)[1], by which it ordered that a certain portion of the cost of constructing and maintaining a subway under the Pere Marquette Railway lines, which subway was wholly situate within the limits of the Town of Walkerville (respondent), be paid by the appellant, the City of Windsor.

The question upon which leave to appeal was granted by the Board, which, in the opinion of the Board, was a question of law, read as follows:

Had the Board, in the circumstances of this case, jurisdiction under the Railway Act to provide in Order No. 48736, dated, June 14, 1932, that the Corporation of the City of Windsor should contribute to the cost of constructing and maintaining the work therein mentioned and as therein provided?

The appeal was allowed with costs, and the question answered in the negative.

B. J. S. Macdonald for the appellant.

N. C. MacPhee for the respondent the Town of Walkerville.

E. C. Awrey K.C. for the respondents The Pere Marquette Ry. Co. and The Lake Erie and Detroit River Ry. Co.

The judgment of the court was delivered by

Smith J.—This is an appeal, by leave of the Board of Railway Commissioners for Canada, from an order of that Board, by which a portion of the cost of a subway under the Pere Marquette Railway lines, wholly situate within the town of Walkerville, was assessed against the appellant City of Windsor.

Wyandotte street runs east and west through the town of Sandwich, the city of Windsor and the town of Walkerville, and connects at the easterly limit of the latter town with. Ottawa street, in the city of East Windsor, which latter street runs easterly through the city of East Windsor and through the adjoining town of Riverside. These two streets, therefor form a continuous highway, running through these five municipalities.

[Page 343]

The subway in question is near the easterly limit of the town of Walkerville, and, consequently, nearly the full width of the latter town from the easterly limit of the appellant City of Windsor.

The sole question involved in the appeal is whether or not, under these circumstances, the City of Windsor is “interested or affected” by the order in question, within the meaning of sec. 39 of the Railway Act, which is as follows:

39. When the Board, in the exercise of any power vested in it, in and by any order directs or permits any structure, appliances, equipment, works, renewals, or repairs to be provided, constructed, reconstructed, altered, installed, operated, used or maintained, it may, except as otherwise expressly provided, order by what company, municipality or person, interested or affected by such order, as the case may be, and when or within what time or upon what terms and conditions as to the payment of compensation or otherwise, and under what supervision, the same shall be provided, constructed, reconstructed, altered, installed, operated, used and maintained.

2. The Board may, except as otherwise expressly provided, order by whom, in what proportion, and when, the cost and expenses of providing, constructing, reconstructing, altering, installing and executing such structures, equipment, works, renewals, or repairs, or of the supervision, if any, or of the continued operation, use or maintenance thereof, or of otherwise complying with such order, shall be paid.

The argument is that the City of Windsor, with a very large population, has its eastern boundary only a little over 3,000 feet from the subway, and that access to and from that city, from and to the four other municipalities, is largely through the subway in question.

This was the precise argument urged in The City of Toronto v. The Village of Forest Hill[2]. In that case, the order of the Board had reference to a bridge, which carried a street of the village of Forest Hill over a railway. This bridge was situate wholly within the limits of the village of Forest Hill, and the point nearest to this bridge in the limits of the city of Toronto is the westerly limit of that part of the city of Toronto that was formerly North Toronto, which is 500 feet away.

It was argued there that, by reason of the large population in that part of Toronto formerly called North Toronto, and the still larger population of that part of Toronto lying south of Forest Hill, there was a great deal of traffic to and from these particular portions of the city of Toronto passing over the bridge in question.

[Page 344]

The submission by Mr. Grant on behalf of the railway company was that all municipalities in which traffic passing over the bridge in question would normally originate, in substantial magnitude, would be subject to the jurisdiction of the Board as being “persons interested or affected by the order.”

Mr. Justice Duff, as he then was, after quoting this argument, says, at p. 605:

That is a principle, in my opinion, not laid down or contemplated by the statute.

Again, in the reasons, the following appears at page 609:

Counsel for Forest Hill complained that because of what was said by Mr. Geary, as quoted by the Chairman of the Board, he was precluded from offering evidence as to the origin and volume of traffic likely to use the bridge. He thought he could have established that traffic over the bridge would originate largely with people of the northern and western part of the city, making use of this avenue and Spadina Road as a main connecting link between these parts of the city. In my opinion this, if a fact, would not affect the question in the slightest degree, as the matter of where traffic over the structure originates and the volume of it from various districts is not a factor in deciding whether or not a particular municipality is interested or affected by the works within the meaning of the Act.

Counsel for the respondent, the Town of Walkerville, referred to The Highway Improvement Act, R.S.O., 1927, ch. 54. I have looked through this somewhat lengthy Act, but do not find that it has any application to the question involved in the present case. It provides for establishing, in the manner set out, provincial and county highways and suburban roads, and for apportioning the cost of constructing and maintaining such highways between the province and the county, town or city municipalities through which they pass.

Section 37 provides for payment of the expenditure upon all work on such suburban roads outside of the limits of a city or town, in part by the county, in part by the city or town, and in part by the province.

All that need be said here is that the streets in question are not provincial or county highways or suburban roads, so that the effect of the Act in reference to railway crossings on such highways or roads need not be dealt with.

The appeal must be allowed, with costs; and the answer to the question submitted is in the negative.

Appeal allowed with costs.

[Page 345]

Solicitor for the appellant: B. J. S. Macdonald.

Solicitors for the respondent, the Town of Walkerville: MacPhee & Riordon.

Solicitors for the respondents, Pere Marquette Ry. Co. and Lake Erie & Detroit River Ry. Co.: Furlong, Furlong, Awrey & St. Aubin.

Solicitor for the respondents, Hydro Electric Power Commission of Ontario and Sandwich, Windsor & Amherstburg Ry. Co.: I. B. Lucas.