Chambers v. Canadian Pacific Ry. Co., (1913) 48 SCR 162

Supreme Court of Canada

Chambers v. Canadian Pacific Ry. Co., (1913) 48 S.C.R. 162

Date: 1913-04-07

Edward Bushnell Chambers and William Robert George Phair Appellants;

and

The Canadian Pacific Railway Company Respondents.

1913: March 10; 1913: April 7.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington Duff and Brodeur JJ.

ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.

Railways—Location plans—Width of right-of-way—Subsequent alteration—Substituted plans—Approval of new plans—Order having ex post facto effect—Jurisdiction of Board of Railway Commissioners—Construction of statute—“Railway Act,” R.S.C., 1906, c. 37, ss. 162, 167.

The Board of Railway Commissioners fox Canada has no jurisdiction, by an order permitting a railway company to file a new location plan, to be substituted for and as of the date of a former location plan previously approved by it, to authorize the company to alter, retrospectively, the former location of its railway. The proper method of effecting any such alteration is by proceedings under section 162 or section 167 of the “Railway Act,” R.S.C., 1906, chapter 37.

APPEAL from the order of the Board of Railway Commissioners for Canada approving of a substituted location plan of the “Molston-St. Boniface Branch” of the Canadian Pacific Railway by an order having retrospective effect.

The railway company, in 1904, deposited plans of location and profiles and a book of reference of the

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cut-off branch of their line from Molson station to a point in the Town of St. Boniface, Man., which shewed a crossing of a portion of lot 97 of the Parish of Kildonan, the property of the appellants, the ground taken by the railway being shewn as 99 feet in width. Prior to the “Railway Act” of 1903, this was the width permitted to be taken, in ordinary circumstances, by the railway company but, by that Act, the width which could be so taken was increased to 100 feet. In 1906, the railway company registered another plan shewing alterations in the branch line and the effect of the new plan upon the appellants’ property was that, instead of 99 feet, the width taken was 100 feet. Arbitration proceedings were subsequently commenced, the notice being given according to the last plan filed, and it appeared that, although the first plan had been regularly approved, the latter plan had been so filed without any approval being obtained. The appellants then applied for an order from the court in Manitoba to rescind the order appointing the arbitrators, which was refused on the ground of lack of jurisdiction, and, subsequently, they made an application to the Board of Railway Commissioners for an order rescinding or repealing an order originally made by the Board respecting the construction of the railway across the lots, or for an order requiring the company to obtain the approval of the change or alteration effected by the later plan. The result was that, on the 18th March, 1912, the Board made an order that the railway company should be permitted to file a new location plan as of the date of the plan originally filed and approved by their original order, and shewing the width of 100 feet to be taken.

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On the present appeal it was contended that the Board of Railway Commissioners had no jurisdiction to make an order approving of a plan already filed and giving it legal effect as of an anterior date. The appellants contended that the whole proceedings should be commenced anew and that they are entitled to compe nsation for the land taken at the increased valuations now prevailing, instead of the prices which were in force at the time of the commencement of the proceedings which they contended were irregular.

Geo. F. Henderson K.C. for the appellants.

Chrysler K.C. for the respondents.

The Chief Justice and Davies J. concurred in the opinion stated by Duff J.

Idington J.—The respondents filed, under the “Railway Act,” plans and profiles which claimed a right-of-way only ninety-nine feet wide. Some time later the Board of Railway Commissioners approved thereof. And, still later, the railway was built without making compensation for the lands so taken. In course of doing so, the company included toy its fences a space of one hundred feet wide, instead of the ninety-nine feet claimed by the plans and profiles filed.

Some months after obtaining the approval of the Board to the first plans and profiles filed the railway company saw fit to file another set of plans claiming a right-of-way one hundred feet wide, but never applied for approval thereof.

Years afterwards, the railway company gave notice of expropriation under this unauthorized set of

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plans and profiles and proceeded to arbitration as to the compensation to be made to the appellants.

On the proceedings being objected to, the Board made an order rescinding its original order of approval and permitting the railway company to file a new location plan of its railway as of the date of the plans filed and approved, said new plans to show a width of land to be taken which will coincide with the arbitration notice filed by the railway company.

The question is now raised by this appeal of the jurisdiction of the Board to make this last-mentioned order.

I have no hesitation in saying such an order is entirely beyond the powers of the Board.

It would be a stretch of authority that in some conceivable cases might work most grievous wrong.

The claim seems to me hardly arguable. No such thing as antedating the operative effect of such an order is contemplated by the Act. It should not be permitted unless with the consent of all who, by any possibility, might be affected thereby.

The Board’s extensive powers of rectifying errors do not countenance such a proceeding as this.

The appeal should be allowed with costs.

Duff J.—I think there was no power to make the order impeached on this appeal. The order does not profess to be made, and clearly enough it is not made, under section 162 or section 167 of the “Railway Act,” which are the enactments Mr. Chrysler invoked in support of it. It is simply an order permitting the company “to file” a new location plan of its railway, known as the “Molson-St. Boniface Branch,” as of the date of the plan filed and approved of “by

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said order No. 544, dated July 12th, 1905.” That is an order which can only mean that the plan so authorized to be filed shall be deemed to have been filed and shall take effect as having been filed on a date seven years before the date of the order. It is admitted that, according to the plan which is to have this ex post facto effect, the land occupied by the railway mentioned in the order is not identical with that occupied by it according to the plan it is to displace. I think it is clear that the Board has no jurisdiction, by an order of this description, to authorize the railway company to alter, retrospectively, the location plan of its railway. The remedy of the railway company, if it is in any difficulty, is by way of section 162 or section 167 of the “Railway Act.”

Brodeur J. concurred with Duff J.

Appeal allowed with costs.

Solicitors for the appellants: Hull, Sparling & Sparling.

Solicitor for the respondents: E. W. Beatty.