Supreme Court of Canada
The
Attorney General of Canada v. The Canadian Pacific Railway
Company and Canadian National Railways, [1958] S.C.R. 285
Date:
1958-01-28
In the matter of an Act for Expediting the Decision of
Constitutional and other Provincial Questions, being Chapter 44 of the Revised
Statutes of Manitoba, 1954, and
In the matter of a Reference Pursuant Thereto by the
Lieutenant-Governor in Council to the Court of Appeal for the Hearing or
Consideration of Certain Questions Arising With Respect to Section 198 of the
Railway Act, being Chapter 234 of the Revised Statutes of Canada, 1952, and The
Real Property Act, being Chapter 220 of the Revised Statutes of Manitoba, 1954,
and The Law of Property Act, being Chapter 138 of the Revised Statutes of
Manitoba, 1954.
The Attorney General of Canada Appellant;
and
The Canadian Pacific Railway Company and Canadian
National Railways Respondents.
1957: January 23, 24, 25; 1958: January 28.
Present: Kerwin C.J. and Taschereau, Rand, Kellock, Locke,
Cartwright, Fauteux, Abbott and Nolan JJ.
Nolan J. died before the delivery of judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Constitutional law—Subject-matters of
legislation—Validity and application of the Railway Act, R.S.C. 1952, c. 234,
s. 198—Effect of provincial legislation in respect of title to real estate.
Railways—Acquisition of lands in Manitoba—Whether mines
and minerals pass to railway in absence of express provision—The Railway Act,
R.S.C. 1952, c. 234, s. 198—The Real Property Act, R.S.M. 1954, c. 220, s.
91—The Law of Property Act, R.S.M. 1954, c. 138, s. 4.
Section 198 of the Railway Act is not ultra vires, in
whole or in part, and its effect is that, with the exception there stated, no
railway to which the Act applies acquires title to mines and minerals in any
land acquired by it, either by purchase or by compulsory taking under the Act,
unless the mines and minerals are expressly purchased by and conveyed to it,
notwithstanding the provisions of provincial legislation to the effect that a
conveyance of land shall be deemed to include mines and minerals.
Per Kerwin C.J. and Taschereau, Rand, Kellock,
Cartwright and Fauteux JJ.: Parliament is clearly competent to provide for the
acquisition of land by a railway, and to limit by conditions the effect of
acquisition, and it must also be able to provide reasonable means for ensuring
that limitation. The question in such a case is not primarily how far
Parliament can trench on s. 92 of the British North America Act, but to
what extent property and civil rights are within
[Page 286]
the scope of the paramount power of Parliament. Tennant v.
The Union Bank of Canada, [1894] A.C. 31, referred to. The section clearly
binds the Canadian Pacific Railway Company, but its application to the Canadian
National Railways is subject to different considerations, because of the
varying statutory provisions applicable at different times to the railways now
included in that system. All that can be said, in the circumstances of this
appeal, is that in the case of such constituent companies as were subject to
the Railway Act when they acquired land, between 1904 and 1919, and as
between the railway company and the grantor of lands, the minerals did not pass
to the grantee railway.
Per Locke and Abbott JJ.: The effect of ss. 197 to 201
inclusive of the Railway Act is to ensure that when a railway is carried
over lands that contain mines or minerals there is adequate protection for the
interest of the owner of the minerals, the travelling public, and the railway
company. They are clearly legislation in relation to railways, and therefore
within the competence of Parliament, under head 29 of s. 91 of the British
North America Act. This being so, the fact that part of s. 198,
limiting the manner in which railway companies to which the Act applies may
acquire mines and minerals, conflicts with provincial legislation is of no
moment. The whole subject-matter is removed from provincial competence. Proprietary
Articles Trade Association et al. v. Attorney-
General for Canada et al., [1931]
A.C. 310; Tennant v. The Union Bank of Canada, supra; Grand Trunk Railway
Company of Canada v. Attorney-General of Canada, [1907] A.C. 65; Attorney-General
for Canada v. Attorney-General for Quebec, [1947] A.C. 33, applied. The Manitoba
statutes referred to are unquestionably within provincial powers, but they do
not apply to transfers or conveyances made since s. 198 came into force in 1904
to railways that are subject to the Railway Act. That section
accordingly applies to and governs the title to all lands acquired since 1904
by the Canadian Pacific Railway Company. Although at the time of its
incorporation that company was subject to the Consolidated Railway Act,
1879, which contained no provision corresponding to s. 198, it is, by force of
s. 20(b) of the Interpretation Act, subject to the Railway Act
as it is in force from time to time. Northern Counties Investment Trust
Ltd. v. Canadian Pacific Railway Company (1907), 13 B.C.R. 130, approved.
The section also applies in respect of lands acquired between 1904 and June 6,
1919 (when the Canadian National Railway Company came into existence) by the
Canadian Northern Railway Company, the two companies formerly operating in
Manitoba that were amalgamated into it, and the Grand Trunk Railway Company.
There is not sufficient material before the Court to enable it to deal with the
matter as it affects lands acquired since 1919 by the Canadian National Railway
Company or the other companies now included in the definition of "Canadian
National Railways" in s. 2(b) of the Canadian National Railways
Act, R.S.C. 1952, c. 40.
APPEAL from a judgment of the Court of Appeal for Manitoba, on a reference by the
Lieutenant-Governor in Council. Appeal allowed.
[Page 287]
The following questions were asked and were answered as
follows by the Court of Appeal:
1. Is Section 198 of the Railway Act ultra vires of
the Parliament of Canada either in whole or in part, and if in part, in what
particular or particulars and to what extent?
Answer: Section
198(1) and (2) is ultra vires of the Parliament of Canada except insofar
as it prohibits a railway company from expropriating mines and minerals by
compulsory proceedings.
2. When title to land without exception of mines and
minerals is or was acquired by one of said railway companies without any
proceedings being commenced under the compulsory powers given by the Railway
Act but as a result of agreement made with the owner of such land who also owns
or did own the mines and minerals therein and such mines and minerals are or
were not excepted or expressly named in the transfer or deed or conveyance of
land, does such railway company own such mines and minerals when that title is
or was acquired
(a) pursuant to said The Real Property Act, or
(b) deed to which said The Law of Property Act
applies?
Answer: No. 2(a):
Yes.
No. 2(b): Yes.
3. When title to land without exception of mines and
minerals is or was acquired by one of said railway companies by purchase after
commencement but before completion of proceedings under the compulsory powers
given by the Railway Act from the owner of such land who also owns or did own
the mines and minerals therein and such mines and minerals are or were not
excepted or expressly named in the transfer or deed or conveyance of the land,
does such railway company own such mines and minerals when that title is or was
acquired
(a) pursuant to said The Real Property Act,
or
(b) by deed to which said The Law of Property Act applies?
Answer: No. 3(a):Yes.
No. 3(b): Yes.
4. When title to or ownership of land without exception
of mines and minerals is or has been taken by one of said
[Page 288]
railway companies under the compulsory powers given by
the Railway Act from the owner of such land who also owns or did own the mines
and minerals therein and such mines and minerals are or were not excepted or
expressly named in the conveyance of the land, does such railway company own
such mines and minerals when that title or ownership is or was acquired
(a) under said The Real Property Act, or
(b) by virtue of the registration of a
vesting order or other authorized evidence of the company acquiring ownership
under The Registry Act, Revised Statutes of Manitoba, 1954, Chapter 223 or the
Registry Act for the said Province heretofore from time to time in force within
the Province?
Answer: No.
4.(a): Yes.
No. 4(b): Yes.
A. E. Hoskin, Q.C., and D. H. W: Henry, Q.C.,
for the appellant.
C. F. H. Carson, Q.C., Allan Findlay, Q.C., and H. M. Pickard,
for the respondent Canadian Pacific Railway Company.
R. D. Guy, Q.C., and E. B. MacDonald, for the
respondent Canadian National Railways.
John A. MacAulay, Q.C, A. A. Moffat, Q.C., and R. K.
Williams, for Imperial Oil Limited, intervenant.
J. J. McKenna, for the Attorney-General for Ontario, intervenant.
The judgment of Kerwin C. J. and Taschereau, Rand,
Cartwright and Fauteux JJ. was delivered by
Rand J.:—The
first and the substantial question of law raised by this reference is whether
s. 198 of the Railway Act, R.S.C. 1952, c. 234, is in whole or part ultra
vires. The section is as follows:
(1) The company is not, unless the same have been expressly
purchased, entitled to any mines, ores, metals, coal, slate, mineral oils, gas
or other minerals in or under any lands purchased by it, or taken by it under
any compulsory powers given it by this Act, except only such parts thereof as
are necessary to be dug, carried away or used in the construction of the works.
[Page 289]
(2) All such mines and minerals,
except as aforesaid, shall be deemed to be excepted from the conveyance of such
lands, unless they have been expressly named therein and conveyed thereby.
It appears within a fasciculus beginning with s. 192 under
the heading "the taking and using
op lands". First enacted as s. 132(2) of the Railway Act, 1903,
c. 58, which came into force on February 1, 1904, it was continued in R.S.C.
1906, c. 37, as s. 170, in the Railway Act, 1919, c. 68, as s. 195, and
in R.S.C. 1927, c. 170, as s. 195. The original language has undergone minor
changes but in the syntax of the section only. The clause "unless the same
have been expressly purchased" was in 1906 transferred from the end of the
first sentence (as in the old s. 132) to its present position, and in the 1952
revision the word "is" was substituted for "shall" in the
first line and the word "be" in the second line was elided. These
changes do not seem to me to be significant and in the interpretation of the
present section they may be disregarded.
The section distinguishes between lands
"purchased" and lands "taken". In this its text is
consistent with the words as used elsewhere in the Act; for example, s. 164(1)(c)
clothes the company with power to "purchase, take and hold" lands; s.
202 speaks of land "that may be taken without the consent of the
owner"; and ss. 207 and 218 exemplify the same distinction. Section 216
expressly contemplates the purchase by agreement of lands which the plan,
profile and book of reference deposited in the office of the registrar of deeds
and other publication give notice will be required for the purpose of the
railway and it is only in case of disagreement between the parties that the
compulsory proceedings are to be resorted to. The same procedure is envisaged
by s. 236; and s. 213 provides for the case of purchase before the plans, etc.,
are deposited or before the lands required are set out or ascertained.
What s. 198 is designed to do is to prevent the acquisition
of minerals unless they are expressly made the subject of agreement with the
owner. Among other possible or likely purposes this seems intended to protect
the interest of the owner: the minerals are to remain his unless they are made
the subject of an express term in the agreement. "Purchase" would
include every acquisition of land which the company could, if necessary, take by
compulsory
[Page 290]
measures; that would embrace acquisition following the
filing of plans, or under s. 213; but beyond these the form and purpose of
acquisition might be of such variety and call for so many assumptions affecting
private rights that, for the reasons expressed hereafter, no opinion should be
ventured.
Is s. 198, then, so interpreted, beyond the authority of
Parliament? Reading together the sections dealing with lands, the capacity
given to the company to acquire them and the power of expropriating them, it is
not seriously arguable—nor was it argued—that the prohibition against taking
the minerals is ultra vires: what it represents is simply the
curtailment of an extraordinary power itself created by Parliament which, being
its creator, can modify it to whatever extent or in whatever manner may be
considered advisable.
But it is contended that in providing in effect, as it is
claimed subs. (2) does, for the interpretation of a provincial instrument of
title, Parliament has stepped beyond its legislative boundary. It has, it is
said, prescribed the terms of a conveyance which passes property under
provincial law and that specifically subs. (2) conflicts with the statutory law
of the Province embodied in The Real Property Act, R.S.M. 1954, c. 220,
and The Law of Property Act, R.S.M. 1954, c 138.
That Parliament, competent to provide for the acquisition of
land for a railway and to limit by conditions the extent of acquisition, cannot
also provide the reasonable means for ensuring that limitation, would, in the
particular circumstances, expose the substantive power to virtual
nullification. Powers in relation to matters normally within the provincial
field, especially of property and civil rights, are inseparable from a number
of the specific heads of s. 91 of the British North America Act under
which scarcely a step could be taken that did not involve them. In each such
case the question is primarily not how far Parliament can trench on s. 92 but
rather to what extent property and civil rights are within the scope of the
paramount power of Parliament. Tennant v. The Union Bank of Canada, in which a provision under the Bank
Act for taking security for loans made by a bank in disregard of provincial
forms
[Page 291]
of security and registration was upheld, is a characteristic
example. Here the steps to be taken for expropriation, the payment of money
into court with an authentic copy of the award or the conveyance, or an
agreement under s. 213, each of which is declared by s. 236(2) to constitute
the title of the company to the lands, are all within the field of railway
legislation; and subs. (2) of s. 198 is simply a means for making effective the
condition prescribed.
The law of Parliament declaring such a title is as much a
law in force in the Province as an enactment of the Legislature. If the company
avails itself of the local law of land titles and presents its conveyance or
document of title to the registrar or other officer, the latter is chargeable
with notice of the applicable law including, in the case of a conveyance to a
Dominion railway, that provided by subs. (2). If that instrument does not
expressly convey minerals, a certificate of title issuing on it should except
them. If this entry were omitted by the registration officer and the minerals
were subsequently sold by the company to an innocent purchaser, it might be
that the original owner would be bound by that error in the certificate ; that
is a question to be decided when it arises; but so long as the minerals remain
in the apparent ownership of the railway company, and assuming that they were
not expressly purchased, the certificate remains subject to correction at the
instance of the vendor or his transferee: as between these parties the statute
is conclusive, subject to any right of reformation of the conveyance that may
exist, or in the event of sale, to any trust that may arise.
That the Canadian Pacific Company, if the section is valid,
is bound by it, is conceded; but the situation of the Canadian National
Railways is somewhat different. Chapter 13 of the statutes of Canada, 1919,
provided for the incorporation of Canadian National Railway Company, and by s.
13 the provisions of the Expropriation Act, now R.S.C. 1952, c. 106,
relating to the taking and using of lands were, for the purposes of the
company's undertaking, made applicable to the company, The latter was created
to embody the ultimate amalgamation of all lines within the National system and
the undertaking of the company would therefore depend upon either the
absorption by
[Page 292]
amalgamation of existing lines or
the construction by it of new lines. Section 13 in its original form remained
in force until.1929, c. 10, s. 2, when, in an amendment of s. 17— which it had
then become—the words "the taking and using of lands" were omitted.
At the same time the company was authorized by subs. (3) of s. 17 to acquire
lands required for any of the companies comprised in the National system, a
schedule of which had been annexed to the original enactment. In 1955 the Act
was revised as c. 29 and the sections dealing with the acquisition of lands
were rearranged and modified. By s. 16 all of the provisions of the Railway
Act were made applicable except certain named sections, including ss. 192
to 195 and 202 to 205, but omitting ss. 198, 199, 200 and 201, all having to do
with minerals, and excepting
(b) such other provisions [of the Railway
Act] as are inconsistent with this Act or with the Expropriation
Act as made applicable to the National Company by this Act.
Following this, toy's. 17 the Expropriation Act was
made to apply mutatis mutandis "subject as follows". What
follows are four paragraphs, (a) authorizing the Minister of
Transport to sign plans under the Expropriation Act and dispensing with
the deposit of any description; (b) a declaration that, upon the deposit
of the plan the title vests in the company for such estate or interest as may
be indicated on the plan; and (c) and (d) dealing with
compensation.
Prior to 1929 each constituent company of the National
system was subject to the Railway Act generally. Amalgamations proceeded
somewhat slowly commencing with that between the National Company and the Grand
Trunk Railway Company in 1923 and, so far, ending with that of the National
Company, the Canadian Northern Railway Company and the Grand Trunk Pacific
Railway Company in 1956.
The original s. 13 was before the Judicial Committee in Boland
v. Canadian National Railway Company,
at p. 205 of which Lord Dunedin remarked on its "very involved method of
expression", and the distinction was pointed out between the function of
the Expropriation Act in
[Page 293]
giving power to take lands and in furnishing machinery for
taking them. As s. 17 it was again considered in Bell Telephone Company of Canada v. Canadian National Railway. At p. 577 Lord Macmillan,
referring to the comment in Boland, adds that the amended form
"cannot be said to present a more happily inspired example of
legislation".
A second proposition advanced by Mr. Guy can be dealt with
shortly. Under the charters of many of the constituent companies in the
National system power to acquire land for the purposes of the undertaking is
conferred. His argument is that by virtue of s. 3 of the Railway Act, by
para. (b), of which it is provided that
where the provisions of this Act and of any Special Act
passed by the Parliament of Canada relate to the same subject-matter, the
provisions of the Special Act shall, in so far as is necessary to give effect
to such Special Act, be taken to over-ride the provisions of this Act
the charter power is unaffected by the limitation of s.
198. With this I am unable to agree. The power given under the special Act goes
to the capacity generally of the company to acquire and hold land; it does not
embrace the taking of land without the owner's consent. Purchases in the
course of construction are carried out under a code of sections in the general
Act and are within the application of the special Act in no other sense than
that of capacity. That code contains the element of coercion, in the background
of which the purchases are made. To resort to or to take the benefit of the
code and that element is action outside of the charter power. The authority
under the special Act is admittedly subject to the provisions of the general
Act which require plans to be submitted, approved and filed and to those
dealing with compensation; but these, on Mr. Guy's contention, would, strictly
speaking, seem to "relate to the same subject-matter" and to be
restrictions of the charter power. Section 198 does not affect the capacity or
the right of the company to acquire minerals, but it does prevent their
acquisition directly or indirectly by compulsory action, including purchases
that do not carry the express consent of the owner. These provisions, in short,
serve to regulate the exercise of the
[Page 294]
charter capacity as the company
moves to construct its railway under the powers, procedures and limitations of
the general Act.
The application of ss. 198 to 201 to the National company is
thus seen to involve questions of the time of purchase, of special legislative
enactments and of amalgamations of constituent companies, apart from the
interpretation of the Canadian National Railways Act itself. In these
circumstances, by answering questions 2, 3 and 4 we would be expressing an
opinion that might seriously affect private rights in the absence of those
claiming them, a step which would be contrary to the fundamental conception of
due process, the application of which to opinions of this nature has long been
recognized.
In Attorney-General for Canada v. Attorneys-General for Ontario,
Quebec, and Nova Scotia,
the Judicial Committee spoke of it in these words:
Their Lordships must decline to answer the last question
submitted as to the rights of riparian proprietors. These proprietors are not
parties to this litigation or represented before their Lordships, and
accordingly their Lordships do not think it proper when determining the
respective rights and jurisdictions of the Dominion and Provincial Legislatures
to express an opinion upon the extent of the rights possessed by riparian
proprietors.
In Attorney-General for Ontario v. Hamilton Street
Railway Company et al.:
With regard to the remaining questions, which it has been
suggested should be reserved for further argument, their Lordships are of
opinion that it would be inexpedient and contrary to the established practice
of this Board to attempt to give any judicial opinion upon those questions.
They are questions proper to be considered in concrete cases only; and opinions
expressed upon the operation of the sections referred to, and the extent to
which they are applicable, would be worthless for many reasons. They would be
worthless as being speculative opinions on hypothetical questions. It would be
contrary to principle, inconvenient, and inexpedient that opinions should be
given upon such questions at all. When they arise, they must arise in concrete
cases, involving private rights; and it would be extremely unwise for any
judicial tribunal to attempt beforehand to exhaust all possible cases and facts
which might occur. to qualify, cut down, and override the operation of
particular words when the concrete case is not before it.
In Attorney-General for Ontario et al.
v. Attorney-General for Canada et al. (a reference in which the
power of
[Page 295]
Parliament and Legislature to put questions in this
form was in issue):
If the questions to the Courts had been limited to such as
are in practice put to the Judicial Committee (e.g., must justices of the peace
and judges be resworn after a demise of the Crown?) no one would ever have thought
of saying it was ultra vires. It is now suggested because the power conferred
by the Canadian Act, which is not and could not be wider in its terms than that
of William IV., applicable to the Judicial Committee, has resulted in asking
questions affecting the provinces, or alleged to do so. But the answers are
only advisory and will have no more effect than the opinions of the law
officers. Perhaps another reason is that the Act has resulted in asking a
series of searching questions very difficult to answer exhaustively and
accurately without so many qualifications and reservations as to make the
answers of little value. The Supreme Court itself can, however, either point
out in its answer these or other considerations of a like kind, or can make the
necessary representations to the Governor-General in Council when it thinks
right so to treat any question that may be put. And the Parliament of Canada
can control the action of the Executive.
In Attorney-General for British Columbia v.
Attorney-General for Canada:
The business of the Supreme Court of Canada is to do what is
laid down as its duty by the Dominion Parliament, and the duty of the Judicial
Committee, although not bound by any Canadian statute, is to give to it as a
Court of review such assistance as is within its power. Nevertheless, under
this procedure questions may foe put of a kind which it is impossible to answer
satisfactorily. Not only may the question of future litigants be prejudiced by
the Court laying down principles in an abstract form without any reference or
relation to actual facts, but it may turn out to be practically impossible to
define a principle adequately and safely without previous ascertainment of the
exact facts to which it is to be applied. It has therefore happened that in
cases of the present class their Lordships have occasionally found themselves
unable to answer all the questions put to them, and have found it advisable to
limit and guard their replies. It will be seen that this is so to some extent
in the present appeal.
And in Attorney-General for Ontario et
al. v. Attorney-General for Canada:
But, for reasons several times assigned in earlier judgments
of the Judicial Committee, they feel the paramount importance of abstaining as
far as possible from deciding questions such as those now stated until they
come up in actual litigation about concrete disputes rather than on references
of abstract propositions.
In Reference re Waters and Water-Powers, Duff J. (as he then was) reviewed
the matter generally to the same effect.
[Page 296]
I would, therefore, allow the appeal and answer the
questions as follows:
Question 1: No.
Question 2: Assuming that the question means when title
to land on the face of the instrument conveying it is without exception of
mines and minerals, and that there was no express agreement to purchase them,
in the case of the Canadian Pacific Railway Company, subsequent to 1904, and in
the case of such constituent companies of the National Railways as were at the
time of the acquisition of the land subject to the Railway Act, between
1904 and 1919, and as between the railway company and the grantor of lands, the
minerals did not pass to the grantee railway; in other cases of the Canadian
National Railways, for the reasons given I abstain from answering.
Question 3: The same answer as to question 2.
Question 4: The same answer as to question 2.
Kellock J. :—I agree with Rand J.
The judgment of Locke and Abbott JJ. was delivered by
Locke J.:—This
is an appeal taken pursuant to the provisions of s. 37 of the Supreme Court
Act, R.S.C. 1952, c 259, from the opinion pronounced by the Court of Appeal
of Manitoba on
four questions referred to that Court by the Lieutenant-Governor in council.
The first of these reads:
Is section 198 of the Railway Act ultra vires of the
Parliament of Canada either in whole or in part, and if in part, in what
particular or particulars and to what extent?
Section 198 of the Railway Act, R.S.C. 1952, c. 23,
reads:
198. (1) The company is not, unless the same have been
expressly purchased, entitled to any mines, ores, metals, coal, slate, mineral
oils, gas or other minerals in or under any lands purchased by it, or taken by
it under any compulsory powers given it by this Act, except only such parts
thereof as are necessary to be dug, carried away or used in the construction of
the works.
(2) All such mines and minerals, except as aforesaid, shall
be deemed to toe excepted from the conveyance of such lands, unless they have
been expressly named therein and conveyed thereby.
[Page 297]
This question was answered as follows:
Section 198 (1) and (2) is ultra vires of the Parliament of
Canada except insofar as it prohibits a railway company from expropriating
mines and minerals by compulsory proceedings.
The Court further expressed the opinion that the section did
not apply to land contracts and transactions by the respondent railway
companies.
The order in council referring the questions to the Court of
Appeal recited, inter alia, that each of the railway companies has from
time to time acquired land by agreement with owners of land without any
proceedings being commenced under the compulsory powers given by the Railway
Act, by purchase after commencement of proceedings under the compulsory
powers and before the completion of such proceedings, and also under the
compulsory powers given by the Railway Act, and that each of them holds
title to certain lands to which the provisions of The Real Property Act, R.S.M.
1954, c. 220, and The Law of Property Act, R.S.M. 1954, c. 138, apply,
and that questions have arisen concerning the title to the mines and minerals
underlying such lands.
It was apparently the fact that it was considered that there
was a conflict between s. 198 and certain sections of the two statutes
mentioned that led to the reference as to the first question.
The Real Property Act of Manitoba was first enacted
in the year 1885 and introduced the Torrens system into Manitoba. While large
areas of land in the Province have been brought under the Act, there are still
considerable areas where the root of the title continues to be the original
letters patent granted by the Crown in the right of Canada.
Section 2(e) of The Real Property Act defines
land as including all estates or interests in land whether legal or equitable,
and all mines, minerals and quarries, unless specially excepted.
Sections 63 and 67, to which reference will hereafter be
made, declare the absolute and indefeasible nature of the titles evidenced by
certificates of title issued under the Act, with defined exceptions.
[Page 298]
Section 91 reads:
No words of limitation axe necessary in a transfer of land
in order to convey all or any title therein; but every transfer shall, when
registered, operate as an absolute transfer of all such right and title as the
transferor had therein at the time of its execution, unless a contrary
intention is expressed in the transfer or instrument; but nothing in this
section precludes a transfer from operating by way of estoppel.
Where the root of title to land continues to be letters
patent issued prior to February 20, 1914, the provisions of The Registry Act,
R.S.M. 1954, c. 223, apply, and conveyances are made by deed. The system of
registration provided by this Act is known as "the Old System". Land
is defined in this statute in the same terms as in The Real Property Act.
Section 4 of The Law of Property Act provides that no
words of limitation shall be necesary in any conveyance of land in order to
convey all or any title therein; but every grant, deed or instrument conveying
land shall operate as an absolute conveyance of all such rights and title as
the grantor has at the time of its execution, unless a contrary intention is
expressed in the conveyance.
Title to lands acquired by purchase by the railway companies
has apparently been taken in both manners: transfers under The Real Property
Act and deeds of Old System lands to which the two last-mentioned statutes
apply.
Section 198 first appeared in the Railway Act as
subs. (2) of s. 132 of c. 58 of the statutes of 1903 in substantially its
present form and affects lands acquired after the date that statute came into
force on February 1, 1904. Its origin appears to have been s. 77 of the Railway
Clauses Consolidation Act, 1845 (Imp.), c. 20. The section appears with a
group of sections commencing with s. 192 under a subheading "the taking and using of lands". These
follow a series of sections, commencing with s. 163, which are grouped under
the heading "powers—construction of railways" which
deal generally with the powers which may be exercised by the company in
acquiring the necessary lands for the construction, maintenance and operation
of the railway, define the manner in which plans of the proposed railway are to
be approved and declare the duty of registrars of deeds to receive and record
such plans.
[Page 299]
Section 203 and the following
sections define the extent of lands that may be taken for the right-of-way and
other purposes without the owner's consent, the manner in which leave may be
obtained from the Board of Transport Commissioners to take more ample space
than may be taken under s. 202, and the procedure for taking materials
necessary for use in construction. The manner in which expropriations are to be
carried on is defined in s. 218 and following sections.
Section 92 of the British North America Act, which
defines the exclusive powers of provincial Legislatures, includes under head 10
local works and undertakings other than such as are of the enumerated classes,
which include lines of railways connecting the Province with any other or
others of the Provinces or extending beyond the limits of the Provinces. In
relation to such railways, Parliament has the exclusive legislative authority
under head 29 of s. 91. The only question to be determined in answering the
first question is as to whether s. 198 is legislation falling within this
category.
No dispute arises as to the power of Parliament to prohibit
a railway company of the class mentioned to expropriate mines and minerals,
except such as are necessary to be dug, carried away or used in the
construction of the work. The exception made in the answer given by the Court
of Appeal refers to the prohibition against expropriating mines and minerals as
if it were absolute, but this is not entirely accurate. There is, however, no
controversy in these proceedings as to this.
The real basis of the attack on the remaining provisions of
s. 198 is that as both a transfer of land, the title to which is under The Real
Property Act, and a deed of Old System lands, to which s. 4 of The Law
of Property Act applies, convey the entire interest of the transferor or
grantor unless a contrary intention is expressed in the instrument, to provide,
as does s. 198, that, "unless the same have been expressly purchased"
and unless they are expressly named in the conveyance, the railway is not
entitled to any mines or minerals in or under any land purchased by it is to
trespass upon the exclusive provincial power under s. 92 to make laws in
relation to property and civil rights in the Province.
[Page 300]
In the reasons for judgment delivered by the learned Chief
Justice of Manitoba, with which the other members of the Court concurred, after
referring to the decisions of the Judicial Committee in Canadian Pacific
Railway Company v. The Parish of Notre Dame de
Bonsecours, Bank of Toronto v. Lambe, The Citizens Insurance Company of
Canada v. Parsons,
John Deere Plow Company, Limited v. Wharton, and Great West Saddlery
Company, Limited v. The King, the
following passage appears :
These cases hold and make it clear (1) that the land laws of
the Province, i.e., The Real Property Act, supra, and The Law of
Property Act, supra, are intra vires; (2) that companies
incorporated by the Dominion Government are subject to valid provincial laws of
general application, such as laws imposing taxes, relating to mortmain, and as
to the forms of contracts, so long as such laws do not derogate from the status
of such companies and their consequent capacities or as a result of their
restriction prevent such companies from exercising the powers conferred on them
by the Dominion Government.
I am unable, with great respect, to agree with this
statement of the law. I think no question arises as to whether the provisions
of The Real Property Act and The Law of Property Act to which
reference has been made are within provincial powers. In my opinion, they
unquestionably are, but they do not apply to transfers or conveyances of
property to railway companies of the classes in question which are referred to
in s. 198 since that section came into force. The matter appears to be stated
as if to hold that the Dominion legislation is intra vires, as I think
it is, is to say that the provincial legislation is ultra vires. Both
are, in my opinion, valid laws in force in Manitoba and have been since they
were enacted.
In Toronto Corporation v. Canadian Pacific Railway
Company,
Lord Collins, delivering the judgment of the Judicial Committee, said in part:
The jurisdiction conferred over property and civil rights in
the province is quite consistent with a jurisdiction specially reserved to the
Dominion in respect of a subject-matter not within the jurisdiction of the
province.
[Page 301]
In Proprietary Articles Trade Association et al. v. Attorney-General for Canada et al., Lord Atkin pointed out at p. 316 that any matter coming
within any of the particular classes of subjects enumerated in s. 91 as
particular instances of the general powers assigned to the ' Dominion is not to
be deemed to come within the classes of matters assigned to the provincial
Legislatures. It had been said many times before but, in that case, it was
again mentioned that most of the specific subjects in s. 91 do affect property and
civil rights but, so far as the legislation of Parliament in pith and substance
is operating within the enumerated powers, there is constitutional authority to
interfere with such rights (p. 327).
The jurisdiction of Parliament in relation to railways such
as the respondent companies is not less extensive than it is in relation to a
telephone company such as the Bell Telephone Company of Canada, with telephone
lines connecting various Provinces. The legislation granting powers to that
company was considered in The City of Toronto v. Bell Telephone Company of
Canada.
Lord Macnaghten, at p. 57, referring to the fact that s. 91 confers on Parliament exclusive legislative authority over all classes of
subjects expressly excepted by head 10(a) of s. 92, such as railways,
telegraphs and other works and undertakings connecting the Province with any
other or others of the Provinces, said that it would seem to follow that the
Bell Telephone Company acquired from the Legislature of Canada all that was
necessary to enable it to carry on its business in every Province of the
Dominion and that no provincial Legislature was or is competent to interfere
with its operations as authorized by the Parliament of Canada.
It is said in the passage above quoted from the judgment of
the Chief Justice of Manitoba that companies incorporated by the Dominion
Government are subject to provincial laws of general application, such as those
relating to mortmain. This was decided in the case of trading and certain other
companies in The Chaudière Gold Mining
Company of Boston v. Desbarats et al., the company concerned in that matter being a foreign
corporation but the statement apparently applying to both foreign and
[Page 302]
domestic corporations. In the judgment of Viscount Haldane
in Great West Saddlery Company, Limited v. The King, supra, at p. 100,
it is said that when a company has been incorporated with powers to trade in
any Province it may be subject to provincial laws of general application, such
as laws imposing taxes or relating to mortmain.
No one would dispute the fact that the railway companies in
question are subject to municipal taxes levied under the powers vested in the
Province by head 2 of s. 92 except where such right has been taken away, as in
the case of the Canadian Pacific Railway, in respect of part of its operations
under the section of the contract between the railway and the Dominion
Government, considered by this Court in Canadian Pacific Railway Company v.
The Attorney General for Saskatchewan. I think, however, no one would
contend that any provincial statute of mortmain would apply to lands purchased
or taken by such a railway for the purposes of its undertaking in the Province
under the powers conferred by its Act of incorporation or by the Railway
Act. The reason, of course, is that the legislation authorizing the railway
undertaking falling within the exclusive jurisdiction of Parliament, the
provincial statute would have no application.
I do not think that the decision in Canadian Pacific
Railway Company v. The Parish of Notre Dame de
Bonsecours, above referred to, lends any
support to the respondents' contention. In that case, Lord Watson, after
pointing out that it was not a matter of dispute that, by virtue of the
sections of the British North America Act that we are here considering,
Parliament had the sole right of legislating with reference to the appellant's
railway and that any attempt by the Legislature of Quebec to regulate by
enactment, whether described as municipal or not. the structure of a ditch
forming part of the appellant's authorized works would be ultra vires, said
that the regulation under consideration was merely a piece of municipal legislation
providing that in the event of the ditch becoming choked with silt or rubbish,
so as to cause overflow
[Page 303]
and injury to other property in the parish, it should be
cleaned out by the appellant company. In the same year, in Madden et al. v. Nelson and Fort Sheppard Railway Company, the Judicial Committee decided that
legislation of the Province of British Columbia requiring a Dominion railway
company to fence its right-of-way was ultra vires. These decisions, other
than their reaffirmation of the jurisdiction of Parliament, do not appear to
decide anything which affects the present question.
In Bank of Toronto v. Lambe, supra, the validity of
the legislation imposing taxation upon the bank was; upheld on the ground that
it fell within head 2 of s. 92, being direct taxation within the Province in
order to the raising of a revenue for provincial purposes.
In The Citizens Insurance Company of Canada
v. Parsons, supra, the principal question to be determined was as to the
right of the Province of Ontario to prescribe statutory conditions in contracts
of insurance issued within the Province. There was, however, a general
discussion of the scope of head 13 of s. 92 and of head 2 of s. 91, and it was
in the course of this discussion that the passage from the judgment at p. 110,
quoted in the judgment of the Court of Appeal, appears. It was there said that
the expression "property and civil rights" was sufficiently large to
embrace, in its fair and ordinary meaning, rights arising from contract, and
that such rights are not included in express terms in any of the enumerated
classes of subjects in s. 91. This, however, does not mean that the Province
may prescribe the form of contract or the obligations arising from contracts of
corporations, such as banks or railway companies, or the rights of persons
under bills of exchange. These are subject-matters in relation to which the
exclusive jurisdiction to legislate is vested in Parliament. If the affirmative
of the contrary proposition could be sustained, Tennant v. The Union Bank of
Canada,
Grand Trunk Railway Company of Canada v. Attorney-General of Canada (the
"contracting-out" case), and Attorney-General for Canada v.
Attorney-General for Quebec (the
"bank deposits" case) would have been otherwise decided. If it were
true that as rights arising from contract are civil rights this was decisive in
all cases, then
[Page 304]
many other sections of the Railway Act, such as s.
353 authorizing the Board of Transport Commissioners to approve contracts
limiting the carriers' liability, and ss. 370 and 380 giving special powers in
respect of contracts of express and telegraph companies, would be ultra
vires.
The John Deere Plow and Great West Saddlery cases,
supra, may be considered together, both dealing with the right of
provincial Legislatures to require companies incorporated under the Companies
Act of Canada (which does not apply to companies for the construction or
working of railways) to obtain a licence as a condition precedent to carrying
on business. Other than certain passages in the judgment delivered by Viscount
Haldane in these matters, in which general statements are made as to the powers
of Provinces to tax such companies and to subject them to provincial laws of
general application, the subject-matter appears to me to bear no similarity to
the one we are discussing. In the passage from the judgment in the Great
West Saddlery case, it was said that companies so incorporated may be
subject to provincial laws as to the forms of contract. The companies referred
to were not railway companies or banks. It cannot surely be said that this
statement was intended to qualify what had been decided by the Judicial
Committee in Tennant's case and the "contracting-out" case.
In my opinion, the cases relied upon do not support the
contention that s. 198 is ultra vires either in whole or in part.
The sole matter to be determined is as to whether the true
nature and character of the enactment is in relation to railways of the nature
referred to in head 10 of s. 92.
The effect of ss. 197 to 201, both inclusive, of the Railway
Act is to ensure that when the railway is carried over lands which contain
mines or minerals the interest of the owner of such minerals, the travelling
public and the railway company are adequately protected. Section 197 provides
that, without the authority of the Board of Transport Commissioners, the line
may not be laid out in a manner calculated to obstruct or injuriously affect
the operation of an existing mine. Section 198 defines the only manner in which
a railway company may acquire title to the mines and minerals existing in lands
either purchased or taken by
[Page 305]
compulsion under the power of expropriation given by the
Act, except such as are necessary to be dug, carried away or used in the
construction of the works. The company is permitted to acquire such mines and
minerals only by treaty with the owner and by a conveyance which expressly
names them, with the exception above noted. The section in effect limits the
power and capacity of the company to acquire mines and minerals, with this
exception, in any other manner.
If the removal of the minerals lying under the railway or
within 40 yards therefrom, which the railway has not acquired by express
purchase, is proposed, the owner may apply to the Board for leave to do so and
the Board, under the powers given to it by s. 199, may prescribe the measures
to be taken for the protection and safety of the public. Section 200, dealing
with cases where the owner of the minerals retains them, gives the Board power
to direct the railway company, inter alia, to pay to such owner
compensation by reason of the severance by the railway of the lands lying over
the mines or because working them is prevented or interrupted. Where the
railway company is apprehensive that the mine is being worked in a manner which
may endanger the safety of the right-of-way, s. 201 enables the Board to direct
that the premises may be examined by the railway company and use made of any
apparatus in the mine to make such examination effective.
These sections deal with the same subject-matter as ss. 77
to 85, both inclusive, of the Railway Clauses Consolidation Act, 1845
(Imp.), c. 20, though the manner in which the matter is dealt with is not
identical. This is, in my opinion, clearly legislation in relation to railways
and, that being so, the fact that the portion of s. 198 limiting the manner in
which railway companies to which the Act applies may acquire mines and
minerals, conflicts with the sections of The Real Property Act and The
Law of Property Act above referred to, is of no moment. The whole
subject-matter is removed from the provincial jurisdiction, as pointed out by
Lord Atkin in the Proprietary Articles Trade Association case above
referred to.
The true view of the matter is, in my opinion, that the
sections of the provincial statutes referred to have no application to
conveyances made to the railways. If it
[Page 306]
could be said that the effect of the portion of s. 198 which
is attacked is not merely to limit the capacity of the railway company to
acquire mines and minerals except in a defined manner, but is rather legislation
dealing with the manner in which titles to land may be conveyed to a railway
company within Manitoba and the construction to be placed upon conveyances in
the statutory form prescribed by The Real Property Act or complying with
The Law of Property Act, the legislation could not, in my opinion, be
successfully attacked. In Tennant's case, supra, it was asserted
by the appellant that as the warehouse receipts taken by the Union Bank did not
comply with the Mercantile Amendment Act of Ontario, the security taken
as authorized by the Bank Act was unenforceable. Lord Watson, delivering
the judgment of the Judicial Committee, said in part (p. 45):
Statutory regulations with respect to the form and legal
effect, in Ontario, of warehouse receipts and other negotiable documents, which
pass the property of goods without delivery, unquestionably relate to property
and civil rights in that province; and the objection taken by the appellant to
the provisions of the Bank Act would be unanswerable if it could be shewn that,
by the Act of 1867, the Parliament of Canada is absolutely debarred from
trenching to any extent upon the matters assigned to the provincial legislature
by sect. 92. But sect. 91 expressly declares that, "notwithstanding
anything in this Act," the exclusive legislative authority of the
Parliament of Canada shall extend to all matters coming within the enumerated
classes; which plainly indicates that the legislation of that Parliament, so
long as it strictly relates to these matters, is to be of paramount authority.
In the "contracting-out" case, a provision of the Railway
Act which prohibited a railway from contracting out from the liability to
pay damages for personal injury to its. servants, was attacked as being
legislation as to civil rights within head 13 of s. 92. It had been held in
this Court, and that view was sustained in the Judicial Committee, that this
was truly railway legislation and that it was beyond provincial powers to
interfere. The case is merely an illustration of the power of Parliament to
regulate the contracts of the railway companies, as has been done in the other
sections of the present Act which I have drawn attention to above.
In Attorney-General for Canada v. Attorney General for
Quebec, the "bank deposits" case, to which I have referred, a
statute of the Province of Quebec which declared that deposits of money and
securities which have not been for 30 years or more the subject of any
operation or claim by
[Page 307]
the persons entitled thereto are to be deemed vacant property
and belonging to His Majesty in right of the Province, was held to be ultra
vires. It was said in support of the legislation that it was simply one
defining the obligation of the bank under its contract with its depositor and
thus to be supported under head 13 as dealing with civil rights within the
Province. This argument, which bears a close resemblance to the argument
advanced by the respondents in the present case, was rejected. Lord Porter, who
delivered the judgment of the Judicial Committee, after referring to what had
been said by Lord Watson in Tennant's case in the passage which I have
referred to, said that the main object and effect of the Provincial Act was to
invade the field of banking and it was, accordingly, ultra vires.
On the argument before us, counsel appearing for the
Canadian Pacific Railway Company did not seek to support the finding of the
Court of Appeal that s. 198 did not apply to the land contracts and
transactions of that company and confined their argument to the issue as to
whether the section was ultra vires.
The ground upon which the Court proceeded in making this
finding may be stated briefly. Section 17 of the letters patent incorporating
the company, which constituted the charter referred to in s. 2 of the Act (44
Vict., c. 1), and which was declared to have force and effect as if it were an
Act of Parliament, provided that the Consolidated Railway Act, 1879, in
so far as the provisions of the same were applicable to the undertaking and not
inconsistent with or contrary to its provisions, "is hereby incorporated
herewith".
Sections 7, 8 and 9 of the Consolidated Railway Act referred
to, contained provisions for the purchase, use and expropriation of lands
required for the right-of-way and other railway uses and for determining the
compensation payable, but the Act did not contain any provisions similar to s.
198. Considering that the charter of the railway company was constituted by the
letters patent, the special Act and the Railway Act of 1879, and that
the subject of purchasing and taking lands for the undertaking had been dealt
with as indicated, the learned Chief Justice and the other members of the Court
considered that the section in the present Act was inapplicable.
[Page 308]
In my opinion, the matter is decided adversely to this
opinion by the provisions of s. 20(b) of the Interpretation Act,
R.S.C 1952, c. 158, which, so far as it need be considered, reads:
20. Whenever any Act or amendment is repealed, and other
provisions are substituted by way of amendment, revision or consolidation, …
(b) any reference in any unrepealed Act … to such
repealed Act or enactment, shall, as regards any subsequent transaction, matter
or thing, be held and construed to be a reference to the provisions of the
substituted Act or enactment relating to the same subject-matter as such
repealed Act or enactment; and, if there is no provision in the substituted Act
or enactment relating to the same subject-matter, the repealed Act or enactment
shall stand good, and be read and construed as unrepealed in so far, and in so
far only, as is necessary to support, maintain or give effect to such
unrepealed Act …
It is the Railway Act of Canada as it is in force
from time to time that applies to the undertaking of the Canadian Pacific
Railway Company. The exact point was considered by the full court of British
Columbia in Northern Counties Investment Trust Ltd. v. Canadian Pacific
Railway Company, and
correctly decided, in my opinion. I refer to the judgment of Clement J. with
whom Hunter C.J. agreed.
Counsel for the Canadian National Railways, however,
supported the opinion of the Court of Appeal which, in the case of that
railway, was based upon the ground that s. 16 of the Canadian National
Railways Act, as it now appears as R.S.C. 1952, c. 40, excludes such
provisions of the Railway Act as are inconsistent with that Act and such
as are inconsistent with the provisions of the Expropriation Act, that
lands expropriated by the railway are taken under the provisions of the Expropriation
Act and that the latter Act contains no such restriction as is imposed by
s. 198 of the Railway Act. It was pointed out that s. 3 of the Railway
Act also provides that where its provisions and any special Act passed by
Parliament relate to the same subject-matter, the provisions of the special
Act, so far as it is necessary to give effect to it, shall govern.
The order in council referring the four questions to the
Court of Appeal states that:
… Canadian Pacific Railway Company and Canadian National
Railways (including "National Railways" as defined in the Canadian
National Railways Capital Revision Act, R.S.C. 1952, Chap. 311) are undertakings
which as railway companies are within the legislative authority of the
Parliament of Canada;
[Page 309]
and that each of the said companies has from time to
time acquired lands in the various manners heretofore mentioned. Whether by the
expression "Canadian National Railways" the order in council intended
to adopt the meaning assigned to that expression in s. 2(b) of the Act,
as it appears in R.S.C. 1952, c. 40, is not made clear. If it was so intended,
it includes not merely the Canadian National Railway Company which first was
brought into existence by c. 13 of the statutes of 1919, but all companies
mentioned or referred to in the schedule of the Act of 1952 and in the Act of
incorporation. If this is the meaning intended, there is, in my opinion, no
material before us to enable us to deal with the matter as it affects lands
acquired since June 6, 1919, a situation, no doubt, attributable to the fact
that the question as to the application of s. 198 to the two railway companies
was not referred to the Court.
Counsel appearing on the argument before us have
supplemented the information contained in the order in council by making
available the Acts of incorporation of a large number of companies which have
either been amalgamated with or whose operations are carried on or directed by
the Canadian National Railway Company. A schedule to the Act of 1919 shows that
there were 31 companies embraced in what was referred to as the Canadian
Northern System and a number of other subsidiary companies and, in respect of
these, it was provided by s. 11 that by order in council the management and
operation of any of them might be entrusted to the Canadian National Railway
Company or its properties vested in His Majesty.
We are concerned only with the companies operating in Manitoba
which became part of that system and these appear to be the Canadian Northern
Railway Company and the Grand Trunk Pacific Railway Company. The inquiry cannot
stop there as the Canadian Northern Railway Company which was incorporated by
c. 57 of the statutes of 1899 was by s. 1 of its Act of incorporation vested
with all the corporate powers, assets and property of the Winnipeg Great
Northern Railway Company and the Lake Manitoba Railway and Canal Company. These
latter two companies had been incorporated by Acts of Parliament whose terms
must be considered if, as I think we should assume, the
[Page 310]
Canadian Northern Railway Company is still in existence and
entitled to exercise its corporate powers.
The Winnipeg Great Northern Railway Company, referred to in
the schedule to the Act of incorporation of the Canadian Northern Railway
Company, was incorporated by c. 59 of the statutes of Canada of 1880 under the
name of "The Winnipeg and Hudson's Bay Railway and Steamship
Company". By c. 81 of the statutes of 1887, its name was changed to "Winnipeg
and Hudson Bay Railway Company" and its powers were further defined. By c.
94 of the statutes of 1894, the name was again changed to the "Winnipeg
Great Northern Railway Company".
The Lake Manitoba Railway and Canal Company was incorporated
by c. 41 of the statutes of Canada of 1892 and further powers, which need not
be considered here, were vested in it by c. 52 of the statutes of 1895 and c.
70 of the statutes of 1898.
The Canadian Northern Railway Company, as declared by its
statute of incorporation, is an "amalgamation" of these two
companies. The Winnipeg Great Northern Railway Company was authorized by s. 3
of its Act, as amended in 1887, to build the railway authorized "under the
provisions of 'The Railway Act'". The reference in s. 2 of the Act
of 1880 was to the provisions of "The Consolidated Railway Act,
1879". The only express mention of the acquisition of land was in ss. 6
and 22 of the 1887 Act. The former authorized the company to take gravel, stone
and other material required for construction from public land and to
appropriate for the use of the company a greater extent of land for stations,
workshops and other buildings than the breadth and quantity mentioned in the Railway
Act, upon certain conditions. The latter authorized the company to receive,
in aid of the construction and maintenance of the railway, grants of land and
authorized the purchase of lands.
The only power given expressely to the Lake Manitoba Railway
and Canal Company to acquire lands is for the erection of elevators,
warehouses, docks and piers and other works designed for the use of the steam
and other vessels plying upon the lakes, rivers and canals in the territory which
the railway was designed to serve. The proposed railway was declared to be a
work for the general advantage
[Page 311]
of Canada and any powers of taking or purchasing lands were
derived from the Railway Act.
The Grand Trunk Pacific Railway Company was incorporated by
c. 122 of the statutes of 1903. Express power to purchase or otherwise acquire
lands for docks, warehouses, offices and other buildings is to be found in s.
16 and, by subs. (2), ss. 107 to 111, inclusive, of the Railway Act were
stated to apply to the subject-matter of the subsection. Otherwise, the power
of the company to acquire and hold lands and to expropriate lands was to be
found in the Railway Act, 1888, c. 29.
In my opinion, nothing to be found in the Acts incorporating
the Winnipeg Great Northern Railway Company, the Lake Manitoba Railway and
Canal Company, the Canadian Northern Railway Company or the Grand Trunk Pacific
Railway Company, or in s. 3 of the Railway Act, excludes the application
of that Act, as enacted from time to time, to the undertakings of those
companies in so far as it relates to the subject-matter of s. 198. Section
20(b) of the Interpretation Act, in my opinion, declares this to be the
law.
The Canadian National Railway Company was not in existence
prior to June 6, 1919, and there is no evidence as to whether any of the lands
acquired by the Grand Trunk Pacific Railway Company and the Canadian Northern
Railway Company or by the amalgamated companies mentioned have been acquired by
it. Different considerations apply to lands acquired by the Canadian National
Railway Company by purchase or expropriation since, by s. 13 of its Act of
incorporation, the provisions of the Railway Act as to the taking or
using of lands were declared inapplicable and all of the provisions of the Expropriation
Act, except where inconsistent with the Act of incorporation, were made to
apply, mutatis mutandis, to the company and its undertakings. On the argument
addressed to us on behalf of the Attorney General of Canada, it was conceded
that between June 6, 1919, and June 14, 1929, when a change was made in what
had been s. 13 of the Act of incorporation by s. 17 of c. 10 of the statutes of
1929, s. 198 did not apply to the Canadian National Railway, Company.
In my opinion, we have not sufficient information to enable
us to express any opinion upon the question as to
[Page 312]
whether s. 198 applies in respect of
lands acquired by either the Canadian National Railway Company or any of the
companies in the Canadian Northern Railway System since June 6, 1919.
In these circumstances, I feel that any opinion expressed
might be construed to the detriment of persons not represented before us. I,
accordingly, refrain from expressing any opinion in respect to lands acquired
after that date.
Questions 2 and 3 may be conveniently considered together
and read as follows:
2. When title to land without exception of mines and
minerals is or was acquired by one of said railway companies without any
proceedings being commenced under the compulsory powers given by the Railway
Act but as a result of agreement made with the owner of such land who also owns
or did own the mines and minerals therein and such mines and minerals are or
were not excepted or expressly named in the transfer or deed or conveyance of
the land, does such railway company own such mines and minerals when that title
is or was acquired
(a) pursuant to said The
Real Property Act, or
(b) by deed to which said
The Law of Property Act applies?
3. When title to land without exception of mines and
minerals is or was acquired by one of said railway companies by purchase after
commencement but before completion of proceedings under the compulsory powers
given by the Railway Act from the owner of such land who also owns or did own
the mines and minerals therein and such mines and minerals are or were not
excepted or expressly named in the transfer or deed or conveyance of the land,
does such railway company own such mines and minerals when that title is or was
acquired
(a) pursuant to said The
Real Property Act, or
(b) by deed to which said
The Law of Property Act applies?
While stated without limitation, the questions obviously
refer to lands acquired on and after February 1, 1904, when s. 198 came into
force.
Subject to the exception above noted of such mines or
minerals as are "necessary to be dug, carried away or used in the
construction of the works", the conveyances, whether by transfer or by
deed, are, in my opinion, to be construed as excepting all such mines and
minerals. I consider that the fact that the conveyance may be made after the
commencement of expropriation proceedings does not affect the matter.
Question 4 reads:
4. When title to or ownership of land without exception of
mines and minerals is or has been taken by one of said railway companies under
the compulsory powers given by the Railway Act from the owner of such land who
also owns or did own the mines and minerals therein and such
[Page 313]
mines and minerals are or were not excepted or expressly
named in the conveyance of the land, does such railway company own such mines
and minerals when that title or ownership is or was acquired
(a) under said The Real
Property Act, or
(b) by virtue of the
registration of a vesting order or other authorized evidence of the company
acquiring ownership under The Registry Act, Revised Statutes of Manitoba, 1954,
Chapter 223 or the Registry Act for the said Province heretofore from time to
time in force within the Province?
The meaning of part of this question is not entirely clear.
Where lands are expropriated under the Railway Act, while a conveyance
may be given by the owner after the compensation is determined and the award of
the arbitrators made, he is not required by the Act to give one and none is
necessary. Section 236 of the Railway Act provides for payment of the
compensation into court with an authentic copy of the award of the arbitrators
and, if there is no conveyance, such award is deemed to be the title of the
company to the land taken. If, after the award, the owner of the land taken
gives a conveyance, the position, in my opinion, is no different from that
referred to in the third question. Clause (b) of question 4 refers to
title acquired by virtue of the registration of a vesting order. There is no
provision in the Railway Act or in The Registry Act for making
such an order. I, accordingly, assume that the vesting order referred to is one
made professedly in exercise of the powers vested in the Court of Queen's Bench
by s. 53 of The Queen's Bench Act, R.S.M. 1954, c. 52, after an award of
the arbitrators appointed under the Railway Act has become effective,
though I think that section to be inapplicable in such circumstances. It can,
however, scarcely be suggested that the refusal of the former owner to execute
a conveyance would enable a railway company to acquire minerals which it could
not obtain by expropriation or by a voluntary conveyance under either the old
or the new system.
I would allow the appeal and answer the four questions as
follows:
Question 1: No.
Question 2: As to the Canadian Pacific Railway: No. As
to the Canadian National Railway Company, as to the properties acquired by the
Canadian Northern Railway Company and the two amalgamated companies and the
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Grand Trunk Pacific Railway Company between February 1,
1904 and June 6, 1919: No.
Question 3 : The same answer as to Question 2.
Question 4: The same answer as to Question 2.
Appeal allowed.
Solicitor for the appellant: F. P. Varcoe, Ottawa.
Solicitor for the respondent Canadian Pacific
Railway Company: H. M. Pickard, Winnipeg.
Solicitor for the respondent Canadian National
Railways: W. T. Patterson, Winnipeg.
Solicitor for the Attorney-General for Ontario,
intervenant: C. R. Magone, Toronto.
Solicitors for Imperial Oil Limited, intervenant: Aikins, MacAulay & Company, Winnipeg.
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