Grand Trunk Railway Co. v. Department of Agriculture of Ontario, (1910) 42 SCR 557

Supreme Court of Canada

Grand Trunk Railway Co. v. Department of Agriculture of Ontario, (1910) 42 S.C.R. 557

Date: 1910-02-15

The Grand Trunk Railway Company of Canada Appellants;

and

The Department of Agriculture of the Province of Ontario Respondents

1909: December 16, 17; 1910: February 15.

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

ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.

Appeal—Limitation of time—Railway Commissioners—Question of jurisdiction—Leave by judge—Powers of Board—Completed railway—Order to provide station—R.S. [1906] c. 37, ss. 26, 151, 158-9, 166-7, and 258.

Except in the case mentioned in Rule 59 there is no limitation of the time within which a judge of the Supreme Court may grant leave to appeal under sec. 56(2) of the "Railway Act," on a question of the jurisdiction of the Board of Railway Commissioners.

The Board of Railway Commissioners has power to order a railway company whose line is completed and in operation to provide a station at any place where it is required to afford proper accommodation for the traffic on the road. Idington and Duff JJ. dissenting.

APPEAL from an order of the Board of Railway Commissioners by leave of the Board on a question of law and by leave of Mr. Justice Duff on a question of jurisdiction.

On July 22nd, 1909, the Railway Board granted an application from the Ontario Department of Agriculture for an order directing the Grand Trunk Railway

[Page 558]

Co. to provide station accommodation for traffic at a place in the County of Lincoln, where the Department owns and conducts an experimental fruit farm. The  railway company on August 7th obtained leave from  the Board to appeal from said order to the Supreme Court of Canada, and on October 13th the Board made an order extending the time generally for an application to the Supreme Court for leave to appeal on a question of jurisdiction, and on October 28th such time was extended to November 10th, and leave to appeal was granted by Mr. Justice Duff on November 5th.

The question of law on which the appeal was taken by leave of the Board was stated as follows in the application for such leave.

That the decision is wrong as a matter of law in holding that the railway company must provide and construct a station which requires the acquirement by the railway company of additional lands which they have no immediate power to take.

The question of jurisdiction was whether or not the Board had power under the provisions of the "Railway Act" to make such order.

By the order of Mr. Justice Duff the question of jurisdiction of the Supreme Court to hear the appeal on the ground that the leave of the judge was not asked for within sixty days from the date of the order of the Board was left open and was discussed in connection with the argument on the merits of the appeal.

Chrysler K.C. for the appellants. The Board has no power to compel a railway company, whose line is completed and already provided with stations, to erect

[Page 559]

a new station at any point, and especially so when it would require the company to acquire additional land when its powers of expropriation are exhausted. See Hastings Town Council v. South Eastern Railway Co.[1]; Harris v. London & North Western Railway Co.[2].

Lancaster K.C. for the respondents. Leave to appeal on a question of jurisdiction cannot be granted after the expiration of sixty days from the date of the order.

On the merits see Am. & Eng. Encyc. of Law, 635-8; Maxwell on Statutes (4 ed.), p. 78; Winnipeg Jobbers and Shippers Association v. Canadian Pacific Railway Co. et al.[3].

Chrysler K.C. for the appellants.

Lancaster K.C. for the respondents.

The Chief Justice.—The majority are of opinion that this court is competent to hear this appeal. As to the order complained of, I am of opinion that the Board has authority to order the company to establish a station at the place indicated. Section 151 of the "Railway Act" empowers the company (sub-sec. g) to construct, erect and maintain all necessary stations for the accommodation and use of the traffic and business of the railway; (sub-sec. p), from time to time to alter, repair or discontinue any station and substitute another in its stead. When the line is located and the location is approved of by the Minister of Railways the company must prepare (section 158) a plan to shew, among other things (c) "the station grounds." This plan is made subject to the approval of the Board (section 159), which may require any

[Page 560]

further information they may deem expedient (section 166), and this would include detailed plans of the station to be erected so as to enable the Commission to decide if they are sufficient for the accommodation and business of the railway, and the company shall not commence the work of construction until these plans have been submitted to and approved of by the Board (section 168). Section 258, par. 1, provides that every station shall be so erected and maintained as to provide suitable and sufficient accommodation and facilities for traffic, and par. 2, that the location of every station shall be approved of by the Board before the company proceeds to erect it.

From all this it appears that every station with respect to its location, plan of construction and maintenance is completely under the control and subject to the approval of the Board. Section 15, 1, sub-sec. (p), empowers the company to alter, repair or discontinue a station and to substitute one station for another; but by section 167 all such changes and alterations must be approved of by the Board ("railway" includes stations, section 2, sub-sec. 21), with which lies the duty to require that all stations are so located, erected and maintained as to provide good and sufficient accommodation and facilities for traffic.

The argument pressed upon us by the appellant was that all this pre-supposes action by the company and in the absence of such action the Board is without jurisdiction. It necessarily follows, therefore, in that view that however great may be the necessity which exists in any particular locality for additional station accommodation to satisfy the requirements of the traffic that the road is intended to serve and which it may have helped to create, the Board is without

[Page 561]

power to give relief. When under construction the Board has absolute power to fix the location of all stations so as to meet the expected requirements of the community to be served, but when the necessities of traffic are made apparent, by the operation of the railway, the Board is powerless to interfere. Such a conclusion is absolutely inconsistent with the purpose and object of the Act.

I am of opinion that the jurisdiction conferred by section 28 is wide enough to meet this case. That section, par. 1, and sub-sec. 2, gives the Board full jurisdiction of its own motion to order and require any company to do anything which such company is or may be required or authorized to do under this Act, so far as it is not inconsistent with the Act. The company could not locate or build a station, or alter, substitute or discontinue an existing station without the approval of the Board. From this it necessarily follows, in my opinion, that if nothing con be done by the company with respect to the location, erection or substitution of one station for another without the authority of the Board, the Board may order what it alone can authorize.

In addition, sub-section 3, of section 258, gives the Board absolute power to direct stations to be erected on certain provincial railways subsidized by the Dominion Government from which I infer that this power would not be conferred with respect to those railways if it does not exist as to all others. Why should the Board have with respect to this very limited number of roads, which come by exception under its jurisdiction, a power which they have not in connection with those roads which are completely and absolutely under their control from the time the line is

[Page 562]

located? The best explanation I can find of this ambiguous sub-section is that it is intended to meet the case of railways which are not otherwise under the Board's jurisdiction and to which sections 151, 158, 159, 166 and 167, do not apply. To say that all railways subsidized after July, 1900, are subject to the jurisdiction of the Board absolutely as to the erection and maintenance of stations and that, as to others, the Board is without jurisdiction to do more than to approve of those that in the opinion of the company are necessary does seem to be singularly unreasonable.

As to the power to expropriate, which was the chief question discussed before the Commissioners, if the power of the Board to order the erection of a station is admitted, section 178 is quite wide enough to cover this objection. As to the English cases, it must be borne in mind that the powers conferred upon the Canadian Board extend to a greater number of subjects than are brought within the jurisdiction of English and American Boards.

If it be true that the action of the company in the exercise of its powers with respect to stations may be controlled by the Board, but that no power or authority is reserved to or conferred by section 26 upon the Board by which it is enabled to compel the company to act, then I would say that the appeal should be dismissed for the reasons given by Sir Louis Davies. A station is necessarily incidental to the conveyance of goods and of passengers, and the Board has undoubtedly the power to order the company to give adequate facilities for both.

I would dismiss the appeal with costs.

Girouard J.—I believe the appeal is properly before this court and, moreover, that the Board had

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jurisdiction to pass the order appealed from under sections 28, 258, 284 and 317, of the Dominion Railway Act.

Davies J.—This appeal raises the substantial and important question whether the Board of Railway Commissioners has jurisdiction and power to order a company having a completed and running railway to provide and establish new stopping places and stations along its line of railway so as to afford adequate and suitable accommodation from time to time for increased traffic upon the road.

A preliminary question was raised as to our jurisdiction to hear the appeal on the ground that it is an appeal upon a question of law and that the necessary leave to bring it had not been obtained from the Board within the prescribed time or within any legal extension of that time. The facts were that on the 7th of August, 1909, the Board of Railway Commissioners granted the appellants leave to appeal to this court from the order of the Board complained of, and that, on the 13th of October, 1909, the appeal allowed not having been brought, an extension of time was granted by the Board after hearing the parties. This extension was in general terms merely extending the time without saying for how long, but, on the 28th of October, a further extension was granted up to the 10th of November, 1909.

On the 5th of November, Mr. Justice Duff granted leave to appeal from the order of the Board on the ground of alleged want of jurisdiction, subject to terms and conditions, one of which was that his right to make the order when he did should remain open for disposition on the hearing of the appeal.

[Page 564]

I have reached the conclusion that there being no limitation in the "Railway Act" upon the power of a judge of this court to grant an order allowing an appeal from an order of the Board of Railway Com missioners on the ground of want of jurisdiction, and no rule of this court limiting the exercise of such power, it remains untrammelled, so far as time is concerned, unless there is something in the rules and practice applicable to appeals from the Exchequer Court, which must be held to limit it. These rules are, under sub-section 7, of section 56, of the "Railway Act" (3 Edw. VII. ch. 58), made applicable to appeals such as this until special rules are made with respect to such appeals. I have not been able to find any limitation of time upon the power of a judge of this court to grant an appeal upon a question of jurisdiction, apart from the question whether there has been a legal extension of time by the Board of Railway Commissioners as would support an appeal from their order on a question of law. I am of opinion that the whole question being litigated is properly before us under the order of Mr. Justice Duff on the question of want of jurisdiction in the Board and that we have jurisdiction to hear this appeal.

On the merits of the appeal I have reached the conclusion that the Board of Railway Commissioners had power to make the order complained of. By subsection 31, of section 2, of the "Railway Act," "traffic" is defined to mean "the traffic of passengers, goods and rolling stock." By sub-section 1, of section 284, it is enacted that:

The company shall, according to its powers:

(a) Furnish, at the place of starting, and at the junction of the railway with other railways, and at all stopping places established for such purpose, adequate and suitable accommodation for

[Page 565]

the receiving and loading of all traffic offered for carriage upon the railway ;

(b) Furnish adequate and suitable accommodation for the carrying, unloading and delivering of all such traffic;

(c) Without delay, and with due care and diligence, receive, carry and deliver all such traffic; and

(d) Furnish and use all proper appliances, accommodation and means necessary for receiving, loading, carrying, unloading and delivering such traffic.

The other sub-sections go on to make further provisions as to what "adequate and suitable accommodation" shall include and confer special powers on the Board to make orders respecting the same, and for the construction and carrying out of specific works or acquiring of property necessary under the circumstances.

But the controlling words upon the meaning to be given which the construction of the entire section rests are to be found in sub-section (a) above quoted:

The company shall * * * furnish, at the place of starting, and at the junction of the railway with other railways, and at all stopping places established for such purpose, etc.

Here are three distinct places dealt with, first, starting places, secondly, junctions with other railways, and, thirdly, stopping places established for the purposes of receiving, loading, unloading and forwarding traffic. The question arises on the threshold of the argument: Do these places refer only to those which existed at the moment the railway was completed and running? By way of testing it I asked Mr. Chrysler, during the argument, whether he would contend that "the junction of the railway with other railways" was confined to junctions which existed at the time of the completion of the railway. He did not desire to commit himself on that point contenting himself with strenuously contending that "stopping places established

[Page 566]

for such purpose" of giving adequate and suitable accommodation for traffic purposes applied exclusively to such "stopping places" as. had been sanctioned and approved of when the railway plans were submitted to and approved of by the Board, and did not confer a power upon the Board of establishing such stopping places from time to time along the railway as increasing or changing trade and railway traffic might call for. Such additional stopping places for stations he submitted were left to the control and determination of the railway company itself. I confess the language of the statute is somewhat ambiguous. To sustain his argument I think the learned counsel would have to insert after the words "established for such purpose" in the third line of the subsection the words "when the railway was completed," and to sustain my conclusion I have to insert the words "from time to time."

A fair and not an unreasonable test as to whether the section should be read with respect to such conditions only as existed when the plans of the road were approved and the road fully completed is to attempt to apply such a construction to the second of the three places dealt with, namely, at "the junction of the railway with other railways." Such junctions are constantly being made under the orders of the Board under conditions fair to both railways and the protection of the public. It would be a narrow construction indeed which would limit the "junctions" mentioned in this section, and as to which the Board could exercise its powers of ordering a stopping place to be established and a station built to those only which existed at the time the railway was completed. No such construction would, in my judgment, be sound. The law must be interpreted as always speaking,

[Page 567]

and when it vests in the Board power to make the necessary orders to ensure "adequate and suitable accommodation" for the traffic on the road at the junctions of the railway with other railways it evidently means such junctions as are from time to time with the approval and sanction of the Board permitted. If the conclusion is once reached that the section refers as well to junctions existing on the completion of the road as to those subsequently established, then it would seem to follow, in the absence of clear and definite language shewing a contrary intention with regard to stations, that the same rule of construction was applicable to the language "all stopping places established for such purpose." The section would, in this construction, carry out what one would suppose, looking at the main purpose and object of the Act, must have been the intention of Parliament. As the Chief Justice suggested, during the argument, the Act was an effort to combine private ownership with public control. But Mr. Chrysler suggested that the right of expropriation on the part of the company ceased with the completion of their road and that a construction would not be put upon the section involving a right on the part of the Board to make an order establishing a station upon a particular spot by a railway incompetent for want of statutory powers of expropriation to carry it out. The special conditions made in this order for the furnishing by the company of the lands necessary for the purposes of the station ordered might not, of course, necessitate the exercise of any compulsory powers. But that accident or fact cannot, of course, determine the jurisdiction of the Board. I find, however, in the 178th section the fullest powers given the railway

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companies for the compulsory taking of lands required by them, at any point, for (inter alia),

the construction or taking of any works or measures ordered by the Board, etc.

I see no ground for limiting the construction of this section to such requirements as the railway company may, of its own motion, deem necessary, and excluding such as the Board may order against the company's wish. I think it fairly includes the latter. Looking, therefore, at the "Railway Act" as a remedial measure, establishing a public board of commissioners with powers to be used for the public protection in providing against abuses and preventible dangers and ensuring, amongst other things, adequate and suitable accommodation for the reception, delivery and forwarding of traffic, and construing section 284 with that knowledge, I can only conclude either that it does vest in the Board the authority claimed and exercised by it in this case of establishing a stopping-place within the meaning of those words in sub-section (a), or that there has been a casus omissus and one of the most necessary powers to ensure adequate and suitable traffic requirements overlooked. My construction of the language of the section saves me from accepting the latter conclusion.

The appeal should be dismissed with costs.

Idington J. (dissenting).—I regret to be driven to the conclusion that the Board has not jurisdiction to make the order in question.

Section 284 of the "Railway Act" relied upon does not, to my mind, furnish such power as claimed.

The language of the first group of sub-sections of that section evidently pre-supposes established

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stopping-places, and proceeds accordingly to direct and render it possible for the Board further to direct the necessary details for executing its purposes.

It does not, except in sub-section 5, empower the establishment of new stopping-places.

Sub-section 5 expressly provides power for the Board to fix, under the circumstances therein specified, new stopping-places in such limited cases.

If there existed already anywhere the power to direct new stopping-places, that sub-section was quite unnecessary.

Its existence seems to exclude any reasonable ground for attributing to any part of the whole section, or elsewhere in the Act, any general power to create new stopping-places.

It is urged that orders of a like kind have been made and obeyed as of course. I cannot see any force in that. It simply means the company so directed comprehended the importance of a public demand of which the official notice was thus given.

Railway managers know these orders of the Board are not made for amusement and that it is an unwise thing, as mere business expediency, needlessly to antagonize the public.

Of course, cases arise when such expediency may be overborne by other considerations.

As to the right to hear this appeal, I think the Board has, acting within its power, very properly, so placed the matter that there is no doubt of our jurisdiction to answer the question submitted.

The second part of Mr. Biggar's application, as adopted by the Board, is but a reason or ground of objection and does not necessarily cover the essence thereof.

[Page 570.]

I submit we should not be astute to find a means of evading answers to the submissions of the Board. The sooner any defect in jurisdiction is declared, the better so, that Parliament may act, if it find it expedient to do so.

Duff J. (dissenting).—The question raised by this appeal is whether the Board of Railway Commissioners has authority to order a railway company having a railway in operation to establish a stopping-place where none exists.

In discussing the question it will be convenient to consider first the provisions of the Act which expressly deal with the establishment. of the sites of stations and stopping-places generally. By sub-section (g) of section 151 which defines the general powers of the company, the company is empowered itself to

construct, erect and maintain all necessary and convenient * * * stations, depots, * * * and other structures necessary for the accommodation and use of the traffic and business of the railway;

and by sub-section (p) from

time to time discontinue such works or any other of them  * * * and substitute others in their stead.

By section 158, sub-sec. 2, it is provided that the plan of the railway, which by that section the company is directed to make, shall shew amongst other things the names of terminal points, and "the station grounds"; and by section 159

such plan, profile, and book of reference shall be submitted to the Board which if satisfied therewith may sanction the same.

By section 258, sub-sec. 2, it is enacted, that

before the company proceeds to erect any station upon its railway the location of such station shall be approved by the Board.

These are the only provisions of the Act which deal

[Page 571]

generally in express words with the assignment of sites for stations and stopping-places, and the result appears to be that all such sites are to be shewn upon the plan of the railway filed pursuant to section 158, and that no station other than those whose sites are exhibited upon this plan shall be subsequently established until the Board shall have approved the proposed site of it.

There is nothing in any of these provisions investing the Board with authority to compel the company against its will to establish any station or stopping-place at any site other than the sites shewn upon this plan or afterwards selected by the company with the approval of the Board under section 158(2). These I have said are the provisions which deal with the sites of stations and stopping-places generally. There is one other provision providing for a special case; and that is sub-section 5 of section 284. That sub-section is as follows:—

Where a company's railway crosses or joins or approaches, in the opinion of the Board, sufficiently near to any other railway, upon which passengers or mails are transported, whether the last-mentioned railway is within the legislative authority of the Parliament of Canada or not, the Board may order the company so to regulate the running of its trains carrying passengers or mails, and the places and times of stopping them, as to afford reasonable opportunity for the transfer of passengers and mails between its railway and such other railway, and may order the company to furnish reasonable facilities and accommodation for such purpose.

These being all the provisions of the Act dealing expressly with the establishment of such sites, it is at once observable that while no general power is expressly conferred upon the Board to establish a site against the will of the company, there is such a power conferred in the specific case provided for in the enactment last quoted. If these were all the

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provisions of the Act having a bearing upon the question the result would I think be very clear. We should then have before us simply one of those cases in which a power is conferred to be exercised in a specific case, and there is no provision conferring a more general power. As a general rule when authority is given by statute to some person or body to do something in a specified case and no power is expressly given to do that thing generally it may be taken that any such general power has been withheld; for the simple reason that if the general power existed the grant of the special power would be superfluous.

The provisions to which I have referred are not, however, those upon which the respondent mainly relies in support of its contention. It invokes chiefly section 284, sub-sees, (a), (b), (c), (d), 2, 3, and 6, and section 317. Sub-sections (a), (b), (c), (d) of section 284, are as follows:—

284. The company shall, according to its powers,— (a) furnish, at the place of starting, and at the junction of the railway with other railways, and at, all stopping-places established for such purpose, adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage upon the railway;

(b) furnish adequate and suitable accommodation for the carrying, unloading and delivering of all such traffic;

(c) without delay, and with due care and diligence, receive, carry and deliver all such traffic; and

(d) furnish and use all proper appliances, accommodation and means necessary for receiving, loading, carrying, unloading and delivering such traffic.

Sub-section 6 of the same section provides that for the purposes of the section the Board may order "that specific works be constructed or carried out," and by sub-section 3 it is enacted that "if in any case such accommodation" (i.e., the accommodation mentioned in sub-sections (a), (b), (c), (d)), "is not in the

[Page 573]

opinion of the Board furnished by the company the Board may order the company to furnish the same." I am not able to find in any of these provisions any grant of authority to make such an order as that under appeal. The subject matters dealt with in these provisions are the facilities and accommodation to be furnished by the railway in the reception, loading, carrying and delivering of traffic. The application of these provisions necessarily presupposes in each case traffic in the course of transit or offered, for carriage or at the end of transit between a terminus a quo and a terminus ad quem. These provisions of the Act invest the Board with the supervision of the accommodation and facilities furnished by the company for the handling of such traffic; that is to say the reception and loading of traffic at places established for that purpose, the transport of it to places established for the delivery of it, and the delivery of it when it reaches its destination. Sub-section (a) which deals with reception and loading is confined in its application expressly to the place of starting, to the junction of the railway with other railways and to establish stopping-places. I do not think subsections (b), (c) and (d) have as regards stopping-places any wider application. Sub-section 2 applies only to junctions with private sidings or private branch railways; and sub-sec. 4 is in its operation expressly confined "to the places aforesaid" which would seem to include only the places mentioned in sub-section (a) and sub-section 2. In a word, with the single exception of sub-section 5 already dealt with, no part of section 284 appears to be directed to the establishment of stopping-places, but only to the facilities and accommodation to be afforded at such stopping-places, at the

[Page 574]

termini of the railway, and at its junction either with other railways generally or with private sidings or private railways.

It remains to deal with section 317, and a like remark applies to that section. The subject of it is the provision of proper facilities for the receiving, forwarding and delivering of traffic, but it presupposes, I think, traffic offered for carriage from one point at which the railway is bound to receive traffic to another point at which the railway is bound to deliver it or in transit between such points or at its destination ready for unloading or delivery. In these two sections (284 and 317), moreover, the legislature had in contemplation these subjects of accommodation and facilities. The subject of the establishment of stopping-places is specifically dealt with, as I have already pointed out, in other sections of the Act. It would, I think, involve some departure from sound principles of construction to treat the general language used in these two sections (assuming it to be broad enough to embrace the subject of the establishment of stopping-places) as applicable to a subject which has been specifically dealt with elsewhere, and which the legislature had not immediately in view in framing these provisions.

One further point requires notice.

It was strongly pressed upon us by Mr. Lancaster in his able argument that the scheme of regulation provided for by the Railway Act is the embodiment of a policy to apply public regulation to railways privately owned and that no such scheme could be beneficial or effective which did not involve the grant to the regulating authority of the power to dictate the establishment from time to time of stopping-places

[Page 575]

for the reception and discharge of traffic. I think there is some danger in giving effect to considerations of this kind. A court of justice has no means of ascertaining the views of policy upon which legislation is based except through the interpretation of the language which the legislature had used, and indeed we are not concerned with the ultimate motives which have induced the legislature to pass the enactment to be construed, but only with the meaning of the legislative provisions themselves by which the legislature has seen fit to give legal effect to its views. "Intention of the legislature," said Lord Watson, in Salomon v. Salomon[4], at page 38,

is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.

The appeal should in my opinion be allowed. There should be no costs.

Since the above was written a new point not raised in the argument has been suggested based upon section 28, sub-sec. 1, and section 26, sub-sec. 2 of the Act. It is said that the effect of these two sections is that whatever the Board may authorize a company to do under the Act, that the Board may require a company to do. It is then argued that since, under sub-section 2 of section 258 and under section 167, the Board is authorized to approve the establishment of new stations, by the combined operation of these different provisions the Board acquires authority to direct the company in invitum to establish a new stopping-place and station.

[Page 576]

I am disposed to think that this construction of section 26, sub-section 2 is altogether too broad. The authority conferred upon the Board to require the company to do something it may authorize would seem to be intended to be exercised as ancillary only to the power to authorize. However that may be it seems to me there are two further answers to the argument:—First, such general enactments as section 26, sub-section 2 when found in statutes containing a great variety of provisions relating to diverse subjects cannot be applied mechanically in every case in which the words read literally might appear to justify such application. They must be read with the other parts of the Act; and subject to the implied condition that they are only applicable where neither by express words nor by necessary implication arising out of the subject matter or the context a contrary intention is made to appear. Where the provisions relating to a specific subject matter in themselves shew that the legislature did not intend the power to authorize to include the power to require —then according to well-established rules of construction the specific provision must prevail over the general. The foregoing discussion of the provisions relating to stations and facilities sufficiently indicates the grounds of my view that this subject of the establishment of stations has been dealt with in such a way as to exclude the application of any such rule as that said to be found in section 26, sub-sec. 2.

Again, giving to the words of section 26, sub-sec. 2, the wider signification, they could only be held to empower the Board to require something to be done (merely on the ground that the Board has power to approve such a thing) in circumstances in which approval by the Board is authorized. Sub-section

[Page 577]

1 of sec. 28 does not help us in the least. That is only a section dealing with procedure; the substantial conditions of the jurisdiction of the Board to empower or authorize any given thing cannot be affected by it. Now sub-section 2 of section 258 involves not merely an application by the railway company which is a mere matter of procedure, but behind and giving rise to it a determination by the company to erect a station on its railway. The initiative of the company in that substantial sense is the essence of the whole provision. That condition is wanting here. So the condition of the operation of sec. 167 is that some alteration shall be required by the company to be made; that is the substantial condition on which the Board's jurisdiction rests. The application of section 28, sub-secs. 1 and 2, to these provisions in the sense proposed seems to me for these reasons not to be permissible.

Anglin. J.—I am of opinion that the sixty-day limitation imposed by section 69 of the "Supreme Court Act" does not apply to appeals from the Board of Railway Commissioners under section 56 of the "Railway Act." Sections 36 et seq. of the "Supreme Court Act" confer rights of appeal from provincial courts. To these appeals section 69 applies. A right of appeal from the Board of Railway Commissioners is, in certain cases, conferred by the "Railway Act," which imposes the condition that in cases where the appeal is upon a question of jurisdiction the leave of a judge of this court shall first be had, and, in cases where the appeal is on a question of law, the leave of the Board shall be obtained. I see no reason for holding that section 69 of the "Supreme Court Act" applies to these appeals so as to add another condition.

[Page 578]

Sub-section 7, of section 56, of the "Railway Act"—which makes applicable to appeals from the Board of Railway Commissioners the rules and practice applicable to appeals from the Exchequer Court—tends to confirm this view.

If section 82 of the "Exchequer Court Act" applies, the Board probably had jurisdiction to make the order pronounced by it, extending the time for appealing. If section 69 of the "Supreme Court Act" were applicable, in so far as this appeal involves a question of law, the Board would probably have the like power under section 71 of the "Supreme Court Act." But I find nothing to warrant the view that an appeal will not lie under sub-section 2, of section 56, of the "Railway Act," unless the leave of a judge of this court be obtained and the appeal brought within sixty days from the date of the judgment appealed from. The preliminary objection, therefore, in my opinion, fails. By sub-section 2, of section 258, of the "Railway Act," it is provided that

before the company proceeds to erect any station upon its railway, the location of such station shall be approved of by the Board.

There is nothing to confine the application of this sub-section to railways projected or in course of construction; nothing to exclude from it railways already in operation.

By section 167, it is provided that

if any deviation, change or alteration is required by the company to be made in the railway or any portion thereof as already constructed, * * * a plan, etc., shall be submitted for the approval of the Board.

And, upon approval and deposit of such plan, etc., the company is authorized to make such deviation, change or alteration.

[Page 579]

By section 2(21), "railway" is declared to include "stations." The establishment of a new station or stopping-place is a change or alteration in the railway.

It is reasonably plain from these provisions that the Board has jurisdiction to authorize the construction by the company of stations at new or additional stopping-places upon its lines already constructed and that, without such authorization, the company cannot lawfully establish a new station.

These provisions, however, seem to contemplate authorization on the application of the railway company.

But, by section 28(1), the Board is empowered to determine "of its own motion," any matter or thing which it may determine upon application, and it is, when so acting, given "the same powers as upon any application."

It may, therefore, of its own motion authorize the construction by the company of stations at new or additional stopping-places.

Then, by section 26(2), it is provided that

the Board may order and require any company or person to do forthwith, and within or at any specified time, and in any manner prescribed by the Board, so far as is not inconsistent with this Act, any act, matter or thing which such company or person is or may be required or authorized to do under this Act.

Being empowered to authorize the company to erect stations at new or additional points and being clothed by the sub-section last quoted with authority to order and require the company to do that which it may be authorized to do, it would seem to follow that the Board has jurisdiction to order and require the erection of a station at a new and additional stopping-place upon a railway already constructed.

These provisions suffice, in my opinion, to support

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the order in appeal. Reference may also be made to sections 158 (2c) and 159.

Sections 177 and 178 confer powers of expropriation quite sufficient to enable the company to carry out any order of the Board such as that in appeal. For these reasons I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitor for the appellants: W. H. Biggar.

Solicitor for the respondents: E. A. Lancaster.