Supreme Court of Canada
Bell Telephone Co. of Canada v. The Canadian National
Rys. / Bell Telephone Co. of Canada v. The Toronto, Hamilton & Buffalo Ry.
Co. And The City of Hamilton / Montreal Light, Heat & Power Consolidated v.
The Canadian National Rys. / Montreal Tramways Co. And The Montreal Tramways
Commission v. The Canadian National Rys., [1932] S.C.R. 222
Date: 1932-03-01.
The Bell Telephone
Company of Canada, in re d’Argenson Street Subway, Montreal Appellant;
and
The Canadian
National Railways Respondent.
The Bell Telephone
Company of Canada in re St. Antoine Street Subway, Montreal Appellant;
and
The Canadian
National Railways Respondent.
The Montreal Light,
Heat & Power Consolidated, in re d’Argenson Street Subway, Montreal Appellant;
and
The Canadian
National Railways Respondent.
[Page 223]
The Montreal Light,
Heat & Power Consolidated in re St. Antoine Street Subway, Montreal Appellant;
and
The Canadian
National Railways Respondent.
The Montreal
Tramways Company and The Montreal Tramways Commission in re d’Argenson Street
Subway, Montreal Appellants;
and
The Canadian
National Railways Respondent.
The Montreal
Tramways Company and The Montreal Tramways Commission in re St. Antoine Street Subway, Montreal Appellants;
and
The Canadian
National Railways Respondent;
The Bell Telephone
Company of Canada in re St. Clair Avenue Subway, Toronto Appellant;
and
The Canadian
National Railways Respondent.
The Bell Telephone
Company of Canada in re Subways, Etc., in the City of Hamilton Appellant;
and
The Toronto,
Hamilton and Buffalo Railway Company and The Corporation of The City of
Hamilton Respondents.
1931: October 26, 27; 1932: March 1.
Present at hearing: Anglin
C.J.C and Duff, Newcombe, Rinfret and Lamont JJ.;
Newcombe. J. took no part in the judgment, having died before the delivery
thereof.
[Page 224]
on appeal
from the board of railway commissioners for canada
Railways—Orders of Board of Railway
Commissioners—Authorizing construction of subways in connection with highway crossings—Directing appellants
to move utilities—Railway Act, sections 89, 255, 256, 257—Jurisdiction of Board
under the Act—Whether these sections apply to Canadian National
Railways—Whether appellants “interested or affected by” the Orders—Railway Act,
R.S.C., 1927, с. 170, ss. 33 (5), 39, 44 (3), 52 (2), 162, 252, 255, 256, 257, 259, 260—Expropriation Act, R.S.C., 1927, с. 64—Canadian National
Railways Act, R.S.C., 1927, с. 172;
19-20 Geo. V, с. 10—Canadian National Montreal Terminals Act, (D) 19-20 Geo. V, c. 12.
The Canadian National Railways, a railway
company within the legislative authority of the Parliament of Canada, applied
to the Board of Railway Commissioners for the approval of plans and profiles
for carrying its tracks across certain highways. The Board, in final Orders granting
the applications, authorized the construction of subways or other structures in
connection with the highway crossings and, at the same time, directed the
present appellants, amongst others, to move such of their utilities as may be
affected by the construction or changes so authorized. The appellants urged
that the Board was without jurisdiction to make the Orders in so far as it
directed the appellants to move their utilities; that, in any event, the orders
were made irregularly and not in accordance with the rules binding upon the
Board; that sections 255, 256 and 257 of the Railway Act were not applicable to the Canadian National
Railways and that the Board had not the power to compel public utilities
companies to remove their facilities without previous compensation.
Held that these Orders were made within the exercise of the powers vested
in the Board by the Railway Act, and
more particularly by the provisions of sections 39, 255, 256 and 257 of that
Act.
Per Duff, Rinfret and Lamont JJ.—The powers of the Board, under the
sections above mentioned, are set in motion not alone at the request of the
railway companies, but equally at the request of the Crown, of any municipal or
other corporation or of any person aggrieved; or the Board may act proprio motu. The
primary concern of Parliament in this legislation is public welfare, not the
benefit of railways. With that object in view, almost unlimited powers are
given the Board to ensure the protection, safety and convenience of the public,
and it may prescribe such terms and conditions as it deems expedient, its
decisions being conclusive as to the expediency of the measures ordered to be
taken.
Per Duff, Rinfret and Lamont JJ.—The appellants fall within the class of companies or persons “interested
or affected” by the Orders, within the meaning of section 39 of the Railway Act, and, therefore, could
competently be ordered to do the works in the manner specified in these Orders,
unless it be “otherwise expressly provided” in some other part of the Act. But
there is no other section of the Act which provides that the Board may not
order a subway or any other work contemplated by sections 256 and 257 to be
constructed in whole or in part by a person other than a railway company.
Per Duff, Rinfret and Lamont JJ.—Sections 39, 252, 255, 256 and 257 of
the Railway Act apply to the
Canadian National Railways, as there
[Page 225]
are no other provisions, either in the Special Act or Terminals Act of the Canadian National
Railways which are inconsistent with these sections of the Railway Act.
Moreover, that being so, it is unnecessary to inquire whether they are
inconsistent with the Expropriation Act, as
that Act cannot prevail against the provisions of the Railway Act relating to highway and
railway crossing plans.
Per Duff, Rinfret and Lamont JJ.—Applications under sections 252, 255,
256 or 257 of the Railway Act are
not complaints within the meaning of subs, (a) of section 33 and the Board may
conduct its proceedings in these matters in such manner as may seem to it most
convenient. The Board itself is the proper judge of the circumstances under
which section 59 of the Act and Rule 6 of its Regulations should be acted upon.
Per Duff, Rinfret and Lamont JJ.—Sections 367 to 378 of the Railway Act deal with telephones or
telephone companies qua telephones
or telephone companies; but there is nothing in them to detract from the
authority of the Board to exercise its powers over telephone companies qua companies or persons, in the same
manner and with the same effect as against any other company or person.
APPEALS by The Bell Telephone Company of
Canada, The Montreal Light, Heat & Power Consolidated, The Montreal
Tramways Company and The Montreal Tramways Commission, by leave of a judge of
this court, from Orders of the Board of Railway Commissioners for Canada.
The Canadian National Railways, a railway
company within the legislative authority of the Parliament of Canada, applied
to the Board of Railway Commissioners for the approval of plans and profiles
for carrying its tracks across certain highways, and the Board, in the final
Orders granting the application, authorized the construction of subways, or
other structures in connection with the highway crossings and, at the same
time, directed the appellants, amongst others, to move such of their utilities
as may be affected by the construction or changes so authorized.
The Canadian National Railways, acting in
pursuance of the provisions of the Canadian National Terminals Act, was
constructing a line of railway from Victoria Bridge, in Montreal, to its new
Terminal Station on Lagauchetière street.
That line of railway was crossing St. Antoine street and ďArgenson street at a point where was located the underground conduit system
of The Bell Telephone Company of Canada and of The Montreal Light, Heat &
Power Consolidated. The railway line would be carried over St. Antoine street on a bridge and St. Antoine street would be
[Page 226]
carried under the tracks by means of a
subway, the construction of which would involve the lowering of the grade of
the street. Also, the elevation of the railway line running from St. Henri to
Point St. Charles, crossing ďArgenson street, necessitated the reconstruction of the existing subway
at that place.
In 1913, The Bell Telephone Company of Canada
constructed an underground conduit system under the surface and within the
limits of St. Clair Avenue, in Toronto and placed its telephone lines and
cables therein; and, in 1930, the Canadian National Railways applied to the
Board of Railway Commissioners for authority to divert its Newmarket
Subdivision line to the west and to construct a subway under the diverted line
where it crosses St. Clair Avenue, and for an order directing the Bell
Telephone Company to make such changes in its facilities as may be necessary.
The Bell Telephone Company of Canada owns and
maintains telephone lines constructed upon and under certain streets in the
city of Hamilton. The Canadian National Railways, for the purpose of elevating
and diverting its line of railway running through that city, made an
application to the Board of Railway Commissioners, in which the city of
Hamilton joined as an applicant, for, inter alia, the approval of the
plans, for the diversion and other works incidental thereto, and for an order
directing the Bell Telephone Company to reconstruct, alter or change its works
in order to carry out the changes planned by the railway company.
Pierre Beullac K.C. and N.A. Munnoch for
the appellant The Bell Telephone Company of Canada.
Geo. H. Montgomery K.C. for the appellant The Montreal Light, Heat & Power Consolidated.
Thomas Vien K.C. for the appellant The Montreal Tramways
Company.
F. Béique K.C. for the appellant The Montreal Tramways
Commission.
W. N. Tilley K.C. and Geo. F. Macdonnell K.C. for the respondent The Canadian National Railways.
G. W. Mason K.C. and
A. J. Poison for the respondent
The City of Hamilton.
[Page 227]
W. N. Tilley K.C. and J. A. Soule for the respondent The Toronto, Hamilton and Buffalo Railway
Company.
Anglin C.J.C.—I have had the advantage of reading the
carefully prepared opinion of my brother Rinfret, and agree in his conclusions.
His reasoning, speaking generally, strikes me as
being forcible, especially in the early part of his judgment. Taking everything
into account, I would dismiss the appeal with costs.
The judgment of Duff, Rinfret and Lamont JJ. was
delivered by
Rinfret J.—These appeals were heard together. There are in each case special
features with which it will be necessary to deal separately, but the main point
involved is common to all the appeals and may be conveniently disposed of by a
single set of reasons.
In all the cases a railway company within the
legislative authority of the Parliament of Canada applied to the Board of
Railway Commissioners for the approval of plans and profiles for carrying its
tracks across certain highways, and the Board, in the final order granting the
application, authorized the construction of subways or other structures in
connection with the highway crossings and, at the same time, directed the
appellants, amongst others, to move such of their utilities as may be affected
by the construction or changes so authorized.
The point raised by the appellants is that the
Board of Railway Commissioners was without jurisdiction to make the orders in
so far as it directed the appellants to move their utilities. There is a
further point that, in any event, the orders were made irregularly and not in
accordance with the rules binding upon the Board.
The appellants got leave to bring these matters
before the court pursuant to subsection 2 of section 52 of the Railway Act.
We shall now proceed to discuss the first point.
The applications of the railway companies and
the orders of the Board professed to be made under sections 255, 256 and 257 of
the Railway Act. It is in those sections and, of
[Page 228]
course, in the enabling enactment contained in
s. 39, that the authority of the Board to pronounce the Orders must be found,
if at all—and we did not understand the respondents to contend otherwise, nor
that the impugned Orders were sought to be supported by any other legislation.
The logical way to approach these cases therefore is to begin by an examination
of the powers conferred on the Board by the several sections just mentioned.
In the Railway Act, sections 255, 256 and
257 form part of a series of sections grouped under the heading: Highway
Crossings. They provide for what is to be done in the case of a railway
crossing a highway or vice versa. The first two sections deal with
projected crossings and the other deals with existing crossings. Under section
255, before the railway may be carried upon, along or across an existing highway,
leave therefor must first be obtained from the Board. There is a proviso that “the
company shall make compensation to adjacent or abutting landowners,” but only “if
the Board so directs” in which case the compensation is to be determined
under the arbitration sections of the Railway Act. Special provisions
are made where the railway is to be carried along a highway, and also to take
care of traffic on the highway during the construction of the railway. The
highway must be restored “to as good a condition as nearly as possible as it
originally had.”
On account of their bearing on the present
cases, sections 256 and 257 ought to be quoted in extenso:
256. Upon any application for leave to
construct a railway upon, along or across any highway, or to construct a
highway along or across any railway, the applicant shall submit to the Board a
plan and profile showing the portion of the railway and highway affected.
2. The Board may, by order, grant such
application in whole or in part and upon such terms and conditions as to
protection, safety and convenience of the public as the Board deems expedient,
or may order that the railway be carried over, under or along the highway, or
that the highway be carried over, under or along the railway, or that the
railway or highway be temporarily or permanently diverted, or that such other
work be executed, watchmen or other persons employed, or measures taken as
under the circumstances appear to the Board best adapted to remove or diminish
the danger or obstruction, in the opinion of the Board, arising or likely to
arise in respect of the granting of the application in whole or in part in
connection with the crossing applied for, or arising or likely to arise in
respect thereof in connection with any existing crossing.
3. When the application is for the
construction of the railway, upon, along or across a highway, all the
provisions of law at such times applicable to the taking of land by the
company, to its valuation and sale and
[Page 229]
conveyance to the
company, and to the compensation therefor, including compensation to be paid to
adjacent or abutting landowners as provided by the last preceding section,
shall apply to the land exclusive of the highway crossing, required for the
proper carrying out of any order made by the Board.
4. The Board may exercise supervision in
the construction of any work ordered by it under this section, or may give
directions respecting such supervision.
5. When the Board orders the railway to be
carried over or under the highway, or the highway to be carried over or under
the railway, or any diversion temporarily or permanently of the railway or the
highway, or any works to be executed under this section, the Board may direct
that detailed plans, profiles, drawings and specifications be submitted to the
Board.
6. The Board may make regulations
respecting the plans, profiles, drawings and specifications required to be
submitted under this section.
257. Where a railway is already constructed
upon, along or across any highway, the Board may, of its own motion, or upon
complaint or application, by or on behalf of the Crown or any municipal or
other corporation, or any person aggrieved, order the company to submit to the
Board, within a specified time, a plan and profile of such portion of the railway,
and may cause inspection of such portion, and may inquire into and determine
all matters and things in respect of such portion, and the crossing, if any,
and may make such order as to the protection, safety and convenience of the
public as it deems expedient, or may order that the railway be carried over,
under or along the highway, or that the highway be carried over, under or along
the railway, or that the railway or highway be temporarily or permanently
diverted, and that such other work be executed, watchmen or other persons
employed, or measures taken as under the circumstances appear to the Board best
adapted to remove or diminish the danger or obstruction in the opinion of the
Board arising or likely to arise in respect of such portion or crossing, if
any, or any other crossing directly or indirectly affected.
2. When the Board of its own motion, or
upon complaint or application, makes any order that a railway be carried across
or along a highway, or that a railway be diverted, all the provisions of law at
such time applicable to the taking of land by the company, to its valuation and
sale and conveyance to the company, and to the compensation therefor, shall
apply to the land, exclusive of the highway crossing, required for the proper
carrying out of any order made by the Board.
3. The Board may exercise supervision in
the construction of any work ordered by it under this section, or may give
directions respecting such supervision.
Let it be observed that, under the sections
quoted, the powers of the Board are set in motion not alone at the request of
the railway companies, but equally, as occasion requires, at the request of the
Crown, of any municipal or other corporation or of any person aggrieved; or the
Board may act proprio motu.
The primary concern of Parliament in this
legislation is public welfare, not the benefit of railways. With that object in
view, almost unlimited powers
[Page 230]
are given the Board to ensure the protection,
safety and convenience of the public. It may prescribe such terms and
conditions as it deems expedient. It may order that such work be executed or
that such measures be taken as, under the circumstances, appear to it best
adapted to remove the danger or obstruction; and, amongst the things that the
Board may do, the following are particularly mentioned: it may order that the
railway be carried over, under or along the highway, or that the highway be
carried over, under or along the railway, or that the railway or highway be
temporarily or permanently diverted. As to the expediency of the measures so
ordered to be taken, the Board is given the entire discretion to decide, and
its decision is conclusive (Section 44-3 of the Railway Act).
In the cases now before this court, four
distinct undertakings are involved: 1. The
St. Antoine street subway, in the
city of Montreal. In connection with a comprehensive scheme for readjusting its
terminal facilities in that city, the Canadian National Railway Company applied
to the Board for the approval of a plan showing inter alia, the proposed
crossing of St. Antoine street by
its railway. Up to that time, the street was not crossed by the tracks of the
railway and the plan was to carry the street under the railway by means of a
subway.
Pursuant to subsection 5 of section 256 of the Railway
Act, the Board directed that detailed plans be served upon the appellants
and other interested parties, some of whom filed written answers to the
application. The Board subsequently made the order, approving the plan and the
construction of the subway and making the directions the validity of which is
challenged by The Bell Telephone Company of Canada, The Montreal Light, Heat
& Power Consolidated, The Montreal Tramways Commission and The Montreal
Tramways Company.
2. The d’Argenson street subway, in the city of Montreal. This work is part of the
same general scheme of the Canadian National Railway Company. The circumstances
are similar, except that there was already a subway at ďArgenson
street, and the Order provides for its reconstruction
on a wider scale. The parties opposing the Order are the same as in the St. Antoine street appeal.
[Page 231]
3. The St. Clair avenue subway, in the city of
Toronto. In this case, the order of the Board came as a result of an
application made by the city of Toronto. The application was that the Canadian
Pacific Railway Company and the Canadian National Railways be required to
collaborate with the city in the preparation of a joint plan for the separation
of grades in the northwest portion of the city. It is unnecessary to recite the
successive proceedings that took place. The outcome was a judgment ordering, inter
alia, the construction of a subway under the Newmarket subdivision of the
Canadian National Railways at St. Clair Avenue. No steps were taken for some time,
but later the procedure already outlined under subsection 5 of section 256 was
followed and an Order was made by the Board, similar in character to that in
the St. Antoine and ďArgenson streets cases, directing The
Bell Telephone Company of Canada and other public utilities’ companies
to move such of their facilities as may be
affected by the construction of the said subway, when requested to do so by the
chief engineer of the applicants.
In this matter, The Bell Telephone Company is
the sole appellant.
4. The Toronto, Hamilton & Buffalo Railway
Company’s lines in the city of Hamilton. This was a joint application of the
railway and the corporation of the city of Hamilton for an order approving and
sanctioning plans and profiles showing deviations and alterations in the
railway company’s lines between certain points in the city of Hamilton, and
authorizing the railway company to construct, maintain and operate that portion
of its railway between the points described in accordance with the change in
grades shown in these plans and profiles, to carry its elevated tracks over
certain highways therein designated by means of bridges, and to carry the
highways beneath the tracks by means of subways, also directing the city to
close certain streets, and authorizing a new location of the railway company’s
station and terminals building, at the same time directing the Hamilton street
railway to reconstruct its tracks through and at each side of the subway at
James street, and all public utility companies affected to
reconstruct, alter or change the respective
works of each in order to carry out the changes of the railway shown on said
plan and profile.
[Page 232]
In
this case, as in the former one, The Bell Telephone Company is the sole
appellant. The Toronto, Hamilton & Buffalo Railway Company and the city of
Hamilton are the respondents.
The
short description just given of the nature of the works forming, in each case,
the subject-matter of the orders, is sufficient to establish—and, if necessary,
a more complete reference to the text of the formal orders themselves, as well
as the proceedings leading thereto, would demonstrate—the
following propositions:
The
whole works,—or at least the constructions or with which the appellants are
concerned—were designed
to remove or diminish
the danger or obstruction, in the opinion of the Board, arising or likely to
arise in respect of the granting of the applications in whole or in part in
connection with the crossings applied for, or arising or likely to arise * * *
in connection with existing crossings.
(Railway Act, sections 256 and 257.)
The orders, subject to what remains to be said
of the directions affecting the appellants,—were made in the-exercise of the
powers vested in the Board by the Railway Act, more particularly sections 255,
256 and 257. In fact, the appellants did not take exception to the authority of
the Board to pronounce orders of that kind in matters concerning railway
companies governed by the Railway Act.
What they disputed was the applicability of the
sections relied on to the Canadian National Railway Company and the power to
compel the public utility companies to remove their facilities without previous
compensation.
We shall deal first with the last of these two
objections of the appellants, which is common to all the appeals.
In the exercise of the powers vested in the
Board, it is not clear, under the sections referred to, on whom it may impose
the terms and conditions which, in its discretion, it finds expedient to insert
in the orders it makes, nor by whom it may order the prescribed measures to be
taken or the prescribed works to be executed. Whatever be the construction of
those sections, any doubt on the point just mentioned is removed beyond
question by section 39 of the Railway Act, which reads as follows:
39. When the Board, in the exercise of any power vested in
it, in and by any order, directs or permits any structure, appliances,
equipment, works, renewals, or repairs to be provided, constructed,
reconstructed,
[Page 233]
altered, installed, operated, used or maintained, it may,
except as otherwise expressly provided, order by what company, municipality or
person, T interested or affected by such order, as the case may be, and when or
within what time and upon what terms and conditions as to the payment Conditions
as to the compensation or otherwise, and under what supervision, the same shall
be provided, constructed, reconstructed, altered, installed, operated, used and
maintained.
2. The Board may, except as otherwise expressly provided,
order by (3 appeals) whom, in what proportion, and when, the cost and expenses
of providing, constructing, reconstructing, altering, installing and executing
such structures, equipment, works, renewals, or repairs, or of the supervision,
if any, or of the continued operation, use or maintenance thereof, or of otherwise
complying with such order, shall be paid. v.
The
effect of this section was the subject of several pronouncements on the part of
the Judicial Committee of the Privy Council. It is now settled that the section
applies to every case in which the Board by any order directs works and
gives it power to order by what company, municipality or person interested in
or affected by such order they shall be constructed.
(Toronto Railway Company v. City of Toronto;
Canadian Pacific Railway Co. v. Toronto Transportation Commission.
There is, of course, the decision in British
Columbia Electric Ry. Co. v. Vancouver, Victoria and Eastern Ry. Co. relied on by the appellants.
But, as pointed out by co. Viscount Finlay in Toronto Railway Co. v. City of
Toronto,
the order of the Board in the British Columbia case was
not regarded as proceeding on any consideration of danger
arising from the level crossing or as having anything to do with the railways
as such. The matter was treated as one merely of street improvement for which a
permissive order was given by the Railway Board, and as such not falling within
either s. 59 (now 39) or s. 238 (now 257) of the Railway Act; indeed the latter section is not even mentioned
in the " judgment."
Another point of distinction which should be
emphasized is this: In the Vancouver case,
the Board's order was held merely permissive and as former section 59 was
interpreted as applying only in cases where the order was " in substance
mandatory," the discussion centred (as it did also to a certain extent in
the Toronto case
), on the question whether the terms of the impugned order satisfied the words
of the enactment as it then was. The point is no longer open for discussion now
that the provisions of the
[Page 234]
new section 39 have, by amendment, been declared
to extend both to an order which “directs” and to an order which “permits.”
Further, we would add, applying the reasoning of the Privy Council in Toronto
Railway Co. v. City of Toronto, that
there can be no question here that the orders appealed from are mandatory.
We have it so far that the works involved in the
orders now before us are works which the Board, in the exercise of the powers
vested in it by the particular sections of the Railway Act, could
competently direct or permit to be done, and to which accordingly section 39 of
the Railway Act applies. It follows that the works in question were in
the nature of those where the Board may
order by what company, municipality or
person, interested or affected by such order, as the case may be * * * the same
shall be provided and constructed;
and, consequently, that the appellants could
competently be ordered to do the works, unless it be “otherwise expressly
provided” somewhere else in the Railway Act.
We have no doubt that the appellants fall within
the class of companies or persons “interested or affected” by the orders,
within the meaning of section 39. In terms, the orders are directed against the
companies only so far as “affected” by the words or changes therein involved;
and the consequence would be either that the appellants are “affected” and
therefore they come within the section, or they are not “affected” and the
orders do not concern them.
But it seems evident that the appellants are
companies “affected” as contemplated by the section. In Canadian Pacific Ry.
Co. v. Toronto Transportation Commission, Lord Macmillan,
delivering the judgment of the Judicial Committee, made
the following observation at page 697:
Sect. 89 does not indicate any criterion by
which it may be determined whether a person is interested in or affected by an
order of the Railway Board. It does not even prescribe that the interest must
be beneficial or that the affection must not be injurious. The topic has in a
number of cases in the Canadian Courts been much discussed but inevitably
little elucidated. Where the matter is so much at large, practical
considerations of common sense must be applied, especially in dealing with what
is obviously an administrative provision.
The question is primarily one of fact and the
decisions herein carry the full weight that attaches to the finding of
[Page 235]
the Board on any question of fact (Railway
Act, ss. 33-5, and 44-3).
Nevertheless, we apprehend that we are called upon to consider the point on
appeal as a question of law so as to determine the jurisdiction of the Board in
the premises. In
the Toronto Transportation case,
the test was laid down in this way:
The question is * * * whether the company
was interested in or affected by the engineering works designed for the removal
of the level crossing.
If that test be applied here, the answer is
plainly in the affirmative. In the present case, the alteration of the
appellants’ facilities is necessitated by the construction orders and they are
obviously within the meaning of the statute.
In coming to that conclusion, we are further
influenced by the consideration that, as was authoritatively decided in Toronto
Railway Co. v. City of Toronto,
the class of persons who may be ordered to contribute towards the cost and
expenses under subs. 2 of section 39 is the same exactly as the class of
persons who may be ordered to do the works under subs. 1. So far as we know,
the question as to what constitutes a person “interested or affected” under
subs. 1 comes before the courts for
the first time, but it has been discussed in a number of cases under subs. 2;
and, although fully aware that any decision on that point must depend largely
on the particular circumstances of each case, we are satisfied that if we
should apply to the present instances the line of reasoning which obtained,
amongst others, in the two Toronto cases, the conclusion is inevitable
that the appellants fall within the relevant provisions of section 39.
If therefore, by force of sections 256 and 257,
in respect of the highway crossings and so far as material here, the works
were—as we decide they were—competently ordered by the Board, it may not be
denied that the orders could be made on the railway companies or on the
municipal corporations interested; and, as a mere matter of jurisdiction, we
must hold that the orders could also be made with equal competence on any
company or persons affected by the orders and, therefore, on the appellants.
[Page 236]
Now there is nothing in section 39 to indicate
that the Board must direct the whole of the works to be provided or constructed
by the same company or person. We see no reason to doubt that, in the exercise
of the powers therein given, the Board may direct part of the work to be
executed by one person and another part to be executed by another person. The
moving of the utilities of the appellants as directed would obviously be part of
the works designed and which could competently be ordered. It would seem,
moreover, that the moving could be done much more advantageously by the
companies owning and operating the utilities. So that, in the carrying out of
the present orders, each company is called upon to contribute its part of the
work in the manner best calculated to suit the convenience of all concerned.
Nor are we impressed by the contention that the relevant sections of the Act so
interpreted are likely to work hardship. It need not be repeated that this is a
matter for Parliament’s concern, which must not influence the construction of
statutes where the intention is clear. But it may not be out of the way to
point out that section 39 gives ample scope to the Board for making such provisions
as to time, terms, conditions, and “as to the payment of compensation or
otherwise,” as may be found necessary to meet all situations, and for clothing
the orders it makes under it with all the guarantees of fairness. In our view,
the enactment as framed allows for directions that advances in money be made on
account, by all or some of the parties interested or affected, towards the cost
of construction ordered executed by one or more of them, or that compensation,
if any, be previously paid. We should not assume that in these, or in any other
instances, the Board will make use of its powers in a way that would be
unreasonable. At all events, this court has only to decide whether the Board
has jurisdiction tò require the
appellants to contribute to the works as it did. The propriety of requiring
them to do so is entirely a matter for the Board.
It remains to consider whether, as the
appellants contend, these are cases where the Railway Act “otherwise expressly
[Page 237]
provided” so as to take them outside the
application of section 39.
Let it be first observed that in the section,
the words “except as otherwise expressly provided” are inserted in the
following sentence:
it (i.e., the Board) may, except as
otherwise expressly provided, order by what company, municipality or person,
interested or affected by such order * * * the same (i.e., the structure or
works) shall be provided, constructed, etc.
The meaning of the words, in the place in which
they are found, is to the effect that the Board may order the works to be
constructed by any company interested or affected, unless it be otherwise
expressly provided in some other part of the Railway Act. We know of no
other section of the Act, and none was pointed out to us, which expressly
provides otherwise, that is: which provides that the Board may not order a
subway or any other work contemplated by sections 256 and 257 to be constructed
in whole or in part by a person other than a railway company.
Sections 162 and following are nothing but an
enumeration of the several powers of a railway company under the Act. They
provide for what the company may do “for the purposes of its undertaking,” and
how it may do it and for its obligations in the way of avoiding damage and
making compensation. But section 162 is only permissive. That and the sections
immediately following (which are only corollary thereto) apply where the
railway, for itself and of its own volition, does the work or exercises the
powers granted therein. Besides, under section 162, the powers are granted and
may be exercised only “subject to the provisions in this and the Special Act
contained”; and thus we are carried back to section 39.
Then, there are in subs. 3 of section 256 and in
subs. 2 of section 257, certain provisions in regard to the taking of land. The
appellants urge that the Board has no jurisdiction in matters of expropriation
or of obtaining possession of lands; that the utilities ordered removed are in
the nature of lands, and that the Board cannot make orders dispensing with the
taking of proper expropriation proceedings, nor can it determine the
compensation to be paid for the lands taken, nor can it order the owner thereof
to vacate and deliver them up to the respondent railway companies;
[Page 238]
and the conclusion follows that the orders to
remove the facilities are therefore invalid.
The fallacy of the foregoing proposition lies in
the fact that it is altogether predicated on the assumption that orders of this
kind call for the taking of lands by the railway company. Of course, the orders
appealed from do not. They provide for the works to be executed partly by the
railway company and partly by the utilities companies—since removing the
utilities is just as much part of the works as would be, for example, the
removing of the earth in the subways. In the carrying out of the orders as
framed, the railway company is not supposed to even touch the facilities of the
appellants. So that, assuming the appellant’s interest is in the naturę of lands, the orders here do not
call for the taking by the
railway company of the lands of the appellants.
But the appellants say that the orders are not
as they should be, and that orders of that nature properly made under sections
255, 256 and 257 necessarily involve the taking of lands by the railway
company. We do not think they do. It is not difficult to imagine cases where
the measures directed to be taken under these sections would necessitate the
taking of lands by the railway. Subs. 3 of 256 and subs. 2 of 257 are there to
take care of such cases. But an order, without more, that the railway be
carried over or under a highway or that a highway be carried over or under a
railway is hardly one of these cases. The orders with regard to the subway at
St. Antoine or ďArgenson streets,
in Montreal, are not; nor is the order in respect of the subway at St. Clair
Avenue in Toronto. As for the Hamilton order, we have the admission of the
appellant, The Bell Telephone Co. that
the changes in the appellant’s plant are
only necessitated by the construction of the, subways and the closing of the
streets authorized by
the order. We shall take up later the question
about the closing of streets. For the moment, we deal only with the matter of
subways, with which all the appeals herein are concerned.
Now, “the provisions of law * * * applicable to
the taking of land by the company” referred to in subs. 3 of 256 and in subs. 2
of 257 plainly mean the provisions applicable to the taking of land for the
purposes of the railway
[Page 239]
or for the undertaking of the railway. It may be
said generally that an order such as those we are now discussing is not made “for
the purposes of the railway proper.” The fact that the railway comes across a
highway is no doubt the occasion for the order, but the reason or the purpose
of the order is the protection or convenience of the public. All the railway
needs is to cross the highway. But there are cases where this may not be done
without danger or obstruction. Hence the order to carry the highway over or
under the railway. As a result, the utilities are not to be removed in order to
allow the railway to pass. They must be removed because, for motives of public
safety and convenience, the highways are to be lowered or carried above. It is
idle to say that lowering a highway will not make it part of the railway
undertaking, and neither will its being carried over the railway. This very
question is dealt with by Viscount Dunedin delivering the judgment of the
Judicial Committee in Boland v. Canadian National Railway Company. The
noble lord puts the question: “Is the subway part of the undertaking of the
railway?” And the answer is:
Their Lordships consider that it is not.
The expression “subway” has been used, and it is convenient, but in fact, what
has been done is merely a lowering of the road and the construction of a new
railway bridge. Their Lordships do not doubt that the lowered road still
remains, as it was, part of the road belonging to the municipality. They might
put sewers under it or gas pipes
along it, and could not be restrained by the railway authorities—assuming, of
course, that those things so done did not interfere with the position of the
railway proper.
Whether, in matters of railway crossings, the
subsections invoked by the appellants apply to land at the crossing proper,—and
the provision therein inserted: “shall apply to the land exclusive of the
highway crossing” might indicate that they do not—it is not necessary, for the
moment, to consider. We are of opinion, for the reasons stated, that the works
ordered, by their very nature and quite independently of the direction
concerning the appellants, do not call for the taking of land by the railway
company, or for the undertaking of the railway. There is, in the present cases,
no occasion for the application of subs. 3 of 256 or subs. 2 of 257; and those
subsections do not, in these instances at least, preclude the application of
section 39.
[Page 240]
Incidentally it may be added that the provisions
in subs. 4 of 256 and subs. 3 of 257 fully authorized the direction made in the
impugned Orders to the effect that the works shall be carried out under the
supervision of “the Chief Engineer, Operating Department of the Applicant.”
The only other sections of the Railway Act invoked
by the appellants were sections 259 and 260. It was expressly held in Toronto
Railway Co. v. City of Toronto,
that section 259 (or subs. 3 of section 238 as it then was) does not exclude
section 39, in respect to the costs and expenses of providing the works. Of
section 260, before it is said to have any application at all to the cases
herein, it may be asked whether it is meant to cover any new construction made
by any railway after the 19th of May, 1909, or whether it affects only railway
lines or possibly railways wholly constructed after the date mentioned; whether
the application of the whole section is or is not “subject to the order of the
Board,” and whether the section does not refer solely to level crossings (as a
close analysis of the language used in section 260 compared with the language
in sections 256 and 257 might show). Section 260 is not even mentioned in the
judgments in the two Toronto cases.
But it is sufficient to say that sections 259
and 260 deal with quite a different thing from that with which we are now
concerned. They deal with the apportionment of cost—a question which, in the
orders appealed from, the Board did not pretend to decide and which, on the
contrary, it expressly reserved for future consideration. The applicability of
the two sections will therefore properly come up for discussion when the
question of the apportionment of costs stands to be considered. It may have a
bearing on subs. 2 of section 39, it has none on subs. 1. In our view, there is
nothing in sections 259 and 260 to put an end to the application of section 39
subs. 1.
Having now dealt with the main objection of the
appellants, we come to the other point about the regularity of the proceedings
and the contention that the applications were not brought in conformity with
the rules binding upon the Board. The question submitted has to do with the
[Page 241]
absence or sufficiency
of notice to the appellants, who urge that they were not accorded the hearing
to which they were entitled.
Assuming the objection raises a question of
jurisdiction—and our present view would be that it does not, but that it is
rather a question of practice and procedure—the fact is that the Orders in each
case were not issued until some time after the appellants had had an
opportunity—of which they availed themselves—of filing their submissions in
writing, although there was afterwards an oral argument before the Board. We
feel confident that the Board must have given proper consideration to the
written submissions so made and have taken them into account in drafting the
orders subsequently issued. In an earlier part of this judgment, attention was
drawn to the fact that in these matters—as well as in any number of similar
matters constantly coming before it—the Board is “dealing with what are
obviously administrative provisions” of the Railway Act. Circumstances
imperatively required that these matters may be disposed of with expedition and
simplicity of procedure. For that reason, no doubt, the Railway Act provided
that
the commissioners shall sit at such times
and conduct their proceedings in such manner as may seem to them most
convenient for the speedy despatch of business. (Section 19.)
They may sit either in private or in open court.
The only exception is
that any complaint made to them shall, on
the application of any party to the complaint, be heard and determined in open
court.
What is meant by a complaint is shown, we think,
in section 33 of the Act. Complaints are the applications described in
subparagraph (a) of that section. The applications leading to the orders we are
now discussing were not complaints. They were requests of the kind described in
subparagraph (b) of the section. They were applications in respect of
which, under the Act, the Commissioners were at liberty to “conduct their
proceedings in such manner as may seem to them most convenient.”
The Board made and published rules regulating
its practice and procedure, as it was authorized to do under
[Page 242]
the Act (sections 20, 50 and 53). One of those
rules reads in part as follows:—
When the Board is authorized to hear an
application or make an order, upon
notice to the parties interested, it may, upon the ground of urgency, or for
other reason appearing to the Board to be sufficient, notwithstanding any want
of or insufficiency in such notice, make the like order or decision in the
matter as if due notice had been given to all parties; and such order or
decision shall be as valid and take effect in all respects as if made on due notice; but any person entitled to
notice, and not sufficiently notified, may, at any time within ten days after
becoming aware of such order or decision, or within such further time as the
Board may allow, apply to the Board to vary, amend or rescind such order or
decision; and the Board shall thereupon on such notice to all parties
interested as it may in its discretion think desirable, hear such application,
and either amend, alter, or rescind such order or decision, or dismiss the
application, as may seem to it just and right.
The above rule is the reproduction practically verbatim
of section 59 of the Railway Act We need not say that the Board
itself is the proper judge of the circumstancies under which the rule and the
section should be acted upon; and we do not think that the orders, upon their
face, need show the existence of the circumstances which prompted the action of
the Board. (See section 48.)
In our view, the rules and sections of the Railway
Act to which we have referred are conclusive of the appeals on this point.
We apprehend, however, that the appellants may yet find in the remedial parts
of rule 6 and of section 59, the remedy to which they may be entitled—although
of course it is not our province to express any opinion in regard to it.
That disposes of both of the appellants’ points
common to all the appeals. Incidentally, it also finally disposes of the appeal
in the Hamilton case, for whatever remains to be considered is peculiar to the
Canadian National Railways, who are not concerned in the Hamilton appeal.
We do not forget that The Bell Telephone Company
raised the contention that, by force of subs. 12 of section 375 of the Railway
Act, sections 256 and 257 thereof do not apply to telephone companies. We are not pressed by that objection. Section 375 appears in the Act in
a fasciculus of sections (ss. 367-378)
under the heading “Telegraphs, Telephones, Power and Electricity.” Those
sections deal with telephones or telephone companies qua telephones or
telephone companies. There is nothing in them to detract from the authority of
the Board to exercise the powers
[Page 243]
vested in it under sections 39 or 256 or 257 or
under any section of the Railway Act, over telephone companies, qua companies
or persons, in the same manner and with the same effect as against any other
company or person.
But we should not part with the Hamilton appeal
without making one more observation. The order provides for the closing of
certain streets in the city of Hamilton. The Bell Telephone Company objects
that the Board has no jurisdiction to order the closing of a highway. There is
much to be said in favour of the proposition that
the power vested in the Board to order that
a highway be temporarily or permanently diverted and the wide power to order
such measures to be taken as under the circumstances appear to the Board best
adapted to remove or diminish the danger or obstruction in the opinion of the
Board arising or likely to arise in respect of such portion or crossing, if
any, or any other crossing directly or indirectly affected, confers authority
upon the Board to order that part of a highway be closed or, at all events,
authority to require the proper municipal authority to close it.
(See Brant v. Canadian Pacific Railway
Company.
But the point does not come up for decision here. The Board did not order the
closing of the streets in Hamilton. The city agreed to close them. All that the
Board did, so far as that point is concerned, was
confined entirely to the extinguishment of
the public right to cross the railway company’s right-of-way.
(In re Closing Highways at Railway Crossings), to “permit” the closing
by the city, so far as that was necessary; (Railway Act, sect. 39),—and
the incidental authority to make the orders, so far as concerned the utility
companies, is amply provided for in section 39 of the Railway Act. The
Order comes as the result of an agreement between the railway company and the
city. The city submits to it; it joined with the railway in the application to
the Board; it was a party to all the proceedings before the Board and it is now
respondent in this appeal, supporting the Order with the railway company. Under
the circumstances, we do not think the point is open to the Bell Telephone
Company. There is however a statement made in the factum of that company which
reads as follows:
The closing of Hughson
street was only agreed upon and ordered to enable the
respondent railway to build its new station upon the portion to be closed.
[Page 244]
So far as we can remember, in these rather
involved and complicated appeals, no particular argument was addressed to us on
that special point. Were it not that the appeal is on a question of
jurisdiction, the point should be dismissed on the simple ground that it was
not taken at bar. But if the situation be as represented in the factum, the
powers of the Board to make the direction complained of, so far at least as
concerns the rights of the appellant in respect of that particular work, may
have to be inquired into. The result may not be the same as in the case of
works ordered in connection with the crossings. However, we have no facts or
admissions on which to decide that issue. It was apparently lost sight of in
the midst of the numerous other points submitted. It may be that it does not
arise. If it does, when properly and rightly taken, it is no doubt susceptible
of redress by the Board itself under subs. 2 of section 59 of the Railway
Act. As for this court, it would have to be brought back before it upon a
new statement of facts specially addressed to that feature. If the parties wish
their rights to be reserved for that purpose, the point may be spoken to.
Subject to that, the appeal of The Bell Telephone Company of Canada from Order
No. 45813 of the Board of Railway Commissioners, and wherein the Toronto,
Hamilton and Buffalo Railway Company and The Corporation of the City of
Hamilton are respondents, should be dismissed with costs.
We may now turn our attention to the special
features involved in the other appeals. They are of the same character in each
case and they may be discussed together.
The main feature concerns what we would call the
railway status of the Canadian National Railway Company, the sole respondent in
each of the remaining appeals;—and what is to be discussed is whether sections
39, 255, 256 and 257 of the Railway Act apply to the Canadian National
Railways.
The Canadian National Railway Company was
incorporated by a special Act of the Parliament of Canada now known as the Canadian
National Railways Act (c. 172 of R.S.C., 1927). The application of the Railway
Act to the undertakings of the company was provided for in section 17 of
the Act, and the power to construct and operate railway lines was covered by
section 21 thereof. Section 21
[Page 245]
remained as it was up to the institution of
these proceedings; but section 17 was replaced (section 2 of c. 10, 19-20 Geo.
V) by a new section. The new section 17 is what falls to be considered. It runs
in part as follows:
17. (1) All the provisions of the Railway Act shall apply to the Company,
except as follows:
(a) such provisions as are
inconsistent with the provisions of this Act;
(b) the
provisions relating to the location of lines of railway and the making and
filing of plans and profiles, other than highway and railway crossing plans;
(c) such provisions as are
inconsistent with the provisions of the Expropriation
Act as made applicable to the Company by this Act.
(2) (a) All the provisions of the Expropriation Act, except where
inconsistent with the provisions of this Act, shall apply mutatis mutandis to the Company.
The first point to be noted in the section is
that “all the provisions of the Railway Act” apply to the company,
unless they are excluded by what follows. Now, if we look at what follows, we
find that, by subs. (6) some provisions of the Railway Act are specially
excepted. They are: “the provisions relating to the location of lines of
railway and the making and filing of plans and profiles, other than highway and
railway crossing plans.” The effect of the enactment is that the
provisions of the Railway Act relating to “highway and railway crossing
plans” are applicable to the Canadian National Railways. That was plainly the
intention of Parliament, as otherwise there would be no conceivable explanation
why those provisions should be expressly excepted from the exclusion prescribed
in subs. (b). To appreciate
the full meaning of this exception, it will be useful to consider the manner in
which the provisions referred to are grouped in the Railway Act. “Location
of Line” is the heading of a series of sections beginning with section 167 and
ending with section 188. They deal with the map showing the general location of
the proposed line of railway, the plan, profile and book of reference, the
deviations, the branch lines, the industrial spurs and the location of
stations. Then, passing a number of sections, we come to another series grouped
under the heading “Matters incidental to construction” beginning with section
244 and ending with section 275. In that group, under subheading “Crossings and
Junctions with other railways,” are
[Page 246]
sections 252 to 254 inclusive, and, under the
sub-heading “Highway crossings,” are sections 255 to 267 inclusive. It seems
obvious that what subs. (b) of 17(1) intends to exclude is the series of
sections of the Railway Act (167-188) under the heading “Location of
line”; and what it intends to preserve is the series of sections (252-267)
under the sub-headings “Crossings and Junctions with other railways” and “Highway
crossings.” It follows that sections 252, 255, 256 and 257 are preserved in any
event and also, by way of consequence, section 39; and that they apply to the
respondent, the Canadian National Railways. If that be so, we have not to
inquire further whether they are inconsistent with the Expropriation Act.
We should add however that we are unable to find
in the Special Act of the Canadian National Railways provisions inconsistent
with the sections of the Railway Act just referred to. As for the Expropriation
Act, plainly it cannot prevail against them. The effect of section 17-2 (a)
is to make the Expropriation Act applicable, “except when inconsistent
with the provisions of this Act,” i.e., the Canadian National Railways Act. It
is part of “this Act” (to wit: the Canadian National Railways Act) that
the provisions of the Railway Act relating to “highway and railway
crossing plans” should apply in any event (section 17-1-b). Therefore,
so far as they apply, they exclude the Expropriation Act. This is
further supported by section 17-1-(c). The only provisions of the Railway
Act thereby excluded are those that are inconsistent with the Expropriation
Act “as made applicable,” and this carries us back to the reasoning we have
just made.
Now, it would be interpreting the words “highway
and railway crossing plans” too strictly if they were held to apply only to
that part of the relevant sections dealing with the plans proper, as was argued
by The Montreal Tramways Company. That point was discussed by Viscount Dunedin
in the Boland case.
He said:
It does not seem to matter whether you read
the expression “plans” and “railway crossing plans” as including the
authorization of the construction of the crossing indicated by the plans, or if
you confine the word “plans” to the meaning of a piece of paper with a drawing
on it. In the latter view authorization of a railway crossing is not included
in the
[Page 247]
enumerated exceptions. In the former it is
included in the exception upon the exception, so that in either case the matter
remains subject to the Railway Acts.
The section so construed by the Judicial Committee
was the former section 17, before the amendment of 1929, but there was no
material change, at least so far as concerns the present appeals, and the
interpretation there given is conclusive on the matter: “The matter remains
subject to the Railway Acts.” And the same should be said about the Canadian
National Montreal Terminals Act, 1929 , which has reference to the two
Montreal subways. We do not agree with the appellants that the Terminals Act
is an Act by itself, nor that the whole power of the company to carry out
the Terminals scheme of development must be found exclusively in the Terminals
Act. In considering the question how far an enactment in a general statute
is varied or excepted by the Special Act, Lord Chancellor Westbury laid down
the following rule: that if the particular Act gives in itself a complete rule
on the subject, the expression of that rule would undoubtedly amount to an
exception of the subject-matter of the rule out of the general Act. (Ex
parte St. Sepulchre, In re The Westminster Bridge Act; London, Chatham &
Dover Ry. v. Board of Works for the Wandswork District.
The Terminals Act, 1929, does not in any
way give “a complete rule” on the subject matter of the present appeals. It
merely authorizes the Governor in Council to provide for the construction and
completion by the Canadian National Railway Company of certain works described
in a schedule attached to the Act. The St. Antoine street subway and the ďArgenson street subway are part of the works so described. The following
provision is to be found at the end of the schedule:
Nothing in this schedule is to be taken to
restrict the general powers of the company as expressed in the foregoing Act or
other Acts relating to the Company.
In no respect is the Act self-contained. The
powers therein referred to could never be carried out unless they were
implemented by the Canadian National Railways Act and by the provisions
of the other Acts applying under section 17 thereof. Far from detracting from
the powers of
[Page 248]
the Board of Railway Commissioners under
sections 252, 255, 256 and 257, the Act, on the contrary, implicitly confirms
those powers, as will be apparent by a reference to section 8:
8. Where streets or highways are affected
by the said works but are not crossed by the Company’s tracks or diverted
incidental to any such crossing and by reason thereof the Board of Railway
Commissioners for Canada has no jurisdiction under the Railway Act with respect thereto, etc.
The necessary inference is that the Board has
jurisdiction with respect to the crossings under the relevant sections of the Railway
Act.
The reference to crossings in section 8 is of
the same order as the exception in regard to crossings in section 17-1 (b) of the Canadian National Railways
Act previously discussed. It is consistent with it. It shows on the part of
Parliament continuous intention of preserving the jurisdiction of the Board in
matters of crossings. There is nothing to the contrary in section 9 of the Terminals
Act. It deals in a general way with the vesting in His Majesty of the lands
required for the undertaking and specifies out of what funds the compensation,
if any, is to be paid. Obviously it does not give the “complete rule on the
subject” which Lord Westbury said was the test as to whether “a general statute
is varied or excepted by the Special Act.” Section 9 does not deal with highway
or railway crossings and leaves untouched all that we have said in regard to
the application of sections 256, 257 and 39 of the Railway Act. It would
be a question how far section 9 may be resorted to as being “the provisions of
law at such time applicable to the taking of land by the company” referred to
in subs. 3 of 256 and subs. 2 of 257. But we have already indicated that the
occasion does not arise here.
Our conclusion is that the appellants fail in
their contention that there is, in any of the Acts they invoked, anything to
put an end to the application of sections 255, 256, 257 and 39 of the Railway
Act; and as, in our view, those sections support the impugned Orders, the
appeals should be dismissed.
We need not add that the Orders were competently
issued notwithstanding that three of the appellants affected are provincial
companies. The point is conclusively settled by several decisions of the
Judicial Committee (Toronto
[Page 249]
Corporation v. Canadian
Pacific Railway;
Toronto Railway Co. v. City of Toronto; Canadian Pacific Ry. v.
Toronto Transportation Commission.
In the course of the judgment, in dealing with
the matter of crossings, we have referred throughout to sections 255, 256 and
257 of the Railway Act as giving the law applicable in the
circumstances. With regard to the Montreal Tramways Company, the orders are
further supported by sections 252 and following relating to railway crossings.
They apply to the Tramways Company by force of section 8 of the Railway Act.
They are similar in all material respects to the sections relating to
highway crossings. If anything, the provisions therein conferring jurisdiction
on the Board are even more direct and decisive.
As for The Montreal Tramways Commission, it may
have a distinct interest in these appeals, but from the legal viewpoint its
position does not differ from that of The Montreal Tramways Company.
The appeals are dismissed with costs.
Appeals dismissed with costs.
Solicitor for the appellant, The Bell
Telephone Company of Canada: Pierre Beullac.
Solicitors for the appellant The Montreal
Light, Heat & Power Consolidated: Brown, Montgomery
& McMichael.
Solicitors for the appellant The Montreal
Tramways Company: Vallée, Vien, Beaudry, Fortier &
Mathieu.
Solicitors for the appellant The Montreal
Tramways Commission: Béique & Béique.
Solicitor for the respondent The Canadian
National Railways: Alistair Fraser.
Solicitors for the respondent The
Toronto, Hamilton and Buffalo Railway Company: J. A. Soule.
Solicitor for the respondent The City of
Hamilton: A. J. Poison.
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