Supreme Court of Canada
Thompson Transportation Commission v. Can. Nat. Rys. and City of Toronto, [1930] S.C.R. 94
Date: 1929-09-26
The Toronto Transportation
Commission Appellant;
and
Canadian National Railways
and The Corporation of The City of Toronto Respondents.
1929: May 29, 30; 1929: September 26.
Present: Anglin C.J.C. and Mignault,
Newcombe, Lamont and Smith JJ.
ON APPEAL FROM THE BOARD OF RAILWAY
COMMISSIONERS FOR CANADA
Railways—Order of Board of Railway
Commissioners for Canada against corporation operating street railway system
for contribution to cost of reconstruction of bridge over steam railway
tracks—Railway Act, R.S.C., 1927, c. 170, ss. 257, 259, 252, 51, 37, 39, 44
(3)—Jurisdiction to make the order under the Act—Jurisdiction of Parliament of
Canada to confer such jurisdiction on the Board.
By an agreement in 1884, involving the
closing of a road and the substitution of what is now Main
street in the city of Toronto (the area in question being later annexed to the city), the
respondent railway company’s predecessor undertook at its own expense to erect
and maintain a bridge to carry the new highway (Main
street) over its tracks. In 1919 the City applied to
the Board of Railway Commissioners for Canada for an order requiring the railway company to construct a new
bridge, the old bridge, though sufficiently strong, being then too narrow to
accommodate the traffic. By order of July 3, 1920, the Board directed
construction of a new bridge at the sole cost of the railway company. Up to
that time no street railway had crossed said tracks, but the approved plans of
the new bridge were so drawn that it would have sufficient strength to carry
street railway traffic. Appellant took over the operation of the street
railways of the city in 1921. It built a line crossing over the new bridge,
completing it in July, 1922, and, the Board having held that such crossing was
within the prohibition of s. 252 of the Dominion Railway Act, the
appellant (on application made without prejudice to its claim that leave of the
Board was unnecessary) obtained, in October, 1922, temporary permission so to
cross. The railway company had, in June, 1922, applied for an order requiring
appellant to contribute to the cost of the bridge and for re-opening of the
whole question of cost, alleging mistake of the Board as to the facts when
making its order of July 3, 1920; and said permission to appellant to cross was
expressly made “pending decision of the Board” upon those matters. Since that
time appellant has continuously operated its cars over the bridge. In 1926 the
Board granted the railway company’s application (on said grounds alleged) for
reconsideration of the order of July 3, 1920, and in January, 1928, made an
amending order requiring certain contributions from the City and from
appellant. From this order appellant appealed on the ground of want of
jurisdiction.
[Page 95]
Held (Mignault
J. dissenting): The order in appeal was within the Board’s jurisdiction under
the Railway Act, whether viewed as an exercise of its powers under ss.
257 and 259 upon an application for permission to cross under s. 252 made by
appellant, or viewed merely as a case in which the Board was “reviewing” and “altering
or varying” (s. 51) its former order as to payment of the cost of the bridge.
S. 39 applied to the order for construction of the bridge (Toronto Ry. Co. v.
Toronto, [1920] A.C. 426, at pp. 435, 6, 437-8); appellant was a company “interested or affected by” that
order within the meaning of s. 39 (1), and it was within the Board’s jurisdiction
under s. 39 (2) to determine by whom, and in what proportions the cost should
be borne. (The Vancouver case, [1914] A.C. 1067, distinguished). The
order for contribution complained of could have been made when the order for
construction was made in 1920, had the present circumstances then existed, and
ss. 37 and 51 enabled it to be made in 1928. The Board having jurisdiction, the
mode of its exercise and the consequent burdens imposed were not matters open
for consideration in this Court (s. 44 (3)).
Per Mignault
J., dissenting: The Board had not jurisdiction under the Act to make the order
complained of. A mere benefit to be derived by appellant from the
reconstruction of the bridge would not give such jurisdiction (the existence of
such a benefit would not constitute an interest within the meaning of s. 39).
An application under s. 252 for permission to cross a Dominion railway does not
by itself confer jurisdiction to make the applicant contribute; so the
appellant’s application for leave to lay its tracks on the widened bridge could
not be relied on as a foundation for the jurisdiction. The facts did not come
within the language of s. 257; there was no railway “already constructed upon,
along or across any highway” (under the 1884 agreement the highway was carried
ever the railway by the bridge which was part of the highway); the order for
reconstruction was not made for “the protection, safety and convenience of the
public” (any danger to the public had been eliminated by the existing bridge).
The application for reconstruction was “a matter between the corporation and
the railway company alone,” that is to say, between the parties to the
agreement of 1884. The matter was “one merely of street improvement” (Reasons
in the Vancouver case, [1914] A.C. 1067, as explained in the Toronto case,
[1920] A.C. 426, applied).
Held, also,
that the Parliament of Canada had jurisdiction to confer upon the Board the
authority to compel contribution from the appellant, a provincial corporation,
under the circumstances of the case.
APPEAL (by leave given as hereinafter
mentioned; and upon a settled statement of facts) by the Toronto Transportation
Commission (a corporation established under c. 144 of the Ontario statutes of
1920, and being the administrative body charged with the operation of the
street railways in the city of Toronto, all of which belong to the City) from
an order of the Board of Railway Commissioners for Canada directing that the
appellant pay ten per cent. of the cost of a bridge over the tracks of the
[Page 96]
respondent, Canadian National Railways, on Main street, in the city of Toronto. The material facts of the case are
sufficiently stated in the judgments now reported, and are indicated in the
above headnote. Leave to appeal was given by the Board on the following
question:
“Had the Board of Railway Commissioners for
Canada, under the circumstances of this case, jurisdiction under the Railway
Act (Canada) to provide in
order No. 40120, dated January 3, 1928, that the Toronto Transportation Commission
should contribute to the cost of the work referred to in such order?”
and leave to appeal was given by Mignault J.
on the following further question
“Should the answer to the question submitted
by leave of the Board of Railway Commissioners for Canada be in the affirmative, had the Parliament of Canada jurisdiction to
confer upon the said Board authority to compel contribution from the Toronto
Transportation Commission, a provincial corporation, towards the cost of the
above described work under the circumstances of this case?”
The appeal was dismissed with costs, Mignault
J. dissenting.
D. L. McCarthy, K.C., and I. S. Fairty,
K.C., for the appellant.
E. Lafleur, K.C., for the respondent, Canadian National Railways.
G. R. Geary, K.C., for the respondent, the City of Toronto.
The judgment of the majority of the court
(Anglin C.J.C. and Newcombe, Lamont and Smith JJ.) was delivered by
Anglin C.J.C.—The question before us is whether the Board of Railway
Commissioners for Canada had
jurisdiction to require the appellant Transportation Commission to contribute
one-tenth of the cost of a bridge which crosses Main
Street over the tracks of the respondent Railway
System at a point in the eastern part of the City of Toronto.
[Page 97]
By an order of a judge of this Court, giving
leave to appeal, two questions are propounded:
(1) Whether the Railway Act, R.S.C.,
1927, c. 170, purports to confer such jurisdiction;
(2) Whether, if it does so, that legislation is intra
vires of the Parliament of Canada?
The material facts may be stated as follows:
Dawes Road formerly
crossed on the level the tracks of the Grand Trunk Railway Company, a
predecessor of the present Canadian National Railways System. In 1884, by an
agreement between the Railway Company and the Township of York, in which the situs
was at that time, Dawes Road was closed and the portion thereof lying
between the lines of its right of way projected was conveyed to the Grand Trunk
Railway Co., the present Main Street, which crosses the railway tracks at right
angles, being substituted therefor; and the railway company then undertook at
its own expense to erect and maintain a bridge to carry the new highway over
its tracks.
In 1919, the area in question having in the
interval been annexed to the city, the City of Toronto applied to the Board for
an order requiring the Grand Trunk Railway Co. to construct a new bridge at
Main Street; although the bridge theretofore in use was sufficiently strong, it
was then too narrow to accommodate the traffic using it.
On July 3, 1920, by order No. 29923, the Board
directed the construction of the new bridge, at the sole cost of the Railway
Company; and plans for this bridge were subsequently approved by the Board.
Although, up to this time, no street railway had
crossed the tracks of the G.T.R. at Main Street, the plans and specifications
of the new bridge were, at the instance of the City, so drawn that it would
have sufficient strength to carry street railway traffic, to provide for which,
as the Chief Commissioner points out, it was then contemplated might be
necessary. This involved additional outlay.
The appellant corporation took over the
operation of the street railways of the City of Toronto in September, 1921. It found two unconnected street railway lines
existing, one on Danforth Avenue and the other on Gerrard Street; and,
[Page 98]
in, or prior to June, 1922, it determined to
build a line on Main Street, to
be carried over the new bridge, for the purpose of connecting those two
existing lines. The new tracks over the bridge were completed about the 15th of
July, 1922. Meantime, the Grand Trunk Railway Co. had applied to the Board, on
the 19th of June, for a declaration that the Board’s consent for the crossing
of its tracks by the street railway system had not been had and for an order
requiring the appellant to pay a share of the cost of the bridge, and, on the
22nd of June, for an order to permit the re-opening of the whole question of
cost of the bridge, alleging that there had been mistake as to the facts, on
the part of the Board, when making its former order No. 29923, imposing such
cost wholly on the Railway Company.
Upholding the contention of the Railway Company
that the case fell within the prohibition of s. 252 of the Railway Act and
that the approval of the Board must be obtained before the intended crossing
could be made, the Board suggested that the Transportation Commission should
seek a temporary permission to cross with its street cars. Such application
having been made by that Commission, the Board, by order No. 32956, made on the
10th of October, 1922, granted it permission to use the Main Street bridge to cross the Grand Trunk
tracks
temporarily, and pending decision of the
Board upon all matters involved in the application of the Railway Company
herein that the Board review the question of the allocation of the cost of the
bridge.
Since that time the appellant has continuously
operated its street cars over the bridge.
By subsequent order No. 37366, made on the 4th
of March, 1926, the Board granted the application of the Grand Trunk Railway
Co. for a reconsideration of order No. 29923 of the 3rd of July, 1920, dealing
with the cost of the Main Street bridge, holding that it had been shewn that
that order had been made under a misapprehension of then existing facts; and,
by order No. 40120, made on the 3rd of January, 1928, the Board directed that
order No. 29923 be amended so as to provide that the cost of reconstructing the
bridge over the tracks of the Canadian National Railways at Main Street shall
be borne and paid “60 per cent. by the applicants, 30 per cent. by the City of Toronto and 10 per cent.
[Page 99]
by the Toronto Transportation Commission”. It is from this latter order that the
present appeal is taken by the Transportation Commission.
Section 39 of the Railway Act 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, altered,
installed, operated, used or maintained, it may, except as otherwise expressly
provided, order by what company, municipality or person, interested or affected
by such order, as the case may be, and when or within what time and upon what
terms and conditions as to the payment of compensation or otherwise, and under
what supervision, the same shall be provided, constructed, reconstructed,
altered, installed, operated, used and maintained.
2. The Board may, except as otherwise expressly provided, order by whom,
in what proportion, and when, the cost and expenses of providing, constructing,
reconstructing, altering, installing, and executing such structures, equipment,
works, renewals, or repairs, or of the supervision, if any, of the continued
operation, use or maintenance thereof, or of otherwise complying with such
order, shall be paid.
By s. 51 the Board is empowered to “review,
rescind, change, alter or vary any order or decision made by it * * *.” With
respect to any matter already dealt with by it, this section enables the Board
to make any order in review which it might have made were such matter res integra. No doubt this power should be
exercised sparingly and circumspectly, as the Chief Commissioner’s judgment
shews he realized. But whether circumstances exist which justify its use must
be a matter almost exclusively within the Board’s discretion. It is difficult
to appreciate how the exercise of this power in an order otherwise
unexceptionable can per se give rise to a question of jurisdiction.
Section 252 prohibits the railway lines or
tracks of any railway company (s. 2 (21) ) being carried across any railway
lines or tracks other than those of such company unless leave therefor has been
obtained from the Board.
Section 257 empowers the Board, in cases of
existing crossings, to make stipulations “as to the protection, safety and
convenience of the public as it deems expedient * * *.”
Section 259 is as follows:
259. Notwithstanding anything in this Act, or in any other Act, the Board
may, subject to the provisions of the next following section of this Act, order
what portion, if any, of cost is to be borne respectively by the company,
municipal or other corporation, or person in respect of any order made by the
Board, under any of the last three preceding sections, and such order shall be
binding on and enforcible against any railway company, municipal or other
corporation or person named in such order.
[Page 100]
Whether the order against which this appeal is
taken be viewed as an exercise by the Board of the powers conferred by ss. 257
and 259 upon an application for permission to cross under s. 252 made by the
appellants, or whether it should be viewed merely as a case in which the Board
is “reviewing * * * and altering or varying” (s. 51) an order or decision
already made by it in regard to the payment of the cost of the bridge in
question, its jurisdiction to make the order now in appeal seems to us to be
indubitable.
The appellant Transportation Commission was, in
our opinion, clearly a company “interested or affected by” the order for the
construction of the new bridge within the meaning of subs. 1 of s. 39. That
section applies to such an order (Toronto Ry. Co. v. Toronto), and, therefore, it was within the
jurisdiction of the Board under subs. 2 thereof to determine by whom, and in
what proportions, the cost and expense of the construction thereby directed
should be borne. That the appellant is not a company “interested or affected by”
order No. 29923 is scarcely arguable. If the present circumstances had existed
in 1920, the Board might have made order No. 40120 when making order No. 29923.
Sections 37 and 51 enabled it to make order No. 40120 in 1928.
In the Vancouver case, the order of the Board was not made under
s. 39 (then s. 59) and did not come within its provisions (p. 1075), as Lord
Finlay points out in the Toronto case.
The order made in the case at bar was, as was held in regard to that before the
Judicial Committee in the case last cited,
in substance mandatory and (was) made for
the convenience and protection of the public with regard to the crossing of the
railways. What was done may have improved the street, but it was certainly not
a mere matter of street improvement.
Whether the circumstances justified the
discretion exercised by the Board in apportioning the cost of the bridge as it
did is a matter with which we are not concerned, the only question before us
being that of jurisdiction. If, as we find, the Board is given jurisdiction in
the premises, the mode of its exercise of such jurisdiction and the consequent
[Page 101]
burdens imposed are not matters open for
consideration here. (s. 44(3)).
This disposes of the first question submitted,
dependent for its solution on the construction of the relevant railway
legislation.
On the other question:—Of the constitutional
validity of the railway legislation under discussion, there is, in our opinion,
not the slightest doubt. Toronto Ry. Co. v. Toronto.
The appeal fails and must be dismissed with
costs.
Mignault J. (dissenting).—This is an appeal by leave partly of the Board of
Railway Commissioners for Canada, hereinafter called the Board, and partly of a
judge of this Court, from an order of the Board of January 3, 1928, No. 40120, directing that the appellant pay 10 per cent. of the cost of a bridge
over the tracks of the Canadian National Railways at Main
Street in the city of Toronto. It was argued at the same time as the appeal of this appellant in
the case of the Bloor Street
and Royce Avenue subways, and
the statement of facts in the latter case will be here supplemented in so far
only as the present case differs from the other one.
The respondent, Canadian National Railways, is
the successor of the Grand Trunk Ry. Company of Canada. Prior to 1884, a
public highway, Dawes Road, crossed
on the level the tracks of the Grand Trunk from southwest to northeast, at a
pronounced angle. By an agreement of June 25,
1884, between the Corporation of the Township of York, where this
crossing then lay, and the Grand Trunk, Dawes Road was closed up and conveyed
to the Railway, and a new highway opened, now Main Street, crossing the railway
at right angles by means of a bridge which the Grand Trunk agreed to build and
keep in repair at its own expense.
The district was then a suburban one, but it has
since been annexed to the city of Toronto, and its population has very notably increased. In 1914 the City of Toronto made an
application to the Board for authority to construct a subway under the tracks
of the Grand Trunk at Main Street, The application remained in abeyance during
the
[Page 102]
war, and in 1919 the City applied to the Board
for the reconstruction of the bridge. This bridge was physically strong enough
for any traffic offering, but it was inadequate in width for such traffic. On
June 17, 1920, the Board delivered judgment ordering the construction of the
new bridge at the sole cost of the Railway. Pursuant to this judgment, on July
3, 1920, the Board issued its order, No. 29923, requiring the Railway to
construct before September 30, 1921, a bridge with a 46 foot roadway, and with
ten foot sidewalks on each side. Plans for the bridge were approved by the
Board and the bridge was completed and opened for traffic on December 1, 1921.
The appellant, the character and functions of
which were described in the other case, was
constituted on August 3, 1920, but did not assume the management of the Toronto
street railways until September 1, 1921. The city had street railway lines on Danforth Avenue and Gerrard street, and in June, 1922, the appellant
decided to connect these lines with a line on Main
Street running over the new bridge.
It accordingly commenced to lay tracks on Main Street, which tracks were practically
completed on July 15, 1922. Permission for the crossing had not been obtained
from the Board, land on June 19, 1922, the Grand Trunk applied to the Board for
an order declaring that the Board’s consent for the crossing had not been
obtained, and for an order that the appellant pay a share of the cost of the
bridge, and on June 26, 1922, for an order re-opening the whole question of
cost upon the ground that the Board, in its former judgment, had been in error
on the facts.
It should be mentioned here that when the Board
ordered the construction of the new bridge at the sole expense of the Railway,
it had declined to follow the decision of the House of Lords in Sharpness
New Docks v. Attorney General,
and had applied instead a principle it had laid down in a previous case (City
of Hamilton v. Canadian Pacific et al),
expressed as follows:
When a railway company excavates and cuts
away a portion of a highway, they should be compelled to replace that highway
by a substructure capable of carrying everything which the earth itself as it
then existed would carry.
[Page 103]
When the application of the railway company
asking that the appellant be ordered to pay a share of the cost of the bridge
came before the Board, the appellant took the ground that the Board’s approval
for the crossing was unnecessary, but the Board ruled against this contention,
and suggested that the appellant might apply, without prejudice, for a
temporary permission to cross with its cars. This application was made and the
Board, by order 32956, permitted the appellant,
temporarily, and pending decision of the
Board upon all matters involved in the application of the Railway Company
herein that the Board review the question of the allocation of the cost of the
bridge,
to cross the railway upon the highway known as
Main Street. Since then the appellant has operated its cars over the new
bridge.
By order No. 37366 of March 4, 1926, the Board
reopened the question of the cost of the bridge upon the ground that it had
proceeded in error in assuming that the facts of the case brought it within the
principle of City of Hamilton v. Canadian Pacific (1) above
referred to.
Finally the order appealed from, No. 40120, of
January 3, 1928, distributed the cost of the bridge as follows: 60 per cent. to
be paid by the Canadian National, 30 per cent. by the City of Toronto, and 10 per cent. by the present
appellant.
By order No. 41782, of November 21, 1928, the
Board gave to the appellant leave to appeal to this Court from the order just
mentioned on the following question:
“Had the Board of Railway Commissioners for Canada, under the circumstances of this
case, jurisdiction under the Railway Act (Canada) to provide in order No. 40120, dated January 3, 1928, that the
Toronto Transportation Commission should contribute to the cost of the work
referred to in such order?”
Leave to appeal was granted by me to the
appellant on the further question expressed as follows:
“Should the answer to the question submitted by
leave of the Board of Railway Commissioners for Canada be in the affirmative,
had the Parliament of Canada jurisdiction to confer upon the said Board
authority to compel contribution from the Toronto
[Page 104]
Transportation Commission, a provincial
corporation, towards the cost of the above described work under the
circumstances of this case?”
A preliminary point must be disposed of before
discussing the merits of the appeal. Could the Board, after having ordered that
the Grand Trunk should construct the new bridge, which, the statement of facts
admits, involved its construction “at the sole cost and expense of the Railway”,
re-open the question of cost and order the appellant to pay ten per cent. of
the expenditure?
Section 51 of the Railway Act enacts that
the Board may review, rescind, change,
alter or vary any order or decision
made by it, or may rehear any application before deciding it.
This language seems wide enough to allow the
Board to alter or vary its decision. Of course, as observed by Mr. Commissioner
Boyce, the power to re-open or review any matter already passed upon should not
be exercised unless there is clearly a doubt in the mind of the Board as to the
correctness of the former decision, or there be submitted new facts not before
the Board at the time the decision was made, or unless the conditions have
changed. But this does not go to the jurisdiction of the Board, which is the
only point with which we are concerned. And I think section 51 permitted the
Board to alter its previous decision, if it had jurisdiction otherwise to make
the order complained of.
There is, however, a much more serious point
which did not arise in the other case where
it was obvious that in replacing the level crossings by subways, the Board had
acted under section 257 of the Railway Act for “the protection, safety
and convenience of the public.”
The question involved is whether under the circumstances
there was jurisdiction in the Board to order the appellant to contribute to the
cost of the widened bridge. This requires consideration of two judgments of the
Judicial Committee:—British Columbia Electric Ry. Co. v. Vancouver,
Victoria and Eastern Ry. and Navigation Co., (hereinafter called the Vancouver case),
and Toronto Railway Co. v. Toronto,
(hereinafter called the Toronto case). The binding effect of the former
decision must be
[Page 105]
taken to be that stated by their Lordships in the
latter case, pp. 440 and following.
There was, however, a deliberate pronouncement
by the Privy Council in the Vancouver case, as to the jurisdiction of the Board,
which was not dissented from by their Lordships in the Toronto case. Speaking of the order under review in the
former case, Lord Moulton said (p. 1075):—
The fundamental error underlying the
decision of the Railway Board is that they have considered that the fact that
the tramway company would be benefited by the works gave them jurisdiction to
make them pay the cost or a portion of it. There is nothing in the Railway Act
which gives any such jurisdiction.
We must therefore take it that a mere benefit to
be derived by a body in the position of this appellant from the reconstruction
of the widened bridge would not give the Board jurisdiction to order it to pay
a portion of the cost. In other words, the existence of such a benefit would
not constitute an interest within the meaning of section 39 of the Railway
Act. The jurisdiction of the Board to order that a person or corporation
contribute to the cost of a construction must exist independently of any
benefit which that person or corporation may derive from the construction
contemplated.
It should also be noted that in the Toronto case
the purport of the decision in the Vancouver case was
thus stated by Lord Finlay (p. 442):—
The judgment (in the Vancouver case) proceeds on the principle that the
assent of the Board was asked merely because the viaduct would cross the
Dominion railway, and that this gave no jurisdiction to make the Electric
Company pay the costs of construction. (The italics are mine.)
This must mean that an application under section
252 of the Railway Act for permission to cross a Dominion railway does
not by itself confer jurisdiction on the Board to make the applicant contribute
to the cost of the construction. So the application by the appellant for leave
to lay its tracks on the widened bridge—and this application was made under
reserve of all its rights—cannot be relied on as a foundation for the
jurisdiction which the Board has assumed in ordering the appellant to pay a
portion of these costs.
[Page 106]
Section 257 of the Railway Act must now
be considered. It is predicated on the assumption that a railway “is already constructed upon, along or across any
highway”. The facts here do not come within this language, nor can it be said
that the order with which we are concerned was made for “the protection, safety
and convenience of the public”, as contemplated by section 257. The railway in
question was not constructed upon or across the highway. Since 1884, under an
agreement with the municipality, the highway was carried over the railway by
means of a bridge which the Grand Trunk undertook to build and maintain at its
own expense, and which was a part of the highway. At the date of the order this
bridge was in every way of sufficient strength for any traffic offering, but to
accommodate an increase of traffic occasioned by an increase in population, a
much wider bridge was considered necessary.
It follows therefore, to use Lord Moulton’s
language, quoted in the Toronto case,
“that the application was a matter between the corporation and the railway
company alone”, that is to say between the parties to the agreement of 1884,
and this, as Lord Finlay said, was “the keynote” of the judgment in the Vancouver
case. It is
pertinent to add that the matter was so considered when the Board made its
first order for the reconstruction of the bridge. Certainly, to borrow again
Lord Finlay’s language, the order here, as well as in the Vancouver case, did not proceed “on any consideration
of danger arising from the level crossing (there was no level crossing in this
case), or as having anything to do with the railway as such”. If in the Vancouver case the matter could be treated “as one
merely of street improvement”, we have certainly here a “street improvement”
effected in order to accommodate increased traffic upon the highway. No
question arose as to “the protection, safety and convenience of the public” in
connection with a railway crossing, any danger to the public having been
eliminated by the existing bridge.
The only distinction I can find between the Vancouver case and the presenione (That the proper
grade of the streets was a consideration in the former case does not,
[Page 107]
in my opinion, amount to a substantial
difference), is that in the Vancouver case
the order was permissive while here it is mandatory. However, it seems clear
that if the circumstances do not give the Board jurisdiction to make a
permissive order, they could hardly be relied on to confer upon it jurisdiction
to render its order mandatory.
In substance the Railway Act, as far as
applicable to a case like the one under consideration, has not been changed
since the two decisions of the Judicial Committee. It is true that section 39
(the former section 59) now refers to the case where the Board, in the exercise
of any power vested in it, “directs or permits” any structure, etc., and this
probably makes any distinction between a permissive and a mandatory order
immaterial. But as the matter stands, I cannot see how it can be contended that
the Vancouver case, as explained in the Toronto case, does not fully apply here.
This appears to me decisive of the issue, and I
am unable to support the jurisdiction of the Board to make the order complained
of.
I would answer the first question in the
negative. The second question by its terms does not require to be answered.
I would allow the appeal with costs and set
aside the order in so far as the appellant is concerned.
Appeal dismissed with costs.
Solicitor for the appellant: Irving S. Fairty.
Solicitor for the respondent, Canadian
National Railways: Allistair Fraser.
Solicitor for the respondent; the
Corporation of the City of Toronto: C. M.
Colquhoun.
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