Canadian National Railway Co. v. Brocklehurst, docket A-537-99

Date : 20001207

Dockets : A-537-99

A-729-99

A-741-99

CORAM :      THE CHIEF JUSTICE

         DÉCARY J.A.

         SEXTON J.A.

     Docket : A-537-99

BETWEEN :

     CANADIAN NATIONAL RAILWAY COMPANY

     Appellant

     - and -

     MARK BROCKLEHURST / CAROL SYRNYK

     ALISON J. BURNHAM

     TESSA M. CHALMERS

     ROB KERR

     PETER & MARGARET KRYSMANSKI

     MARY KAY MARTIN

     PETER D. PELLIER

     Respondents

    

     Docket : A-729-99

BETWEEN :

     CANADIAN NATIONAL RAILWAY COMPANY

     Appellant

     - and -

     RANDY and SUE TAYLOR

     Respondents

    

     Docket : A-741-99

BETWEEN :

     NORFOLK SOUTHERN RAILWAY COMPANY

     Appellant

     - and -

     RANDY TAYLOR and SUE TAYLOR

     Respondents

    

     Heard at Ottawa (Ontario) on Tuesday, November 7, 2000

     Judgment delivered at Ottawa (Ontario) on Thursday, December 7, 2000

REASONS FOR JUDGMENT BY:      DÉCARY J.A.

CONCURRED IN BY:      THE CHIEF JUSTICE

     SEXTON J.A

Date : 20001207

Dockets : A-537-99

A-729-99

A-741-99

CORAM :      THE CHIEF JUSTICE

         DÉCARY J.A.

         SEXTON J.A.

     Docket : A-537-99

BETWEEN :

     CANADIAN NATIONAL RAILWAY COMPANY

     Appellant

     - and -

     MARK BROCKLEHURST / CAROL SYRNYK

     ALISON J. BURNHAM

     TESSA M. CHALMERS

     ROB KERR

     PETER & MARGARET KRYSMANSKI

     MARY KAY MARTIN

     PETER D. PELLIER

     Respondents

    

     Docket : A-729-99

BETWEEN :

     CANADIAN NATIONAL RAILWAY COMPANY

     Appellant

     - and -

     RANDY and SUE TAYLOR

     Respondents

    

     Docket : A-741-99

BETWEEN :

     NORFOLK SOUTHERN RAILWAY COMPANY

     Appellant

     - and -

     RANDY TAYLOR and SUE TAYLOR

     Respondents

    

     REASONS FOR JUDGMENT

DÉCARY J.A.

[1]      The issue in these appeals is whether, under the new Canada Transportation Act which came into force in 1996 ( S.C. 1996, c. 10) ("the 1996 Act"), the Canadian Transportation Agency ("the Agency") has jurisdiction to deal with complaints concerning noise, smoke and vibrations resulting from duly authorized railway operations. Other issues which pertain to the nature of particular orders made by the Agency were raised in the event the Agency was found by this Court to have jurisdiction. As I have found that the Agency has no jurisdiction, I will not deal with these other issues.

THE FACTS

[2]      These three appeals have been heard together, as they raise substantially the same legal questions. They relate to two orders made by the Agency, the first one, on March 8, 1999 (Order No. 1999-R-123, Decision No. 87-R-1999, Court File No. A-537-99) ("the Oakville complaints"), the second, on July 6, 1999 (Order No. 1999-R-308, Decision No. 391-R-1999, Court Files Nos A-729-99 and A-741-99) ("the St. Thomas complaint"). Leave to appeal was given by the Court on July 6, 1999 and September 21, 1999, respectively. This set of reasons will dispose of the three appeals and an original will be filed in each of the three files.

[3]      The Oakville complaints were filed by eight residents living in the Eastlake community within blocks of the Oakville Yard. The complaints refer to noise and smoke that the Canadian National Railway Company ("CN") is allegedly causing by its shunting activities at the west end of the four south tracks of CN's Yard. The complainants were represented by counsel at the hearing of the appeal.

[4]      The St. Thomas complaint was filed by Randy and Sue Taylor regarding the noise, vibrations and diesel fumes emanating from idling diesel locomotives of the Norfolk Southern Railway Company stored in the CN St. Thomas Yard, near the complainants' residence in St. Thomas. These two complainants did not participate in the appeals.

[5]      Even though the complaints are with respect to noise, smoke and vibrations, I shall deal with them collectively, for ease of reference, as noise complaints.

THE CONTEXT

[6]      The Agency appeared as a respondent as of right pursuant to section 41 of the 1996 Act but its presentation was limited to matters of jurisdiction as was decided by this Court in Canadian Pacific Ltd. v. Canada (National Transportation Agency), [1992] 3 F.C. 145 (C.A.).

[7]      Prior to the coming into force of the Act in 1996, it was a well settled rule that where no lands had been taken by a railway company, a person injured by railway smoke, noise, vibrations or other injurious effects, could not recover compensation or other remedy under the relevant Railway Act and could only advance a complaint through a common law action of nuisance, if at all. (See Duthie v. Grand Trunk R.W. Co. (1905), 4 C.R.C. 304 (Board of Railway Commissioners); Holditch v. Canadian Northern Ontario R. Co. (1916), 27 D.L.R. 14 (Judicial Committee of the Privy Council), per Lord Sumner at 19; Powell v. Toronto, Hamilton and Buffalo Railway Company (1898), 25 Ont. App. R. 209 (C.A.), per Osler J.A. at 215, Maclennan J.A. at 218 and Moss J.A. at 220 and The Canadian Pacific Railway Company v. Albin (1919), 59 S.C.R. 151, per Anglin J. at 164ff.).

[8]      It comes as no surprise, therefore, that the Agency's predecessors¹ never asserted jurisdiction over these types of complaints. For a better understanding of their position, I think it will be helpful to quote large extracts from the decision of the Board of Railway Commissioners in Duthie, supra, paragraph 7:

The first points that arise relate to the jurisdiction and powers of the Board. It is important that, as occasion occurs, these should be carefully considered and defined in order that they may be well understood and, if found advisable, enlarged or diminished by Parliament. To assume jurisdiction which we do not possess and to shirk the exercise of that given us, would equally be breaches of duty.

Occasionally one hears or reads references which suggest that misconceptions prevail in this connection. Applications or complaints are made to us which are apparently based upon a hazy notion that the Board was created for the purpose of adjudicating upon any claim against or dispute with a railway company. For two reasons we are not to begin with the assumption that such was the purpose for which this Board was established:    (1) The Board is purely a creature of statute. The general principle applicable to such a body is that its jurisdiction is only such as the statute gives by its express terms or by necessary implication therefrom. (2) Our constitution assigns to the Provincial Legislatures the subjects of "property and civil rights in the Province" and "the administration of justice in the Province, including the constitution, maintenance and organization of Provincial Courts, both of civil and criminal jurisdiction, and including the procedure in civil matters in those Courts." (See B.N.A. Act 1867, sec. 92, sub-secs. 13, 14). Corporations created by the Parliament of Canada are ordinarily subject to the provincial laws relating to property and civil rights, and, primâ [sic ] facie, civil claims against them should be prosecuted in the Provincial Courts [...]

[at page 311]

Throughout the Act, the Board is authorized to make orders of various kinds directing or requiring acts to be done, or sanctioning, approving or prohibiting other acts. In other cases the Act itself, or the Special Act incorporating the company, or authorizing the construction of the particular railway, requires or prohibits various acts. It is for the purpose of enforcing and carrying out this legislation that the Board is given the general jurisdiction defined by sec. 23. It is a statutory body, created to carry out the legislation of Parliament dealing with railways and the companies operating them. It is not created for the purpose of enforcing the rights or duties which are imposed or created by provincial laws, written or unwritten, or even by any enactments of the Parliament of Canada except those dealing with the particular subjects of legislation with which the Railway Act deals. To enable the Board to adjudicate upon a matter, the matter must be one as to which the Board is, by some provision of the Railway Act or the Special Act expressly empowered or directed to act, or it must relate to some violation of the Railway Act or the Special Act, or of some regulation, order or direction made thereunder.

[at page 314]

That is, the business of the Board is to enforce the railway legislation of the Dominion Parliament, and, for that purpose, to order the performance of some acts and to prohibit others. It was not created to supplant, or event to supplement, the Provincial Courts in the exercise of their ordinary jurisdiction, but to exercise an entirely different jurisdiction, though, perhaps, occasionally overlapping that of the Provincial Courts.

[at page 315]

A consideration of these statutes appears to shew that there should be no primâ [sic] facie presumption, arising from the creation of such a tribunal, that it is intended to have the power to give every kind of relief for violations of the Railway Acts; and the English Act shew that the existence of such powers is not necessarily to be inferred from the authority to "determine" a complaint.

The subjects with which the Canadian Board has authority to deal are much more numerous than those with which either the English or the United States Commission can deal. It would be absolutely impossible for this Board to entertain and try any considerable number of the actions for damages brought throughout Canada based upon alleged injuries arising out of infractions of the Railway Act, and at the same time discharge effectively the various duties otherwise assigned to it by statute. It is probable that the framers of the Act were fully sensible of this, and omitted, on that account, the express authority to award damages given by the Imperial Act. If any such authority to award damages should ever be given to the Board, it should, in my opinion, be of a very limited character and confined to matters similar to those with which the Railway and Canal Commission in Great Britain has to deal.

[at page 317]

[9]      What is there, then, in the 1996 Act, that has triggered the Agency's sudden interest in complaints over which it had admittedly no jurisdiction until then? I will say at the outset that it would be a strange twist of events if a statute adopted at a time when deregulation, particularly in regard to day-to-day affairs of railway companies, was the goal of the Government, had vested the Agency, for the first time in history, with jurisdiction over complaints of that sort. To quote from the speech made in the House of Commons by the Honourable David Anderson, Minister of Transport, when moving for the third reading of Bill C-14 (which eventually became the Canada Transportation Act of 1996),

[t]o sum up, the objectives for rail which the bill meets successfully are: to promote the long term viability of railways; to foster the creation of short lines; to preserve key shipper rights; to preserve rail service to communities to the extent possible; and to reduce the regulatory burden on railways. It has been an enormous undertaking.

In easing the regulatory burden that had been placed on rail in the past, over 1,000 pages in various statutes have been reduced to just 100. In doing so the bill lifts regulatory intrusions into the railways' day to day business affairs. Most important, the bill streamlines the rail line rationalization process. This is the most effective legislative means of bolstering the railway's efforts to cut costs.

(House of Commons Debates ( 26 March1996) at1212).

THE STANDARD OF REVIEW

[10]      A word, first, on the applicable standard of review of the impugned decisions of the Agency. The test has been set out by Strayer J.A. in Metropolitan Toronto (Municipality) v. Canadian National Railway Co., [1998] 4 F.C. 506 at 516:

[...] the standard of review is correctness, with some deference owed to this expert tribunal on legal questions other than those of a jurisdictional nature [...]

That no deference is to be shown to a tribunal with respect to its decision on a question of jurisdiction, has been confirmed by Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at 1005, para. 28.

[11]      The question addressed herein being one of pure jurisdiction, no deference is owed to the view of the Agency.

THE RELEVANT LEGISLATIVE PROVISIONS

[12]      In support of the Agency's jurisdiction, the respondents and the Agency rely essentially on what they say is the combined effect of sections 95 and 37 of the 1996 Act. Here is the text of these provisions as well as the text of some of the other provisions I shall be referring to in the course of my reasons:

PART I      ADMINISTRATION      Canadian Transportation Agency [...]      Powers of Agency [...] 26. The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency.    27. (1) On an application made to the Agency, the Agency may grant the whole or part of the application, or may make any order or grant any further or other relief that to the Agency seems just and proper.

PARTIE I      ADMINISTRATION      Office des transports du Canada [...]      Attribution de l'Office [...]    26. L'Office peut ordonner à quiconque d'accomplir un acte ou de s'en abstenir lorsque l'accomplissement ou l'abstention sont prévus par une loi fédérale qu'il est chargé d'appliquer en tout ou en partie.    27. (1) L'Office peut acquiescer à tout ou partie d'une demande ou prendre un arrêté, ou, s'il l'estime indiqué, accorder une réparation supplémentaire ou substitutive.

[...]      Inquiries    37. The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency. [...]

[...]      Enquêtes    37. L'Office peut enquêter sur une plainte, l'entendre et en décider lorsqu'elle porte sur une question relevant d'une loi fédérale qu'il est chargé d'appliquer en tout ou en partie. [...]

PART III      RAILWAY TRANSPORTATION [...]      Division II      Construction and Operation of Railways [...]      General Powers of Railway Companies    95. (1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:      (a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;      (b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;      (c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;      (d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and      (e) do anything else necessary for the construction or operation of the railway.    (2) The railway company shall do as little damage as possible in the exercise of the powers.    (3) If the railway company diverts or alters anything mentioned in paragraph (1)(b) or (d), the company shall restore it as nearly as possible to its former condition, or shall put it in a condition that does not substantially impair its usefulness.    (4) The railway company shall pay compensation to a person who sustains actual loss or damage from the exercise of the powers and the compensation must equal the amount of the loss or damage that the company would be liable to pay the person if the powers had not been conferred by statute.

PARTIE III      TRANSPORT FERROVIAIRE [...]      Section II      Construction et exploitation des chemins de fer [...]      Pouvoirs généraux    95. (1) Sous réserve des autres dispositions de la présente partie ou de toute autre loi fédérale, la compagnie de chemin de fer peut, pour la construction ou l'exploitation d'un chemin de fer :      a) faire ou construire des tunnels, remblais, aqueducs, ponts, routes, conduites, égouts, piliers, arches, tranchées et clôtures, le long ou en travers d'un chemin de fer, d'un cours d'eau, d'un canal ou d'une route que son chemin de fer croise ou touche;      b) détourner ou changer les cours d'eau ou les routes, ou en élever ou abaisser le niveau, afin de les faire passer plus commodément le long ou en travers du chemin de fer;      c) faire des drains ou conduites dans, à travers ou sous des terres contiguës au chemin de fer, afin de drainer l'emplacement du chemin de fer ou d'y amener l'eau;      d) détourner une conduite d'eau ou de gaz, un égout ou drain ou en changer la position, et déplacer des lignes, fils ou poteaux télégraphiques, téléphoniques ou électriques, le long ou en travers du chemin de fer;      e) faire tout ce qui est par ailleurs nécessaire à cette fin.    (2) Elle doit limiter les dommages au minimum dans le cadre de l'exercice de ses pouvoirs.    (3) Si elle détourne, déplace ou change l'un ou l'autre des ouvrages énumérés aux alinéas (1)b) et d), elle doit le remettre autant que possible dans son état original ou dans un état tel que son utilité n'en soit pas notablement amoindrie.       (4) Elle verse à quiconque subit des pertes ou dommages réels du fait de l'exercice de ses pouvoirs une indemnité égale au montant des pertes ou dommages dont elle serait redevable si ses pouvoirs n'étaient pas d'origine législative.

WHETHER THE AGENCY ADMINISTERS SECTION 95

[13]      The Agency interprets sections 26 and 37 to mean that once the Agency administers part of an Act of Parliament, it is deemed to be administering the whole of the Act and is therefore the appropriate authority unless the Act expressly says otherwise. I do not agree with that interpretation. The two sections, in my view, give jurisdiction to the Agency either with respect to the whole of a statute should the Agency be generally mandated by the statute to administer it, or with respect to parts of a statute should the Agency be specifically mandated by the statute to administer parts only of the statute.

[14]      The 1996 Act contains no provision conferring upon the Agency the power, duty or function of administering the whole Act. It is indeed noteworthy that neither section 26 nor section 37 refer expressly to the very statute in which they are found. The statute, however, contains numerous provisions that confer upon the Agency jurisdiction with respect to the administration of specific parts of the Act. Unless section 95 is one such provision, the Agency has no jurisdiction with respect to that section.

[15]      Section 95 defines the "general powers" which a railway company may exercise for the purpose of constructing or operating its railway. It makes no reference to the Agency. It gives no power to the Agency. When Parliament intended to give the Agency jurisdiction over parts of a statute, it did so in express terms². And when it intended to give the Agency a role in the determination of some form of compensation, it also did it expressly³.

[16]      Indeed, in the present case, the Agency acknowledges that it has no jurisdiction to determine the compensation to be paid under subsection 95(4), presumably for the very reason that it has never had it in the past and that the 1996 Act does not expressly give it to the Agency. Yet it argues that it has jurisdiction with respect to subsections 95(1), (2) and (3). I have difficulty understanding the Agency's position that subsection 95(4) is severable from the whole section and that the silence of Parliament with respect to the jurisdiction of the Agency is of significance when subsection 95(4) is at issue, but of no significance when the rest of the section is at issue.

[17]      The 1996 Act, the Railway Safety Act, supra, and the Railway Relocation and Crossing Act, supra, were drafted with such minute details in so far as the jurisdiction of the Agency is concerned, that one cannot assume that the absence of any reference to the Agency in section 95 was not intended. It is simply not possible, in the context of the relevant statutes, to interpret section 95 as being a provision implicitly conferring some jurisdiction upon the Agency.

WHETHER SECTION 95 CONFERS JURISDICTION WITH RESPECT TO NOISE COMPLAINTS

[18]      In the event the above conclusion is incorrect and that the Agency is vested with some jurisdiction under section 95, it remains to be seen whether the section can be interpreted in such a way as to vest the Agency with jurisdiction over complaints of the type at issue.

[19]      The respondents and the Agency essentially argue that the general powers of a railway company are all enumerated in subsection 95(1) and that even though there is no specific mention of a power to make noise, shunting or idling railway cars and locomotives are a fundamental aspect of railway operations and cannot be performed without making noise. As the argument goes, shunting or idling are "necessary for the [...] operation of the railway" and therefore are captured by paragraph 95(1)(e). As railway companies "shall do as little damage as possible" pursuant to subsection 95(2) when making noise in their operations, making as little noise as possible becomes something railway companies are required to do under the 1996 Act and the Agency has jurisdiction pursuant to section 26 to require railway companies to do as little noise as possible.

[20]      The argument ignores the history and the evolution of Canadian legislation in the area of rail transportation when it suggests that section 95 now contemplates all the powers that are exercised by railway companies and that it now permits noise complaints with respect to day-to-day operations of railway companies.

[21]      Throughout the long history of Canadian railway legislation, a distinction has been made between provisions granting "general powers" to railway companies for the purpose of constructing a railway, and provisions regulating the day-to-day operations of a railway company when exercising its powers.

[22]      The "general powers" that are of interest in these appeals were found in sections 90, 91 and 92 of The Railway Act of 1888 (c. 29). They were continued in sections 118, 119 and 120 of The Railway Act, 1903; in sections 151, 154 and 155 of the Revised Statutes of 1906 (c. 37); in sections 162, 163 and 164 of The Railway Act, 1919 (c. 68) and of the Revised Statutes of 1927 (c. 170); in sections 164, 165 and 166 of the Revised Statutes of 1952 (c. 234); in sections 102, 103 and 104 of the Revised Statutes of 1970 (c. R-2) and finally, in sections 106, 107 and 108 of the Revised Statutes of 1985 (c. R-3). The provisions remained substantially the same throughout the years.

[23]      The provisions dealing with day-to-day operations have been present since 1919, in the form in which they appear in c. R-3 of the Revised Statutes of 1985 even though some of them may be traced back to section 214 of The Railway Act of 1888 and to sections 25 and 30, and 243 and 307, respectively, of The Railway Act, 1903 and of c. 37 of the Revised Statutes of 1906. Beginning with The Railway Act, 1919, the provisions appear in a section of the Act dealing with "Operation and Equipment" which comprises section 287, under the title "Order and Regulations of the Board", and section 290, under the title "By-Law, Rules and Regulations of Company". These sections made their way, unchanged, to the 1985 consolidation, as sections 287 and 290 of c. 170 of the Revised Statutes of 1927, sections 290 and 293 of c. 234 of the Revised Statutes of 1952, section 227 and 230 of c. R-2 of the Revised Statutes of 1970 and finally, as sections 230 and 233 of c. R-3 of the Revised Statutes of 1985.

[24]      Dealing first with the day-to-day operations of railway companies, they were subject, as I have indicated, to two different sets of provisions. On the one hand, a provision (section 287 in The Railway Act, 1919) gave the Board of Railway Commissioners the power to make orders and regulations with respect to twelve items, including the rate of speed at which trains could be run in a city, the use of a whistle within any city, the coupling of cars, the number of employees, the hours of duty. The last item is worth quoting at length:

(l) generally providing for the protection of property, and the protection, safety, accommodation and comfort of the public, and of the employees of the company, in the running and operating of trains and the speed thereof, or the use of engines, by the company or on or in connection with the railway.

l) Concernant généralement la protection des biens et la protection, la sûreté, la commodité et le confort du public et des employés de la compagnie dans le service et dans la marche des trains et leur vitesse, ou dans l'emploi des locomotives par la compagnie, sur le chemin de fer ou pour les besoins de chemin de fer.

[25]      On the other hand, a section (section 290 in The Railway Act, 1919) gave the railway company, "subject to the provisions and restrictions in this and in the Special Act contained, and subject to any orders or regulations of the Board [...]", the power to make by-laws, rules and regulations respecting eight items, including the mode by which, and the speed at which any rolling stock was to be moved, the schedule of trains, the smoking of tobacco and the commission of any nuisance in or upon trains, stations, or other premises occupied by the company and "the due management of the affairs of the company". Subsection 293(1) required the company to submit these by-laws, rules and regulations, "except such as relate to tolls and such as are of a private or domestic nature and do not affect the public generally", to the Governor in Council for approval.

[26]      These two sets of provisions remained virtually unchanged from their introduction in The Railway Act, 1919 up to their inclusion as chapter R-3 in the 1985 consolidation. They now have either disappeared from the legislation or been captured by the Railway Safety Act of 1988, the Canada Transportation Act of 1996 and the Railway Relocation and Crossing Act (R.S.C. 1985, c. R-4). It is fair to say, without going into any further details, that essentially, the power of control which the Board and then the Commission exercised over the day-to-day operations of railway companies was in part simply abolished and in part transferred to the Minister of Transport, to be exercised by him with very little intervention by the Agency.

[27]      It is interesting to note that in a recent amendment to the Railway Safety Act (S.C. 1999, c. 9), a new section 3 appeared, which describes the objectives of the Act as follows:

OBJECTIVES    3. The objectives of this Act are to      (a) promote and provide for the safety of the public and personnel, and the protection of property and the environment, in the operation of railways:      (b) encourage the collaboration and participation of interested parties in improving railway safety;      (c) recognize the responsibility of railway companies in ensuring the safety of their operations; and      (d) facilitate a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety.      [my emphasis]

OBJECTIFS    3. La présente loi vise à la réalisation des objectifs suivants :      a) pourvoir à la sécurité du public et du personnel dans le cadre de l'exploitation des chemins de fer et à la protection des biens et de l'environnement, et en faire la promotion;      b) encourager la collaboration et la participation des parties intéressées à l'amélioration de la sécurité ferroviaire;      c) reconnaître la responsabilité des compagnies de chemin de fer en ce qui a trait à la sécurité de leurs activités;      d) favoriser la mise en place d'outils de réglementation modernes, flexibles et efficaces dans le but d'assurer l'amélioration continue de la sécurité ferroviaire.      [mes soulignements]

[28]      Dealing now with the "general powers", I cannot see how section 95 can be interpreted in such a way as to vest the Agency with a jurisdiction over noise complaints, when under the new Act the Agency no longer exercises control over the day-to-day operations of railway companies, when the general powers of railway companies are no longer all described in railway acts or in special acts and when the section is couched in terms remarkably similar to those of the provisions it replaces. All these factors point to a diminished, rather than to an increased role for the Agency.

[29]      Under the earlier legislation, as I have explained, the exercise of the "general powers" was subject to the control of the Board of Railway Commissioners in matters pertaining to day-to-day operations. With the advent of deregulation, the control, if any, over these operations was generally transferred to the Minister of Transport.

[30]      The earlier list of "general powers" was intended to describe, subject to other powers conferred by the Railway Act and the relevant Special Act, all the powers that could be exercised by a railway company. The same cannot of course be said of the list contained in section 95, which is subject to the provisions of "any other Act of Parliament". It is apparent, when one examines the list of "general powers" enumerated in subsection 95(1) of the 1996 Act, that it is an abbreviated and modernized list of the powers described in the earlier legislation. A new, shortened list was rendered necessary if only to take into account the fact that the general powers of railway companies were no longer to be found in railway acts or in special acts, but were to be found from now on in such diverse statutes as the Canada Business Corporations Act (R.S.C. 1985, c. C-44), the Railway Safety Act, the Railway Relocation and Crossing Act, or the Canada Transportation Act. The heading "general powers" is the source of much of the confusion; it is clearly inadequate to describe the specific powers which are now enumerated in section 95.

[31]      To illustrate the remarkable continuity in the language used by Parliament otherwise than in the list of powers, there is no better way but to reproduce from The Railway Act of 1888 parts of section 90 (which listed seventeen "general powers") as well as the totality of sections 91 and 92:

GENERAL POWERS.    90.    The company may, subject to the provisions in this and the special Act contained :--    (a.)    Enter into and upon any lands of Her Majesty without previous license therefor, or into and upon the lands of any person whomsoever, lying in the intended route or line of the railway [...]    (d.)    Make, carry or place the railway across or upon the lands of any person on the located line of the railway [...]    (e.)    Fell or remove any trees which stand within six rods from either side of the railway [...]    (g.)    Make or construct in, upon, across, under or over any railway, tramway, river, stream, watercourse, canal or highway which it intersects or touches, temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, drains, piers, arches, cuttings and fences ;    (h.)    Divert or alter, as well temporarily as permanently, the course of any such river [...]    (q.)    Do all other acts necessary for making, maintaining, altering or repairing, and using the railway.    91.    The company shall restore as nearly as possible to its former state any river, stream, watercourse, high way, water-pipe, gas-pipe, sewer or drain, or any telegraph, telephone or electric light wire or pole which it diverts or alters, or it shall put the same in such a state as not materially to impair its usefulness.    92.    The company shall, in the exercise of the powers by this or the special Act granted, do as little damage as possible, and shall make full compensation, in the manner herein and in the special Act provided, to all parties interested, for all damage by them sustained by reason of the exercise of such powers.

POUVOIRS GÉNÉRAUX.    90.    La compagnie pourra, sauf les dispositions du présent acte et de l'acte spécial :--    (a.)    Pénétrer sur tous terrains appartenant à Sa Majesté, sans autorisation préalable, ou sur ceux appartenant à toute personne quelconque, situés sur la voie ou ligne projetée du chemin de fer [...]    (d.)    Faire, construire ou placer le chemin de fer à travers ou sur les terrains de toute personne quelconque [...]    (e.)    Abattre ou enlever les arbres jusqu'à la distance de six perches de chaque côté du chemin de fer [...]    (g.)    Faire ou construire dans, sur, à travers, au-dessous ou au-dessus de tout chemin de fer, tramway, rivière, cours d'eau, ruisseau, canal ou grande route qu'il croisera ou touchera, des plans inclinés, tunnels, remblais, aqueducs, points, chemins, voies, passages, conduites, égouts, piliers, arbres, tranchées, et clôtures, d'une nature temporaire ou permanente ;    (h.)    Détourner ou changer, d'une manière temporaire ou permanente, le cours de toutes telles rivières [...]    (q.)    Faire toutes autres choses nécessaires pour la construction, l'entretien, le changement, la réfection ou la réparation et l'usage du chemin de fer.    91.    La compagnie remettra autant que possible en son premier état toute rivière, cours d'eau, ruisseau, grande route, conduite d'eau, conduite de gaz, égout ou drain, ou tout fil ou poteau de télégraphe, de téléphone ou de lumière électrique, qu'elle détournera ou déplacera, ou bien elle les mettra dans un état tel que leur utilité n'en soit pas essentiellement amoindrie.    92.    La compagnie ne fera, dans l'exercice des pouvoirs conférés par le présent ou par l'acte spécial, que le moins de dommages possible, et indemnisera, de la manière prescrite par le présent et par l'acte spécial, tous les intéressés, pour tous dommages qu'elle leur aura causés par suite de l'exercice de ces pouvoirs.

[32]      As can be readily seen, the obligation of a railway company "to do as little damage as possible", to restore "as nearly as possible" and to pay "compensation" has always been, and still is, related to the exercise by a railway company of its listed "general powers". The only substantial change brought in 1996 with respect to that obligation has to do with compensation. Until then, compensation was to be "in the manner herein and in the special Act provided", the "herein" referring to the relevant Railway Act. It is precisely that "manner" of compensation which was said by the Privy Council in Holditch, supra, paragraph 7, not to include claims in respect of noise. In the 1996 Act, reference is no longer made to the "manner" of compensation and there are no longer any provisions dealing with that "manner". As I have noted earlier, the Agency does not suggest that it has jurisdiction to determine the compensation referred to in subsection 95(4).

[33]      The Agency and the respondents have put much emphasis on the wording of paragraph 95(1)(e), "do anything else necessary for the construction or operation of the railway", which, they argue, encompasses day-to-day operations such as shunting activities and idling of locomotives.

[34]      This suggested interpretation runs contrary to the whole context of the legislation which I have just described. Furthermore, it runs contrary to a literal interpretation of the section.

[35]      Paragraphs (a), (b), and (d) refer only to works done "across or along the railway" and paragraphs (c) refers only to water works "through or under land adjoining the railway". In this context one cannot interpret the words "anything else necessary" in paragraph (e) otherwise than referring to any other type of work that needs to be done across, or along, or under a railway to enable the company to construct a railway and then to be in a physical position to operate it. These four powers relate to the use of adjoining lands by railway companies; they do not relate to the use or the enjoyment of use of those lands by their owners or occupiers. One wonders why subsection 95(1) would enumerate four specific powers in (a), (b), (c), and (d) if in any event, (e) was an omnibus provision encompassing all possible powers needed for the day-to-day activities of a railway company.

[36]      This case is in my view quite similar to that of Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13">2000 SCC 13, where Major J. resorted to the "ejusdem generis" or limited class rule to interpret the words "or other matter or thing" in the Municipal Act of British Columbia:

It is my opinion that the legislature, by including the phrase "or other matter or thing", did not intend to expand the scope of s. 936 to allow municipalities to declare almost anything to be a nuisance. I accept the respondent's submission that to construe that phrase as creating a third class of potential nuisance would effectively negate the purpose of including rather specific preceding language.

[at para. 21]

[37]      Clearly, subsection 95(1) is no more intended than its predecessors were, to address the issue of the liability of railway companies arising out of their day-to-day operations. Complainants such as the respondents still have to go through common law actions of nuisance if they allege that a railway company is making too much noise in its day-to-day operations. In that regard, the recent decision of the Supreme Court of Canada in Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at 236 is an interesting illustration of the use in common law of the concept of "public nuisance" as applied to activities of railway companies.

[38]      In the end, I reach the conclusion that even if the Agency could entertain complaints relating to the exercise by railway companies of their "general powers" under section 95, the complaints at issue do not relate to the exercise by the appellants of these powers. The Agency had no jurisdiction to hear the complaints and to issue the impugned Orders.

DISPOSITION

[39]      The appeals should be allowed and the orders of the Canadian Transportation Agency Nos. 1999-R-123 and 1999-R-308 should be quashed for lack of jurisdiction. There should be no order as to costs.

     "Robert Décary"

     J.A.

"I agree

     J. Richard C.J."

"I agree

     J. Edgar Sexton J.A."

__________________

¹    These predecessors are: the Board of Railway Commissioners for Canada established by The Railway Act, 1903 (S.C. 1903, c. 58) and continued under the name of the Board of Transport Commissioners for Canada by The Transport Act, 1938, (S.C. 1938, c. 53); the Canadian Transport Commission established by the National Transportation Act (S.C. 1966-67, c. 69); and the National Transportation Agency established by the National Transportation Act, 1987, (S.C. 1987, c. 34) and continued under the name of the Canadian Transportation Agency by the Canada Transportation Act of 1996 (S.C. 1996, c. 10).

²    See, in the 1996 Act, sections 90 (issuance of certificate of fitness), 98 (construction of railway line), 101 (road and utility crossings), 102 (private crossings), 112 (rates and conditions of service), 117 to 120 (some limited powers with respect to tariffs), 121 to 125 (joint rates), 127 and 128 (interswitching), 129 to 136 (competitive line rates), 137 (limiting carriers's liability), 138 and 139 (running rights and joint track usage), 140(2) (determination of a yard track for purposes of transfer and discontinuation), 156 (accounting), 157 (determination of costs), 159 to 169 (final offer arbitration), 170 to 172 (transportation of persons with disabilities), 177 to 181 (administrative monetary penalties). See, also, section 3 of the Railway Relocation and Crossing Act , R.S.C. 1985, c. R-4, as amended (joint urban development and transportation plans).

³    See sections 101(4), 138(3), 145(5) of the 1996 Act, sections 16, 24(2), 25(3) and 26 of the Railway Safety Act , R.S.C. 1985 (4^th Supp.), c. 32 and sections 14 and 15 of the Railway Relocation and Crossing Act, supra.