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.

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.
Collection
Supreme Court Judgments
Date
1932-03-01
Report
[1932] SCR 222
Judges
Anglin, Francis Alexander; Duff, Lyman Poore; Newcombe, Edmund Leslie; Rinfret, Thibaudeau; Lamont, John Henderson
On appeal from
Canada
Subjects
Transportation
Decision Content
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. 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. 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 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 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. 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 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 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 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. 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. 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, 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[1]; Canadian Pacific Railway Co. v. Toronto Transportation Commission[2].
There is, of course, the decision in British Columbia Electric Ry. Co. v. Vancouver, Victoria and Eastern Ry. Co.[3] relied on by the appellants. But, as pointed out by co. Viscount Finlay in Toronto Railway Co. v. City of Toronto[4], 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[5], 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[6] ), 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 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[7], 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[8], 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 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[9]. In the Toronto Transportation case[10], 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[11], 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[12], 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. 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[13], 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[14].
It remains to consider whether, as the appellants contend, these are cases where the Railway Act “otherwise expressly 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; 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 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 m