B.C. Electric Ry. Co. v. v. v. and E. Ry. and Navigation Co. and the City of Vancouver

B.C. Electric Ry. Co. v. v. v. and E. Ry. and Navigation Co. and the City of Vancouver
Collection
Supreme Court Judgments
Date
1913-05-06
Report
(1913) 48 SCR 98
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
B.C. Electric Ry. Co. v. v. v. and E. Ry. and Navigation Co. and the City of Vancouver, (1913) 48 S.C.R. 98
Date: 1913-05-06
The British Columbia Electric Railway Co. Appellants;
and
The Vancouver, Victoria and Eastern Railway and Navigation Co. and The City of Vancouver Respondents.
1913: April 7; 1913: May 6.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.
Constitutional law—Provincial tramway—Jurisdiction of Board of Railway Commissioners — Highways — Overhead crossings—Apportionment of cost—Legislative jurisdiction—Ancillary powers—“Interested parties”—Construction of statute—“Railway Act” R.S.C., 1906, c. 37, ss. 8, 59, 237, 238—(B.C.) 8 & 9 Edw. VII., c. 32—“B.N.A. Act, 1867,” s. 92, item 10.
On an application by the City of Vancouver, the Board of Railway Commissioners for Canada authorized the Corporation of the City of Vancouver to construct overhead bridges across the tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and ordered that a portion of the cost of construction of two of these bridges and of the depression of the tracks at the crossings thereof by the Dominion railway should be borne by a tramway company which derived its powers through provincial legislation and an agreement with the city pursuant to such legislation under which it operated its tramways upon these streets. By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city and the company respecting their grading, repair and maintenance, and it was provided that the city should receive a share of the gross earnings of the tramway company. On appeal to the Supreme Court of Canada from the order of the Board:— Held, Duff and Brodeur JJ. dissenting, that, in virtue of sections 81(a), 59, 237, and 238 of the “Railway Act,” R.S.C., 1906, ch. 37, as amended by chapter 32 of 8 & 9 Edw. VII., the Board of Railway Commissioners for Canada had jurisdiction to determine the “interested parties” in respect of the proposed works and to direct what proportion of the cost thereof should be borne by each of them. The City of Toronto v. Canadian Pacific Railway Co. ((1908) A.C. 54); Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours ((1899) A.C. 367); City of Toronto v. Grand Trunk Railway Co. (37 Can. S.C.R. 232); County of Carleton v. City of Ottawa (41 Can. S.C.R. 552), and Re Canadian Pacific Railway Co. and York (25 Out. App. R. 65), followed.
Per Duff and Brodeur JJ., dissenting.—(1) The Parliament of Canada, when it assumes jurisdiction, under the provisions of item 10 of section 92 of the “British North America Act, 1867,” in respect of a provincial railway, quâ railway, must assume such jurisdiction over the work or undertaking “as an integer.” (2) The order of the Board cannot be sustained as being made in the exercise of the Dominion power of taxation. (3) As there is no Dominion interest concerned in the provisions of the order under appeal, and the Dominion Parliament has no power to compel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the Board of Railway Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway company. (4) The cases cited above must be distinguished as they do not sustain, as a valid exercise of ancillary power by Dominion authority, any enactment professing to control a provincial railway company.
(Note.—Leave to appeal to the Privy Council was granted on 14th July, 1913.)
APPEAL from the order of the Board of Railway Commissioners for Canada, dated on the 14th of October, 1912, in so far as it directs the appellants to pay a proportion of the cost of overhead crossings at the intersections of the tracks of their tramway by Hastings and Harris Streets, in the City of Vancouver, B.C., upon the ground that the Board had no jurisdiction to order the appellants to pay any part of the cost of such works.
The order appealed from is recited in full in the judgment of Mr. Justice Duff, at page 108 of this report.
R. A. Pringle K.C. and E. Lafleur K.C. for the appellants. Upon the true construction of section 8 of the “Railway Act,” and of sections 91 and 92 of the “British North America Act, 1867,” the Board had no jurisdiction over the electric tramway of the appellants, the appellant company being a provincial corporation, operating a provincial tramway only in the City of Vancouver, and having no connection with any railway or tramway outside the Province of British Columbia, and not subject to the provisions of the Dominion “Railway Act,” nor to the jurisdiction of the Board.
The first point to be considered is whether or not that Act of itself gives jurisdiction in such a case as the present. Section 8 reads as follows: “Every railway, steam or electric street railway or tramway, the construction or operation of which is authorized by special Act of the legislature of any province, and which connects with or crosses or may hereafter connect with or cross any railway within the legislative authority of the Parliament of Canada, shall, although not declared by Parliament to be a work for the general advantage of Canada, be subject to the provisions of this Act relating to (a) the connection or crossing of one railway or tramway with or by another, so far as concerns the aforesaid connection or crossing.” We note particularly the definite distinction made between “a railway connected with or crossing any railway within the legislative authority of the Parliament of Canada,” and, “a railway declared by Parliament to be a work for the general advantage of Canada,” shewing that, in the mind of the legislature, a railway which connects with a railway having a Dominion charter does not by reason of such connection become a railway declared by Parliament to be a work for the general advantage of Canada. Section 8 of the “Railway Act” should be limited in its application to such provincial railways as connect, either directly or indirectly, with lines extending beyond the limits of the province, and in view of the provisions of the “British North America Act,” it could not have been the intention to subject provincial lines, having no such connection, to the provisions of the “Railway Act,” The Act must be interpreted as dealing with matters properly subject to the legislative authority of the Parliament of Canada, and it would be contrary to the spirit of the Act to make it apply to purely provincial undertakings.
The Board had no jurisdiction under sections 237 and 238 of the “Railway Act” as amended by chapter 32 of 8 & 9 Edw. VII., sec. 5, or under any other section of said Act, to order the appellants to pay any proportion of the cost of the bridges referred to in the order.
We crave leave to refer to the following authorities: Montreal Street Railway Co. v. The City of Montreal[1]; Attorney-General for Ontario v. Attorney-General for Canada[2], at p. 360; City of Montreal v. Montreal Street Railway Co.[3]; Maxwell’s Interpretation of Statutes (4 ed.), pp. 163, 211; Colquhoun v. Heddon[4]; Merritton Crossing Case[5]; Duthie v. Grand Trunk Railway Co.[6].
Andrew Haydon, for respondents, the Vancouver, Victoria and Eastern Railway and Navigation Company. We do not admit that the portion of the cost of constructing the crossings referred to in the order complained of is equitable as against us, and consider that a larger portion of the cost of construction should have been apportioned to be paid by the British Columbia Electric Railway Co.
In The City of Toronto v. Canadian Pacific Railway Co.[7], it was held that sections 187 and 188 of the “Railway Act” of 1888 were intra vires of the Parliament of Canada. These sections were reproduced in the Act of 1903 as sections 186 and 187. In the consolidation, chapter 37, R.S.C., 1906, section 186 appears somewhat more in detail as section 237, and section 187 appears as section 238. Both of these sections were repealed and new sections, considerably amplified but having the same objects in view, were re-enacted in 1909, by chapter 32 of 8 & 9 Edw. VII. Consequently it is not now open to the appellants to contend that these sections are ultra vires. See, also, Grand Trunk Railway Co. v. Attorney-General of Canada[8]; The City of Montreal v. Montreal Street Railway Co.[9]. An important feature in the latter case is that the judgment only purports to deal with subsection (b) of section 8, and it is stated that upon the other sub-sections it is unnecessary to express an opinion. It is submitted that sub-section (a) of section 8 is intra vires of the Parliament of Canada. The federal legislation in connection with this matter is as follows: “Railway Act,” 51 Vict., ch. 29, sec. 4; amended by 63 & 64 Vict. ch. 23, sec. 1; and the “Railway Act,” 1903, 3 Edw. VII., ch. 58, sec. 7.
The control over the physical crossing should rest In some one body; that body cannot be the legislature of the province. The safety of the public travelling on a federal line of railway is of importance. The difficulties referred to in the judgment of the Judicial Committee in the Montreal Street Railway Case[10], arising out of dual control, do not exist in the present case. If the Parliament of Canada has not control over the matter of crossings, it would he possible for a provincial line, by building across the proposed route of a federal line, to prevent the construction of the federal line connecting one province with another. It necessarily follows from the fact that Parliament is given power to authorize the construction of lines connecting one province with another, that it must have complete jurisdiction over the matter of ordering such crossings, and, as incidental thereto, the making of orders for protection and safety of the public at such crossings.
For the purpose of carrying out the building of a federal railway, Parliament is empowered to take provincial lands. Attorney-General for British Columbia v. Canadian Pacific Railway Co.[11].
J. G. Hay for respondent, the City of Vancouver. The decision of the Board in respect to all questions of law and fact cannot now be considered; their decision thereon is final; James Bay Railway Co. v. Grand Trunk Railway Co.[12]. The order complained of is intra vires and is justified under sections 8(a), 59(2), 237(2) (3), and 238 of the “Railway Act.” The Dominion had authority to make these enactments, and also the amendment effected by 8 & 9 Edw. VII., ch. 32, secs, 4 and 5, such legislation being necessary to carry out the ancillary control germane to the subject: City of Montreal v. Montreal Street Railway Co.[13], at p. 346; Cushing v. Dupuy[14]; Tennant v. Union Bank[15]; Re Canadian Pacific Railway Co. and County and Township of York[16], at p. 72; Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours[17]; City of Toronto v. Grand Trunk Railway Co.[18], per Girouard J., at p. 238, Davies J., at pp. 240, 241, 243, and 244, Idington J., at p. 248; Grand Trunk Railway Co. v. Attorney-General of Canada[19]; City of Toronto v. Canadian Pacific Railway Co.[20], per Collins L.J., at p. 58; City of Montreal v. Montreal Street Railway Co.[21], per Idington J., at pp. 213 and 215 to 217; Duff J., at pp. 227, 230, 231 and 232; Girouard J., at p. 200; Anglin J., at pp. 237 to 246 and the cases there exhaustively collected and quoted; also the same case on appeal to Privy Council13, at p. 346. While it was held that sub-section (b) of section 8 of the “Railway Act” was ultra vires, no such decision was given as to sub-section (a) and the subject matters of the two provisions are dissimilar. In the present case there is no attempt to interfere with or regulate the affairs of the appellants quâ railway, but it is ordered to pay a certain proportion of cost in like manner as if it had been any other kind of a corporate body or any natural person.
The appellant cannot escape because of being incorporated by or exercising powers given by a provincial legislature. If such an argument were sound the city or any municipality or joint-stock company created by and under the exclusive legislative control of the provincial legislature could escape liability, and municipalities have time and again been held liable in just such cases as the present. Re Canadian Pacific Railway Company and County and Township of York[22], at p. 570; City of Toronto v. Grand Trunk Railway Co.[23], at p. 244; City of Toronto v. Canadian Pacific Railway Co.[24]; County of Carleton v. City of Ottawa[25]; MacMurchy and Denison “Railway Law of Canada” (2 ed.), p. 27. If such an argument were sound the present “Railway Act” would be practically unworkable and useless in very many respects.
Even if section 8(a) were alone relied on, the present case is one of “connection or crossing.” That for the protection of the crossing it is necessary to elevate the appellants’ tracks and the city streets for some distance on each side of the actual point of contact of the tracks can surely make no difference. That is a matter entirely for the Board to determine. By section 59 the Board may order any “person” interested to pay the cost or a portion thereof. The appellant is a “person” interested. By section 34, sub-section (20): “Person” includes any body corporate and politic. City of Toronto v. Grand Trunk Railway Co.23, at p. 242; City of Toronto v. Canadian Pacific Railway Co.24, at p. 59. On the evidence there is no doubt that the appellants are not only interested, but directly benefited by the proposed work, and the Board so found.
Under sub-section (3) of section 238 of the “Railway Act,” as amended by 8 & 9 Edw. VII., ch. 32, sec. 4, power is not limited to persons “interested,” but is extended to any municipality “or other corporation or person.” The provisions of the “Railway Act” of 1888 (secs. 187 and 188), under which many of the cases in point have been decided, limited the power to “any person interested.” The decision of the Board as to whether or not the appellant is a person or party interested is one of fact which cannot be interfered with. Even if it is not a question in fact the Board’s decision is still conclusive and binding and cannot be reviewed on this appeal. “Railway Act,” sec. 26, sub-sec. (5); sec. 54, sub-sec. 3; sec. 56, sub-sec. 9; Re Canadian Pacific Railway Co. and County and Township of York[26], at p. 569;[27], at p. 73; Re Grand Trunk Railway Co. and City of Kingston[28]; City of Toronto v. Grand Trunk Railway Co.[29], at pp. 238 and 239; Grand Trunk Railway Co. v. Village of Cedar Dale[30]; County of Carleton v. City of Ottawa[31]; MacMurchy and Dennison’s Railway Law of Canada (2 ed.), p. 27.
R. A. Pringle K.C. and E. Lafleur K.C. for the appellants.
J. G. Hay for respondent,
The Chief Justice.—I am of opinion that the Board had jurisdiction to hear the application and give the relief asked for by the municipality with respect to the highway bridge and to assess the cost upon the parties interested.
I would dismiss the appeal with costs.
Davies J. agreed with Anglin J.
Idington J.—It seems to me quite clear that the Board had jurisdiction to make the order complained of. Unless we hold that a local railway company concerned in a crossing of a Dominion railway is something superior to and more sacred than a mere municipal corporation, the principle applicable to the case is completely covered by authority.
There was a railway constructed by the Dominion railway company now in question before the change in the law which section 238a of the Act brought about, and a part of it across the streets in question so that we must look at the law as decided relative to the older railways.
Every “person interested” had been theretofore held liable to contribute. Municipal corporations were held to be liable. It dawned at last on some part of the stupid public when the doctrine was pushed rather far, that railway companies, like others, ought to furnish the expenses of averting the dangers they had created.
But even then section 238a was the utmost Parliament could see its way to give in way of relief from such a state of things.
It seems idle to say it can be relied on for relief herein against an old railway simply by reason of its needing new sidings.
The appeal should be dismissed with costs.
Since writing the foregoing I have had the privilege of reading my brother Duff’s opinion and may be permitted to add that, though I cannot see my way to distinguishing between a municipality having jurisdiction over a street and a street railway company running over a street, yet I never have been able to understand how making others pay for their right-of-way and incidental protection against the dangers they have created, or may create, is a necessarily incidental part of the powers of Parliament over a certain class of railways. In my dissenting judgment in the case of City of Toronto v. Grand Trunk Railway Co.[32], at pages 244 et seq., I tried to shew that it never had been so intended originally, and if the words used could be held wide enough it was not intra vires Parliament to so enact. The recoil, from the mode of treatment of the power of Parliament which prevailed in that and other cases, came in the Montreal Street Railway Case[33]. And section 238a above referred to, seems to indicate a railway can be built and run without such powers. Then, if so, wherein is the incidental necessity for pretending to exercise such a power? Unless necessarily incidental to efficient exercise of the power Parliament has it not, and seems by section 238a to have written the condemnation of such an exercise of power. However, until the courts above pass further I must, as I view the results of the appeals thereto, bow to and follow what seems to me the principle thereof.
Duff J. (dissenting).—This is an appeal by the British Columbia Electric Railway Co. from an order made by the Board of Railway Commissioners, dated the 14th October, 1912, which is as follows:—
ORDER OF BOARD.
Order No. 17,840.
Monday, the 14th day of October, A.D. 1912.
H. L. Drayton, K.C., D’Arcy Scott,
Chief Commissioner. Asst. Chief Commissioner.
James Mills, A. S. Goodeye,
Commissioner. Commissioner,
Upon the hearing of the application at the sittings of the Board held in the City of Vancouver on the 29th day of July, 1912, the applicant, the Vancouver, Victoria and Eastern Railway and Navigation Company, and the British Columbia Electric Railway Company being represented by counsel at the hearing, the evidence offered and what was alleged; and upon the reading of the answer filed on behalf of the British Columbia Electric Railway Company and the reply of the Vancouver, Victoria and Eastern Railway and Navigation Company—
It is ordered as follows:—
1. The applicant is hereby authorized to construct Hastings Street, Pender Street, Keefer Street, and Harris Street across the tracks of the Vancouver, Victoria and Eastern Railway and Navigation Company, in the said City of Vancouver, by means of overhead bridges, as shewn on the plan filed with the Board under file No. 20062; detail plans of the said structures to be submitted for the approval of the chief engineer of the Board.
2. Twenty per cent. of the cost of the actual construction work at each of the crossings on Pender and Keefer (Streets, not to exceed in each case the sum of $5,000, shall be paid out of the Railway Grade-Crossing Fund; twenty-five per cent. of the remainder of the cost of such work shall be borne and paid by the applicant and seventy-five per cent. by the Vancouver, Victoria and Eastern Railway and Navigation Company. Twenty per cent. of the cost of constructing Harris Street bridge, not to exceed the sum of $5,000, shall be paid out of the Railway Grade-Crossing Fund; twenty per cent. of the remainder of such cost to be paid by the applicant, twenty per cent. by the British Columbia Electric Railway Company, and sixty per cent. by the Vancouver, Victoria and Eastern Railway and Navigation Company. Twenty per cent. of the cost of constructing the Hastings Street bridge shall be paid by the applicant, twenty per cent. by the British Columbia Electric Railway Company and sixty per cent. by the Vancouver, Victoria and Eastern Railway and Navigation Company.
3. The cost of depressing the tracks of the Vancouver, Victoria and Eastern Railway and Navigation Company shall be included in the cost of the work.
4. The cost of maintaining the said Keefer, Pender, Harris and Hastings Street bridges shall be borne and paid, fifty per cent. by the applicant and fifty per cent. by the Vancouver, Victoria and Eastern Railway and Navigation Company.
5. In case of dispute between the parties in carrying out the terms of this order, the same shall be settled by the chief engineer of the Board.
(Sgd.) H. L. Drayton,
Chief Commissioner.
Board of Railway Commissioners for
Canada.
Examined and certified as a true copy
under section 23, “The Railway Act.”
(Sgd.) A. D. Cartwright,
Sec. of Board of Raihoay
Commissioners for Canada.
Ottawa, Oct. 25th, 1912. There are several grounds of appeal. It will be convenient first to consider the contention that the order in question is so far as it professes to direct the appellants to pay a portion of the cost of the overhead bridges which the municipality is thereby authorized to construct is an order which the Parliament of Canada could not empower the Board of Railway Commissioners to make. The Vancouver, Victoria and Eastern Railway is a railway originally authorized by the Legislature of British Columbia, but afterwards declared to be a work for the general advantage of Canada and thereby brought under the jurisdiction of Parliament. The British Columbia Electric Railway Co., which I shall refer to as the Electric Company, is a company which under an Act of the Legislature of British Columbia has power to operate an electric railway in Vancouver upon obtaining the consent of the municipality, and the Electric Company and the municipality respectively are authorized to enter into an agreement respecting the grading and maintenance of the highways through and upon which the electric railway runs. I shall have to refer in the course of this judgment to some of the terms of the agreement entered into pursuant to this authority. Prior to 1909 the Vancouver, Victoria and Eastern Railway Co., which I shall call the Dominion Company, had constructed a line to the City of Vancouver and had a passenger and freight station there. Some time during the year 1909 (the exact date does not appear) this company laid down a line from False Creek, where its station was, northerly to the south shore of Burrard Inlet. This line was constructed under authority of an order of the Board of Railway Commissioners made in the month of May, 1907. It crossed Harris and Hastings Streets (running east and west), two of the streets referred to in the order under appeal. At the time the order of May, 1907, was made, the Electric Company had constructed its railway on Harris Street, that is to say, it had laid down on that street a single track, but had no tracks on Hastings Street. When the Dominion Company laid down its line across these streets in 1909, the Electric Company had in the meantime constructed a second track on Harris Street and had also laid down a track on Hastings Street, but it seems that this track had not yet been connected with their city railway system. In the year 1910 (6th Sept.), on the application of the Dominion Company, an order was made by the Board authorizing it to construct two additional industrial tracks from False Creek to Burrard Inlet alongside and parallel to the track laid in 1909 and crossing, of course, the streets already referred to. This application was opposed by the Municipality of Vancouver and by the Electric Company, and the order contains a clause in the following words:—
That owing to the low-lying nature of the ground through which the said tracks were run and the probable necessity in future of carrying the said streets or some of them over the said tracks, all questions relating to the separation of grades and the distribution of the cost thereof are hereby reserved.
The order under appeal was made upon the application of the municipality; and the circumstances in which that application came to be made were clearly stated to the Board by Alderman Baxter. There is no dispute whatever about the facts. In 1912 the Municipal Council of Vancouver decided to put permanent pavements on four streets running east and west (two of which were Harris and Hastings Streets) which were crossed by the three tracks of the Dominion company already mentioned. As was anticipated by the Board in 1909, it was thought that the streets at the place where these tracks crossed were too low and it was Considered desirable to elevate the grade of the streets. It was accordingly decided to construct, with the leave of the Board, overhead bridges carrying the highways over these tracks. A by-law was passed by the Council authorizing the construction of these bridges, but on being submitted to the ratepayers was not confirmed as the law of British Columbia required. It was then determined by the Council to apply first to the Board for leave to construct the bridges and for an order apportioning the cost between the Dominion Company and the municipality and then to propose another by-law authorizing the municipality to carry out the scheme as sanctioned by the Board. Mr. Baxter’s statement makes it quite clear that the occasion for the application arose from the necessity of determining the permanent grade of these four streets. It was a question, he said, whether on the one hand, the grade was to be elevated, or on the other, the grade was to be made to conform to the grade of the railway tracks and level crossings established. It was necessary to have the matter disposed of because people were applying for permits to build upon these streets and these could not be granted owing to the inability of the municipality to give the grade of the streets. The Council preferred the former of the two alternative courses because, as Mr. Baxter put it, they recognized that the street grades were too low and must eventually be raised.
The application to the Board then was an application made pursuant to the reservation contained in the order of 1909 to authorize the municipality to construct bridges across the Dominion Company’s tracks (if the municipality, by the ratepayers, should approve the proposals of the council in respect of the grades of these streets), and to declare the respective proportions of the cost of the bridges to be paid by the Dominion Company and the municipality.
It will be observed also that the order made was a permissive order leaving it to the discretion of the municipality whether the bridges should be built or not. The order is not an order directing precautionary measures to be taken for the public protection against the dangers of a railway crossing. The tracks in question are for the transport of freight only to and from the company’s dock on the harbour front. The statement by Mr. MacNeil, for the Dominion Company, which was not questioned at all, was that there would not be more than two “movements” of freight in each twenty-four hours on these tracks, and that if necessary these “movements” could all take place at night. The real scope, purpose and effect of this order is that it gives permission to the municipality to put into effect, if it sees fit, the Council’s proposals to carry these highways over the railway as a necessary part of a design to elevate the grades of the streets; the protection which may incidentally be afforded was not in any sense the object nor was the necessity of it the ground of the order.
It is convenient, I think, to put the question I am now considering in this form:—Could the Parliament of Canada have validly passed, as part of an Act authorizing the construction of the Dominion railway, an enactment having the identical scope, purpose and effect of this order in so far as it levies a part of the cost of constructing these bridges upon the Electric Company?
The only ground upon which such legislation could be sustained would be that it was legislation in execution of the Dominion powers in relation to a Dominion railway.
I think such legislation would not be legislation relating to the Dominion railway, but legislation relating to the Electric Company and its rights in the matter of running its cars on the streets of the municipality.
Looking at the matter broadly, the order seems in relation to each of these highways to be an order requiring the Electric Company to contribute to the cost of the construction of a bridge as part of a municipal highway and the justification of the order appears from the judgment of the Assistant Chief Commissioner to be that when the bridge is constructed the Electric Company will have the right to use it and that the construction of the bridge will enable that company to work its railway more efficiently, more economically and with increased security against injuries to its passengers through accident. An order which on such grounds requires the Electric Company to contribute to the cost of constructing or improving a highway of the municipality, if and when the municipality decides to construct or improve it, seems to be an order in substance and in truth dealing with the Electric Company in its relations with the municipality; and none the less so that in order to construct the work the leave of the Dominion must be obtained because of the fact that the highway crosses a Dominion railway. In so far as the order authorizes the highway to cross the railway it is, of course, a proper exercise of authority in relation to the Dominion railway; so also in so far as it casts upon the Dominion Company a part of the cost of works made necessary by the fact that its railway is there and in so far also as it requires the approval of the bridge by the engineer of the Commission. But the direction that the Electric Company shall pay for the advantages it will gain from this change by reason of the fact that it has under the law the right to use the highway in its altered condition is a direction which deals with a different subject-matter altogether. Indeed, it may be noted that even if the order were an order directing the construction of these bridges as a measure of public safety, the matter of the terms on which the local railway is to be entitled to use them would just as clearly be a matter exclusively of local interest outside the purview of the Dominion power relating to railways.
The argument in support of the Dominion jurisdiction is that the power to pass such legislation is necessarily incidental to the power to make laws in relation to all matter comprised within the subject-matter — Dominion railways.
This proposition is said to be established by certain decisions of the Privy Council and of this court. These decisions I shall consider in detail and at present it is sufficient to say that there is no decision involving the question of the extent or the existence of any power in the Dominion (as incidental to its control of Dominion railways) to assess against a provincial railway company the cost of works made necessary by the construction of a Dominion railway across a municipal highway and there is no decision upon the question whether the Dominion has power to assess the cost of works constructed by a municipality against a provincial railway company benefited by such works merely because such works are so situated with reference to a Dominion railway that the municipality must get the leave of Dominion for executing them.
The provisions of the B.N.A. Act with which we are immediately concerned are sections 91(29) and, 92(10).
By these provisions local railways wholly within the limits of a single province and not declared to be for the general advantage of Canada come within the exclusive legislative jurisdiction of the province. That does not mean, of course, that such railways in respect of matters which are not properly comprehended within the subject-matter of railways, but which really fall within Dominion jurisdiction under some other head of section 91 are exempt from the authority of the Parliament of Canada. If a provincial railway company is about to make a negotiable instrument or to deal with a bank, it must do so subject to the Dominion law relating to negotiable instruments and banking. Such railways as railways, however (in respect, that is to say, of all matters that are subject-matter of “railway legislation strictly so called”), so long as the Dominion does not assume jurisdiction in the manner provided for by the Act, are primarily under the exclusive jurisdiction of the local legislatures. The works and undertakings dealt with by these sections are as Lord Atkinson explains in City of Montreal v. Montreal Street Railway Co.[34], “physical things, not services”; and they are things of a special character. Railways, telegraph lines and like works from the practical point of view must for some purposes be regarded as entireties, and the law recognizes that by treating them so in many instances. The “British North America Act” seems to treat them so in these provisions as subjects of legislative jurisdiction. The framers of the Act recognized that the national interest might require the taking over of local works by the Dominion and the Act provides for that, but the Dominion, when it assumes jurisdiction, must assume jurisdiction of the work or undertaking as a whole. Primarily then the effect of the provisions of the Act with regard to a railway which is local in the sense mentioned is that, in its character of railway, it is “as an integer,” to use Lord Watson’s phrase in Redfield v. Corporation of Wickham[35], under the exclusive control of the province until the Dominion assumes jurisdiction in the manner provided for. After that it passes in the same character under the exclusive jurisdiction of the Dominion.
In Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonseconrs[36], speaking of the extent of the control over Dominion railways committed to Dominion by these provisions, at page 372 Lord Watson says:
Accordingly, the Parliament of Canada has, in the opinion of their Lordships, exclusive right to prescribe regulations for the construction, repair, and alteration of the railway, and for its management, and to dictate the constitution and powers of the company; * * *. It was obviously in the contemplation of the Act of 1867 that the “railway legislation,” strictly so called, applicable to those lines which were placed under its charge should belong to the Dominion Parliament.
It cannot, I think, he doubted that, primarily, the jurisdiction committed to the province by these provisions in regard to local railways is as extensive as the jurisdiction thus described. And the considerations I have already referred to appear to me to be quite sufficient to shew that the order in its application to the Electric Company is an order in relation to a matter falling strictly within the subject of “local works and undertakings” assigned to the province by section 92 (10).
It cannot, therefore, be and is not contended that the order appealed from in so far as it professes to levy a contribution upon the Electric Company is
legislation falling strictly within any of the classes specially enumerated in section 91
in the sense in which those words are used by Lord Herschell in the Fisheries Case[37], at page 715.
It is perhaps unnecessary to observe in passing that the order obviously cannot be sustained as made in exercise of the Dominion power of taxation.
It is contended, however, and this is, no doubt, the ground upon which this order must be sustained, if it can be sustained at all, that there is vested in the Dominion Parliament in addition to its authority to enact railway legislation strictly so called in relation to the subject of Dominion railways a power to pass laws which though not legislation of that character would be suitable ancillary provisions to a Dominion railway law; and it is further contended that such ancillary legislation may be legislation relating to a provincial railway and of such a character that from a provincial point of view it would properly be described as “railway legislation strictly so called.” I do not think it is necessary for the purpose of this appeal to pass upon the question whether such legislation is competent to the Dominion, without a formal assumption by the Dominion of exclusive jurisdiction over the provincial railway in the manner provided for by the Act. There is no doubt something to be said for the opposite view.
Where by reason of the relative physical situation of a Dominion railway and a provincial railway or other circumstances legislation strictly relating to the Dominion railway in its operation necessarily and incidentally affects a provincial railway it may be assumed that the Dominion legislation would be unobjectionable from the constitutional point of view. But once you pass beyond that and admit there is (in the absence of an assumption of complete jurisdiction) vested in the Dominion authority to pass legislation which relates to a provincial railway as such or to a provincial railway company as railway company, and which, admittedly is not legislation relating strictly to a Dominion railway you are obviously in difficulties in assigning limits to the jurisdiction.
If the proposed action of the Dominion respecting the provincial line appears to the provincial legislature or the provincial body charged generally with administrative responsibility in relation to the provincial line in the holiest exercise of its judgment to be so impracticable in a business sense or so incompatible with the objects of the undertaking that it ought not to be agreed to, it does not seem wholly extravagant to say that from the provincial point of view it would be unreasonable to force the proposal upon the province against its will; in other words, that from the provincial point of view on any such question of reasonableness the province is the final judge. Then, if the necessities of the case from the Dominion point of view require that the Dominion view shall prevail against the provincial, the question may be asked:—Have we not reached the stage at which the Act contemplates the assumption by the Dominion of complete jurisdiction?
The other alternatives are that the Dominion is in all cases the final judge of the necessity of its own intervention—an alternative which, I think, is negatived by the decision of the Privy Council in the City of Montreal v. Montreal Street Railway Co.[38]; or that when such a conflict arises it rests with the courts in each case to determine whether the particular enactment in so far as it relates to the provincial railway or the provincial railway company is one that is so essential to the effective exercise of Dominion legislative authority relating to Dominion railways (under the provisions quoted above) that power to pass it must be taken to have been conferred by the grant of that authority. I assume for the purpose of deciding the question before us that in some degree some such power is comprehended within that authority; limited by the nec