The Attorney General of Canada v. The Canadian Pacific Railway Company and Canadian National Railways

The Attorney General of Canada v. The Canadian Pacific Railway Company and Canadian National Railways
Collection
Supreme Court Judgments
Date
1958-01-28
Report
[1958] SCR 285
Judges
Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Nolan, Henry Grattan
On appeal from
Manitoba
Subjects
Constitutional law
Transportation
Decision Content
Supreme Court of Canada
The Attorney General of Canada v. The Canadian Pacific Railway Company and Canadian National Railways, [1958] S.C.R. 285
Date: 1958-01-28
In the matter of an Act for Expediting the Decision of Constitutional and other Provincial Questions, being Chapter 44 of the Revised Statutes of Manitoba, 1954, and
In the matter of a Reference Pursuant Thereto by the Lieutenant-Governor in Council to the Court of Appeal for the Hearing or Consideration of Certain Questions Arising With Respect to Section 198 of the Railway Act, being Chapter 234 of the Revised Statutes of Canada, 1952, and The Real Property Act, being Chapter 220 of the Revised Statutes of Manitoba, 1954, and The Law of Property Act, being Chapter 138 of the Revised Statutes of Manitoba, 1954.
The Attorney General of Canada Appellant;
and
The Canadian Pacific Railway Company and Canadian National Railways Respondents.
1957: January 23, 24, 25; 1958: January 28.
Present: Kerwin C.J. and Taschereau, Rand, Kellock, Locke, Cartwright, Fauteux, Abbott and Nolan JJ.
Nolan J. died before the delivery of judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Constitutional law—Subject-matters of legislation—Validity and application of the Railway Act, R.S.C. 1952, c. 234, s. 198—Effect of provincial legislation in respect of title to real estate.
Railways—Acquisition of lands in Manitoba—Whether mines and minerals pass to railway in absence of express provision—The Railway Act, R.S.C. 1952, c. 234, s. 198—The Real Property Act, R.S.M. 1954, c. 220, s. 91—The Law of Property Act, R.S.M. 1954, c. 138, s. 4.
Section 198 of the Railway Act is not ultra vires, in whole or in part, and its effect is that, with the exception there stated, no railway to which the Act applies acquires title to mines and minerals in any land acquired by it, either by purchase or by compulsory taking under the Act, unless the mines and minerals are expressly purchased by and conveyed to it, notwithstanding the provisions of provincial legislation to the effect that a conveyance of land shall be deemed to include mines and minerals.
Per Kerwin C.J. and Taschereau, Rand, Kellock, Cartwright and Fauteux JJ.: Parliament is clearly competent to provide for the acquisition of land by a railway, and to limit by conditions the effect of acquisition, and it must also be able to provide reasonable means for ensuring that limitation. The question in such a case is not primarily how far Parliament can trench on s. 92 of the British North America Act, but to what extent property and civil rights are within the scope of the paramount power of Parliament. Tennant v. The Union Bank of Canada, [1894] A.C. 31, referred to. The section clearly binds the Canadian Pacific Railway Company, but its application to the Canadian National Railways is subject to different considerations, because of the varying statutory provisions applicable at different times to the railways now included in that system. All that can be said, in the circumstances of this appeal, is that in the case of such constituent companies as were subject to the Railway Act when they acquired land, between 1904 and 1919, and as between the railway company and the grantor of lands, the minerals did not pass to the grantee railway.
Per Locke and Abbott JJ.: The effect of ss. 197 to 201 inclusive of the Railway Act is to ensure that when a railway is carried over lands that contain mines or minerals there is adequate protection for the interest of the owner of the minerals, the travelling public, and the railway company. They are clearly legislation in relation to railways, and therefore within the competence of Parliament, under head 29 of s. 91 of the British North America Act. This being so, the fact that part of s. 198, limiting the manner in which railway companies to which the Act applies may acquire mines and minerals, conflicts with provincial legislation is of no moment. The whole subject-matter is removed from provincial competence. Proprietary Articles Trade Association et al. v. Attorney- General for Canada et al., [1931] A.C. 310; Tennant v. The Union Bank of Canada, supra; Grand Trunk Railway Company of Canada v. Attorney-General of Canada, [1907] A.C. 65; Attorney-General for Canada v. Attorney-General for Quebec, [1947] A.C. 33, applied. The Manitoba statutes referred to are unquestionably within provincial powers, but they do not apply to transfers or conveyances made since s. 198 came into force in 1904 to railways that are subject to the Railway Act. That section accordingly applies to and governs the title to all lands acquired since 1904 by the Canadian Pacific Railway Company. Although at the time of its incorporation that company was subject to the Consolidated Railway Act, 1879, which contained no provision corresponding to s. 198, it is, by force of s. 20(b) of the Interpretation Act, subject to the Railway Act as it is in force from time to time. Northern Counties Investment Trust Ltd. v. Canadian Pacific Railway Company (1907), 13 B.C.R. 130, approved. The section also applies in respect of lands acquired between 1904 and June 6, 1919 (when the Canadian National Railway Company came into existence) by the Canadian Northern Railway Company, the two companies formerly operating in Manitoba that were amalgamated into it, and the Grand Trunk Railway Company. There is not sufficient material before the Court to enable it to deal with the matter as it affects lands acquired since 1919 by the Canadian National Railway Company or the other companies now included in the definition of "Canadian National Railways" in s. 2(b) of the Canadian National Railways Act, R.S.C. 1952, c. 40.
APPEAL from a judgment of the Court of Appeal for Manitoba1, on a reference by the Lieutenant-Governor in Council. Appeal allowed. The following questions were asked and were answered as follows by the Court of Appeal:
1. Is Section 198 of the Railway Act ultra vires of the Parliament of Canada either in whole or in part, and if in part, in what particular or particulars and to what extent?
Answer: Section 198(1) and (2) is ultra vires of the Parliament of Canada except insofar as it prohibits a railway company from expropriating mines and minerals by compulsory proceedings.
2. When title to land without exception of mines and minerals is or was acquired by one of said railway companies without any proceedings being commenced under the compulsory powers given by the Railway Act but as a result of agreement made with the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the transfer or deed or conveyance of land, does such railway company own such mines and minerals when that title is or was acquired
(a) pursuant to said The Real Property Act, or
(b) deed to which said The Law of Property Act applies?
Answer: No. 2(a): Yes.
No. 2(b): Yes.
3. When title to land without exception of mines and minerals is or was acquired by one of said railway companies by purchase after commencement but before completion of proceedings under the compulsory powers given by the Railway Act from the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the transfer or deed or conveyance of the land, does such railway company own such mines and minerals when that title is or was acquired
(a) pursuant to said The Real Property Act, or
(b) by deed to which said The Law of Property Act applies?
Answer: No. 3(a):Yes.
No. 3(b): Yes.
4. When title to or ownership of land without exception of mines and minerals is or has been taken by one of said railway companies under the compulsory powers given by the Railway Act from the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the conveyance of the land, does such railway company own such mines and minerals when that title or ownership is or was acquired
(a) under said The Real Property Act, or
(b) by virtue of the registration of a vesting order or other authorized evidence of the company acquiring ownership under The Registry Act, Revised Statutes of Manitoba, 1954, Chapter 223 or the Registry Act for the said Province heretofore from time to time in force within the Province?
Answer: No. 4.(a): Yes.
No. 4(b): Yes.
A. E. Hoskin, Q.C., and D. H. W: Henry, Q.C., for the appellant.
C. F. H. Carson, Q.C., Allan Findlay, Q.C., and H. M. Pickard, for the respondent Canadian Pacific Railway Company.
R. D. Guy, Q.C., and E. B. MacDonald, for the respondent Canadian National Railways.
John A. MacAulay, Q.C, A. A. Moffat, Q.C., and R. K. Williams, for Imperial Oil Limited, intervenant.
J. J. McKenna, for the Attorney-General for Ontario, intervenant.
The judgment of Kerwin C. J. and Taschereau, Rand, Cartwright and Fauteux JJ. was delivered by
Rand J.:—The first and the substantial question of law raised by this reference is whether s. 198 of the Railway Act, R.S.C. 1952, c. 234, is in whole or part ultra vires. The section is as follows:
(1) The company is not, unless the same have been expressly purchased, entitled to any mines, ores, metals, coal, slate, mineral oils, gas or other minerals in or under any lands purchased by it, or taken by it under any compulsory powers given it by this Act, except only such parts thereof as are necessary to be dug, carried away or used in the construction of the works. (2) All such mines and minerals, except as aforesaid, shall be deemed to be excepted from the conveyance of such lands, unless they have been expressly named therein and conveyed thereby.
It appears within a fasciculus beginning with s. 192 under the heading "the taking and using op lands". First enacted as s. 132(2) of the Railway Act, 1903, c. 58, which came into force on February 1, 1904, it was continued in R.S.C. 1906, c. 37, as s. 170, in the Railway Act, 1919, c. 68, as s. 195, and in R.S.C. 1927, c. 170, as s. 195. The original language has undergone minor changes but in the syntax of the section only. The clause "unless the same have been expressly purchased" was in 1906 transferred from the end of the first sentence (as in the old s. 132) to its present position, and in the 1952 revision the word "is" was substituted for "shall" in the first line and the word "be" in the second line was elided. These changes do not seem to me to be significant and in the interpretation of the present section they may be disregarded.
The section distinguishes between lands "purchased" and lands "taken". In this its text is consistent with the words as used elsewhere in the Act; for example, s. 164(1)(c) clothes the company with power to "purchase, take and hold" lands; s. 202 speaks of land "that may be taken without the consent of the owner"; and ss. 207 and 218 exemplify the same distinction. Section 216 expressly contemplates the purchase by agreement of lands which the plan, profile and book of reference deposited in the office of the registrar of deeds and other publication give notice will be required for the purpose of the railway and it is only in case of disagreement between the parties that the compulsory proceedings are to be resorted to. The same procedure is envisaged by s. 236; and s. 213 provides for the case of purchase before the plans, etc., are deposited or before the lands required are set out or ascertained.
What s. 198 is designed to do is to prevent the acquisition of minerals unless they are expressly made the subject of agreement with the owner. Among other possible or likely purposes this seems intended to protect the interest of the owner: the minerals are to remain his unless they are made the subject of an express term in the agreement. "Purchase" would include every acquisition of land which the company could, if necessary, take by compulsory measures; that would embrace acquisition following the filing of plans, or under s. 213; but beyond these the form and purpose of acquisition might be of such variety and call for so many assumptions affecting private rights that, for the reasons expressed hereafter, no opinion should be ventured.
Is s. 198, then, so interpreted, beyond the authority of Parliament? Reading together the sections dealing with lands, the capacity given to the company to acquire them and the power of expropriating them, it is not seriously arguable—nor was it argued—that the prohibition against taking the minerals is ultra vires: what it represents is simply the curtailment of an extraordinary power itself created by Parliament which, being its creator, can modify it to whatever extent or in whatever manner may be considered advisable.
But it is contended that in providing in effect, as it is claimed subs. (2) does, for the interpretation of a provincial instrument of title, Parliament has stepped beyond its legislative boundary. It has, it is said, prescribed the terms of a conveyance which passes property under provincial law and that specifically subs. (2) conflicts with the statutory law of the Province embodied in The Real Property Act, R.S.M. 1954, c. 220, and The Law of Property Act, R.S.M. 1954, c 138.
That Parliament, competent to provide for the acquisition of land for a railway and to limit by conditions the extent of acquisition, cannot also provide the reasonable means for ensuring that limitation, would, in the particular circumstances, expose the substantive power to virtual nullification. Powers in relation to matters normally within the provincial field, especially of property and civil rights, are inseparable from a number of the specific heads of s. 91 of the British North America Act under which scarcely a step could be taken that did not involve them. In each such case the question is primarily not how far Parliament can trench on s. 92 but rather to what extent property and civil rights are within the scope of the paramount power of Parliament. Tennant v. The Union Bank of Canada2, in which a provision under the Bank Act for taking security for loans made by a bank in disregard of provincial forms of security and registration was upheld, is a characteristic example. Here the steps to be taken for expropriation, the payment of money into court with an authentic copy of the award or the conveyance, or an agreement under s. 213, each of which is declared by s. 236(2) to constitute the title of the company to the lands, are all within the field of railway legislation; and subs. (2) of s. 198 is simply a means for making effective the condition prescribed.
The law of Parliament declaring such a title is as much a law in force in the Province as an enactment of the Legislature. If the company avails itself of the local law of land titles and presents its conveyance or document of title to the registrar or other officer, the latter is chargeable with notice of the applicable law including, in the case of a conveyance to a Dominion railway, that provided by subs. (2). If that instrument does not expressly convey minerals, a certificate of title issuing on it should except them. If this entry were omitted by the registration officer and the minerals were subsequently sold by the company to an innocent purchaser, it might be that the original owner would be bound by that error in the certificate ; that is a question to be decided when it arises; but so long as the minerals remain in the apparent ownership of the railway company, and assuming that they were not expressly purchased, the certificate remains subject to correction at the instance of the vendor or his transferee: as between these parties the statute is conclusive, subject to any right of reformation of the conveyance that may exist, or in the event of sale, to any trust that may arise.
That the Canadian Pacific Company, if the section is valid, is bound by it, is conceded; but the situation of the Canadian National Railways is somewhat different. Chapter 13 of the statutes of Canada, 1919, provided for the incorporation of Canadian National Railway Company, and by s. 13 the provisions of the Expropriation Act, now R.S.C. 1952, c. 106, relating to the taking and using of lands were, for the purposes of the company's undertaking, made applicable to the company, The latter was created to embody the ultimate amalgamation of all lines within the National system and the undertaking of the company would therefore depend upon either the absorption by amalgamation of existing lines or the construction by it of new lines. Section 13 in its original form remained in force until.1929, c. 10, s. 2, when, in an amendment of s. 17— which it had then become—the words "the taking and using of lands" were omitted. At the same time the company was authorized by subs. (3) of s. 17 to acquire lands required for any of the companies comprised in the National system, a schedule of which had been annexed to the original enactment. In 1955 the Act was revised as c. 29 and the sections dealing with the acquisition of lands were rearranged and modified. By s. 16 all of the provisions of the Railway Act were made applicable except certain named sections, including ss. 192 to 195 and 202 to 205, but omitting ss. 198, 199, 200 and 201, all having to do with minerals, and excepting
(b) such other provisions [of the Railway Act] as are inconsistent with this Act or with the Expropriation Act as made applicable to the National Company by this Act.
Following this, toy's. 17 the Expropriation Act was made to apply mutatis mutandis "subject as follows". What follows are four paragraphs, (a) authorizing the Minister of Transport to sign plans under the Expropriation Act and dispensing with the deposit of any description; (b) a declaration that, upon the deposit of the plan the title vests in the company for such estate or interest as may be indicated on the plan; and (c) and (d) dealing with compensation.
Prior to 1929 each constituent company of the National system was subject to the Railway Act generally. Amalgamations proceeded somewhat slowly commencing with that between the National Company and the Grand Trunk Railway Company in 1923 and, so far, ending with that of the National Company, the Canadian Northern Railway Company and the Grand Trunk Pacific Railway Company in 1956.
The original s. 13 was before the Judicial Committee in Boland v. Canadian National Railway Company3, at p. 205 of which Lord Dunedin remarked on its "very involved method of expression", and the distinction was pointed out between the function of the Expropriation Act in giving power to take lands and in furnishing machinery for taking them. As s. 17 it was again considered in Bell Telephone Company of Canada v. Canadian National Railway4. At p. 577 Lord Macmillan, referring to the comment in Boland, adds that the amended form "cannot be said to present a more happily inspired example of legislation".
A second proposition advanced by Mr. Guy can be dealt with shortly. Under the charters of many of the constituent companies in the National system power to acquire land for the purposes of the undertaking is conferred. His argument is that by virtue of s. 3 of the Railway Act, by para. (b), of which it is provided that
where the provisions of this Act and of any Special Act passed by the Parliament of Canada relate to the same subject-matter, the provisions of the Special Act shall, in so far as is necessary to give effect to such Special Act, be taken to over-ride the provisions of this Act
the charter power is unaffected by the limitation of s. 198. With this I am unable to agree. The power given under the special Act goes to the capacity generally of the company to acquire and hold land; it does not embrace the taking of land without the owner's consent. Purchases in the course of construction are carried out under a code of sections in the general Act and are within the application of the special Act in no other sense than that of capacity. That code contains the element of coercion, in the background of which the purchases are made. To resort to or to take the benefit of the code and that element is action outside of the charter power. The authority under the special Act is admittedly subject to the provisions of the general Act which require plans to be submitted, approved and filed and to those dealing with compensation; but these, on Mr. Guy's contention, would, strictly speaking, seem to "relate to the same subject-matter" and to be restrictions of the charter power. Section 198 does not affect the capacity or the right of the company to acquire minerals, but it does prevent their acquisition directly or indirectly by compulsory action, including purchases that do not carry the express consent of the owner. These provisions, in short, serve to regulate the exercise of the charter capacity as the company moves to construct its railway under the powers, procedures and limitations of the general Act.
The application of ss. 198 to 201 to the National company is thus seen to involve questions of the time of purchase, of special legislative enactments and of amalgamations of constituent companies, apart from the interpretation of the Canadian National Railways Act itself. In these circumstances, by answering questions 2, 3 and 4 we would be expressing an opinion that might seriously affect private rights in the absence of those claiming them, a step which would be contrary to the fundamental conception of due process, the application of which to opinions of this nature has long been recognized.
In Attorney-General for Canada v. Attorneys-General for Ontario, Quebec, and Nova Scotia5, the Judicial Committee spoke of it in these words:
Their Lordships must decline to answer the last question submitted as to the rights of riparian proprietors. These proprietors are not parties to this litigation or represented before their Lordships, and accordingly their Lordships do not think it proper when determining the respective rights and jurisdictions of the Dominion and Provincial Legislatures to express an opinion upon the extent of the rights possessed by riparian proprietors.
In Attorney-General for Ontario v. Hamilton Street Railway Company et al.6:
With regard to the remaining questions, which it has been suggested should be reserved for further argument, their Lordships are of opinion that it would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur. to qualify, cut down, and override the operation of particular words when the concrete case is not before it.
In Attorney-General for Ontario et al. v. Attorney-General for Canada et al.7 (a reference in which the power of Parliament and Legislature to put questions in this form was in issue):
If the questions to the Courts had been limited to such as are in practice put to the Judicial Committee (e.g., must justices of the peace and judges be resworn after a demise of the Crown?) no one would ever have thought of saying it was ultra vires. It is now suggested because the power conferred by the Canadian Act, which is not and could not be wider in its terms than that of William IV., applicable to the Judicial Committee, has resulted in asking questions affecting the provinces, or alleged to do so. But the answers are only advisory and will have no more effect than the opinions of the law officers. Perhaps another reason is that the Act has resulted in asking a series of searching questions very difficult to answer exhaustively and accurately without so many qualifications and reservations as to make the answers of little value. The Supreme Court itself can, however, either point out in its answer these or other considerations of a like kind, or can make the necessary representations to the Governor-General in Council when it thinks right so to treat any question that may be put. And the Parliament of Canada can control the action of the Executive.
In Attorney-General for British Columbia v. Attorney-General for Canada8:
The business of the Supreme Court of Canada is to do what is laid down as its duty by the Dominion Parliament, and the duty of the Judicial Committee, although not bound by any Canadian statute, is to give to it as a Court of review such assistance as is within its power. Nevertheless, under this procedure questions may foe put of a kind which it is impossible to answer satisfactorily. Not only may the question of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied. It has therefore happened that in cases of the present class their Lordships have occasionally found themselves unable to answer all the questions put to them, and have found it advisable to limit and guard their replies. It will be seen that this is so to some extent in the present appeal.
And in Attorney-General for Ontario et al. v. Attorney-General for Canada9:
But, for reasons several times assigned in earlier judgments of the Judicial Committee, they feel the paramount importance of abstaining as far as possible from deciding questions such as those now stated until they come up in actual litigation about concrete disputes rather than on references of abstract propositions.
In Reference re Waters and Water-Powers10, Duff J. (as he then was) reviewed the matter generally to the same effect. I would, therefore, allow the appeal and answer the questions as follows:
Question 1: No.
Question 2: Assuming that the question means when title to land on the face of the instrument conveying it is without exception of mines and minerals, and that there was no express agreement to purchase them, in the case of the Canadian Pacific Railway Company, subsequent to 1904, and in the case of such constituent companies of the National Railways as were at the time of the acquisition of the land subject to the Railway Act, between 1904 and 1919, and as between the railway company and the grantor of lands, the minerals did not pass to the grantee railway; in other cases of the Canadian National Railways, for the reasons given I abstain from answering.
Question 3: The same answer as to question 2.
Question 4: The same answer as to question 2.
Kellock J.* :—I agree with Rand J.
The judgment of Locke and Abbott JJ. was delivered by
Locke J.:—This is an appeal taken pursuant to the provisions of s. 37 of the Supreme Court Act, R.S.C. 1952, c 259, from the opinion pronounced by the Court of Appeal of Manitoba11 on four questions referred to that Court by the Lieutenant-Governor in council.
The first of these reads:
Is section 198 of the Railway Act ultra vires of the Parliament of Canada either in whole or in part, and if in part, in what particular or particulars and to what extent?
Section 198 of the Railway Act, R.S.C. 1952, c. 23, reads:
198. (1) The company is not, unless the same have been expressly purchased, entitled to any mines, ores, metals, coal, slate, mineral oils, gas or other minerals in or under any lands purchased by it, or taken by it under any compulsory powers given it by this Act, except only such parts thereof as are necessary to be dug, carried away or used in the construction of the works.
(2) All such mines and minerals, except as aforesaid, shall be deemed to toe excepted from the conveyance of such lands, unless they have been expressly named therein and conveyed thereby. This question was answered as follows:
Section 198 (1) and (2) is ultra vires of the Parliament of Canada except insofar as it prohibits a railway company from expropriating mines and minerals by compulsory proceedings.
The Court further expressed the opinion that the section did not apply to land contracts and transactions by the respondent railway companies.
The order in council referring the questions to the Court of Appeal recited, inter alia, that each of the railway companies has from time to time acquired land by agreement with owners of land without any proceedings being commenced under the compulsory powers given by the Railway Act, by purchase after commencement of proceedings under the compulsory powers and before the completion of such proceedings, and also under the compulsory powers given by the Railway Act, and that each of them holds title to certain lands to which the provisions of The Real Property Act, R.S.M. 1954, c. 220, and The Law of Property Act, R.S.M. 1954, c. 138, apply, and that questions have arisen concerning the title to the mines and minerals underlying such lands.
It was apparently the fact that it was considered that there was a conflict between s. 198 and certain sections of the two statutes mentioned that led to the reference as to the first question.
The Real Property Act of Manitoba was first enacted in the year 1885 and introduced the Torrens system into Manitoba. While large areas of land in the Province have been brought under the Act, there are still considerable areas where the root of the title continues to be the original letters patent granted by the Crown in the right of Canada.
Section 2(e) of The Real Property Act defines land as including all estates or interests in land whether legal or equitable, and all mines, minerals and quarries, unless specially excepted.
Sections 63 and 67, to which reference will hereafter be made, declare the absolute and indefeasible nature of the titles evidenced by certificates of title issued under the Act, with defined exceptions. Section 91 reads:
No words of limitation axe necessary in a transfer of land in order to convey all or any title therein; but every transfer shall, when registered, operate as an absolute transfer of all such right and title as the transferor had therein at the time of its execution, unless a contrary intention is expressed in the transfer or instrument; but nothing in this section precludes a transfer from operating by way of estoppel.
Where the root of title to land continues to be letters patent issued prior to February 20, 1914, the provisions of The Registry Act, R.S.M. 1954, c. 223, apply, and conveyances are made by deed. The system of registration provided by this Act is known as "the Old System". Land is defined in this statute in the same terms as in The Real Property Act.
Section 4 of The Law of Property Act provides that no words of limitation shall be necesary in any conveyance of land in order to convey all or any title therein; but every grant, deed or instrument conveying land shall operate as an absolute conveyance of all such rights and title as the grantor has at the time of its execution, unless a contrary intention is expressed in the conveyance.
Title to lands acquired by purchase by the railway companies has apparently been taken in both manners: transfers under The Real Property Act and deeds of Old System lands to which the two last-mentioned statutes apply.
Section 198 first appeared in the Railway Act as subs. (2) of s. 132 of c. 58 of the statutes of 1903 in substantially its present form and affects lands acquired after the date that statute came into force on February 1, 1904. Its origin appears to have been s. 77 of the Railway Clauses Consolidation Act, 1845 (Imp.), c. 20. The section appears with a group of sections commencing with s. 192 under a subheading "the taking and using of lands". These follow a series of sections, commencing with s. 163, which are grouped under the heading "powers—construction of railways" which deal generally with the powers which may be exercised by the company in acquiring the necessary lands for the construction, maintenance and operation of the railway, define the manner in which plans of the proposed railway are to be approved and declare the duty of registrars of deeds to receive and record such plans. Section 203 and the following sections define the extent of lands that may be taken for the right-of-way and other purposes without the owner's consent, the manner in which leave may be obtained from the Board of Transport Commissioners to take more ample space than may be taken under s. 202, and the procedure for taking materials necessary for use in construction. The manner in which expropriations are to be carried on is defined in s. 218 and following sections.
Section 92 of the British North America Act, which defines the exclusive powers of provincial Legislatures, includes under head 10 local works and undertakings other than such as are of the enumerated classes, which include lines of railways connecting the Province with any other or others of the Provinces or extending beyond the limits of the Provinces. In relation to such railways, Parliament has the exclusive legislative authority under head 29 of s. 91. The only question to be determined in answering the first question is as to whether s. 198 is legislation falling within this category.
No dispute arises as to the power of Parliament to prohibit a railway company of the class mentioned to expropriate mines and minerals, except such as are necessary to be dug, carried away or used in the construction of the work. The exception made in the answer given by the Court of Appeal refers to the prohibition against expropriating mines and minerals as if it were absolute, but this is not entirely accurate. There is, however, no controversy in these proceedings as to this.
The real basis of the attack on the remaining provisions of s. 198 is that as both a transfer of land, the title to which is under The Real Property Act, and a deed of Old System lands, to which s. 4 of The Law of Property Act applies, convey the entire interest of the transferor or grantor unless a contrary intention is expressed in the instrument, to provide, as does s. 198, that, "unless the same have been expressly purchased" and unless they are expressly named in the conveyance, the railway is not entitled to any mines or minerals in or under any land purchased by it is to trespass upon the exclusive provincial power under s. 92 to make laws in relation to property and civil rights in the Province. In the reasons for judgment delivered by the learned Chief Justice of Manitoba, with which the other members of the Court concurred, after referring to the decisions of the Judicial Committee in Canadian Pacific Railway Company v. The Parish of Notre Dame de Bonsecours12, Bank of Toronto v. Lambe13, The Citizens Insurance Company of Canada v. Parsons14, John Deere Plow Company, Limited v. Wharton15, and Great West Saddlery Company, Limited v. The King16, the following passage appears17 :
These cases hold and make it clear (1) that the land laws of the Province, i.e., The Real Property Act, supra, and The Law of Property Act, supra, are intra vires; (2) that companies incorporated by the Dominion Government are subject to valid provincial laws of general application, such as laws imposing taxes, relating to mortmain, and as to the forms of contracts, so long as such laws do not derogate from the status of such companies and their consequent capacities or as a result of their restriction prevent such companies from exercising the powers conferred on them by the Dominion Government.
I am unable, with great respect, to agree with this statement of the law. I think no question arises as to whether the provisions of The Real Property Act and The Law of Property Act to which reference has been made are within provincial powers. In my opinion, they unquestionably are, but they do not apply to transfers or conveyances of property to railway companies of the classes in question which are referred to in s. 198 since that section came into force. The matter appears to be stated as if to hold that the Dominion legislation is intra vires, as I think it is, is to say that the provincial legislation is ultra vires. Both are, in my opinion, valid laws in force in Manitoba and have been since they were enacted.
In Toronto Corporation v. Canadian Pacific Railway Company18, Lord Collins, delivering the judgment of the Judicial Committee, said in part:
The jurisdiction conferred over property and civil rights in the province is quite consistent with a jurisdiction specially reserved to the Dominion in respect of a subject-matter not within the jurisdiction of the province. In Proprietary Articles Trade Association et al. v. Attorney-General for Canada et al.19, Lord Atkin pointed out at p. 316 that any matter coming within any of the particular classes of subjects enumerated in s. 91 as particular instances of the general powers assigned to the ' Dominion is not to be deemed to come within the classes of matters assigned to the provincial Legislatures. It had been said many times before but, in that case, it was again mentioned that most of the specific subjects in s. 91 do affect property and civil rights but, so far as the legislation of Parliament in pith and substance is operating within the enumerated powers, there is constitutional authority to interfere with such rights (p. 327).
The jurisdiction of Parliament in relation to railways such as the respondent companies is not less extensive than it is in relation to a telephone company such as the Bell Telephone Company of Canada, with telephone lines connecting various Provinces. The legislation granting powers to that company was considered in The City of Toronto v. Bell Telephone Company of Canada20. Lord Macnaghten, at p. 57, referring to the fact that s. 91 confers on Parliament exclusive legislative authority over all classes of subjects expressly excepted by head 10(a) of s. 92, such as railways, telegraphs and other works and undertakings connecting the Province with any other or others of the Provinces, said that it would seem to follow that the Bell Telephone Company acquired from the Legislature of Canada all that was necessary to enable it to carry on its business in every Province of the Dominion and that no provincial Legislature was or is competent to interfere with its operations as authorized by the Parliament of Canada.
It is said in the passage above quoted from the judgment of the Chief Justice of Manitoba that companies incorporated by the Dominion Government are subject to provincial laws of general application, such as those relating to mortmain. This was decided in the case of trading and certain other companies in The Chaudière Gold Mining Company of Boston v. Desbarats et al.21, the company concerned in that matter being a foreign corporation but the statement apparently applying to both foreign and domestic corporations. In the judgment of Viscount Haldane in Great West Saddlery Company, Limited v. The King, supra, at