Toronto Railway Co. v. City of Toronto

Toronto Railway Co. v. City of Toronto
Collection
Supreme Court Judgments
Date
1916-05-02
Report
(1916) 53 SCR 222
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
Toronto Railway Co. v. City of Toronto, (1916) 53 S.C.R. 222
Date: 1916-05-02
The Toronto Railway Company Appellants;
and
The Corporation of the City of Toronto and the Canadian Pacific Railway Company Respondents
1916: February 23, 24; 1916: May 2.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.
Board of Railway Commissioners—Jurisdiction—Provincial crossing—Dominion railway—Change of grade—Elimination of level crossing —Substitution of subway—Public protection and safety—Power to order provincial railway to share in payment of cost—"Railway Act" ss. 8(a), 59 and 288:
The provisions of the "Railway Act" empowering the Board of Railway Commissioners to apportion among the persons interested the cost of works or constructions which it orders to be done or made are intra vires.
On Avenue Road, Toronto, the tracks of the Toronto Ry. Co. crossed those of the C. P. Ry. Co. at rail level. On report of its chief engineer that this crossing was dangerous the Board, of its own motion, ordered that the street be carried under the C. P. Ry. tracks. This change of grade relieved the Toronto Ry. Co. from the expense of maintaining an interlocking plant and benefitted it otherwise.
Held, that the order was made for the protection, safety and convenience of the public; that the Toronto Ry. Co. was a "company interested or affected by such order"; and that the Board had jurisdiction to direct that it should pay a portion of the cost of the subway. British Columbia Electric Railway Co. v. Vancouver, Victoria and Eastern Railway Co., [1914] A.C. 1067, distinguished.
The agreement between the Toronto Ry. Co. and the City of Toronto by which the former was given the right to lay its tracks on certain streets including Avenue road did not affect the power of the Board to make said order. APPEAL from an order of the Board of Railway Commissioners for Canada on certain questions of law, by leave of the Board, and on a question of jurisdiction, by leave of the Chief Justice of Canada.
The following are the questions so submitted to the Supreme Court of Canada for decision:—
"1. That the Board of Railway Commissioners for Canada had no jurisdiction to order the Toronto Railway Company to contribute to the cost of the construction of the subway at Avenue Road.
"2. That by reason of the terms of the agreement between the Toronto Railway Company and the City of Toronto, dated the 1st day of September, 1891, and confirmed by 55 Vict., chap. 99, the Toronto Railway Company should not have been ordered to contribute to the cost of the said subway.
"3. By reason of the agreement between the Toronto Railway Company and the City of Toronto, dated the 1st day of September, 1891, and the Act of the legislature confirming the same, that the said Toronto Railway Company is entitled to the use of the said street in the exercise of its franchise. And because the City of Toronto and the Canadian Pacific Railway Company agree upon the elimination of the grade at the crossing of the said street by the Canadian Pacific Railway Company it does not entitle either party to call upon the Toronto Railway Company to contribute to the cost of the same."
D. L. McCarthy K.C. for the appellant. The order of the Board was not made for the protection of the public but was merely a matter of municipal improvement. The fact that the appellant company was benefitted did not empower the Board to saddle it with a portion of the coat. British Columbia Electric Railway Co. v. Vancouver, Victoria and Eastern Railway Co.[1].
W. N. Tilley K.C. for the respondents the Canadian Pacific Railway Co. referred to City of Toronto v. Canadian Pacific Railway Co.[2]; Ottawa Electric. Railway Co. v. City of Ottawa[3].
Colquhoun for the respondent the City of Toronto.
The Chief Justice.—This is an appeal by leave against an order of the Board of Railway Commissioners for Canada dated the 12th November, 1914, made in the matter of the apportionment of the cost of the grade separation work at North. Toronto (exclusive of Yonge street), whereby and so far as the appellants are alone concerned it was ordered
that 10% of the cost of the separation of grades at Avenue Road, North Toronto, be borne and paid by the Toronto Street Railway Company.
The "Railway Act" gives power to the Railway Board where a railway is constructed across a highway to order that the railway be carried over the highway and to order what portion, if any, of cost is to be borne respectively by the municipal or other corporation or person in respect of such order. Though perhaps not very clearly worded, the meaning of section 238 must be that such order must be with a view to the protection, safety and convenience of the public.
That this enactment is intra vires of the power of Parliament I do not think admits of doubt; it was so decided in the case of City of Toronto v. Canadian Pacific Rly. Co.2. We have therefore only to consider whether or not the order so far as it directed the appellant to pay a portion of the cost was made without jurisdiction.
At the argument much stress was laid by counsel for the appellant on the case of British Columbia Electric Railway Co. v. Vancouver, etc., Railway Co. and The City of Vancouver[4]; indeed, I apprehend that but for that case the present appeal would hardly have been brought. The decision of the Judicial Committee in that case, however, depends upon the facts of the particular case. The application to the Railway Board for an order for four streets to be carried across the railway on viaducts was made by the city corporation and their Lordships approved of the statement that
the occasion for the application arose from the necessity of determining the permanent grade of these four streets.
The judgment continues:—
It follows therefore that the application was a matter between the corporation and the railway company alone. * * * It is evident from the reasons given by the Railway Board that they directed the tramway company to pay a proportion of the cost of the improvements because they were of opinion that the tramway company would benefit by them. * * * The fundamental error underlying the decision of the Railway Board is that they have considered that the fact that the tramway company would be benefitted by the works, gave them jurisdiction to make them pay the cost or a portion of it.
There is nothing in the "Railway Act" which gives any such jurisdiction.
Now the facts in the present case are wholly different. It is abundantly clear from the record that the substantial and, indeed I think I may say only, reason for the order of the Railway Board for this grade separation was the elimination of dangerous crossings. That incidentally the tramway company will be benefitted by the separation of the grades cannot of course bring the case within the ruling of the Judicial Committee in the Vancouver Case. If the tramway company could have been ordered to pay part of the cost though they derived no benefit from the work, it would be absurd to suppose that they could not be so ordered because they did obtain benefit.
It can make no difference that occasion was taken for abolishing this crossing when the separation of grades in a neighbouring street was decided upon. The two subways were naturally and properly ordered as part of one scheme for the public safety and convenience.
Whatever the rights of the appellant and the City of Toronto, respondent, under their agreement they are only as between the parties and cannot affect the validity of the order of the Railway Board.
Davies J.—This is an appeal from an order of the Board of Railway Commissioners directing the Toronto Railway Company to pay a portion of the cost of a subway ordered by the Board to be constructed at Avenue Road in the City of Toronto. Leave to appeal was granted by the Chief Justice on the ground that the Board had no jurisdiction to make the order complained of.
Leave to appeal was also granted by the Chief Commissioner upon certain questions of law;
1. As to the power of the Board to order the appellant to contribute to the cost of the construction of the subway in question.
2. As to the effect of an agreement between the appellant and the City of Toronto upon the granting of the order appealed from; or, as I understand the questions, whether that agreement precluded the Board from making such order. "The main question of the jurisdiction of the Board bo make the order involves the constitutionality of the provisions of the "Railway Act" under which it professedly was made, and also involves the questions whether, assuming the sections to be constitutionally valid, the order of the Board was really and truly made under its paramount power of providing at railway and highway crossings for the safety and protection of the public, or whether the subway at Avenue Road was a matter really and practically of street improvements merely, the cost of which the appellants could not be obliged to contribute to.
Passing by for a moment its constitutional validity, sec. 227 of the "Railway Act," as amended by the Act of 1909 regulating the crossing of railway lines by other railway tracks or lines, vests very ample and complete powers in the Railway Board alike as to the terms, conditions and incidents subject to which such crossing may be allowed, as also with respect to the kind and nature of such crossing, and when read in conjunction with sections 28 and 32 of the "Railway Act" would authorize the Board to proceed under such section 227 as well on its own motion, as on a special application for leave to permit a crossing; and as well with respect to an existing crossing which had been allowed by it or by its predecessor the Railway Committee of the Privy Council as with respect to a right to a new crossing sought to be obtained.
When it is once made clear to the Board of Railway Commissioners that the public protection and safety requires that a crossing of railway tracks applied for should only be granted on certain terms and conditions or that an existing crossing requires additional safeguards and protection, then I think under the 227th section of the Act coupled with the 28th, 29th, 32nd and 59th sections the powers of the Board are complete for the purposes the legislature intended and may be exercised by them either of their own motion or on special application made to them.
If I am wrong in my construction of these sections of the Act, I am still of the opinion that under the special circumstances of this case, namely, where the double tracks of the Toronto Street Railway along Avenue Road cross the double tracks of the Canadian Pacific Railway where they cross; that road, the Board had ample powers under section 258 relating to highway crossings to make such order as to the protection, safety and convenience of the public as it did make in this case and including that part of the order assigning the proportion of the costs of the new protection works to the Toronto Street Railway which in the judgment of the Board that street railway should assume and pay.
Then comes the question whether in making the order now in appeal assigning the street railway's contribution towards the construction work ordered, the Board acted under its paramount power of providing for the protection and safety of the public at these railway crossings on this public street or highway, or made it for some other reason or motive.
Mr. McCarthy contended strenuously that they did not make it under the paramount power for protection and safety and that the assessment of the Toronto Street Railway was not legal or justifiable, because it was based, as he contended, upon the grounds that the Toronto Street Railway Company were relieved of the expense of contributing to the cost of operating the then interlocking plant necessitated by their crossing at rail level the tracks of the Canadian Pacific Railway and were also relieved of the possibility of an accident at that crossing. That was, he contended, the real reason for assessing a contribution towards the subway upon the Toronto Railway.
No doubt some observations were made by the Assistant Chief Commissioner in the reasons given on the 5th May, 1914, for the order assessing a portion of the cost of the protection works ordered on and at Avenue Road which give colour to this argument.
These observations and the argument at bar on the point necessitated a very close scrutiny of the entire record of the proceedings before the Board of Railway Commissioners at its several meetings in order to determine what the real grounds were on which the order complained of was made. I have made such a scrutiny with the result that no doubt exists in my mind that the controlling ground which moved the Commissioners to make the order in question was the safety and protection of the public and that the separation of the grades at Avenue Road was ordered mainly if not entirely for that reason, and not with any idea of municipal improvement. The observations made by the Assistant Chief Commissioner in his reasons for making the subway order were intended, I think, not as reasons for the making of the order for the subway, but rather as reasons in support of the quantum of the cost which they had allotted to the Toronto Railway Company to pay.
The then existing interlocking plant at the crossing in question which constituted the protection and safety provided for the public at this point was no doubt sufficient for the day and times when it was ordered. But the City of Toronto, it is a matter of common knowledge, has enormously increased its population during the past few years. The traffic on its principal streets has greatly increased and the Board, in acting as it did in making the order, had the benefit of a report on the subject it was dealing with made by its engineers and a knowledge of the facts gained from such report and the plans before it and from the repeated discussions by counsel at its several meetings and from, I assume, actual views of the locality made by its members.
Mr. Maclean, one of the Board of Railway Commissioners, in his reasons for concurring in the order appealed from, says:—
At the hearing, Mr. Geary, for the city, pressed with great earnestness the contention that the city should not be called upon to contribute to the cost of the grade separation. The work, however, is undoubtedly in the interest of public safety. The element of danger which was manifestly present was attributable not only to the increase of traffic on the railway, but also to the increase of traffic on the highways. The railway was rightfully in its location, under proper sanction of law; and the Board is, in my opinion, justified in following the methods of division of cost which it hitherto has applied. The fact that the method of distribution of cost has had the sanction of precedent is, to my mind, by no means the most important factor.
On the whole, I repeat, the only conclusion I could draw from a careful reading of the whole record is that the paramount consideration which weighed with the Board and moved it to make the order was the "protection, safety and convenience of the public."
Then with regard to the constitutional validity of the sections in question, I cannot entertain any doubt. Similar legislation was before this court in the case of The City of Toronto v. The Grand Trunk Railway Co.[5], when the constitutional validity of sections 18.7 and 188 of "The Railway Act of 1888" was involved. Substantially, and for the purposes of this constitutional argument, these sections are the same as those of the present "Railway Act" now before us. This court held these sections to be intra vires of the Parliament of Canada. Leave to appeal was refused by the Privy Council.
Subsequently the question of the constitutional validity of these sections 187 and 188 of "The Railway Act of 1888" was brought before the Judicial Committee in the case of the City of Toronto v. The Canadian Pacific Railway Co.[6], when they were held to be intra vires and where it was further held that a municipal corporation was a "person interested" within the meaning of the words of the section.
In delivering the judgment of their Lordships, Lord Collins says:—
In the present case it seems quite clear to their Lordships that if, to use the language above quoted, "the field were clear," the sections impugned do no more than provide reasonable means for safeguarding in the common interest the public and the railway which is committed to the exclusive jurisdiction of the Legislature which enacted them, and were, therefore, intra vires. If the precautions ordered are reasonably necessary, it is obvious that they must be paid for, and in the view of their Lordships there is nothing ultra vires in the ancillary power conferred by the sections on the Committee to make an equitable adjustment of the expenses among the persons interested. This legislation is clearly passed from a point of view more natural in a young and growing community interested in developing the resources of a vast territory as yet not fully settled than it could possibly be in the narrow and thickly populated area of such a country as England. To such a community it might well seem reasonable that those who derived special advantages from the proximity of a railway might bear a special share of the expenses of safeguarding it. Both the substantive and the ancillary provision are alike reasonable and intra vires of the Dominion Legislature, and on the principles above cited must prevail, even if there is legislation intra vires of the provincial Legislature dealing with the same subject matter and in some sense inconsistent.
I find myself in the face of the different provisions of the "Railway Act" and the decisions of the courts upon them quite unable to appreciate or accept the argument that the Toronto. Street Railway is not a company "interested or affected" in the change of grades at the Avenue Road and the protective works ordered there within the meaning of the sections of the Act applicable.
The recent decision of the Privy Council in the British Columbia Electric Railway Co. v. Vancouver, Victoria and Eastern Railway Co. and The City of Vancouver[7], was of course much relied upon by the appellant who sought to make the facts of this appeal analogous to the facts of that case. Superficially there may be some resemblance between the facts in both cases, but it is only superficially. The headnote to the report of the British Columbia Electric Railway case before the Privy Council states the facts and the decision as follows:—
The corporation of the City of Vancouver, wishing to alter the grading of four streets in the city which were crossed by the tracks of a Dominion railway, applied to the Board of Railway Commissioners for Canada for authority to carry the streets over the railway tracks on bridges. Along two of the streets in question a railway company, working wholly within the province under provincial statutory authority, ran tramways. The Board authorized the work and ordered that a part of the cost of construction should be borne by the provincial company, on the ground that that company would benefit by the alteration:—
Held, that the order, so far as it imposed part of the cost of the proposed work upon the provincial railway company, was not within the powers conferred upon the Board of Railway Commissioners by the "Railway Act" and was invalid.
Turning to the reasons for the judgment of the Judicial Committee, as pronounced by Lord Moulton, it will be seen how utterly inapplicable that judgment is to the case before us. His Lordship in the first place entirely agrees with the remarks of Duff J. of this court as to the ground and reason of the application of the corporation to the Railway Board. He goes on to say:—
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 they recognized that the street grades were too low and must inevitably be raised.
His Lordship then adds:
It follows therefore that the application was a matter between the corporation and the railway company alone.
The proposed works for which the authority of the Railway Board had been asked and granted was a matter merely of "street improvements" and he goes on to say:
It is evident from the reasons given by the Railway Board that they directed the tramway company to pay a proportion of the cost of the improvements because they were of the opinion that the tramway company would benefit by them.
And later he sums up his reasons for judgment by saying:
The fundamental error underlying the decision of the Railway Board is that they have considered that the fact that the tramway company would be benefitted by the works gave them jurisdiction to make them pay the cost or a portion of it. There is nothing in the "Railway Act" which gives any such jurisdiction.
He further points out that the order does not come under the powers of section 59 of the "Railway Act":
It does not direct that any work should be done. It is an order of a purely permissive character granting a privilege to the corporation which they may exercise at the expense of a third party, and it leaves it to the corporation to decide whether they shall avail themselves of it or not. The provisions of s. 59 relate to a wholly different class of cases.
The substance of the judgment, as I understand it, is that on the facts the works for which the electric company was ordered, on the application of the corporation of the city, to pay a portion of the cost were not works ordered by the Board "for the safety and protection of the public" at railway or highway crossings, but were merely a matter of street improvements, and that the order was of a
purely permissive character granting a privilege to the corporation which they might exercise at the expense of a third party.
There is nothing comparable between such a proposed work and the one ordered in this case. The one is a matter merely of "street improvements" for which a "permissive order" is given and a part of the expense of which if undertaken at all by the corporation is ordered to be paid by an electric company because the works may benefit it. The other, the one before us, is a work ordered by the Railway Commissioners under, as I hold, their paramount power of ordering works at highway and railway crossings for the safety and protection of the public.
As I hold the sections of the Act in question, and before by me specially referred to, to be intra vires of the Parliament of Canada and the works ordered to have been so ordered not as a matter of street improvements but for the safety and protection of the public, I would dismiss the appeal against the jurisdiction of the Board with costs.
I would answer the questions of law submitted to us as follows:
The first question in the affirmative;
The second question: I do not think the agreement referred to in the second and third questions precluded the Board from making the order requiring the Toronto Railway to contribute to the cost of the subway ordered. Idington J.—The Railway Commissioners for Canada, clearly intending to promote the safety of the public and solely for that purpose, acting upon their own initiative, as empowered to do when they see fit for such a purpose, ordered on the 13th September, 1910, their approval of a plan dated May, 1910, filed by the railway company.
The plan so referred to was the result of many meetings and much work by both the officers of the Canadian Pacific Railway Co. and of the Board, in the way of meeting the wishes of the latter to have some of the many grade crossings done away with.
It appears from the circular of 15th July, 1909, that the Board had been prompted, to take the steps it did, by Parliament in 1909 providing aid for the elimination of grade crossings, and by the discussion therein, and the general expression of public opinion.
Such being the origin of what led up to the order of 13th September, 1910, and the subsequent history exhibiting the determination of the Board on the subject, I read this order made, after hearing all the parties concerned, as an imperative direction to the railway companies concerned to eliminate the Avenue Road grade crossing and separate there the grades at crossing of the two railways.
The informal nature of the order leads me to state thus why I assume it must be treated as an order of the character I ascribe to it.
The parties concerned never seem to have supposed it anything else, but like people of sense acted upon it as if it must be obeyed.
The Canadian Pacific Railway Co. apparently had the burden of the work imposed upon it but the other company was put for many months to great inconvenience before venturing to lay its rails on the subway thus created.
In making the order the Board reserved the question of the cost of work and all implied therein for a future hearing, if the parties could not agree.
When that came the appellant disputed any liability and denied any power in the Board to deal with the subject, as it (the appellant) was a purely provincial corporation.
Nevertheless the Board ordered the appellant to pay ten per cent. of the cost and allowed it to appeal on three questions for our decision.
The first is as follows:—
1. Whether the Board had power to order the Toronto Railway Company to contribute to the cost of the construction of the subway in question,
and merely involves the question of jurisdiction in respect of which leave to appeal had already been given by the Chief Justice of this court.
I think, having regard to what appears in the case and which I have tried to epitomize, and also to the general scope of the "Railway Act" and direct requirements of many provisions more or less bearing upon the powers of the Board and especially those of section 8, sub-section (a), section 59 and section 238 of the "Railway Act" that the Board had jurisdiction to make the order now in question.
Section 238 clearly expresses the power to deal with the whole matter by directing the separation of grades.
Section 8, sub-section (a) as clearly indicates the crossing of these roads as a subject matter within the jurisdiction of the Board. And section 59 seems to enable the Board to apportion the cost between those interested and direct payment accordingly.
These sections must be read in the form they now respectively stand, for section 238 as it stood in the R.S.C. 1906 has been repealed and been much expanded by the section substituted therefor in 8 & 9 Edw. VII., ch. 32, sec. 5, probably to meet the Toronto Viaduct Case[8] which I am about to refer to, and incidentally to put beyond question the powers of the Board over such a subject matter as grade crossings. The latter section enables in express terms the Board 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, etc.
My only difficulty in the case is an apparent conflict of authority raised by the decision relied upon in the argument by appellant's counsel to which I am about to refer.
On the one hand we have these clear and explicit provisions of the "Railway Act" as it stands amended and the decision of the Judicial Committee of the Privy Council maintaining decisions of this court and Ontario courts holding, under the provisions of the "Railway Act" as it then stood before the Act was made so explicit as it now is, that mere municipal corporations only indirectly interested were liable to contribute even to a less effective (and only secondary) means of providing for the safety of the public.
I say these municipal corporations were only indirectly interested for they had only, in regard to highways, a duty to keep them in repair. They might or might not own them and had only a limited authority to levy taxes, in short were mere creatures of the local legislature liable to have their powers expanded or contracted as it saw fit. Nevertheless they were held parties interested.
These cases are represented by what appears to be the final authoritative decision of the Judicial Committee in the case of City of Toronto v. The Canadian Racific Railway Co.[9].
It would seem as if the appellant running a street railway across the Canadian Pacific Ely. Company's (respondent's) railway in the locality and situation such as described in the opinion judgment of the Board should be much more directly interested in the safety of the public at that crossing point than any mere municipal corporation.
No one ever supposed for an instant that so long as the highway was kept in repair the municipality was liable for any of the numerous accidents at such crossings. But even provincial railways and tramways have had to suffer in that regard.
Yet, on the other hand, years after the decision above referred to and when section 238 of the Act had been amended and other legislation passed dealing with the very grave question of grade crossings and seeking through the Board to eliminate them in part at least, we have the decision of the court above in the case of the British Columbia Electric Railway Co. v. Vancouver, etc. Railway Co.[10] reversing an order of the Board maintained by this court, approving of a plan for separating the grades as in the order here in question, and directing the appellant (there in question) to contribute to the expense of executing that plan of separation. The difference between the scheme propounded in that plan and the one involved herein is that the municipal corporation plan there was to carry its highway, and therewith the B. C. Electric Railway, over the steam railway, by a bridge instead of as here in question providing for the crossing by the raising of the C. P. Rly. track and the highway going under in a subway wherein the appellant might lay a new track and thus attain identically the same object which was to separate the grades and thus ensure the safety of the public.
One other difference was that the application there was made to the Board by the municipal corporation and here the proceeding is one initiated by the Board.
I am puzzled to know how that creates any substantial difference for section 238 as amended expressly provided for "any municipal or other corporation" moving in the matter. Nor can I see that because that municipal corporation incidentally desired something to proceed in way of settling its street grades contemporaneously with executing a most desirable purpose of eliminating one or more grade crossings, their application should be held null.
It is quite clear that the Board imagined they were acting within the legislation promoting the abolition of grade crossings, for by the order made in that case it provided for three grants of $5,000 each being paid out of the Railway Grade Crossing fund, created by Parliament for the express purpose of eliminating progressively the grade crossings.
The only other distinction between that case and this would seem to be that the order was permissive or conditional instead of being peremptory. Probably that was a gentler method of accomplishing the desired result and could hurt no one, unless and until acted upon, and then would execute the wishes of the Board.
The relations between the appellant and the municipality at that particular juncture added force to the vigorous objections made to that phase of the order.
The distinction between the permissive and conditional character of that order especially under the circumstances existent in connection therewith and this one, clearly made on the initiative of the Board, and free from obvious difficulties suggested in the other, I think distinguishes the two cases sufficiently to maintain the order now in question without at all disregarding the decision of the court above.
It is to be observed that the court above refrained from acting upon the view of the law presented by the minority judgment in that case in this court. That is the more noticeable for the court above drew its statement of fact from that very judgment which strenuously maintained the position that it would be ultra vires Parliament to enact anything upon which such an order as there in question could be founded.
The alleged power of Parliament is what appellant also challenges and denies herein and thus raises the only really important question in this case.
Unless and until it is expressly held by the court above that it is not, as heretofore supposed, to be within the power of Parliament to deal effectively with all relating to crossing railroads (whether they are both the properties of corporate creations of Parliament or one or more the property of a provincial corporation and the other of Parliament) so long as one is the creation of Parliament, I think we are bound by the view taken by the court above in the earlier Toronto case, and certainly not overruled in this later British Columbia Electric Railway Company's Case[11], to abide by what I think has become settled law.
That view of the law was upheld in this court in the case of In re Alberta Railway Act[12], and in the same case in the Privy Council, Attorney-General for Alberta v. Attorney-General for Canada[13], at page 370.
I am not disposed to confine as suggested should be done the words of the "Railway Act" referring to crossing railways to the mere physical contact of a crossing on the level, for the sections of the Act already referred to evidently contemplate a crossing where there is no such crossing contact possible.
Indeed in our country in many places such a thing would be impossible, yet control of the crossings must fall under the words "crossing railways."
I therefore think the appellant came for the purposes of this case within the jurisdiction of the Board.
The leave given originally to appellant to cross the Canadian Pacific Railway on Avenue Road ended, as I understood Mr. McCarthy frankly to concede, when the Board decided on another mode of crossing. And it follows that it must, in using the new method of effecting that crossing, be held assenting to the Board's adoption of the new plan. It must abide by the terms imposed upon its impliedly assenting thereto and accepting and using that new mode.
I say impliedly for there was no express order made in that regard.
Counsel assumes that the appellant had a right to use the highway and needs no more. I do not think it is any answer in law. It is ingenious, but will not stand examination, as someone may find to his cost should he running a car plunge through that subway at the moment of an accident on the spot, when he might need authority for being there at all, and wish his master had got an express order from the Board giving him the right to be there.
As to the other two questions presented I see nothing in the agreement between the appellant and the city disabling the Board from dealing with the matter as it has.
There may be something fairly arguable as to the power of the Board to have placed upon the city part of the burden of the cost, either under the decisions I have referred to, or under those coupled with the terms of the agreement.
I can find nothing in either as a matter of law imperatively binding the Board to do so. And when the safety of the public is the chief thing involved, then the inutility of contracts or implication therein for or by-way of binding the power of the Board was exemplified in Canadian Pacific Railway Co. v. City of Toronto et al[14], and in the same case in this court. Sections 237 and 248, possibly enacted to fit that case and all such like, were made to predominate over everything else standing in the way of the Board.
I express, indeed have, no opinion as to the legal right to remedy now by one against the other of such contracting parties as the appellant and the city.
Perhaps if the orders of the Board presented in a formally express manner the exact authority it is presuming to act under, the doing so might avoid some confusion and possible miscarriage of what it intends to direct. I may also add that much we heard of the Yonge Street crossing and its relation to the questions involved herein seems to me beside that which we have to deal with.
Yonge Street crossing turned out to be a mere question of public convenience which is equally within the power of the Board as that relative to the safety of the public.
It has nothing to do with the questions raised herein except historical, as it were.
I see no reason why the Board should not deal with both questions at the same time.
I think the appeal should be dismissed with costs.
Anglin J.—The Toronto Railway Company, a provincial corporation operating a line of electric tramway on Avenue Road, a public street in the City of Toronto, appeals against an order of the Dominion Board of Railway Commissioners, whereby it is required to pay one-tenth of the cost of constructing a subway ordered by the Board at the crossing of Avenue Road by the tracks of the Canadian Pacific Railway Company, a Dominion corporation operating a steam railway. At the point in question there had been since 1902 a crossing at rail level of the tracks of the Canadian Pacific Railway, by the tracks of the Toronto Railway, authorized by orders of the Railway Committee of the Privy Council made on the application of the Toronto Railway Company under sections 173-177 of the Dominion "Railway Act" of 1888—the predecessors of ss. 227-229 of the present "Railway Act," R.S.C., 1906, c. 37. By those orders the Toronto Railway Company was required to provide, and to pay the cost of maintaining, certain additional protection at this highway crossing ordered by the Railway Committee in consequence of the advent of its tramway.
In 1909 the Dominion Parliament established a fund for
aiding in the providing by actual construction work of protection, safety and convenience for the public in respect of highway crossings of the railway at rail level.
and placed the administration of this fund, subject to certain restrictions, in the hands of the Railway Board ("Railway Act," s. 239 (a) enacted by 8 & 9 Edw. VII., c. 32, s. 7.)
The record discloses that the proceedings which led to the making of the order for the separation of the grades of the C. P. Railway and of Avenue Road, including the grade of the Toronto Railway, were initiated on July 1st, 1909, by the Railway Board of its own motion for the purpose of carrying out the intention of Parliament in passing the legislation of that year embodied in s. 239 (a) of the "Railway Act." No doubt the project for the elimination of the level crossing at Yonge Street which was first taken up, probably because it was the most important, led to the consideration of the neighbouring crossing at Avenue Road and to the direction g