Kootenay & Elk Railway Co. v. Canadian Pacific Railway Co.

Kootenay & Elk Railway Co. v. Canadian Pacific Railway Co.
Collection
Supreme Court Judgments
Date
1972-05-01
Report
[1974] SCR 955
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Canada
Subjects
Appeal
Transportation
Decision Content
Supreme Court of Canada
Kootenay & Elk Railway Co. v. Canadian Pacific Railway Co., [1974] S.C.R. 955
Date: 1972-05-01
Kootenay and Elk Railway Company and Burlington Northern, Inc. Appellants;
and
Canadian Pacific Railway Company Respondent;
and
Attorney-General of British Columbia, Minister of Highways and Transport for Alberta and Canadian National Railways Intervenants.
1971: October 13, 14, 15; 1972: May 1.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE CANADIAN TRANSPORT COMMISSION
Railways—Line of provincially incorporated railway company and line of American company each to stop ¼ inch from international border—Traffic Interchange Agreement—Applications made to Canadian Transport Commission dismissed—Appeal—Railway Act, R.S.C. 1952, c. 234, ss. 156(1), 315 and 319—Crow’s Nest Pass Act, 1897 (Can.), c. 5, s. 1(f).
Appeal—No opinion on question of law expressed by Canadian Transport Commission—Whether appeal lies to Supreme Court of Canada—Railway Act, R.S.C. 1952, c. 234, s. 53.
The appellant Burlington Northern, Inc., a company incorporated under the laws of the State of Delaware, proposed to construct a line of railway, in Montana, north from its main line, in the United States, for a distance of a little over nine miles to the United States-Canada border near Roosville West, in British Columbia. The appellant Kootenay and Elk Railway Co. proposed to construct a line of railway, in British Columbia, running generally south from Line Creek, in the Kootenay mining district, to the border to a point of junction with the proposed Burlington line. Kootenay, incorporated under the Railway Act of British Columbia, and intended to operate in connection with the mines of the Crow’s Nest Pass Coal Co. Ltd. and of Kaiser Resources Ltd., and not as a common carrier, was a wholly-owned subsidiary of Crow’s Nest.
It was proposed that the line to be constructed by Kootenay would cross the line of the Canadian Pacific Railway Co. at Hosmer, or that Kootenay should obtain running rights over the C.P.R. line between Elko and Natal. The construction plan called for the Burlington and Kootenay lines each to stop ¼ of an inch from the border. It was proposed that trains of Burlington would be brought by its crews to a point north of the border, where they would be taken over by Kootenay’s crews to be operated over its line to the coal loading points. They would operate the trains carrying the coal back to the point where Burlington’s crews would take over. None of Kootenay’s personnel would operate the trains over the border or in the United States.
The purpose of the construction of these two lines of railway was to enable coal mined from the properties of Crow’s Nest and Kaiser to be shipped by way of Burlington’s main line, west to the Pacific coast, and thence to Roberts Bank, in British Columbia, for shipment to Japan.
Applications were made by the appellants to the Canadian Transport Commission for: (1)(a) an order granting leave to join the proposed lines and (b) an order granting leave to Burlington to operate its trains on the Kootenay line for the purpose of providing a free interchange of trains; (2) an order granting leave for the crossing, by way of overpass, of the line of C.P.R. between Michel and Elko at a point north of Hosmer; and (3) the granting of running rights over the C.P.R. line between Natal and Elko. The second application was an alternative to the third application, which the appellants stated would be withdrawn if the third application was granted.
All three applications were dismissed and the appellants, with leave, then appealed to this Court. Leave was also granted to the respondent, the Canadian Pacific Railway Co., to cross-appeal.
Held (Fauteux C.J. and Judson, Hall and Pigeon JJ. dissenting): The appeal should be allowed in part. (Hall and Spence JJ. dissenting in part): The cross-appeal should be dismissed.
The opinion of the Court on the questions raised by leave in the appeal was as follows:
Q. (1). Was the Canadian Transport Commission in error in not holding that the agreement or arrangement between Burlington and Kootenay for interchange of traffic is authorized or permitted inter alia under ss. 315 and 319 of the Railway Act, R.S.C. 1952, c. 234?
A. No.
Q. (2). Was the Canadian Transport Commission in error in holding that the agreement or arrangement between Burlington and Kootenay for interchange of traffic was prohibited by s. 156(1) of the Railway Act, supra?
A. Yes. Fauteux C.J. and Judson, Hall and Pigeon JJ. dissenting.
The opinion of the Court on the questions raised by leave in the cross-appeal was as follows:
Q. (1). Did the Canadian Transport Commission err in law when it found that s. 1(f) of the Crow’s Nest Pass Act, 1897 (Can.), c. 5, vests in the Canadian Transport Commission the necessary jurisdiction for granting running rights over Canadian Pacific’s Crow’s Nest Line to a provincial railway company?
A. No.
Q. (2). Did the Canadian Transport Commission err in law when it found that, in considering and determining applications for the junction or crossing of railways made under s. 255 of the Railway Act, supra, the Commission is concerned with matters of safety only, and cannot properly take into account other considerations of public interest?
A. No.
Q. (3). Did the Canadian Transport Commission err in law when it failed to find that Kootenay was part of an extraprovincial undertaking?
A. No. Hall and Spence JJ. dissenting. As to the questions raised in a factum filed by the Commission, Hall J. would refer those questions back to the Commission for decision by the Commission before it acts on the answer given in respect of s. 156(1) of the Railway Act, supra.
APPEAL and CROSS-APPEAL from an order of the Canadian Transport Commission dismissing certain applications made by the appellants. Appeal allowed in part, Fauteux C.J. and Judson, Hall and Pigeon JJ. dissenting. Cross-appeal dismissed, Hall and Spence JJ. dissenting in part.
J.J. Robinette, Q.C., J.G. Alley and W.G. Burke-Robertson, Q.C., for the appellants.
A. Findlay, Q.C., E.E. Saunders, Q.C., and G.P. Millar, Q.C., for the respondent.
A.W. Macdonald, Q.C., and P.B. Tetro, for the Attorney-General of British Columbia.
J.J. Frawley, Q.C., for the Minister of Highways and Transport of Alberta.
The judgment of Fauteux C.J. and Judson and Pigeon JJ. was delivered by
THE CHIEF JUSTICE (dissenting)—In my opinion, the Canadian Transport Commission did not err in law in holding that the agreement or arrangement between Burlington Northern, Inc. and Kootenay and Elk Railway Company for the interchange of traffic was prohibited by s. 156(1) of the Railway Act, R.S.C. 1952, c. 234; and I find nothing that could usefully be added to the reasons given on this point by the Vice-President of the Canadian Transport Commission and by Hall J. in this Court.
Concerning the other questions of law raised in the appeal and in the cross-appeal, I agree with the reasons and conclusion of the Commission.
I would dismiss the appeal and the cross-appeal with costs.
The judgment of Abbott, Martland and Ritchie JJ. was delivered by MARTLAND J.—This appeal is brought, with leave, from an order of the Canadian Transport Commission, which dismissed three applications made by the appellants. The leave to appeal was granted on the following questions of law:
1) Was the Canadian Transport Commission in error in not holding that the agreement or arrangement between Burlington Northern, Inc. and Kootenay and Elk Railway Company for interchange of traffic is authorized or permitted inter alia under section 315 and 319 of the Railway Act?
(At the time of the application that Act was c. 234, R.S.C. 1952. It is now c. R-2, R.S.C. 1970. References in these reasons are made to section numbers as they existed under the earlier Act, which was in effect at the time leave to appeal was granted.)
2) Was the Canadian Transport Commission in error in holding that the agreement or arrangement between Burlington Northern, Inc. and the Kootenay and Elk Railway Company for interchange of traffic was prohibited by section 156(1) of the Railway Act?
Leave was also granted to the respondent to cross-appeal. The questions of law stated in the respondent’s notice of cross-appeal are as follows:
1) Did the Canadian Transport Commission err in law when it found that Section 1(f) of the Crow’s Nest Pass Act (60/61 Victoria, Chapter 5) vests in the Canadian Transport Commission the necessary jurisdiction for granting running rights over Canadian Pacific’s Crow’s Nest Line to a provincial railway company?
2) Did the Canadian Transport Commission err in law when it found that, in considering and determining applications for the junction or crossing of railways made under Section 255 of the Railway Act, the Commission is concerned with matters of safety only, and cannot properly take into account other considerations of public interest? 3) Did the Canadian Transport Commission err in law when it failed to find that the Kootenay and Elk Railway Company was part of an extraprovincial undertaking?
The circumstances which gave rise to the three applications made by the appellants are that the appellant Burlington Northern, Inc., hereinafter referred to as “Burlington”, proposes to construct a line of railway, in Montana, north from its main line, in the United States, for a distance of a little over nine miles to the United States-Canada border near Roosville West, in British Columbia. The appellant Kootenay and Elk Railway Company, hereinafter referred to as “Kootenay”, proposes to construct a line of railway, in British Columbia, running generally south from Line Creek, in the Kootenay mining district, to the border to a point of junction with the proposed Burlington line.
It is proposed that this line cross the line of Canadian Pacific Railway Company, hereinafter referred to as “C.P.R.”, at Hosmer, or that Kootenay should obtain running rights over the C.P.R. line between Elko and Natal. The construction plan calls for the Burlington and Kootenay lines each to stop ¼ of an inch from the border. It is proposed that trains of Burlington would be brought by its crews to a point north of the border, where they would be taken over by Kootenay’s crews to be operated over its line to the coal loading points. They would operate the trains carrying the coal back to the point where Burlington’s crews take over. None of Kootenay’s personnel would operate the trains over the border or in the United States.
The purpose of the construction of these two lines of railway is to enable coal mined from the properties of Crow’s Nest Pass Coal Company Limited, hereinafter referred to as “Crow’s Nest”, and of Kaiser Resources Limited, hereinafter referred to as “Kaiser”, to be shipped by way of Burlington’s main line, west to the Pacif- ic coast, and thence to Roberts Bank, in British Columbia, for shipment to Japan.
Burlington is a company incorporated under the laws of the State of Delaware and is the successor, by merger and amalgamation, of several American railway companies, some of which had interests in the operation of railways in Canada. The merger and amalgamation were authorized, in respect of Canadian operations, by c. 23 of the Statutes of Canada, 1965. Kootenay was incorporated on May 4, 1966, under the provisions of the Railway Act of British Columbia, c. 329, R.S.B.C., 1960. It is intended to operate in connection with the mines of Crow’s Nest and Kaiser, and not as a common carrier. It is a wholly-owned subsidiary of Crow’s Nest. It has received the necessary certificates required under the provisions of the British Columbia Railway Act.
The project which gave rise to the appellants’ applications originated in 1965 after Crow’s Nest had failed to negotiate with C.P.R. a satisfactory rate for the transportation of its coal to the west coast. Subsequently Kaiser purchased from Crow’s Nest the coal producing properties then concerned, and was able to negotiate an agreement with C.P.R. The situation changed when Crow’s Nest found coal in other areas which it controlled and Kaiser found new reserves on its properties. The project was then revived.
The three applications made by the appellants to the Canadian Transport Commission are as follows:
Application No. 1 is for (a) an order under s. 255, now s. 193(1), of the Railway Act of Canada granting leave to join the proposed lines and (b) an order granting leave to Burlington to operate its trains on the Kootenay line for the purpose of providing a free interchange of trains. Application No. 2 is for an order, also under s. 255, granting leave for the crossing, by way of an overpass, of the line of C.P.R. between Michel and Elko at a point north of Hosmer. Application No. 3 is for the granting of running rights over the C.P.R. line between Natal and Elko, and is made pursuant to s. 1(f) of Chapter 5 of the Statutes of Canada, 1897 (the Crow’s Nest Pass Act). Application No. 2 was an alternative to application No. 3, which the appellants stated would be withdrawn if application No. 3 was granted.
The applications were opposed by C.P.R.
Section 255 of the Railway Act, under which the first two applications were made, provides as follows:
255. (1) The railway lines or tracks of any railway company shall not cross or join or be crossed or joined by or with any railway lines or tracks other than those of such company, whether otherwise within the legislative authority of the Parliament of Canada or not, until leave therefor has been obtained from the Commission as hereinafter provided.
(2) Upon any application for such leave the applicant shall submit to the Commission a plan and profile of such crossing or junction, and such other plans, drawings and specifications as the Commission may, in any case, or by regulation, require.
(3) The Commission may, by order,
(a) grant such application on such terms as to protection and safety as it deems expedient;
(b) change the plan and profile, drawings and specifications so submitted, and fix the place and mode of crossing or junction;
(c) direct that one line or track or one set of lines or tracks be carried over or under another line or track or set of lines or tracks;
(d) direct that such works, structures, equipment, appliances and materials be constructed, provided, installed, maintained, used or operated, watchmen or other persons employed, and measures taken, as under the circumstances appear to the Commission best adapted to remove and prevent all danger of accident, injury or damage;
(e) determine the amount of damage and compensation, if any, to be paid for any property or land taken or injuriously affected by reason of the construction of such works;
(f) give directions as to supervision of the construction of the works; and
(g) require that the detail plans, drawings and specifications of any works, structures, equipment or appliances required, shall, before construction or installation, be submitted to and approved by the Commission.
(4) No trains shall be operated on the lines or tracks of the applicant over, upon or through such crossing or junction until the Commission grants an order authorizing such operation.
(5) The Commission shall not grant such last mentioned order until satisfied that its orders and directions have been carried out, and that the provisions of this section have been complied with.
It is not in issue, on this appeal, that Burlington is a railway company, within the meaning of s. 255(1), and that the joining of the lines of Burlington and Kootenay requires the leave of the Commission under that subsection.
The conclusions of the Canadian Transport Commission may be briefly summarized as follows: It would have granted the applications if it had not decided that the proposed interchange of traffic was prohibited by s. 156(1) (now s. 94(1)) of the Railway Act. It decided the questions of law raised by the cross-appeal in favour of the appellants.
The first issue to be determined is whether the Commission’s conclusion as to the meaning and effect of s. 156(1) is correct. Section 156 of the Act provides as follows:
156. (1) The directors of the company may, at any time, make and enter into any agreement or arrangement, not inconsistent with the provisions of this or the Special Act, with any other transportation company operating as a common carrier either in Canada or elsewhere, for the interchange of traffic and for the division and apportionment of tolls in respect of such traffic.
(2) The directors may also make and enter into any agreement or arrangements, nor inconsistent with the provisions of this or the Special Act, for any term not exceeding twenty-one years
(a) for the running of the trains of one company over the tracks of another company;
(b) for the division and apportionment of tolls in respect of such traffic;
(c) generally in relation to the management and working of the railways, or any of them, or any part thereof, and of any railway or railways in connection therewith; and
(d) to provide, either by proxy or otherwise, for the appointment of a joint committee for the better carrying into effect of any such agreement or arrangement, with such powers and functions as are considered necessary or expedient;
subject to the like consent of the shareholders, the sanction of the Governor in Council upon the recommendation of the Commission, application, notices and filing, as hereinbefore provided with respect to amalgamation agreements; publication of notices in the Canada Gazette is sufficient notice, and the duplicate original of such agreement or arrangement shall, upon being sanctioned, be filed with the Commission.
(3) The Commission may, notwithstanding anything in this section, by order or regulation, exempt the company from complying with any of the foregoing conditions, with respect to any such agreement or arrangement made or entered into by the company for the transaction of the usual and ordinary business of the company, and where such consent of the shareholders is deemed by the Commission to be unnecessary.
(4) Neither the making of any such arrangement or agreement, nor anything therein contained, nor any approval thereof, restricts, limits, or affects any power by this Act vested in the Commission, or relieves the companies from complying with the provisions of this Act. It was the opinion of the Commission that, as s. 156(1) only permitted agreements for the interchange of traffic to be made “with any other transportation company operating as a common carrier”, it prohibited such an agreement with a transportation company, not a common carrier, and, as Kootenay was not a common carrier, the agreement by Burlington with it was prohibited.
Reference was made to three cases, which had been cited by counsel for the C.P.R., Shrewsbury & Birmingham Railway Company v. North Western Railway Company[1]; Great Western Railway Company v. Grand Trunk Railway Company[2]; and Ashbury Railway Carriage and Iron Company v. Riche[3], as illustrative of the theory that where a corporation is given by statute specific authority and the power to enter into certain types of contracts it is implicitly prohibited from making other types of contracts.
Those cases are concerned with the doctrine of ultra vires, and illustrate the principle that a company which owes its incorporation to statutory authority cannot effectively do anything beyond the powers expressly or impliedly conferred upon it by its statute or memorandum of association. Burlington, which was incorporated in the State of Delaware, was given power, among other things:
1. To engage in any and all branches of the business of transportation, whether by railroad, motor vehicle, pipe line, water, air, or any other means of conveyance whatsoever now in existence or hereafter invented or developed.
12. To enter into, make and perform contracts of every kind and description, with any person, firm, association, corporation, joint-stock company, syndicate, trust, body politic or any other entity.
16. To have one or more offices, and to carry on all or any of its operations and business in any of the states, districts, territories or possessions of the United States, and in any and all foreign countries, subject to applicable law.
There is, therefore, no doubt as to its corporate authority to enter into the traffic interchange agreement with Kootenay. The question is whether, having that power, s. 156(1) prohibits it from making such agreement. This is not the case of a railway company which, in the absence of the powers conferred by s. 156(1), would have no power to make a traffic interchange agreement. It is the case of a company which has such power, and which does not need to resort to that subsection.
Section 156 is, by its terms, not a prohibitory provision, but an enabling provision. Its original predecessor was s. 48(1) of c. 68, Statutes of Canada, 31 Victoria, 1867/8, which provided as follows:
48. The Directors of any Railway Company may, at any time, make agreements or arrangements with any other Company either in Canada or elsewhere, for the regulation and interchange of Traffic passing to and from their Railways, and for the working of the traffic over the said Railways respectively, or for either of those objects separately, and for the division and apportionment of tolls, rates and charges in respect of such traffic, and generally in relation to the management and working of the Railways, or any of them, or any part thereof, and of any Railway or Railways in connection therewith, for any term not exceeding twenty-one years, and to provide, either by proxy or otherwise, for the appointment of a Joint Committee or Committees for the better carrying into effect any such agreement or arrangement, with such powers and functions as may be considered necessary or expedient, subject to the consent of two thirds of the Stockholders voting in person or by proxy.
This subsection conferred upon the directors of a railway company the power to enter into certain kinds of agreement, as defined, but subject to their obtaining the consent of two thirds of the stockholders of the company.
This provision appeared again as s. 60(1) of c. 9, Statutes of Canada, 42 Victoria, 1879. Section 60(1) was amended in 1883, by s. 11, c. 24, Statutes of Canada, 46 Victoria, 1883/4, by requiring, in addition to the consent of two thirds of the stockholders, the approval of the Governor in Council. The section, as amended, appeared as s. 56(2) of c. 109 of the Revised Statutes of Canada, 1886.
A significant change occurred when the Railway Act was revised in 1903, c. 58, s. 284. Whereas up to that time the powers of the directors to make the kinds of agreement defined in the section had required the approval of two thirds of the stockholders and, later, as noted, the consent of the Governor in Council, the powers of the directors were now defined in two subsections, and the powers granted under the first subsection were not made subject to such approval and consent. This change was carried forward into c. 37 of the Revised Statutes of Canada, 1906, in s. 364, which reads:
364. The directors may, at any time, make and enter into any agreement or arrangement, not inconsistent with the provisions of this or the Special Act, with any other company, either in Canada or elsewhere, for the interchange of traffic between their railways or vessels, and for the division and apportionment of tolls in respect of such traffic.
2. The directors may also make and enter into any agreement or arrangements, not inconsistent with the provisions of this or the Special Act, for any term not exceeding twenty-one years,—
(a) for the running of the trains of one company over the tracks of another company;
(b) for the division and apportionment of tolls in respect of such traffic;
(c) generally in relation to the management and working of the railways, or any of them, or any part thereof, and of any railway or railways in connection therewith; and,
(d) to provide, either by proxy or otherwise, for the appointment of a joint committee for the better carrying into effect of any such agreement or arrangement, with such powers and functions as are considered necessary or expedient;
subject to the like consent of the shareholders, the sanction of the Governor in Council upon the recommendation of the Board, application, notices and filing, as hereinbefore provided with respect to amalgamation agreements: Provided that publication of notices in the Canada Gazette shall be sufficient notice, and that the duplicate original of such agreement or arrangement shall, upon being sanctioned, be filed with the Board.
It will be noted that the exercise of the power of the directors to enter an agreement for the interchange of traffic was no longer to be subject to their obtaining the consent of a required majority of the shareholders. It was only those kinds of agreements which are described in subs. (2) which would require the same kind of shareholders’ consent as was necessary with respect to amalgamation agreements; i.e., two thirds of the votes of the shareholders at a meeting at which shareholders representing at least two thirds in value of the capital stock of the company were present or represented by proxy.
This section continued in substantially the same form in the Revised Statutes of Canada in 1927 and in 1952. In 1967 the National Transportation Act was enacted (c. 69, Statutes of Canada, 14-15-16 Elizabeth II, 1966-67). Section 1 declared, in part, that “an economic, efficient and adequate transportation system making the best use of all available modes of transportation at the lowest total cost is essential to protect the interests of the users of transportation and to maintain the economic well-being and growth of Canada.” It applies to transportation by railways subject to the Railway Act, by air, water, and by commodity pipe line or by a motor vehicle undertaking connecting a province with any other or others of the provinces or extending beyond the limits of a province.
It was in this context that s. 39 was enacted to repeal s. 156(1) of the Railway Act and to substitute the subsection as it now stands. Prior to this amendment the subsection had referred to an agreement with “any other company, either in Canada or elsewhere, for the interchange of traffic between their railways or ves- sels.” The subsection now refers to an agreement “with any other transportation company operating as a common carrier either in Canada or elsewhere, for the interchange of traffic.” The effect of this change was to expand the unrestricted power of the directors of a railway company to make traffic interchange agreements by permitting their making such agreements with any transportation company, and not only with another railway company, but to provide that such transportation company must be a common carrier.
The amendment did not alter the fact that the powers conferred by s. 156(1) continued to be powers conferred upon the directors of a railway company which they could exercise without the necessity of obtaining the approval of the shareholders or the sanction of the Governor in Council. I do not accept the contention that such a provision, which, in terms, confers specific powers on the directors of a railway company, must be construed as a prohibition against the company itself, as distinct from its directors, entering into a traffic interchange agreement with another railway company, which is not a common carrier, provided that it has the necessary corporate powers to enable it to do so.
I do not think that the amendment made by s. 39 of the National Transportation Act was intended to effect such a prohibition. If it were so construed it would prevent C.P.R. or Canadian National Railways from making an agreement for the interchange of traffic with a logging or mining railway operating under the provisions of s. 202 of the British Columbia Railway Act.
It was the contention of the respondent that when s. 156(1) spoke of the directors it should be construed as meaning the company itself. I find this submission difficult to accept when considered in relation to the past history of s. 156 and its predecessors. Throughout that history it is clear that reference to the directors meant precisely what it said, and was not intended to refer to the company itself.
The Railway Act, when conferring powers on a railway company, or prohibiting the doing of certain things, has clearly made specific reference to the company itself; e.g., s. 137, dealing with the power to mortgage its property, s. 147, dealing with the power to borrow, s. 150, dealing with the power to dispose of lands acquired from the Crown, s. 164, dealing with the general powers of the company, s. 149, prohibiting the purchase of railway stock, and ss. 192 and 195, prohibiting the taking of possession of Crown or Indian lands without the consent of the Governor in Council.
In my opinion, therefore, the second of the two questions on which leave to appeal was granted should be answered in the affirmative.
I turn now to the first question of law raised in this appeal, as to whether the agreement between Burlington and Kootenay is authorized or permitted under ss. 315 and 319 (now ss. 262 and 265) of the Railway Act. The contention that it was so authorized or permitted was made by the appellants in answer to the respondent’s contention that such agreement was forbidden by s. 156(1). If it was not forbidden by that forbidden subsection, as in my opinion it was not, the answer to this question is not of any real significance. If s. 156(1) were effective to prohibit the agreement, it is my view that the appellants would not be taken out of the operation of that section by the provisions of ss. 315 and 319.
The relevant portions of those sections read as follows:
315. (1) The company shall, according to its powers,
(a) furnish, at the place of starting, and at the junction of the railway with other railways, and at all stopping places established for such purpose, adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage upon the railway;
…
(2) Such adequate and suitable accommodation shall include reasonable facilities for the junction of private sidings or private branch railways with any railway belonging to or worked by the company, and reasonable facilities for receiving, forwarding and delivering traffic upon and from those sidings or private branch railways, together with the placing of cars and moving them upon and from such private sidings and private branch railways.
319. (1) All railway companies shall, according to their respective powers, afford to all persons and companies all reasonable and proper facilities for the receiving, forwarding and delivering of traffic upon and from their several railways, for the interchange of traffic between their respective railways, and for the return of rolling stock.
…
(5) The reasonable facilities that every railway company is required to afford under this section, shall include reasonable facilities for the junction of private sidings or private branch railways with any railway belonging to or worked by any such company, and reasonable facilities for receiving, forwarding and delivering traffic upon and from those sidings or private branch railways.
The provisions upon which the appellants rely are those contained in s. 315(2) and s. 319(5). I do not regard the Kootenay line as being a private branch railway within the meaning of those two subsections. I agree with the view expressed in Coyne’s Railway Law in Canada, 1947, p. 400, where the author, after pointing out that there is no definition in the Act of “private sidings” or “private branch railways”, goes on to say that they no doubt mean railways constructed without legislative authority. No such authority is required to enable a person to construct a railway on his own land. This issue is dealt with in the decision of the Commission as follows:
In argument, Counsel for the applicants did not deny the fact—which is obvious enough—that an interchange of traffic would take place at the border, but argued that the applicable provisions in this case are found in ss. 315 and 319 of the Railway Act, and not s. 156. Both ss. 315 and 319 relate to the obligations of companies to accommodate traffic, and subs. (5) of s. 319 imposes upon railway companies the specific obligation to afford “reasonable facilities for the junction of private sidings or private branch railways with their own railways and for receiving, forwarding and delivering traffic upon and from those sidings or private branch railways.” The fact is that, notwithstanding Mr. Prentice’s affirmation that the K. & E. is an extension of “his” (Crow’s Nest’s) plant, K & E. is neither a private siding nor a private branch railway in any legal sense. At all events, any statutory obligation B.N. might have under s. 319 to serve a private siding or a private branch railway cannot obscure the realities of a situation whereby B.N. has been and continues to be a voluntary and active participant in the total project, and, as admitted by Mr. Downing, has an “arrangement” with K. & E. That arrangement, in my view, is clearly one for the interchange of traffic with K. & E.
I agree with this view, and would answer the first question of law in this appeal in the negative.
The three legal issues raised on the cross-appeal now have to be considered. The first of these involves the consideration of the meaning and effect of the Crow’s Nest Pass Act, 1897 (Can.), c. 5. It was enacted on June 29, 1897, and was styled as “An Act to authorize a subsidy for a Railway through the Crow’s Nest Pass.” It authorized the Governor in Council to grant a subsidy to C.P.R., towards the construction of a railway from Lethbridge, in the district of Alberta, to Nelson, in the province of British Columbia, through the Crow’s Nest Pass, provided that an agreement was entered into between the Government and C.P.R. containing covenants, as specified in the Act. The covenant, relevant to the issue in this appeal, is that which is contained in s. 1(f) of the Act, which provides:
(f) That the Railway Committee of the Privy Council may grant running powers over the said line of railway and all its branches and connections, or any portions thereof, and all lines of railway now or hereafter owned or leased by or operated on account of the Company in British Columbia south of the Company’s main line of railway, and the necessary use of its tracks, stations and station grounds, to any other railway company applying for such grant upon such terms as such Committee may fix and determine, and according to the provisions of The Railway Act and of such other general Acts relating to railways as are from time to time passed by Parliament; but nothing herein shall be held to imply that such running powers might not be so granted without the special provision herein contained;
It is the contention of C.P.R. that the words “any other railway company” in this provision must be restricted to mean a railway company within the legislative authority of the Parliament of Canada, and that Kootenay, being a provincially incorporated railway company, is not within this provision.
Section 2(28) of the Railway Act defines a “Special Act”, when used with reference to a railway, as meaning any Act under which the company has authority to construct or operate a railway, or that is enacted with special reference to such railway. The Act in question was enacted with special reference to a railway to be constructed by C.P.R. from Lethbridge to Nelson.
Section 3(b) of the Railway Act provides that: (b) 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 override the provisions of this Act.
The clear purpose of the Crow’s Nest Pass Act was to subsidize C.P.R. with public funds with a view to assisting in the development of the areas which the railway line to be constructed by C.P.R. would serve. There is no definition of “railway company” in this Act, but in the light of that purpose, and of the use of the words “any other” in relation to “railway company”, I cannot construe those words as excluding from s. 1(f) a railway company incorporated in British Columbia to operate in the area defined in that paragraph.
I would, therefore, answer this question in the negative.
The next question is as to whether, in determining an application under s. 255 for the junction or crossing of a railway, the Commission must take into account considerations of public policy. In essence, the respondent contends that an application under this section should be considered as though the issue is as to whether it is a matter of public convenience and necessity that such application be granted.
The answer to this question is to be found in the wording of s. 255, which has already been cited in full. Subsection (1) of that section forbids the railway lines or tracks of any railway company from crossing or joining those of any other railway company unless leave of the Commission is obtained “as hereinafter provided.” Subsection (2) stipulates the material to be submitted to the Commission by the applicant for consideration by the Commission in deciding upon such application; i.e., a plan and profile of the crossing or junction and such other plans, drawings and specifications as the Commission may, in any case, or by regulation, require. None of this material relates to the economic feasibility or desirability of the railway line of the applicant.
The powers of the Commission on such an application are set out in subs. (3). It may grant the application “on such terms as to protection and safety as it deems expedient.” It may change the plans and may fix the place of the crossing or junction. It may direct that the line or track be carried over or under the other line or track. It may direct various measures to be taken to prevent danger of accident, injury or damage. It may determine the amount of damage and compensation for land taken or injuriously affected by the construction. It can give directions as to supervision of the construction and it can require submission of detailed plans, drawings and specifications of the works, structures, equipment or appliances required, before construction or installation, to be approved by the Commission.
None of these matters relates to the question of public convenience or necessity. When an issue of that kind is intended to be considered by the Commission, Parliament has specifically so stated. An example of this is found in s. 185 under the heading of “Branch Lines”:
185. (1) The Commission, if satisfied that the branch line is necessary in the public interest or for the purpose of giving increased facilities to business, and if satisfied with the location of such branch line, and the grades and curves as shown on such plan, profile and book of reference, may, in writing, authorize the construction of the branch line in accordance with such plan, profile and book of reference, or subject to such changes in location, grades and curves as the Commission may direct.
A similar example is to be found in s. 188 (1). In these circu