Ottawa Electric Rly Co. v. Township of Nepean

Ottawa Electric Rly Co. v. Township of Nepean
Collection
Supreme Court Judgments
Date
1920-03-08
Report
(1920) 50 SCR 216
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
Ottawa Electric Rly Co. v. Township of Nepean, (1920) 50 SCR 216
Date: 1920-03-08
The Ottawa Electric Railway Company
Appellants;
And
The Township of Nepean and Others.
Respondents .
1919: Nov.17; 1920: Feb. 3, 4; Mar. 8.
Present:-Sir Louis Davies C.J. and Idington, Duff, Anglin Brodeur and Mignault JJ
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.
Railway Board—Ottawa Electric Ry. Co.—Tariff of rates—Agreement with City—Britannia extension—Separate rates—Powers of Board.
In establishing a tariff of rates for carriage of passengers on the cars of the Ottawa Electric Ry. Co. the Board of Railway Commissioners should consider the portion of the line from Holland Avenue to Britannia separately from the rest and fix the rates therefor without regard to the conditions of carriage on the remainder of the system.
Held, per Duff, Brodeur and Mignault JJ., Davies C.J. contra, that under its agreement with the City of Ottawa, made in 1893, establishing five cents as the maximum of fares for the carriage of passengers within the city limits, the right of the company to charge any rate up to that maximum was not, prior to the enactment of sec. 325 (5) of the Railway Act of 1919, subject to the control of the Board.
Per Anglin J. The power conferred on the company by earlier provincial legislation to fix its rates of fare was continued by the Dominion Acts of 1892 and 1894 and thus became as to the City of Ottawa of 1893 the subject of " a Special Act" which, under sec. 3 of the Railway Act of 1906 overrides the general jurisdiction of the Railway Board over fares and tolls.
APPEAL from a decision of the Board of Railway Commissioners for Canada by leave of the Board on questions of law.
The following questions were submitted by the Board for the opinion of the Court. “(1) Whether upon the proper construction of the agreements with the City of Ottawa and the Village of Hintonburg the statutes relating to the Ottawa Electric Railway Co. and the relevant provisions of the Railway Acts, the Board was right in disallowing the tariff of the Company filed providing for payment of additional fare for carriage upon the extension from Holland Avenue notwithstanding that the Board has found as a fact that the Company did not require additional revenue.
“(2) Also whether upon the proper construction of the said agreements and statutes for the purpose of computing the toll to be charged to passengers upon the said extension the point of commencement of the said extension should be considered to be at Holland Avenue or at the former westerly limit of the Village of Hintonburg now the city of Ottawa.
“(3) Has the Board the right to treat the Company's operations as a whole and continue the existing tariff; or must the Board permit the filing of tariffs on a mileage basis covering services on the Britannia line without reference to the larger part of the system covered by municipal agreements."
By virtue of an agreement with the City of Ottawa the company could not exact a higher rate than five cents for carrying passengers within the city limits but they asked the Board to sanction a higher rate for the part of the line running to Britannia. This the Board refused to do on the ground that as the system as a whole was profitable additional revenue was not required.
The court heard counsel on these questions and ordered a re-argument on three others, namely: “(1) Has the Board of Railway Commissioners authority to reduce the company's charge for passenger services within the City of Ottawa below the fare of 5 cents now charged for any such service?
“(2) If the first question is answered in the negative, has the Board power to require the company to provide a service partly within and partly beyond the limits of the City of Ottawa for a charge not exceeding 5 cents?
“(3) In passing upon the questions raised upon this appeal, is the court in any respect governed by section 325 of the Railway Act of 1919?"
Chrysler K.C. for the appellants.
Denison K.C., and Wentworth Greene, for the Township of Nepean.
J. E. Caldwell, for the Village of Westboro. F. B. Proctor, for the City of Ottawa.
THE CHIEF JUSTICE—This is an appeal from the order or judgment of the Board of Railway Commissioners rejecting an application of the appellant company for leave to charge a higher rate than the existing one upon that portion of their railway known as the Britannia section or extension.
All the facts necessary for our decision on the questions of law referred to us are stated very fully in the reasons of the Chief Commissioner, Sir Henry Drayton, with which the rest of the Board concurred. Three questions are asked by them for us to answer. They are as follows:—
(1) Whether upon the proper construction of the agreements with the City of Ottawa and the Village of Hintonburg the statutes relating to the Ottawa Electric Railway Company and the relevant provisions of the Railway Acts, the Board was right in disallowing the tariff of the company filed providing for payment of additional fare for carriage upon the extension from Holland Avenue, notwithstanding that the Board has found as a fact that the company did not require additional revenue.
(2) Also, whether upon the proper construction of the said agreements and statutes for the purpose of computing the toll to be charged to passengers upon the said extension the point of commencement of the said extension should be considered to be at Holland Avenue or at the former westerly limit of the Village of Hintonburg now the City of Ottawa.
(3) Has the Board the right to treat the company's operations as a whole and continue the existing tariff; or must the Board permit the filing of tariffs on a mileage basis covering services on the Britannia line without reference to the larger part of the system covered by Municipal agreements.
It appears clear to me that when exercising its statutory powers in fixing the rates which a company may charge, the decision of the Board is final and we have no right to interfere or express any opinion upon it unless it clearly appears either (1) that the Board in exercising its judgment has refused to consider facts which it ought to have considered or (2) has considered facts which it should not have considered, or (3) has admittedly proceeded on a view of facts rightly taken into consideration which is erroneous at law.
In the case before us the Board determined that it should not consider the' Britannia extension as a separate entity but should consider it as an extension of the main city line and form its conclusions on the rate question with reference to the operations of the whole line.
If the Railway Commissioners were obliged, as was contended by Mr. Chrysler, to consider this extension as a separate entity, they found that the present rates which the company sought permission to raise were not fair and reasonable, and would, therefore, in such case presumably have permitted some raise to be made. If, on the other hand, they had to consider the application to raise the rates in the Britannia section with reference to the operations of the entire line and as a mere extension of it as they determined it was, then their decision is one with which we have no right to interfere or express any opinion upon.
I am of opinion that in so deciding they acted within their legal rights and that this court has no jurisdiction to interfere.
The question, therefore, to determine is whether or not the Britannia extension was to be considered as part of the company's main line or as a separate entity. That, I take it, is a legal question and one which the Board rightly determined. The application to Parliament for the power and privilege of constructing the extension was made by the company on the express ground that it was an extension merely of their city lines, and in the statutes passed it was so recited and enacted. I cannot in the face of the express words of the statute, construe it as a separate entity. It is true that the main charter of the company limits the fares which they charge on their city lines to the then existing city limits and that such limitation does not embrace the Britannia section which was outside of those limits. But that by no means disposes of the question whether the Board had the right to disallow the application to be allowed to charge on the Britannia extension higher rates than those now existing; that is a question which, the Board having taken into its consideration all the facts it was obliged to consider and not having considered any facts which it has no right to consider, was in its absolute discretion and judgment. Mr. Chrysler pressed upon us the admitted fact that the Britannia extension was, in part, constructed upon the company's own private property and not upon the streets or roads. It does not appear to me that this fact makes any difference in determining the question of an increase of the rates whether the extension was to be treated and considered as a separate entity or not. The Board determined not to consider it such and, I think, was right in so doing. But when it has so decided after considering everything it was bound to consider, this court has no right to interfere with its conclusions.
In reaching the conclusions I have stated and disallowing this appeal I do not wish to be understood as affirming or agreeing with the statement of the Chief Commissioner of the Railway Board in delivering the reasons of the Board for making the order disallowing the proposed new tariff, to the effect that the Board had no authority to reduce the company's charge for passenger services within the City of Ottawa below the five cents now charged for such service. As I understand the language of the Chief Commissioner, he holds that even if the rate of five cents was held by the Board to be an unfair and unreasonable one the Board was powerless to reduce it because the Dominion Parliament has confirmed the agreement between the company and the Corporation of the City of Ottawa which provided that rate as a maximum one. The question is simply as to the meaning of the agreement so confirmed. That agreement, it seems to me, merely establishes five cents as a maximum rate which the company in no case or under no circumstances can exceed. The Board itself with all its statutory powers could not in the face of this express prohibition agreement, allow a higher tariff rate than five cents. But I respectfully submit in exercising its statutory powers and determining whether the rate of five cents, or even a lower rate than that, was or was not a "fair and reasonable rate," the action of the Board is unfettered by the prohibition against charging more.
The question is not, of course, directly before us on this reference, but I am anxious not to be considered as agreeing with the conclusions of the Chief Commissioner on the point, concurred in as they were by the other members of the Board, and as such a conclusion was necessarily an important factor in deciding whether in disallowing the proposed new tariff the operations of the railway as a whole had a right to be considered by them.
At the second argument of this reference before us the question whether this court was in any respect governed by section 325 of the Railway Act of 1919 was debated.
In the view I take of the jurisdiction and powers of the Railway Board over the Ottawa Electric Railway Company being ample to justify their order, and also to fix the fares it may or may not charge, I do not deem it necessary to 'invoke the aid of the legislation of 1919. The previous legislation was quite sufficient, in my opinion, to give the Board jurisdiction and to justify its order now under appeal. If that legislation of 1919 was applicable I do not see how any question as to .the validity of the Board's action could arise.
In the year 1894, the then two independent street railways in Ottawa were united, and the agreement made between them was ratified by Parliament as also the agreement between the united companies and the City of Ottawa by 57 & 58 Vict. ch. 86.
Section 7 of that Act is as follows: The lines of street railway constructed by the said companies, or either of them, are hereby declared to be works for the general advantage of Canada, and the said "The Ottawa Electric Railway Company" is hereby declared to be a body corporate subject to the legislative authority of the Parliament of Canada.
From and after the passage of that legislation the new appellant the Ottawa Electric Railway Company, became, in the words of the statute, a body corporate subject to the legislative authority of the Parliament of Canada and its works were declared to be for the general advantage of Canada. The Company, therefore, had all the benefit of the general railway legislation of the Dominion then or thereafter passed and became subject in all respects to the same.
In 1906, such a general Act was passed, the 314th section of which is as follows:-
314. The company or the directors of the company, by by-law, or any officer of the company thereunto authorized by by-law of the company or directors, may from time to time prepare and issue tariffs of the tolls to be charged, as hereinafter provided, for all traffic carried by the company upon the railway, or in vessels, and may specify the persons to whom, the place where, and the manner in which, such tolls shall be paid.
2. Such tolls may be either for the whole or for any particular portions of the railway.
3. All such by-laws shall be submitted to and approved by the Board.
4. The Board may approve such by-laws in whole or in part, or may change, alter or vary any of the provisions therein.
5. No tolls shall be charged by the company until a by-law authorizing the preparation and issue of tariffs of such tolls has been approved by the Board, nor shall the company charge, levy or collect any money for any service as common carrier, except under the provisions of this Act.
Then section 323, enacts as follows in its first part:-
323. The Board may disallow any tariff or any portion thereof which it considers to be unjust or unreasonable, or contrary to any of the provisions of this Act, and may require the company, within a prescribed time, to substitute a tariff satisfactory to the Board in lieu thereof, or may prescribe other tolls in lieu of the tolls so disallowed
Under this legislation the Board, in my opinion, has full and ample powers to control the rates of the company on its main lines and its extensions, and, finding that the company had a revenue of at least 15 per cent from its works as a whole, was acting within its rights when it rejected the company's application for leave to charge a higher rate than the existing one upon the Britannia section or extension of their lines of railway.
I am unable to appreciate the argument. that the powers granted to the companies by the provincial legislature to make by-laws regulating the rates which might be charged for the carriage of passengers became vested in the united companies under the name of the Ottawa Electric Railway by the Act of the Parliament of Canada which declared the work to be for the general advantage of Canada, and that the General Railway Act did not take away or impair those rights or powers. It seems to me that the contention is fully met by section 6 of the Railway Act of 1906, which reads as follows:-
6. Where any railway, the construction or operation of which is authorized by Special Act passed by the legislature of any province, is declared, by any Act of the Parliament of Canada, to be a work for the general advantage of Canada, this Act shall apply to such railway, and to the company constructing or operating the same, to the exclusion of such of the provisions of the said, Special Act, as are inconsistent with this Act, and in lieu of any general railway Act of the province.
Under any construction of these various Acts the power to control and disallow any proposed tariff of rates as being " unjust and unreasonable " remained in the Railway Board under section 323 of the Railway Act and applied to the tariff of rates now under review.
The power of the common law courts over rates charged by a common carrier were practically transferred by section 323 of the Railway Act above quoted to the Board of Railway Commissioners.
I would therefore, answer the first question, under the circumstances I have stated above, in the affirmative construing the phrase "right in disallowing the tariff " in question as meaning " within its right." Whether the decision was right or wrong is not for me to pass on; I merely say the Board was within its right in deciding as it did.
My answer to the first part of the third question is in the affirmative, and, to the latter part, in the negative.
The appeal, therefore, should be dismissed with costs.
IDINGTON J.—There existed in Ottawa in the early part of 1894, two street railways, respectively owned by separate corporate companies whose early history and relations with the City of Ottawa concern, or at all events should concern, us very little for the purpose of determining the questions raised by this appeal.
Suffice it to say that in said year there were agreements entered into between the said companies whereby the assets of the one were to be sold to the other and between both and the City of Ottawa, presented to the Parliament of the Dominion with a petition to confirm same and vest the properties which had been theretofore and were then held by either in the appellant.
Parliament, by 57 & 58 Vict. ch. 86, sec. 1, ratified the said agreement between the said companies, and by section 2, the said agreement between them and the City of Ottawa.
Then by section 3 of said Act, it enacted as follows:-
3. The franchises, powers and privileges heretofore or hereby granted to or conferred upon the said companies, or either of them and which are hereby authorized to be transferred to the said united company, shall be exercised and enjoyed by the said united company, subject to the terms, provisos and conditions contained in the said agreement with the Corporation of the City of Ottawa.
Section 6 provided as follows:-
The name of the Ottawa City Passenger Railway Company is hereby changed from 'The Ottawa City Passenger Railway Company' to 'The Ottawa Electric Railway Company', but such change in name shall not in any way impair, alter or affect the rights or liabilities of the company, nor in any wise effect any suit or proceeding now pending or judgment existing eitherby or in favour of, or against the said company, which, notwithstanding such change in the name of the company, may be prosecuted or continued, completed and enforced as if this Act had not been passed.
And section 7 of the same Act declared as follows:-
7. The lines of street railway constructed by the said companies, or either of them, are hereby declared to be works for the general advantage of Canada, and the said 'The Ottawa Electric Railway Company' is hereby declared to be a body corporate subject to the legislative authority of the Parliament of Canada.
That legislation. beyond doubt constituted the appellant and the said lines of railway, in the language just quoted, " works for the general advantage of Canada" and subjected the appellant as the new corporate owner of same and said works to the future railway legislation of the Dominion, unless when expressly exempted therefrom.
The Dominion Parliament by the Railway Act of 1906, section 5, provided as follows:-
5. This Act shall, subject as herein provided, apply to all persons, companies and railways, other than Government railways, within the legislative authority of the Parliament of Canada. The said Railway Act, 1906, provides, by section 314, as follows:-
314. The company or the directors of the company, by by-law, or any officer of the company thereunto authorized by by-law of the company or directors, may from time to time prepare and issue tariffs of the tolls to be charged, as hereinafter provided, for all traffic carried by the company upon the railway, or in vessels, and may specify the persons to whom, the place where, and the manner in which, such tolls shall be paid.
2. Such tolls may be either for the whole or for any particular portions of the railway.
3. All such by-laws shall be submitted to and approved by the Board.
4. The Board may approve such by-laws in whole or in part, or may change, alter or vary any of the provisions therein.
5. No tolls shall be charged by the company until a by-law authorizing the preparation and issue of tariffs of such tolls has been approved by the Board, nor shall the company charge, levy or collect any money for any service as a common carrier except under the provisions of the Act.
Section 323 of said Act reads in first part as follows :-
323. The Board may disallow any tariff or any portion thereof which it considers to be unjust or unreasonable, or contrary to any of the provisions of this Act, and may require the company, within a prescribed time, to substitute a tariff satisfactory to the Board in lieu thereof, or may prescribe other tolls in lieu of the tolls so disallowed.
The foregoing outlines of so much of the legal history of appellant as can be made relevant to any of the questions herein submitted, when taken in connection with said section 323 of said Act, contains all the law to which we should have regard in answering same.
Indeed I hold that the lastly quoted part of section 323 contains all that is relevant in this particular case, for the Board finds that the appellant has a revenue of at least 15% from its works, as a whole. That renders it impossible to say, as matter of law, that the ruling is "unjust and unreasonable" and hence in any way such a violation of said section 323 as to furnish any ground of complaint on the appellant's behalf.
If it is not possible to hold that in law there has been something unjust or unreasonable done by the Board in reaching its judgment, or in the application of any of the statutes to which I have referred, then it hardly seems possible that there can be any question of law proper for this court, to be called upon to decide.
I may briefly state some e other facts which it is said give rise to the doubt of the correctness in law of the conclusion reached by the Board.
It seems that the appellant's railway extends from a point some short distance east of Ottawa to Britannia-on-the-Bay to the west of said city, with numerous divergent parts and branches running over many of the city streets.
As inevitably happens in every large business enterprise, there are some parts of this railway which do not pay as well as, others; and indeed are a burden, according to the absurd view that the feeders to serve the system are entirely useless and that all the persons passing over same would in any event pass over the other central part and pay a fare.
The part of the said railway extending from Ottawa to Britannia-on-the-Bay was authorized by Parliament, by the statute of 1899, ch. 82, expressly enacting that the company might as an extension to its then existent railway, construct and operate, etc., such a branch.
An agreement referred to in the questions I am about to quote had been entered into between the appellant and the Village of Hintonburgh specially providing for its franchise in that part of its line. That agreement has expired, and can hardly be said as matter of law to have anything to do with the questions raised, especially when the maximum limit of basis fixed thereby is adhered to by appellant.
The Board, however, for some reason not very apparent in so plain a case, has submitted the following alleged questions of law on which appellant bases this appeal, and asks to find out what has been done by the Board is in law unwarranted:—
(1) Whether upon the proper construction of the agreements with the City of Ottawa and the Village of Hintonburgh, the statutes relating to the Ottawa Electric Railway Company and the relevant provisions of the Railway Acts, the Board was right in disallowing the tariff of the company filed providing for payment of additional fares for carriage upon the extension from Holland Avenue, notwithstanding that the Board has found as a fact that the company did not require additional revenue.
(2) Also, whether upon the proper construction of the said agreements and statutes for the purpose of computing the toll to be charged to passengers upon the said extension the point of commencement of the said extension should be considered to be at Holland Avenue or at the former westerly limit of the Village of Hintonburgh now the City of Ottawa.
(3) Has the Board the right to treat the Company's operations as a whole and continue the existing tariff; or must the Board permit the filing of tariffs on a mileage basis covering services on the Britannia line without reference to the larger part of the system covered by Municipal agreements.
I am unable to understand the argument that in law there is such an imperative legal distinction, between the part of the company's line beyond Holland Avenue, and those other parts of same, which must of necessity become effective and so operate as an imperative mandate in relation to the defining or fixing of rates that there must be different rates east of that line from those west thereof, which conflicts with conclusions reached by the Board. The mathematical distinction I can grasp but that we have to deal with must be one so founded in law as to affect this case.
To urge that a separate and distinct line of treatment thereof in regard to the question of fares for passage over it because it was authorized and built at a different time from some other part, seems to me, with great respect, a very idle argument. And it does not seem to me to be improved by a reference to the question of whether the power of expropriation existed before or was first enforced by a particular clause in the legislative history of the appellant.
The same sort of argument would lead to holding as matter of law that the Hintonburgh part of the line must be treated as a thing separate from the rest of the lines in fixing fares, and so on throughout the system.
I can understand the question of the delimitation of rates as evidenced by agreements between appellant and municipal bodies being a matter of fact which probably the Board of Railway Commissioners should examine in reaching a determination as to any tariff of tolls. When the Board has done so and examined all else in the way of facts bearing upon the questions raised by the proposed imposition of a tariff, I fail to see how any question of law arises. It is not for us to pass upon the question of whether or not the proper construction of the agreements and the relevant provisions of the Railway Acts, as a matter of law, lead to the allowance or disallowance of the proposed tariff when we find that the Board, even assuming as well founded appellant's contention relative to the construction of said agreements and statements, has found as fact that the company did not require additional revenue and hence it was neither just nor reasonable to impose further rates.
I could understand the question of law being put as to whether or nor the rates of fares named in such , agreements and legislative validation thereof must be held to have been thereby in law imperatively and definitely determined for all time. But when we find the Board and counsel for appellant have assumed that to be law (which I much doubt but pass no opinion upon) and acted upon such assumption, there seems nothing but mere questions of fact involved in what remains for consideration.
There is much to be said for the true legal aspect of the whole matter involved having been reduced, by the Parliamentary legislation above recited, to a mere question of what would be in the opinion of the Board be a just and reasonable tariff, regardless of the agreements in question, and especially so when we find. they seem in this regard to have merely arrived at a maximum tariff.
Evidently this part of the agreement though for even that and many other purposes validated by the preceding legislation, may held to have been over- ridden by the later legislation constituting the Board and assigning it such powers as it has, constituting it absolute master of the whole question of rates or tolls, provided always as a test of the due discharge of such duties as entailed thereby that it has duly considered all that is involved as fact in such like agreements.
Let us assume that there had, instead of a highly profitable investment such as appellant's has turned out, resulted an enterprise that could not be made productive of a fair profit without discarding the limitation in these agreements; could it be said that the Board under the legislation conferring such an absolute power long after the agreements had come into existence, would be powerless to grant any relief?
The questions as presented and the argument thereon do not permit me to feel at liberty to answer definitely this question.
I, therefore, merely submit it as an illustration of what might have been a possible solution of much that is involved in what has been considered, and suggesting a reason why the questions submitted cannot be answered in a more helpful way than I am compelled to.
Holding the view I have expressed as to the first question, it seems self-evident that the answer to the second question is not involved in the disposition of the question before the Board and hence needs no answer.
As to the third question I cannot conceive of any rule of law that would prevent the Board from considering the company's operations as a whole, and if it saw fit to disallow the proposed tariff, or any portion thereof which it is considered to be unjust, or unreasonable, or contrary to the provisions of the Railway Act, it was entirely within its province. So far as the doing so can be said to raise any question of law, I have no hesitation in answering affirmatively.
As to the second branch of the third question, raising the point of whether or not the Board must permit the fixing of tariffs on a mileage basis. I may point out that the appellant's factum distinctly disavows desiring to raise such a question and insists that
there was no question before the Board as to whether the tolls should be based upon mileage, or upon a flat rate. That seems to eliminate as far as this appellant is concerned in this appeal, the only other possible question of law raised by the third question for our decision.
It is only as a basis of appeal by way of which an appellant may seek to get relief that we can consider any such question. However willing we should be to aid the Board we cannot properly so interfere unless incidentally to the determination of something in respect of which an appellant seeks relief.
With great respect I submit the questions submitted (save the first part of the third question) do not raise or distinctly state any definite question of law actually relevant to the matters in issue between those concerned, upon which a ruling is desired, and can be properly made.
The first part of the third question should be answered in the affirmative.
I think, therefore, following our view expressed in the case of Canadian Pacific Railway Co. v. Regina Board of Trade[1] the appeal should be dismissed with costs.
After I had written the foregoing the majority of the court decided to direct a re-argument (which has been had) upon certain stated questions. In deference, however, to suggestions made in that argument, which was not directed on the grounds upon which I proceeded and hence has not changed my opinion, I may be permitted to point out that the declaration, contained in the above quoted section 7 of the Dominion Act, 57 & 58 Vict. ch. 86, that, so long ago as 1894, the works of the appellant were thereby declared to be for the general advantage of Canada; and hence by such declaration withdrawn, by virtue of Item No. 10 of section 92 of the British North America Act, from any control of, or incidental to, their operation either by virtue of any legislation of Old Canada or the legislation of the Province of Ontario.
Such, I think, must be held to be the result of the decision of the Judicial Committee of the Privy Council in the case of Toronto v. The Bell Telephone Co.[2]. Unfortunately that case was not referred to in either argument herein.
By the express language of the above quoted section 7, as well as the necessities of the situation created by the other provisions of the said Act a new corporate entity, composed of two such previously existent, is created and that is declared to be subject to the legislative authority of the Parliament of Canada.
The result of the said legislation, viewed in light of said decision, seems to have been to give predeterminate effect to the Act of Parliament wherever conflict arises between the respective enactments.
We are not left to depend alone upon such reasoning for this conclusion was adopted by the enactment of section 6 of the Railway Act of 1906, which reads as follows:
6. Where any railway, the construction or operation of which is authorized by a special Act passed by the legislature of any province, is declared, by any Act of the Parliament of Canada, to be a work of the general advantage of Canada, this Act shall apply to such railway, and to the company constructing or operating the same, to the exclusion of such of the provisions of the said Special Act as are inconsistent with this Act, and in lieu of any general railway Act of the province.
Hence beyond peradventure all the subsequent undertakings of the new creation such as the new branch, declared by the later Act authorizing it, to be an extension, and that extension which is now in question, must be governed in every respect by the Dominion Railway Act, and not by any legislation of the Ontario legislature either as to fares or otherwise.
This evidently was the view held by the appellant itself otherwise it never should have troubled the Board of Railway Commissioners by filing with it a proposed new tariff of fares.
The point made by Mr. Denison of counsel for one of the respondents, that at common law the common carrier was as between him and any one of the public, not entitled to charge any fare beyond what was just and reasonable, was well taken.
Besides those cases he referred to I find the case of Interstate Commerce Commission v. Baltimore Si Ohio Rd. Co.[3] which proceeds upon a distinct holding of such a view as the basis upon which the legislation there in question proceeded. See also Harris v. Packwood[4].
Our Railway Act in making a statutory provision for the determination of what rates are chargeable, also proceeds upon the same basis of what is just and reasonable.
I therefore repeat that I can see nothing else to test the jurisdiction of the Board so long as it has not gone beyond its statutory authority and has not failed to consider all relevant facts.
DUFF J.—The questions submitted should, in my opinion, be disposed of as follows:—
The first question: This question is not answered since it involves questions of fact within the exclusive competence of the Board of Railway Commissioners. So far as it involves a question of law it is covered by the answer given to the first part of the third question.
The second question: At Holland Avenue.
The third question: First member. No. Second member: Yes; though not necessarily on a mileage basis.
My reasons for these conclusions can be stated briefly. They are based upon two propositions which appear to me clearly established.
First: I concur fully with the opinion of the Chairman of the Board as to the effect of the statute of 1894. By force of that statute and the scheduled agreements the rights and obligations of. the Ottawa Electric Railway Co. in relation to the fares chargeable in respect of the services provided for or contemplated by the agreement between the Street Railway Companies and the City—services which may with sufficient accuracy be referred to as City services—were to be governed by the agreement itself; and consequently the Ottawa Electric Company did not on the passing of the Railway Act of 1903 (see s. 3) become in respect of such fares subject to the jurisdiction of the Board of Railway Commissioners touching the matter of the regulation of rates.
Second. As regards the Britannia extension on the other hand, authorized by the Act of 1899, I can find nothing in that statute excluding this line from this jurisdiction of the Board and I think that on the passing of the Railway Act of 1903 the provisions of that enactment on the subject of the regulation of rates became applicable to it.
The first of these propositions seems to involve this consequence: The fares exigible under the statute and agreement of 1894 must be taken to be a just remuneration, neither too much nor too little, for the city services; and it seems to follow that in determining what is a just and reasonable remuneration for the services performed on the Britannia lines the proceeds derived from the city services must be left out of account. That is to say that in determining what is just and reasonable in respect of the Britannia lines, you must start with the hypothesis that everything paid in respect of city services has been fully earned by the performance of those services.
The point may be illustrated by a reference to one example of the manner in which the existing tariff operates. Under that tariff the company is entitled to charge a maximum fare of five cents for transport from the corner of Laurier Avenue and Charlotte Street to Britannia, a charge which the company, by the Act and agreement of 1894 is nevertheless entitled to make for that part of the service which is performed within the city. In other words, under existing conditions, so long as the Britannia line is kept in operation and this service is maintained, the company is obliged to give, for a fare of five cents, the city service (for which by law it is entitled to receive a fare of five cents) plus the service from Holland Avenue to Britannia; and that appears to be the necessary consequence of treating the operations of the company as a whole and maintaining the existing tariff.
I think it is not permissible to do this because thereby full effect is denied to the legal rights of the company under the statute and agreements of 1894.
I must mention that in answering these questions we are governed by the law as it stood before the enactment of the Railway Act of 1919. ANGLIN J.—This case comes before us by leave of the Board of Railway Commissioners granted under s.s. 3 of s. 56 of the Railway Act, R.S.C., c. 37, as enacted by 9 & 10 Ed. VII., c. 50, s. 1. The Board is thereby empowered to grant a right of appeal.
upon any question which in the opinion of the Board is a question of law.
It may therefore be that this court should not decline to pass upon any question leave for the submission of which as a question of law has been given by the Board, however difficult or even impossible it may be to find in it such a question. On the other hand if a question formulated by the Board is susceptible of more than one interpretation, inasmuch as it must be assumed that the Board did not intend to ask the opinion of the court on anything other than a question of law, the court should put upon it any construction at all admissible that presents such a question. If on no possible interpretation can a