Toronto Transportation Commission v. Can. Nat. Rys. and City of Toronto

Toronto Transportation Commission v. Can. Nat. Rys. and City of Toronto
Collection
Supreme Court Judgments
Date
1929-09-26
Report
[1930] SCR 94
Judges
Anglin, Francis Alexander; Mignault, Pierre-Basile; Newcombe, Edmund Leslie; Lamont, John Henderson; Smith, Robert
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
Toronto Transportation Commission v. Can. Nat. Rys. and City of Toronto, [1930] S.C.R. 94
Date: 1929-09-26
The Toronto Transportation Commission Appellant;
and
Canadian National Railways and The Corporation of The City of Toronto Respondents.
1929: May 29, 30; 1929: September 26.
Present: Anglin C.J.C. and Mignault, Newcombe, Lamont and Smith JJ.
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA
Railways—Order of Board of Railway Commissioners for Canada against corporation operating street railway system for contribution to cost of reconstruction of bridge over steam railway tracks—Railway Act, R.S.C., 1927, c. 170, ss. 257, 259, 252, 51, 37, 39, 44 (3)—Jurisdiction to make the order under the Act—Jurisdiction of Parliament of Canada to confer such jurisdiction on the Board.
By an agreement in 1884, involving the closing of a road and the substitution of what is now Main street in the city of Toronto (the area in question being later annexed to the city), the respondent railway company’s predecessor undertook at its own expense to erect and maintain a bridge to carry the new highway (Main street) over its tracks. In 1919 the City applied to the Board of Railway Commissioners for Canada for an order requiring the railway company to construct a new bridge, the old bridge, though sufficiently strong, being then too narrow to accommodate the traffic. By order of July 3, 1920, the Board directed construction of a new bridge at the sole cost of the railway company. Up to that time no street railway had crossed said tracks, but the approved plans of the new bridge were so drawn that it would have sufficient strength to carry street railway traffic. Appellant took over the operation of the street railways of the city in 1921. It built a line crossing over the new bridge, completing it in July, 1922, and, the Board having held that such crossing was within the prohibition of s. 252 of the Dominion Railway Act, the appellant (on application made without prejudice to its claim that leave of the Board was unnecessary) obtained, in October, 1922, temporary permission so to cross. The railway company had, in June, 1922, applied for an order requiring appellant to contribute to the cost of the bridge and for re-opening of the whole question of cost, alleging mistake of the Board as to the facts when making its order of July 3, 1920; and said permission to appellant to cross was expressly made “pending decision of the Board” upon those matters. Since that time appellant has continuously operated its cars over the bridge. In 1926 the Board granted the railway company’s application (on said grounds alleged) for reconsideration of the order of July 3, 1920, and in January, 1928, made an amending order requiring certain contributions from the City and from appellant. From this order appellant appealed on the ground of want of jurisdiction. Held (Mignault J. dissenting): The order in appeal was within the Board’s jurisdiction under the Railway Act, whether viewed as an exercise of its powers under ss. 257 and 259 upon an application for permission to cross under s. 252 made by appellant, or viewed merely as a case in which the Board was “reviewing” and “altering or varying” (s. 51) its former order as to payment of the cost of the bridge. S. 39 applied to the order for construction of the bridge (Toronto Ry. Co. v. Toronto, [1920] A.C. 426, at pp. 435, 6, 437-8); appellant was a company “interested or affected by” that order within the meaning of s. 39 (1), and it was within the Board’s jurisdiction under s. 39 (2) to determine by whom, and in what proportions the cost should be borne. (The Vancouver case, [1914] A.C. 1067, distinguished). The order for contribution complained of could have been made when the order for construction was made in 1920, had the present circumstances then existed, and ss. 37 and 51 enabled it to be made in 1928. The Board having jurisdiction, the mode of its exercise and the consequent burdens imposed were not matters open for consideration in this Court (s. 44 (3)).
Per Mignault J., dissenting: The Board had not jurisdiction under the Act to make the order complained of. A mere benefit to be derived by appellant from the reconstruction of the bridge would not give such jurisdiction (the existence of such a benefit would not constitute an interest within the meaning of s. 39). An application under s. 252 for permission to cross a Dominion railway does not by itself confer jurisdiction to make the applicant contribute; so the appellant’s application for leave to lay its tracks on the widened bridge could not be relied on as a foundation for the jurisdiction. The facts did not come within the language of s. 257; there was no railway “already constructed upon, along or across any highway” (under the 1884 agreement the highway was carried ever the railway by the bridge which was part of the highway); the order for reconstruction was not made for “the protection, safety and convenience of the public” (any danger to the public had been eliminated by the existing bridge). The application for reconstruction was “a matter between the corporation and the railway company alone,” that is to say, between the parties to the agreement of 1884. The matter was “one merely of street improvement” (Reasons in the Vancouver case, [1914] A.C. 1067, as explained in the Toronto case, [1920] A.C. 426, applied).
Held, also, that the Parliament of Canada had jurisdiction to confer upon the Board the authority to compel contribution from the appellant, a provincial corporation, under the circumstances of the case.
APPEAL (by leave given as hereinafter mentioned; and upon a settled statement of facts) by the Toronto Transportation Commission (a corporation established under c. 144 of the Ontario statutes of 1920, and being the administrative body charged with the operation of the street railways in the city of Toronto, all of which belong to the City) from an order of the Board of Railway Commissioners for Canada directing that the appellant pay ten per cent. of the cost of a bridge over the tracks of the respondent, Canadian National Railways, on Main street, in the city of Toronto. The material facts of the case are sufficiently stated in the judgments now reported, and are indicated in the above headnote. Leave to appeal was given by the Board on the following question:
“Had the Board of Railway Commissioners for Canada, under the circumstances of this case, jurisdiction under the Railway Act (Canada) to provide in order No. 40120, dated January 3, 1928, that the Toronto Transportation Commission should contribute to the cost of the work referred to in such order?”
and leave to appeal was given by Mignault J. on the following further question
“Should the answer to the question submitted by leave of the Board of Railway Commissioners for Canada be in the affirmative, had the Parliament of Canada jurisdiction to confer upon the said Board authority to compel contribution from the Toronto Transportation Commission, a provincial corporation, towards the cost of the above described work under the circumstances of this case?”
The appeal was dismissed with costs, Mignault J. dissenting.
D. L. McCarthy, K.C., and I. S. Fairty, K.C., for the appellant.
E. Lafleur, K.C., for the respondent, Canadian National Railways.
G. R. Geary, K.C., for the respondent, the City of Toronto.
The judgment of the majority of the court (Anglin C.J.C. and Newcombe, Lamont and Smith JJ.) was delivered by
Anglin C.J.C.—The question before us is whether the Board of Railway Commissioners for Canada had jurisdiction to require the appellant Transportation Commission to contribute one-tenth of the cost of a bridge which crosses Main Street over the tracks of the respondent Railway System at a point in the eastern part of the City of Toronto. By an order of a judge of this Court, giving leave to appeal, two questions are propounded:
(1) Whether the Railway Act, R.S.C., 1927, c. 170,* purports to confer such jurisdiction;
(2) Whether, if it does so, that legislation is intra vires of the Parliament of Canada?
The material facts may be stated as follows:
Dawes Road formerly crossed on the level the tracks of the Grand Trunk Railway Company, a predecessor of the present Canadian National Railways System. In 1884, by an agreement between the Railway Company and the Township of York, in which the situs was at that time, Dawes Road was closed and the portion thereof lying between the lines of its right of way projected was conveyed to the Grand Trunk Railway Co., the present Main Street, which crosses the railway tracks at right angles, being substituted therefor; and the railway company then undertook at its own expense to erect and maintain a bridge to carry the new highway over its tracks.
In 1919, the area in question having in the interval been annexed to the city, the City of Toronto applied to the Board for an order requiring the Grand Trunk Railway Co. to construct a new bridge at Main Street; although the bridge theretofore in use was sufficiently strong, it was then too narrow to accommodate the traffic using it.
On July 3, 1920, by order No. 29923, the Board directed the construction of the new bridge, at the sole cost of the Railway Company; and plans for this bridge were subsequently approved by the Board.
Although, up to this time, no street railway had crossed the tracks of the G.T.R. at Main Street, the plans and specifications of the new bridge were, at the instance of the City, so drawn that it would have sufficient strength to carry street railway traffic, to provide for which, as the Chief Commissioner points out, it was then contemplated might be necessary. This involved additional outlay.
The appellant corporation took over the operation of the street railways of the City of Toronto in September, 1921. It found two unconnected street railway lines existing, one on Danforth Avenue and the other on Gerrard Street; and, in, or prior to June, 1922, it determined to build a line on Main Street, to be carried over the new bridge, for the purpose of connecting those two existing lines. The new tracks over the bridge were completed about the 15th of July, 1922. Meantime, the Grand Trunk Railway Co. had applied to the Board, on the 19th of June, for a declaration that the Board’s consent for the crossing of its tracks by the street railway system had not been had and for an order requiring the appellant to pay a share of the cost of the bridge, and, on the 22nd of June, for an order to permit the re-opening of the whole question of cost of the bridge, alleging that there had been mistake as to the facts, on the part of the Board, when making its former order No. 29923, imposing such cost wholly on the Railway Company.
Upholding the contention of the Railway Company that the case fell within the prohibition of s. 252 of the Railway Act and that the approval of the Board must be obtained before the intended crossing could be made, the Board suggested that the Transportation Commission should seek a temporary permission to cross with its street cars. Such application having been made by that Commission, the Board, by order No. 32956, made on the 10th of October, 1922, granted it permission to use the Main Street bridge to cross the Grand Trunk tracks
temporarily, and pending decision of the Board upon all matters involved in the application of the Railway Company herein that the Board review the question of the allocation of the cost of the bridge.
Since that time the appellant has continuously operated its street cars over the bridge.
By subsequent order No. 37366, made on the 4th of March, 1926, the Board granted the application of the Grand Trunk Railway Co. for a reconsideration of order No. 29923 of the 3rd of July, 1920, dealing with the cost of the Main Street bridge, holding that it had been shewn that that order had been made under a misapprehension of then existing facts; and, by order No. 40120, made on the 3rd of January, 1928, the Board directed that order No. 29923 be amended so as to provide that the cost of reconstructing the bridge over the tracks of the Canadian National Railways at Main Street shall be borne and paid “60 per cent. by the applicants, 30 per cent. by the City of Toronto and 10 per cent. by the Toronto Transportation Commission”. It is from this latter order that the present appeal is taken by the Transportation Commission.
Section 39 of the Railway Act reads as follows:
39. When the Board, in the exercise of any power vested in it, in and by any order directs or permits any structure, appliances, equipment, works, renewals, or repairs to be provided, constructed, reconstructed, altered, installed, operated, used or maintained, it may, except as otherwise expressly provided, order by what company, municipality or person, interested or affected by such order, as the case may be, and when or within what time and upon what terms and conditions as to the payment of compensation or otherwise, and under what supervision, the same shall be provided, constructed, reconstructed, altered, installed, operated, used and maintained.
2. The Board may, except as otherwise expressly provided, order by whom, in what proportion, and when, the cost and expenses of providing, constructing, reconstructing, altering, installing, and executing such structures, equipment, works, renewals, or repairs, or of the supervision, if any, of the continued operation, use or maintenance thereof, or of otherwise complying with such order, shall be paid.
By s. 51 the Board is empowered to “review, rescind, change, alter or vary any order or decision made by it * * *.” With respect to any matter already dealt with by it, this section enables the Board to make any order in review which it might have made were such matter res integra. No doubt this power should be exercised sparingly and circumspectly, as the Chief Commissioner’s judgment shews he realized. But whether circumstances exist which justify its use must be a matter almost exclusively within the Board’s discretion. It is difficult to appreciate how the exercise of this power in an order otherwise unexceptionable can per se give rise to a question of jurisdiction.
Section 252 prohibits the railway lines or tracks of any railway company (s. 2 (21) ) being carried across any railway lines or tracks other than those of such company unless leave therefor has been obtained from the Board.
Section 257 empowers the Board, in cases of existing crossings, to make stipulations “as to the protection, safety and convenience of the public as it deems expedient * * *.”
Section 259 is as follows:
259. Notwithstanding anything in this Act, or in any other Act, the Board may, subject to the provisions of the next following section of this Act, order what portion, if any, of cost is to be borne respectively by the company, municipal or other corporation, or person in respect of any order made by the Board, under any of the last three preceding sections, and such order shall be binding on and enforcible against any railway company, municipal or other corporation or person named in such order. Whether the order against which this appeal is taken be viewed as an exercise by the Board of the powers conferred by ss. 257 and 259 upon an application for permission to cross under s. 252 made by the appellants, or whether it should be viewed merely as a case in which the Board is “reviewing * * * and altering or varying” (s. 51) an order or decision already made by it in regard to the payment of the cost of the bridge in question, its jurisdiction to make the order now in appeal seems to us to be indubitable.
The appellant Transportation Commission was, in our opinion, clearly a company “interested or affected by” the order for the construction of the new bridge within the meaning of subs. 1 of s. 39. That section applies to such an order (Toronto Ry. Co. v. Toronto[1]), and, therefore, it was within the jurisdiction of the Board under subs. 2 thereof to determine by whom, and in what proportions, the cost and expense of the construction thereby directed should be borne. That the appellant is not a company “interested or affected by” order No. 29923 is scarcely arguable. If the present circumstances had existed in 1920, the Board might have made order No. 40120 when making order No. 29923. Sections 37 and 51 enabled it to make order No. 40120 in 1928.
In the Vancouver case[2], the order of the Board was not made under s. 39 (then s. 59) and did not come within its provisions (p. 1075), as Lord Finlay points out in the Toronto case[3]. The order made in the case at bar was, as was held in regard to that before the Judicial Committee in the case last cited,
in substance mandatory and (was) made for the convenience and protection of the public with regard to the crossing of the railways. What was done may have improved the street, but it was certainly not a mere matter of street improvement.
Whether the circumstances justified the discretion exercised by the Board in apportioning the cost of the bridge as it did is a matter with which we are not concerned, the only question before us being that of jurisdiction. If, as we find, the Board is given jurisdiction in the premises, the mode of its exercise of such jurisdiction and the consequent burdens imposed are not matters open for consideration here. (s. 44(3)).
This disposes of the first question submitted, dependent for its solution on the construction of the relevant railway legislation.
On the other question:—Of the constitutional validity of the railway legislation under discussion, there is, in our opinion, not the slightest doubt. Toronto Ry. Co. v. Toronto[4].
The appeal fails and must be dismissed with costs.
Mignault J. (dissenting).—This is an appeal by leave partly of the Board of Railway Commissioners for Canada, hereinafter called the Board, and partly of a judge of this Court, from an order of the Board of January 3, 1928, No. 40120, directing that the appellant pay 10 per cent. of the cost of a bridge over the tracks of the Canadian National Railways at Main Street in the city of Toronto. It was argued at the same time as the appeal of this appellant in the case of the Bloor Street and Royce Avenue subways[5], and the statement of facts in the latter case will be here supplemented in so far only as the present case differs from the other one.
The respondent, Canadian National Railways, is the successor of the Grand Trunk Ry. Company of Canada. Prior to 1884, a public highway, Dawes Road, crossed on the level the tracks of the Grand Trunk from southwest to northeast, at a pronounced angle. By an agreement of June 25, 1884, between the Corporation of the Township of York, where this crossing then lay, and the Grand Trunk, Dawes Road was closed up and conveyed to the Railway, and a new highway opened, now Main Street, crossing the railway at right angles by means of a bridge which the Grand Trunk agreed to build and keep in repair at its own expense.
The district was then a suburban one, but it has since been annexed to the city of Toronto, and its population has very notably increased. In 1914 the City of Toronto made an application to the Board for authority to construct a subway under the tracks of the Grand Trunk at Main Street, The application remained in abeyance during the war, and in 1919 the City applied to the Board for the reconstruction of the bridge. This bridge was physically strong enough for any traffic offering, but it was inadequate in width for such traffic. On June 17, 1920, the Board delivered judgment ordering the construction of the new bridge at the sole cost of the Railway. Pursuant to this judgment, on July 3, 1920, the Board issued its order, No. 29923, requiring the Railway to construct before September 30, 1921, a bridge with a 46 foot roadway, and with ten foot sidewalks on each side. Plans for the bridge were approved by the Board and the bridge was completed and opened for traffic on December 1, 1921.
The appellant, the character and functions of which were described in the other case[6], was constituted on August 3, 1920, but did not assume the management of the Toronto street railways until September 1, 1921. The city had street railway lines on Danforth Avenue and Gerrard street, and in June, 1922, the appellant decided to connect these lines with a line on Main Street running over the new bridge.
It accordingly commenced to lay tracks on Main Street, which tracks were practically completed on July 15, 1922. Permission for the crossing had not been obtained from the Board, land on June 19, 1922, the Grand Trunk applied to the Board for an order declaring that the Board’s consent for the crossing had not been obtained, and for an order that the appellant pay a share of the cost of the bridge, and on June 26, 1922, for an order re-opening the whole question of cost upon the ground that the Board, in its former judgment, had been in error on the facts.
It should be mentioned here that when the Board ordered the construction of the new bridge at the sole expense of the Railway, it had declined to follow the decision of the House of Lords in Sharpness New Docks v. Attorney General[7], and had applied instead a principle it had laid down in a previous case (City of Hamilton v. Canadian Pacific et al[8]), expressed as follows:
When a railway company excavates and cuts away a portion of a highway, they should be compelled to replace that highway by a substructure capable of carrying everything which the earth itself as it then existed would carry. When the application of the railway company asking that the appellant be ordered to pay a share of the cost of the bridge came before the Board, the appellant took the ground that the Board’s approval for the crossing was unnecessary, but the Board ruled against this contention, and suggested that the appellant might apply, without prejudice, for a temporary permission to cross with its cars. This application was made and the Board, by order 32956, permitted the appellant,
temporarily, and pending decision of the Board upon all matters involved in the application of the Railway Company herein that the Board review the question of the allocation of the cost of the bridge,
to cross the railway upon the highway known as Main Street. Since then the appellant has operated its cars over the new bridge.
By order No. 37366 of March 4, 1926, the Board reopened the question of the cost of the bridge upon the ground that it had proceeded in error in assuming that the facts of the case brought it within the principle of City of Hamilton v. Canadian Pacific (1) above referred to.
Finally the order appealed from, No. 40120, of January 3, 1928, distributed the cost of the bridge as follows: 60 per cent. to be paid by the Canadian National, 30 per cent. by the City of Toronto, and 10 per cent. by the present appellant.
By order No. 41782, of November 21, 1928, the Board gave to the appellant leave to appeal to this Court from the order just mentioned on the following question:
“Had the Board of Railway Commissioners for Canada, under the circumstances of this case, jurisdiction under the Railway Act (Canada) to provide in order No. 40120, dated January 3, 1928, that the Toronto Transportation Commission should contribute to the cost of the work referred to in such order?”
Leave to appeal was granted by me to the appellant on the further question expressed as follows:
“Should the answer to the question submitted by leave of the Board of Railway Commissioners for Canada be in the affirmative, had the Parliament of Canada jurisdiction to confer upon the said Board authority to compel contribution from the Toronto Transportation Commission, a provincial corporation, towards the cost of the above described work under the circumstances of this case?”
A preliminary point must be disposed of before discussing the merits of the appeal. Could the Board, after having ordered that the Grand Trunk should construct the new bridge, which, the statement of facts admits, involved its construction “at the sole cost and expense of the Railway”, re-open the question of cost and order the appellant to pay ten per cent. of the expenditure?
Section 51 of the Railway Act enacts that
the Board may review, rescind, change, alter or vary any order or decision made by it, or may rehear any application before deciding it.
This language seems wide enough to allow the Board to alter or vary its decision. Of course, as observed by Mr. Commissioner Boyce, the power to re-open or review any matter already passed upon should not be exercised unless there is clearly a doubt in the mind of the Board as to the correctness of the former decision, or there be submitted new facts not before the Board at the time the decision was made, or unless the conditions have changed. But this does not go to the jurisdiction of the Board, which is the only point with which we are concerned. And I think section 51 permitted the Board to alter its previous decision, if it had jurisdiction otherwise to make the order complained of.
There is, however, a much more serious point which did not arise in the other case[9] where it was obvious that in replacing the level crossings by subways, the Board had acted under section 257 of the Railway Act for “the protection, safety and convenience of the public.”
The question involved is whether under the circumstances there was jurisdiction in the Board to order the appellant to contribute to the cost of the widened bridge. This requires consideration of two judgments of the Judicial Committee:—British Columbia Electric Ry. Co. v. Vancouver, Victoria and Eastern Ry. and Navigation Co.[10], (hereinafter called the Vancouver case), and Toronto Railway Co. v. Toronto[11], (hereinafter called the Toronto case). The binding effect of the former decision must be taken to be that stated by their Lordships in the latter case, pp. 440 and following.
There was, however, a deliberate pronouncement by the Privy Council in the Vancouver case[12], as to the jurisdiction of the Board, which was not dissented from by their Lordships in the Toronto case[13]. Speaking of the order under review in the former case, Lord Moulton said (p. 1075):—
The fundamental error underlying the decision of the Railway Board is that they have considered that the fact that the tramway company would be benefited 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.
We must therefore take it that a mere benefit to be derived by a body in the position of this appellant from the reconstruction of the widened bridge would not give the Board jurisdiction to order it to pay a portion of the cost. In other words, the existence of such a benefit would not constitute an interest within the meaning of section 39 of the Railway Act. The jurisdiction of the Board to order that a person or corporation contribute to the cost of a construction must exist independently of any benefit which that person or corporation may derive from the construction contemplated.
It should also be noted that in the Toronto case13 the purport of the decision in the Vancouver case12 was thus stated by Lord Finlay (p. 442):—
The judgment (in the Vancouver case12) proceeds on the principle that the assent of the Board was asked merely because the viaduct would cross the Dominion railway, and that this gave no jurisdiction to make the Electric Company pay the costs of construction. (The italics are mine.)
This must mean that an application under section 252 of the Railway Act for permission to cross a Dominion railway does not by itself confer jurisdiction on the Board to make the applicant contribute to the cost of the construction. So the application by the appellant for leave to lay its tracks on the widened bridge—and this application was made under reserve of all its rights—cannot be relied on as a foundation for the jurisdiction which the Board has assumed in ordering the appellant to pay a portion of these costs. Section 257 of the Railway Act must now be considered. It is predicated on the assumption that a railway “is already constructed upon, along or across any highway”. The facts here do not come within this language, nor can it be said that the order with which we are concerned was made for “the protection, safety and convenience of the public”, as contemplated by section 257. The railway in question was not constructed upon or across the highway. Since 1884, under an agreement with the municipality, the highway was carried over the railway by means of a bridge which the Grand Trunk undertook to build and maintain at its own expense, and which was a part of the highway. At the date of the order this bridge was in every way of sufficient strength for any traffic offering, but to accommodate an increase of traffic occasioned by an increase in population, a much wider bridge was considered necessary.
It follows therefore, to use Lord Moulton’s language, quoted in the Toronto case[14], “that the application was a matter between the corporation and the railway company alone”, that is to say between the parties to the agreement of 1884, and this, as Lord Finlay said, was “the keynote” of the judgment in the Vancouver case[15]. It is pertinent to add that the matter was so considered when the Board made its first order for the reconstruction of the bridge. Certainly, to borrow again Lord Finlay’s language, the order here, as well as in the Vancouver case15, did not proceed “on any consideration of danger arising from the level crossing (there was no level crossing in this case), or as having anything to do with the railway as such”. If in the Vancouver case15 the matter could be treated “as one merely of street improvement”, we have certainly here a “street improvement” effected in order to accommodate increased traffic upon the highway. No question arose as to “the protection, safety and convenience of the public” in connection with a railway crossing, any danger to the public having been eliminated by the existing bridge.
The only distinction I can find between the Vancouver case15 and the presenione (That the proper grade of the streets was a consideration in the former case does not, in my opinion, amount to a substantial difference), is that in the Vancouver case[16] the order was permissive while here it is mandatory. However, it seems clear that if the circumstances do not give the Board jurisdiction to make a permissive order, they could hardly be relied on to confer upon it jurisdiction to render its order mandatory.
In substance the Railway Act, as far as applicable to a case like the one under consideration, has not been changed since the two decisions of the Judicial Committee. It is true that section 39 (the former section 59) now refers to the case where the Board, in the exercise of any power vested in it, “directs or permits” any structure, etc., and this probably makes any distinction between a permissive and a mandatory order immaterial. But as the matter stands, I cannot see how it can be contended that the Vancouver case16, as explained in the Toronto case[17], does not fully apply here.
This appears to me decisive of the issue, and I am unable to support the jurisdiction of the Board to make the order complained of.
I would answer the first question in the negative. The second question by its terms does not require to be answered.
I would allow the appeal with costs and set aside the order in so far as the appellant is concerned.
Appeal dismissed with costs.
Solicitor for the appellant: Irving S. Fairty.
Solicitor for the respondent, Canadian National Railways: Allistair Fraser.
Solicitor for the respondent; the Corporation of the City of Toronto: C. M. Colquhoun.
* For convenience references are made to the R.S.C., 1927, c. 170, which reproduces the Railway Act, 1919, c. 68.
[1] [1920] A.C. 426, at pp. 435, 6, 437-8.
[2] [1914] A.C. 1067.
[3] [1920] A.C. 426, at pp. 442-3.
[4] [1920] A.C. 426, at p. 438.
[5] Reported ante, p. 73.
[6] Reported ante, p. 73.
[7] [1915] A.C. 654.
[8] (1920) 25 C.R.C. 379
[9] Reported ante, p. 73.
[10] [1914] A.C. 1067.
[11] [1920] A.C. 426.
[12] [1914] A.C. 1067.
[13] [1920] A.C. 426.
13 [1920] A.C. 426.
12 [1914] A.C. 1067.
12 [1914] A.C. 1067.
[14] [1920] A.C. 426.
[15] [1914] A.C 1067.
15 [1914] A.C 1067.
15 [1914] A.C 1067.
15 [1914] A.C 1067.
[16] [1914] A.C. 1067.
16 [1914] A.C. 1067.
[17] [1920] A.C. 426.