Hyperlawhypertext legal database Canadian National Ry. Co. v. Boland; In re Railway Act and Expropriation Act [1926] SCR 239

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Canadian National Ry. Co. v. Boland; In re Railway Act and Expropriation Act

[1926] SCR 239 Court SCC Decision date 1925-11-02 English

Decision Majority · Judgment of the Court

Contents

Majority

CONNECTION
WITH
LAND TAKEN BY THE CANADIAN NATIONAL RAIL- WAY COMPANY UNDER THE PROVISIONS OF CHAPTER 13 OF THE STATUTES OF CANADA, THE CANADIAN
NATIONAL RAIL- WAY COMPANY
ELLEN BOLAND
APPEAL from a. decision of the Exchequer Court of Canada (1) dismissing the appellant's petition.
By an order of the Board of Railway Commissioners for Canada dated June 5, 1924, the appellant company was directed inter alia to construct a subway on Bloor St., Toronto, after plans of work had been filed with and approved by the Board. Under provisions of the Expropriation Act, R.S.C., c. 143, the railway company took certain land owned by the respondent who resisted the expropriation proceedings contending that provisions for taking land in s. 257 (2) of the Railway Act, 1919, were applicable S.C.R.
to the case and not those of the Expropriation Act. The appellant's petition to the Exchequer Court of Canada under the provisions of s. 21 of the Expropriation Act for a warrant to put it in possession was dismissed for want of jurisdiction.
Pending an appeal by the railway company, the following questions were referred to this court by order in counci of May 29, 1925, pursuant to the authority of s. 60 of the Supreme Court Act:
The appeal and the reference were heard together. Lafleur K.C. for Attorney General of Canada, upholding the jurisdiction of the Exchequer Court.
Geoffrion K.C. for Attorney General of Canada, contra. Geo. F. Macdonnell for the Canadian National Railway Company.
Smyth K.C. for respondent Boland.

Judgment of the Court

C.J.C.-In regard to " the taking or using of lands," s. 13 of the statute 9-10 Geo. V, c. 13, enacts, by exception, that the provisions of the Expropriation Act (R.S.C., c. 143), shall apply to the Canadian National Railway Corihpany in lieu (inter alia) of the sections of the Railway Act which deal with these subjects. The answers to the questions submitted 'by Order in Council for our consideration depend upon whether proceedings to obtain possession of lands to be acquired compulsorily for the purpose of the railway are to be regarded as included in the exception so made by s. 13 to the general application of the Railway Act, or whether they should be regarded as incidental to proceedings for the ascertainment of compensation with which they are grouped in the Railway Act (ss. 215-243, 9-10 Geo. V, c. 68) under the heading whereas preceding fasciculus carries the heading Apart from any inference to be drawn from collocation in the statute, the obtaining of possession would seem to An fall naturally within " the taking of " lands rather than C .c. within " the ascertainment of the compensation " to be paid for them.
Upon careful examination the entire set of provisions embraced in ss. 189-243 of the Railway Act are seen to relate to the acquiring of lands for the purposes of the railway and it seems clear that, notwithstanding the fact that the heading is in the same type the earlier heading namely small capitals, whereas sub-headings in the same statute are printed in italics, the sections dealing with proceedings for acquisition by expropriation, commencing with no. 215, must be regarded for present purposes as relating to, and a sub-division of, what is comprised under 214, which is found under that heading and immediately precedes the heading makes this abundantly clear. It reads as follows:
Sections 215 et seq. proceed to provide for the mode of acquisition where transfer of the lands and settlement of matters incidental thereto by agreement under s. 213 is not feasible.
In this view of the matter ss. 239 et seq. which deal with the obtaining of possession in cases of resistance, must be regarded as having to do with " the taking or using of lands " and therefore within the purview of the exception to the application of the Railway Act made by s. 13 of the Canadian National Railway Company Act.
In conformity with this view we find a specific provision made by clause (c) of subs. 2 of s. 13 for the application to expropriations by the Canadian National Railway Cornpany of the provisions of the Railway Act respecting the ascertainment of compensation, which might otherwise be deemed to have been excluded under the general exception made in regard to " the taking or using of lands."
While, therefore, the subsequent proceedings in regard to the ascertainment and payment of compensation for lands to be acquired by the Canadian National Railway - Company are to be taken under the sections of the Railc.J.C.
way Act commencing with s. 215, which provides for the notice of expropriation, it is the jurisdiction for the acquisition of possession conferred by s. 21 of the Expropriation Act (R.S.C., c. 143) which the company must invoke in order to obtain possession compulsorily.
Although the Canadian National Railway Company is admittedly a corporation entirely distinct from the Crown and is not to be regarded as a department of the Government of Canada, its national character and the fact that it is an instrument created by statute for the management, operation and control of the Canadian National Railway System must not be ignored.
Lands to be acquired compulsorily by it being vested in the company (s. 13 (2) (b), 9-10 Geo. V, c. 13), by and upon the deposit of plans under the Expropriation Act, no good reason has been suggested why immediate possession of such lands should not be available to the company as provided for by s. 21 of the Expropriation Act. The provisions of ss. 239-240 of the Railway Act as to payment into court of compensation money or the giving of security therefor would seem to be unnecessary and inappropriate.
By subs. 1 of s. 13 of the Canadian National Railway Company Act the provisions of the Expropriation Act are made to apply only when not " inconsistent with this Act " and mutatis mutandis. But we are unable to discern anything in s. 15 of the Canadian National Railway Company Act which excludes, as inconsistent, the exercise by the Exchequer Court of the jurisdiction conferred on it by s. 21 of the Expropriation Act where lands are acquired by the Canadian National Railway Company.
The jurisdiction of the judge of the Exchequer Court under s. 21 of the Expropriation Act is concurrent with that of " any judge of any superior court."
15 of the Canadian National Railway Company Act is permissive; it is declaratory of the powers of a judge of any court of competent jurisdiction RAIAY in Canada; the definition in subs. 2 of a court of competent jurisdiction is not framed as exclusive; the entire section is consistent with the existence of jurisdiction in the judge of the Exchequer Court concurrent with that of the judges of the provincial superior courts.
The apparent office of s. 15 is to dispense with the necessity of a fiat which might otherwise have been deemed a prerequisite to proceedings against the company in view of its national character, and to provide for the right of appeal, notwithstanding that the judge acting under s. 15 might be regarded as persona designata. Unusual as it undoubtedly is that the Exchequer Court should entertain proceedings as between subject and subject, except in matters concerning patents, copyrights and trade-marks, having regard to the national character of the Canadian National Railway Company and its -relation to the Government of Canada, it seems not inappropriate that that court should be vested with the jurisdiction here in question.
To the questions submitted we, therefore, make the following answers:
Question No. 1: The provisions of the Expropriation Act apply.
Question No. 2: Yes.
Question No. 3: Yes.
C.N.R. v.
C.J.C.-For the reasons stated above we are, with respect, of the opinion that the judgment of the learned judge of the Exchequer Court declining jurisdiction in this case was erroneous.
For the reasons stated by Mr. Justice Middleton in delivering the judgment of the Appellate Division of the Supreme Court of Ontario (1), affirming the judgment of Orde J., in Boland v. Canadian National Railway Co. (2), we agree with the conclusions of that court that the impugned expropriation
S.C.R.
The appeal will accordingly be allowed with costs and the proceedings will be remitted to the learned judge of the Exchequer Court to be pursued under s. 21 of the Expropriation Act.
Appeal allowed with costs. Solicitor for the Attorney General of Canada: W. Stuart Edwards.
Solicitor for the Canadian National Railway Co.: George F. Macdonnell.
Solicitors for the respondent Boland: Macdonell & Boland. BELGIAN INDUSTRIAL CO. v. CANADA CEMENT CO.
APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec, reversing the judgment of the Superior Court and maintaining the respondent's action.
The appellant company, whose plant is situated at Shawinigan Falls, is the successor of the Belgo Canadian Pulp and Paper Co. and the alleged liability is a liability of the latter company under a contract it made with the respondent company, a manufacturer of cement. The Belgo Company, in July and August, 1920, agreed to purchase from the respondent company 5,000 barrels of cement. On account of the press of orders at its Montreal plant, the respondent company agreed to deliver this cement from its plant at Exshaw, Alberta, for a price inclusive of freight of $6.55 per barrel, any increase in the freight rates to be borne by the Belgo Company. Under this contract, certain quantities of cement had been shipped from Exshaw, when, on October 1, 1920, an agreement was arrived at to hold up further shipments from Exshaw. Seventeen cars of cement alleged to have been sent in September from Exshaw were charged to the appellant at Exshaw price. Out of that shipment six cars had previously been shipped in September to a firm in Alberta and refused by it as failing to pass the test of fitness and the same six cars had been re-shipped to the appellant on October 1. The latter, having also refused delivery of these six cars, undertook, on October 12, to pay the Exshaw price on six cars of cement shipped from Montreal to replace those refused, upon the representation by the respondent company that these oars had been shipped before the 1st of October. The Belgo Company paid the Montreal price for these six carloads of cement and the respondent claimed that it should have paid the Exshaw price. The appellant's demand is for payment of the difference between the latter price and the Montreal price, $4,354.18, forming with interest the sum of $4,556.67.
The respondent failed in the Superior Court, but obtained judgment for the amount of its claim in the Court of King's Bench, Greenshields and Guerin JJ. dissenting. On appeal to the Supreme Court of Canada, after hearing counsel on behalf of both parties, the court reserved judgment and, on a subsequent day, allowed the appeal with costs.
Appeal allowed with costs. Perron K.C. and Genest K.C. for the appellant.
Laurendeau K.C. and Chipman K.C. for the respondent.

Statutes and regulations cited