City of Windsor v. Town of Walkerville

OF WALKERVILLE AND OTHERS. f

ON APPEAL FROM THE RAILWAY COMMISSIONERS CANADA

J.-This is an appeal, by leave of the Board of Railway Commissioners for Canada, from an order of that Board, by which a portion of the cost of a subway under the Pere Marquette Railway lines, wholly situate within the town of Walkerville, was assessed against the appellant City of Windsor.

Wyandotte street runs east and west through the town of Sandwich, the city of Windsor and the town of Walkerville, and connects at the easterly limit of the latter town with Ottawa street, in the city of East Windsor, which latter street runs easterly through the city of East Windsor and through the adjoining town of Riverside. These two streets, therefore, form a continuous highway, running through these five municipalities.

The subway in question is near the easterly limit of the town of Walkerville, and, consequently, nearly the full crrY OF width of the latter town from the easterly limit of the appellant City of Windsor.

or The sole question involved in the appeal is whether or not, under these circumstances, the City of Windsor is " in- Smith J. terested or affected " by the order in question, within the meaning of sec. 39 of the Railway Act, which is 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 or 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.

The argument is that the City of Windsor, with a very large population, has its eastern boundary only a little over 3,000 feet from the subway, and that access to and from that city, from and to the four other municipalities, is largely through the subway in question.

This was the precise argument urged in The City of Toronto v. The Village of Forest Hill (1).

In that case, the order of the Board had reference to a bridge, which carried a street of the village of Forest Hill over a railway. This bridge was situate wholly within the limits of the village of Forest Hill, and the point nearest to this bridge in the limits of the city of Toronto is the westerly limit of that part of the city of Toronto that was formerly North Toronto, which is 500 feet away.

It was argued there that, by reason of the large population in that part of Toronto formerly called North Toronto, and the still larger population of that part of Toronto lying south of Forest Hill, there was a great deal of traffic to and from these particular portions of the city of Toronto passing over the bridge in question.

(1) [19321 Can. S.C.R. 602.

S.C.R.]

The submission by Mr. Grant on behalf of the railway cr company was that all municipalities in which traffic passing over the bridge in question would normally originate, in substantial magnitude, would be subject to the jurisdiction of the Board as being " persons interested or affected -by the order."

Mr. Justice Duff, as he then was, after quoting this argument, says, at p. 605:

Section 37 provides for payment of the expenditure upon all work on such suburban roads outside of the limits of a city or town, in part by the county, in part by the city or town, and in part by the province.

All that need be said here is that the streets in question are not provincial or county highways or suburban roads, so that the effect of the Act in reference to railway crossings on such highways or roads need not be dealt with. The appeal must be allowed, with costs; and the answer to the question submitted is in the negative.

Appeal allowed with costs.