Majority
The variations here indicated should be made in HAGERT the judgment entered in the court below. The appeal T.
is dismissed without costs.
TowN O.
Judgment of the Court
SEDGEWICK J-The only question involved in this appeal is as to whether the proviso at the end of subsection 4 of section 262 of the Railway Act (Canada), 51 Vict. ch. 29, applies not only to the sub-section in which it is placed but to sub-section 3 as well. If the proviso is confined to sub-section 4 alone then the appeal must be allowed and the trial judgment restored, otherwise the appeal fails.
The whole section above referred to is as follows: Q.
262. This section shall apply to every railway and railway company within the legislative authority or jurisdiction of the Parliament of Canada.
2. In this section the expression "packing"
means a packing of THE GRAND wood or metal, or some other equally substantial and solid material, TRUNK of not less than two inches in thickness, and which, where by this section any space is required to be filled in, shall extend to within Sedgewick J. one anda half inches of the crown of the rails in use on any such railway, shall be neatly fitted so as to come against the web of such rails, and shall be well and solidly fastened to the ties on which such rails are laid.
3. The spaces behind and in front of every railway frog or crossing, and between the fixed rails of every switch where such spaces are less than five inches in width, shall be filled with packing up to the underside of the head of the rail.
4. The spaces between any wing-rail and any railway frog, and between any guard-rail and the track-rail alongside of it, shall be filled with packing at their splayed ends so that the whole splay shall be so filled where the width of the space between the rails is less than five inches, such packing not to reach higher than to the underside of the head of the rail: Provided however that the Railway Committee may allow such filling to be left out from the month of December to the month of April in each year, both months included.
5. The oil cups or other appliances used for oiling the valves of every locomotive in use upon any railway shall be such that no employee shall be required to go outside the cab of the locomotive, while the same is in motion, for the purpose of oiling such valves. There can be no question but that in Canadian legislation the numbers of sections and sub-sections are constituent parts of an Act.
It often happens that one section of an Act refers to another section by its number, and it would in that case be absurd to say that the numbering formed no part of the Act. It must necessarily be deemed a part of the Act, otherwise no effect can be given to a provision of that kind. Notwithstanding the general rule that the title of an Act forms no part of it, we were compelled in a case in this court to hold that owing to the form which the enactment took in that particular case, even its title was part of it.
O'Connor v. Nova Scotia Telephone Co.
A Bill passing through the legislature is invariably divided into sections. These sections are before Parliament during every stage of legislation and must be taken to have a legislative effect.
The question then is, does the "filling" mentioned in the proviso extend to the " filling " referred to in sub-section three as well as in sub-section four ?
There can be no doubt that according to the grammatical construction of sub-section four the proviso is confined to that sub-section alone. It is in fact admitted that primd facie the proviso is so limited, but it was agreed that the legislature must necessarily have intended that it should take a wider scope and include all kinds of filling prescribed by the whole section.
Now, it is an elementary principle that the grammatical or ordinary sense of words used in a statute are to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the statute, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that inconsistency and absurdity, but no further. Grey v. Pearson
In order therefore to extend the proviso beyond its prima facie limits, giving its words a secondary and extended meaning in order to give effect to the presumed intention of the legislature, clear and conclusive reasons must be shown to compel us to put such a construction upon it.
Reading the whole section any one would naturally suppose that the legislature intended to distinguish between that class of filling mentioned in sub-section three, and the class mentioned in sub-section four, and that the first filling was to be a permanent fixture, and that the second might, under certain circumstances, be dispensed with during the winter months. There was no evidence on this point before us; it was only suggested why such a distinction should be made.
I am no expert, but I can readily understand why the spaces behind and in front of a " frog " should at all times be kept filled, in consequence of its permanently dangerous character, while the intervening spaces between a guard-rail and the track-rail alongside of it may not be so dangerous, and that it may be convenient during the winter time for the purpose of more easily keeping the track free from ice and snow to permit such spaces to be open during the winter months. It is not clear to me why a distinction should be made in the case of the spaces between the fixed rails and a switch and the spaces referred to in sub-section four, but that is no reason why I should assume there is no distinction.
Whatever the reason may be, if the enactment, as a matter of fact, makes it we must give effect to it. No reason has been presented which forces us to depart from the ordinary meaning of the terms employed, or to extend the proviso beyond its grammatical meaning.
Clearly in a case like the present the burden of sustaining the claim for a wider construction is upon him who claims it. The burden in the present case has not been sustained.
With great deference we have to dissent from the view taken by the Court of Appeal. The error in their judgment seems to have been in the assumption that the Legislature intended to give a wider meaning to the proviso and that the whole argument was to show that there was no insuperable obstacle by reason of the words themselves to prevent that wider meaning from being given to it. In our view, in dealing with a case like the present we must begin with the words themselves- giving them their grammatical, primary, and ordinary meaning. If it is, however, made clear that they are susceptible of a broader scope and of taking in a wider range that must be proved by circumstances and considerations imperatively forcing that conclusion upon us. These circumstances have not been shown to exist. The appeal must therefore be allowed and the original judgment restored. The appellant is entitled to costs in all the courts.
Appeal allowed with costs.*
Solicitors for the appellant: Staunton 4 O'Heir.
Solicitor for the respondents: John Bell.
of
Statutes and regulations cited
-
Unresolved citations
- section 262 of the Railway Act
- section 3
- section 4