Ottawa Electric Railway Co. v. City of Ottawa & Canada Atlantic Railway Co.

DAVIES J.-This is an appeal granted by leave of the Board of Railway Commissioners from their order directing the Canada Atlantic Railway Company to construct a subway at the crossing of Bank Street in the City of Ottawa by the said railway and apportioning the cost between the parties to this appeal. RY. Co.

The permission to appeal was limited to the two following questions of law:

Whether reason of the terms of the agreement between the Ottawa Electric Railway

Company and the City Ottawa, Ry.

dated the 28th day of June, the Ottawa Electric Railway Company should have been ordered to contribute to the cost of the Davies J.

work thereby ordered to constructed.

Whether the Ottawa Electric Railway Company was entitled under said agreement to have the City of Ottawa furnish to the Ottawa Electric Railway Company for the use of the said company in the exercise of its running powers a street or highway known as Bank Street, including that portion of the said street where it crossed the tracks of the Canada Atlantic Railway (either with the existing grade or a changed grade as proposed), upon terms as to payment or compensation as laid down in the said agreement, and whether, if such was the effect of the said agreement, the Ottawa Electric Railway Company should have been ordered to contribute to the cost of the work thereby ordered to be constructed. This appeal is, therefore, to be determined by the construction of the said agreement of the 28th day of June, 1893, and unless there is something to be found therein entitling the Ottawa Electric Railway Company to exemption from contribution to the cost of the construction of the said subway the appeal must fail.

Mr. Henderson in a lengthy argument contended that the Board of Railway Commissioners had not on a proper construction of sections 186 and 187 of the "Railway Act, 1903," jurisdiction to make the order appealed from at all.

We were unable to appreciate the force of Mr. Henderson's reasoning on this point, and considered the provisions of the Act referred to broad and ample enough in their terms to enable the Board to act, although that point was not within the terms of the order allowing the appeal.

Mr. Henderson's contention on the agreement was that by its terms the Electric Company could not be obliged to contribute anything to the cost of any work ordered by the Board of Railway Commissioners for the protection of the public at the crossings of the city streets by the Canada Atlantic Railway and the Ottawa Electric Railway, and that it was entitled to have the street in question provided for it without the imposition of any additional burden.

The clause in the agreement on which Mr. Henderson mainly relied was the 30th. It reserves to the corporation the right to take up the streets traversed by the railway for the purpose of altering the grades thereof or for any purpose within the powers, privileges, duties and obligations of the corporation without any compensation to the company and

The argument then was that inasmuch as the application to the Board of Railway Commissioners for the construction of this subway was made at the instance of the city it must be taken to be such action relating to the alternative of the grades of the street as is contemplated in and provided for in the agreement, and that the terms of the agreement with reference to these works and alterations preclude the imposition upon the electric railway company of any of their cost.

We did not entertain any doubt whatever on the point at the argument, and did not deem it necessary to call on the other side.

The jurisdiction of the Board of Railway Commissioners under the 187th section does not in any way depend upon the person or company making application under it.

We think the Board could, on giving proper notice, invoke that jurisdiction of its own mere co.

motion in the public interest and without waiting for the intervention of any one.

The construction of the subway ordered cannot be said to be an alteration of the grade of the street within the municipal power of the corporation as provided for in the 30th section of the agreement.

On the contrary it is a work in the- interest and for the benefit of all parties concerned, ordered by a paramount authority having the fullest jurisdiction over the subject matter, whether invoked by "any party interested or affected," or whether acted on of its own motion without application.

The two railways, the Canada Atlantic and the Ottawa Electric, were under the jurisdiction of the Dominion Parliament as works declared to be for the general advantage of Canada.

In a case lately before us, City of Toronto v. Grand Trunk Railway Co. (1), we decided that the municipality was a "party interested" within -the meaning of the Act there in question, and liable to paythe proportion of the cost of the protective works directed by the Railway Committee of the Privy Council to be paid by it.

The words "party interested" have by the present Act, section 47, been amended to read "party interested or affected," and we have no doubt whatever that in the case before us the Board had full jurisdiction to act, that its order binds alike the corporation and the two railway companies affected, and that there is nothing whatever in the agreement between the city and the electric company which can in any way alter the liability of the company to pay its share of the cost of this work ordered by a paramount authority to whose orders as such the company was subject.

We, therefore, answer the first question in the affirmative, reading the words "should have been ordered" as "could have been ordered," which seems to us to cover both questions submitted.

Appeal dismissed with costs.