The King v. Lefrançois

20(c).

The agreement between the Government of Canada and the Grand Trunk Railway Company, made under the provisions of the Dominion statute, Vict. giving the Government running rights and powers over a portion of the Grand Trunk Railway, from Levis to Chaudibre, between two sections of the Intercolonial Railway, constitutes that portion of the Grand Trunk Railway a part of the Intercolonial Railway, under the provisions of "The Government Railways Act," as amended & Viet. (D.), and, consequently, a public work within the meaning the "Exchequer Court Act," & Vict. ch. 16(o),

; [R.S.C., 20(c)]. APPEAL from the judgment of the Exchequer Court of Canada, (Burbidge J.), delivered on the 7th of January, 1908, deciding a point of law, raised by the defence, in favour of the suppliant.

The point of law in question, raised by paragraph (c) of the statement of defence, was that the accident in which the deceased husband of the suppliant lost his life did not occur on a "public work" of Canada, *PRESENT:-Girouard, Davies, Idington, Maclennan and Duff JJ. within the meaning of the "Exchequer Court Act," 50 & 51 Vict. ch. 16, sec. 16 (c), now sec. 20 (c) of chapter 140 of the Revised Statutes of Canada, 1906. The case is stated, as follows, in the judgment appealed from.

"Burbidge J.-The petition is brought by Flora Lefrangois for damages for the death of her husband, in his lifetime a locomotive-fireman, who was mortally injured while running on an Intercolonial railway, train between Levis and Chaudibre, at a point on the Grand Trunk Railway enclosed between two sections of the Intercolonial Railway where the Government of Canada has acquired running rights and powers in perpetuity and free of charge under 43 Vict. ch. 8, and over which the Government of Canada runs its trains and locomotives as on a part of the Intercolonial Railway system.

It is admitted that the Intercolonial Railway is a public work of Canada, but it is argued that the place where the accident happened is not a part of a public work of Canada, and, therefore, the suppliant has no right of action under the statute, R.S.C., 1906, ch. 140, sec. 20(c).

"That contention raises, I think, the question as to whether or not the part of the Grand Trunk Railway over which the government has running powers may with propriety be considered an extension of the Intercolonial Railway as defined in the 80th section of the 'Government Railways Act,' (R.S.C., 1906, ch. 36), which is in these terms: 'All railways and all branches and extensions thereof and ferries in connection therewith vested in His Majesty under the control and management of the Minister and situated in the Provinces of Quebec, Nova Scotia, and New Brunswick, are hereby declared to constitute and form the Intercolonial Railway.'

"In my view, I think that the place where the accident happened may properly be taken to be an extension of the Intercolonial Railway.

I am, therefore, of opinion that the accident complained of happened on a public work, and that the question of law raised should be determined against the respondent and in favour of the suppliant."

J.-If the small portion of the railway in question in this cause is not an "extension" of the Intercolonial Railway, within the meaning of section 67 of 54 & 55 Viet. ch. 50, then I do not know what it is in so far as the Dominion Government is concerned.

I quite agree with my brother Davies.

J.-This appeal from the Exchequer Court raises the simple question, whether or not a small part of the Grand Trunk Railway connecting the eastern and western parts of the Intercolonial Railway, and about a mile in length, is an extension of the Intercolonial Railway within the meaning of those words in section 67 of "The Government Railways Act," as amended by 54 & 55 Vict. ch. 50.

The Government, under an agreement entered into with the Grand Trunk Railway Company, confirmed by statute, possesses powers and rights over this section of the Grand Trunk Railway lines

For all practical railway purposes this little see- J. tion of the Grand Trunk Railway is part of the Intercolonial system.

Without running rights over it, an Intercolonial train could not pass from Montreal to Halifax or from any intervening points east or west of the section in question.

Section 67, as amended by 54 & 55 Vict. ch. 50, reads as follows:

The Intercolonial Railway is admittedly one of the public works of Canada and, if the section in question is an extension of that road within the meaning of the section just quoted, that determines the appeal. The running rights secured in perpetuity and free of charge over the section may, I think, very well be said "to be vested in the Crown under the control and management of the minister."

It is not necessary that the rights of the Crown should be exclusive. The mere fact that its rights over the. section are held and enjoyed concurrently with the Grand Trunk Railway Company and subject to the reasonable rules and regulations for its user by both railways cannot, I think, exclude it from the section quoted. The perpetual and free exercise of running rights over it are secured by virtue of the agreement quoted and are vested in the Crown and make it to all intents and purposes practically an extension within the statute of the Intercolonial Railway.

I think the appeal must be dismissed.

J.-The respondent's husband, it appears from the pleadings and particulars, was killed in consequence of a train despatcher of the Intercolonial Railway giving conflicting orders which brought Idington J. about a collision of two engines of that road, on one of which engines deceased was a fireman.

The collision took place on a part of the Intercolonial Railway system that runs over a road owned by the Grand Trunk Railway Company and over which the Intercolonial had perpetual running rights free of charge which were subject to the regulations that the Grand Trunk Railway Company, owning the road, might make from time to time.

16(c).*

I cannot agree. I think it was a part of "a public work" such as referred to in the said Act.

We must apply the plain or ordinary sense of the words and then we find that it is not the real estate title to any part of the road bed or track thereon that has to be thought of at all, but the work, that "public work"

which is being carried on over that road bed owned by somebody else leased or used by virtue of some right for the public purposes of a great public work for which respondent is responsible and was intended to be held by the Act in question fully responsible in respect of such happenings as those now in question.

I think the appeal should be dismissed with costs.

J.-I agree in the opinion stated by

Mr. Justice Davies.

DUFF J.-Having regard to the previous decisions of this court, the phrase "on a public work" in section sub-section (c), of "The Exchequer Court Act" must, I think, be read as descriptive of the locality in which the death or injury giving rise to the claim in question occurs. The effect of these decisions seems to be that no such claim is within the enactment unles. "the death or injury" of which it is the subject happened at a place which is within the area of something which falls within the description "public work." Paul v. The King (1) and the cases there cited. But, adopting that view, I do not think it is taking any unwarrantable liberty with the language of the "Government Railways Act" to hold that the short piece of track in question here is, in the circumstances, a part of the Intercolonial Railway as defined by section 80 of that Act; and is, consequently-as part a government railway-within the limits of a "public work."

Appeal dismi8sed with costs.