Chambers v. Canadian Pacific Ry. Co.

DuFF J.-I think there was no power to make the order impeached on this appeal.

The order does not profess to be made, and clearly enough it is not made, under section 162 or section 167 of the "Railway Act," which are the enactments Chrysler invoked in support of it. It is simply an order permitting the company "to file" a new location plan of its railway, known as the "Molson-St. Boniface Branch,"

as of the date of the plan filed and approved of "by said order No. 544, dated July 12th, 1905."

That is an order which can only mean that the plan so authorized to be filed shall be deemed to have been filed and shall take effect as having been filed on a date J.

seven years before the date of the order. It is admitted that, according to the plan which is to have this post facto effect, the land occupied by the railway mentioned in the order is not identical with that occupied by it according to the plan it is to displace. I think it is clear that the Board has no jurisdiction, by an order of this description, to authorize the railway company to alter, retrospectively, the location plan of its railway.

The remedy of the railway company, if it is in any difficulty, is by way of section 162 or section 167 of the "Railway Act." concurred with Duff J.

Appeal allowed with costs.