The damage intended by s. 92 is some actual injury or damage to lands occasioned by the exercise of the powers of the railway. It is, in short, damage of the same character as that for which compensation is recoverable under the English Acts where no land is Ro. taken
Under the Canadian Act it must be held as under the Imperial Acts that, arising as it does from works authorized by the legislature, it must be such as would apart from the statute have been the subject of an action, and it must also'be such Anglin J. as to diminish the value of the property irrespective of any particular use which might be made of it.
Maclennan J.A., at p. 218, refers to the identity of s. 92 with the proviso to s. 16 of the English "Railway Clauses Act," and adds our law is, therefore, substantially the same as the English law. Moss J.A. at p. 220, said:
The damage sustained for which compensation is to be made is damage to land, either from taking materials or on account of its being injuriously affected by the exercise of any of the powers granted to the railway. And it is well settled that the compensation recoverable in respect of lands injuriously affected must be based on injury or damage to the estate or land itself and not on personal inconvenience or discomfort to the owner or occupier.
A similar view had been expressed by Ferguson J. in 1896(1), at page 20.
That learned judge regarded as in point Ford v. Metropolitan Rly. Co.(2), where Cotton L.J. points out, at p. 25, that the inconvenience or injury which arises solely from the particular use to which the particular occupier puts the buildings must not be regarded and that injuries sustained by them in carrying on their business cannot be made the subject of compensation.
In St. Catharines Rly. Co. v. Norris(3), in 1889, Galt C. J., following English authorities, held that injury to trade as distinguished from injury to property did not entitle the owner to compensation for injurious affection.
(1) 28 O.R. 14.
(2) 17 Q.B.D. 12.
(3) O.R. 667.
With these decisions before it Parliament reenacted s. 92 of the statute of 1888 in the "Consolidated Railway Act " of 1903, as s. 120 (ch. 58) and Co. V.
again re-enacted it in the revision of 1906 as s. 155 (ch. 37) in ipsissimis verbis. Although s.s. 4 of s. 12 of the "Interpretation Act" (R.S.C. ch. 1, in force since 1890 (53 Vict., ch. 7, s. 1), declares that
Parliament shall not be re-enacting any Act or enactment or by revising, consolidating or amending the same be deemed to have adopted the construction which has, by judicial decision or otherwise, been placed upon the language used in such Act, or upon similar language. We cannot assume that the Dominion Legislature when they re-enacted the clause verbatim (in 1903 and again in 1906) were in ignorance of the judisial interpretation which it had received.
It must on the contrary be assumed that they understood that (s. 92 of the Act of 1888) must have been acted upon in the light of that interpretation. Casgrain v. Atlantic and North West Ry. Co.(1), at page 300.
It is unreasonable to suppose that if Parliament were not satisfied that its intention had been thereby given effect to it would have re-enacted the section in the same terms.
As already pointed out, when the proviso to the English s. 16 was first introduced into Canada we had no such interpretation provision as is now found in s.s. 4 of s. 21 of ch. 1 of the R.S.C. 1906. Arnold v. Dominion Trust Co.(2), at. pages 448-9. Under these circumstances, although not bound by the dicta of the eminent Ontario judges to which I have referred, even if I entertained doubts as to the meaning of s. 155 in the present Act, I would have declined to disturb the construction of its language which had been (so often) judicially affirmed.
Casgrain v. Atlantic and North West Rly. Co.(1) City Bank v. Barrow(3), at pages 673, 679.
(1) [1895] A.C. 282.
(2) 56 Can. S.C.R. 433; 41 D.L.R. 107. (3) 5 App. Cas. 664 applicability of English decisions in regard to the right of compensation in'cases of- injurious affection under the Dominion "Railway Act" was again recognized by Clute J., who delivered the principal judgment in the Appellate Division in the case now at bar. The decision of the Privy Council in Holditch v. Canadian Northern Rly. Co.(2), certainly overrules the view expressed by Armour C. J. in In re Birely and Toronto, Hamilton and Buffalo Rly. Co.(3), (already "scotched"
in Powell v. Toronto Hamilton and Buffalo Rly. Co.(4), that the introduction of s. 92 into the Dominion "Railway Act" of 1888 had effected such a material change in the scope of the provisions for compensation in that Act that in cases where no land had been taken compensation might thereafter be recovered for injuries due to the operation of the railway.
Their Lordships there point out (p. 544) that that section (now s. 155) is taken from s. 16 of the English " Railway Clauses Consolidation Act," 1845, and they approve the application of the English decisions to determine its purview in the Canadian statute.
Their earlier decision in Grand Trunk Pacific Rly. Co. v. Fort William Land Investment Co.(5), points in the same direction.
Notwithstanding the passage from Lord Macnaghten's judgment in Parkdale v. West(6), at page 616, in which he says-of course obiterto which I allude merely to make it clear that it has not been overlooked, the utmost use that can be made of evidence of loss of business ascribable to the exercise of powers conferred by the "Railway Act" in cases of injurious affection is indicated in my opinion in the following passage from the judgment of Lopes L. J. in Howard v. Metropolitan Board of Works,(1) quoted by Clute J.:- It is as to the necessity for payment of compensation before interference with the right that cases of injurious affection are held by Lord Macnaghten to stand under the Canadian Act on precisely the same .footing as cases of actual taking, in that respect differing from the like cases under English Lands Clauses Consolidation Act of 1846.
Parkdale v. West(2). In Parkdale v. West(3), the corporation was held liable as a wrongdoer not protected from the consequences of its tort by any statutory provision, and it was on that basis that Lord Macnaghten thought the municipality liable "to the, full extent" and that damages were assessed against it.
I am, for these reasons, of the opinion that the construction of s. 155 of the Canadian "Railway Act " of 1906 is governed by the English decisions on the purview of the proviso of s. 16 of the "Railway Clauses Consolidation Act " of 1845, and that the respondent is not entitled to compensation for loss of business occasioned by the execution of the works in question. The award should therefore be reduced by $4,500. at The respondent has been allowed the full benefit of evidence of loss of business in so far as it affectedCANADIAN the value of her property as "a marketable article." The $9,724. found by the arbitrator to have been its value before the works were begun, represented a valuation on the same basis as the £1,550 allowed in Wadham's Case(1), i.e., it included any special value which the premises had as a stand for the particular class of business carried on by the respondent. There should also be a further reduction of $192 as claimed by the appellant from the $6,366 allowed for injury to the land for the reasons indicated by Riddell and Kelly JJ. in the court below.
The award will therefore stand for the sum of $6,174-and costs. The appellant is entitled to its costs in this court and in the Appellate Division.
J. (dissenting).-This is an appeal from the Appellate
Division of the Supreme Court of Ontario which referred back to the arbitrator an award concerning lands for which the respondent claims compensation.
The appellant company for the purpose of building a subway in the City of Toronto on Yonge street had lowered the level opposite the respondent's property and practically left it without access to the street. The arbitrator to whom the question of compensation was referred awarded $6,366 for the bare depreciation of the land and $4,500 for loss of business based on an estimate of profits for three years. The Appellate Division held that the respondent was entitled to compensation for the loss of business but that the amount had been arrived at by an erroneous principle and the case was referred back to the arbitrator to ascertain the compensation which the respondent was entitled to in that regard.
There is no dispute as to the depreciation of the property itself.
The only question then is whether re some compensation should be given for the loss trade, or the diminution of the claimant's good-will in her business, consequent on the destruction of the access to the premises in which the business was carried on.
Section 155 of the "Railway Act" is the law under which the claim of the respondent to compensation is made.
It reads as follows:- There is no doubt that the respondent is an interested person, since the access to the street which she had before is virtually destroyed.
Nobody disputes that she is entitled to damages.
If some land had been taken, there is no doubt under the authority of the English cases that the measure of damages would be the difference between what the premises as a running concern would be worth to the expropriated party and the value of the land afterwards, and would include compensation for loss of business.
But a distinction is made in England as to the measure of damages in the case of lands taken and in the case of lands injuriously affected.
When in the case of lands taken full compensation including loss of business is given, in the case of lands injuriously affected the compensation does not include personal inconvenience.
1856, Caledonian Railway Co. v. Ogilvy(1); 1864, In re Stockport Timperley and Altringham Rly. Co.(2); 1862, Chamberlain v. West End of London and Crystal Palace London Railway Co.(1); 1865, Brand v. Hammersmith and City Rly. Co. (2); 1867, Beckett v. Midland Rly. Co.(3); 1867, Ricket v. Metropolitan Rly. Co.(4); 1871, Duke of Buccleuch v. Metropolitan Board of Works These decisions in England are somewhat conflicting and not very satisfactory.
The Lord Chancellor in Ricket's Case(4), stated that it was a hopeless task to attempt to reconcile the contradictory decisions which have been rendered on the questions at issue. But should those decisions be invoked here under our Canadian legislation?
I do not hesitate to say no, because our own legislation differs from the English statutes and I rely in that respect on the views expressed by Lord Macnaghten in Parkdale v. West(6), where he said at page that In view of that decision in the Parkdale Case(6), I say that we should not refer to decisions rendered under English statutes, but we should find whether the provisions of s. 155 might cover the loss of trade in cases where lands have been simply injuriously affected.
. Section 155 enacts that compensation should be made for all damage caused. There is no distinction in this section in case of lands taken and in case of lands injuriously affected.
We have to revert to the ordinary rule governing torts and find whether the damage is the necessary result of the injury done. When the clause of the statute applies, the party is entitled to recover full compensation for all damage in respect of the diminution in value of his property Buccleuch's Case(1).
The loss to an owner includes not only the actual value of the lands but all damage directly consequent on the taking thereof under statutory powers. arbitrators called upon to fix the compensation should take into consideration the probable diminution in the value of the claimant's good-will in his trade. See decisions quoted by Cripps, 4th ed., pp. 98 and 99; In re Davies and James Bay Rly. Co. (2); Caledonian Railway Co. v. Walker's Trustees(3), at p. 276.
I am unable to find that the court below was in error in stating that the respondent was entitled to compensation for loss of business.
The appeal should be dismissed with costs.
J.-I have had the advantage of reading the very full and carefully considered reasons for judgment of my brother Anglin, and with some hesitation, caused by the very wide language of s. 155 of the "Railway Act" (R.S.C. 1906, ch. 37), I have finally come to the conclusion that my brother Anglin is right in his construction of this section.
Section 155, if I may use the term, is a condition of the grant of extensive powers to a railway company. It is taken almost verbatim from the proviso of s. 16 of the English statute, the "Railway Clauses Consolidation Act, " 1845, and if it is to receive the same construction as the English courts have given to the latter section,. damages for loss of business carried on on lands not taken but merely injuriously affected by the construction of the railway cannot be granted.
There appears to be no escape from the conclusion that the wide J. language of s. 155 must receive some limitation, and this has been done with respect to damages caused by the operation of the railway as distinguished from its construction, Holditch v. Canadian Northern Ontario Railway Co.(1), which would be damages caused by the exercise of the powers of the company. And if s. 155 be construed as s. 16 of the "Railway Clauses Consolidation Act, " 1845, has been construed, damage for loss of business in respect of land not taken but injuriously affected cannot be awarded.
This does not mean that I can appreciate the reason for the distinction which has been made between cases where land is taken and cases where land is not taken but merely injuriously affected, but this distinction is now clearly and authoritatively established, and, as I have said, no damages are granted for loss of business where lands are not taken but only injuriously affected. There is no doubt much force in the contention of the respondent that the construction of s. 16 of the English statute has been influenced by other provisions of the Imperial statutes, but looking at our own "Railway Act" and its enactments-perhaps rules of proceduregoverning the taking and using of lands and compensation and damages (ss. 172 to 214 inclusive, and more especially ss. 191 and 193), it seems to me that these sections can be compared to the other provisions of the English statutes referred to by Mr. Justice Clute as having influenced the construction of s. 16. So we have a construction authoritatively placed on the proviso of s. 16 which has been copied into the Canadian Act, and after due consideration I feel that this construction should be adopted here.
I would, therefore, allow the appeal with costs here and in the Appellate Division, and restrict the compensation to the sum of $6,366.00 awarded by the learned arbitrator for damage caused to the respondent's property, deducting however the sum of $192.00, expenses of the auction sale effected by the respondent after the construction of the appellant's works. learned arbitrator valued the respondent's property as it stood before the construction of the works and deducted from this gross value the net proceeds of the auction sale.
It is obvious that if the respondent had sold her property at the higher valuation before it was injuriously affected, she would have incurred the necessary expenses of the sale, so that it seems to me a fallacy to compare the gross value before the construction of the works to the real value, less expenses of sale, after the property had become depreciated. The deduction of this sum of $192 reduces the compensation to $6,174, and costs.
Appeal allowed with costs.
Arrêts cités
- A.C. 282 A.C. 282