Citation Codes

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Case Number

On Appeal from the Supreme Court of Canada

Attorney(S)

Charles Russell and Co.
Redden
Blake
E. Lafien
Raymond Asquith
E.L. Newcombe
Geoffrey Lawrence
S.B. Woods
Lawrence Jones and Co.
R.B. Finlay

Judges

Sir Joshua Williams
Sir Charles Fitzpatrick
Lord Sumner
Lord Moulton
Justice Viscount Haldane L.C.

Acts

Section 82 above referred to :- Sub-Section (3)- "The provisions of this section
Section 7 of the amending Act of 1912 the following sub-section
provision of Section 82 of the Alberta Railway Act, 1907,
Section 92 (10) of the British North America Act, 1867,
Section 91 (29) of the British North America Act, 1867,
Act, Section 82 of the Alberta Railway Act of 1907
provisions of Section 82 of the Railway Act, 1907,
Section 8 of the Dominion Railway Act,
Section 60 of the Supreme Court Act.
Section 8 of the Railway Act

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Smart Summary

Summary of Opinion — Lord Moulton

Factual and Procedural Background

This appeal arises from two questions referred by His Royal Highness the Governor in Council to the Supreme Court of Canada under Section 60 of the Supreme Court Act. The questions concern the validity of Section 7 of Chapter 15 of the Acts of the Legislature of Alberta, 1912 ("An Act to amend the Railway Act"), which inserted a new sub-section (3) into Section 82 of the Alberta Railway Act, 1907.

The original Section 82 (as enacted in 1907) authorized a railway company to take possession of or use lands belonging to another railway company and to run its trains over another company's railway, subject to approval of the Lieutenant-Governor in Council and subject to orders, directions and conditions. Sub-section (2) provided for application, notice, hearing and conditions, and preserved provisions relating to taking land, valuation and appeals.

Section 7 of the 1912 amending Act added sub-section (3) to Section 82, extending the provisions "to the lands of every railway company or person having authority to construct or operate a railway otherwise than under the legislative authority of the Province of Alberta" so far as the taking of such land "does not unreasonably interfere with the construction and operation of the railway or railways" constructed or operated under that other legislative authority.

Two questions arising from that amendment were referred to the Supreme Court of Canada: whether the 1912 section is intra vires the Provincial Legislature as applied to federally-authorized (Dominion) railways, and whether the section would be intra vires if amended by striking out the word "unreasonably." A third hypothetical question was submitted by consent but was not answered by the Supreme Court and is not treated as part of this appeal by Lord Moulton. The appeal to their Lordships concerns the correctness of the decision below and the legal effect of sub-section (3).

Legal Issues Presented

"Is Section 7 of Chapter 15 of the Acts of the Legislature of Alberta of 1912 instituted 'An Act to amend the Railway Act' intra vires of the Provincial Legislature in its application to railway companies authorized by the Parliament of Canada to construct or operate railways?"
"If the said section be ultra vires of the Provincial Legislature in its application to such Dominion Railway Companies, would the section be intra vires if amended by striking out the word 'unreasonably'?"

Arguments of the Parties

Appellant's Arguments

Counsel for the appellants principally confined argument to the scenario of a provincial railway crossing the track of a Dominion (federal) railway — the likely motivating factual context for the provincial legislature when passing sub-section (3).
It was urged that if provinces had no power to authorize their railways to cross Dominion railways then a provincial railway might, in theory, be isolated (for example, a tract of province surrounded by Dominion lines), creating serious practical difficulties for the Province.
Appellants' counsel apparently accepted limits on provincial power: they admitted the province could not grant the right to cross at any place or in any manner selected by the province and that place and manner must be subject to the approval of the Railway Board (a federal body created under Dominion statute).

Respondent(s)' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Canadian Pacific Ry. Co. v. Corporation of the Parish of Notre Dame de Bonsecours [1899] A.C. 367	Supports the proposition that railways described by s.92(10)(a) and (c) of the British North America Act fall under the exclusive legislative authority of the Parliament of Canada, limiting provincial power to legislate as to their lines or works.	Cited as authority for the conclusion that provincial legislation cannot validly affect the physical construction and use of the track and buildings of a Dominion railway.
Madden v. Nelson and Fort Sheppard Ry. Co. [1899] A.C. 626	Similarly supports that railways within the classes enumerated in s.92(10) are within exclusive federal legislative authority and are therefore beyond provincial legislative competence in respect of their lines and works.	Cited alongside the other authority to reinforce the proposition that sub-section (3) (as extending provincial regulation to Dominion railways) was ultra vires the provincial legislature.

Court's Reasoning and Analysis

The court began its legal analysis with the constitutional allocation of powers. It quoted Sections 92(10) and 91(29) of the British North America Act, 1867, and stated that railways described in s.92(10)(a) and (c) are within the exclusive legislative authority of Parliament of Canada. The court observed that it is plain from these statutory provisions, and supported by prior decisions, that the Provincial Legislature lacks power to legislate so as to affect the line or works of such a federal railway.

Turning to Section 82 of the Alberta Railway Act (1907), the court held that the pre-1912 provisions could reasonably be read in a limited sense to apply only to companies owning and operating railways wholly within the province. To that extent the provincial legislation would be intra vires. However, sub-section (3) added by the 1912 amending Act expressly extended the provincial regime to lands of railway companies authorized by Parliament (Dominion railways). With that explicit extension, Section 82 operated as legislation in relation to the physical construction and use of the track and buildings of Dominion railways — a substantial encroachment on matters of exclusive federal competence.

The court therefore concluded that sub-section (3) is ultra vires the Alberta Legislature because it seeks to legislate in a field reserved to the Parliament of the Dominion.

The court next addressed the second question — whether striking out the word "unreasonably" would render the provision intra vires. The court held that omission of that qualifier would not cure the constitutional defect: even a provision qualified by reasonableness would still be legislation in respect of the physical tracks and works of a Dominion railway, which falls exclusively within federal legislative power. The province thus has no competence in this domain whether the provincial law were reasonable or unreasonable.

The court cautioned that parties and counsel should not vary questions referred to the Supreme Court by introducing hypothetical limitations not present in the legislation or in the original questions. It recognized that some hypothetical variations legitimately bear on separable matters, but discouraged attempts to alter the scope of the referred question by counsel's hypothetical qualifications.

The court considered the particular problem pressed by the appellants — provincial railways crossing Dominion lines — and treated it as primarily an administrative difficulty rather than a constitutional right of the province. The court pointed to the Dominion Railway Act (specifically Section 8) and the administrative role of the Railway Board as the statutory mechanism by which crossings of Dominion railways by provincial railways are treated. The Dominion legislation subjects such crossings to the same administrative regime that governs crossings between Dominion railways, and the Railway Board is given power to permit and regulate crossings. The court concluded that this administrative framework provides the practical remedy for the difficulties raised and avoids overlapping legislative powers.

Holding and Implications

Holding: Their Lordships answered both questions submitted to the Supreme Court of Canada in the negative and pronounced that sub-section (3) (added by Section 7 of the Alberta amending Act of 1912) is ultra vires the Alberta Legislature in its application to Dominion railway companies. They further held that striking out the word "unreasonably" would not render the provision intra vires. The appeal was dismissed and their Lordships advised His Majesty that the decision below was correct; dismissal was ordered without costs.

Implications: The direct legal consequence is that the provincial amendment (sub-section (3)) cannot validly regulate the physical construction, use or works (including taking of land) of railways that are within the exclusive federal class described by s.92(10)(a) and (c) of the British North America Act. The opinion indicates that the administrative scheme established by Dominion legislation (notably the Railway Board's jurisdiction under the Dominion Railway Act) supplies the means by which provincial railways may seek crossings of Dominion lines. The court did not purport to establish a new departure from prior authorities; rather, it applied existing constitutional principles and prior appellate authorities to the facts and statutory provisions before it.

Appeal dismissed. No costs.

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Attorney-General For The Province Of Alberta v. Attorney-General For The Dominion Of Canada

Lord Moulton:-

The present appeal relates to two questions which were referred by H. R. H. the Governor in Council for the hearing and consideration of the Supreme Court of Canada pursuant to Section 60 of the Supreme Court Act. These questions relate to the validity of Section 7 of Ch. 15 of the Acts of the Legislature of the Province of Alberta of 1912, instituted "an Act to amend the Railway Act."

Prior to the passing of the above Act, Section 82 of the Alberta Railway Act of 1907 stood in the following form :

"The company may take possession of, use or occupy any lands belonging to any other railway company, use and enjoy the whole or any portion of the right of way, tracks, terminals, stations, or station grounds of any other railway company and have and exercise full right and powers to run and operate its trains over and upon any portion or portions of the railway of any other railway company, subject always to the approval of the Lieutenant-Governor in Council first obtained, or to any order or direction which the Lieutenant Governor in Council may make in regard to the exercise, enjoyment, or restriction of such powers or privileges."

Sub-Section (2)-

"Such approval my be given upon application and notice, and after hearing the Lieutenant-Governor-in Council may make such order, give such directions, and impose such conditions or duties upon either party as to the said Lieutenant Governor-in Council may appear just or desirable having due regard for the public, and all proper interests and all provisions of the law, at anytime applicable to the taking of land and their valuation, and the compensation therefor and appeals from awards thereon shall apply to such lands, and in cases under this section where it becomes necessary for the company to obtain the approval of the Board of Railway Commissioners for Canada, it shall do so in addition to otherwise complying with this section."

By Section 7 of the amending Act of 1912 the following sub-section was added to Section 82 above referred to :-

Sub-Section (3)-

"The provisions of this section shall extend and apply to the lands of every railway company or person having authority to construct or operate a railway otherwise than under the legislative authority of the Province of Alberta in so far as the taking of such land does not unreasonably interfere with the construction and operation of the railway or railways constructed and operated or being constructed and operated by virtue of or under such other legislative authority."

The questions referred to the Supreme Court of Canada were as follows :-

(1)

"Is Section 7 of Chapter 15 of the Acts of the Legislature of Alberta of 1912 instituted 'An Act to amend the Railway Act' intra vires of the Provincial Legislature in its application to railway companies authorized by the Parliament of Canada to construct or operate railways ?"

(2)

"If the said section be ultra vires of the Provincial Legislature in its application to such Dominion Railway Companies, would the section be intra vires if amended by striking out the word 'unreasonably '?"

At the hearing before the Supreme Court of Canada, it would seem that, by consent of counsel representing the Dominion Government and the Province of Alberta respectively, a third question was submitted to the Court for hearing and consideration. It was hypothetical in form and no answer was given to it by Supreme Court. Their Lordships do not consider that this question should be regarded as forming part of the questions referred to the Supreme Court by H.R.H. the Governor in Council, or that it is included in the present appeal. No attempt was made to argue it at the hearing, and their Lordships do not propose to take further notice of it.

By Section 92 (10) of the British North America Act, 1867, it is enacted as follows :- Section 92, "In each Province the Legislature may exclusively make laws in relation to matters coming within the class of subjects next hereinafter enumerated, that is to say :-

Sub-Section 10-

"Local works and undertakings other than such as are of the following classes :-

(a) Lines of steam or other Ships, Railways, Canals, Telegraphs and other works and undertakings connecting the Province with any other or others of the Province or extending beyond the limits of the Province.........

(c) Such works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces."

By Section 91 (29) of the British North America Act, 1867, it is enacted as follows :- Section 91.........It is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say :-

.....................................................................................

Sub-Section (29)

"Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces."

It has never been doubted that these words refer to and include Railways such as are mentioned in 92 (10) (a) and (c) above quoted. Indeed the language seems to point to 92 (10) so expressly that the contention is frequently heard that it is intended to refer to it solely. It is not necessary to decide such points in the present case. It suffices to say that Railways such as are described in 92 (10) (a) and (c) come under the exclusive legislative authority of the Parliament of Canada. The Provincial Legislature therefore has no power to affect by legislation the line or works of such a Railway. If authority were required for so plain and evident a conclusion from these statutory provisions, it is to be found in the judgments of their Lordships in the cases of Canadian Pacific Ry. Co. v. Corporation of the Parish of Notre Dame de Bonsecours [1899] A.C. 367, and Madden v. Nelson and Fort Sheppard Ry. Co. [1899] A.C. 626.

The provision of Section 82 of the Alberta Railway Act, 1907, do not in the opinion of their Lordships necessarily clash with these rights of legislation which thus exclusively belong to the Dominion Parliament, for it is possible to give to the words "Railway Company" the limited meaning of a company owning and operating a Railway situated entirely within the Province, and to that extent the legislation is ultra vires. But sub-Section 3, which was added by the Act of 1912 and the validity of which is under consideration, expressly extends Section 82 so as to make it apply to a Dominion Railway. With this addition the provisions of Section 82 of the Railway Act, 1907, of the Legislature of Alberta unquestionably constituted legislation as to the physical construction and use of the track and buildings of a Dominion Railway, and that of a serious and far-reaching character. Their Lordships have no hesitation therefore in pronouncing that sub-Section 3 is ultra vires of the Alberta Legislature.

They are further of opinion that it would not become intra vires if the word "unreasonably" were struck out of the section. It would still be legislation as to the physical tracks and works of the Dominion Railway, and as such would be beyond the competence of the Provincial Legislature. These are matters as to which the exclusive right to legislate has been accorded to the Parliament of the Dominion, so that the Provincial Legislatures have no power of legislation as to them, and this holds good whether or not the legislation is such as might be considered by juries or judges to be reasonable.

It was no doubt due to the almost self-evident character of these propositions that at the hearing of the appeal before their Lordships but little attempt was made to support the validity of sub-Section 3 in its entirety. To judge by the reasons given by the learned Judges of the Supreme Court in their judgments it would seem that much the same course was adopted in the argument before the Supreme Court. The true aim of the discussion seemed rather to obtain the opinion of the Court and of their Lordships upon hypothetical variations of the section which would have the effect of limiting its application. Indeed, in the hearing before their Lordships' counsel for the appellants practically confined their argument to the single case of a provincial railway crossing the track of a Dominion Railway. Their Lordships are of opinion that great care should be exercised in permitting questions thus referred to the Supreme Court to be varied, more especially when those questions come up on appeal for decision by their Lordships. It may no doubt happen that the questions relate to matters which are in their nature severable, so that the answers given may cast light upon the effect of the deletion or alteration of parts of the provisions the validity of which is being considered. But their Lordships do not desire to give any countenance to the view that counsel may vary the questions by hypothetical limitations not to be found in the provisions themselves or in the questions that relate to them.

In the present instance, however, the case chosen by counsel for the appellants as the subject of their arguments has no doubt strong claims for separate consideration, inasmuch as it is doubtless the case which was mainly present to the mind of the Provincial Legislature when considering sub-Section 3. It has reference to the circumstances under which exclusive power of Parliament to legislate as to Dominion Railways appears to operate most harshly on the freedom of action of the Province. It was urged with great force that if the Provinces had no power to authorize their railways to cross the tracks of Dominion Railways they might theoretically be placed in a position of great difficulty. Regarded in the abstract it might be possible for a tract of country situated in a province to be surrounded by Dominion Railways in such a way that unless crossings were permitted a provincial railway situated within the tract would be completely isolated and cut off from access to other portion of the province. But the difficulty is essentially administrative, and not one that could be cured by any decision as to constitutional rights. It is scarcely too much to say that it would not be practicable to frame the actual claim of the province in the present case in such a way that it could be a constitutional right possessed by a province. Even their own counsel admitted that the province could not give to one of their Railways the right to cross a Dominion Railway at any place or in any specific way chosen by them. They admitted that the place and manner must be subject to the approval of the Railway Board, a body created by a Dominion Statute in the year 1903, whose powers depend on a Dominion Railway Act. How could a constitutional right be measured or defined by the views or decisions of such a body one which did not exist when the constitution was created?

It is therefore not in abstract constitutional rights but in administrative provisions that the remedy must be sought for the inconveniences which in the abstract might flow from the fact that the exclusive power of legislating as to Dominion Railways is vested in Parliament. And in this respect the present form of the Dominion Railway legislation indicates and in their Lordships' opinion provides an effective remedy. By Section 8 of the Dominion Railway Act, Parliament treats in a special manner, the crossing of the Dominion Railways by Provincial Railways. These portions of the Provincial Railways are made subject to the clauses of the Dominion Railway Legislation, which deals also with the crossing of two Dominion Railways, so that the Provincial Railways are in such matters treated administratively in precisely the same way as Dominion Railways themselves. The Parliament of the Dominion is entitled to legislate as to these crossings because they are upon the right of way and track of the Dominion Railway as to which the Dominion Parliament has exclusive rights of legislation, and moreover, as the Provincial Railways are there by permission and not of right, they can fairly be put under terms and regulations. But Section 8 of the Railway Act of the Dominion and the clauses which are by it made binding on any Provincial railway crossing a Dominion Railway appear to their Lordships to indicate that it is part of the functions of the Railway Board to permit and to regulate such crossings. They are left unfettered as to whether they will permit such crossing to be at any particular spot or to be carried out in any particular way, and this jurisdiction is essential to them as guardians of those powers of construction and operation of Dominion Railways which are necessary for their existence and efficiency. But these powers of permitting crossings by Provincial Railways under suitable circumstances and with properprecautions have not been given to them idly and for no purpose. They bring with them the duty of using those powers for the benefit of the public whenever an occasion arises where they can be wisely used.

By these provisions the Dominion Legislation has in their Lordships' opinion given to Provincial Railways desiring to cross a Dominion Railway all the locus standi which they need for making an application to the Railway Board for permission to do so. The Railway Board is bound to exercise these powers given to it just as much as all other powers given to it so as to advance the best interests of the public. In this way the legitimate claims of provincial railways to obtain facilities for crossing Dominion railways are in fact met as fully as is practicable, and this without risking the chaos of overlapping legislative powers.

Their Lordships are therefore of opinion that both the questions submitted to the Supreme Court of Canada should be answered in the negative and that the decision appealed from was correct. They will accordingly humbly advise His Majesty that this appeal should be dismissed, but without costs.

Appeal dismissed.

Attorney-General For The Province Of Alberta v. Attorney-General For The Dominion Of Canada

Summary of Opinion — Lord Moulton

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent(s)' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Attorney-General For The Province Of Alberta v. Attorney-General For The Dominion Of Canada

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