A-1029-96
The Municipality of Metropolitan Toronto (Appellant)
v.
The Canadian National Railway Company (Respondent)
and
Canadian Pacific Railway Company and St. Lawrence & Hudson Railway Company Limited (Interveners)
Indexed as: Metropolitan Toronto (Municipality)v. Canadian National Railway Co. (C.A.)
Court of Appeal, Strayer, Robertson and McDonald JJ.A."Toronto, June 4; Ottawa, August 14, 1998.
Railways — Appeal from Canadian Transportation Agency decision apportioning capital, maintenance costs of fence along railway's right of way equally between Metropolitan Toronto, CNR — Since Metro establishing paved pathway pedestrians, cyclists, trespassing on CNR property — Other measures to discourage trespassers unsuccessful, causing complaints from residents (eg. whistle blowing) — Railway Safety Act, s. 16 permitting reference to Agency where proposing party, any other person standing to benefit from completion of work, cannot agree on apportionment of costs between them — CTA concluding fence —railway work—, Metro stood to —benefit— from its installation — (i) Reasonable to conclude fence —railway work— — CTA reasoning fence preventing trespassing, thereby protecting railway line, facilitating railway operation, and within definition of —line work— — Definition of —railway work— including —line work— — (ii) Agency finding Metro stood to benefit from fence because protecting parkland users from inherent dangers created by presence of railway, addressing residents' complaints, discouraging trespassing thereby creating safer environment — Interpretation not confining —benefit— to conferral of additional legal rights correct in light of Railway Safety Act, s. 4(4) clearly indicating Agency must concern itself with safety of persons other than railway passengers, employees, including those using property adjacent to railway lines, who may be endangered by railway's presence — (iii) Reasonable to conclude Metro having sufficient interest in protecting park users from access to railway line in such way as to avoid inconvenience to nearby residents.
Administrative law — Statutory appeals — Standard of review — Appeal pursuant to Canada Transportation Act, s. 41(1) of Canadian Transportation Agency's decision to apportion equally between appellant, respondent capital, maintenance costs of fence along railway right of way — Railway Act, s. 16 permitting reference to Agency where proposing party, any other person standing to benefit from completion of work, cannot agree on apportionment of costs between them — On questions of law, jurisdiction standard of review correctness with some deference owed to expert tribunal on questions other than those of jurisdictional nature — On questions of mixed law, fact proper test reasonableness — But those decisions having potential to apply widely to many cases more likely to be treated as involving questions of law in contrast to those dealing with particular set of circumstances appropriately treated as involving mixed questions of law, fact — (i) Whether fence —railway work— mixed question of law, fact, subject to standard of reasonableness i.e. whether facts satisfy legal tests — Decision on particular set of circumstances, not likely to be of much general interest in future — Although decision as to jurisdiction, difficult to apply test of minimum deference (correctness) as within CTA's expertise — (ii) Interpretation of —stands to benefit— jurisdictional question subject to standard of correctness as involving question of law with potentially broad impact — (iii) Application of concept —stands to benefit— to facts, involving mixed question of fact, law — Such finding having no precedential significance — Standard of review reasonableness.
This was an appeal from a Canadian Transportation Agency (CTA) decision that the appellant and respondent should share equally the capital and maintenance costs of fencing constructed along the right of way of the Canadian National Railway (CNR) in the lower Don Valley within what was at that time the Municipality of Metropolitan Toronto (Metro), now the City of Toronto. CNR operates a rail line along the Don River in the Don River Valley. Metro operated a regional park system, including parks in the Don River Valley. Since 1991, when Metro established a paved pathway in the lower Don Valley, pedestrians and cyclists have trespassed on CNR property, crossing and recrossing the tracks. CNR introduced various measures to discourage trespassers including signage, public information, prosecution of trespassers, and whistle blowing at all curves in the track for some three miles where the problem was found to exist. The whistle blowing caused complaints from local residents. In 1995, CNR proposed that it would pay the initial cost of construction of a 20,000-foot-long chain link fence, if Metro would undertake responsibility for major maintenance. When Metro rejected this proposal, CNR referred the matter to the National Transportation Agency, the predecessor of the CTA, for an apportionment of both the capital and maintenance costs of the fence between it and Metro pursuant to Railway Safety Act, section 16. Section 16 permits a reference to the Agency where the proposing party and any other person who stands to benefit from the completion of the work cannot agree on the apportionment between them of the liability for costs. The CTA concluded that the fence was a "railway work" as defined by section 4 of the Act, and that Metro stood to "benefit" from the installation of the fence. Canada Transportation Act , subsection 41(1) allows an appeal with leave "on a question of law or question of jurisdiction".
The issues were: (1) what was the standard of review; (2) whether the CTA erred in concluding that the fence was a "railway work"; and (3) whether the CTA erred in concluding that Metro was a person "who stands to benefit" from the installation of the fence.
Held, the appeal should be dismissed.
(1) If the Agency in making the decision under appeal has applied truly legal tests on questions of law or jurisdiction then the standard of review is correctness, with some deference owed to this expert tribunal on legal questions other than those of a jurisdictional nature. If it has made decisions of mixed law and fact, including decisions relevant to assuming jurisdiction, then the proper test is reasonableness. But there is a spectrum running between these two types of decisions. Those that have the potential to apply widely to many cases are more likely to be treated as involving questions of law, in contrast to those that deal with a particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future, which are appropriately treated as involving mixed questions of law and fact.
(2) The CTA reasoned that as the fence would prevent trespassing it could be considered a "structure that protects a line of railway and facilitates railway operations". Thus the fence would come within the definition of "line work" found in section 4, paragraphs (a ) and (c). This was a decision on a particular set of circumstances, not likely to be of much general interest in future. Although a decision as to jurisdiction, it was difficult to apply the test of minimum deference, namely "correctness", to it because the CTA is an expert tribunal with a century's cumulative experience, an expert staff, and a regular involvement with problems of railway safety both with respect to those working or travelling by rail and those who by proximity may be endangered by the railway operation. A conclusion that keeping trespassers off the railway right of way and tracks both protects the railway and facilitates its operation would appear to be central to the Agency's area of expertise. Implicit in concerns about trespassers on the tracks is an assumption, which seems reasonable, that the presence of trespassers on a railway track can impede the operation of a railway. It was reasonable for the Agency to conclude that the fence would "facilitate" the operation of the railway within paragraph (c ) of the definition of "line works" and, in the sense that it would keep the railway free of trespassers, that it would thus "protect" this line of railway within the meaning of paragraph (a ) of that definition. These were decisions as to whether "the facts satisfy the legal test" and were decisions of mixed law and fact for which the standard of review should be reasonableness. The decision that the fence was a "railway work" was reasonable, and should not be set aside.
(3) The Agency found that Metro stood to benefit from the fence because it would protect parkland users from inherent dangers created by the presence of the railway, address the complaints of area residents, discourage trespassing and provide a safer environment throughout the Don Valley parklands. It was inferred from this finding that the CTA took a broad, functional view of the expression "stands to benefit", which did not confine "benefit" to the conferral of additional legal rights on, or the relief of legal liability of those against whom an order of apportionment can be made. This involved statutory interpretation of a provision whose scope was open to debate and one which went to jurisdiction as to persons against whom the Agency could make orders. This is the kind of jurisdictional decision which is subject to the standard of correctness as involving a question of law with a potentially broad impact. The CTA's interpretation of "stands to benefit" was correct. Railway Safety Act , subsection 4(4) makes it clear that the Agency must concern itself not only with the safety of persons transported by railway but also with that of those who use property adjacent to railway lines and who may be endangered by the presence of the railway. The Agency may properly see a benefit to adjacent property owners in measures which reduce dangers to users of that property caused by the presence of the railway line. Therefore there was no reviewable error of law going to jurisdiction.
The application of this broad concept of "stands to benefit" to the facts of this case, as a jurisdictional basis for making this specific order against Metro, involved a mixed question of law and fact. Such a finding was very particular to these circumstances and had no precedential significance. Thus the standard of review was reasonableness. It was reasonable for the Agency to conclude that Metro as a political entity and owner of the parks had a sufficient interest in protecting users of these parks from random access to the railway line and incidentally, to do so in a way which would avoid inconvenience to other residents which would be caused by whistle blowing. As there had been no serious problem of trespassers on the tracks either in this area before the cyclist and pedestrian path was built or in other parts of the Don Valley where there is no such path, it was open to the Agency to conclude that Metro, having facilitated the entry of people to the area had at least a broad governmental interest and responsibility in minimizing the resulting dangers even if, in terms of occupiers' liability, it might have no legal liability for users of its parks leaving the parks to trespass on adjacent property.
statutes and regulations judicially considered
Canada Transportation Act, S.C. 1996, c. 10, ss. 31, 41(1),(2),(3).
Railway Safety Act, R.S.C., 1985 (4th Supp.), c. 32, ss. 4 "crossing work", "line work", "railway work", 16.
cases judicially considered
applied:
Upper Lakes Group Inc. v. Canada (National Transportation Agency), [1995] 3 F.C. 395; (1995), 125 D.L.R. (4th) 204; 62 C.P.R. (3d) 167; 181 N.R. 103 (C.A.); Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 748.
considered:
Toronto (City) v. Toronto (Metropolitan) (1992), 97 D.L.R. (4th) 140; 13 M.P.L.R. (2d) 148; 60 O.A.C. 247 (Ont. Div. Ct.).
referred to:
Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; (1998), 156 D.L.R. (4th) 456; Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159; (1994), 112 D.L.R. (4th) 129; 20 Admin. L.R. (2d) 79; 14 C.E.L.R. (N.S.) 1; 3 C.N.L.R. 49; 163 N.R. 241.
authors cited
Evans, John M. et al. Administrative Law: Cases, Text and Materials, 4th ed. Toronto: Emond Montgomery Publications, 1995.
APPEAL from Canadian Transportation Agency's decision that the costs of installation and maintenance of fencing constructed along the right of way of the CNR in the lower Don Valley should be apportioned equally between the CNR and Metropolitan Toronto. Appeal dismissed.
appearances:
George Monteith for appellant.
L. Michel Huart and William McMurray for respondent.
Maureen Helt for interveners.
Elizabeth C. Barker for Canadian Transportation Agency.
solicitors of record:
George Monteith, Corporation Counsel, Municipality of Metropolitan Toronto, Toronto, for appellant.
L. Michel Huart and William McMurray, Canadian National Railway Company, Montréal, for respondent.
Fasken Campbell Godfrey, Toronto, for interveners.
Ian S. Mackay, Legal Services Directorate, Canadian Transportation Agency, Ottawa, for Canadian Transportation Agency.
The following are the reasons for judgment rendered in English by
Strayer J.A.:
Introduction
This is an appeal from a decision of the Canadian Transportation Agency (CTA) dated August 29, 1996. The Agency thereby ordered that the costs of installation and maintenance of fencing constructed along the right of way of the Canadian National Railway (CNR) in the lower Don Valley within what was at that time the Municipality of Metropolitan Toronto (Metro), now the City of Toronto be apportioned equally between the appellant and respondent.
Although not named as an intervener, the CTA was heard on this appeal as authorized by subsection 41(2) of the Canada Transportation Act.1
Facts
It should first be noted that the order of the CTA was made pursuant to a reference under section 16 of the Railway Safety Act2 which provides in part as follows:
16. (1) Where the proposing party in respect of a proposed railway work and each other person who stands to benefit from the completion of the work cannot agree on the apportionment between them of the liability to meet the construction, alteration, operational or maintenance costs in respect of that work, the proposing party or any of those persons may, if no right of recourse is available under the Railway Act or the Railway Relocation and Crossing Act, refer the matter to the Agency for a determination.
. . .
(4) Where a matter is referred to the Agency under subsection (1), the Agency shall, having regard to . . . the relative benefits that each person who has, or who might have, referred the matter stands to gain from the work, and to any other factor that it considers relevant, determine the proportion of the liability for construction, alteration, operational and maintenance costs to be borne by each person, and that liability shall be apportioned accordingly.
No hearing was held by the CTA after this matter was referred to it by the CNR but there was a lengthy exchange of written submissions by Metro and the CNR and no issue is raised as to the fairness of this procedure. It should be noted that the findings of the CTA are not based on sworn evidence. However, there seems to be no significant difference of view on the facts but only as to their interpretation and legal consequence.
For over a century, the CNR or its predecessor corporations have operated this rail line which lies to the west of the Don River in the Don River Valley. It generally follows the sinuosities of the Don, at some places close to, and at others some distance from, the river. Metro operated a regional park system including parks in the Don Valley on lands lying both to the east and west of the CNR railway corridor. In approximately 1991, Metro established a paved pathway for pedestrians and cyclists in the lower Don Valley on the east side of the Don River, that is on the side opposite to that on which the CNR rail line is located. At one place, however, the paved pathway provides access to a bridge where path users can cross the river and enter further parkland belonging to Metro and immediately adjacent to the CNR line. This may lead them to use a railway bridge to cross the Don. Also, various "informal paths" have been created through Metro parkland by visitors and these paths enable cyclists and pedestrians to trespass on CNR property, crossing and recrossing the tracks.
In June 1994, Transport Canada indicated to CNR a concern as to the potential hazard created by the presence of these "informal trails" and discussions ensued between the CNR and Metro. The CNR introduced some measures to dissuade trespassers including signage, public information, prosecutions of trespassers, and in particular, whistle blowing at all curves in the track for some three miles where the problem was found to exist. The whistle blowing in 1994 and 1995 gave rise to many complaints from the local residents. After a further study was carried out by a consultant, a meeting was held on August 30, 1995 including representatives of the CNR, Metro, Transport Canada, and other concerned bodies. CNR proposed to deal with the trespass problem by constructing a chain-link fence some twenty thousand feet in length at strategic locations in this area to keep trespassers off its line. It proposed to pay the initial cost of installation on condition that Metro would be responsible for major maintenance. Metro rejected this proposal. Therefore on October 25, 1995 the CNR referred the matter to the National Transportation Agency (the predecessor of the CTA) for an apportionment of both the capital and maintenance costs of the fence, between it and Metro, pursuant to section 16 of the Railway Safety Act . There ensued exchanges of submissions as referred to above. On August 29, 1996 the CTA concluded that the fence came within the term "railway work" in subsection 16(1) and that Metro stood to "benefit" from the installation of the fence within the meaning of that subsection. It therefore made an apportionment under subsection 16(4), ordering the CNR and Metro to share equally the capital and maintenance costs of the fence.
Metro appeals that decision pursuant to subsection 41(1) of the Canada Transportation Act3 which allows an appeal to this Court with leave "on a question of law or question of jurisdiction". The grounds of appeal are that the CTA erred in law or jurisdiction when it concluded that the proposed fencing was a "railway work" and that Metro was a person "who stands to benefit" from the completion of the fence.
Issues
There are three issues which must be addressed.
(1) What is the standard of review?
(2) Did the CTA commit reviewable error in concluding that the fence was a "railway work"?
(3) Did the CTA commit reviewable error in concluding that Metro was a person "who stands to benefit" from the installation of the fence?
Analysis
(1) Standard of Review
This will require more precise consideration when issues 2 and 3 are dealt with below.
It is important first to examine the provisions of the Canada Transportation Act4 which govern the reviewability of CTA decisions.
31. The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.
. . .
41. (1) An appeal lies from the Agency to the Federal Court of Appeal on a question of law or a question of jurisdiction on leave to appeal being obtained from that Court on application made within one month after the date of the decision, order, rule or regulation being appealed from, or within any further time that a judge of that Court under special circumstances allows, and on notice to the parties and the Agency, and on hearing those of them that appear and desire to be heard.
. . .
(3) An appeal shall be heard as quickly as is practicable and, on the hearing of the appeal, the Court may draw any inferences that are not inconsistent with the facts expressly found by the Agency and that are necessary for determining the question of law or jurisdiction, as the case may be.
These provisions are in substance the same as those concerning the National Transportation Agency, the CTA's predecessor. In Upper Lakes Group Inc. v. Canada (National Transportation Agency)5 a majority of a panel of this Court enunciated in respect of that predecessor a standard of review as follows:
Since we are here dealing with a highly specialized tribunal whose decisions are binding and conclusive on matters of fact but subject to appeal on questions of law or jurisdiction only, I take it that the standard is one of correctness tempered by due regard for the experience and expertise of a senior administrative tribunal in the interpretation, application and operation of a non-jurisdictional provision of its governing statute.
I accept that in matters of pure law or jurisdiction, the standard of review is correctness as stated in Upper Lakes. I assume, however, that the reference to "jurisdiction" in that case, where no deference would be owed to the Agency, should be understood as referring to legal issues going to jurisdiction. But the assumption of jurisdiction by a tribunal may involve findings of fact as to whether the subject-matter or the persons before the tribunal come within the legal definition of its jurisdiction, the latter issue of statutory interpretation being one of law. As Iacobucci J. held in Canada (Director of Investigation and Research) v. Southam Inc. :6
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
By section 31 there is no right of appeal of CTA decisions with respect to pure questions of fact although according to subsection 41(3) of the Canada Transportation Act:
41. . . .
(3) . . . on the hearing of the appeal, the Court may draw any inferences that are not inconsistent with the facts expressly found by the Agency and that are necessary for determining the question of law or jurisdiction, as the case may be. [Emphasis added.]
I therefore take it that on an appeal on a question of jurisdiction this Court may have to review mixed questions of law and fact.
I understand the Upper Lakes case, in the light of the subsequent Supreme Court decision in Southam7 to mean that if the Agency in making the decision under appeal has applied truly legal tests on questions of law or jurisdiction then the standard of review is correctness, with some deference owed to this expert tribunal on legal questions other than those of a jurisdictional nature. If it has made decisions of mixed law and fact then the proper test should be reasonableness and this could include decisions relevant to assuming jurisdiction.8 It is not clear to me why no deference would be owed to a tribunal's finding of fact necessary to establish jurisdiction in accordance with its governing statute. "Correctness" in fact-finding is a somewhat illusory concept at best. Courts can, depending on their place in the hierarchy, say with assurance what the "correct" law is because it becomes correct merely by their saying so. But no court, not even the highest, can state with assurance that its findings of fact correspond to what really happened. A reasonableness test, even on findings of jurisdictional fact, should provide adequate judicial control to avoid arbitrary or capricious determinations in support of the assertion of jurisdiction.9
This Court in Upper Lakes10 referred to the CTA's predecessor as a "highly specialized tribunal" and it is not seriously questioned that the CTA is the depository of much expert knowledge and experience. That expertise includes railway safety concerning those both on and adjacent to a rail line. Although in the Southam case11 the Supreme Court was not dealing with a jurisdictional issue, it held that in the mixed questions of law and fact concerned there the standard of review of a specialized tribunal such as the Competition Tribunal is that of reasonableness. In distinguishing between questions of law and mixed questions of law and fact Iacobucci J. recognized that there is a spectrum running between these two types of decisions. Those that have "the potential to apply widely to many cases" are more likely to be treated as involving questions of law in contrast to those that deal with a "particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future" which are appropriately treated as involving mixed questions of law and fact.12 For reasons that will be apparent later, I believe that the jurisdictional issues here are of the latter kind and that the CTA is a specialized tribunal whose decisions on these matters should be reviewed on the standard of reasonableness.
(2) Is the Fence a "Railway Work"?
Section 16 of the Railway Safety Act as quoted above only permits apportionment with respect to the costs of a "railway work". "Railway work" is defined in section 4 of that Act as follows:
4. (1) . . .
"railway work" means a line work or any part thereof, a crossing work or any part thereof, or any combination of the foregoing;
The same section defines "line work" and "crossing work", referred to in the definition of "railway work", as follows:
4. (1) . . .
"crossing work" means a road crossing or a utility crossing;
. . .
"line work" means
(a) a line of railway, including any structure supporting or protecting that line of railway or providing for drainage thereof,
(b) a system of switches, signals or other like devices that facilitates railway operations, or
(c) any other structure built across, beside, under or over a line of railway, that facilitates railway operations,
but does not include a crossing work;
The CTA concluded that this fence was a "line work" because:
. . . since it prevents trespassing, it can be considered a structure that protects a line of railway and facilitates railway operations.13
It appears to me that there is no reviewable error in this conclusion which brought the fence within paragraph (c) of the definition of "line work".
To the extent that there is a pure question of law, it would be, as stated by Iacobucci J. in Southam, as to "what the correct legal test is"14 in the definition of "line work" as a "structure built . . . beside . . . a line of railway, that facilitates railway operations." The CTA did not articulate any abstract definition of these terms but I can see no error in the implicit meaning which the Agency attributed to them, a meaning which must be inferred from the result reached. Therefore even if the test is correctness on questions of pure law, there is no basis for setting aside the Agency's decision. I might add that, although the appellant referred to other provisions in Part III of the Act (entitled "Non-Railway Operations Affecting Railway Safety") where there are some specific references to "fences" I am unable to conclude that the CTA erred in finding a fence, such as the one here, to be a "railway work" in the particular circumstances of this case. While I agree that in statutory interpretation it is proper to look at the Act as a whole, I can find nothing inconsistent in fences, though dealt with elsewhere in the Act for particular purposes there defined, also to be potentially within the meaning of "railway work" for the purposes of section 16.
The CTA's conclusion involves essentially a mixed question of law and fact which may be subject to appeal under the rubric of "jurisdiction" but, if so, should be subjected only to the standard of reasonableness as applied by the Supreme Court in Southam to a mixed question of fact and law, that is a question of "whether the facts satisfy the legal tests.15 The CTA carried out this exercise succinctly in stating, as quoted above, that as the fence would prevent trespassing it could be considered a "structure that protects a line of railway and facilitates railway operations", thus holding that the fence would come within paragraphs (a ) and (c) of the definition of "line work". This is a decision on a "particular set of circumstances" not likely to be of much general interest in future. Albeit that this can be seen as a decision as to jurisdiction I find difficulty in applying the test of minimum deference, namely "correctness" to it. Here we have an expert tribunal with the cumulative experience of a century acquired by it and its predecessors, with an expert staff, and a regular involvement with problems of railway safety both with respect to those working or travelling by rail and those who by proximity may be endangered by the railway operation. If the CTA concludes, as it obviously has, that keeping trespassers off the railway right of way and tracks both protects the railway and facilitates its operation, it is difficult to see why this is not central to its area of expertise. There was information before the CTA Board indicating that there were concerns raised by Transport Canada and shared by the CNR as to trespassers being on the tracks. Implicit in this is an assumption, which seems reasonable, that the presence of trespassers on a railway track can impede the operation of a railway. According to the material before the Agency, the CNR took various measures to dissuade trespassers including having its trains whistle when approaching curves in this area. This led to many complaints from area residents in both 1994 and 1995 which created further problems for the CNR. As a result, it considered the fence to be a preferred means of keeping trespassers off the track. I am unable to say that it was unreasonable for the Agency to conclude that the fence would therefore "facilitate" the operation of the railway within paragraph (c ) of the definition of "line works" and, in the sense that it would keep the railway free of trespassers, that it would thus "protect" this line of railway within the meaning of paragraph (a ) of that definition. These are decisions as to whether "the facts satisfy the legal test" as described by Iacobucci J.16 and as such, are decisions of mixed law and fact for which the standard of review should be reasonableness.
I thus find the decision that the fence was a "railway work" within the meaning of subsection 16(1) of the Act to be reasonable and therefore should not be set aside.
(3) Did Metro Toronto "Stand to Benefit"?
To the extent that there is any pure question of law involved here, whether going to jurisdiction or not, it would be the following. Metro invites us to hold that as a matter of law or jurisdiction the Agency could not correctly interpret the term "who stands to benefit" to apply to anyone, including Metro, whose immediate legal interests were not affected by the presence or absence of a fence. It argues that, by the law of occupiers' liability in Ontario, Metro or its successor, as owner of the parks, has no legal responsibility for those who may pass through its property but in leaving that property trespass on the property of others such as the CNR. It insists that the interests of a municipality are distinct from those of its residents and while the fence may be of some advantage to the safety of the residents of Metro and may enable the elimination of a nuisance to some residents caused by the blowing of whistles, none of this represents a benefit to the municipality as such.
The CTA's interpretation of "who stands to benefit" can be deduced from its reasons for ordering Metro to share in the cost of the fence. Its views are summarized in the following statement:
. . . the Agency considers that Metro Toronto has a responsibility to offer protection to the parklands users against inherent dangers created by the presence of the railway through its parklands. The Agency specifically rejects the notion that Metro Toronto ought to bear no responsibility for persons using its parks. The fence will also address the complaints from Metro Toronto residents living in the area of the parklands, discourage trespassing and provide a safer environment through the Don Valley parklands to the public and users.17
For these reasons the Agency concluded that Metro "stands to benefit" from the fence. It may be inferred from this finding that the Agency takes a broad, functional view of the expression "stands to benefit" which does not confine "benefit" to the conferral of additional legal rights on, or the relief of legal liability of, those against whom an order of apportionment can be made. This involved statutory interpretation of a provision whose scope was open to debate and one which went to its jurisdiction as to persons against whom it could make orders. I believe this is the kind of jurisdictional decision which is subject to the standard of correctness as involving a question of law with a potentially broad impact.
Having said that, it appears to me that the interpretation given by the Agency to "stands to benefit" was correct when one considers the purposes of the Railway Safety Act . Fundamental to this is the consideration of subsection 4(4) which provides:
4. . . .
(4) In determining, for the purposes of this Act, whether railway operations are safe railway operations, or whether an act or thing constitutes a threat to safe railway operations or enhances the safety of railway operations, regard shall be had not only to the safety of persons and property transported by railways but also to the safety of other persons and other property.
This makes it clear that the Agency must concern itself with the safety of persons other than railway passengers or employees including those who may use property adjacent to railway lines and who may in one way or another be endangered by the presence of the railway. The Agency may properly see a benefit to adjacent property owners in measures which reduce dangers to users of that property caused by the presence of the railway line. I am therefore unable to say that there is a reviewable error of law going to jurisdiction.
The application of this broad concept of "stands to benefit" to the facts of this case, as a jurisdictional basis for making this specific order against Metro, in my view involves a mixed question of law and fact. Again it can be said that such a finding is very particular to these circumstances and has no widespread precedential significance. Thus the standard of review should be reasonableness. I believe it was not unreasonable for the Agency to conclude that Metro as a political entity and as owner of the parks had a sufficient interest in protecting users of these parks from random access to the railway line and, incidentally, to do so in a way which would avoid inconvenience to other residents which would be caused by the main alternative to the fence, namely whistle blowing. The nature of Metro Toronto was stated by the Divisional Court of Ontario in Toronto (City) v. Toronto (Metropolitan)18 to be as follows:
Metro is the incorporation of the inhabitants of the metropolitan area. Legally it is separate and apart from Toronto and the other area municipalities. Its powers are set out in the Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62 (the "Metro Act"). These powers are specific and relate to Metro-wide obligations relating to water and sewage works, waste disposal, roads, policing and many other matters, for the benefit of the inhabitants of the metropolitan area.
It was not disputed before us that one of the activities of Metro was the operation of regional parks such as those adjacent to this railway line. In reaching conclusions as to Metro's responsibilities the Agency also had before it information (which does not seem to be disputed) that there was no serious problem of trespassers on the CN line in this area until the cyclist and pedestrian path was built by Metro in about 1991. Similarly, in other parts of the Don Valley where there is no such path, the CN has had no serious problem of trespassers. It was open to the Agency to conclude that Metro, having facilitated the entry of people to the area, had at least a broad governmental interest and responsibility in minimizing the resulting dangers even if, in terms of the law of occupiers' liability, it might have no legal liability for users of its parks leaving the parks to trespass on adjacent property. I therefore find that this decision, on a mixed question of law and fact going to jurisdiction, was reasonable.
It follows that there was no reviewable error in the finding of the Agency that Metro "stands to benefit" from this fence and therefore can legitimately be ordered to pay part of the cost of the fence.
Conclusion
The appeal should therefore be dismissed. As the respondent is not asking for costs and neither the interveners nor the Agency would be entitled to costs, no costs will be ordered.
Robertson J.A.: I agree.
McDonald J.A.: I agree.
1 S.C. 1996, c. 10.
2 R.S.C., 1985 (4th Supp.), c. 32.
3 Supra, note 1.
4 Ibid.
5 [1995] 3 F.C. 395 (C.A.), at p. 434, Isaac C.J. dissenting on this point at pp. 405, 418-419.
6 [1997]1 S.C.R. 748, at pp. 766-767.
7 Id., at pp. 771, 776-777.
8 There may be less deference owed if the jurisdictional issue is constitutional in nature: Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322, at pp. 354-355, although arguably such an issue is essentially one of law.
9 See e.g. Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, at p. 199; J. M. Evans, H. N. Janisch and D. J. Mullan, Administrative Law: Cases, Text and Materials (4th ed., Toronto: Emond Montgomery Publications, 1995), at p. 663.
10 Supra, note 5.
11 Supra, note 6.
12 Id., at pp. 767-768.
13 Appeal book, at p. 82.
14 Supra, note 6, at pp. 766-767.
15 Ibid.
16 Ibid.
17 Appeal Book, at p. 83.
18 (1992), 97 D.L.R. (4th) 140 (Ont. Div. Ct.), at p. 142.