Judgments

Decision Information

Decision Content

City of Montreal (Appellant)
v.
Canadian Transport Commission (Respondent)
Court of Appeal, Jackett CJ., Perrier and Cho- quette D.JJ.—Montreal, November 22 and 23, 1972.
Railways—Cost of grade separation at crossing—New over-pass constructed to relieve traffic at subway—Whether work "in respect of reconstruction and improvement"— Jurisdiction of Canadian Transport Commission to contrib ute to cost—Railway Act, R.S.C. 1970, c. R-2, s. 202(1)(b).
The City of Montreal, with the authorization of the Canadian Transport Commission, constructed a viaduct to carry an east-west road in Montreal over the C.P.R. tracks at the intersection of the east-west road with a north-south road, which was carried under the C.P.R. tracks by a subway constructed in 1909. The purpose of the new con struction was to relieve the pressure of the heavy motor traffic through the subway, which would be very costly as well as difficult to reconstruct.
Held, reversing the Canadian Transport Commission, the construction of the viaduct was a "work ... done in respect of reconstruction and improvement" of an existing grade separation at a crossing within the meaning of section 202(1)(b) of the Railway Act, R.S.C. 1970, c. R-2, and the Canadian Transport Commission therefore had jurisdiction to make a payment toward the cost of the work out of the Railway Grade Crossing Fund.
In re Railway Grade Crossing Fund [1933] S.C.R. 81; Minister of Roads v. C.N.R. (1950) 66 C.R.T.C. 1;
A.-G. Que. v. C.P.R. [1965] S.C.R. 729, considered.
APPEAL from and judicial review of deci sion of Canadian Transport Commission.
E. Jurisic, Q.C., for appellant.
D. J. Murphy and G. W. Nadeau for Canadian Transport Commission.
JACKETT C.J. (orally)—This proceeding is an appeal under section 64(2) of the National Transportation Act, R.S.C. 1970, c. N-17 and c. 10 (2nd Supp.) and an application under section 28 of the Federal Court Act, which have been joined under Rule 1314 of the Federal Court Rules. The appeal is from a decision of the Railway Transport Committee of the Canadian
Transport Commission which, by virtue of sec tion 24(3) of the National Transportation Act, has effect as though it was made by the Com mission, and the application is an application to review and set aside the same decision.
The decision in question is a decision where by the Committee, in effect, refuses an applica tion by the City of Montreal for a payment out of the Railway Grade Crossing Fund under sec tion 202 of the Railway Act, R.S.C. 1970, c. R-2 which reads, in part, as follows:
202. (1) The sums heretofore or hereafter appropriated and set apart to aid actual construction work for the protec tion, safety and convenience of the public in respect of crossings shall be placed to the credit of a special account to be known as "The Railway Grade Crossing Fund", and shall, in so far as not already applied, be applied by the Commission in its discretion, subject to the limitations set forth in this section, solely toward the cost, not including that of maintenance and operation, of
(a) work actually done for the protection, safety and convenience of the public in respect of existing crossings at rail level,
(b) work actually done in respect of reconstruction and improvement of grade separations that are in existence at crossings on the 28th day of June 1955 and that, in the opinion of the Commission, are not adequate, by reason of their location, design or size, for the highway traffic using them, and
(c) placing reflective markings on the sides of railway cars.
The City of Montreal was, by order of the Commission (Order No. R-8772) dated May 11, 1970, authorized to construct an overhead bridge or viaduct to carry a connecting road between Rosemont Boulevard and Van Horne Avenue across and over the right-of-way and tracks of the Canadian Pacific.
The application for payment out of the fund was in respect of the cost of that railway cross ing. The facts that were, apparently, tentatively accepted by the Committee for the purpose of disposing of the application are those referred to in the following portion of the Committee's decision:
It was submitted to the Committee that the existing crossing is at St. Laurent Boulevard, with its subway grade separation, constructed in 1909 as authorized by Board Order No. 8839, and permits one lane of traffic in each
direction at normal street speed of 20 to 25 mph. and will permit the flow of two lanes of traffic in each direction at a speed of 5 to 10 mph. when the approaches are congested; that the existing highway traffic is approximately 50,000 automobiles daily and the railway traffic consists of 20 transfers or switching movements at yard speed. It was submitted that the said subway which carries north-south traffic along St. Laurent Boulevard is inadequate; that there is no street across the railway in an east-west direction between Jean Talon Street and St. Joseph Boulevard, a distance of one and one-half miles; that approximately 40% of the existing traffic using the present subway is east-west traffic and that instead of reconstructing the subway on St. Laurent Boulevard, which would be very costly, as well as difficult under present traffic conditions, that an overhead bridge would be constructed over the Railway to carry a connecting road in an east-west direction between Rose- mont Boulevard and Van Home Avenue which would ease the traffic problem at St. Laurent Boulevard at the existing subway.
The application for payment out of the Rail way Grade Crossing Fund was based on the view that the new viaduct was constructed to remedy the situation resulting from the fact that the subway that was constructed under the rail way at St. Laurent Boulevard in 1909 and that was the only crossing available for traffic for a distance along the railway of one and one-half miles had become grossly inadequate for the traffic that it had to serve.
The portion of the Committee's Decision which shows its reasons for refusing a payment out of the Fund reads as follows:
The Railway Transport Committee has considered the matter and is satisfied that the proposed reconstruction is one for a new crossing and not work actually done in respect of reconstruction and improvement of grade separa tions that are in existence, and that the main purpose of the reconstruction is to relieve traffic congestion on city streets, rather than for the protection, safety and convenience of the public. The Committee is accordingly satisfied that the proposed construction is in fact a new elevated crossing over the right-of-way of Canadian Pacific Limited, at mile age 4.95 of its Park Avenue Subdivision and, therefore, the work is not actually done in respect of a crossing at rail level in existence at least three years prior to the said Order and not in respect of reconstruction and improvement of a grade separation that was in existence on June 28, 1955 and is not adequate in the opinion of the Commission, by reason of its location, design or size, for the highway traffic using it. The construction does not fall within the terms of Section 202 of the Railway Act and the request of the City of Montreal is hereby denied.
The request of the City of Montreal, pursuant to Section 202 of the Railway Act for a contribution from the Railway Grade Crossing Fund for the construction of an overpass to join Rosemont Boulevard and Van Home Avenue crossing the right-of-way and tracks of Canadian Pacific Limited in the City of Montreal, County of L'Isle de Montréal, Prov ince of Quebec, at mileage 4.95, Park Avenue Subdivision is hereby denied ...
As I read this decision, it is, in effect, that this request for payment out of the Railway Grade Crossing Fund is refused because, on the facts, the Commission has no jurisdiction to grant the request.
There are three decisions of the Supreme Court of Canada as to the ambit of the authority to make payments out of the Railway Grade Crossing Fund under the different statutes applicable to that Fund.
In In re Railway Grade Crossing Fund [1933] S.C.R. 81 the Board of Railway Commissioners, in pursuance of a statutory authority to pose questions of law to the Supreme Court of Canada, put to the Court the following question:
Has the Board jurisdiction, under section 262 of the Railway Act, as amended by c. 43 of the statutes of Canada, 1928, to allow contributions from "The Railway Grade Crossing Fund" in the case of highway diversions, whereby rail level crossings which are not eliminated are relieved from a substantial volume of highway traffic?
Section 262 of the Railway Act as referred to in the question read in part as follows:
..."The Railway Grade Crossing Fund" ... shall ... be applied by the Board ... solely towards the cost ... of actual construction work for the protection, safety and convenience of the public in respect of crossings ... at rail level in existence on the first day of April, one thousand nine hundred and nine ...
The judgment of the Supreme Court of Canada was delivered in 1932 by Rinfret J. (as he then was) and the reasons for giving a negative answer to the question put by the Board are to be found in the following part of that judgment [at page 84]:
It does not appear to us that, when enacting the legisla tion in question, Parliament intended to confer on the Board
any special power distinct and independent from its normal railway jurisdiction. The fund was appropriated by Parlia ment towards actual construction work for the protection, safety and convenience of the public in respect of highway crossings of railways at rail level, and the Board was not to allow contributions from that fund, except in dealing with works over which it held jurisdiction and as an incident of the exercise of its ordinary powers in railway matters. The statute does not contemplate that direct applications for payments out of the fund may be made to the Board to aid works outside the sphere of its usual competence. The intention was that when the Board was regularly seized of an application in respect of an existing crossing at rail level (railway crossing of a highway or highway crossing of a railway), it might, when granting the application and subject to certain conditions and restrictions, order at the same time that a certain sum be allowed out of the Crossing Fund to aid the actual construction work ordered by it.
Moreover, the question submitted assumes that the rail level crossing will not be eliminated. It follows that there will be no highway diversion at the crossing. The highway will continue to cross the railway. The new highway where by it is claimed that the crossing is relieved from a substan tial volume of traffic, was or will be constructed by the provincial or the municipal authorities entirely of their own motion, without any intervention of the Board and, in fact, without the Board having any right to interfere. It does not, therefore, come within the definition of "crossing" in sec tion 262 as being
one work * * * in respect of one or more railways of as many tracks crossing or so crossed an in the discre tion of the Board determined;
nor does it come within the classification of construction works ordered or authorized by the Board "in respect of highway crossings of railways at rail level."
Our conclusion is that the question submitted ought to be answered in the negative.
In The Minister of Roads, Quebec v. C.N.R. (1950) 66 C.R.T.C. 1, there was an appeal from a decision of the Board of Transport Commis sioners refusing to authorize a contribution from the Railway Grade Crossing Fund. In this case a provincial highway had crossed the rail way by way of a level crossing. The route of the highway was changed so that it crossed the railway at a different point by means of a viaduct. The old level crossing was to continue in existence to be used as a private crossing and not as a highway crossing. The Board refused to authorize a payment out of the Fund on the ground that the Fund was to be applied only for the protection, improvement or elimination of
an existing highway crossing, and that the Board had no power to allow a contribution from the Fund in the case of a highway diver sion unless the existing highway crossing was eliminated. In taking that position, the Board relied on the Supreme Court's earlier decision concerning the Fund. The same statutory provi sion was applicable to the two cases. Leave to appeal from the Board's decision was granted on the following question of law:
In view of the evidence adduced in this case and upon the assumption that the present crossing will continue to exist for the sole benefit of Price Bros. owners of the land on both sides of the right-of-way, did the Board err in hold ing ... that the Board had no power to apply money from the Railway Grade Crossing Fund towards the cost of construction of the works . ?
Rinfret C.J.C., giving the judgment of the Supreme Court of Canada, having pointed out that the old crossing had ceased to exist as a highway crossing and had ceased to be the kind of crossing contemplated by section 262, dealt with the matter as follows [at pages 5, 61:
It is equally clear that the judgment of this Court in Re Railway Grade Crossing Fund, supra, does not deal with the same matter. The question there was: "Has the Board jurisdiction, under s. 262 of the Railway Act, as amended by c. 43 of the Statutes of Canada, 1928, to allow contribu tions from 'the Railway Grade Crossing Fund' in the case of highway diversions, whereby rail level crossings which are not eliminated are relieved from a substantial volume of highway traffic?"
In that case the facts were that the existing highway crossing remained untouched and continued to be a highway crossing; and the new highway, whereby it was claimed that the crossing was relieved from a substantial volume of traffic, was to be constructed by the provincial or municipal authorities entirely of their own motion, without any inter vention of the Board, and, in fact, without the Board having any right to interfere with it. Undoubtedly this new highway was to run along the railway, but it was not to cross the latter; and it was pointed out that the jurisdiction of the Board was limited to that portion of the highway which lies at the crossing proper. As was said in Re Closing Highways at Railway Crossings (1913), 12 D.L.R. 389, 15 C.R.C. 305: "It (the jurisdiction of the Board) is confined entirely to the extinguishment of the public right to cross the railway company's right-of-way."
The authority of the Board upon the highway exists only so far as concerns the crossing. Otherwise, the highway remains under the control of the provincial or municipal authorities, and, in the words of Chief Com'r Carvell, "[the] Board has nothing whatever to do with it". (See Chief Com'r Carvell's memorandum, dated June 9, 1921, referred to in [1933], 1 D.L.R. at p. 663, p. 83 S.C.R., 40 C.R.C. at p. 113.)
In Re Railway Grade Crossing Fund, this Court, under the above mentioned circumstances, decided that the Board was without jurisdiction to deal with the new highway where no highway crossing of the railway was provided.
In the present case it is clear that the viaduct crosses the railway. It forms part of the highway and, therefore, here we have a highway crossing of the railway, or, in other words, a highway, a railway, and a crossing. In the former case submitted to this Court there was to be no new crossing. Therefore, the distinction between the two cases is obvious.
In Attorney General of Quebec v. C.P.R. [1965] S.C.R. 729, the Board of Transport Commissioners held that it had no jurisdiction to authorize a contribution under the Railway Grade Crossing Fund when, instead of enlarging a railway subway that was inadequate for high way traffic, the highway was diverted to pass under a nearby existing railway bridge. The question arose under section 265 of the Railway Act, as it was at that time, which is for present purposes the same as section 202 of the present Railway Act, the relevant portion of which has already been quoted. Leave to appeal was granted from the Board's decision on the ques tion whether the Board erred in holding that it had neither the power nor the jurisdiction under section 265(1)(b), which was the same as sec tion 202(1)(b) of the present statute, to author ize a grant from the Fund towards the cost of the work in question. Abbott J. delivered the judgment of the Supreme Court of Canada, which read in part as follows [at page 733]:
The sole issue in this appeal is whether the highway diversion referred to, was an improvement of an existing grade separation within the meaning of s. 265(1)(b) of the Railway Act.
Under the provisions of ss. 39 and 266 of the said Act, the Board is vested with exclusive authority to authorize grade crossing changes and to apportion the cost of making such changes.
The "Railway Grade Crossing Fund" consists of monies voted from time to time by Parliament. The Fund was established to provide financial assistance to the railways and to local authorities towards the cost of the construction, reconstruction and improvement of grade crossings, required for the protection, safety and convenience of the public and made necessary by changing traffic conditions. Within the limits set by the Act the contribution, if any, to be made out of the Fund to the cost of a particular work, is fixed by the Board.
In the present case the existing subway facilities at Pont Rouge admittedly had become inadequate. The diversion proposed by the railway company was more efficient and less costly than it would have been to enlarge the existing underpass. In my opinion this diversion is an improvement of an existing grade separation within the meaning of s. 265(1)(b) and that in consequence the Board is empowered to authorize a grant from the Railway Graade Crossing Fund towards the cost of the work authorized by its Order No. 111583.
I would allow the appeal and answer the question submit ted in the affirmative.
A reference to one of the plans filed as an exhibit in the 1965 case shows that the facts there were very like the facts in the 1950 case. There had been a minor diversion of the high way to cause it to cross the railway at a place where the crossing could be more economically constructed and there had been an apparent abandonment of the old inadequate crossing. The statement by Abbott J. that reads, "In my opinion this diversion is an improvement of an existing grade separation within the meaning of s. 265(1)(b) and that in consequence the Board is empowered to authorize a grant from the Railway Grade Crossing Fund towards the cost of the work ..." must be read in the light of this fact and in the light of the statement earlier in his judgment that "The sole issue in this appeal is whether the highway diversion referred to, was an improvement of an existing grade separation within the meaning of s. 265(1)(b) of the Railway Act". It seems clear that it was common ground that the crossing had been "reconstructed" in the sense that the old one had been abandoned and a new one
constructed in its place and this requirement of section 265(1)(b) was not, therefore, in issue before the Supreme Court of Canada.
I turn now to the question of law raised by this proceeding which, as I see it, is whether the Committee erred in law in holding, as it did, that the work in question did not fall within section 202 of the Railway Act.
At the outset it is to be noted that the Com mittee, in its decision in this case, makes no reference to having obtained any information as to facts other than that placed before it by the City of Montreal. It follows, in my view, that the Committee must be taken to have disposed of the matter on the basis that, assuming the correctness of those facts, there was no authori ty to make a grant under section 202 of the Railway Act. I say this because, in my view, if the Committee had received further information that, in its opinion, materially changed the case as presented by the City, it should have given the City an opportunity to answer such further information and it seems clear that no such opportunity was given. Compare Minister of National Revenue v. Wrights' Canadian Ropes Ltd. [1947] A.C. 109 per Lord Greene M.R. at pages 124-25.
In so far as relevant, section 202(1) of the Railway Act may be read as follows:
(1) ... "The Railway Grade Crossing Fund" ... shall .. . be applied by the Commission in its discretion ... solely toward the cost ... of
(a) work actually done for the protection, safety and convenience of the public in respect of existing crossings at rail level,
(b) work actually done in respect of reconstruction and improvement of grade separations that are in existence at crossings on the 28th day of June 1955 and that, in the opinion of the Commission, are not adequate, by reason of their location, design or size, for the highway traffic using them, and
(c) placing reflective markings on the sides of railway cars.
If, on the facts on which the City based its application, there is authority for the Commis sion to authorize a contribution out of the Fund, it must be under section 202(1)(b). The work in question was clearly not a work "in respect of existing crossings at rail level" within section 202(1)(a). I turn, therefore, to a consideration of section 202(1)(b).
Before a "work" can fall within section 202(1)(b), it must satisfy two requirements. It must be a "work" done in respect of "recon- struction" of a grade separation of the kind described in section 202(1)(b) and it must also be a "work" in respect of "improvement" of such a grade separation. I will consider first whether the "work" in question here is, as a matter of law, an "improvement" of the old St. Laurent Boulevard grade separation.
On the facts as submitted by the City, prior to the construction of the "work" in respect of which the application was made, a large volume of traffic had to use the St. Laurent Boulevard subway to cross the Canadian Pacific right-of- way. This traffic was greater than could be handled efficiently by that subway. In addition, owing to the configuration of the streets that constituted the approaches to the subway, forc ing all that traffic through the subway created a dangerous traffic situation. By the "work" in question, a portion of the traffic was diverted from the subway and the dangerous character of the traffic pattern in question was substan tially eliminated. The Supreme Court of Canada held, in the 1965 decision already referred to, that the substitution of a new and improved grade separation for an old grade separation was an "improvement" of the old grade separa tion within the meaning of those words in the provision as it then was. It follows, in my view, that a "work" such as we have here, whereby there is diverted from an old grade separation and its approaches a sufficient portion of the traffic to substantially improve the traffic flow through the old grade separation and to substan tially reduce traffic dangers constitutes an "im- provement" of the old grade separation. I
cannot see that the continued use of the old grade separation is inconsistent in any way with that conclusion. I am, therefore, of opinion that, assuming the correctness of the facts put for ward by the City, the work in question here is a work that is described by the words in section 202(1)(b) "done in respect of ... improvement of" the old St. Laurent Boulevard grade separation.
I come now to the real difficulty in this case, as I view it. That is the question whether the work in question falls within the words "work ... done in respect of reconstruction .. . of grade separations ..."
In dealing with this question, in the context of this matter, it is particularly important to have in mind the fundamental principle that, once the basic facts are established, the question wheth er they fall within the ambit of a statutory provision is a question of law and not a ques tion of fact. (Compare Edwards v. Bairstow [1955] 3 All E.R. 48 (H.L.).) This principle is illustrated by the 1965 decision of the Supreme Court of Canada already referred to where the question as to whether a "work" was done in respect of "improvement" of a grade separation was decided as a question of law.
When one examines the portion of the Com mittee's Decision that shows its reasons for refusing a payment out of the fund and elimi nates the portion thereof that has reference only to the terms of section 202(1)(a), one finds that the reasons given for holding that the work in this case does not fall within section 202(1)(b) read as follows:
The Railway Transport Committee has considered the matter and is satisfied that the proposed reconstruction is one for a new crossing and not work actually done in respect of reconstruction and improvement of grade separa tions that are in existence ... The Committee is accordingly satisfied that the proposed construction is in fact a new elevated crossing over the right-of-way of Canadian Pacific Limited ... and, therefore, the work is not ... in respect of reconstruction and improvement of a grade separation that
was in existence on June 28, 1955 and is not adequate in the opinion of the Commission, by reason of its location, design or size, for the highway traffic using it.
As I understand what the Committee was saying, it is that, because the "work", consid ered by itself, is a "new elevated crossing" it cannot be a work in respect of reconstruction and improvement of grade separations in exist ence and it cannot, therefore, be in respect of reconstruction and improvement of grade sepa rations of the limited class referred to in section 202(1)(b).
I am of opinion that, in coming to this conclu sion, the Committee erred in law as is shown by the 1965 decision of the Supreme Court of Canada where it was held that a new grade separation on a diversion of a highway was an improvement of the grade separation on the part of the highway that was abandoned and where it must have been common ground that it was a reconstruction of that other grade separation.
That is not, however, an end of the matter because it must also be considered whether, on the facts of this case, that error of law has led the Committee to a wrong result.
The basic difference between the facts in this case and the facts before the Supreme Court of Canada in the 1965 case is that in that case the new grade separation completely replaced the old grade separation whereas, in this case, that is not true. Accepting it that, when a highway is diverted so as to require a grade separation at a different point on a railway, the construction of the new grade separation is a "reconstruction" of the one that is abandoned, it does not follow that construction of a new grade separation to relieve the traffic situation in an old grade sepa ration that is to continue in existence is a "re- construction" of that old grade separation. It becomes necessary, therefore, to examine the facts in this case with some care and to consid er them in relation to the relevant words in section 202(1)(b).
The facts, as accepted by the Committee for the purpose of its decision, show that the old grade separation served, in effect, two traffic streams. There was the traffic north and south on St. Laurent Boulevard and there was the traffic east and west that entered St. Laurent Boulevard for the purpose of using the old grade separation and left it after emerging therefrom to follow its east or west route. What was done by the City was to establish a "bridge" which carried the east and west traffic over the railway so that, in place of having a single way for the combined traffic to get over the railway at that point, there was a complex consisting of a subway for one stream and a viaduct for the other stream. Together the two components now carry all the traffic previously carried by the old subway. Moreover, that traf fic is carried over the railway, for practical purposes, across the part of the railway where it was previously carried across just as the traffic in the case that was before the Supreme Court of Canada in 1965 was, for practical purposes, carried across the railway where it was previ ously carried across.
The question is, therefore, whether, in these circumstances, the "work" of creating the via duct falls within the words in section 202(1)(b) "work . .. done in respect of reconstruction ... of grade separations that are in existence at crossings ...".
Having regard to the 1965 Decision of the Supreme Court of Canada, there does not appear to be any doubt that, if the viaduct in question had been designed so that it would carry both streams of traffic over the railway and if the old subway had been abandoned, it would have been a work in respect of the recon struction of that grade separation. Moreover, as it seems to me, if the "work" had consisted in merely doubling the width of the old subway but continuing the existence of that subway as part of the new and broader subway, there would equally be no doubt that it was a "recon- struction" of the previously existing subway. That being so, I find it difficult to distinguish a
case where a combination of the two methods is adopted as being the most economical way of accomplishing the same result.
My conclusion on this question is, therefore, although not without considerable doubt, that the "work" here in question is a "work ... done in respect of reconstruction" of the previously existing grade separation.
It follows that, assuming the correctness of the basic facts set out in the Committee's Deci sion read with the material constituting the case as fixed by this Court's order of October 13, 1972, and assuming that, in the opinion of the Commission, the previously existing grade sepa ration on St. Laurent Boulevard was not ade quate, by reason of its location, design or size, for the highway traffic that was in fact using it before the "work" in question was constructed, that work was a work falling within section 202(1)(b). I am, therefore, of opinion that the Decision in question should be set aside and that the matter should be referred back to the Commission with a direction that, unless it finds that those facts are not correct in some material respect or it reaches the conclusion that the grade crossing on St. Laurent Boulevard as it existed before the work in question does not fall within section 202(1), it consider the City of Montreal's request for a payment out of the Railway Grade Crossing Fund in the manner contemplated by section 202.
* *
Perrier and Choquette D.JJ. concurred.
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