Date:20000926
Docket:A-649-98
CORAM: LINDEN, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
THE CORPORATION OF THE CITY OF WINDSOR
Appellant
- and -
CANADIAN PACIFIC RAILWAY COMPANY
- and -
SHERGAR DEVELOPMENTS INC.
Respondents
Heard at Toronto, Ontario, Tuesday, September 26, 2000
Judgment delivered from the Bench at Toronto, Ontario
on Tuesday, September 26, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: EVANS, J.A. |
Date: 20000926
Docket: A-649-98
CORAM: LINDEN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE CORPORATION OF THE CITY OF WINDSOR
Appellant
- and -
CANADIAN PACIFIC RAILWAY COMPANY
and
SHERGAR DEVELOPMENTS INC.
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto,
Ontario on Tuesday, September 26, 2000)
EVANS J.A.
| _. The central issue in this appeal is whether the Canadian Transportation Agency ("CTA") retains authority to enforce orders against a railway company respecting the maintenance of bridges previously used in connection with a railway line, after the company has validly abandoned the railway line. |
| _. The case arises from a dispute between the City of Windsor, the appellant, and the Canadian Pacific Railway Co. ("CP"), a respondent. The City claims that CP has an ongoing responsibility to contribute to the maintenance of two road bridges that cross land formerly owned by CP, or to restore the level crossings that the bridges had replaced. From the late 1880s until 1995 the CP land was used as a railway: the track connected the CP system to a ferry service across the Detroit River. The bridges carrying the municipality's roads had been originally constructed under federal authority to accommodate the railway. |
| _. In 1994 the ferry was discontinued and CP stopped using the track for railway purposes. There were negotiations between the City and CP for sale of the lands on which the track was laid. When these came to nothing, CP and the Ontario & Quebec Railway Company sold the land in 1995 to a private property developer, Shergar Developments Inc. ("Shergar"), the other respondent to this appeal. In the spring of 1998 parcels of the land north of the bridges were expropriated by the City for the purposes of a park. |
| _. In 1998 Windsor applied to the CTA for a declaration that CP had not validly abandoned the railway line over which the bridges passed, was obliged to contribute to the maintenance of the bridges and to restore them to level crossings, which the bridges had replaced. The City submitted that orders issued from time to time over the previous eighty years by various railway regulatory bodies for the maintenance of the bridges were still valid and enforceable, and should be enforced by the CTA. |
| _. The CTA found that, because CP no longer used the track as part of a main or a branch line, it was "trackage auxiliary to a line of railway" within the meaning of subsection 159(2) of the National Transportation Act, 1987, S.C. 1987, c.218. Consequently, the company had not required regulatory consent before it abandoned the line. Accordingly, the CTA had no authority to consider former orders that had been made or to require either CP, or the current land owners, Shergar, to maintain the bridges or to restore the level crossings. |
| _. Although counsel for Windsor has not challenged the decision that CP had validly abandoned the line, he argued that the CTA had nonetheless erred in law in failing to exercise its other statutory powers, in particular its power under subsection 95(3) of the Canada Transportation Act S.C. 1996 c. 10 to order the restoration of the road to its condition prior to its elevation over the railway line. However, in our view, these arguments cannot succeed unless the City is able to establish that the CTA had legal authority to issue orders to CP with respect to the bridges. |
| _. The appellant's principal contention is that, in the absence of clear language in the statutes or the orders themselves, the CTA does not lose jurisdiction, nor do the previous orders of its predecessors become ineffective, simply because CP stopped operating a railway service over the track. As authority for this proposition counsel relies on Canadian Pacific Ry. v. City of Montreal and Montreal Tramways (1921), 27 C.R.C. 365, a decision of the Board of Railway Commissioners, a predecessor of the CTA. |
| _. That case concerned the liability of a tramway company to contribute to the maintenance of a bridge over its subway. However, the Montreal case is distinguishable because it is not altogether clear that the tramway company had abandoned the line and, in any event, the city could still have required the company to resume operation of the service. Moreover, the issue of whether, on these facts, the Board could constitutionally exercise its regulatory authority seems not to have been considered. |
| _. Counsel also relied on Fitzgibbon v. C.N.R. (1937), 47 C.R.C. 225, in which the Board had ordered the company to fence its land, even after it had abandoned the line of railway. However, as in the Montreal case, the constitutional authority of the Board in these circumstances seems not to have been raised, although the Board did observe that, following the abandonment, the right of way must be treated like real estate owned by the company and subject to provincial and municipal laws. |
| _. This latter point was made in Cairns v. C.N.R. (1936), 46 C.R.C. 52, which involved a dispute over a railway company's duty to maintain fencing upon the railway. In refusing to make an order against the railway company for lack of jurisdiction, the Board of Railway Commissioners said (at p. 54): |
| Where abandonment of operation has been authorized and has taken place, the right of way through which the railway is operated ceases to be used for railway purposes and is held by the company, not as part of its railway qua railway company, but in the same way as land is held by private individuals, subject to any provincial or municipal laws in respect of fencing which may be in force in the particular district. |
To the extent that there is a conflict between Fitzgibbon and Cairns, the latter appears to us more consistent with constitutional principle.
| _. The constitutional authority of the CTA over the bridges depends on their being integral to railways extending beyond the limits of the Province within the meaning of the Constitution Act, 1867, section 92(10)(a). If no such railway exists, the CTA has no power to make orders, or to give effect to previous orders, with respect to them. |
| _. The fact that orders had been made by federal railway agencies against CP, a federally incorporated transportation company, does not in itself confer a continuing federal regulatory authority over all its business activities. It is well established that a railway company is not subject to federal regulatory authority in respect of business activities that are quite separate from its operation of an interprovincial railway and are otherwise within provincial jurisdiction: Canadian Pacific Railway Company v. Attorney General for British Columbia, [1950] A.C. 122, 144-45. |
| _. As counsel for the respondents submitted, it would be anomalous to conclude that, just because a structure had at one time been used for railway purposes and had been owned by a company that operated a national railway system, it remained subject to the jurisdiction of the CTA for as long as CP existed, or until it had made the City whole by restoring the level crossings. |
| _. In our opinion, the present dispute between the City, on the one hand, and CP and Shergar on the other, is exclusively within provincial jurisdiction. Accordingly, the CTA was correct to decline to intervene in the dispute. Because it exercised its jurisdiction to determine that CP had not required regulatory consent before abandoning the line, the CTA was not also obliged, or empowered, to grant the declarations sought by the appellant. |
| _. For these reasons the appeal is dismissed with costs. |
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-649-98 |
| STYLE OF CAUSE: THE CORPORATION OF THE CITY OF WINDSOR |
Appellant
- and -
CANADIAN PACIFIC RAILWAY COMPANY
and
SHERGAR DEVELOPMENTS INC.
Respondents
| DATE OF HEARING: TUESDAY, SEPTEMBER 26, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: EVANS J.A. |
Delivered at Toronto, Ontario on
Tuesday, September 26, 2000
APPEARANCES BY: Mr. Patrick T. Brode
For the Appellant
Mr. Paul Guthrie
Mr. Allan R. Patton
Mr. Ron Ashley
| For the Respondents |
| SOLICITORS OF RECORD: Mr. Patrick T. Brode |
The Corporation of the City of Windsor
Legal Department
350 City Hall Square West
P.O. Box 1607
Windsor, Ontario
N9A 6S1
| For the Appellant |
Page: 2
SOLICITORS OF RECORD: Mr. Paul Guthrie, Solicitor
(cont'd) Canadian Pacific Railway Company
Legal Department, Suite 2000
401-9th Avenue South West
| Calgary, Alberta |
| T2P 4Z4 |
| For the Respondent |
Mr. Allan R. Patton
Patton & Associates
Barristers & Solicitors
1512 - 140 Fullarton Street
London, Ontario
N6A 5P2
For the Respondent
Mr. Ron Ashley, Counsel
Legal Services Directorate
Canadian Transportation Agency
15 Eddy Street, 19thFloor
Hull, Quebec
K1A 0N9
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20000926
Docket: A-649-98
BETWEEN:
THE CORPORATION OF THE CITY
OF WINDSOR
Appellant
- and -
CANADIAN PACIFIC RAILWAY COMPANY
and
SHERGAR DEVELOPMENTS INC.
Respondents
REASONS FOR JUDGMENT
| _. |