1917-07-16

PRIVATE BILLS.


[Stage Direction]
Bill No. Ill, to incorporate The North American Accident Insurance Company.- Mr. Pardee.

[Stage Direction]
Second reading of Bill No. 110, to incorporate Canadian Ukrainian Institute Pros-vita.-Mr. Hughes.

[Stage Direction]
(Questions answered orally are indicated by asterisks.)

Mr. EDWARDS:: 1.	How many convicts were confined in Portsmouth Penitentiary June 30, 1916, and how many guards were employed?
2.	How many convicts were confined in same institution June 30, 1917, and how many guards were employed?
3.	When did Robert McDonald resign his position as guard at Portsmouth Penitentiary, and for what reason?
4.	How long had he served as guard, and what was his age at time of resignation?
5.	How much money, if any, was paid him as gratuity at time of resignation?
6.	Was he re-appointed or employed on the staff at the Penitentiary?
7.	If so, how long has he been so employed, and at what rate of pay?


Mr. DOHERTY:: 1.	There were 5G6 convicts confined in Kingston penitentiary on June 30, 1916. There were 50 permanent and 2 supernumerary guards.
2.	Number of convicts, 422. Number of , guards 50.
3.	Roderick (not Robert) McDonald never was a guard or in any way attached to the police staff of the institution. He resigned November 25, 1914, at which time his life was despaired of owing to an acute attack of heart trouble.
4.	Service in the engineer's department 20 years and 6 months. Age, 62.
5.	$1,500.
6.	Yes, as temporary assistant in the engineer's department.
7.	Since May 28, 1915, at the rate of $700 per annum.


COMMISSION ON MR. JUSTICE GALT'S REPORT.
*Mr. FORTIER:: 1.	Is Mr. Paul Lacoste, K.C., representing the Minister of Public Works before the Commission investigating the report of Mr. Justice Galt?
2.	Has any counsel been appointed by the Department of Justice to represent the public before the aforesaid Commission?
3.	If so, whom?


Mr. DOHERTY:: 1.	I am informed that the Hon. Mr. Rogers has retained Mr. Lacoste, K.C., in connection with the matter.
2.	No. Under the Inquiries Act and their Commission, the Commissioners are authorized to engage the services of such counsel to aid and assist them as they may deem necessary in the public interest.


DISCHARGE OF PTE. J. I. SMITH.
Mr. TURRIFF:: 1.	Was Pte. J. I. Smith, No. 907,162, 195th Battalion, discharged on the 30th of September, 1916?
2.	Was the discharge certificate withheld from this man until the 9th of March, 1917? If so, why?
3.	Why does the certificate of discharge bear, as the date of its issue, second of March, 1917?
4.	Is it a fact that everything that medical skill can devise is used to preserve the life of the man who has voluntarily gone forward and offered to give his life, if need be, on behalf of his country?
5.	If so, did the authorities refuse to pay the hospital bill in full in connection with this case?


Sir EDWARD KEMP:: 1.	Yes.
2.	No.
3.	On February 20, Private Smith apparently applied for duplicate copy of discharge certificate to the officer commanding Military District No. 12, which was supplied under date of March 2.
4.	Yes; as far as possible.
5.	The hospital bill, including all accounts, has been paid in full, except the charge for private and semi-private wards, which special accommodation was provided at the request of Private Smith's father who was informed by the local military author-ties, Military District No. 12, at the time, that the extra expenditure for a private ward would not be defrayed by the department. The department has paid the difference between the rate which would ordinarily have been paid, and the rate for the private and semi-private wards.


LESLIE E. BAXTER.
[Stage Direction]
Mr. A. Iv. MACLEAN:
1.	In what capacity was Leslie E. Baxter, of Canning, Kings County, N.S., employed by the Department of Agriculture in connection with fruit inspection during the fall and winter of 1916-17?
2.	How long was he so employed?
3.	How much money did he receive for said employment?
4.	Is the Government aware that said Leslie E. Baxter was convicted on the 23rd day of June, 1916, for unlawfully keeping for sale intoxicating liquor contrary to the provisions of the Nova Scotia Temperance Act?
_ 5. Is it the intention of the Government to give employment to persons in Nova Scotia convicted of violating the Nova Scotia Temperance Act?
Mr. BURRELL:: 1.	As temporary assistant fruit inspector.
2.	From September 15, 1916, to February 28, 1917.
3.	$276.66 ($50 per month), and $334.69 expenses.
4.	No, in so far as this department is concerned.
5.	No.


ERNEST EATON.
Mr. A. K. MACLEAN:: 1.	At what date did Ernest Eaton, of Canard, Kings County, N.S., enlist in the 219th Battalion (or one of the other battalions of the Highland Brigade)?
2.	Where did he enlist?
3^ At what date was he subsequently discharged as physically unfit?
4.	For how long was he paid after he was so discharged?
5.	Did he subsequently enlist at Halifax? If so, on what date?
6.	When was he sent to the Provincial
Sanatorium for Tuberculosis at Kentville, N.S.?	u
7.	Was he suffering from tuberculosis at the date of his second enlistment?
S. Was he suffering from tuberculosis at the date of his first discharge?
9. Will the Government pay all charges for his care while in the Provincial Sanatorium at Kentville, N.S. ?


Sir EDWARD KEMP:: 1.	Enlisted March 13, 1916.
2.	At Wolfville, N.S.
3.	Discharged August 31, 1916.
4.	Not any.
5.	No record of re-enlistment.
6.	There is no record of his admission to the Provincial Sanatorium for Tuberculosis -at Kentville, N.S.
7.	Answered by (5).
8.	Yes.
9.	Yes.



ALDERSHOT CAMP-CORDWOOD SUPPLY.

['This section was fully discussed in the committee. At one time it was decided to strike out certain portions of it, but after discussing the matter at some length the committee decided to leave the section as it was.']
Mr. A. K. MACLEAN:: .
1.	Who had the contract for the supply of cordwood to the Aldershot Camp, near Kentville, N.S., during the summer of 1916?
2.	What kind of wood was required under said contract?
3.	What was the price paid per_cord?
4.	How many tenders were received for the supply of cordwood to said camp during the summer of 1916?
5.	What are the names and addresses of the several tenderers and the figures of each tender?
6.	Did the tenders require delivery of said cordwood at Aldershot Camp?
7.	Was any of the said cordwood hauled into Aldershot Camp during the summer of 1916 by the Army Service Corps?
8.	If so, how much, and who ordered the Army Service Corps to haul said cordwood to Aldershot Camp?
9.	How much did the Government or Department of Militia and Defence receive for services of the Army' Service Corps hauling contractor's cordwood to Aldershot Camp during the summer of 1916?
10.	Was any deduction made by the Government or the Department of Militia and Defence from the contract for the supply of cordwood to Aldershot Camp during the summer of 1916, for services performed by the Army Service Corps in transporting said cordwood to Aider-shot Camp?



Mr. EDWARDS:: 1.	When was the report of the Inspector of. Penitentiaries for the year ending March 31, 1915, ready for distribution?
2.	When will the report for the year ending March 31, 1916, be ready for distribution?


Mr. DOHERTY:: 1.	August 15, 1916.	-
2.	The report is in the printer's hands and will be distributed as soon as printed.


QUESTION PASSED AS ORDER FOR RETURN.
Mr. BELLEMARE:: 1.	How many officers have been appointed as recruiting officers in the province of Ontario?
2.	What are the names, the addresses, nature of duties and pay of such officers?


EXTENSION OF THE TERM OF PARLIAMENT.
[Stage Direction]
On the Order being called:
Sir ROBERT BORDEN:: Resolved, that an humble Address be presented to His Most Excellent Majesty the King, in the following words:-
To the King's Most Excellent Majesty:
Most Gracious Sovereign:
We, Your Majesty's most dutiful and loyal subjects, the	Commons of Canada,

in Parliament assembled, humbly approach Your Majesty praying that you may graciously be pleased to give your consent to submit a measure to the Parliament of the United Kingdom, to amend the British North American Act, 1867, in the manner following, or to the following effect:
"An Act to amend the British North America Act, 1867."
Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
1.	Notwithstanding anything in the British North America Act, 1867, or In any Act amending the same, or in any Order in Council, or terms or conditions of Union, made or approved under the said Act, or under any Act of the Canadian Parliament, the term of the Twelfth Parliament of Canada is hereby extended until the seventh day of October, 1918.
2.	This Act may be cited as the British North America Act, 1917, and the British North America Act, 1867 to 1916, and this Act may be cited together as the British North America Act, 1867 to 1917.
All of which we humbly pray Your Majesty to take into your favourable and gracious consideration.


Alexander Kenneth Maclean: With leave of the right hon. gentleman, I should like to make the suggestion to the Prime Minister that the consideration of this resolution be postponed for a few days at least. I do not pretend to speak for any other hon. gentleman on this side of the House. It strikes me personally, however, that it would he only fair that consideration of this resolution be postponed at least until the Military Service Bill has passed through this Chamber. The ultimate disposition of that measure may affect me personally very much in reaching a conclusion upon this resolution. I think my request is a fair one, and I trust that the Prime Minister and his supporters will accede to the suggestion.


Right Hon.   S@: I should have been glad if my hon. friend had communicated his desire to me a little earlier. I gave notice on Friday last that it was my purpose to proceed with this motion to-day, and I naturally supposed that any request for its postponement would have reached me before the House met this afternoon. I have come here to-day prepared to move this resolution. My hon. friend (Mr. Maclean) suggests that it would be only fair that it should stand a little longer. It has already been on the Order Paper for nearly two months. However, without making any promise as to future postponement, I shall let it stand until to-morrow. I will con-
sider what my hon. friend has said with regard to further postponement.


Mr. OLIVER:: I should like the House to understand that, so far as I am concerned, the suggestion of my hon. friend from Halifax (Mr. A. K. Maclean) has no support from me.


Mr. MURPHY:: I desire to add that that is my position also.


Robert Laird Borden: I may add that it really has not any support from me either, but when an appeal is made to me by an hon. gentleman in this House, who suggests that it would be fairer to let the matter stand for a day or two, my usual good nature always impels me to give way if I can.


Mr. MICHAEL CLARK:: Mr. Speaker) may I express the hope that the wish expressed by my hon. friend from Halifax (Mr. Maclean) has not been prejudiced in the eyes of the Government in any way by the opposition of my hon. friend from Ed monton (Mr. Oliver).
r Mr. PUGSLEY: I came here especially to-day to participate in this discussion, and I am very sorry indeed that the Prime Minister has decided to let the matter stand over. I think the sooner this question is brought up and decided upon the better it will be for the country at large.


Sir WILFRID LAURIER:: May I be allowed to say that, while I am ready to go on-my opinion is made up and I do not think any delay will change it-still, when an hon. gentleman of the importance of my friend from Halifax (Mr. Maclean) makes such a request of the Government, I am very glad that the Prime Minister agrees to it. I wish to say that this is a free Parliament, and every member is free to express his opinion.


RAILWAY ACT AMENDMENT.
[Stage Direction]
The House in Committee on Bill No. 13, to consolidate and1 amend the Railway Act. -Hon. Frank Cochrane-Mr. Blain in the Chair.
On section 5-to what persons, companies and railways applicable:
Mr. GRAHAM:: The Drayton-Acworth report, if I remember correctly, recommends that Government railways be placed under, the supervision of the Board of Railway Commissioners. That means that if the larger scheme of railway organization and control is undertaken by the Government, the Government railways will be subject to

the jurisdiction of that board. If in this Act, however, no special provision is made in that respect, the Government railways will not come under the control of the Board of Bailway Commissioners.


Mr. COCHRANE:: It is our intention to introduce am amendment to the Government Railways Act to put Government railways under the control of the Railway Commission. I expected' that the Bill would he drawn before this, but my law clerk has been ill.


George Perry Graham: Will not such an Act
conflict with this Act as it now stands?


Francis Cochrane: No, we are providing
that .it will not.


George Perry Graham: I am not now expressing any opinion as to the advisability of placing the Government railways under the control of the Board of Railway Commissioners. But we are now passing an Act which provides that Government railways shall not be subject to the jurisdiction of that board. The minister says that later he will introduce an amendment to the Government Railways Act providing that Government railways shall be subject to that board. Should not the words "other than Government railways" be left out of section 5, if a Bill is to be introduced to put the Government railways under the Railway Act?


Francis Cochrane: We will let the section stand until the other Bill is introduced.


George Perry Graham: In the first place, by the proposed amendment the Railway Act itself would1 be made applicable to the Government railways, and by an amendment to the Government Railways Act the latter would come under the Board of Railway Commissioners. To make the matter clear, both Acts should be amended. I agree with the proposal of the minister to let the section stand.
Section stands.
On section 6-Application to railways controlled or operated by Dominion companies.


Mr. J. E. ARMSTRONG:: The change is merely a reconstruction. The new words are:
Without limiting the effect of the last preceding section, extend and-
Then, on the 13th line, in paragraph (b), the word " every " is added. The whole of paragraph (c) i-s reconstructed in the present Bill.


George Perry Graham: If a provincial company with a provincial charter were to be leased to a company with a Dominion charter, the former road, notwithstanding the fact that it was a provincial railway, would come under the Board of Railway Commissioners for Canada.


Francis Cochrane: Yes.


George Perry Graham: This also brings up a pretty large question, namely, the joint control of railways operated between the United States and Canada. At one time a proposition was made by the Interstate Commerce Commission, and approved, partially at least, by the late Mr. Justice Mabee, w'ho was at that time chairman of the Canadian Board, that a joint board be formed of representatives from each of these boards, and that all international traffic be entrusted to this joint board. Several hearings were had before the then Minister of Railways as to the advisability of this, and while on a superficial investigation, the matter looked as if it could be worked out quite readily, when we came to the details, there were certain details with regard to the United States railways, particularly in the West, that were not wholly applicable to the Canadian railways. The head of the Railway Department at that time was convinced that the matter was one on which slow progress ought to be made, because there were many pitfalls that we did not see at first. Has the minister considered the possibility of having a board of that kind that would be governed by regulations that would be international and at the same time equitable to. the Canadian railways?


Francis Cochrane: The matter has not
been brought up in my time and I have not paid very much attention to it, but if the proposition could be worked out in a satisfactory way, it would be very desirable. As the hon. member says, it is a matter on which we would have to go slow.
Section 6 agreed to.
On section 7-railroads declared to be for the general advantage of Canada.


George Perry Graham: Section 6, as I understand it, brings roads with a provincial charter under the jurisdiction of the Board of Railway Commissioners, even if they are not declared to be for the general advantage of Canada, while section 7 brings such railways under the jurisdiction of that board by declaring them to be for the general advantage of Canada.


Francis Cochrane: Is it not better to have them under the jurisdiction of the Board of Railway Commissioners?


George Perry Graham: Most decidedly.


[Stage Direction]
Section agreed to.
On section 8-Provincial railways connecting with or crossing Dominion railways.
George Perry Graham: Is this section new?


Joseph Elijah Armstrong: The change in this section is to bring it into conformity with the decision in Privy Council vs. The Montreal Street Railway. The words " Street Railways and Tramway " have been taken out in view of the definition of the word " railway."


George Perry Graham: That was a celebrated case.


Mr. CARVELL:: I do not think this section differs from the old one to any great extent. I find that the changes that were in the draft Bill have all been struck out and the section is left almost exactly as it was in the old Act. I do not think there is any objection to it
Section agreed to
On section 11-Powers of Deputy Chief Commissioner.


Frank Broadstreet Carvell: Subsection 4, of section 11, is an addition, or amendment to, the original Act, and it is the same as it was in the draft Bill. I think the idea was that, in case of multiplicity of business, they would be able to divide the board, and ,sit in two or three places at the same time, if necessary, in order to expedite business.


[Stage Direction]
Section agreed to.
On section 23-Duties of secretary.
Joseph Elijah Armstrong: The only change in section 23 is that in the 25th line the words " chief commissioner " are struck out, and in the 27th line, between the words " board " and " sealed," the words " duly signed and " are inserted.


Frank Broadstreet Carvell: That means that the
secretary shall obey the directions of the board, as well as the directions of the commissioner. It increases the power of the Chief Commissioner, to a great extent.


Mr. MACDONALD:: Is there any provision as to what will occur if the board arrive at a different conclusion from that
[sMr. Graham. ]
arrived at by the Chief Commissioner? There might be a conflict, and we should insert a section to provide for that.


Frank Broadstreet Carvell: I do not remember the explanation given to the commmittee as to -the change. There might be a conflict of authority there. These changes were suggested very largely by a gentleman representing the railway board at the sittings of the committee. This amendment was inserted at his request.


Edward Mortimer Macdonald: I think we had better let this section stand.


Francis Cochrane: Very well.
Section stands.
On section 31-Annual report to Governor in Council.


Joseph Elijah Armstrong: In the 2nd and
4th lines the word " March " is struck out, and the word " December " inserted.


Francis Cochrane: That change was
made at the request of the railways; it corresponds with the American practice. Section agreed to.
On section 33-jurisdiction:


Joseph Elijah Armstrong: The words
under this Act or otherwise for carrying this Act into effect ", in the twentieth line, are struck out. Then in the twenty-eighth line the words " conferred by this Act " are struck out. The last five lines in the clause are new:
And wherever by reason of insolvency, sale under mortgage, or any other cause, a railway or section thereof is operated, managed or held otherwise than by the Company, the Board may make any order it deems proper for adapting and applying the provisions of this Act to such case.


Frank Broadstreet Carvell: It means that in case
a railway is handed over to a receiver, the receiver is under the jurisdiction of the bo-ard. It only extends the powers of the board to cover the receiver.


Joseph Elijah Armstrong: That is the
idea. Under the general scheme of this Act, the Board of Railway Commissioners *is dealing with a railway company. If the company is handed over to a receiver the question arises whether, as a matter of law it does not cease to be a railway *company as a technical entity. It was therefore thought advisable to give the Board of Railway Commissioners jurisdiction over the receiver.


[Stage Direction]
Section agreed to.

On section 34-power to make orders and regulations:
Joseph Elijah Armstrong: The statement made by Mr. Price in regard to clause 34 to 44 is that they are as to the power of the hoard to make orders and regulations. Subsections 2 and 3 of clause 34 are made more complete in order to obviate any question being raised as to the powers of the board to make orders.
iMr. GRAHAM: It would strike me that provision is made in this Act to cover any of the provisions in any other Act that might be passed.


Joseph Elijah Armstrong: That is what it says.
Mr. CA'RVELL:	If there is an imposition or a penalty of any kind provided by any other Act, the Board of Railway Commissioners has jurisdiction to enforce it. It practically gives the board power over all legislation governing railways, whether included in this Act or in a special Act.


Mr. W. F. MACLEAN:: Where is there
in the Act providing for its enforcement?


Frank Broadstreet Carvell: That is provided for
later on; there is a section regarding penalties.


William Findlay Maclean: But, where is the imposition of a duty upon somebody to enforce this Act?


Francis Cochrane: The Railway Commission will enforce it.


William Findlay Maclean: If the Railway
Commission see fit to enforce it.


Mr. NESBITT:: That is what we have
them for.


William Findlay Maclean: But, is there a
direct clause in this Act for its enforcement? We will shortly be dealing with clause 42, which refers to the employment of counsel in the public interests. According to this clause the board may apply to the Minister of Justice to instruct counsel.


Francis Cochrane: That is not at all for
the enforcement of the Act.


William Findlay Maclean: Of course, there
may be provisions later for enforcing the . Act, but so far its enforcement is all done incidentally. It would be well for us to know the manner in which the board is to enforce this Act, and who should be held responsible for its enforcement. I dealt with the question in the House the other day, in connection with another Act. I also attended some of the meetings of the special
committee which had this matter under consideration, andrnet some of the men representing the brotherhoods. They said the great question with them was the enforcement of the Railway Act.


Francis Cochrane: Why did they notmention that to the committee?


William Findlay Maclean: They did mention it, and I mentioned it also. I mention it now, and I hope the minister will consider it, so that we may have a direct and specific clause in the Act indicating that it is the dtity of the Railway Commission, or the Attorney General of Canada, or somebody else, to enforce the Act. It should not be left to any one to go before the board and make an application that the Minister of Justice appoint counsel to conduct an investigation in .order to bring out the facts in the public interest. This should be done by the Railway Commission of its own motion, and it should have power to employ special counsel at any time, and the duty should be imposed upon it to enforce and administer this law.


Frank Broadstreet Carvell: I understand that the
hon. gentleman wants to have a public officer appointed whose duty it is to enforce the railway law of Canada. I am afraid he would have to have a whole army of public officers, as these matters come up in every portion of Canada. There are plenty of powers given to somebody. If the hon. gentleman will look at sections 43 and 44 he will find that 43 provides for a stated case to go to the Supreme Court and 44 gives effect to the 'judgment of other courts. Then section 49 provides that any court in Canada having the proper jurisdiction can make a decision of the board a rule of court, and then it can be worked -out the same as any Tule of codrt would be in any province in Canada. You go on to sections 51 and 52 and these provide for appeal and review. There is plenty of machinery, plenty of law. What my hon. friend wants is some officer whose duty ik>
is to see that the law is enforced and the machinery is put into motion. That is done *by the people in the different parts of Canada who are interested. I am a practising lawyer and a client comes to me and says: I feel that the railway company is not carrying out the law; I am damaged or I have a grievance against that railway company. On this I apply through the proper channel and call upon the company to remedy that grievance. If they fail to do so I take whatever action I may think necessary. If you appointed one officer to

carry out the law, you would never have it done, because you would have such a multiplicity of cases that it would he impossible to go on with them all. You might have an officer who would say to me:	I
do not think that your client's case has very much merit and I do not know why I should bother my head about pressing it. He might in that way take away from my* client the right which the law gives him.
We are getting along pretty well and I would be opposed to seeing an officer appointed who could take away 4 p.m. from the ordinary resident of Canada the rights which are guaranteed to him by the Railway Act. He has rights now which enable him to go to the courts and enforce those rights under the law and machinery of the Act if necessary.


William Findlay Maclean: My hon. friend from Carleton (Mr. Carviell) has stated my case in another way. He says that the enforcement of this Act rests mainly upon the private prosecutor or the person, who feels aggrieved; he must put the law in motion. It is all very well to allow that right to rest with the individual. His right is provided for and I have no objection to that. But I also want something else; I want to have the duty imposed upon the board to enforce the law or I want to do as they do in the	United
States-in legislation of this kind in the United States they insert a clause which says that it shall be the duty of the Attorney General of the United States to enforce this law, having in view the rights of the public. He is by the Act authorized to appoint special counsel, to engage experts and otAers who can supply him with information on the subject, and he is further voted a sum of money to be at his disposal at any time for the enforcement of the Act. We in Canada are passing Federal Acts year after year, some of them having very wide powers, but we make no provision for the enforcement of these Acts as they 'do in the United States. With regard to many of them, we are gradually finding a roundabout way of securing their enforcement. But I should like to see a provision inserted for the enforcement of this Act. There are many instances in which this Act ought to be enforced, but it is not enforced because there is no piovision for enforcing it. HVhen we are discussing these wide powers which are to be conferred-on the board we ought also to impose on the board the duty of enforcing 
the law. Representatives of the brotherhoods, as well as individuals all over the country, say that it has been hard to secure the enforcement of this law. That is the line of argument that we have heard, and I would ask the minister to tell us, either now or a little later on, how he proposes to strengthen the uses of this Railway Act to the puiblic by making provision for its adequate enforcement.


George Perry Graham: If this were an ordinary Act that was only enforced through court proceedings there would be a good deal to be said in favour of my hon. friend's contention. But the object in establishing the Board of Railway Commissioners was not to make it a court, but to keep it as far away from being a court as we possibly could. . It was to be a quick and ready tribunal before which anybody could state his case. When I was Minister of Railways the question of the appointment of a public prosecutor was urged many times, but in discussing it with the then Chairman and with a great many public men, who have large business interests in shipping, etc., I found that none of them wanted to have a public prosecutor appointed for this particular Act. Among the reasons for that opinion was the fear that it would be surrounded by all the formalities and red tape of a court, and that the ordinary individual would of necessity be compelled eventually to approach that court through the public prosecutor. The object of establishing this Commission was that any person, even a widow with a grievance about a crossing on her farm, could appeal, by letter, perhaps, without gqing before the tribunal at all, and get substantial justice. Hundreds and hundreds of cases have been disposed of merely by a letter from the secretary to the railway company. The difficulty about appointing a public prosecutor would be that we would possibly get into a condition in which we might as well not have a railway commission at all, but a regular court, to try these cases. This Board hears counsel in any case that is brought before it if the applicant desires to be represented by counsel, but at the same time the humblest individual in Canada can go before the Board, state his or her case, and have it decided. '


William Findlay Maclean: I agree with what the hon. gentleman (Mr. Graham) says, but he does not meet my case. I do not ask for a public prosecutor. I ask that the duty be imposed on somebody to enforce this Act. I propose to make it the duty of this expensive organization, the

Board of Railway Commissioners, .to enforce it and to see that justice is done in any case where an individual brings before it a case of injustice. The enforcement of federal laws should not be left to the individual who feels aggrieved. We trust to the Minister of Customs to see that the customs law is obeyed and that the revenue is not defrauded. That minister makes prosecutions, and sometimes calls in, as he has a right to call in, the Minister of Justice to assist him. Under this Act the duty is not laid upon the Board of Railway Commissioners to enforce this Act. I ask that the Act shall say who is responsible for its enforcement. I am anxious to avoid, so far as possible, all red tape.


Frank Broadstreet Carvell: Has my hon. friend
heard of a case in Canada since the Commission was created in which it has not enforced any order that was made?


William Findlay Maclean: My hon. friend is talking about orders. I want enforcement of the law, not of orders.


Francis Cochrane: Do you want it enforced without being heard?


William Findlay Maclean: No, it will be heard.


Francis Cochrane: Then they will enforce it.


William Findlay Maclean: Who will enforce it?


Francis Cochrane: The Railway Commission.


William Findlay Maclean: It is one of the representations of the brotherhoods that there is lots of power but none of that direct enforcement which the people of the United States are finding necessary in connection with their federal legislation. I want some provision for the enforcement of the Act. If I cannot do any better, I shall submit the clause in the transportation law of the United States which places responsibility for the enforcement of the Act.


Edward Walter Nesbitt: If the hon. member will draft a clause he will consider 'it when we have gone through the Bill. It will have to come at the end anyway.


Joseph Elijah Armstrong: I know that in the
United States many Acts passed by Congress Wave such a clause as the hon. member has mentioned, but it would-be impossible to apply such a clause to this Bill. However, we will be glad to consider any clause he may draft.


Francis Cochrane: The hon. member has not mentioned one case where the railway commission have not enforced the law.


William Findlay Maclean: I will give you
cases, and they have been mentioned before the -special committee.


Charles Murphy: Where the board was asked to act and did not?


William Findlay Maclean: No, but cases
where there was difficulty in getting any enforcement of the Act.


Edward Walter Nesbitt: If the hon. member will put his suggestion in concrete form we can consider it.


William Findlay Maclean: I will put it in concrete form, and it will be the first time in our fifty years of history that we have put direct responsibility on somebody for the enforcement of the laws of this country.
I spoke the other day about the attainment of national unity. They -are attaining national unity in the United States by federal enforcement of federal law. One great thing about their constitution ias compared with ours-and I am not -saying which is better- is that the President o-f the United- States has very large powers, and so has the Atr tomey General of the United States, for the enforcement of federal laws. I will -submit later on a specific proposal in thi-s direction.


Mr. GLASS:: Would municipalities affected by clauses of this Act have power to pass by-laws consistent with the provisions of the Act -and to enforce penalties, also consistent with the Act, on a Charge laid before -a magistrate? I refer to such matters as the sounding of an alarm, the whistling at crossings, or the destruction of weeds on right of way. There are many matters of that kind upon which municipalities pass by-laws affecting individuals.
M.r. CARVELL:	There is a clause dealing with th-aA. I think my hon. friend will find it is -aJll provided for.


Francis Cochrane: But it is no-t for a magistrate to enforce; it i-s for the railway commission.


Frank Broadstreet Carvell: I do not think any one would go so far as to give a municipality power to pass a by-law under the Act and to have it enforced by the magistrate.


Samuel Francis Glass: The municipality has power, under -provincial- legislation, to -pass laws with relation to the cutting and destruction of weeds. Take that as a concrete case. A serious growth of weeds on a railway right of w-ay running through a municipality is

a serious menace to the surrounding farms. I have known cases where, through neglect, weeds grew in profusion on the right of way and the seeds were carried to farms nearby that had been .perfectly clean. This Act provides a (penalty if a railway does not destroy the weeds growing on its right of w-ay. But would the municipality have the right, under their by-laws, to take action in the matter?


Frank Broadstreet Carvell: The municipalities have no jurisdiction whatever. Section 279 of the Act provides:
Every company shall cause thistles and all noxious woods growing on the right of way, and upon land of the company adjoining the railway, to be cut down or to he rooted out and destroyed each year, before such thistles or weeds have sufficiently matured to seed.
If a railway company failed to carry out the provisions of this section, application could be made to the Board of Railway Commissioners for action in the matter. The Board would thereupon issue an order, and enforce it. If a municipality were allowed to interfere in this way with the operation of a railway company, the Railway Act would cease to be of any value.


[Stage Direction]
Section agreed to.
On section 42-employment of counsel in public interest:
William Findlay Maclean: In this section we find all the provision that is made in the Bill for the protection of public rights under this law. The section is in part, as follows:
The Board may, in any application, proceeding or matter of special importance pending before it, if in the opinion of the Board the public interest so requires, apply to the Minister of Justice to instruct counsel to conduct or argue the case or any particular question arising in the application.
That is, the public rights will be protected it in the opinion of the Board the public interest so requires. That is my whole case. The duty is imposed on private individuals and on private interests to take care of themselves, but in important cases counsel can be appointed to take care of the public interest. If the Board sees fff; to make application for counsel, the Minister of Justice may grant it. A gentleman learned in the law will then state the case, and perhaps justice will be done. But I say that somebody-the Minister of Justice, the Solicitor-General: I care not who-ought to see to these things, and be responsible. I would impose upon the board the duty of enforcing the law and of seeing that the public interest is protected in all cases. We make provision for the protection of the

public interest in cases where the board think those interests ought to be protected and where the Minister of Justice is a consenting party. But what about all the other cases? Should the duty not be imposed on the Railway Board of enforcing the law and of protecting the interests of the public, of the individual-of the widow, mentioned a little while ago? There is where the Act breaks down as a protection of the public interest. Later on I am going to ask the committee to insert in this Act a provision for its enforcement in every direction.
On section 49-rule of court:


Frank Broadstreet Carvell: There was a discussion before the committee as to the powers of this Parliament to direct a court (or an officer thereof) of a province to carry out the orders of the board. I expressed very grave doubt about our jurisdiction, and I still have grave doubt, but the answer given to me then was, we have been doing this-and, to use the vernacular, we have been getting away with it, so they did not see any reason why we should depart from the practice. I have strong doubt whether this Parliament -has power to say that the Supreme Court of a province shall or shall not do a certain thing, or that the registrar of a province, who is purely a provincial officer, shall or shall not do a certain thing. This, however, has been the law in the past, and the special committee decided to leave it in this Bill, and I have no objection to it.


Joseph Elijah Armstrong: We -have had this in force for many years.


Frank Broadstreet Carvell: That was the answer I received.


Edward Mortimer Macdonald: I agree with the hon. member for Carleton (Mr. Carvell). The fact that such orders have been made and put through in the past is no indication of the legal right to make such provisions in this Bill. At some time, in a very important case, the question will be raised as to the right of making the decisions of the Board of Railway Commissioners a rule of our provincial courts. The matter will form a subject of consideration, and possibly there will be a decision against , the right of those courts to accept such rulings. It is the duty of the Minister of Justice to communicate with the attorney generals of the different provinces and ask them to pass ancillary legislation to make this effective. While the Minister of Justice reviews legislation passed by the different provinces, and, if necessary, calls the attention of the Provincial Attorney General to the

validity of any measure, and also informs him whether the legislature have attempted to exceed their jurisdiction, there is no such revising authority over Dominion legislation.


William Findlay Maclean: We have reached one stage further so far as the public interest is concerned. The jurisdiction of the provinces over certain matters has been called into question by two able lawyers, one from the New Brunswick courts and one from Nova Scotia. We may have to make provision in connection with federal legislation for the establishment of federal courts where these decrees will be recorded, and whereby they will be enforced. We are coming nearer to the issue that I have presented in this House. This shows how weak our system is after fifty years of experience. It has taken the people of the United States 150 years to find out that if they want to have effective legislation, and to protect the public interest, they must impose upon some federal officer or court the duty of enforcing that legislation, and they must constitute a federal court for registering their decrees and impose upon the officers of that federal court the duty of seeing that the decrees are carried out, not leaving their enforcement to the grace of some court or other organization in a province.


Francis Cochrane: I shall be very glad to bring the matter to the attention of the Minister of Justice, and to inform him of the remarks made by the hon. members for Carleton (Mr. Carvell) and Pictou (Mr. Macdonald).


[Stage Direction]
Section agreed to.
On section 52-Governor in Council may vary or rescind:
Joseph Elijah Armstrong: The only
changes are in the first line. After the word " may " the words " at any time " are inserted. After the word " interested " on the third line, the words " or in his own motion," are inserted, and the words* " within one month after the making of the order, decision, rule or regulation," struck out.


Frank Broadstreet Carvell: That leaves it practically as the old law stood-very slight change.


Joseph Elijah Armstrong: Yes. The words were struck out by the committee.


William Findlay Maclean: I want to read
the section of the United States Act to the House, and I hope to be able to show the
committee that there is something in the contention I have urged.


Francis Cochrane: The committee instructs us to draft a section, and we will frame it later on, so that the hon. gentleman need not take up so much time discussing it.


Edward Walter Nesbitt: Why not state the point when you introduce the resolution?


William Findlay Maclean: I want to place it on record now. I have obtained the document, and it is only common courtesy for the House to allow me to read it. I desire to show how the Publio Railway Act is administered in the United States. I will Tead the section and I hope the minister and hon. members will listen to it. Section 12 reads as follows:
That the Commission hereby created shail have authority to inquire into the management of the business of all common carriers subject to the provision of this Act, and shall keep itself informed as to the manner and method in which the same is conducted-


George Perry Graham: That is the Interstate
Commerce Commission.


William Findlay Maclean: Yes. The section continues:
-and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created, and the Commission is hereby authorized and required to execute and enforce the provisions of this Act;-
That is what I want in this country. I desire a provision inserted that the Railway Commission shall be required to enforce the provisions of this Bill, and I have not got it yet. All that is provided is that the provisions of this Act may be enforced, if the Minister of Justice, on the request of, the Railway Board, appoints a solicitor to enforce the Act. The section continues:
-and upon request of the Commission it shall he the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this Act, and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this Act the company shall have power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements and 'documents relating to any matter under investigation.



We have no such provision, in our Act, and I again direct the attention of the Minister of Railways to it and ask him, in all fairness, to consider this question; and I ask him to ask the Minister of Justice and the Prime Minister whether it is not time that he should enact for Canada a similar provision for the enforcement of our laws. We have spent a lot of time on this measure and I compliment the minister on the excellent Act which has been framed. I say that it is deficient in the essential that no provision is made for its enforcement.


Frank Broadstreet Carvell: I must confess that I
[DOT]have never read the United States Intercommerce law ais carefully as my hon. friend, and I do not profess to know what the provisions are, and I have been wondering if that Act goes as far as our does.


George Perry Graham: In many ways it does
not.


Frank Broadstreet Carvell: There is no power that our railway commission does not possess in regard ito requiring the railway companies to do anything that can be conceived.


William Findlay Maclean: But where is
the provision compelling them to do it?


Frank Broadstreet Carvell: They have the power
to make rules and regulations. If a railway company is not observing the law and is granting exceptional 'advantages to one company over another-discrimination in traffic or in rates, or anything of that kind -the Board of Railway Commissioners has absolute power to take action. This Aot was in force before I came to Parliament, and I have been before this board a great many times, and I 'have never heard a suggestion that it does not enforce its decree and orders, and I cannot understand why there should be any necessity for a provision of this kind.


Francis Cochrane: The commission would be useless if it did not enforce its orders.


William Findlay Maclean: The hon. gentleman from Oarleton (Mr. Carvell) is talking about decrees. They enforce the decrees, but supposing they do not make the decrees?


Frank Broadstreet Carvell: I will give an illustration. I got a letter within the last three weeks from a gentleman in New Brunswick, not .in my own constituency, pointing out the fact that a certain railway crossing was not protected and that something should be provided in the way of gates or guards. I at onee sent the letter on to the railway company, and asked them to give it their

consideration. I received a courteous letter from them, stating that they would hand it over to their traffic department .and would give me an answer. I have not received their decision yet, but if they fail to do what the people think they should do, all I have to do is to go to the Board of Railway Commissioners and if they order the company to put on guards or gates or watchmen, the commission will enforce such an order. It seems to me there is nothing to argue about.


Edward Walter Nesbitt: We have given them absolute power to do every conceivable thing in regard to the railways.


Frank Broadstreet Carvell: I have never heard of a case where the board has not adjudicated on any matter submitted to them, and if they decide that a person is entitled to relief that relief is granted.


William Findlay Maclean: This is an attempt to draw a red herring across the trail.
I am not suggesting that the board has not the power, but in many cases they do not take action.


Frank Broadstreet Carvell: The hon. gentleman admits they have the power.


William Findlay Maclean: Yes, but there
is no provision that they must- exercise this power. If somebody calls their attention to it they may do it. The United States Act provides that the commission shall keep themselves posted in regard to the requirements of that Act.


Francis Cochrane: The hon. gentleman
has not given us a case where they have not enforced it.


William Findlay Maclean: I will give cases [DOT] later on, but I want to deal with general principles to begin with. I say that the Railway 'Commission should be empowered and ordered to enforce this Act, and that they should have the means placed at their disposal to carry out the orders. We could have the Act enforced if the Minister of Justice would appoint an attorney to look after its enforcement. I place this point before the people of the country as the difference 'between our Railway Act and the Railway Act of the United States.
I would like to address a meeting of the farmers of this country, who are studying this question of transportation very closely, and point out to them the difference between the two Acts in the power of enforcement and the protection of the public rights. It should not he left to somebody, or to the Board itself, to ask for the ap-

pointment of counsel to assist in enforcing the law. It should he the duty of the Board to enforce the law. If permanent counsel are required I would not have any objection to their appointment, but I do say the responsibility should be with the Board. Apparently it is a hard thing to persuade this committee to see the question in that light, but that was the experience of the United States.


Edward Walter Nesbitt: Will my hon. friend tell us when the Interstate Commerce Commission was appointed?


William Findlay Maclean: Many years before ours.


Edward Walter Nesbitt: My impression was that ours was first.


William Findlay Maclean: I am quite sure the United States Commission was first. In any event, they have had a wider experience than ours. I would ask hon. gentlemen to secure a copy of the United States Act, and study it. Clause after clause of our Act has been taken bodily from it.


Mr. McKENZIE:: As I understand the point made by the hon. member, he thinks this Commission, or court, should institute proceedings before itself. To my mind, that is not practicable in Canada. If it were done I fear the court would very soon lose its weight, influence and respect. I think it is as well ito leave the matter as it is, and when any one has a grievance let the question be taken up in the proper manner before the Board. Perhaps I would go to the extent of agreeing with the hon. gentleman that there might be a public officer appointed whose duty it would be to institute proceedings before the Board.


William Findlay Maclean: It is very hard to convince those able lawyers in regard to the jurisdiction of courts. I am only an ordinary layman-
Mr. GRAHAM; No, not an ordinary layman; you are better than that.


William Findlay Maclean: For the instruction of the distinguished legal light from Nova Scotia (Mr. McKenzie), who was a judge and who knows a good deal about courts, let me direct his attention to the following:
And the Commission is hereby authorized and required to execute and enforce the provisions of this Act; and upon the request of the Commission, it shall he the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court, and to prosecute under the
218*	,h i ,
direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this Act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.


Frank Broadstreet Carvell: That is provided for in section 49 of our Act.


William Findlay Maclean: But there is nothing to show whose duty it is to enforce the law. My hon. friend from North Cape Breton (Mr. McKenzie) says we do not need any court, or we are imposing an unnecessary duty on the commission. In the United States they impose certain duties on the commission in connection with the enforcement of the law. They go further -and say:
Any district attorney may proceed in any" proper court and sue and have due performance of what is called for under the Act.
And penalties are imposed and fines collected. We have not that clear-cut direction for the enforcement of our Act. It has taken me twenty-five years to get a hearing in this House in connection with the enforcement of the federal law. I have been side-tracked twenty times by men who were Ministers of Justice, trying- to evade this point. However, this condition of affairs will not continue much longer. There are a number of federal laws on our statute book which are not being enforced and the duty of enforcing them is not placed on any one. After fifty years' experience, I think we ought to change the law in this direction, and I again draw the attention of the Minister of Railways to the fact that he may make this excellent Act of his still more effective by including in it a provision for its enforcement similar to the provision in the United States Act.


Frank Broadstreet Carvell: Has the hon. gentleman carefully read the provisions of Section 392 of this Act?


William Findlay Maclean: I know the provisions of the section.


Frank Broadstreet Carvell: What can be stronger than that.


William Findlay Maclean: The hon. gentleman again begs the question. This is the greatest trick which has taken place this afternoon. That sections says "Whenever it is proved." What provision have you made for "whenever it is proved"?


Frank Broadstreet Carvell: An order of the board is. all that is required.


William Findlay Maclean: That is so, in cases where it is proved. But who proves it, or whose duty is it to prove it?


Frank Broadstreet Carvell: The interested party, of course.


William Findlay Maclean: That is bringing it back again to the interested party. I want a provision in the Act that its enforcement shall rest with some, responsible official of the commission, or the Attorney General of Canada, or somebody else.


Edward Walter Nesbitt: If you had a provision in the Act that the Railway Commission should see to its enforcement, and the Railway Commission did not do so, what would be the result?
Mr. W. F. MACLEAN. We could bring them before 'Parliament.


Edward Walter Nesbitt: Who would know they did not do it?


William Findlay Maclean: You would know, as a member of Parliament.


Frank Broadstreet Carvell: Let me cite an instance. The law says there shall be proper fences and cattle guards. Does my hon. friend think there should be some official who would go around and see that those cattle guards are in their places, and, if they are not, institute proceedings against the railway company?


William Findlay Maclean: The hon. gentleman raises a tu'penny-ha'penny case.


Frank Broadstreet Carvell: But, there is no difference in the principle.


William Findlay Maclean: I admit the board may make an order, and when they order that so-and-so shall happen the public will be protected; or, when the Attorney General of Canada sees fit to engage counsel to prosecute the case the public will be projected. But again, if that does not happen, who is to protect the public? I appeal to my hon. friend (Mr. Wright) who is a .common, ordinary farmer-
.Some hon. MEMBERS: Oh, oh.


George Perry Graham: A real farmer.


Edward Walter Nesbitt: He is not a common farmer.


William Findlay Maclean: Well we will say an ordinary farmer. I am a very poor farmer myself; I have not got to the high exaltation of being a farmer yet, but a farmer can see that it is one thing to make a law and quite another to enforce it. This is a good law and the farmers of the West

as well as the farmers of Ontario are reading up these laws. We see the necessity of improving this law, and this is a vastly improved law, but' it must be enforced. They have passed a law in the United States for the enforcement of railway legislation. They not only make, provision in that law for its enforcement but they provide the money and they put the duty on the railway commission to keep themselves posted as to the objects of the law. Tt is their duty to enforce it and to go to the district attorneys throughout the United States and through them to lay information before the court. Why should there not be provision for the enforcement of this law which is based on the Inter-state Commerce Act?


Frank Broadstreet Carvell: I want to go back to my little case of a railway company that fails to keep proper guards in place at the highway crossing and I want to ask my hon. friend a question. Would he want a provision in the law that a farmer, or a man travelling along the road, could write to this officer representing the Attorney General and have him take charge of the case and present it to the board and then have the board issue an order. Does he want to have some official to see that the
5 p.m. order is enforced, or does he only want to see that the order of the board is enforced?


William Findlay Maclean: I only want to see that the law is enforced and I want to see that when the order is made it is carried out. I want the duty put upon somebody to carry out the law whether it is done by a clause similar to this clause in the Interstate Commerce Act or otherwise. It is very clear what I want.


Edward Walter Nesbitt: Why. not get your resolution ready so that we will know what you want?


William Findlay Maclean: I am going to get it ready but it takes a great deal of time to get an argument before this committee.


George Perry Graham: You have to prepare the ground first?


William Findlay Maclean: Yes, the ground has to be planted and watered, but I think I have made some impression on the committee.


Edward Walter Nesbitt: You sure have.


Daniel Duncan McKenzie: 
William Findlay Maclean: I want the board to protect the public rights. The Hon. gentleman (Mr. McKenzie) says that we are satisfied with the way the Criminal Code is being enforced. Are we? I am not satisfied with the way that federal law is being enforced by local attorneys in various parts of the country. When I had this question up in another case the leader of the Opposition asked me why I did not go to Mr. Foy for the enforcement of a certain Act in Ontario. I said in reply:	You cannot
always get enforcement of the Criminal Code by provincial authorities. I want to give another specific instance of that. We have a law against combinations in restraint of trade. The whole prosecution devolves upon the private pro-secutor. It is the old story; unload it on the private individual. Of course this federal Act declares that combines a-re illegal, but it does not say that it shall be the duty of the Attorney General of Canada to enforce this law against combines, nor is there a sum of money set apart for the enforcement of the law or the prosecution of combines against the public interest. Day after day we are passing Acts in this Parliament and making no provision for their enforcement. Of all the humbug Acts that were ever passed by this Parliament, the Acts in connection with federal elections are the most notable. Has there ever been- any prosecution of any kind under those Acts? There have been lots of saw-offs and the people know all about that, but there has never been any enforcement of the election law of this country. That we leave to somebody else. I am talking right outside of this House now and to the people of Canada, and I say that when you are making laws in the public interest you must also make provision for their enforcement. I will give another instance where the United States has had to resort to a special federal law. They never could secure the enforcement of the law against some of the worst crimes that were ever committed in the United States in connection with labour troubles. There were lots of statutes in the various states against the perpetration of such crimes but no enforcement of those statutes. The danger to the public from the perpetration of those crimes was so great and the in-
E*
ability to get any of these laws enforced so evident that the Congress and Government of the United States were driven to the adoption of a subterfuge. They passed an Act providing that whoever employed a railway train for the conveyance of dynamite, or travelled on a railway train for the purpose of committing a crime of this kind, would be liable to be indicted in a court and tried for the crime which he committed. These crimes were put down in the United States by the enforcement of a federal law by the Attorney General of the United States, who had all the resources of the country at his back. They got prosecutions and convictions, and they put an end to these crimes. You ask: Why do you not get your criminal law enforced by means of provincial officials and courts? At times you get it and get substantial justice, but there are many cases where you cannot get that substantial justice because you cannot bring about the enforcement of the law. Again I come -back to my argument that if this law is to be effective you must make provision for its enforcement and impose the duty primarily on the commission itself and also on the Attorney General of th* country, because, perhaps, proceedings in a federal court may yet have to come. That is the question and it must be specifically dealt with in this Act.


Mr. WRIGHT:: Do I understand the hon. member to advocate the establishment of two complete sets of legal machinery in the country, from constables up to Supreme Court, one for the Dominion and one for the various provinces?


William Findlay Maclean: I do not quite
say that, but it is where the United States have landed now. There are United States federal courts and there are state courts. They have marshals of the United States courts who can go out and arrest men, and they have attorneys of the United States scattered (all over the union to enforce federal law. They found it necessary to do sc in order to protect the public interest.


Francis Cochrane: We bave a federal court here; we have it under this Bill.


William Findlay Maclean: What?


Francis Cochrane: Effective means of enforcing the law.


William Findlay Maclean: We have and we have not. We have not the effective means, and I will give some specific instances later on. The Act is all right if the duty is placed upon somebody of enforcing it.


[Stage Direction]
Section agreed to.
On section 52-Governor in Council may vary or rescind:
Frank Broadstreet Carvell: There is very little
change in this from the original law. The first subsedtion provides that the Governor in Council may vary or rescind an order of the board; the second provides that an appeal shall die to the Supreme Court on a question of jurisdiction. The third provides that an appeal shall lie to the Supreme Court, upon a question of law oir a question of jurisdiction or both, provided leave is granted by the board. The idea is to discourage appeals, so far as possible, and to make the decisions of the board final. The later part of the section is the same as before.


George Perry Graham: Are there many appeals, as a -matter of fact?


Francis Cochrane: No. Taking the number of cases, the appeals are very few.


George Perry Graham: There are not many appeals to the Governor in Council either, are there?


Francis Cochrane: No.
On section 97-calls, how made, etc.:


Joseph Elijah Armstrong: A change has been made in the numbering of the sections. Certain sections respecting calls have been taken from pages 41 and 42 of the Bill and inserted before the sections d-ealing with meetings of shareholders.


Frank Broadstreet Carvell: 
[Stage Direction]
Section agreed to.
On section 113-qualifications of directors.
Joseph Elijah Armstrong: The first three lines of subsection 3 of the' old section-

If the company has received aid towards the construction of its railway or undertaking or any part thereof from the Government, under any Act of the Parliament of Canada.
-are struck out, and the word "its" is changed to "the" so that the subsection now reads:
A majority of the directors shall be British subjects.
On section 117-president.


Joseph Elijah Armstrong: In the last line of the first subsection the words "one or more vice-presidents" are inserted in place of the words "a vice-president." In the second subsection, the words "be the chairman of" are inserted after the word "present." In the third subsection the words "or one of the vice-presidents, according to such priority" are inserted after the words "vice-president," and in the fourth subsection the words "or vice-presidents" are inserted after the word "vicepresident."


[Stage Direction]
Section agreed to.
On section 124-powers of vice-president.
Frank Broadstreet Carvell: The real object of the change is, in case of the absence of the president or even of the vice-presidents, that there shall be a presiding officer.


[Stage Direction]
Section agreed to.
On section 132-securities, bonds, etc.:
Joseph Elijah Armstrong: There is a reconstruction in this section. More ample provision is made for the executing of securities. The arbitrary limit as to the amount of a single security which was complained of as inappropriate, has been removed, hut this has no effect on the total amount authorized. In subsection 3, the word "five" is changed to "six," providing that the securities may bear 6 per cent interest instead of 5.


[Stage Direction]
Section agreed to.
On section 135-mortgage deeds of trust:
Frank Broadstreet Carvell: The change in this section ensures that they can provide for more than one trust deed or mortgage, whereas as the Act read previously there was some doubt. The real change is that it provides for more than one mortgage or trust deed.


[Stage Direction]
Section agreed to.
On section 138-other filing deposit or registration not necessary.
Frank Broadstreet Carvell: When the Act was
codified in 1906 there might have been liti-

gation pending, but it was thought that, after ten years had gone by, this litigation would be all out of the way, and it was best to strike out those last four lines.


George Perry Graham: It is protecting litigation then under way.


Frank Broadstreet Carvell: Yes.


[Stage Direction]
Section agreed to.
On section 139-instruments deposited, evidence of.
Joseph Elijah Armstrong: In the 6th line, after the word "Canada" the word "purporting to be" are added.


Frank Broadstreet Carvell: As long as the document purports to be certified, it can be received.


[Stage Direction]
Section agreed to.
On section 146-regulation of stock and bond issues:
Frank Broadstreet Carvell: I should like to call the attention of the committee to the fact that section 146 of the draft Bill was struck out entirely by the sub-committee. Personally I had some objection to it being removed.
I should rather have seen the section remain in the Bill. In general, section 146 provided that any securities issued by the company must be first approved by the board, but the sub-committee thought it might be better to throw that out entirely. I still believe there ought to be some regulation as to the amount of securities which a railway company can issue upon its undertaking. While I know that stock in the ordinary railway company of Canada has not very much value, because nobody puts any money in railways except the Government, still the principle of this section seems to be a good one. We are legislating for the future. The time may come when people will put up money for the railway companies, and I do not think they should be allowed to issue stock or securities, whether it be stock or bonds or whatever it may be, at their own sweet will. I think there should be some power to regulate the amount of stock they can issue on a mile of railway.


Francis Cochrane: Is it not regulated by the charter?


Frank Broadstreet Carvell: Yes, but there is no fixed rule followed. The Railway Committee fixes the amount one year, and says, "We are going to keep this down to a certain amount," but the next year they will put it up to a certain amount. I do not think the railway companies should be allowed to
pledge these securities, and then come back to some authority in the province, or to the Railway Board, and say, "You ought not to change the rates, because we cannot pay dividends unless we are allowed to charge certain rates." The railway companies may be asking to pay dividends on stock that is of no value, or upon securities which are sold for .a mere song. It is the old, old story of watered stock, and I think there should be some regulation of the amount of stock and securities which a railway company can issue. I do not ask for any amendment, but I desire to call attention to that feature.


Joseph Elijah Armstrong: The railway
Board appeared before the committee and said it would be impossible for them to undertake the work.


Frank Broadstreet Carvell: I know that, and I have heard the story many times as to how impossible it is to control those gentlemen who wish to issue watered stock, not only in connection with railways but in everything else. At the same time, I do not always believe what I am told about these things. I call the attention of the committee to the fact that this clause was included in the draft Bill and was eliminated by the sub-committee.


Mr. MACDONELL:: There were two
reasons, one being that the Railway Board expressed disapproval of it, and the other, that if the Board of Railway Commissioners authorized or approved of a certain issue of securities, that would be regarded by persons outside of the country as having put the imprimatur of the Board of Railway Commissioners of Canada upon the issue of that amount of securities, and in that way might mislead people who would buy those securities under the belief that the Board of Railway Commissioners, having authorized the issue, certified in a sense that it was a proper and a safe issue.


Frank Broadstreet Carvell: I believe that was the argument advanced. No doubt the minister has on many occasions been asked to buy branch lines, and I will venture to say that in every case he has been up against a bond issue which he did not believe to be genuine. The men who worked out the railways in the first instance, are dead, and have been succeeded by other gentlemen who come to him perfectly honestly and say: "Here are the bonds against this railway, and you must pay us sufficient to carry those bonds." If there had been some public body in the beginning, which would have said: "Thus far shalt thou go and

no farther" probably this condition of affairs would not have arisen.


[Stage Direction]
Section agreed to.
On section 162-limitation of time for construction.
Joseph Elijah Armstrong: Section 162
is the same as in the, old Act except the last paragraph. It is reconstructed as subsection 2 as follows:
The tracks of every railway, the construction of which is hereafter commenced, shall be of the standard gauge of four feet eight and one half inches, unless otherwise permitted by the Board.


Frank Broadstreet Carvell: Heretofore all acts that were passed had in them a clause that the company might construct a railway of a gauge of four feet eight and a half inches. That had to be put in every special Act. By incorporating this clause in the General Act that will not be necessary in future.
On section 166-Oomirnencement of the works.


Francis Cochrane: The change in this
section is that the board approves the line instead of the minis,ter.
At six o'clock the committee took recess.
After Recess.
The committee resumed at eight o'clock, Mr. Blain in the Chair.
On section 170-Sanction of plan, profile, etc., by Board:


Joseph Elijah Armstrong: The third subsection of this section has been re-drafted.


Frank Broadstreet Carvell: There are two general changes. One is that the old law provided for a deviation of a mile; the present law confines that to half a mile. Secondly, the old law provided that there should not be a deviation of more than so much a milo "from the plan as filed." That, I think, means filed at the office of the registrars of deeds at different places. The new section provides that that plan shall .also he filed with the Board. It means the filing of two plans instead of one, and cuts down the deviation from a mile to half a mile.
On section 186-Use of spur for another industry.


Joseph Elijah Armstrong: At the beginning of this section, after the word " notwithstanding," the following words were struck out: " any agreement or arrangement made."
TMr. Carvell.]


Frank Broadstreet Carvell: This is a new clause, which is not found in the Railway Act. In general terms, it provides that the Board shall have the power to allow a person or company to use a spur line that has been constructed in connection with the business of another person or company.


[Stage Direction]
Section agreed to.
On section 193-lands of other companies:
Joseph Elijah Armstrong: The last two subsections of this section have been reconstructed. The object is to prevent unnecessary cuttings into cities and towns and the multiplication of highway crossings. Subsection 4 gives the board power to order the company to take the proceedings provided for under the old section, and subsection 5 gives the board still further power as to ordering the joint use of rights of way.


[Stage Direction]
Section agreed to.
On section 197-board may order compensation in certain cases:
Joseph Elijah Armstrong: This is a new provision; it seems to he a reasonable one. It is in conformity with the law that has existed in Ontario for some time.


Frank Broadstreet Carvell: The Board has the right to give the railway company occupation of whatever land may be necessary, but if there be valuable minerals under the railway line that cannot be mined because of the construction of the railroad, the company must pay compensation to the owners. I believe that the board have the right to assess damages.


[Stage Direction]
Section agreed to.
On section 198-examination of mine workings:
George Perry Graham: I see that the railway company is supposed to give the owner of the mine twenty-four hours' notice before, entering upon his lands.


Francis Cochrane: That is enough.


Frank Broadstreet Carvell: Having obtained permission of the Board, the company has the right to enter upon the lands and see whether any condition exists which would be detrimental to the safety of the railway. They have the right, not to remove or change anything, hut simply to investigate.


[Stage Direction]
Section agreed to.
On section 200-where more ample space required:
Joseph Elijah Armstrong: In the thirty-fifth line, after the word "may," the words

"whether before or after the railway has been opened for the carriage of traffic" have been added. In subsection 7, line 6, after the word "railway," the words "but the deposit with the board and with the registrar of deeds shall be made as in this section provided" have been added. These are the only changes.


Frank Broadstreet Carvell: Under the existing law, the railway company has to file a plan and book of reference, having the right to take whatever land may be therein included. This provision in the present Bill leaves it open to the railway company, even after the railway has commenced to operate, to file a new plan and book of reference and take more land. Such a provision may be necessary, and I do not know that I specifically object to it; but it is a rather drastic provision.


Francis Cochrane: It is often very necessary for them to take more land. They would have to pay for it.
Mr. CARVEI.L:	Subsection 7 provides
that:
The deposit with the hoard and with the registrar of deeds shall he made as in this section provided.
That is, the company have to make a new deposit, new plans, new book of reference, and have a new arbitration if they cannot come to an agreement with the owner of the land. This gives the railway companies very large powers.


Joseph Elijah Armstrong: The meaning is made more clear. .


[Stage Direction]
Section agreed to.	,
On section 202-Obtaining materials for construction or operation:
Joseph Elijah Armstrong: Subsection 6 is new. It gives the powers of the board.


Frank Broadstreet Carvell: This section means that a railway company will have the right to lay a temporary track for the purpose of bringing material for the use of the railway. They lay that track practically under such directions as the board may issue. After the track has been used and the material provided, then it can bfi taken up and the company would have to pay as compensation whatever damages the owner of the land had suffered, but they do not have to expropriate. They are given the right to go on the land temporarily.


[Stage Direction]
Section agreed to.
On section 206-Order of judge may be had:
Joseph Elijah Armstrong: This section has practically been reconstructed. The following proviso has been added:
Provided that where any person interested is absent from the district or county in which the lands lie, or is unknown, the judge may order such substitutional service of notice as he deems proper or may dispense with notice.


Frank Broadstreet Carvell: Suppose a man died and left a will and all' the terms of the will had not been carried out, and on account of minors or something of that sort, there was no person in a position to give a deed; tnis section provides that the trustee, or the executor under the will, or some person who occupies a fiduciary position is, in this case, authorized to give a deed, but the change is made that this can be done only by an order of the court. It also provides what notice must be given before the court can exercise the rights conferred upon it.


[Stage Direction]
Section agreed to.
On section 214-disagreement.
Mr. BOULAY:: Mr. Chairman, I think
the sections are being run through too fast. I would like them to be read in French. As we are endeavouring to improve the law, I would like to have time to read over the sections in order to see what they are.


The CHAIRMAN:: If the hon. member
wishes a special section to be read, I shall be glad to read it.


Joseph Elijah Armstrong: If there is -any special section (that the hon,. member would like to have read, I am sure we shall be very glad to listen to it and have him make whatever remarks he pleases in regard to it; butt might I respectfully ask him to consider the fact that this Bill was before a special committee of this House for seven or eight weeks? During that time people from all parts of (the co,untry representing different organizations and institutions, were invited to come, and did come, before the committee. They were given every opportunity of placing their views before the committee. As chairman of that committee, I want to take this opportunity of thanking the members on both sides of the House for the splendid work they did in ,assisting in every way possible to bring about suitable legislation; I hope the hon. member for Rimouski (Mr. Boulay) will not press his request.


Herménégilde Boulay: Not only do I press my
request, but I insist upon its being granted, because, not belonging to the Railway Committee I have until now had no opportunity

of studying the Bill. There were several amendments that I was going to suggest when this Bill came into Committee of the Whole. I find now that the Bill is being put through in a very hurried manner, and I have no opportunity of suggesting amendments or even of knowing what the sections are. If the committee is willing to set some of the sections aside for discussion later on, I am willing to agree to that. There are quite a number of sections that have not been amended and that surely should be amended.


Joseph Elijah Armstrong: I am sure the committee will be very glad to hear later on all the amendments that the hon. member for Rimouski cares to lay before it.


Edward Walter Nesbitt: If the hon. gentleman
will pick out the clauses, we can take them up.


Joseph Elijah Armstrong: If the hon. gentleman will mention the clauses, we will reconsider them.


Herménégilde Boulay: But all the other clauses were adopted. Important objections might have been miade to clauses 9 and 10, but they have been adopted.


Edward Walter Nesbitt: Even though, they were
passed by the committee, if the hon. gentleman desires to discuss them, he should have an opportunity.


Francis Cochrane: There would be no objection to that.


[Stage Direction]
Section agreed to.
Section 215-Notice of expropriation to be served:
Joseph Elijah Armstrong: The words
"preliminary to proceeding to arbitration to fix compensation or damages'* have been added in this section, and paragraph (e) is added so that the owner may have explicit notice of the rights of the company, and as to what he must do, so that he will not be prejudiced by letting the time go by in which he must act.


Frank Broadstreet Carvell: I think there has been a material change in that section. Any solicitor who has had much experience in expropriation proceedings must have found a great injustice in the present law in this regard. The present law provides that the railway company shall do certain things- they must serve notice upon the owner, giving a description of the lands to be taken, or the powers intended to be exercised with regard to any land therein described, fMr. Boulay.]
and the notice must contain a declaration of readiness to pay a certain sum or rent as the case may be, as compensation for such lands or for such damages. But there is no provision to force the company to carry on the proceedings to a finality, and many a man has been held up for months -the railway companies have obtained an order from the judge and got possession through the sljpriff, and allowed the mat^r to drift. Very few are able to realize what their real damages are by simply being told that the railway company is going to build a railway across the land. The railway must be constructed before the owners can ascertain their damages. This section provides that either the railway company or the owner shall have the right to have the compensation fixed by arbitration. It is one of the greatest boons that has been granted to the landowners in the whole Act, because it puts them in a position, immediately after the notice has been given, or within ten days, if the railway company do not proceed to have damages ascertained by arbitration, to compel them to move.


[Stage Direction]
Section agreed to.
On section 216-Certificate of surveyor or engineer:
Joseph Elijah Armstrong: The only change is adding, after the word "w1m>
" in the third line, the words " is not interested in the land, or in the amount of compensation or damages." The hon. member for North Oxford will remember that, in the reprint, they appeared to have marked the . clauses one number ahead of the numbers appearing on the old Bill. One clause was dropped and that disarranged all the others. In paragraph (c), in the first line, the words " what sum is " have been added.


Frank Broadstreet Carvell: 
[Stage Direction]
Section agreed to.
On section 217-service by publication:
Joseph Elijah Armstrong: There is an important amendment to this section. At the end of subsection 3 the following words are added:
And in such other newspapers, if any, as the judge may direct.


Herménégilde Boulay: Does that provide that the publication shall be made in both languages in Quebec, or only in English? Nothing is said about it in the Bill.


Joseph Elijah Armstrong: The hon. gentleman will notice that subsection 3 says:
The judge shall order a notice as aforesaid, hut without such certificate, to be inserted three times in the course of one month in a newspaper published in the district.
If it is in the French district, it would naturally be published in the French paper, or if there is no French newspaper published in the district, then it would be published in a French newspaper in the adjoining district or county, and in such other newspaper, if any, as the judge may direct.
Mr. BOULAY": That is not sufficient to insure that it would be published in French. There might be a French and an English paper, and if the company chose to publish only in English, that would be their own business.


Joseph Elijah Armstrong: The judge has the decision as to the paper in which it shall be published.


Herménégilde Boulay: But supposing the judge does not say anything about it, or suppose he decides it shall only be published in English, where will be the fair play for the other section of the population in the province of Quebec?


Joseph Elijah Armstrong: Do you think the judge would show any partiality in that regard?


Edward Walter Nesbitt: Not in Quebec.


Herménégilde Boulay: I think it better that it should be published in both languages in the province of Quebec, instead of leaving it to the decision of the judge.


Joseph Elijah Armstrong: It might well be left to the judge.


Herménégilde Boulay: The law provides for the manner of publication of such matter in the province of Quebec, and there is no reason why a Bill of this kind should not also provide for it. If there were a general proviso to1 the effect that it should be published in both languages in the province of Quebec, it would be different. Perhaps we might go back and insert some such clause in one of the first sections of the Bill.


George Perry Graham: There is some reason
for what the hon. gentleman says, but I would not restrict it to the province of Quebec, because there are parts of Ontario where at least half the population is French. I would support an amendment providing that where two papers are published, one in French and one in English, the advertisement should appear in both.


Herménégilde Boulay: What I have said about the province of Quebec might also apply to the province of New Brunswick.


Frank Broadstreet Carvell: There is a great deal, of course in what the hon.. member for Rimouski (Mr. Boulay) says. In case the owner of the land is absent, or cannot be reached, the notice should be published in such a way that it would cover him. If there were a French paper in the district it would be only fair that the notice should be published in. French also. It would not involve any great expense or difficulty. I think it would be better to provide for this specially, rather than include it in the section regarding definitions, because there you might have to apply it to all notices, and there may be many cases in which it is not necessary to publish or serve a notice in both languages. I had a somewhat similar case a few years ago. Under the law of New Brunswick which has not been changed for a great many years and which was practically the law of Canada prior to about 1890, there was no provision for service upon a man by publication. In the case I refer to, it looked


S436 COMMONS
[Stage Direction]
at one time as if a very great injustice was going to be done, because the railway company made an application without any notice at all, and the parties interested had no knowledge of the matter until after it was settled.
Mr. DESCARRIES:: In the province of Quebec all legal notices in addition to being published in the local papers are published in the Quebec Official Gazette, which is printed in French and in English. I would suggest that these notices be published in the Quebec Official Gazette.


Edward Walter Nesbitt: I think it would be as well to let the clause stand, so that the minister may give it further consideration.
Section stands.
On section 218-Notice may be abandoned :


Joseph Elijah Armstrong: There are several important changes in this section. In the sixth line the words " suffered and costs " have been added. In the seventh line, the words " and such damages shall be fixed and such costs taxed by the judge, or as he directs," are added. Subsection 3, paragraphs (a) and (b) and subsection 4 have been added.


Frank Broadstreet Carvell: The material change is this: The original Act provided that in case of abandonment the company shall be liable to the person notified for all damages and' costs incurred by him in consequence of such notice .and abandonment. You will see that in the new Act it is changed to make it explicit that he shall be indemnified for all damages and costs incurred by him. The reason is that there has been a good deal of litigation in various parts of Canada, both under the Dominion and local Railway Acts over the question as to whether the landowner was entitled to his costs or to his costs and damages. There have been decisions both ways. The object of the section is to make it clear that the landowner should get both damages and costs. Subsection 2 provides that in case they want further land, they can abandon the former notice and issue a new notice, but if an arbitration had taken place as to the value of the first land taken, that may be used as evidence in the second arbitration in so far as it is applicable.


Edward Walter Nesbitt: It is to the advantage of the individual?	*


Frank Broadstreet Carvell: Yes, all these changes are intended to inure to the benefit of the landowner.
On section 219-Arbitrator; if sum offered not accepted; appointment of arbitrator; notice; service by publication:


Joseph Elijah Armstrong: In the second line after the word "or" the words "where service is made by advertisement" have been added. After the word "it" in the fifth line, the following words have been added:
Either party may apply to the judge of the county court of the county in which the lands lie, or, in the province Of Quebec or in any other part of Canada where there is no county court, to a judge of the Superior Court for the district or place in which the lands lie, to determine the compensation to be paid as aforesaid.


Mr. MARCIL:: Does the question of language come in there in connection with these advertisements?


Joseph Elijah Armstrong: The advertisements were mentioned in connection with the clause that has been left over.


Charles Marcil: Will that apply to 219 as well?


Joseph Elijah Armstrong: I do not know that it would, because the added words have to do with the application and not with the question of language.


Charles Marcil: At the beginning of the clause it says "where service is made by advertisement." Will that 'advertisement be in an English paper or in a French paper? How would that affect a French district?


Frank Broadstreet Carvell: That was, discussed on section 217, and the clause was allowed to stand for the purpose of providing that if there be both an English and a French paper it should be published in both. The hon. member for Jacques Cartier (Mr. Descarries) suggested that it also might be published in the official Gazette in Quebec which is published both in English and French.


Charles Marcil: Will that apply to section 219?


Frank Broadstreet Carvell: Yes, because 219 is a necessary corollary of 217.


Charles Marcil: Then 219 had better stand?


Francis Cochrane: No, put in a clause to cover the whole.


Charles Marcil: The committee will appreciate the convenience of publishing a notice

that the people will understand. There are some districts where there are no English papers at all.


Francis Cochrane: In that case you will have to publish it in French.


Frank Broadstreet Carvell: There is only one suggestion that I would likb to make if section 219 is to stand, and it is that in the case of an absentee landowner, six days' notice in a newspaper is absolutely useless. I would suggest that the minister consider the possibility of giving the judge power to extend the time of notice, as well as to shorten it. You will see that subsection 3 of section 219 says:-
Provided that the judge may dispense with, or shorten the time or times for, the publication of the notice in any such case in which he deems it proper.
The judge should have the power to dispense with, shorten or lengthen the time.


Edward Walter Nesbitt: It says that six days' notice shall be given by the company to the opposite party.


Frank Broadstreet Carvell: And vice versa. The law has been changed. Either party may move for an arbitration. The notice does not make much difference to the railway companies, (because the railway companies are vitally interested; they have their solicitors and engineers; they are always ready and six days' notice to them is just as good as a month. But that will not suit the landowner.
9 p.m. Mr. COCHRANE: How many days would you extend it?


Frank Broadstreet Carvell: I should say ten days' notice.


Francis Cochrane: Change it from six to ten.


Frank Broadstreet Carvell: A farmer out in the country gets notice from a railway company that they are going in a short time to expropriate his land, and it takes him three or four days to wake up and realize what is going to happen. Then he goes to town and looks up his lawyer and it takes his lawyer some time to wake up. A notice of ten days is short enough.


Francis Cochrane: Make it ten.


Joseph Elijah Armstrong: Will you move that amendment?


Frank Broadstreet Carvell: Yes, I will move:
That the word "six" be changed to "ten" in subsections 2. and 3 wherever it occurs.


Edward Mortimer Macdonald: If there is to be an amendment made to the subsection I would like to suggest that provision be made by which a judge could direct that notice should be given to some relative, or to some other party, who would be in a position to know something about the absent proprietor. In the ordinary legal process, where you have to deal with absentees and you apply for substitute service of the documents or notice, the judge, in providing as to the publication in a newspaper of the advertisement calling attention to the matter that is to be served or that is under adjudication, usually provides that in the event of any relative or representative of the absentee being present he shall be notified


Francis Cochrane: Supposing there is not one there?


Edward Mortimer Macdonald: Then you leave it to the discretion of the judge. You go to the judge and he gives an order allowing you to serve the absentee by giving notice in a newspaper for ten days. That may, or may not, be effectual at all. It is usually a fictitious thing any way. I think that my hon. friend from Carleton (Mr. Carvell) would agree that there is no reason why a judge should not exercise that same discretion which he exercises in an ordinary case in which he is dealing with substitute service of notice on some other person who is connected, or has some relation, with the absent owner of the land. This would be a real notice; in the other case it would not.


Frank Broadstreet Carvell: I would agree with that. I am speaking with a considerable personal knowledge of these things because I had a case within the last two years where the landowner was an absentee. Our statute in New Brunswick did not require notice at all when he was an absentee. The arbitration was practically over before we knew anything about it. Fortunately, we were able to get wise in time to get in there and we pretty nearly got our rights.


Edward Walter Nesbitt: Would the absentee not have an agent in the district?


Frank Broadstreet Carvell: No, lots of men who own land are away; men are in the West, they are at the front or they are anywhere in the world. In a great many cases western lands are owned by people in the East. The railway company can honestly say: we have made diligent inquiry and have been unable to locate the real owner. It is only right that the landowner whose land is being

taken should have notice, or that every reasonable attempt should he made to give him notice.


Francis Cochrane: Would you suggest some amendment to cover it?


Frank Broadstreet Carvell: I can show one case
where the -addition of two words would materially affect it. We might say "-the judge may dispense with or shorten or lengthen the time."


Francis Cochrane: Why not change
" shorten " to " lengthen?"


Edward Mortimer Macdonald: There should be
some further words there providing for personal service upon the agent of the owner or something of that kind. I should -like the clause to be allowed to -stand.


Francis Cochrane: Will you prepare an amendment?


Edward Mortimer Macdonald: I will.
Section stands.
On section 220-Judge the sole arbitrator.


Frank Broadstreet Carvell: This is quite a change. It provides that the judge alone becomes the arbitrator, unless in a case where he is personally interested, when he can appoint another judge. That is -a complete change.


Francis Cochrane: The change is not
objectionable i-s it?	.


Frank Broadstreet Carvell: I am not so sure about that. I think the landowners in the vicinity are -perhaps better judges of the value of land, or the damages that would be sustained by a farmer through, having -a railway cro-ss his -property, than a judge would be. This is taking away altogether the principle of arbitration.	.


Francis Cochrane: The judge would have to hear the case.


Frank Broadstreet Carvell: Under the old law he
did not.


Francis Cochrane: He would under this.


Frank Broadstreet Carvell: He would under this.
I should rather leave the law as it stands, and let this matter remain in the hands of the arbitrators. A lot of horse sense is required in settling the amount of damage in such a case, and I would prefer to leave it to the arbitrators. I doubt very much if the ordinary judge would toe able to appreciate the probable- damage as well as would men living in the neighbourhood. I have had some experience with judges in

these things, and I must say that, from the standpoint of the owner, I would prefer the man who I know knows all about it. It is a very serious thing.


Edward Walter Nesbitt: Would not a judge in a ease of that kind call in witnesses to prove the value of the land? I cannot agree that the judge would not toe a pretty good arbitrator. ,The ordinary county court judge with us is a very ordinary chap before he -becomes a county court judge. He is generally a practising barrister, and has to do with these things.


Frank Broadstreet Carvell: Sometimes he does and sometimes he does not.


Edward Walter Nesbitt: He knows a good deal
about every de-al from a horse trade up.


Frank Broadstreet Carvell: Many of these men come from town-s and know nothing about damage to land.


Mr. LEVI THOMSON:: There are many eases where the county court judge would not be a suitable man. I do not think it would be advisable to make this change; it would -be much better to leave it to so-me arbitrator who, by reason of his particular knowledge, would be suitable. Some old county court judges would make very gotfd men, but remember that they are all new men at some time, and many of the new men coming in as county court judges are about the worst men you could get for that sort of work. The present law is better.


Francis Cochrane: I do not know; I feel like trusting the judge.


Joseph Elijah Armstrong: The judge has power to appoint arbitrators.


Edward Mortimer Macdonald: Under what section?


Levi Thomson: Only in case he is interested, and that is the time when he should not appoint another man.


Frank Broadstreet Carvell: Under the old law the
judge appoints one man and each side has a right to appoint one, and so you get a pretty fair tribunal.


Joseph Elijah Armstrong: The judge has the same power under this clause, has he not?


Frank Broadstreet Carvell: No. The judge is the
arbitrator under this law; if he is interested in the case, he appoints another judge.
I w-as not present at the meeting of the committee when these sections went through. I did not think for a moment

that you would take from the farmer the right to be represented by another farmer on that arbitration. I object very strongly to that course. The average judge has n,o conception of the amount of damage done to a farm by its 'being traversed by a railway.
I would not for $1,000 haye a railway come across my farm-I suppose the judge would give me about $100, because he would not appreciate what the presence of that railway line on my farm meant. A farmer whose land is traversed by a railway line has to cross that line perhaps half a dozen times each day during the summer-and it is there, not for a year or two years, but for all time, for him and for his children, after him. By this provision we are taking away, without justification, one of the rights which, under the Railway Act, the citizen has had during the last forty years.


Joseph Elijah Armstrong: Under subsection 2, the judge has the power to call witnesses.


Frank Broadstreet Carvell: Certainly.


Joseph Elijah Armstrong: And make a
thorough investigation into the matter.


Frank Broadstreet Carvell: I realize that, but I do not think that a judge is in a position properly to appreciate the amount of damage that is occasioned to a farmer because of the presence of a railway line on his land. The farmer should have the right to be represented in that court by one of his own people-one of his own peers, I might say, who 'appreciate the real extent of the damage done.


Edward Walter Nesbitt: They can give evidence to that effect.


Edward Mortimer Macdonald: In the case of land expropriated for Government purposes, the law formerly was that the value of the land and the damage sustained should be determined by a board of arbitrators, appointed permanently by the Dominion Government, who had long experience in dealing with cases of that kind. This method was abolished and a judge of the Exchequer Court was given jurisdiction in such matters. The judges of the Exchequer Court have become very competent in dealing with these cases, being familiar with the exceptional circumstances which, as the member for Carleton (Mr. Carvell) points out, arise in a great many cases. But when County Court judges deal with these arbitrations, they are dealing with a class of cases entirely different from those that ordinarily come before them. They are not, therefore, the best authorities for determining such matters. The change proposed is,
I think, a very radical one, and my hon. friend is quite right in pointing out its importance and suggesting that the matter should be carefully considered.


Joseph-Adélard Descarries: Under this section a complete change is proposed in the method of arbitration in matters connected with the operation of railways. Formerly provision was made for three arbitrators; under this law provision is made for only one who, in the province of Quebec for instance, is to be a judge of the Superior Court. Under subsection 2, the decision of that judge is to be final; there is to be no appeal. Under section 224, the party whose property is expropriated has the right to present three experts or witnesses on his behalf, while in civil cases the party to a litigation has the right to produce five witnesses. The man whose property is taken from him by a railway company does not get the benefit of many of the advantages given to him by the ordinary courts. No doubt a judge is able to understand such matters better than the ordinary arbitrator; but valuation is a question not of law, but of experience. Many judges are not experienced in the valuation of land; they are not familiar with all the disadvantages which result to a farmer through his land being crossed by a railway. In view of the fact that only three witnesses are allowed to the person submitting a claim, I think that the provision is not fair; the section should not pass as it stands.


Joseph Elijah Armstrong: I wish to read to the committee the reasons given by Mr. Price, who prepared these clauses, for making the amendments proposed in the Bill. He says:	.
Arbitration proceedings generally. This part of the Act has been almost entirely remodelled and very materially altered. There [DOT] has been much complaint both from the companies and owners about the unsatisfactoriness and delays and excessive cost of arbitration proceedings, and the unsatisfactoriness of the appeal and proceedings allowed to impeach awards.
The County Court judge, and in the province of Quebec, a Superior Court judge, is now made arbitrator ex-officio. The costs' of the arbitration are left in his discretion.
The absurd provision that if the award was not made within a time fixed, the amount offered by the company should be taken to be the compensation, is abolished, but provision is made to prevent delay.
The number of expert witnesses is limited to three for any one party.
The unjust provision that the owner could not appeal unless the award was over $600, even though he might be entitled to many times as much, is amended so that he may appeal when he claims more than $600.

Wider powers are given the court in the appeal and except where more than 510,000 is involved only one appeal is allowed and no other proceedings can he taken to impeach the award.


Mr. COPP:: It seems to be taking a very radical step to take away the right that the people have had in the past and to put this matter into the hands of a county court judge. While a county court judge may be a very creditable individual ;to try special cases, he may hold his court twenty-five or fifty miles away from where the railway crosses the land and where the damage accrues to the owner. All that he has before him is a plan or profile of the land; he does not understand the situation at all, and it would be very much better to have as arbitrator a person who knows the district and all the conditions. The Intercolonial railway goes through a man's farm close to where I live, and not a year passes but from three to five head of cattle aie killed. Last year this man had eight head of cattle killed on the railway crossing his farm.


Edward Walter Nesbitt: Was he paid for the
damage?


Arthur Bliss Copp: No, the Intercolonial did not pay him a dollar.


Edward Walter Nesbitt: Why?


Arthur Bliss Copp: Because they claimed they were not liable.


Frank Broadstreet Carvell: They do not pay for such damages.


Arthur Bliss Copp: I am positive that on that tarm alone during the past fifteen years twenty-five head of cattle have been killed. A judge living a distance away would not realize the great loss occasioned to a farmer residing in that particular locality. Where a railroad company wants to cross a farm with its railway it would be much better to have as arbitrator a man knowing the locality than any county court judge.


Edward Walter Nesbitt: Does not the Intercolonial pay for animals killed?


Arthur Bliss Copp: They pay nothing.


Francis Cochrane: That is not correct.


Arthur Bliss Copp: In ordinary cases of damage the facts are left to be decided by a jury composed of people selected from the locality in which the damage occurred, and that is generally conceded by all interested to be the better way of deciding the matter. It would be a mistake for this committee at this time to make this radical change in this section.


Edward Walter Nesbitt: I do not care whether this section is changed back again or not. Although I am not a lawyer, I have had to make for other people a good many settlements for land damages, and I have never yet had occasion to go to arbitration. I have always foui^d the railway companies very reasonable, if they are approached properly. I am much surprised that the minister, if he does not keep up his fences, does not pay damages for cattle killed.


Francis Cochrane: I think I can show by returns that the statement made was not correct.


Frank Broadstreet Carvell: That must be in other parts of Canada than in New Brunswick.


Francis Cochrane: No, in New Brunswick too.


Edward Walter Nesbitt: If a county court judge knows anything about his business, if he does not know the locality, he will visit it and make himself acquainted with it.


Mr. WILLIAM SMITH:: This question affects the owner of the land 'as well as the railway company. There are many things that affect the amount of damages, for instance, where the railway station might be located, where streams might have to be crossed, how the railway would run across a farm. While I have a good deal of confidence in our county court judges, many of them know very little about farm lands, and if a county court judge is to be the sole arbitrator, the whole matter is taken out of the hands of the owner of the land. The owner of the land should have some little say in the matter.


Edward Walter Nesbitt: He has.


Mr. STEELE:: I quite agree with the
hon. member for South Ontario (Mr. William Smith), the hon. member for Carleton (Mr. Carvell) and some others who have spoken on this matter. We ought to avoid putting into the Railway Act anything that will interfere with the rights of the owner of the land. I, perhaps, have as much experience as most men have with the disadvantages and inconveniences of getting into places across railway tracks, where the railway track crosses a farm between the home and the highway, and I would hesitate a long time before buying a farm with a track crossing between the farm buildings and the highway. Any railway company seeking a right of way should be compelled by arbitration to pay the owner of the land just and generous recompense for the privilege of crossing his farm, especially in that

way. A county court judge is not always to be relied upon to give a just judgment in matters of this character. Not intentionally would they be unfair, but such matters are out of their line of business, and in many cases they are quite unable to come to. a proper decision as to the value of the land which the railway company is asking for the privilege of crossing. The rights and interests of the farmer should be protected in a betteT way than, seems to be the case in this section.


Mr. SEXSMITH:: We should be very careful before we make the change proposed in this section. The great complaint comes from the corporation, not from the individual farmer. The farmer asks what he thinks is- a reasonable damage on account of a railway going through his property, and if the corporation thinks his price is a little too high, it may take two or three years before the farmer can get a board of arbitration and have the question decided. There has been a good deal of trouble on this acount in some districts, and the delay has never been occasioned by the farmer. I have no complaint to make about county court judges, but I do not think they are the proper people to appoint as the sole arbitrators in cases of this kind. Any farmer who has a railway crossing his farm knows what the damage is. The railway companies sometimes seem to think that all lands, fruit and farm, are the same, and that they can run through every part of a province- paying the .same rate of damages. The old arbitration was better, where the individual farmer had an opportunity of having appointed on the board a man knowing something about the local conditions, the value of the land and so on.


Joseph Elijah Armstrong: Might I call
the committee's attention to the fact that changing this section will mean the changing of ten or twelve other sections of the Bill?


Frank Broadstreet Carvell: That is simple. There
is another -branch to this. In many cases railway companies go through timber lands in -the rear of a man's farm. I do not know that that would apply to Ontario as much as to some parts in the East, but you would never get -a county court judge to go out into the woods, .and travel through the right .of way, and examine the damage done. It would be impossible.


Joseph-Adélard Descarries: A Superior Court
judge in Montreal would not go there.


Frank Broadstreet Carvell: If you have an arbitration composed of farmers, they will take the trouble to go and look over the right of way. I had a case where the company offered $110 damages for going through timber land, and the arbitrators went out to the district, took a competent man with them, counted the stumps, figured the amount ,of lumber that had been taken, and that farmer got $1,200 .and costs. He would never have got that much from a county court judge in the world, because the judge would not go and look at it, and if you told him there was that much damage, he would not believe it.


Francis Cochrane: But the farmer could take an expert out there, to value the damage.


Frank Broadstreet Carvell: But the judge would not believe it possible that the damage would amount to such a sum. ,In the case I referred to they brought in -a statement of the number of stumps, .and the diameter of them, and figured out the superficial feet, and there was a unanimous award of $1,200.


Francis Cochrane: The same evidence
could have been produced before a county court judge.


Frank Broadstreet Carvell: But the judge would
not believe there was that much lumber growing on the right of way.


Francis Cochrane: He could not help believing it.


John Albert Sexsmith: I must protest. It
seems to me there is no -advantage in leaving it in the hands of the county court judge. Why should it be left to him?


Francis Cochrane: To save expense.


John Albert Sexsmith: Why take it out of the hands of the arbitration board, which we have had in the past, and put it in the hands of county court judges? Who asked for it?


An hon. MEMBER:: The farmer.


John Albert Sexsmith: I guess not. The companies have asked for it, and they put up the excuse. I remember of cases where there was delay after delay. The farmer was for months and months trying to hurry it up, and the company, with all their money behind them, tried to keep it back, because they thought they should only pay a certain amount.


Edward Walter Nesbitt: That delay is fixed in a former section.


John Albert Sexsmith: If it is fixed, why take it out of the hands of the arbitrator, and put it in the hands of the county court judge, who, perhaps, was never on a farm in his life? If a farmer in the country employed an expert who had an idea of the local value of land, and an idea as well of the damage caused by the railway running across his place, and placed the case before a county court judge who had no experience in such matters, I think it would be a great mistake.


Mr. McCREA:: I think the majority of cases of this kind are settled between the parties without going to arbitration. If the railway company and the owner of the land can agree, they do not require to go to arbitration, but, in the event of having to go to arbitration, surely it cannot be argued that a judge, who perhaps lives fifty or sixty miles from the seat .of trouble, could have as good a knowledge of it as men who go on the ground and examine it. It has been said that companies usually have to pay more when the cases are tried before arbitration. I do not think it will work that way always. I think you can get a just valuation of the damage actually caused. It may be as often in favour of the company as in favour of the individual, but where you have three men selected, one by the railway, one by the owner of the property, and the third appointed by the two as umpire, I think will work well.


George Perry Graham: That is the old law.


Francis N. McCrea: It should remain as it is. It seems to me a very much more just way of settling a matter of this kind, where the men who are going to appraise the damage go on the ground and examine it. A judge of the Superior Court is not going to run around examining lands here and there, and he would not know anything about their value if he did. He may know the law, but he would not know much about the value of timber or farm land, and it seems to me to be a mistake to change from the old system in this particular case.


Mr. C. A. WILSON:: I think it is always dangerous to make exceptions. There is always better safeguard and more protection for parties interested if they have their disputes disposed of by the old law. As far as arbitration is concerned, in the province of Quebec I do not see that there aTe any dangers. There may have been complaints. We have had many complaints in regard to judges; that is the reason we have so many jurisdictions. We start from the 
jurisdiction of the simple justice of the [DOT]peace np to the Supreme Court of Canada, and then we go to the foot of the Throne, to the Privy Council. I do not think human justice has been so perfect as to please all parties in this country, nor in any other country in the world. Something has been said in regard to the question of costs. If hon. members will look at the Quebec code of civil procedure they will find that every party is well protected, and even the railway companies, who are seeking to have this Bill passed, will be sorry for it after it becomes law, because judges may render decisions that .appear favourable to them, hut may he adverse to their interests, and they may be tied up. Section 411 of the Quebec .code reads as follows:
The court, of its own motion, or upon the application of either party, or the judge upon the application of either party may refer to the decision of the arbitrators, any case of dispute between relations, concerning partitions or other matters of fact, which is difficult for the court to appreciate, and also any other cases, if the parties consent to it.
I wil-l not read 'the next section, but it concludes in this way:
They may not award costs, unless the court has empowered them so to do.
. So that, if the court should give power to the arbitration to pass a decree for costs, and if the costs .are exaggerated, as the hon. member for Jacques Cartier (Mr. Desearries) who is an expert in arbitration law, knows perfectly well, these costs may be reduced on a civil petition, and be brought down to adjust and exact figure. It seems to me we should retain the old .law, which is just as old as the first dispute which ever arose ini the country. The more we make exceptions in the law the more cases will crop up. Of course, if you go to the lawyers with your disputes, they will not complain.


Joseph-Adélard Descarries: In the province of Quebec', in a case where it is a question of damages, our judges never decide by themselves. They appoint experts who go over the locality to see for themselves what the damages are. In these cases of disputes with railways, if a judge of the Superior Court were asked to leave the bench, and go far away into the county by himself to ascertain the amount of damage on a certain property, he would refuse to do it.
By this law he will have only three witnesses to present the case before him. I think it is a great advantage to the owner when some one wants to take his land, that hr should be judged by his peers, by some

cne who knows the local conditions and all the advantages of which the owner will be deprived.


John Albert Sexsmith: Under the old law there were three arbitrators, one selected by the owner of the land, one by the company, and the third by the other two. What could be more fair than this? Under this Bill they are allowed to have three witnesses. I suppose the landowner would have to bring those witnesses out to see the land, then the judge could hold his court where he saw fit, and those witnesses would have to be,brought before the court, where they would be examined by the lawyer and so on. Every member of this House knows what that means. I think the old law was a great deal better and that it should be left to the arbitrators.
Section stands.
On section 222-Company may offer easement, etc.:


Frank Broadstreet Carvell: This simply provides that the company may offer an easement back to the landowner. It may be an under-crossing, or it may be an overhead crossing, or it may be a right of use of some kind. It does not make any difference what may be the nature of the court that arrives at the compensation, the principle is laid down there and they can work it out. Whether there is only one arbitrator, or whether there are three arbitrators, the principle is the same. Of course if there are three arbitrators, you will have to use the plural instead of the singular-"arbitrators" instead of "arbitrator."


[Stage Direction]
Section agreed to.
On section 223-Costs of arbitration:
Frank Broadstreet Carvell: If you change the law you will have to change this section, because subsection 3 provides that the arbitrator shall not be entitled to any fee beyond his actual expenses.


Mr. PROULX:: I would suggest that in cases where the amount asked does not exceed $500 there should be only one arbitrator. I have had cases in which only small amounts were involved, and the costs ate up pretty much the whole compensation paid by the company. The proceedings lasted over several days and a great deal of the evidence had to be given through an interpreter.
Section stands.
On section 224-proceedings of arbitrator:


Francis Cochrane: That is also in regard to the calling of witnesses. They want to call
219J
as many witnesses as they wish, and put on all the expense they can. This section will have to stand.


Frank Broadstreet Carvell: I do not Think so. It is copied from the Exchequer Court Act, and it has worked very satisfactorily there. It only applies to three witnesses who are giving their opinions. It does not apply to facts. If you wish you may have half a dozen witnesses to swear to the facts.


Charles Avila Wilson: It means if there is only one arbitrator theoretically, practically there will be seven; three on each side, and the arbitrator.


Joseph-Adélard Descarries: It means there will be only three witnesses, or experts.


Frank Broadstreet Carvell: Three experts.


Joseph-Adélard Descarries: Three witnesses or experts, according to the French version; which says:-
IVarbitre doit interroger sous serment ou sous affirmation solennelle . les tdmoins qui comparaissent devant lui, mais il ne peut 6tre appeld, de la part d'une partie quelconque, plus de trois experts ou tCmoins exposant leur opinion. Ndanmoins, l'arbitre peut, du con-sentement des parties, decider l'affaire, aprfis avoir vu ou inspects les terrains sans examiner de tdmoins; mais il peut 6tre permis a, toute partie ou a son reprdsentant, dans ce cas, de signaler et d'expliquer les cboses qui parais-sent importantes pour sa cause.
That is, the arbitrator must interrogate under oath or under solemn affirmation the witnesses who appear before him, tout he is not allowed to call more than three experts or opinion witnesses on toehalf of one party.


Frank Broadstreet Carvell: Of course, that would be different from witnesses who were swearing to facts. You could have any number of witnesses on the facts.


Joseph-Adélard Descarries: If that be so it is contrary to what is ordinarily done before the courts, where there is only one judge. A witness has not the right to give his opinion on the merits of the case, which is solely within the province of the judge.


Frank Broadstreet Carvell: I will explain the difference. Say there is a farm crossing, which may be over a fill, or through a cut. .You might produce three witnesses to swear what in their opinion would be the damage to the remainder of the farm because the owner would toe compelled to operate it over that .embankment or through that cut. Under this Act you are limited to three witnesses in regard to that, but if there were any question of fact to be decided you could bring as many witnesses as you wish.

This clause has been taken from the Exchequer Court Act and my experience with the Exchequer Court has been that it works out very satisfactorily. In the Exchequer Court you have a judge who is trained to decide this class of cases. If it were possible to have Judge Audette to try all these cases I would never ask for an arbitration, because he is a gentleman, who has been trained for many years and who, after examining two or three witnesses and getting a description of the locus, can tell you what the damage is; but, unfortunately, a great majority of the county court judges have not had that experience.
On section 225-powers of arbitrator, etc.:


Joseph Elijah Armstrong: In the first line the words "in any case" are inserted and in the third line of paragraph (a) the words "or other thing." The rest of the clause is the same as section 201 of the old Railway Act.


Charles Avila Wilson: Why are these words inserted?


Joseph Elijah Armstrong: To make the meaning plainer.


Francis Cochrane: This will have to stand the same as section 221.


Edward Walter Nesbitt: There were a lot of
changes in section 224.


Joseph Elijah Armstrong: Yes, but that was different. Section 225 is practically the same as the old Act.


Edward Walter Nesbitt: But it is "arbitrator" there.


Joseph Elijah Armstrong: Arbitrators.


Frank Broadstreet Carvell: There is no change actually between this section and the old Railway Act.


Charles Avila Wilson: As the question of grammar arises in connection with section 221,
I would suggest that as 221 has been allowed to stand, the consideration of the whole chapter should be suspended.


Francis Cochrane: Section 221 stands.


Charles Avila Wilson: The chapter should be allowed to stand in order that the phraseology may be changed from the singular to the plural.


Francis Cochrane: Section 221 stands.


George Perry Graham: But there are a dozen clauses depending on it. "He" will have to be changed to "they."


Frank Broadstreet Carvell: There is no real change except in section 221. The other is merely a matter of changing the singular to the plural.


Charles Avila Wilson: The change in that section might lead to some other amendment. If the principle is recognized in that section, I do not see any reason why we should spend time on this clause.


Edward Walter Nesbitt: It would be better to allow them all to stand until we get these words changed.


Joseph Elijah Armstrong: Yes; you will have to allow them to stand down to section 234.


Frank Broadstreet Carvell: For fear that I will not be here when section 232 comes up, I would like to call the attention of the minister to what has given the solicitors a great deal of trouble. Section 232 deals with the question of appeals. It provides that where such party ini his notice of appeal claims more than $600 or objects to some easement or other thing approved by the arbitrator without his consent under section 222, appeal from the award upon any question of law or fact may be taken. That has created an enormous amount of litigation in Canada. I have always felt that there should not be an appeal on questions of fact. There was a case tnat went to the Privy Council about 1895, and the Privy Council decided that unless the arbitrators had proceeded upon some wrong principle of law they would not review the question of fact; they would allow that to stand as it left the arbitrator, but they would review the question of law. That was followed for quite a number of years and the courts took the ground that they were bound by this case. But within recent years all our courts have sought on one ground or another the right to depart from that very salutary principle" laid down in that case, and to hear argument and decide questions of fact as well as law. There was a case in Alberta within the last four or five years that went to the Supreme . Court of Canada. There wae a reversal of the finding on a number of questions of fact and the case proceeded until finally the Supreme Court confirmed the decision of the arbitrators. In my own province our courts for a long time held they had no right to review questions of fact, but in the last case' brought before the courts they upset what had been the law for the past twenty years, turned down the findings of the arbitrators and found new facts for them-

selves. This has caused a great 10 p.m. deal of litigation and trouble in Canada. I hope the minister will take the trouble to consult with the proper officials as to whether it would not be in the interest of all parties concerned if questions of fact were left out entirely and appeals were confined to questions of law.


Francis Cochrane: What if they erred in the facts?


Frank Broadstreet Carvell: Questions of fact must be settled by some human mind or minds, and I think the ordinary arbitrator has just as good a mind as the Supreme Court when it comes to the question of fact as to how much damage the farmer has sustained by a railway going across his land. There is no one who is better able to decide those damages than the man who is on the ground and knows the conditions. I would like to see the law so changed that the Supreme Court, or any other appeal court, would have no right to review questions of fact. I entirely agree with Mr. Price in restricting appeals as much as possible. I am altogether in sympathy with subsection 3 of this clause, in which he provides that there shall be no appeals. In Ontario a man could appeal to the High Court or to the Court of Appeal. The Supreme Court decided not many years ago that as there was no appeal from the High Court to the Supreme Court, therefore, if a party decided to go direct from the appeal judge to the High Court, he tpuld go no further. But if, instead of going to the High Court, he went direct to the Court of Appeal, he could then appeal to the Supreme Court and go from that to the Privy Council. That is actually what has happened. There are a great many incongruities as to this question of appeal. There have been too many appeals in the past. I would not only like to see the provision of subsection 3 carried out, but I would like to see the right to deal with the question of fact taken away, allowing the provision as to the question of law to stand.


Charles Avila Wilson: I do not agree with the remarks of my hon. friend from Carleton (Mr. Carvell), although I have the greatest respect for his opinion on the question. I see no reason why railways, who are so fully protected in this country, should have more protection in this respect than any other organization or any other citizen. The appeal is a great safeguard, and I believe in the clause as it stands.


Frank Broadstreet Carvell: It is the railway company that always exercises the right of appeal. If you examine the reports, where you will find one appeal by a farmer you will find a hundred by the railway company.


Charles Avila Wilson: Not necessarily, both parties may feel ^aggrieved by the award of the arbitrators.	[DOT]


Frank Broadstreet Carvell: I am asking the nlinister to allow this clause to stand, and to consider a real question that should be decided by the minister rather than by anybody else; that is the taking away of the appeal on questions pf fact. For a great many years after the decision of the Privy Council, the courts refused to interfere with findings of fact, but within the last four or five years they have entirely thrown that to the winds and now every court in Canada is reviewing questions of fact as well, as of law.
Section stands.


Joseph-Adélard Descarries: In article 218, in'
the French version, there is an evident misprint. The word " encourir " has been printed where it should evidently be " encouru." I would move that the section be amended so as to read " encouru." Amendment agreed to.
On section 241-Procedure upon application for warrant in case of resistance:


Frank Broadstreet Carvell: An improvement has
been effected by providing that the owner of the land shall have the right to bring on the arbitration; formerly he did not have that right. But if the owner of the land says to the railway company: I do not want you on my land until you settle the damages, the railway company can, under the existing law, pay into court fifty percent more than the amount they have offered as compensation and secure from the judge an order enabling them to tear down a man's fences, turn his cattle out on the road and disturb his property generally. I have always contended that the judge should not be enabled to give this. order under these conditions, because a railway company may offer an amount which is grossly inadequate, pay an additional fifty per cent, and then take possession of the land. The fixing of the amount of which due notice should be given should be left to the discretion of the judge.


Joseph-Adélard Descarries: In response to tbs' demand of the company, the landowner/ should have the right to present either his:

own affidavit or the affidavit of an expert, setting forth his opinion as to what the valuation should be. The judge, who would have beside him the two sides of the case-the company's side and the owner's side-concerning the value of the property, would then be in a better position to come to a sound decision in the matter.


Charles Avila Wilson: Would my hon.
friend favour the giving of security by the company in lieu of the payment of an *extra 50 per cent?


Joseph-Adélard Descarries: I would suggest that, instead of limiting the judge to the acceptance of the extra fifty per cent, we leave the matter open


Frank Broadstreet Carvell: I find, upon a careful reading of the Act, that the judge has the right to demand more than fifty per cent from the company. The provision is that the amount shall not be less than fifty per cent. That takes away .much of my objection.


Joseph-Adélard Descarries: But the land owner should have the right, as I say, to present affidavits setting forth what he considers to be the proper valuation of the land.


Francis Cochrane: He can present any
evidence he likes.


[Stage Direction]
Section agreed to.
On section 244-respecting wages:
George Perry Graham: Subsection 1 of this section agrees with the general Act and is the basis of the fair-wage clause in contracts. Subsection 2 is as follows:
In the event of a dispute arising as to what is the current or a fair and reasonable rate, it shall be determined by the minister, whose decision shall be final.
In times past a question has arisen between the Department of Labour and the Department of Railways and Canals as to who should deal with the application of this section. When this section was first inserted in the Railway Act, Canada had not a Labour Department or the machinery which is now available for the settlement of disputes. I suggest that this question of wages be left as are other matters of a like character, with the Department of Labour.


Edward Mortimer Macdonald: Why should there
not be a fair-wage schedule :as there is in regard to all Government contracts?


Mr NESBITT:: Why not leave it to the board?


George Perry Graham: The practice has been to put a fair-wage clause in the contracts? I think that the interpretation and enforcement of this fair-wage clause might well be handed over to the Labour Department.


Francis Cochrane: The Minister of Railways would have to enforce it.


Joseph Elijah Armstrong: The minister
would have the responsibility.


George Perry Graham: I am not sure ,of that.


Francis Cochrane: 
Francis Cochrane: I have always accepted what the Labour Department has recommended.


George Perry Graham: There is no provision here to refer the matter to the Labour Department The provision is that the Minister of Railways shall determine the matter himself.


Mr. SINCLAIR:: The suggestion is a very good one. The Minister of Labour will have all the information, and he will be in a better position to decide. This Section can be amended by simply adding after the word "Minister" in the last line, the words "of Labour."


Francis Cochrane: I have no objection to that.


George Perry Graham: It would be better to leave the matter over until to-morrow, and not to make the change too hurriedly.
Section stands.
On section 251-Passageway for public:


Joseph Elijah Armstrong: Subsection 6, passageway for public, is new. This was fully discussed before the committee.


Frank Broadstreet Carvell: And fully opposed by the railway companies.


Joseph Elijah Armstrong: Yes, and accepted bv the committee.
Section agreed to

On section 252-Leave of board:


Joseph Elijah Armstrong: The word "railway" is inserted before the word "company."


George Perry Graham: Why is the word "railway" inserted?	[DOT]


Frank Broadstreet Carvell: In section 2, the interpretation section, subsection 4 says:
"Company" includes a person, and where not otherwise stated or implied means railway company unless immediately preceded by "any", "every" or "all," in which case It means every kind of company which the context will permit of; and "railway company" or "company" when it means or includes railway company.
Therefore, in order to get away from a telephone company, or a telegraph company, or something of that kind, we insert the word " railway " so as to show that a railway company is referred to.


[Stage Direction]
Section agreed to.
On section 255-Railway on highway:
Joseph Elijah Armstrong: In the third line after the word " authorized " these words are inserted:
But shall not, without such leave, be carried upon, along or across any existing highway. Provided that the company shall make such compensation to adjacent or abutting land owners as the Board deems proper.
In line 13 of the same section, after the word " town," there is inserted this provision :
Provided that where leave is obtained to carry any railway along a highway the Board may require the company to make such compensation if any to the municipality as the Board deems proper.
This section was very fully discussed, and these important changes were mad':: on behalf of people interested along the highway. Section agreed to.
On section 257-Powers of Board as to existing crossings.


Joseph Elijah Armstrong: Subsection 3 is new.


Michael Steele: Is any additional provision made for the protection of crossings in the country districts? In the country there are some very had crossings, and accidents are continually happening, hut it seems to be impossible for the municipalities and the railway companies to come together for the protection of such crossings.
Mr. .COCHRANE: The Board has the right to order crossings, and every year an amount is placed in the Estimates to pay for them.


Michael Steele: There does not seem to be any provision if the municipality and the railway company, after the intervention of the Board fail to agree to protect the public who are still suffering from the dangers and accidents. It might be well to make the . matter compulsory.


George Perry Graham: Under the present Act the Board is fully authorized to order any protection it thinks proper at any railway crossing. Its additional power is that, if it sees fit, it may apportion the cost between the municipality and the railway company. Section agreed to.
On section 258-Preventing obstruction of view:


Joseph Elijah Armstrong: Mr. Price says that this section provides a more simple procedure for preventing obstruction and fixing compensation for what may be ordered to be done than formerly. It is a reconstrur tion.


George Perry Graham: This is a new clause.
They cannot put up a new building any closer that the law says.


[Stage Direction]
Section agreed to.
On section 262-Appropriation for safety of public at highway crossings at rail level:
Joseph Elijah Armstrong: There is a
change in the third line. Instead of the words "one thousand nine hundred and ten" being used the words are 'one thousand nine hundred and seventeen".


George Perry Graham: There is an error in the reprint of that section.


Joseph Elijah Armstrong: We amended it to make it read "one thousand nine hundred and seventeen." That makes it extend ten years from now.


John Howard Sinclair: It is a misprint in the Bill before us, but we amended it in committee, and I think we can amend it now.


Francis Cochrane: I am advised the
committee had no power to amend it without a resolution.


George Perry Graham: When I had the honour of introducing the Railway Bill some years ago, I introduced an amendement under resolution, if I remember correctly, and I think the minister will have to introduce a resolution to amend this section, because it possibly means an extra expenditure of $20,000.


Joseph Elijah Armstrong: Let it stand.
Section stands.

On section 266-Inclination of approach:


Joseph Elijah Armstrong: That is struck out in the Bill before me.


Edward Walter Nesbitt: It is the old 268.


George Perry Graham: Section 267 in the draft Bill is struck out.


Joseph Elijah Armstrong: The old 267 is struck out of the new Bill entirely.


George Perry Graham: And 268 becomes 266.
On section 269-if drainage insufficient:


Joseph Elijah Armstrong: Paragraph (o) is reconstructed, and reads as follows: Whenever,-
(c) The railway company desires to obtain means of drainage, or the right to lay water pipes or other pipes temporarily or permanently through, along, upon, across or under any lands adjoining or near the railway.
Iwo lines below that the words "or of the company" are added, and the words "or permit are added. In subsection 2 the word "shall," -after the word "and" in the fifth line, is replaced, with the word "may," and the words "fix the compensation, if any, which should be paid to any owner injuriously affected, or may direct the compensation, if any, to be determined under the arbitration sections of this Act," are new.	-


Frank Broadstreet Carvell: It all means that the board has the right to provide for efficient drainage.


[Stage Direction]
Section agreed to.
On Section 277 Board may order railway to be opened:
Joseph Elijah Armstrong: That js new.


George Perry Graham: Would that mean that the board could compel the operation of a road yet technically .under construction.
xvxr. COCHRANE: I think so.


George Perry Graham: I suppose that is to
apply to railways which very often arc kept technically under the contractor for a long time, although practically finished for operating purposes?


Francis Cochrane: Yes.


[Stage Direction]
Section agreed to.
On Section 288-Animals not to be at large near highway crossings:
Joseph Elijah Armstrong: That is the
same as the old section.


Frank Broadstreet Carvell: I pointed out to the
committee that I viery much doubt the 
power of this Parliament to provide that cattle should be impounded, say, in the province of New Brunswick. They may be handed over to the proper officials, but it is a different question when you come to impound them.


John Albert Sexsmith: I was always under
the impression that the impounding of cattle was a matter for the municipalities.


George Perry Graham: Municipalities get their pow-eT from the province.


John Albert Sexsmith: In,this section we have stepped in over the heads of the municipalities.


George Perry Graham: One effect of this is
possibly to provide, not so much for the impounding of the cattle as that, if the section were violated and the cattle killed, the man who owned them could not claim damages for them. There are other clauses dealing with the killing of 'live-stock on the track. This refers only to. cattle on the highways.


John Albert Sexsmith: Have we the right to prohibit cattle from running on the highways ?


Frank Broadstreet Carvell: No.


John Albert Sexsmith: Then why do we attempt it?


Edward Walter Nesbitt: Just for a bluff.


John Albert Sexsmith: It seems to me it is a very poor bluff.


Frank Broadstreet Carvell: While this Parliament has not the right to prohibit cattle from running on the highway, the courts have held that if a man allows his cattle to run upon a highway within half a mile of a railway crossing, unless they are in charge of some competent person, and an accident happens, it is considered as evidence of negligence on the part of the owner of the cattle, and he is not entitled to recover from the railway company.


John Albert Sexsmith: But, if a man's cattle break out of the field?


Frank Broadstreet Carvell: That is provided for in another section, which practically states that the railway company must fence their right of way, protect it with cattle guards, and insure the farmer that his cattle will not get on the right of way.


George Perry Graham: But, the farmer must keep the gates shut.


Frank Broadstreet Carvell: Of course. Heretofore, if it could be shown that the farmer was

guilty of any negligence whatever, he could not recover for the loss of his cattle. Supposing a farmer allowed his cattle to run around his buildings-did not have them closed up-and they got on the railway, even if there were no cattle guards, the courts held that, inasmuch as the farmer was negligent, he had no right of action against the railway company. This has been changed.


[Stage Direction]
Section agreed to.
On section 279-thistles and weeds to be kept cut.
Samuel Francis Glass: What would be the proper method of procedure if a farmer found his lands were being menaced by the spread of noxious weeds?


Edward Walter Nesbitt: Write to the board.


Samuel Francis Glass: If those noxious weeds are allowed to remain for a week or ten days, at a certain season of the year, the menace becomes serious. I understood my hon. friend from Garleton (Mr. Carvell) to say this afternoon that, notwithstanding the fact that a municipality may have passed by-laws affecting this same matter, they have no jurisdiction so far as the right of way of the railway is concerned.


Frank Broadstreet Carvell: Neither the municipalities nor the provincial authorities have anything to do with the railway's right of way. That is entirely controlled by this Parliament.


George Perry Graham: It would be a good idea if the railway commissioners would issue orders for the cutting of weeds at a certain time. If they let them go a week longer than they should they might as well not cut them at all as far as the spreading of weeds is concerned.


John Albert Sexsmith: I thing that would be very wise. The railways have been very good in keeping their right of way properly cut.


Edward Walter Nesbitt: Better than the municipalities have.


John Albert Sexsmith: Yes very much better, but yet the railways are the greatest distributors of foul weeds that we have in the country. You will find grain from the West strewn all along the road and I know of scores of foul weeds brought into the country as a result of grain sifting out of the cars en route. The railways generally make one cutting do if possible, but if the
Board would jog their memory about looking after these foul weeds instead of allowing them to grow up and go to seed it would be .well.
On section 281-Fire protection:


Joseph Elijah Armstrong: There are several important amendments in this section, particularly paragraph (e) requiring the company to make reports and returns of fires occurring upon or near its right of way. Subsection 2, provides that:
Any such orders or regulations may be made applicable during or after the construction of the railway, or during such time and in such manner as the Board deems proper.
I think it may be wise to place on Hansard the statement made by Mr. Price in regard to this section. It is as follows:
This, for the most part, is a rearrangement. Paragraph (e) has been added giving the Board power to require the company to make reports of fire. Strangely the provisions relating to fire guards were duplicated in part in 1-2 George V, cap. 22 s. 10 (4) and old section 30 (f). For provisions respecting proper equipment *of locomotives, see section 289 (f). By an addition at the end of subsection 1 it is now expressly stated that the orders ' and regulations may be made to apply during construction of the railway as well as afterwards. This power had already been assumed by the Board in the making of its regulations, hut there was some doubt expressed on the point.


John Albert Sexsmith: Are the railway companies compelled to supply fire rangers?


Francis Cochrane: They are in a new
country.


John Albert Sexsmith: They do considerable damage in the old country.
On section 282-Packing:
Mr, J. E. ARMSTRONG: That is the same as the old Act except that subsection 5 is struck out.


George Perry Graham: Why?


Joseph Elijah Armstrong: Subsection 5 is as follows:
The Board may, notwithstanding the requirements of this section, allow the filling and packing therein mentioned to he left out from the month of December to the month of April in each year, both months included, or between any such dates as the Board by regulation, or in any particular case, determines.
This was fully discussed by the trainmen and different organizations who came before the committee.
On section 285-Notice to be sent to Board:
/


Joseph Elijah Armstrong: The following words have been added to the section:
Any conductor or other employee making a report to the company of the occurrence of any such accident, shall, as soon as possible after such accident, notify the Board of the same by telegraph.


George Perry Graham: Under the old Act all he had to do was to notify the company?


Joseph Elijah Armstrong: Yes. This is an added provision that the railway' men requested.
On section 287-Orders and regulations of Board:


Joseph Elijah Armstrong: In the 8th and 9th lines the committee struck out the words " and may in any case limit the rate of speed of trains and locomotives as it deems proper." At the end of paragraph (g) the words " all persons travelling upon His Majesty's services " are added. Paragraph (h) is entirely new; it says:
With respect to the length of sections required to be kept in repair by employees of the company, and with respecf to the number of employees required for each section so as to ensure safety to the public.
A portion of paragraph (i) is new. After the word " trains " the following words are added " with a view to the safety of the public and of employees." (j) Is entirely new:
Limiting or regulating the hours of duty of any employees or class or classes of employees, with a view to safety.


George Perry Graham: In the other sections
you say " with a view to the safety of the public and employees " while here you only say " with a view to safety." The obvious intention of this is that no one should be overworked so that the safety of the employees and of the public shall not be endangered. We do not say that in this paragraph, we just use the word "safety." Would it be worth while to add "safety of the public and employees "?


Joseph Elijah Armstrong: Do you not think that the wording of the first part of paragraph (j) would indicate the meaning?
Limiting or regulating the hours of duty of any employees or class or classes of employees, with a view to safety.


George Perry Graham: Safety of whom?


Joseph Elijah Armstrong: Of these employees.


George Perry Graham: The purpose of paragraph (j) is to limit the number of hours

of duty with a view to the safety of the public and of the employees. If you overwork an employee you endanger the life of the employee just as much as you do that of the public. To be uniform why not say "the safety of the puiblic and of employees " in this case just as well as in the others?


Francis Cochrane: There is no objection.


Joseph Elijah Armstrong: You think it does not mean that now?


George Perry Graham: No more than in the
other clauses, and if we make a distinction in this one, some hair-splitting lawyer m.ay say that if it was intended to protect the safety of the employees and the public we would have said so as we did in the other clauses. I would move that in paragraph (j) the words "to the public and to employees " be added after the word " safety " in the third line.


Michael Steele: This clause deals quite
effectively with the protection of the public and of employees against accident, and there is some reference to the health of employees but I see nothing to protect the health and comfort of the public. With the advance of sanitation in the last fifteen or twenty years, the railways should be compelled by this Act to keep up-to-date in that respect. In many of our best trains the sanitation is all that could be desired, but on some of the local trains on the branch lines the lavatories are unfit for human being to occupy. This is a matter of sufficient importance to have a clause inserted giving the Board the power to compel the railway companies to keep all portions of their cars up-to-date, thoroughly clean, and pure.


Francis Cochrane: I think the Railway
Board have power to deal with that now by regulation.


Michael Steele: Is it especially referred
to in the Act? I think it is of sufficient importance to have it specially mentioned in the powers of the Railway 'Commission. In that way it could be more effectively dealt with.


Herménégilde Boulay: I desire to move an
amendment to section 287 obliging railway companies operating passenger trains in Quebec to have on those trains only employees who understand both languages. I have seen rows and disputes of all kinds, and have sometimes seen passengers ejected from trains because they were not understood by the train -men; and I have seen others unable to make themselves, understood by ticket agents, so that they had to

call in interpreters. I think it would be well to give authority to the commission to oblige such companies to have on their passenger trains only men understanding both languages. This would work favourably for those speaking either language and it would be a great improvement in the operation of the railways in Quebec. Section 302 compels the companies to have their circulars and everything printed in both languages and it seems to me a great anomaly to have the men who are supposed to see to the observance of these circulars, laws or rules, unable .to make the passengers understand them. There is no railway company in Quebec that cannot afford to do this among their personnel.


Joseph Elijah Armstrong: This clause is of vast importance to the railway men, that is the men who are operating the trains. This clause has been carefully drafted to meet their views. They did not express a desire for such a provision.


Herménégilde Boulay: We could add that to section 302. This would be binding on the company only.


Joseph Elijah Armstrong: Have the railway employees ever suggested anything of the kind?


Herménégilde Boulay: It is not the employees who complain, but the passengers.


Joseph Elijah Armstrong: Possibly when we come to 'section 303 we could investigate it further.


William Wright: Would it not be better to confer that power upon the Railway Commission? Trains made up in a foreign country, the United States for instance, might come through a portion of the province of Quebec and take on a new crew at a divisional point. Common sense should regulate all such matters. The commission could be empowered to make such regulations as they might deem wise.


[Stage Direction]
Section agreed to.
On section 289-Payment of wages:
Joseph Elijah Armstrong: This is an important amendment. The railway men are very anxious that this section should pass.


George Perry Graham: What became of the Senate Bill dealing with this matter?


Joseph Elijah Armstrong: It was withdrawn, owing to the fact that this Bill was dealing with the matters dealt with in their Bill.


Herménégilde Boulay: Will this apply to Government railways?


Francis Cochrane: Yes.


Herménégilde Boulay: This will surely increase the expense of the managing department. If this provision is adopted the railway companies will have to pay out more money each month. I can understand that employees who receive small wages should be paid fortnightly^ but I do not think that those who get big salaries should be paid oftener than once a month.


Francis Cochrane: I move that the words " On and after January 1, 1918 " be inserted at the beginning of this section.


[Stage Direction]
Amendment agreed to, and section as amended agreed to.
On section 291-Penalty may be prescribed:
Joseph Elijah Armstrong: This section was fully discussed in the committee. At one time it was decided to strike out certain portions of it, but after discussing the matter at some length the committee decided to leave the section as it was.


[Stage Direction]
Section agreed to.
Progress reported.
On motion of Hon. Mr. Cochrane the House adjourned at 11.27 p.m.
Tuesday, July 17, 1917.