Judgments

[2001] 2 F.C. 141

A-537-99

Canadian National Railway Company (Appellant)

v.

Mark Brocklehurst/Carol Syrnyk, Alison J. Burnham, Tessa M. Chalmers, Rob Kerr, Peter & Margaret Krysmanski, Mary Kay Martin, Peter D. Pellier (Respondents)

A-729-99

Canadian National Railway Company (Appellant)

v.

Randy and Sue Taylor (Respondents)

A-741-99

Norfolk Southern Railway Company (Appellant)

v.

Randy and Sue Taylor (Respondents)

Indexed as: Canadian National Railway Co. v. Brocklehurst (C.A.)

Court of Appeal, Richard C.J., Décary and Sexton JJ.A.—Ottawa, November 7 and December 7, 2000.

Transportation — Canadian Transportation Agency’s jurisdiction — Appeals from Agency orders relating to complaints about noise from railway yards — Appeals allowed on ground Agency not having jurisdiction to deal with such complaints — Agency relying on combined effect of 1996 Canada Transportation Act, ss. 37, 95 in asserting jurisdiction — S. 37 giving Agency jurisdiction over anything prohibited, sanctioned, required under any Act administered in whole or part by Agency — S. 95 enumerating “general powers” of railway company — Neither referring to nor giving any power to Agency — When Parliament intended to give Agency jurisdiction, did so expressly — Cannot assume absence of reference to Agency in s. 95 not intended — S. 95 not implicitly conferring some jurisdiction on Agency — Not conferring jurisdiction on Agency with respect to noise complaints — Agency arguing shunting railway cars, idling locomotives necessary for operation of railway, within s. 95(1)(e); s. 95(2) requiring as little damage as possible; s. 26 giving Agency jurisdiction to require railway companies to make as little noise as possible — Argument s. 95 enumerating all powers of railway companies ignoring long history, evolution of Canadian rail transportation legislation which distinguished between provisions granting “general powers” for purpose of constructing railway, those regulating day-to-day operations — Under new Act, Agency no longer exercising control over day-to-day operations of railway companies, general powers of railway companies no longer described in railway, special acts, s. 95 couched in terms similar to predecessors — Agency’s role diminished — Obligation to do as little damage as possible related to “general powers” — Powers enumerated in s. 95(1)(a) to (d) relating to use of adjoining lands by railway companies; not to use, enjoyment of those lands by owners, occupiers — Unnecessary if s. 95(1)(e) omnibus provision encompassing all possible powers needed for day-to-day activities of railway company — S. 95(1) not addressing liability of railway companies arising out of day-to-day operations — Noise complaints not relating to exercise by appellants of general powers.

Railways — Appeals from Canadian Transportation Agency orders relating to complaints by residents concerning noise from railway yards — Agency not having express, implied jurisdiction to hear such complaints — History, evolution of Canadian rail transport legislation examined — Distinction between provisions granting “general powers” to railway companies for purpose of constructing railway, those regulating day-to-day operations — Under 1996 Canada Transportation Act, Agency no longer exercising control over day-to-day operations of railway company, general powers of railway companies no longer described in railway, special acts, s. 95 couched in terms similar to predecessors — Agency’s role diminished — S. 95 not addressing liabilities of railway companies arising out of day-to-day operations — Noise complaints not relating to exercise of general powers — Complainants could sue at common law for nuisance.

These were appeals from Canadian Transportation Agency orders relating to complaints by residents concerning noise, smoke and vibrations caused by shunting railway cars in railway yards. Prior to the coming into force of the Canada Transportation Act in 1996, where no lands had been taken, a person could only advance a complaint about railway smoke, noise or vibrations through a common law action of nuisance. The Agency’s predecessors therefore never asserted jurisdiction over such complaints. In asserting jurisdiction now, the Agency and the respondents relied on the combined effect of sections 95 and 37 of the 1996 Act. Section 37 permits the Agency to determine a complaint concerning anything prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency. Subsection 95(1) permits a railway company to exercise the powers enumerated therein, including “anything else necessary for the construction or operation of the railway” (paragraph 95(1)(e)). Subsection 95(2) provides that the railway company shall do as little damage as possible in the exercise of the powers. Subsection 95(3) requires the railway company to restore as nearly as possible to its former condition anything mentioned in paragraph 95(1)(b) or (d) that it diverts or alters. And subsection 95(4) requires a railway company to pay compensation to a person who sustains loss or damage from the exercise of the powers.

The issue was whether the Canadian Transportation Agency had jurisdiction to deal with the complaints herein.

Held, the appeals should be allowed and the orders appealed from quashed for lack of jurisdiction.

Per Décary J.A. (Richard C.J. and Sexton J.A. concurring): Since the question addressed was one of pure jurisdiction, no deference was owed to the view of the Agency.

The Agency argued that whenever the Agency administers part of an Act it is deemed to be administering the entire Act, and is the appropriate authority unless the Act expressly says otherwise. The 1996 Act does not confer on the Agency the power to administer the whole Act. Section 95 defines the “general powers” which a railway company may exercise, but neither refers to the Agency nor gives any power to it. When Parliament intended to give the Agency jurisdiction over parts of a statute, it did so expressly. The 1996 Act, the Railway Safety Act and the Railway Relocation and Crossing Act were drafted with such minute detail in so far as the jurisdiction of the Agency is concerned that it cannot be assumed that the absence of any reference to the Agency in section 95 was not intended. Section 95 does not implicitly confer some jurisdiction on the Agency.

But even if section 95 conferred some jurisdiction on the Agency, it did not vest the Agency with jurisdiction over noise complaints. The respondents and the Agency argued that the general powers of a railway company are all enumerated in subsection 95(1) and that, as shunting or idling railway cars and locomotives are “necessary for the … operation of the railway”, such activities are captured by paragraph 95(1)(e). As railway companies “shall do as little damage as possible” pursuant to subsection 95(2), making as little noise as possible becomes something that they are required to do and the Agency has jurisdiction pursuant to section 26 (the Agency may require a person to refrain from doing any thing that the person is prohibited from doing under any Act) to require railway companies to make as little noise as possible. This argument ignores the history and evolution of Canadian rail transportation legislation when it suggests that section 95 contemplates all the powers that are exercised by railway companies. Throughout its long history, Canadian railway legislation has distinguished between provisions granting “general powers” to railway companies for the purpose of constructing a railway, and provisions regulating the day-to-day operations of a railway company. But under the new Act the Agency no longer exercises control over the day-to-day operations of railway companies, the general powers of railway companies are no longer all described in railway acts or in special acts, and section 95 is couched in terms similar to those of the provisions it replaces. All these factors point to a diminished role for the Agency. The obligation of a railway company “to do as little damage as possible”, to restore “as nearly as possible” and to pay “compensation” has always been and still is related to the exercise by a railway company of its listed “general powers”.

The suggested interpretation of paragraph 95(1)(e) whereby “do anything else necessary for the construction or operation of the railway” would encompass day-to-day operations such as shunting of railway cars and idling of locomotives, is contrary to the context of the legislation, and to a literal interpretation of section 95. Paragraphs (a), (b) and (d) refer only to works done “across or along the railway” and paragraph (c) refers only to water works “through or under land adjoining the railway”. In this context, “anything else necessary” in paragraph 95(1)(e) refers to any other type of work that needs to be done across, along, or under a railway to enable the company to construct a railway and then be in a physical position to operate it. The powers enumerated in paragraphs 95(1)(a) to (d) relate to the use of adjoining lands by railway companies; not to the use or enjoyment of use of those lands by their owners or occupiers. Paragraphs (a) to (d) would not be necessary if paragraph (e) was an omnibus provision encompassing all possible powers needed for the day-to-day activities of a railway company. Subsection 95(1) is not intended to address the issue of the liability of railway companies arising out of their day-to-day operations. Complainants, such as the respondents, still have to proceed by way of common law actions for nuisance if they allege that a railway company is causing excessive noise by its day-to-day operations.

Even if the Agency could entertain complaints relating to the exercise by railway companies of their general powers under section 95, the complaints at issue do not relate to the exercise by the appellants of these powers. The Agency had no jurisdiction to hear the complaints and to issue the impugned orders.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Business Corporations Act, R.S.C., 1985, c. C-44.

Canada Transportation Act, S.C. 1996, c. 10, ss. 26, 37, 41, 90, 95, 98, 101, 102, 112, 117-125, 127-139, 140(2), 145(5), 156, 157, 159-172, 177-181.

Municipal Act, R.S.B.C. 1996, c. 323.

National Transportation Act, S.C. 1966-67, c. 69.

National Transportation Act, 1987, S.C. 1987, c. 34.

Transport Act, 1938 (The), S.C. 1938, c. 53.

Railway Act, R.S.C. 1906, c. 37, ss. 151, 154, 155.

Railway Act, R.S.C. 1927, c. 170, ss. 162, 163, 164, 287, 290.

Railway Act, R.S.C. 1952, c. 234, ss. 164, 165, 166, 290, 293.

Railway Act, R.S.C. 1970, c. R-2, ss. 102, 103, 104, 227, 230.

Railway Act, R.S.C., 1985, c. R-3, ss. 106, 107, 108, 230, 233.

Railway Act (The), S.C. 1888, c. 29, ss. 90, 91, 92, 214.

Railway Act (The), 1903, S.C. 1903, c. 58, ss. 25, 30, 118, 119, 120, 243, 307.

Railway Act, 1919 (The), S.C. 1919, c. 68, ss. 162, 163, 164, 287, 290, 293(1).

Railway Relocation and Crossing Act, R.S.C., 1985, c. R-4, s. 3 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 359), 14 (as am. idem), 15 (as am. idem).

Railway Safety Act, R.S.C., 1985 (4th Supp.), c. 32, ss. 3 (as am. by S.C. 1999, c. 9, s. 1), 16 (as am. by S.C. 1996, c. 10, s. 264; 1999, c. 9, s. 10), 24(2), 25(3) (as am. idem, s. 20), 26 (as am. by S.C. 1996, c. 10, s. 266).

CASES JUDICIALLY CONSIDERED

APPLIED:

Metropolitan Toronto (Municipality) v. Canadian National Railway Co., [1998] 4 F.C. 506 (1998), 229 N.R. 386 (C.A.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342; (2000), 183 D.L.R. (4th) 1; [2000] 6 W.W.R. 403; 132 B.C.A.C. 298; 76 B.C.L.R. (3d) 201; 9 M.P.L.R. (3d) 1; 251 N.R. 42.

CONSIDERED:

Ryan v. Victoria (City), [1999] 1 S.C.R. 201; (1999), 168 D.L.R. (4th) 513; 117 B.C.A.C. 103; 50 M.P.L.R. (2d) 1; 40 M.V.R. (3d) 1; 234 N.R. 201.

REFERRED TO:

Canadian Pacific Ltd. v. Canada (National Transportation Agency), [1992] 3 F.C. 145 (1992), 144 N.R. 235 (C.A.); Duthie v. Grand Trunk R.W. Co. No. 220 (1905), 4 C.R.C. 304 (Board of Railway Commissioners); Holditch v. Canadian North. Ont. R. Co. (1916), 27 D.L.R. 14; [1916] 1 A.C. 536; 2 C.R.C. 101 (P.C.); Powell v. Toronto, Hamilton and Buffalo R. W. Co. (1898), 25 O.A.R. 209 (C.A.); Canadian Pacific Railway Co. v. Albin (1919), 59 S.C.R. 151; 49 D.L.R. 618; [1919] 3 W.W.R. 873.

AUTHORS CITED

House of Commons Debates (26 March 1996).

APPEALS from Canadian Transportation Agency orders relating to noise, smoke and vibrations complaints on the ground that the Agency lacked jurisdiction to deal with such complaints under the Canada Transportation Act which came into force into 1996. Appeals allowed.

APPEARANCES:

William G. McMurray for appellant in A-537-99 and A-729-99.

Paul F. Monahan and Ian C. Whan Tong for appellant in A-741-99.

William V. Sasso and Lloyd Lipsett for respondents in A-537-99.

No one appearing for respondents in A-729-99 and A-741-99.

Ron Ashley and Claude Delmar for intervener in A-537-99, A-729-99 and A-741-99.

SOLICITORS OF RECORD:

Canadian National Railways, Montréal, for appellant in A-537-99 and A-729-99.

Fasken Martineau Dumoulin LLP, Toronto, for appellant in A-741-99.

McMillan Binch, Toronto, for respondents in A-537-99.

Canadian Transportation Agency for intervener in A-537-99, A-729-99 and A-741-99.

The following are the reasons for judgment rendered in English by

[1]        Décary J.A.: The issue in these appeals is whether, under the new Canada Transportation Act which came into force in 1996 ( S.C. 1996, c. 10) (the 1996 Act), the Canadian Transportation Agency (the Agency) has jurisdiction to deal with complaints concerning noise, smoke and vibrations resulting from duly authorized railway operations. Other issues which pertain to the nature of particular orders made by the Agency were raised in the event the Agency was found by this Court to have jurisdiction. As I have found that the Agency has no jurisdiction, I will not deal with these other issues.

THE FACTS

[2]        These three appeals have been heard together, as they raise substantially the same legal questions. They relate to two orders made by the Agency, the first one, on March 8, 1999 (order No. 1999-R-123, decision No. 87-R-1999, Court file No. A-537-99) (the Oakville complaints), the second, on July 6, 1999 (order No. 1999-R-308, decision No. 391-R-1999, Court files Nos. A-729-99 and A-741-99) (the St. Thomas complaint). Leave to appeal was given by the Court on July 6, 1999 and September 21, 1999, respectively. This set of reasons will dispose of the three appeals and an original will be filed in each of the three files.

[3]        The Oakville complaints were filed by eight residents living in the Eastlake community within blocks of the Oakville Yard. The complaints refer to noise and smoke that the Canadian National Railway Company (CN) is allegedly causing by its shunting activities at the west end of the four south tracks of CN’s Yard. The complainants were represented by counsel at the hearing of the appeal.

[4]        The St. Thomas complaint was filed by Randy and Sue Taylor regarding the noise, vibrations and diesel fumes emanating from idling diesel locomotives of the Norfolk Southern Railway Company stored in the CN St. Thomas Yard, near the complainants’ residence in St. Thomas. These two complainants did not participate in the appeals.

[5]        Even though the complaints are with respect to noise, smoke and vibrations, I shall deal with them collectively, for ease of reference, as noise complaints.

THE CONTEXT

[6]        The Agency appeared as a respondent as of right pursuant to section 41 of the 1996 Act but its presentation was limited to matters of jurisdiction as was decided by this Court in Canadian Pacific Ltd. v. Canada (National Transportation Agency), [1992] 3 F.C. 145 (C.A.).

[7]        Prior to the coming into force of the Act in 1996, it was a well-settled rule that where no lands had been taken by a railway company, a person injured by railway smoke, noise, vibrations or other injurious effects, could not recover compensation or other remedy under the relevant Railway Act and could only advance a complaint through a common law action of nuisance, if at all. (See Duthie v. Grand Trunk R.W. Co. No. 220 (1905), 4 C.R.C. 304 (Board of Railway Commissioners); Holditch v. Canadian North. Ont. R. Co. (1916), 27 D.L.R. 14 (P.C.), per Lord Sumner, at page 19; Powell v. Toronto, Hamilton and Buffalo R. W. Co. (1898), 25 O.A.R. 209 (C.A.), per Osler J.A., at page 215, Maclennan J.A., at page 218 and Moss J.A., at page 220 and Canadian Pacific Railway Co. v. Albin (1919), 59 S.C.R. 151, per Anglin J. at page 164 ff.)

[8]        It comes as no surprise, therefore, that the Agency’s predecessors[1] never asserted jurisdiction over these types of complaints. For a better understanding of their position, I think it will be helpful to quote large extracts from the decision of the Board of Railway Commissioners in Duthie, supra, at pages 311, 314, 315, 317:

The first points that arise relate to the jurisdiction and powers of the Board. It is important that, as occasion occurs, these should be carefully considered and defined in order that they may be well understood and, if found advisable, enlarged or diminished by Parliament. To assume jurisdiction which we do not possess and to shirk the exercise of that given us, would equally be breaches of duty.

Occasionally one hears or reads references which suggest that misconceptions prevail in this connection. Applications or complaints are made to us which are apparently based upon a hazy notion that the Board was created for the purpose of adjudicating upon any claim against or dispute with a railway company. For two reasons we are not to begin with the assumption that such was the purpose for which this Board was established: (1) The Board is purely a creature of statute. The general principle applicable to such a body is that its jurisdiction is only such as the statute gives by its express terms or by necessary implication therefrom. (2) Our constitution assigns to the Provincial Legislatures the subjects of “property and civil rights in the Province,” and “the administration of justice in the Province, including the constitution, maintenance and organization of Provincial Courts, both of civil and criminal jurisdiction, and including the procedure in civil matters in those Courts.” (See B.N.A. Act 1867, sec. 92, sub-secs. 13, 14). Corporations created by the Parliament of Canada are ordinarily subject to the provincial laws relating to property and civil rights, and, primâ [sic] facie, civil claims against them should be prosecuted in the Provincial Courts ….

…

Throughout the Act, the Board is authorized to make orders of various kinds directing or requiring acts to be done, or sanctioning, approving or prohibiting other acts. In other cases the Act itself, or the Special Act incorporating the company, or authorizing the construction of the particular railway, requires or prohibits various acts. It is for the purpose of enforcing and carrying out this legislation that the Board is given the general jurisdiction defined by sec. 23. It is a statutory body, created to carry out the legislation of Parliament dealing with railways and the companies operating them. It is not created for the purpose of enforcing the rights or duties which are imposed or created by provincial laws, written or unwritten, or even by any enactments of the Parliament of Canada except those dealing with the particular subjects of legislation with which the Railway Act deals. To enable the Board to adjudicate upon a matter, the matter must be one as to which the Board is, by some provision of the Railway Act or the Special Act expressly empowered or directed to act, or it must relate to some violation of the Railway Act or the Special Act, or of some regulation, order or direction made thereunder.

…

That is, the business of the Board is to enforce the railway legislation of the Dominion Parliament, and, for that purpose, to order the performance of some acts and to prohibit others. It was not created to supplant, or even to supplement, the Provincial Courts in the exercise of their ordinary jurisdiction, but to exercise an entirely different jurisdiction, though, perhaps, occasionally overlapping that of the Provincial Courts.

…

A consideration of these statutes appears to shew that there should be no primâ [sic] facie presumption, arising from the creation of such a tribunal, that it is intended to have the power to give every kind of relief for violations of the Railway Acts; and the English Act shew that the existence of such powers is not necessarily to be inferred from the authority to “determine” a complaint.

The subjects with which the Canadian Board has authority to deal are much more numerous than those with which either the English or the United States Commission can deal. It would be absolutely impossible for this Board to entertain and try any considerable number of the actions for damages brought throughout Canada based upon alleged injuries arising out of infractions of the Railway Act, and at the same time discharge effectively the various duties otherwise assigned to it by statute. It is probable that the framers of the Act were fully sensible of this, and omitted, on that account, the express authority to award damages given by the Imperial Act. If any such authority to award damages should ever be given to the Board, it should, in my opinion, be of a very limited character and confined to matters similar to those with which the Railway and Canal Commission in Great Britain has to deal.

[9]        What is there, then, in the 1996 Act, that has triggered the Agency’s sudden interest in complaints over which it had admittedly no jurisdiction until then? I will say at the outset that it would be a strange twist of events if a statute adopted at a time when deregulation, particularly in regard to day-to-day affairs of railway companies, was the goal of the Government, had vested the Agency, for the first time in history, with jurisdiction over complaints of that sort. To quote from the speech made in the House of Commons by the Honourable David Anderson, Minister of Transport, when moving for the third reading of Bill C-14 (which eventually became the Canada Transportation Act of 1996) (House of Commons Debates (26 March 1996), at page 1212):

To sum up, the objectives for rail which the bill meets successfully are: to promote the long term viability of railways; to foster the creation of short lines; to preserve key shipper rights; to preserve rail service to communities to the extent possible; and to reduce the regulatory burden on railways. It has been an enormous undertaking.

In easing the regulatory burden that had been placed on rail in the past, over 1,000 pages in various statutes have been reduced to just 100. In doing so the bill lifts regulatory intrusions into the railways’ day to day business affairs. Most important, the bill streamlines the rail line rationalization process. This is the most effective legislative means of bolstering the railway’s efforts to cut costs.

THE STANDARD OF REVIEW

[10]      A word, first, on the applicable standard of review of the impugned decisions of the Agency. The test has been set out by Strayer J.A. in Metropolitan Toronto (Municipality) v. Canadian National Railway Co., [1998] 4 F.C. 506 (C.A.), at page 516:

… the standard of review is correctness, with some deference owed to this expert tribunal on legal questions other than those of a jurisdictional nature.

That no deference is to be shown to a tribunal with respect to its decision on a question of jurisdiction, has been confirmed by Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at page 1005, paragraph 28.

[11]      The question addressed herein being one of pure jurisdiction, no deference is owed to the view of the Agency.

THE RELEVANT LEGISLATIVE PROVISIONS

[12]      In support of the Agency’s jurisdiction, the respondents and the Agency rely essentially on what they say is the combined effect of sections 95 and 37 of the 1996 Act. Here is the text of these provisions as well as the text of some of the other provisions I shall be referring to in the course of my reasons:

PART I

ADMINISTRATION

Canadian Transportation Agency

…

Powers of Agency

…

26. The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency.

27. (1) On an application made to the Agency, the Agency may grant the whole or part of the application, or may make any order or grant any further or other relief that to the Agency seems just and proper.

…

Inquiries

37. The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

…

PART III

RAILWAY TRANSPORTATION

…

Division II

Construction and Operation of Railways

…

General Powers of Railway Companies

95. (1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

(a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

(b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

(c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

(d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

(e) do anything else necessary for the construction or operation of the railway.

(2) The railway company shall do as little damage as possible in the exercise of the powers.

(3) If the railway company diverts or alters anything mentioned in paragraph (1)(b) or (d), the company shall restore it as nearly as possible to its former condition, or shall put it in a condition that does not substantially impair its usefulness.

(4) The railway company shall pay compensation to a person who sustains actual loss or damage from the exercise of the powers and the compensation must equal the amount of the loss or damage that the company would be liable to pay the person if the powers had not been conferred by statute.

WHETHER THE AGENCY ADMINISTERS SECTION 95

[13]      The Agency interprets sections 26 and 37 to mean that once the Agency administers part of an Act of Parliament, it is deemed to be administering the whole of the Act and is therefore the appropriate authority unless the Act expressly says otherwise. I do not agree with that interpretation. The two sections, in my view, give jurisdiction to the Agency either with respect to the whole of a statute should the Agency be generally mandated by the statute to administer it, or with respect to parts of a statute should the Agency be specifically mandated by the statute to administer parts only of the statute.

[14]      The 1996 Act contains no provision conferring upon the Agency the power, duty or function of administering the whole Act. It is indeed noteworthy that neither section 26 nor section 37 refer expressly to the very statute in which they are found. The statute, however, contains numerous provisions that confer upon the Agency jurisdiction with respect to the administration of specific parts of the Act. Unless section 95 is one such provision, the Agency has no jurisdiction with respect to that section.

[15]      Section 95 defines the “general powers” which a railway company may exercise for the purpose of constructing or operating its railway. It makes no reference to the Agency. It gives no power to the Agency. When Parliament intended to give the Agency jurisdiction over parts of a statute, it did so in express terms.[2] And when it intended to give the Agency a role in the determination of some form of compensation, it also did it expressly.[3]

[16]      Indeed, in the present case, the Agency acknowledges that it has no jurisdiction to determine the compensation to be paid under subsection 95(4), presumably for the very reason that it has never had it in the past and that the 1996 Act does not expressly give it to the Agency. Yet it argues that it has jurisdiction with respect to subsections 95(1), (2) and (3). I have difficulty understanding the Agency’s position that subsection 95(4) is severable from the whole section and that the silence of Parliament with respect to the jurisdiction of the Agency is of significance when subsection 95(4) is at issue, but of no significance when the rest of the section is at issue.

[17]      The 1996 Act, the Railway Safety Act, supra, and the Railway Relocation and Crossing Act, supra, were drafted with such minute details in so far as the jurisdiction of the Agency is concerned, that one cannot assume that the absence of any reference to the Agency in section 95 was not intended. It is simply not possible, in the context of the relevant statutes, to interpret section 95 as being a provision implicitly conferring some jurisdiction upon the Agency.

WHETHER SECTION 95 CONFERS JURISDICTION WITH RESPECT TO NOISE COMPLAINTS

[18]      In the event the above conclusion is incorrect and that the Agency is vested with some jurisdiction under section 95, it remains to be seen whether the section can be interpreted in such a way as to vest the Agency with jurisdiction over complaints of the type at issue.

[19]      The respondents and the Agency essentially argue that the general powers of a railway company are all enumerated in subsection 95(1) and that even though there is no specific mention of a power to make noise, shunting or idling railway cars and locomotives are a fundamental aspect of railway operations and cannot be performed without making noise. As the argument goes, shunting or idling are “necessary for the … operation of the railway” and therefore are captured by paragraph 95(1)(e). As railway companies “shall do as little damage as possible” pursuant to subsection 95(2) when making noise in their operations, making as little noise as possible becomes something railway companies are required to do under the 1996 Act and the Agency has jurisdiction pursuant to section 26 to require railway companies to make as little noise as possible.

[20]      The argument ignores the history and the evolution of Canadian legislation in the area of rail transportation when it suggests that section 95 now contemplates all the powers that are exercised by railway companies and that it now permits noise complaints with respect to day-to-day operations of railway companies.

[21]      Throughout the long history of Canadian railway legislation, a distinction has been made between provisions granting “general powers” to railway companies for the purpose of constructing a railway, and provisions regulating the day-to-day operations of a railway company when exercising its powers.

[22]      The “general powers” that are of interest in these appeals were found in sections 90, 91 and 92 of The Railway Act, S.C. 1888, c. 29. They were continued in sections 118, 119 and 120 of The Railway Act, 1903; in sections 151, 154 and 155 of the Railway Act, R.S.C. 1906, c. 37; in sections 162, 163 and 164 of The Railway Act, 1919, S.C. 1919, c. 68 and of the Railway Act, R.S.C. 1927, c. 170; in sections 164, 165 and 166 of the Railway Act, R.S.C. 1952, c. 234; in sections 102, 103 and 104 of the Railway Act, R.S.C. 1970, c. R-2 and finally, in sections 106, 107 and 108 of the Railway Act, R.S.C., 1985, c. R-3. The provisions remained substantially the same throughout the years.

[23]      The provisions dealing with day-to-day operations have been present since 1919, in the form in which they appear in chapter R-3 of the Revised Statutes of 1985 even though some of them may be traced back to section 214 of The Railway Act of 1888 and to sections 25 and 30, and 243 and 307, respectively, of The Railway Act, 1903 and of chapter 37 of the Revised Statutes of 1906. Beginning with The Railway Act, 1919, the provisions appear in a section of the Act dealing with “Operation and Equipment” which comprises section 287, under the title “Order and Regulations of Board”, and section 290, under the title “By-Laws, Rules and Regulations of Company”. These sections made their way, unchanged, to the 1985 consolidation, as sections 287 and 290 of chapter 170 of the Revised Statutes of 1927, sections 290 and 293 of chapter 234 of the Revised Statutes of 1952, section 227 and 230 of chapter R-2 of the Revised Statutes of 1970 and finally, as sections 230 and 233 of chapter R-3 of the Revised Statutes of 1985.

[24]      Dealing first with the day-to-day operations of railway companies, they were subject, as I have indicated, to two different sets of provisions. On the one hand, a provision (section 287 in The Railway Act, 1919) gave the Board of Railway Commissioners the power to make orders and regulations with respect to 12 items, including the rate of speed at which trains could be run in a city, the use of a whistle within any city, the coupling of cars, the number of employees, the hours of duty. The last item is worth quoting at length:

287. (1) …

(l) generally providing for the protection of property, and the protection, safety, accommodation and comfort of the public, and of the employees of the company, in the running and operating of trains and the speed thereof, or the use of engines, by the company or on or in connection with the railway.

[25]      On the other hand, a section (section 290 in The Railway Act, 1919) gave the railway company, “subject to the provisions and restrictions in this and in the Special Act contained, and subject to any orders or regulations of the Board”, the power to make by-laws, rules and regulations respecting eight items, including the mode by which, and the speed at which any rolling stock was to be moved, the schedule of trains, the smoking of tobacco and the commission of any nuisance in or upon trains, stations, or other premises occupied by the company and “the due management of the affairs of the company”. Subsection 293(1) required the company to submit these by-laws, rules and regulations, “except such as relate to tolls and such as are of a private or domestic nature and do not affect the public generally”, to the Governor in Council for approval.

[26]      These two sets of provisions remained virtually unchanged from their introduction in The Railway Act, 1919 up to their inclusion as chapter R-3 in the 1985 consolidation. They now have either disappeared from the legislation or been captured by the Railway Safety Act of 1988, the Canada Transportation Act of 1996 and the Railway Relocation and Crossing Act, R.S.C., 1985, c. R-4. It is fair to say, without going into any further details, that essentially, the power of control which the Board and then the Commission exercised over the day-to-day operations of railway companies was in part simply abolished and in part transferred to the Minister of Transport, to be exercised by him with very little intervention by the Agency.

[27]      It is interesting to note that in a recent amendment to the Railway Safety Act, S.C. 1999, c. 9, section 1, a new section 3 appeared, which describes the objectives of the Act as follows:

OBJECTIVES

3. The objectives of this Act are to

(a) promote and provide for the safety of the public and personnel, and the protection of property and the environment, in the operation of railways:

(b) encourage the collaboration and participation of interested parties in improving railway safety;

(c) recognize the responsibility of railway companies in ensuring the safety of their operations; and

(d) facilitate a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety. [My emphasis.]

[28]      Dealing now with the “general powers”, I cannot see how section 95 can be interpreted in such a way as to vest the Agency with a jurisdiction over noise complaints, when under the new Act the Agency no longer exercises control over the day-to-day operations of railway companies, when the general powers of railway companies are no longer all described in railway acts or in special acts and when the section is couched in terms remarkably similar to those of the provisions it replaces. All these factors point to a diminished, rather than to an increased role for the Agency.

[29]      Under the earlier legislation, as I have explained, the exercise of the “general powers” was subject to the control of the Board of Railway Commissioners in matters pertaining to day-to-day operations. With the advent of deregulation, the control, if any, over these operations was generally transferred to the Minister of Transport.

[30]      The earlier list of “general powers” was intended to describe, subject to other powers conferred by the Railway Act and the relevant Special Act, all the powers that could be exercised by a railway company. The same cannot of course be said of the list contained in section 95, which is subject to the provisions of “any other Act of Parliament”. It is apparent, when one examines the list of “general powers” enumerated in subsection 95(1) of the 1996 Act, that it is an abbreviated and modernized list of the powers described in the earlier legislation. A new, shortened list was rendered necessary if only to take into account the fact that the general powers of railway companies were no longer to be found in railway acts or in special acts, but were to be found from now on in such diverse statutes as the Canada Business Corporations Act, R.S.C., 1985, c. C-44, the Railway Safety Act, the Railway Relocation and Crossing Act, or the Canada Transportation Act. The heading “general powers” is the source of much of the confusion; it is clearly inadequate to describe the specific powers which are now enumerated in section 95.

[31]      To illustrate the remarkable continuity in the language used by Parliament otherwise than in the list of powers, there is no better way but to reproduce from The Railway Act of 1888 parts of section 90 (which listed 17 “general powers”) as well as the totality of sections 91 and 92:

GENERAL POWERS.

90. The company may, subject to the provisions in this and the special Act contained:—

(a.) Enter into and upon any lands of Her Majesty without previous license therefor, or into and upon the lands of any person whomsoever, lying in the intended route or line of the railway ….

…

(d.) Make, carry or place the railway across or upon the lands of any person on the located line of the railway ….

(e.) Fell or remove any trees which stand within six rods from either side of the railway ….

…

(g.) Make or construct in, upon, across, under or over any railway, tramway, river, stream, watercourse, canal or highway which it intersects or touches, temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, drains, piers, arches, cuttings and fences;

(h.) Divert or alter, as well temporarily as permanently, the course of any such river ….

…

(q.) Do all other acts necessary for making, maintaining, altering or repairing, and using the railway.

91. The company shall restore as nearly as possible to its former state any river, stream, watercourse, highway, water-pipe, gas-pipe, sewer or drain, or any telegraph, telephone or electric light wire or pole which it diverts or alters, or it shall put the same in such a state as not materially to impair its usefulness.

92. The company shall, in the exercise of the powers by this or the special Act granted, do as little damage as possible, and shall make full compensation, in the manner herein and in the special Act provided, to all parties interested, for all damage by them sustained by reason of the exercise of such powers.

[32]      As can be readily seen, the obligation of a railway company “to do as little damage as possible”, to restore “as nearly as possible” and to pay “compensation” has always been, and still is, related to the exercise by a railway company of its listed “general powers”. The only substantial change brought in 1996 with respect to that obligation has to do with compensation. Until then, compensation was to be “in the manner herein and in the special Act provided”, the “herein” referring to the relevant Railway Act. It is precisely that “manner” of compensation which was said by the Privy Council in Holditch, supra, not to include claims in respect of noise. In the 1996 Act, reference is no longer made to the “manner” of compensation and there are no longer any provisions dealing with that “manner”. As I have noted earlier, the Agency does not suggest that it has jurisdiction to determine the compensation referred to in subsection 95(4).

[33]      The Agency and the respondents have put much emphasis on the wording of paragraph 95(1)(e), “do anything else necessary for the construction or operation of the railway”, which, they argue, encompasses day-to-day operations such as shunting activities and idling of locomotives.

[34]      This suggested interpretation runs contrary to the whole context of the legislation which I have just described. Furthermore, it runs contrary to a literal interpretation of the section.

[35]      Paragraphs (a), (b), and (d) refer only to works done “across or along the railway” and paragraph (c) refers only to water works “through or under land adjoining the railway”. In this context one cannot interpret the words “anything else necessary” in paragraph (e) otherwise than referring to any other type of work that needs to be done across, or along, or under a railway to enable the company to construct a railway and then to be in a physical position to operate it. These four powers relate to the use of adjoining lands by railway companies; they do not relate to the use or the enjoyment of use of those lands by their owners or occupiers. One wonders why subsection 95(1) would enumerate four specific powers in (a), (b), (c), and (d) if in any event, (e) was an omnibus provision encompassing all possible powers needed for the day-to-day activities of a railway company.

[36]      This case is in my view quite similar to that of Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 (at paragraph 21), where Major J. resorted to the “ejusdem generis” or limited class rule to interpret the words “or other matter or thing” in the Municipal Act of British Columbia [R.S.B.C. 1996, c. 323]:

It is my opinion that the legislature, by including the phrase “or other matter or thing”, did not intend to expand the scope of s. 936 to allow municipalities to declare almost anything to be a nuisance. I accept the respondent’s submission that to construe that phrase as creating a third class of potential nuisance would effectively negate the purpose of including rather specific preceding language.

[37]      Clearly, subsection 95(1) is no more intended than its predecessors were, to address the issue of the liability of railway companies arising out of their day-to-day operations. Complainants such as the respondents still have to go through common law actions of nuisance if they allege that a railway company is making too much noise in its day-to-day operations. In that regard, the recent decision of the Supreme Court of Canada in Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at page 236 is an interesting illustration of the use in common law of the concept of “public nuisance” as applied to activities of railway companies.

[38]      In the end, I reach the conclusion that even if the Agency could entertain complaints relating to the exercise by railway companies of their “general powers” under section 95, the complaints at issue do not relate to the exercise by the appellants of these powers. The Agency had no jurisdiction to hear the complaints and to issue the impugned orders.

DISPOSITION

[39]      The appeals should be allowed and the orders of the Canadian Transportation Agency Nos. 1999-R-123 and 1999-R-308 should be quashed for lack of jurisdiction. There should be no order as to costs.

Richard C.J.: I agree.

Sexton J.A.: I agree.

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