VOL. XX.] EXCHEQUER COURT REPORTS. 15 IN THE MATTER OF AN APPLICA- May 11th • 1924 TION OF THE _ POINTE AUX PLAINTIFF; No 3474 TREMBLES TERMINAL RAIL No. 3493 WAY - No. 3474 AND THE CANADIAN NORTHERN QUEBEC RAILWAY CO., AND DEFENDANTS. THE CANADIAN NATIONAL RAILWAYS AND' IN THE MATTER OF AN APPLICA- TION OF THE POINTE AUX PLAINTIFF; TREMBLES TERMINAL RAIL- WAY No. 3493 • AND THE CANADIAN NORTHERN QUEBEC RAILWAY CO., . AND 1 DEFENDANTS. THE CANADIAN NATIONAL RAILWAYS Railway Act, 9-10 Geo. V, ch. 68, s. 49—Board of Railway Commissioners, Orders of—Exchequer Court—Sequestration—Service of Order--Rule 70 Exchequer Court Rules—Drastic Process. 1. Where an order of the Board of Railway Commissioners has been • made an order of this Court under section 49 of the Railway Act, . the Judge of the Court has no power to modify, vary, review or - supplement the same. 2. Before a writ of Sequéstration can issue in proceedings in contempt for disobedience of an order of the Board of Railway Commissioners which has been made an order of this Court, it should appear that the disobedience of the same has been wilful and' intentional.
16 EXCHEQUER COURT REPORTS. [VOL. XX. 1920 3. Where any such order authorizes one railway to operate its train s POINTE AUX across the tracks of another, and where the train which is refused TREMBLES a crossing is not a train of the said company (in the present case it TERMINAL RAILWAY consisted of an engine and crew of the Harbour Commissioners of y. Montreal drawing cars of another company) such refusal cannot be THE CANADIAN said to be a refusal to comply with the above mentioned order so NORTHERN as to render them liable to contempt. (QUEBEC RAILWAYCO.) 4. The Order for a Writ of Sequestration against a corporation will AND THE CANADIAN onlybe granted w t h h en e requirements of t h e pr actice have been NATIONAL strictly observed. RAILWAYS. (Nos. 3474 THIS is an application by the Pointe aux Trembles and 3493). Terminal Railway Company for a writ of Sequestration Statement of rate. against the defendants for an alleged contempt of court by them. On the 3rd day of April, 1914, the plaintiff company obtained an order from the Board of Railway Commissioners for Canada authorizing them to construct its lines and tracks across the lines and tracks of the defendant companies at a certain point on a plan filed, subject to certain conditions as to control by deféndant • companies and as to costs of maintenance, etc. On the 1st day of April, 1920, the plaintiff obtained a further order reading as follows: "IT Is ORDERED that the Pointe aux Trembles Terminal Railway Company and the Canadian National Railways be, and they are hereby authorized to operate their trains over the said crossing without their first being brought to a stop." These orders were filed with the Registrar of the Exchequer Court of Canada under article 49 of the Railway. Act and being entered of record thereby became an order of the court. On the 7th May, application was made by the plaintiff company before this court asking for the issue of a writ of Sequestration against the defendant companies
VoL. XX.] • EXCHEQUER COURT REPORTS. on the ground that they had refused to allow the plaintiff to cross its tracks and this in. contempt of the orders of the Railway Commissioners, ,above referred RAILTAY to. : This was enlarged to` 11th May at request of ' defendants. The matter then came up for hearing on' the 11th RA May before the .Honourable Mr. Justice Audette. ' Mr. Arthur Holden,H.C ) . a plaintiff. ' F. George Macdonnell, for the defendants. The affidavits filed, in substance state--• inter C alia—that on the 17th day of April . the Harbour Commissioners in . charge of an engineer and crew of the Harbour Commissioners and drawing three empty cars belonging to the Canadian, Railway Company had proceeded from the Harbour. • Commissioners' tracks along the tracks of the Company plaintiff, as far as the crossing above referred to, where the man in charge of the diamond refused to set the derail so as to allow the train to proceed along plaintiff's track, and they were forced to return. Arthur Holden, K.C., after reciting the. orders above referred to, asked for the iss ié of the writ of Sequestration on the ground that the defendants had made themselves liable for contempt of court in refusing to obey said orders. He admitted that the train referred to in the affidavits and which was refused passage, consisted of an engine of the Harbour .Commissioners manned by the employees of the Harbour Commis- sioners and three cars belonging to the 'Canadian Pacific Railway..., That the plaintiff had and as far as he knew, no rolling stock of its own, but had an agreement with the Harbour Commissioners whereby they leased engines and crew. from . the Har- 4597-2 , J 17 1920 PT SEMBLE9 T$E { CANADIAN NORTHÉRN Q wAYco.) • cANADIA~N ~ n d E. F . Newcombe for NA R T A I IL O W N A A Y L 9 . (Nos. 3474 and 3493). Statement of °"a°e1. ; 1920, an engine of Pacific s nô engines,
18 EXCHEQUER COURT REPORTS. [VoL. XX, bour Commissioners to bring cars of the other railways POINTE TRNMBLES over their tracks, to the Cement Company's works. TERMINAL RAILWAY V. The plaintiff company was incorporated practically THE by the Cement Company for its benefit, to connect ' CANADIAN NORTHERN their works with the Harbour. (QUEBEC RA D Tx o .) Mr. Macdonnell: The defendants have never wilfully CANADIAN N refused to comply with the order of the Board of Rail-RAILWAYS. way Commissioners. The order at best only autho-347 (aNnd3493)4 rizés the plaintiff Railway Company to cross, and the Statement of cars and the train in question in this case were not Counsel the property of the plaintiff nor operated by it. Moreover, the order is not specific, but merely permissive, and there is nothing therein to show the plaintiff's right to use a leased train. The facts are stated in the reasons for judgment. AUDETTE J. this (11th May, 1920,) delivered judgment. I find, after hearing Counsel and taking cognizance of the affidavits filed of record, it is unnecessary for me to ask for further evidence in order to arrive at a conclusion, as to how the matter should be disposed of. It will serve no purpose to delay my decision. As appears by the notice filed of record, this is an • application by the Pointe aux Trembles Terminal Ry. Co., for the issue of a writ of Sequestration against the Caandian Northern Quebec Railway Company, and (as mentioned in the notice of such application) in so far as may be necessary to that end, against also the Canadian National Railways, in as much as the said two last mentioned railway Companies are alleged to have refused, failed and neglected to obey the orders of the Board of Railway Commissioners for Canada Nos. 21592 and 29513 of the 3rd of April, 1914, and
VOL. XX EXCHEQUER COURT REPORTS. Ist April, 1920, which have been Court. The charge made against the said two rail- ways, is that, on the. 17th April, 1920, they refused to permit the Pointe aux Trembles Terminal Railway • Comp P a n Y y and its officers and servants to use its crossing over the Canadian Northern Quebec Railway vented them from doing so; in direct contempt and CAxADiAN contravention of the said orders of the Railway The application is for the issue of a writ of . Seques tration, a very drastic process that., can issue only upon circumstances strictissimi disobedience of the judgment or order of the Court has been wilful and intentional. In the case in question the service of these notices and orders upon the defendants has not been made in the manner required by the Rules of this Court. The first order of the Railway Commissioner (3rd April, 1914) has been made against the Canadian Northern Quebec Railway Company while the second order (1st April, 1920) , has been made against the Canadian ,National Railways, pursuant to 9-10 Geo. 5, ch. 13. Before any such writ can issue to enforce obedience,' the order or judgment . in question must be personally served upon the director or such • other responsible officer of the company, as required by the rules of this Court Nos. 70 and 245 and as further set forth in The Annual Practice, 1920, p..738. Stock Institute, Ltd. (1). Theré is before me no evidence of a wilful and intentional disobedience of these orders, the conflict, to the contrary, seems to result from some local friction that some common sense and business acumen could easily overcome. (1) (1899) 1 Ch. 671. 4597-21 19 . made orders of this io POuvTE AU]C TRBMBLEs RAIT,WAY THE CANADIAN NoxT xExN and . p re- (Q vEAyBE RAi L WAYCO.) Board. NA nA TI NAL IL O WAYB. (Nos. 3474 and 3493)., juris, and when the Ju R d e g a m son e s n fo t. r . (See McKeown v. Joint
20 EXCHEQUER COURT REPORTS. VOL. XX 1920 Sitting here and dispensing justice in this Court my POINTE Bx powers are limited by the Statute, The Railway Act TERMINAL RAILWAY in respect of such orders which are made orders of this C ANv .IAN Court. I am not in the position of a judge sitting in NORTHERN (QUEHEC proceeding in contem P p t where there has been disobe- R' A A N Z D T r H C & a.) dience to his orders made under full knowledge of all vA Nis the circumstances of the case. I cannot go behind the RAILWAY$. orders of the Railway Commission, cannot modify, 3 9 47 3 4 aMnM11 3 4 3 9437)4. ). review, vary or supplement these orders. I am not Rensone for seized of the facts or evidence which determined the Judgment. making of the orders. It is obviously a question for the Railway Commission to say how these orders are to be understood. To say whether the Terminal Company can, under its charter and under the orders made by the Board, enter into contract with all the railways in the land, a contract to which the Canadian National Railways would not be a party—and allow them under the leave given to go over the railway crossing in question. The best and only remedy the Terminal Railway can now have is from the Railway Board under the provisions of the Railway Act, section 33, subsection 3 of section 34 and subsection 5 of section 49. The Railway Board can make these orders clear and supplement them, if necessary, by enforcing them by a daily penalty or such other money penalty they see fit and if the defendant companies set these orders at defiance, a writ of Sequestration might then issue for the payment of such moneys. I feel sure that when the matter is brought again before the Railway Board that some acceptable remedy, acceptable to all parties concerned, will be arrived at. In the meantime I am unable to issue a writ of Sequestration which would have the effect of stopping service on the Government
1 VOL. XX EXCHEQUER COURT REPORTS. Railways, a public utility of great importance, whereby the public at large would be the sufferers. This trouble, resulting from a trifling local friction must be adjusted in another manner. Moreover, the small train which is alleged to have been stopped appears to he a train belonging to and manned by the crew of . a company other than the Pointe aux Trembles Railway Company. Under these circumstances, my order wi nothing by this application, which stands dismissed with costs, which are hereby fixed at the sum of $50. Solicitors for plaintiff: Meredith, Holden, Hague, Shaughnessy do Heward. Solicitor for defendant: Geo. F. Macdonnell. 21 192 . 0 PT ~~LEB TER RA n AY ~ - CA NADIAN , NORTHERN (QUEBEC RAILW AY Co.) AND T HE CANADIAN NATIONAL . RAILWAYS. (Nos. ll be to take and 3493) Jû $ néno Judgment accordingly;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.