April 21, 1902

LIB

Duncan Cameron Fraser

Liberal

Mr. FRASER.

I was about to refer to what the hon. member for Haldimand (Mr. Thompson) said. He called upon the members from the lower provinces, because this was an Ontario matter, to join him. Does he want us to do violence to the principles of common law because there are people in Ontario who wish it ? If the hon. gentleman wants that, he should provide that this Act shall apply only to Ontario; and, then, if Ontario is unanimously for it, I will not say a word against it. Now, we in the lower provinces have a fair number of miles of railway. Yet I have not received a single letter in support of this Bill, nor have I seen a single word about it from my own portion of the country. I have no doubt the difficulty arises In Ontario, and perhaps elsewhere. But we should never forget, as the hon. member for Annapolis (Mr. Wade) has so well said, that it would be idiotic for us to remedy one difficulty merely by creating another. Legislation" should be designed to remove difficulties, not to create new ones, that, perhaps, would be worse than the others. Wise men will seek to lessen a difficulty, or do away with it if possible, but will not pass legislation that will merely irritate the other side and create a difficulty greater than the cure. So, as one member from the lower provinces, I cannot accept the flattering invitation of the hon. member for Haldimand that, because he and others want it we should support this amendment to the law. We must consider what the effects of the change would be, not in Ontario only, but elsewhere. It seems to me that this would put the farmer in a position of unfair advantage, and as the hon. member for East Middlesex said, there is no farmer in Canada who wants that. It is not necessary for us to talk about the farmers being honest; the farmers of Canada need no defenders here or elsewhere. Under the wording of this Act, it would be possible for any man to recover whose cattle were killed. Even the present law is mixed up with this phrase of ' suitable and sufficient,' but if you will read the words as they appear in this Bill :

And no animal not allowed by law to run at large shall be held for the purpose cf such liability to bo improperly on a place adjoining the railway if such animals get upon the railway from the highway by reason of such omission or neglect to maintain such cattle-guards or fences at the highway crossing.

In connection with this, you must read ' by reason of neglect to maintain such suitable cattle-guards or fences.' That, it appears to me. would make it almost impossible to defend any action, and I do not

think any hon. gentleman would want that.

I think we should accept what the Minister of Railways has said. But, if that is not accepted, i will vote for the amendment of the hon. member for Halton, for that is the next best thing in my opinion. I would not have taken up time but that I wished the committee to understand that we who come from the lower provinces can look at this question not only from the point of view of our own provinces, but from the point of view of the general effect of this statute.

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LIB

Jacob Thomas Schell

Liberal

Mr. SCHELL.

I come from a county through which three railroads run the fastest trains probably in the Dominion of Canada. Upon this question of cattle-guards there has been a good deal of feeling' amongst the farmers on account of the number of cattle killed. I have a number of letters which I could read from farmers who have had cattle killed, and are unable to get any recompense from the companies. The discussion this evening has turned largely on the question of negligence. Now I will cite a case to show how far the farmers are justified .in complaining of the law as it stands at present. Mr. W. D. McCrim-mon, of Glenroy, on the Canadian Pacific Railway line, writes that one stormy night liis fences were blown down, the cattle came from the rear of the farm, passed down the road, and got on the track, and laid down on the track, and six thoroughbred cattle were killed toy a train before morning ; and he could get no recompense for those cattle because they were illegally on the track.

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L-C

Andrew B. Ingram

Liberal-Conservative

Mr. INGRAM.

Supposing the train was thrown from the track and several lives lost, who would he liable then ?

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LIB

Jacob Thomas Schell

Liberal

Mr. SCHELL.

I am merely discussing the question of negligence. Was that a case of negligence ? I think that was a case where the railroad were clearly liable under the law, because if they had had a sufficient cattle-guard those cattle would not have got on the track and would not have been killed. I believe that in 90 percent of the cases where cattle are killed it is in the night time when they have -strayed upon the track in that way. There are very few cases indeed where cattle get upon the track in broad daylight. The root of the matter, as the member for Annapolis (Mr. Wade) says, is the question of the sufficiency of the cattle-guard. So far as the farmers are concerned it is usually in the might time that their cattle get upon the track, and through no negligence of their own. Railroad men will almost invariably tell you that very few cattle get upon the track in the day time. They do not feed upon the track, but upon the side of the track. In the night time, if they get on the track, they lie on it because it is a warm place. I think the law should be made to protect the farmer whose cattle, by no negligence of his own, break out of the field and stray upon the track. Another

question we have to consider is the sufficiency of the cattle-guard. The hon. member for Haldimand (Mr. Thompson) read extracts from the railroad people to show that they used efficient cattle-guards. Some railroads claim they have sufficient cattle-guards when they have only a few wooden slats laid upon the track. The member for Annapolis spoke about a gridiron cattle-guard. That gridiron cattle-guard is used in the United States to-day, and is recognized as sufficient by the law, but it is made of steel. The Canadian Pacific Kailway had a large number of thse steel gridiron cattle-guards upon their track, and *so did other roads in this country, but they were expensive, ami so they substituted for the steel gridiron cattle-guards a few six inch boards put down upon the track which would allow any animal to walk over. The law said the company was not obliged to pay for animals that went upon the track so long as they had a semblance of a cattle-guard, so long as they had a few boards there. That was considered sufficient under the law to .protect the company from liability if cattle strayed upon the track and got killed. These facts are well known to every railroad man. The gridiron cattle-guard made of steel is to-day practically an effective cattle-guard, but it is an expensive one, and it was dispensed with because the law admitted as sufficient a few cheap boards put down as a cattle-guard which would cost 75 cents, whereas the other kind would cost $20. That is the kernel of the whole matter. If the railroads had these gridiron steel cattle-guards in use we would not have this discussion to-night.

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CON

Melzar Avery

Conservative (1867-1942)

Mr. AVERY.

A good deal has been said *on both sides with regard to what eonsti-tutes a sufficient cattle-guard. I think it is high time we should amend the law and put it in such a shape that the people will know when they have a sufficient cattle-guard. It has been said that if a- man is driving cattle over the road and they get killed, the owner can recover from the company. That is not the case. There was a case where the judge decided that if a man was in charge of the cattle, that was sufficient to protect the owner, and there being no cattle-guard on the railway and the cattle being killed, the owner had no recourse I think the motion of the hon. member for Halton (Mr. Henderson) should be adopted, as I think that will protect the farmers of this country.

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CON

David Henderson

Conservative (1867-1942)

Mr. HENDERSON.

Exception has been taken to the amendment which I introduced, because I failed to read the latter portion of it. I was under the impression that in committee it was not necessary for a member to read his amendment, but that 'it was the Chair who read the amendment in putting it. Therefore in my opinion the amendment is properly before the House even though I failed to read the last Tew words.. My intention was :to fill in the

date with the 1st day of April, 1903, and when motion is put from the Chair. I would like those words to go in, in order to allow tlie railway companies time to comply with the requirements of the Act. 1 am sure the committee will be reasonable in a matter ot that kind. No hon. member would expect the railway companies to be prepared to-morrow, or in two weeks, to put in the guards which the Railway Committee of the Privy Council might decide upon. They must have reasonable time, and we must as reasonable men, deal in a reasonable way with the companies. It was suggested by the member for Annapolis that my amendment was along the line of what was suggested by the Minister of Railways and Canals in the committee. 1 think it is somewhat different. In the Railway Committee I had my amendment prepared, but I did not catch the eye of the Chairman soon enough, and another suggestion was made before I could read my amendment. My amendment was different from that suggested by the Minister of Railways and Canals, in that I proposed immediate legislation. 1 favoured that, because the petitions that were sent in this year asked for legislation this session, and my desire was to comply with the prayer of those petitions. Consequently I moved an amendment in the Railway Committee, but it was held that I was not in order at the time. Perhaps X was not, I did not find fault with that ruling. Rut I take the opportunity of moving it here. Now I desire to say here that impolicy is a standard guard. 1 am not so particular how that standard is obtained. I would call that a solution of this difficulty.

I would prefer that it should be obtained along the line I have suggested. I thiuk that would be .the better and the more acceptable way. I think this the more speedy way, because, before parliament could be able to pass an Act next year, we would have these guards put in by the railway companies, and if the railway companies did not put them in, they would become liable under the Bill of the hon. member for Lincoln. If I cannot secure a standard guard in that way I am not going to oppose the policy of securing a standard guard in any way as soon as possible.

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LIB
CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

Under the circumstances and in view of the opinion of a good many hon. gentlemen on both sides of the House, I think it perhaps would be the best I could do in the interests of the country, as I understand the country's interests to accept the amendment of .the hon. member for Halton (Mr. Henderson). It seems to me, that if not quite the same thing that the Minister of Railways and Canals (Hon Mr. Blair) has suggested, it is almost the same thing and the difference is that we get a certainty now instead of an uncertainty, not meaning to impute for >a moment that the hon. Minister of Railways and Canals would not carry out next year what

he intends to, bnt there is, as the hon. member for Halton has said, a great demand at present for a certainty in regard to this question, and I think the country will not be satisfied with any promise that may mean anything or nothing as far as practical results are concerned. Having in view the fact that the hon. member for Halton, as it seems to be understood by members on both sides of the House, adopted the main part, or the gist of the contention of the hon. Minister of Railways and Canals when he provides that if there is a standard guard provided the company shall not be liable under the amendment which I am asking the House to pass, I think the House will say that I have accepted as reasonable a compromise as I could be asked to accept understanding the rights of the parties to be as I have understood them to be. The effect will be that a company will be liable until that standard guard is put in and not liable afterwards if the standard guard is put in and maintained. The Act will not go Into force until April next; that is practically what the hon. Minister of Railways and Canals undertook to do next year. I can see no objection that he can make to putting that in this year provided that it does not go into force until next year. We get practical legislation through and are really carrying out what a great majority of hon. members want. It will suit the hon. member for Middlesex (Mr. Gilmour), it will suit the hon member for Annapolis (Mr. Wade) and I think it will suit the hon. member for Guysborough (Mr. Fraser), although he did not go so far as these other hon. gentlemen in saying what would suit him, while he was arguing for a compromise. I hope it will suit the hon. member for North Simcoe (Mr. McCarthy), because he says that we are compromising in the sense that we let the railway company off if they provide what the Railway Committee of the Privy Council has said is a proper guard. Provided that they do that I think it is fair that they should be let off if the guard is .sufficient. I think therefore they all ought to accept the amendment of the hon. member for Halton and be unanimous for once this session.

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The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).

It is admitted on all sides .that there is an evil from which the farming community is suffering at this moment, an evil which the hon. member for Lincoln (Mr. Lancaster) is trying to remedy by the Bill to which he has called the attention of the committee. But, at the same time, it seems to me to be admitted on all hands, also, that the remedy provided by this Bill is not adequate and will not meet the object which it is intended to serve. This proposition has been made to me very clear by the speeches of my hon. friend from Halton (Mr. Henderson), my hon. friend from Middlesex (Mr. Gilmour) and my hon. friend from Guysborough (Mr. Fraser),

gentlemen for whom I have the highest respect and who can speak with authority upon such questions. It has been made clear that the farming community do not want to have one-sided legislation. They want legislation which will work both ways and which provides that the company shall perform their duties and that the farming community should perform their duties also. Such being the case, I may call the attention of the House further to the fact that it seems to me, that, at this moment, my hon. friend from Lincoln is scarcely in order in the proceeding which he asks the committee to adopt. I will call the attention of the committee to the rules of the House upon this subject. This is a private Bill introduced by the hon. member for Lincoln.

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CON
?

The PRIME MINISTER.

It is a public Bill, but to serve an object as to which the procedure applied is the procedure of a private Bill. Certainly, it is a public Bill. It has been referred to the Railway Committee of the House. That Bill was read a second time with the distinct reservation that the House would not commit itself to the principle of the Bill, but that the principle of the Bill should be discussed by the Railway Committee, and that we should receive the report of the Railway Committee before we committed ourselves to the principle of the Bill. Now, I find that this Bill was not reported on favourably by the Standing Committee on Railways :

Your committee have had under consideration Bill No. 2, an Act respecting telephone companies, Bill No. 3, an Act to amend the Railway Act, and Bill No. 28, an Act respecting telegraph and telephone companies, and recommend that the said Bills be not further proceeded with during the present session.

That is the report which we have before us, and my hon. friend altogether ignores this report. He has not even, so far as 1 have been able to follow the discussion, and I have followed it with a great deal of care, and I do not recollect that the hon. gentleman has referred to this report.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

In moving the House into committee I did.

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The PRIME MINISTER.

In a very casual way, but he has not moved to have the report set aside. While he stated that the report of the committee made certain recommendations the recommendation was that the Bill should not be proceeded with this session. He has ignored this, has put it aside and has asked the committee to proceed with the Bill as if the Bill had been reported upon favourably by the Standing Committee on Railways and Canals. I suppose if the Railway Committee had reported favourably be would have said that the Bill should have been taken clause by clause and section by section by this com-

mittee and that the Bill should be accepted. Now, my hon. friend proposes that we should do the same thing. There is no difference whatever in his procedure to day. If the report of the Railway Committee had been favourable to his Bill he would have proceeded just as he is proceeding now, he would have asked that the Bill be taken section by section and approved by the House. But, the report has been against him. The Railway Committee have not reported the Bill, but have recommended to the House that the Bill should not be proceeded with this session. He puts that aside altogether, he does not take it into account and he asks the committee to pass the Bill as if the Bill had been reported favourably by the committee. What shall we do with this report ? What is the object of it ? Why did we refer this Bill to the Railway Committee ? We referred it to the Railway Committee to have the opinion of the Railway Committee upon the subject. The opinion of the committee is that we should not proceed with the Bill this session. For my part I have always maintained that the best course for the House, is to support its committee unless very strong reasons can be shown to the contrary. I am informed that the reason why the committee would not entertain the Bill this year was because of the statement made by my colleague the Minister of Railways : that in his opinion the best way to deal with the question was not to support the legislation presented by the hon. member (Mr. Lancaster) but to decide first what proper cattle-guards are and then to say that they shall be adopted. The Minister of Railways reported to me that he had stated to the committee that during the recess he would take means to collect information as to the best cattle-guards in existence; that he would appoint experts to ascertain that, and that next session he would introduce legislation dealing with the matter. In fact that matter was arranged between us beforehand and the Minister of Railways spoke by authority of the government. The pledge which the Minister of Railways took before the committee, I now take on behalf of the government before the House. We shall during the recess employ experts and collect information to find out what is the best cattle-guard that can be devised, and we shall then undertake to deal with the question. 1 think that is the best course which can be followed under the circumstances, and I would submit it to the approval of my hon. friend from Halton (Mr. Henderson). This is a very important question, and a question which should be carefully considered. For my part, I am strongly of the opinion that the legislation now before us, will fail of its object, and I agree with my hon. friend from Middlesex (Mr. Gilmour) that the best way is to provide that the railway companies shall have the best cattle-guards. I submit to hon. gentle-Sir WILFRID LAURIER.

men, and particularly to the hon. gentleman from Halton, that we will serve best the ends which all of us have in view by following the course that has been suggested by the Minister of Railways, and allow the matter to stand until information is collected during the recess, when the question can be dealt with next session.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

Has the right hon. gentleman considered that if the amendment of the hon. member for Halton (Mr. Henderson) is adopted now, the law will be ready at hand next year. The amendment will not in any way prevent the government from putting into execution its resolution of examining into which is the best cattle-guard during the recess, but on the contrary it will facilitate the government in doing so. The amendment will thus give us a law coming into force next parliament, and will allow us to put the results of the inquiries of the government into force without legislating again. In the province of Quebec it is a very serious matter for us. I will not say that it has been agitated as vigorously as in the province of Ontario, but there is no doubt that we have suffered a great deal from this defect in the legislation. This grievance has been mentioned very often in the House. We have petitions asking for immediate legislation, and in my opinion the proper course for the House to pursue now is to adopt the amendment of the hon. member for Halton.

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The PRIME MINISTER.

I am aware that this grievance is not confined to the province of Ontario. We have suffered in the province of Quebec perhaps as much as in other provinces, but at the same time I would suggest that there would be more security, if, since we have to wait under any circumstances, we should wait a little longer and have before ns the result of the inquiries which will be made. In the meantime we will try to find an adequate remedy for the wrong, and if we incorporate that remedy in the statute-book next session, no harm will be done. The hon. gentleman (Mr. Henderson) has suggested that he would be quite satisfied to leave the selection of the cattle-guard to the Railway Committee of the Privy Council. That may be. but I think we can leave it with greater safety ito parliament itself. Next year we will be able to prescribe the nature of the cattle-guard in the law, and it will occur to everybody that that would be still more satisfactory than if we now adopt the amendment proposed by the hon. gentleman (Mr. Henderson).

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L-C

Andrew B. Ingram

Liberal-Conservative

Mr. INGRAM.

I do not think that the right hon. gentleman has gone so far as the Minister of Railways in his statement. I understood the Minister of Railways to say that he would carefully weigh the law as it affected the different provinces, and that he would be prepared at the next session to come down with legislation that would

remedy the evil in so far as it affected the wliole Dominion.

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The PRIME MINISTER.

I cannot say that I have discussed that point with the Minister of Railways and Canals, but I did discuss with him the question of the cattle-guard. If we provide a safe cattle-guard then we can very well adopt the reasoning of my hon. friend from Halton, that if there is an animal who jumps over a proper cattle-guard he should bear the consequence.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

The right lion, gentleman would greatly reassure me if he would tell me that next April we will have a law in force remedying this evil.

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The PRIME MINISTER.

I think I can answer that. If the hon. gentleman will not delay the session then we will possibly have such a law in force next April. That matter rests with the hon. gentleman himself. If he delays the session of course the law may not be in force in April.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

It would be in force at once, if I had the power.

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April 21, 1902