February 27, 1905

IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

It does not require unanimous consent ?

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CON
LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

The rule is that two stages cannot be taken on the same day except by unanimous consent, but the committee stage is not a stage.'

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LIB
CON

Peter White

Conservative (1867-1942)

Mr. WHITE.

What I wish to point out is that a Bill must have three separate readings on different days. But, when the committee stage is taken, the third reading may be taken when the House so decides. That is, the fact that a member objects does not prevent the third reading.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

But a member can object and have the question voted on..

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LIB

Robert Franklin Sutherland (Speaker of the House of Commons)

Liberal

Mr. SPEAKER.

Perhaps the matter had better be dealt with in that way.

Mr. RALPH SMITH moved the third reading of the Bill.

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Motion agreed to, and Bill read the third time and passed.


RAILWAY ACT, 1903, AMENDMENT.


House went into Committee on Bill (No. 2), to amend the Railway Act, 1903.-Mr. Lancaster. On section 1, 1. Section 227 of the Railway Act, 1903, ia amended by striking out the word ' or ' in the third line and substituting therefor the word ' and,' and by adding after the word ' expedient* at the end of the section the words ' but where-ever in any such portion of a city, town or village a railway crosses a highway at rail-level, the said speed of ten miles an hour shall in no event be exceeded, unless the company provides, by a watchman or gates at such crossing, protection against approaching trains for persons using the highway.' lion. CHARLES FITZPATRICK (Minister of Justice). This Bill was referred, at my request, the last time it was before the House, to the Railway Committee. I understand it was considered there and that the committee reported against it. I cannot see how the House can do otherwise than support the committee.


CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. E. A. LANCASTER (Lincoln and Niagara).

I do not think the House is bouud to support the committee, particularly if the committee did not do what was quite right in the matter. I might point out, to begin with, that the Bill did not go to the Railway Committee by the unanimous consent of the House. Several of us on this side protested and I think, rightly protested, that measures to change the public laws of the country should be dealt with on the floor of this House. Bills proposed by the government or by anybody with whom the government are in sympathy, or with whose legislation they are in sympathy, are dealt with on the floor of the House. Take for instance the Bill that has just passed. No one suggested that that should go to any committee. The Minister of Agriculture is the minister mentioned in the Bill, but no one suggested that it should go to his department for consideration. And quite right ; the Bill should be dealt with on the floor of this House. I will point out also that this House has never dealt with the merits of this Bill. Last ses-

sion it dealt with a Bill something like this, but more objectionable in the opinion of the railroads and the people supporting them. This Bill has not been dealt with, but was referred, against the arguments of those who promote it, to the Railway Committee. And it has been dealt with there, as those who opposed the sending of it there expected it would be, in a very curt and careless way. I think I can convince the minister that no such respect as he seems to think should be had for this Railway Committee in regard to a public Bill of this kind. And. the first reason is that, though the counsel for the railways acknowledged that an amendment to the law should be made, it was not made by the Railway Committee. Mr. Chrysler, for whom we waited for three weeks to come before that committee and tell us why this Bill ought not to pass, admitted, as proposed in the first part of this section, that the word ' or ' should be struck out and the work * and ' inserted. Yet, the Railway Committee did not do this. They did, I suppose, what they thought they were expected to do, and decided to report against the Bill. The government sent the Bill there, and I suppose the committee thought they sent it for that purpose. I am within the judgment of hon. members who were present in that committee when I say that the counsel for the railways made a very poor argument in support of the case of the railways and against the people, and that he was obliged to concede that the word in the section should be ' and,' not ' or.' That arose in this way : The Act provides that the

track shall be fenced or protected. Everybody knows that it should be both fenced and protected, because the Supreme Court has decided-as hon. members have heard stated pretty often-that ' fencing ' is fencing against adjoining owners, and has nothing to do with the highway. The section here proposed is to preserve the rights of travellers upon the highway-if the word 'traveller' is the right word to use;-the people who are properly, and in the exercise of their just rights, using the highway. 'Fencing' has nothing to do with this. It would have to do -with protecting the track along the property of adjoining owners, with a view to keeping cattle off the tracks. The counsel for the railways had to frankly admit-if that can be called a frank admission which is dragged out of one-that the law ought to be changed, that this had nothing to do with fencing at the highway, and that even if there was an order of the Railway Commission for the protection of the highway, the railway companies could evade it because they have to fence ' or ' protect, not fence ' and ' protect. They have to fence against adjoining owners and then protect as the Railway Commission orders. I hope we shall not be obliged to confuse the two matters covered by this section. We ought to consider separately the first portion and strike out the word ' or ' and insert the

word ' andX do not know whether the minister would desire me to go on with the discussion of the other matter, or whether he will consent to deal at once with what I have suggested.

Mr. FITZPATRICIv. I think the matter was referred to in the committee and was discussed, though I was not present in the committee. But I would like to see the decision of the committee approved of by the House.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

What the committee did was this : One gentleman after another spoke on the measure, there was a full hearing, and in the course of his remarks Mr. Chrysler made that admission. Then the chairman of the Railway Committee said, let us discuss the rest of the Bill first. Finally the chairman of the committee put the question as to whether the preamble should be adopted, some of us said, yes and some said, no, and he thinking that more said no than said yes, and the yeas and nays being called for, the preamble was declared lost. Then the committee reported here that they recommended that the Bill be not passed. I am not finding fault with what the committee did on that point of changing " or " to " and " in the way they had the Bill before them. But what I insist on is that public Bills should be dealt with in this XIouse and not sent to this committee, which is a mere cul de sac, as X have said, a place that leads nowhere. The fact that we went into Committee of the House upon this Bill to-day without any order having been made about it on the paper, is proof of what I say that public Bills must be dealt with on the floor of this House. However, I do not want to be discourteous to the Minister of Justice, but I am saying what I said in the Railway Committee. But the Minister of Justice seems to think that simply because a committee reported against this Bill we should adopt that report. Let me ask him where that will put us. Parliament requires that public Bills affecting the laws of the country shall be dealt with in committee, in Committee of the Whole House prirna facie. Now what is the use of sending a Bill to a special committee and then to sit here like so many wooden men, and say that we have nothing to do-with it, having sent it to a committee- it is true, it is not the right place to send it, but we thought there was a special reason why it should go there, being a Bill affecting railway corporations, we thought they had a right to be heard, and so we sent it there that the committee might have plenty of opportunity to know what the railways thought about it. But having done that, we must now sit still in this House and adopt the report made by that committee and never scan it at all. Let me point out this to the Minister of Justice, very little attention is paid to these public Bills when they go into the Railway Committee, because

everybody knows that the Bill is going to be slaughtered when it gets there. In the Railway Committee twenty-three members voted for this Bill and sixty-one voted against it. not half the Railway Committee, not one-third of this House, not one-third of the members of this House voted against this Bill. The Minister of Justice may say. why did only twenty-three vote for it ? Let me tell him that more than twice as many voted against sending it to the Railway Committee, the members of this House did not want it to go to the Railway Committee, and a good many more of them voted that we Should not send it to the Railway Committee than bothered about attending to it in the Railway Committee.

Now what is this V This is changing a public law. The argument against this Bill in the Railway Committee was limited to this; when counsel for the railways thought that we should deal with every individual case separately and on its merits, on the ground that the individual cases were distinct. that no two were alike. You would have had to deal separately with each question of a railway crossing. You would have thought from his argument that this Bill applied to all railway crossings in Canada, while as a matter of fact it is limited to a very small proportion of railway crossings. But the secret of the matter is this : The Railway Commission sits there as a court deciding these cases as a judge would, and the municipality is put to the expense of a law suit with regard to every crossing. The railways know very well that municipalities will therefore make as few applications as they possibly can. More than that, the cat was let out of the bag by the gentleman appearing on behalf of the railways when he said that my Bill was mischievous because it made the company pay the expense of this protection, even if it was necessary, Miseliiet ous ! Mischievous foi" any representative of the people in this House to contend that when a railway creates a dangerous condition which did not exist until the railway went there, the railway should be at the expense of minimizing that danger as much as possible. That is the sort of language we hear in the Railway Committee. No lion, gentleman in this House would dare to say it was mischievous legislation. But the counsel employed by the railway companies who go to that committee, where we are sent against our will, when we are advocating a change of the law in the interests of the people says that the legislation is mischievous. When we ask him wherein the mischief lies he says because it puts all the expense upon the company. He does not conceive that the municipalities suffer any injury at all. My Bill is limited to tracks running on a rail level, my Bill is limited to cases where danger is created by the company. The municipalities are the original proprietors, the railway company is [DOT]only a licensee paying no rent to the rnuni-

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

cipality. Prirna facia, the municipality has a right to that highway, they use it for public purposes. My Bill however was limited to cases where danger is created by the company, who have the option if they'wish, but think they ought not to be put to this expense, of making a bridge or of passing underneath through a tunnel. But because it is of more expense to them to go over by a bridge or underneath through a tunnel, and because they wish to avoid that greater expense, they characterize as mischievous the legislation proposed by an hon. member of this House making them liable for the danger they create. We are told it is mischievous to say that a railway should be held responsible for a danger that did not exist before the railway went there, notwithstanding that the railway is allowed to run freely in the interests of colonization, notwithstanding that the municipality is not allowed to say whether it shall cross their highway or not-realizing that in the interest of the country you must allow them to run on a level, more or less. If they run on the level, it is because it is to their own interest, and because they can run there for nothing, without being at the expense of making bridges or tunnels, and having a law changed which existed since 1857, and which involved the principle of declaring that in this particular class of cases they shall not exceed ten miles an hour without furnishing protection. Yet when anybody goes there and says this principle should be put into practice, this legislation should be passed-because by a decision of the Supreme Court it amounts to nothing as it stands-the argument of the Minister of Railways opposing this measure in the Railway Committee was that it was not necessary to have this amendment-he did not say so, but his argument was that the section was not necessary. His argument was that it was not necessary to have this section, He said that the Railway Commission, under other sections of the Railway Act, can deal with these matters as individual cases and that it is not necessary to deal with the thickly peopled portions of cities, towns and villages where the track runs at the level of the highway as a general thing. But, while he said that he did not suggest striking out the section. The section which I am amending says that there should be a different state of affairs in respect to thickly peopled portions of cities, towns and villages. The section that I seek to amend reads as follows, and there has been a provision of this nature in the law since 1857 :

No train shall pass in or through any thickly peopled portion of any city, town or village, at a speed greater than ten miles an hour, unless the track is fenced or properly protected in the manner prescribed by this Act.

In 1903, we added some words to make sure that the Railway Commission would still have power which they have under the

17S6

other sections of the Act. By the other sections of the Act. as pointed out by the hon. Minister of Railways and Canals, the Railway Commission can deal with all these cases individually and he suggested- and counsel for the railways made the same suggestion-that they could deal with a certain class of cases that might be more dangerous than others. But, it never struck the hon. minister that I am now dealing with a certain class of cases of a peculiarly dangerous character, and that my proposed legislation is limited to these cases. Since 1S57. parliament has thought that there should be a limitation imposed in regard to thickly peopled portions of cities, towns and villages. The Supreme Court, having decided that fencing meant fencing against adjoining owners of the track and that that was enough where the Railway Commission had not ordered a special protection. it is open to some of us in this House to provide either that the Supreme Court decision shall no longer apply, but that there shall be some general protection provided in the class of cases mentioned in the section. something that you do not have to go to the Railway Commission for particularly, or else strike out the section. If I believed what the hon. Minister of Railways and Canals contends for. I would move to strike out that section. But I do not admit that we should not have that special protection without having to ask for it in every case from the Railway Commission, and therefore I want to amend the section and make it practicable. If I am wrong in my view, this section should be struck out because in the view of the hon. Minister of Railways and Canals it is not necessary for the reason that you can get all you want individually from the Railway Commission, that having put into the Act some other sections which give you the power to go to the Railway Commission and get a special order in these particular cases you do not need this particular law. You do need it if you are not going to have a special suit against every railway in every case. Things are said in the Railway Committee by counsel for the railways that no one would say in this House. It was said there that all you had to do was to write a letter and the Railway Commission to make a special order in some particular case and they would make it. The Railway Commission have not been very well organized since they were established. They have not broken their backs in getting away with the work that has been put upon them since 1903. They have not made a great deal of progress in dealing with matters before them but they have made enough progress to issue a lot of hard and fast rules governing every poor man who goes there to get his rights. You cannot approach them under these rules which I hold in my hand unless you come according to the etiquete there laid

down and yet we listened in the Railway Committee of this House to such statements as this : All you have to do is to write a letter. The rules of the High Court of Justice of Ontario are no more technical than these are. You have to state your claim in the same way, you have to prove service, wait for an answer and reply to that answer. You have the Exchequer Court practically so far as practice goes and in so far as every one of these crossings is concerned. Then, it is stated that there should be some rights in regard to this particular class of cases in all cities, towns and villages, and I invite the hon. Minister of Justice (Mr. Fitzpatrick) to seriously consider whether he is properly acting as Minister of Justice in this matter in assisting the hon. Minister of Railways and Canals or the railway corporations in frustrating legislation of this kind. Some remedy is required. It does not do to have the people of the small municipalities, the cities, towns or villages of this country obliged to go and make a special application in regard to each particular crossing to the Railway Commission. These cases are all alike. I point out again to the hon. Minister of Railways and Canals that the Bill which I introduced last year has been altered in two important particulars. Objection was taken to the Bill which I introduced last year because the Bill covered the incorporated limits of cities, towns and villages instead of being limited to thickly peopled parts. I have limited the Bill now before the House. Last year the Bill was objected to because I limited the protection required to watchmen, it being held that gates might be a better protection than watchmen. I have conceded that point. I have complied with two out of the three objections raised. Then there arises what I might call a constitutional question as to whether the people are to have their rights on the highways declared by parliament, by people who are entrusted with that question, or whether such legislation is to be delegated to a Board of Railway Commissioners who are not elected by the people and who are not responsible except to the government who appoint them. Under these circumstances I think the hon. Minister of Justice might suggest some way in which that could be accomplished if he thinks it can be accomplished in any better way than under this amendment. If he thinks it fair that there should be protection afforded to these people does he think it is fair that in respect to every little crossing in every little town coming within the certain limited class that I have described, you should have to make a special application to this Railway Commission and be subjected there to what?-to what counsel for the railway companies suggested, an order being made that this House would never make and which it could hardly constitutionally make that the municipalities should pay part of the expense.

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Railways incorporated and built under the law indicating to everybody that they are properly protected in some way where they cross the highway at rail level in thickly peopled portions of cities, towns and villages, and the Railway Commission not elected by the people, having no general power to amend the law would be practically changing the law by saying that as parliament does not deal with that question, as parliament does not insist that this matter must be carried out, we do not suppose that parliament is unanimous in the opinion that the people have the rights that are contended for and we will say, seeing that parliament votes down a Bill of that kind, that they have as much right to pay part of the expense as the railway has. As the right hon. Prime Minister (Sir Wilfrid Laurier) is in the House and knowing that he cannot always be here in the evenings- I am not finding fault with him because he cannot always be here in the evenings-I would like to ask him if he does not think some remedy for the existing condition of things should be carried through by this parliament.

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Rt. H@

Ail 1 have to say to my hon. friend is that rightly or wrongly this matter has been referred to the Railway Committee and the Railway Committee has passed upon it. I may say that the invariable rule of the House is to adopt the report of its committees, unless there are strong reasons shown to the contrary.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

Is not that limited to private Bills ?

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir AVILFRID LAURIER.

I see no reason why the same rule should not apply to public Bills. If a Bill is of such a character that the House thinks it advisable or proper that it should be referred to a committee of the House and the committee reports upon it, it would be expected that it would adopt the report of such committee. I cannot see any reason why there should be a difference in this respect between a public Bill and a private Bill. Whether it be a private Bill or a public bill, the moment the House has thought proper to refer it to a committee, the rule has been that the House should abide by the decision of the committee. It is not binding upon us; we can do the reverse, but it is a safe rule.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

What about the merits of this Bill?

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

The merits of the Bill were dealt with by the committee to which it was referred.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

It is about six o'clock and as this is almost the last order of a private nature that is on the paper, and as wo could hardly conclude the discussion on it to-night even if we did come back, I do not see the absolute necessity of calling us to-Mr. LANCASTER.

gether to-night. I suppose the government are not ready with any of their work to go on.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir AVILFRID LAURIER.

Oh, yes, we are always ready. This is a private member's day, and if there is a desire on the opposition side to adjourn I have no objection. I move that the committee rise, report progress and ask leave to sit again.

Motion agreed to and progress reported.

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February 27, 1905