May 8, 1909


Amendment agreed to, Bill reported. Mr. CONMEE moved third reading.


CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Before this motion is carried, I would like to say that a great many objections to the Bill, in the first instance, seem to have been removed. The Prime Minister last evening expressed the opinion that this parliament has power to expropriate land belonging to and used or about to be used by a provincial government. I take absolute issue with him on that point. On principle, I think that this parliament has no power whatever in that respect, and the exercise of such power would lead to most absurd conclusions.

If this parliament, acting within the ambit of its jurisdiction, can expropriate or authorize the expropriation of lands belonging to the provincial government, then the legislature of the province, acting within the ambit of its jurisdiction, can authorize the expropriation of lands belonging to the government of Canada. There is no escape from that. If my right hon. friend's view were correct, the western provinces could get their lands back from Canada by expropriating them. They are the property of Canada, but the western provinces could expropriate them, and probably expropriate them without much compensation; because the ordinary principle of compensation, as any one who has bestowed the slightest attention upon the subject knows, is the value of the land, not to the person who expropriates, but to the person from whom it is expropriated. I have only to recall a very familar instance in which land in the very heart of London, owned by church wardens and vestry and incapable of being used by them except to let it remain as a churchyard, was expropriated by a railway company, to whom it was worth hundreds of thousands of pounds, but the church wardens and vestry could get no compensation for it whatever, because the basis of compensation was the value of it to them, and not the value to the railway company. So, if the power contended for existed, I would invite my friends from the west, who are interested in

the point to seize this opportunity and have the lands expropriated, because I can assure them that under the ordinary principles of valuation in such cases, very little would have to be paid for them. But, as a matter of fact, it seems to me that no such power exists. If it did exist, could not the parliament of Canada authorize the expropriation of the parliament buildings at Toronto, could not the legislature of Ontario return the compliment by authorizing the expropriation of land upon Parliament Hill, including, no doubt, $he site of the new hotel to be built in Major's Hill park. These powers do not exist. Nor, as I understand it, does this Bill purport to confer any such powers. It is an elementary principle of the construction of a statute that the Crown is not bound unless the Crown is named. That is a principle that has prevailed in the construction of statutes in Great Britain for the last six hundred years, and it prevails in the construction of our statutes as well. Therefore, inasmuch as this Bill does not purport to bind the Crown, it does not bind the Crown; it would not bind the Crown even if we had the power to bind it in this regard, which I contend we have not. Under these circumstances, with all deference to the members of the government of Ontario, and to the Attorney_ General of Ontario, I do not think that this Bill is so drafted that the province of Ontario has anything to fear from it in that Tegarcl. I agree with the view expressed by my hon. friend the Minister of Railways and Canals (Hon. Mr. Graham), and I think by the Prime Minister (Sir Wilfrid Laurier), last evening, that the Bill does not purport to do anything of that kind. 1 think the Prime Minister did make an exception with regard to the Nipigon river. But I do not know any authority for that. I think authority must be got from the legislature of Ontario before that can be done. Ontario could take proceedings to prevent trespass upon its lands, notwithstanding the enactment of this statute, and properly so. Why should this parliament undertake to give access to Ontario lands without the authority of the province, when the province, through its government and legislature, could give all necessary powers P Each government is sovereign within the ambit of its jurisdiction. And the principle of home rule in the Dominion of Canada has been carried out to that extent. Not only is the government and parliament of the Dominion of Canada all powerful within the ambit of its jurisdiction, subject, of course, to the legal power-but not the constitutional right-of the imperial government and parliament to interfere, but the provincial government and parliament is all powerful within the ambit of its

jurisdiction, subject to the powers reserved to this government under the British North America Act, especially the power to check provincial legislation -by means of disallowance. So, in that regard, I do not see any difficulty on the part of the government of the province of Ontario. But it does seem to me that the Bill is open to objection in another respect, and that is that the powers of expropriation undoubtedly will enable this company to gather up the interests of private persons in the localities which are mentioned in this Bill, and possibly to make a monopoly of them. I do not know enough of the local conditions to justify one in saying that a monopoly will be created, but it does seem to me that the granting of expropriation powers such as are given in this Bill has a tendency in that direction.

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LIB

James Conmee

Liberal

Mr. CONMEE.

The hon. member (Mr. R. L. Borden) will remember that the company, under the Bill as it is now, is confined to one river, so far as expropriation powers are concerned, and to one point only on that river. Therefore, the idea of monopoly, I think, is eliminated.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

That is the only objection I have to the Bill. I do not think it wise to grant powers of expropriation for purposes such as this, inasmuch as the grant of such powers must inevitably tend to the creation of a monopoly in waterpower, and water-power is the all essentia] thing to be conserved for the benefit of the people of the whole country. If my hon. friend from Thunder Bay and Rainy River (Mr. Conmee) can convince me that the Bill does not tend in any way to the creation of monopoly, then, I think, his Bill in every respect is absolutely reasonable. And I think the hon. member (Mr. Conmee) has been very reasonable indeed in his conduct with regard to .the Bill. He has agreed to eliminate many objectionable features, and I have no fault to find with his attitude on the Bill in -that respect. I dare say that he has very good precedents even in the matter to which I object. At the same time, we must not forget that new ideas and conditions are beginning to obtain in Canada with respect to matters such as this, that whatever the policy may have been in the past, the policy of the future should not in any way tend to the creation of a monopoly in the water-powers of Canada.

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LIB

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

Liberal

Sir WILFRIID LAURIBR.

I said yesterday, speaking upon this Bill, that, in my estimation and judgment-and I still adhere to my position-we have the power in this parliament to expropriate, but not to the broad measures my hon. friend (Mr. R. L. Borden) suggests which would carry the doctrine to an absurd degree. The position Mr. R. L BORDEN.

which I take, and upon which I challenge everything that the hon. member has said, is this: This parliament has power to

make laws for the peace, order and good government of Canada; this power carries with it all the corollary powers necessary to give effect to our legislation. One of our duties is to provide for public works. If, for instance, we order the construction of a railway, necessarily we have to give to the entity which we create the power which will make this enterprise effective, otherwise our powers would be nugatory, we should be giving a power which we could not enforce. Until it is settled otherwise by judicial authority, I contend that we have the power to enact any law that we think for the best interest of Canada, and the corollary power to do anything necessary to that end. We can even invade civil rights, though vested in the province. I agree with my hon. friend that the provinces have as much power within their authority as this parliament has. This is good Liberal doctrine, and it was fought out in years past, and I am glad to see it accepted to-day. The province is supreme within its authority, as the Dominion is supreme within its authority, and we have a right here to do all that is necessary to carry out any work which we provide for.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

Before this Bill is carried, I wish to refer my hon. friend the leader of the opposition to a case decided in the Supreme Court of British Columbia, in 1904, which he will find in Volume 11 of the British Columbia Reports. It is the case of the Attorney General of the province of British Columbia vs. the Canadian Pacific Railway Company. I refer particularly to the judgment of Hunter, Chief Justice, found on page 297. This question involved the right of the Canadian Pacific Railway Company to take lands which were admitted to be the property of the province of British Columbia, and the Chief Justice in giving the decision, uses these words:

On the other hand, it has never been doubted, so far as I am aware that parliament, in the exercise of its railway j urisdic-tion, may provide for the expropriation of such private interests in land as may be required for railway purposes. If the interest of one man may thus be taken, then why may not parliament do the same in the case of lands, the beneficial ownership of which is in the inhabitants of a province collectively, i.e., Crown lands.

He goes on and decides that once this parliament has jurisdiction to create a railway company then that company has power to expropriate any land, even Crown lands of the province of British Columbia. The same doctrine is laid down by Martin, Justice, pages 304 and 305, of the same volume.

I will not take up the time of the House in reading these decisions, I will send them

over to my hon. friend, and he will see that I am correct in the doctrine laid down that once the parliament of Canada incorporates a railway company with powers of expropriation, that company has power to expropriate the lands of a province.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

So far as my hon. friend has quoted the decision it is an authority in support of his view. But with all deference to that court, I would like to see the judgment reviewed by the Judicial Committee of the Privy Council.

House divided on motion for third reading.

YEAS:

Messieurs

Alien,

Aylesworth,

Beauparlant,

Beland,

Bickerdike,

Brodeur,

Bureau,

Calvert,

Carvell,

Cash, .

Chisholm

(Antigonish), Chisholm (Inverness) Clark (Red Deer), Clarke (Essex), Congdon,

Conrnee,

Dugas,

Ecrement,

Emmerson,

Ethier,

Eielding,

fisher,

Fortier,

Gauvreau,

Gladu,

Graham,

Guthrie,

Hunt,

Knowles,

Lapointe,

Laurier (Sir Wilfrid) Laver gne,

Law,

LeBlanc,

Lemieux,

MeCraney,

McGiverin,

McIntyre (Perth), McIntyre (Strathcona),

McKenzie,

McLean (Huron), McLean (Sunbury , Marcile (Bagot), Martin (Montreal, St. Mary's),

Martin (Regina), Martin (Wellington), Michaud,

Miller,

Molloy,

Murphy,

Oliver,

Pardee,

Parent,

Pickup,

Proulx,

Prowse,

Pugsley,

Rankin,

Reid (Restigoucbe), Richards,

Rivet,

Ross,

Roy (Dorchester),

Roy (Montmagny), Rutan,

Savoie,

Sealey,

Sinclair,

Templeman,

Todd,

Turcotte (Nicolet), Turcotte (Quebec County),

Turgeon,

Turriff,

Warburton,

White

(Victoria, Alta)-76.

NAYS:

Messieurs

Armstrong,

Arthurs,

Barker,

Barnard,

Barr,

Borden (Halifax), Bradbury,

Burrell,

Crosby,

Crocket,

Crothers,

Daniel,

Lancaster,

Lennox,

Lewis,

Macdonell,

Maddin,

Magrath,

Marshall,

Northrup,

Paquet,

Perley,

Sharpe (Lisgar), Sharpe (Ontario),

Foster,

Goode ve,

Haggart (Lanark), Haggart (Winnipeg), Henderson,

Herron,

Jameson,

Kidd,

Lake,

Smyth,

StanBeld,

Taylor (New Westminster),

Wallace,

Wilson (Lennox and Addington), Wright.-39.

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LIB

William Samuel Calvert

Liberal

Mr. CALVERT.

I beg to call attention to the fact that the hon. member for South Oxford (Mr. Nesbitt) has not voted.

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LIB

Edward Walter Nesbitt

Liberal

Mr. NESBITT.

I was paired with the hon. member for Grenville (Mr. Reid) ,-otherwise, I would have voted for the motion.

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


CANADA LIFE ASSURANCE COMPANY.


House again in committee on Bill (No. 56), respecting the Canada Life Assurance Company.-Mr. A. H. Clarke. On section 2, expressions used in chapter 71 of the statutes of 1879 defined.


CON

David Henderson

Conservative (1867-1942)

Mr. HENDERSON.

I have, on different occasions, in the standing committees of this House and in the House itself, expressed my opinion of this Bill, and it is only a keen sense of my duty to my constituents, to those whom I represent, that impels me again, at this time, to give my opinion upon the legislation that is offered to the House now. It may be remembered that a few days ago I moved a resolution asking that the Bill be referred back to the Committee on Standing Orders, in order that the House might be informed whether the notices that have been recently published were sufficient or insufficient for the purposes of this Bill. I did so feeling keenly that although the notice had been widely circulated it did not come within the requirements of our standing rules, that, inasmuch as the Bill sought to enact retroactive legislation, the notice to the public to appear and look after their interests did not refer in any way to retroactive legislation. I simply draw the attention of the House to this matter because it goes to show that either intentionally or unintentionally those in charge of the Bill did not give to the public that intimation that I think they ought to have that the rights of the policy-holders were to be taken away from them not only in the future, but in respect to the past thirty years. There is no doubt that the use of the word ' are ' in the notice did not cover what is contained in the Bill in which the words ' were ' and ' are ' are used. The word 'are' would not relate altogether to existing policies. Why the notice was put in that form I cannot say, but this I did regard as

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' COMMONS


a sufficient reason for asking the Bill to go back to the committee to be again reported upon. Following that motion, my hon. friend from South Simcoe (Mr. Lennox) moved that the Bill be referred back to the Committee on Banking and Commerce in order that the policy-holders who are so deeply interested in this Bill should have an opportunity of being heard and of expressing their views upon a matter which is of far reaching importance to them and to the dependants of those who have taken out life policies. I do not wish to reflect upon the House, but I regret very much indeed that the House did not see fit to allow the Bill to go back to the committee after so much money had been expended in advertising the Bill so as to permit policy-holders, of whom it is alleged there are 35,000 or 40,000 interested, to appear before the committee and state their reasons why they do not approve of this legislation. This Bill has been discussed in the House. Some weeks ago we had an important discussion and then the hon. Minister of Justice (Hon. Mr. Aylesworth) expressed himself very freely and gave a decided opinion as to what he thought was the main characteristic of the legislation. To my mind, the kernel of the whole matter lies in the question: Was there a mistake in the legislation of 1879? We are now asked to declare that what is contained in an Act of Parliament passed in 1879 means something different from what the ordinary acceptation of the English words used in the Bill would indicate. We have, what I may say, is the highest legal authority in Canada and the highest legal authority in Great Britain for the opinion which we hold. We do not believe that there was a mistake in the legislation of that day, not a tittle of evidence has been produced before the Committee on Banking and Commerce of any mistake, beyond the mere statement of the solicitor who had charge of a Bill before the Banking and Commerce Committee, Mr. L. G. McCarthy, who was a mere child at that time and could not possibly have any personal knowledge of the matter. I grant that a deep impression was made on the Banking and Commerce Committee by the statement of Mr. McCarthy, the solicitor, that Mr. A. G. Ramsay, who was for a long time manager of the company and who is a man for whom we all have the highest regard, considered that an error had been made away back in 1879. The statement was read hurriedly during considerable confusion, and, I think, very few of the members caught its drift. The moment the statement was read, instead of being handed to the clerk of the committee so that it could be examined it was deposited in the Mr. HENDERSON. valise of the solicitor and hurried away, so that we had no opportunity of examining the original letter or knowing its contents until recently when it was published. It has been stated that a great deal of force should be given to the fact that the Banking and Commerce Committee had passed the Bill. To my mind no force whatever can be attached to that fact. The committee were misled by the statement of Mr. McCarthy who alleged that a mistake was made. The statement of Mr. Ramsay was not presented to the committee in such a way that they could intelligently understand its meaning, and I say without hesitation that I consider the committee was misled. So keenly did I feel the position at that time that I asked that no division be taken in the committee. I said then and I hold to the same idea now that this is too serious a question to throw into the cauldron of partisan politics, and hence I asked the committee not to divide on the question and there was no division. Hon. gentlemen may say that was a unanimous vote. It was not, because it was decidedly stated that we did not propose to divide the committee for the reason I have given and a number of us in the committee voiced our opposition to the Bill. Consequently when it is said that a great deal of stress should be laid on the position of that committee, I say on the contrary that it should have no weight whatever because it was not an expression of opinion by the committee. That was a strong reason to my mind why the Bill should have been sent back to the committee again foy further consideration after having learned all the facts and especially the fact that the committee had been misled by the statement that a mistake had been made in 1879. We were told the other day by a leading gentleman in the House that the first thing of which we should be satisfied is that there was a mistake. If there was no mistake in the legislation of 1879 then there was no ground on which to pass this Bill. If the legislation of 1879 was what the Canada Life Assurance Company asked for there is no room for the appeal to this parliament to change the wording of that Act of Parliament and substitute some other words. I propose to read section 4 of Mr. Ramsay's letter which to my mind comes the nearest to an explanation of the reason for now asking this legislation. This I apprehend is the clause on which Mr. McCarthy endeavoured to make the committee believe that Mr. Ramsay thought there was an error: In the year 1879 it was deemed advisable to obtain an amendment to the company's Act of incorporation, and as the division of profits for upwards of thirty years had been made not in strict accordance with that Act, it was decided to apply to have it made clear in future that the directors might make the allotment and division of profits from the entire business of the company



That is from both participating and nonparticipating policies.



among the persons assured on the participation scale and the shareholders, and might increase the proportion of such profits as between such policy-holders and the shareholders, and that was the object and intention of the recital in the Act passed, 42 Victoria, chapter 71, and of the first section thereof. The whole business of a life insurance company consists of two things, dealing with participating policies and with nonparticipating policies. The investment of money, the investment of the reserve or capital is simply incidental to the carrying on of the insurance company's business or the issuing of participating and non-participating policies.


LIB
CON

David Henderson

Conservative (1867-1942)

Mr. HENDERSON.

Annuities if they are profit policies would be included under these too. There was nothing in Mr. Ramsay's letter to indicate that there was a mistake or that parliament had been misled at that time.

I propose to look at the petition presented in 1879 in order to point out where the House and the committee have been misled, and to follow up the declaration of the Minister of Justice that the first thing to be satisfied of is that there was a mistake. If there was no mistake then I say that we have no right to pass this legislation. If the Bill of 1879 was what the company wanted, and if they knew what they wanted, and if people insured on the strength of that charter,_ j>aid their money and obtained their policies, then I say we have no right as a parliament here to-day to change the contracts between the assured and the company even supposing there was a mistake in the Bill the company itself was responsible for it, the policy-holders were not responsible for it there is no reason in the world why the policy-holders should have their rights taken away now, even although the company did make a mistake thirty years ago. But I submit there was no mistake, there is no evidence that a mistake was made. All the evidence direct and inferential is that there was no mistake whatever. The company applied for an amendment to their charter and they obtained what they wanted. Who had to do with this application? Mr. A. G. Ramsay, who was manager, I believe, in the year 1875, was a man of high standing, of good business qualities, who knew all about life insurance, a man who knew what the board of directors wanted.

I do not think he was managing director at that time, I am not sure of that, but at any rate he was on the board from 1875

until the time he left the company, about 1899. No doubt the board consisted of men of high standing, chiefly in Hamilton- men who knew what they wanted, men who knew how to ask for what they wanted, and who would not have asked for anything they did not want. Who was the solicitor of the company at that time? It was Mr. Alexander Bruce, for whom, I assume, every hon. gentleman who knows him has the highest regard. He is a good lawyer, able to advise the board of directors and draft a petition to this parliament. He was a member of the firm of Bruce, Walker and Burton, in Hamilton, as well as solicitor for the Canada Life. Mr. Walker, I believe, is dead. Mr. Burton afterwards became Jus-time Burton, showing the high standard of men who had to deal with this whole matter. They were not second or third class, but high class lawyers.

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LIB

May 8, 1909