April 11, 1916

CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

That is another question entirely; I will come to that before I sit down. As to that I may say that I have more doubt than I have as to the point that I am arguing now. What I am arguing now is this: unless we vest in the Railway Commission a right of full rejection we cannot vest in them jurisdiction over a general route. It is true that the Act says that if that general route as laid down on the plan called for by subsection 1 is deemed not in the public interest by the commission, they must reject it. For myself, I see no material difference whether the word "may" or the word "shall" is uised. It undoubtedly would be the duty of the commission to reject it if they felt it to be not in the public interest. But they must be vested with that power or we strip the Bill, we emasculate the Bill and fail fundamentally to do What the Bill sets out to do. Under the present circumstances the minister, if he wishes arbitrarily to exercise his power, may, by rejecting the

approval, negative that general location. All that is said to the Railway Board is:

" ,If you. feel that that general location is not in the public interest we give you the right and we make it your duty to , negative that general location. " The hon. member for South Renfrew raised a point as to the overriding of Parliament. Of course, nolbody can override Parliament; no body can get powers except such as we give them. We are no more enabling the Railway Commission to override Parliament by this legislation than we enabled them in the original Bill to override Parliament. In each case we give the Railway Commission certain powers which previously were exercised by Parliament. If in the exercise of those powers they override what otherwise Parliament would have done, then in the present case they also override. But it is not an overriding; it is an exercise of functions given by Parliament. All that we have to decide is whether or not it is well to extend what they have power to do.

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LIB

Edward Walter Nesbitt

Liberal

Mr. NESBITT:

Would the Solicitor General kindly explain the difference between exercising a function and overriding Parliament, and simply overriding Parliament?

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CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

There is no difference.

I was setting out to say that there is no difference. But whenever you constitute a board and vest that board with powers that Parliament exercised before, you are doing just what the hon. member is complaining that we are doing by this Bill.

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CON

John Hampden Burnham

Conservative (1867-1942)

Mr. BURNHAM:

What would happen

if Parliament and the board disagreed on the policy pursued?

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CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGOBOEN:

There are two recourses, if it should be felt by any parties interested that the decision of the board was wrong. First of all, I understand that [DOT] there is a general appeal which it is not the policy of this Government, nor was the policy of the last, to exercise generally.

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IND
CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

It is still in the Act.

Furthermore, Parliament could pass specific legislation overriding the board in that instance. Or we could pass general legislation removing from tnein the power that we now vest in them. There can tbe no final overriding of .Parliament.

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LIB
CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

It is asked, what will be the function of. the Railway Committee after this Bill is passed. It appears that there is considerable residue for the Railway Committee.

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LIB
CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

But a very considerable residue. If there is any other board more competent than the Railway Committee, I for one would be prepared to pass the residue also to that board. It is all a question of which is the more competent. I think all will agree

that when it comes to a question of deciding on the location of a railway and the conditions under which such location shall be approved; when it comes to deciding whether or not public money could be saved by avoiding duplication, or whether or not public money could be saved in the matter of right of way, the Railway Board is the proper board to exercise the decision, and it cannot exercise that decision unless you vest in it a power of rejection as well as a power of correction.

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LIB

George Perry Graham

Liberal

Mr. GRAHAM:

I agree with a good deal that the Solicitor General says, but his argument rather goes round my point. It looks at it in the front, then goes round and views it in the rear and gets by it in that way. There is no question as to the matter of duplication. As railway lines become more numerous there is no doubt in the world that to give the Board of Railway Commissioners the power, putting it plainly, to make two railways run over the same tracks for a certain distance, is quite proper; it is a work of detail. But we are giving them power to say that the other railway shall not be built at all. Although we pass a charter providing that it may be built, we delegate to this board the power to say it cannot be built. That is what I object to.

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CON

John Hampden Burnham

Conservative (1867-1942)

Mr. BURNHAM:

Did we not give the

charter with the proviso that if the board said no, the line should not be -built?

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LIB

George Perry Graham

Liberal

Mr. GRAHAM:

That is what the Railway Committee is trying to keep itself busy at-but that will not be doing anything. It might as well pass out of existence if everything it does can be nullified next morning by the Board of Railway -Commissioners. To my mind, as representatives of the people, we are shirking responsibility. We are supposed to be working under a form of responsible government, by which every member is responsible to his constituents for

any vote that he gives in the Railway Committee or anywhere else. We-both Government and members-are throwing over that responsibility to a number of gentlemen, able though they may be, who are paid to do certain work. As to carrying out our wishes, our paid servants are better able to do it than we are so far as details are concerned; but in the matter of deciding policy we cannot escape our responsibility by handing it over to certain gentlemen, able though they may be. This Parliament is running away from its responsibility, and so is the Government-they shivered over an Act that was before them a few days ago -running away from its responsibility under the guise of handing over the details to men who are better able to carry them out than we are. So long as we retain the right in this Parliament to grant to railway companies charters to build, and to say where these roads shall be built, we ought not to hand over to any paid body the power to nullify that Act of Parliament. We ought to have the courage to define our own policy, and leave it to the Board of Railway Commissioners to carry out the details of that policy. *

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CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

I have no intention and equally no desire to say much about this measure, 'because I think that it is, on the whole, a pretty good Bill from the general point of view. But I have been very much impressed by the argument advanced by the hon. member for South Renfrew (Mr. Graham), and also by the argument of the hon. member for North Oxford (Mr. Nesbitt, in regard to subsection 3. I see the danger which the hon. member for South Renfrew has pointed out in regard to the delegation of power. It is all very well to say that we as a Parliament do not delegate, but we do, and it seems to me that this goes further than anything in any Railway Act heretofore. The question of the use of the words "may" and "shall" has been dealt with by the right hon. the Prime Minister, who has pointed out that "shall" means "may." I have very much doubt whether, where you find in the same section the words "shall" and "may" used, they will be interpreted as meaning the same thing.

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LIB
CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

The point is worth considering. If the Prime Minister's view is right, I would suggest that the word "shall" in subsection 3 be changed to "may." I

am speaking without any reference to shivers or shakes.

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IND
CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

Certainly not; I think this measure is in the public interest at large. Every bona fide operation which would come under the purview of the Railway Commission would have to stand upon its merits, and would be decided by an impartial board. I am casting no reflection upon any board; but, supposing the board were capable of giving an unfair decision, the delegation of parliamentary .power would become a very serious matter. It is also serious from the point of view of the knowledge of localities possessed by members of this House, who are interested in the working out of Bills in the Railway Committee. One can readily see how a man living in a certain locality through which it is intended to construct a railway will know a great deal more about it than the members of a board who probably have *never seen it. 'Section 56 of the Railway Act gives the right of appeal to the Governor in Council against any decision. It says:

The Governor in Council may, in his discretion, either upon petition of any party, person or company, within one month after the making of the order, decision, rule or regulation, or within such further time as the hoard under special circumstances may allow, or of his own motion, at any time, and without any petition or application, vary or rescind any order, decision, rule or regulation of the board, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application; and . any order which the Governor in Council may make with respect thereto shall be binding upon, the board and upon all parties.

So that, while we delegate, there is a way of having rescinded any unfair order and of reconsidering any policy, or any order that involves or affects a policy, in the shape of introducing new matter. Under these circumstances, I think the measure can very well go through, but I would suggest again that the word "shall" should be changed to "may" in subsection 3.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN:

Just another word in answer to the hon. member for South Renfrew and the hon. member for South Oxford. The Railway Act was introduced in this House by the right hon. gentleman who now leads the Opposition, and I think that, on the whole, it was the most creditable piece of railway legislation we have

had in this country. The late Government from time to time amended the Act and improved it, making it more and more progressive. To my mind this Bill only extends the usefulness of that Act, dealing with problems and difficulties that have arisen under it. If it does that, and that only, while the power of Parliament is still retained, I do not think that those who originally introduced the Railway Act should object to the widening of its powers even if they be of a rather drastic character. I am convinced that we shall have either to increase the powers of the Board of Railway Commissioners or . have the State take over the railways, in order to deal with the problems that lie before us.

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April 11, 1916