July 18, 1917

CON

Francis Cochrane (Minister of Railways and Canals)

Conservative (1867-1942)

Mr. COCHRANE:

They built it long

after they got the franchise and long after they invested their money in the streets of Toronto.

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LIB

Edward Walter Nesbitt

Liberal

Mr. NESBITT:

They built it under that special Act. That is what we are objecting to. My hon. friend wishes to make that provision retroactive, practically confiscating the bonds sold by the company in England on the credit of this country.

Mr. CARVEnL: I do not accuse the member for East Lambton of trying to mislead the committee, but when he takes the trouble to read all the clauses of the special Act under which this company was incorporated twenty years ago he unwittingly

misleads the committee. I am afraid-I do not say it offensively-that my hon. friend has not grasped the real contention. We do not ask that any company have the right to use the streets of any municipality without the consent of that municipality. All we ask is that the provisions of section 374 be left alone. Make them general; do not make any special cases or discriminations.

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CON

Joseph Elijah Armstrong

Conservative (1867-1942)

Mr. J. E. ARMSTRONG:

If the retroactive clauses are left out, will this same company not have the power to go into any municipality in Canada, erect poles and carry on operations without the consent of that municipality?

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

No, certainly not; that is what I am pointing out. The section as drawn is a perfectly reasonable section and should be applied to every corporation in Canada. First, it defines " company." Secondly, it provides that the company shall not erect poles, plant, or lines without the consent of the municipality. Subsection 3 provides that if the company cannot agree with the municipality, reference is had to the Railway Board. That is all that we ask in this case. We ask that the Toronto Electric Light Company shall be placed in the same position as any other corporation in Canada. The member for Guysborough (Mr. Sinclair) has pointed out that this company received its charter from this Parliament eighteen or twenty years ago. It is in evidence before the committee-and this, I think, is absolutely undisputed-that the company sold bonds in England to the extent of $15,000,000.

Mr. COCHRANE [DOT]_ There is no evidence of that.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

That statement was

made by a reputable solicitor; 1 forget his name. My hon. friend did not challenge the accuracy of his statement at that time, and I am sure that he will not do so now. They expended that money in good faith under their charter. If the Parliament of Canada provides that this company cannot go on any further without the consent of thfe Railway Board, that is all right, because they are being treated the same as every other corporation in Canada. Twenty years ago Parliament gave rights to corporations that they would not think of giving now, and it is quite right that some of these provisions should be abridged. But it is monstrous to take away from one particular company the rights on which they borrowed money and sold their bonds; to hold them up, and say: You cannot pro-

- ceed even if the; Railway Board says you can; you are entirely bound by what the municipality says. The principle of appeal to the Railway Board in such cases is exactly the same as the right of expropriation on the part of a railway

company. If the railway company

did not have the right of expropriation, you would never have a public work in Canada; somebody would always be selfish enough to hold up the enterprise because they could not get what they wanted for the right of way.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. CURRIE:

My hon. friend knows that in the United States there is no such right as he speaks of.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

They have the right of eminent domain in the United States. No railway on earth could be built without that right.

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CON
LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

They have the right of eminent domain in the United States. A gentleman who knows as much as my hon. friend does ought to know that.

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CON
LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

But you do; that is why I think you ought to know this. If my hon. friend will look at any of the works on eminent domain published in the United States, he will find not merely books, but volumes, on the exercising of that right. What applies to the farmer in respect of right of way ought to apply to the municipality. We must have electric light and power companies. The world is moving; Canada is moving; but we cannot move properly unless we have all the modern appliances that make life better. But you will run up against a selfish municipality just as you will run up against a selfish farmer, and you should have some power to prescribe the conditions under

which this right of expropriation shall be exercised. The first three subsections are perfectly fair; the city ought to have control of its own streets. But if the municipal authorities are unreasonable; if they want to live as they have lived for fifty years, somebody ought to have the right to step in and decide the matter. All we ask is that the law be applied to this company the same as it is to all other companies. I move that subsection 5 be struck out.

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CON

William Folger Nickle

Conservative (1867-1942)

Mr. NICKLE:

Before I came to the meeting of this committee, I had not an

opportunity of giving very careful consideration to section 374. But reading it here this evening it seems to me that subsection 4 is diametrically opposed to subsection 3.

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LIB
CON

William Folger Nickle

Conservative (1867-1942)

Mr. NICKLE:

Subsection 3, as I read it, seems to vest in the Railway Board the discretionary right of determining whether or not a company shall have the right to exercise its powers, providing the municipality and the company cannot agree.

Subsection 4 however, seems to override subsection 3. lit says that, unless a by-law of the municipality is passed, then no matter whether the board consents or not, it is impossible for the company to go on with its work. If I were asked to construe that section it seems to me that I would be driven to the conclusion that the two subsections were so antagonistic that it would be very difficult to know exactly what was meant. But my .inclination at the present time would lead to the construction that subsection 4 was the prevailing subsection, and that nothing could be done even if the board consented.

Turning to subsection 5, it seems to me that the latter part of that subsection contains a very dangerous clause^the clause that states that no matter what a company may have done subsequent to a certain date that work were illegally done if the consent of the municipality had not been obtained, even although the provisions of the .company s private Act may have been respected. I do not know the particular case that w.as aimed at by this section, if, indeed, there be any particular case, but certainly it seems to me unreasonable that we should legislate in such a way as possibly to deprive certain companies of the value of their .property. Because unless they .had obtained the consent of the municipality any works they had erected subsequent to 1907 they would have no right to continue, even although such work might have been done pursuant to their private Act. This might turn out to be legislation of the most radical kind in certain cases; it might be confiscation.

I think this matter should be carefully considered before the committee gives its consent to the enunciation of a principle as broad as I .consider this to be.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

My hon. friend has

raised a very important point. On first thoughts I would -ask to have both subsections 4 and 5 struck out. Subsection 4,

or 'the first part of it at all events, although. not in the same words as subsection 2, is of the same legal effect. In the latter part of subsection

4 my 'hon. friend will find one of these little gentlemen again, the meaning of which nobody knows unless he happened to be present at the meetings of the special committee and heard it explained. It says:

Provided that this subsection shall not prevent the company from delivering or supplying such power by any means now existing or under the provisions of any contract now in force for use in the operation of any railway or for use by any other company lawfully engaged in the distribution of such power within any such city, town, village or township.

That in plain English means this: The Toronto Electric Light Company have at the present time wires for bringing energy from Niagara Falls to Toronto for distribution to the Toronto Street Railway Company. They also supply power to certain industries, and to some extent supply electric light. Now that corporation, or the gentlemen who represented it, were willing that they should be allowed to continue doing what they have been allowed to' do up to the present time. Their attitude was: "Thus far and no further shalt thou go. You can still supply power for the railway, still supply power to the industries you are already serving, still go on supplying electric light, but you cannot expand. You have to stop right there, and never go one step further unless the city of - Toronto want you to." That was the reason for the introduction of subsection 4. In my judgment both subsections. 4 and 5 should be struck out. The clause would he perfectly intelligible and perfectly fair without them. I think that if subsection 4 is allowed to remain in the Bill it will still be regulated by subsection 3. If they could not agree upon the location of the poles, or whatever it might be, they could apply to the Railway Board. I think that subsection 4 is dangerous and ought to come out in to to.

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CON

William Folger Nickle

Conservative (1867-1942)

Mr. NICKLE:

I do not want to follow my argument any further, but I should like to know what the hon. member for East Lambton thinks of my contention with regard to the construction that should be put on the latter part of subsection 5. I am thoroughly with him to the extent that municipalities should control their streets, but I want to know whether in his opinion the latter part of subsection 5, as drafted, would make it legal work that had been done pursuant to a special Act, if the consent of the municipality had not been obtained under subsection 4.

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CON

Joseph Elijah Armstrong

Conservative (1867-1942)

Mr. J. E. ARMSTRONG:

I do not know that it is up to me to attempt a legal argument, but I may say that I have gone over the evidence that was presented to the committee very carefully, and I am satisfied that this legislation is in the public interest.

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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

I have listened to the hon. member for Carleton and the hon. member for Kingston, and I think I understand the points they are making. I understand them to say that this company had the right under their original charter to erect poles and construct other work without consulting the city. We are now asked to pass an Act which will make it incumbent upon them to have obtained that consent; the clause is retroactive. Are we not making the company trespassers ab initio as regards all the work they have done?

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LIB
LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

This legislation is to have effect from the time they got their charter.

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July 18, 1917