Under this Act the provision that the consent of the municipality shall foe obtained will be deemed to have always been in their charter. We are creating them trespassers from the very beginning, for having erected these poles and done all this other work without authority, and that is a very awkward position for them to be put in. They will be subject to all the drastic penalties that companies are liable to who violate their legislation. The Attorney General of Ontario might obtain an order confiscating their charter, because if this provision is to be made a part of their charter then their charter has been violated, and they are subject to confiscation of everything they have done under it. That is of far-reaching effect, and -we should certainly hesitate before putting a retroactive clause of that kind in their charter.
This general Act covers the special Act of the company, and therefore it is just the same as if this provision was in their charter. We are attempting to pass very drastic legislation which will cause the company to forfeit their rights because they have violated the law of the country.
Mr. A. 0. MAODONELL: I was not able to he present during the early part of this
discussion, but I took a very active interest in this Bill, as hon. members who were present will remember, when it was before the special committee. I do not know to what extent the section has been explained this evening, but I can assure the committee it received most thorough consideration by the special committee to whom the Bill was referred. Part No. 16 of the Proceedings of the special committee appointed to consider this Bill gives a record of the people who asked to have this clause put in. It is dated the 18th of May.
The people who came to that meeting asked the committee to pass this legislation. Among others present and made this request were the united municipalities of all Canada. The municipalities have organizations in the various provinces, and a Dominion organization. They came here as a Dominion organization and asked to have it inserted. The Hydro Electric Power Commission of the province of Ontario asked to have it inserted. They represented more than one hundred municipalities which have money in similar enterprises. The Ontario Government sent a man down here to advocate the insertion of this clause, and subsequently a very lengthy and a!ble memorandum was presented by the Ontario Government which was read by the chairman of the committee, and which will be found in No. 22 of the proceedings of the committee held May 31. The city of Toronto and other municipalities were represented. This is not a local^ matter concerning Toronto, or concerning the province of Ontario. It is Dominion-wide. On general principles I am opposed to retroactive legislation, but this is the only thing to meet the present condition, and I think its passage is justified. The different interests which asked for this legislation did so in part upon these grounds: In the year 1902 a company was formed and given a charter by the Parliament of Canada, under the name of the Toronto and Niagara Power Company. Under sections 12 and 13 of that Act this company can go anywhere and erect poles. It is true they are operating in the Toronto and Niagara district, but they are not confined to that, and' by their charter they can go anywhere in Canada without consent of the municipalities through which they go.
allow me to ask him a question? Is it not true that *by the provisions of subsections 2 and 3 of section 374, they could erect poles only by permission of the Railway Board, if the municipality objected?
Then let me read what it^ says, because I do not think my hon. friend has read it aright:
Notwithstanding anything- contained in any special or other Act or authority of the Parliament of Canada or of the Legislature of any province, the company shall not, except as in this section provided, acquire, construct, maintain or operate any works, machinery, plant, line, pole, tunnel, conduit, or other device upon, along, across or under any highway, square or other public place within the limits of any city, town, village, or township, without the consent of the municipality.
Section 3 says if they cannot agree they go to the Railway Board.
Let me point out to my hon. friend that power companies have two objects in view, and the general Railway Act provides for those two different classes of operation. The first is transmission lines-poles-which is not in any way touched by the clause now under consideration. This is absolutely under the general provisions of the Railway Act, and it is in the same position as the lines and poles of any other power company or of any telephone or telegraph company. What is aimed at here, and what is provided for, is the distribution of power, which is the second thing a power company does. The amendment under consideration in no way interferes with, impedes, or touches that transmission right. All that is dealt with in subsections 4 and 5 is the distribution of power, which is prohibited for the reason that this company had authority to distribute power without consulting anybody or any municipality, and is the only power company which has that right.
Does my hon. friend mean to say that the words "shall not, except as in this section provided, acquire, construct, maintain, or operate any works, machinery, plant, line, pole, tunnel, conduit or other device upon, along, across, or under any highway, square or other public place" do not mean the distribution of power?
No, I do not. What those who came before the committee asked was that power lines and power distribution should be separated from telephone and telegraph distribution because there has been so much litigation and such contradictory decisions with regard to the transmission and distribution of power under the Dominion Railway Act. In section 374 we are dealing entirely and exclusively with power. It is better so, and any court can so understand it, because it is not mixed up with otner distribution systems. As my hon. friend from Carleton, N.B. (Mr. Carvell) has just pointed out, subsection 3 is the same as the General Railway Act. The amendment under consideration in no way affects the transmission of power. It simply deals with the distribution of power. Subsection 8 of section 247 of the Railway Act, 1906, makes this provision with regard to the distribution of power and the erection of poles for that distribution.
Nothing oontained in this section shall be deemed to authorize the company to exercise the powers therein mentioned for the purpose of selling or distributing light, heat, power or electricity in cities, towns or villages, without the company having first obtained consent therefor by a bylaw of the municipality.
That has been the law for years, and that is the law to-day, for the protection of municipalities. The highways of the municipalities were sacred to the municipalities and could only be invaded for the purpose of running lines of poles for the distribution of power with the copsent of the municipality. For main lines, such as this company has, provision is made in the very section which we are now discussing. There it will .be found that provision is made for the transmission through municipalities of power by use of main lines and if the municipality does not consent, then the Railway Board is consulted and an arrangement is made. This company has, and will always have, the right to transmit power and to have lines wherever 'it wants to put them subject to the approval of the Railway Board, but the company shall not act as a distributing and selling company without the consent of the municipality.
That has been the law always. The municipality has the right to say whether a company shall act
as a distributing and selling company within its confines or not. That is a proper law. The Toronto and Niagara Power Company is not a general distributing company. It has main lines and it sells its power wholesale as I understand it. The section which is now under consideration in no way impairs or takes away one iota of business or the right which it has exercised in the way of transmitting power because it does not act as a general distributing company. It is a wholesale company producing power at Niagara Falls and transmitting it to Toronto and other places.
It has main lines to accomplish this purpose and there is no interference with its operations in that resipeet. It goes on with its main lines just as it did before.
I will come tc that. This company was incorporates in 1902 before the Railway Commission wa, appointed. The Railway Commission was appointed in 1903 and there was no tribunal to which reference couid be made in an Act of Parliament to settle disputed P 'ints between a municipality and a railway or power corporation. They were given wonderfully wide powers to go anywhere they chose, not only to carry their main lines through any municipality with or without the consent of the municipality but also- and here is the rub-to act as a distributing or selling company in any community and to sell their power without the municipality's consent. That is what this section is aimed at. The Toronto and Niagara Power Company commenced operations in North Toronto. They were running their lines wherever they chose and the corporation^ of the town of North Toronto said: You
cannot do that; you will have to comply with subsection 8 ,of section 247 of the Railway Act 1906, which provides that the company shall not do these things without the consent of the municipality. The Toronto and Niagara Power Company declined to accept 'that view of the matter and in defiance pf the municipality proceeded to erect poles. The municipality of North Toronto pulled down the poles, litigation followed, the case went to the Court of Appeal of Ontario and the Court of Appeal decided in 1911 that the company were bound by the Railway Act, that the Railway Act applied to railway, telephone, telegraph and power companies and that no power company could invade the streets of any municipality without the consent of
the municipality.. The Court .of Appeal decided that and the matter was thought to rest there. It did not. The Toronto and Niagara Power Company took the matter to the Privy Council.
read the law pf Canada under which that appeal was taken to the Privy Council and then compare it with subsection 2 of section 374? I have not the Act before me, but I would like to have a comparison of the two.
Railway Act, 1906, and section 247 is the general sectipn providing for " lines and wires on highways; consent of municipality; travel and access; wires; poles; trees; supervision " etc., etc. That is the general law in regard to wires, lines and poles in municipalities along highways, public places, etc. Section 247 has eight subsections and the eighth subsection is the one which has caused the mischief. I have already read it. It is as follows:
Nothing contained in this section shall be deemed to authorize the company to exercise the powers therein mentioned for the purpose of selling or distributing light, heat, power or electricity in cities, towns or villages, without the company having first obtained consent therefor by a bylaw of the municipality.
That is the general Railway Act. The Court of Appeal of Ontario decided that it bound the company notwithstanding the fact that the company by its special Act *has power to erect poles, lines and so on without consent.