Re Northwest Grade Separation, Toronto, Bloor Street Subway. Application of Ellen Boland to invalidate the approval of Plan No. C. 829

Judgment

Hon. H. A. McKeown, K.C, Chief Commissioner:

This case was heard in Toronto on the 19th day of March, 1925.

After a hearing held in Toronto in May, 1924, this Board made an order which, inter alia, and as far as concerns the case now before us, directed the Canadian National Railway Company to construct a subway under the tracks of its Newmarket Subdivision, on Bloor street, in the city of Toronto, and to file plans showing such subway for the approval of the Chief Engineer of the Board, within thirty days from the date of the order, which was issued on the 5th day of June, 1924, and in accordance with such order, plans of the subway were approved by the Chief Engineer of the Board and filed on different dates.

On the 16th of October, 1924, the defendant company proceeded to expropriate two parcels of the complainant's land adjoining the subway, by filing in the Registry office of the city of Toronto on the date last mentioned, a plan and description of the lands proposed to be taken. In this, the railway company acted not by order of this Board, nor under the provisions of the Railway Act, but by authority of the Act incorporating the Canadian National Railway Company and the Expropriation Act. The necessity for such expropriation arose from the fact that the access of frontagers to that part of Bloor street affected by the subway is unavoidably interfered with in the construction of this work. Consequently, in order to provide reasonable and proper entrance to the street, the Canadian National Railway Company proceeded as above to expropriate two pieces of land owned by the complainant on the south side of Bloor street and fronting thereon. The first piece of land so expropriated, being a strip 30 feet in width and 242 feet in depth, running southerly from Bloor street, was taken in fee simple for the purpose of giving to the Loblaw Groceterias Company access to Bloor street upon the subway. In the other piece of land so expropriated, the railway company assumed to take a limited right or easement to enter upon and take possession of such land only for the construction of such slopes as may be necessary to conform with the grade on Bloor street as altered. This latter piece of land is a wedge-shaped strip fronting on Bloor street, running westerly from the westerly side line of the other expropriated parcel of land, a distance of 78 feet 10 inches, and having a depth of 7 feet at the easterly end, and of 2 feet at its westerly end.

The right of the railway company to take this step was sharply challenged by Ellen Boland, owner of the property so taken, and under advice of counsel she has raised an action in the Supreme Court of Ontario, asking that the expropriation by the railway company be set aside as illegal and unauthorized. Upon that question the Board has no opinion to express.

The action so commenced in the Supreme Court of the province came to trial lately before Mr. Justice Orde. During the hearing, the railway company offered in evidence as part of its case, the plan filed for the purpose of expropriation, which, it seems, had not then secured the approval of the Chief Engineer of the Railway Board. It was objected to on that account, but the learned judge permitted the plan so tendered to be submitted to the Chief Engineer for approval, and upon being approved by him it was admitted in evidence.

The application to this Board is for the purpose of cancelling such approval, which it is claimed would invalidate the plan and render the expropriation proceedings nugatory. It was strongly urged that the plaintiff in the suit (the complainant herein) was prejudiced by the approval of the Chief Engineer being given subsequent to the commencement of her action, and after all other evidence in the case had been submitted, for she claims that the approval of the plan is a condition precedent to the action of the railway company in taking the land in question. This contention did not impress the learned judge who tried the cause, which is said to be now on appeal from his decision.

In all cases this Board is concerned to exercise the utmost care that any step it may take should not interfere with or affect personal rights which are under litigation. And if action on the part of the Board, or on the part of any of its officials, would seem to have such result, application to rescind the same would be readily entertained. But in the case now before us, there seems to be no ground for such apprehension, for the matter is in this position: The expropriation proceedings were admittedly taken before the plan was approved and if such approval be a condition precedent to the commencement of such proceedings then, undoubtedly, all that the railway company has done in the way of taking the land in question is without legal foundation, and the defence thereon must fall to the ground, and no action of the Board invalidating the plan is required in order to entitle her to succeed. On the other hand, if, as was successfully contended in the trial court, the approval of the Board's Chief Engineer was not a condition precedent, but simply an incident to the proceedings the omission of which can be supplied at any time, it is not open to the complainant to ask that the plan be invalidated on that ground.

For this reason I think the application should not be granted on the ground that such approval has prejudiced or injured the complainant in the prosecution of her suit in the civil court.

And as far as concerns what might be termed the merits of the case, wherein it is claimed that the layout is improper and that access to the street within the subway should not be given to any frontager, but that in some manner such entrance should be carried to the level portion of Bloor street, regard must be had to the conditions prevailing.

The subway in question has a length of 786 feet, and at the lowest part thereof it is 17 feet below the elevation of the street. There is a clearance of 14 feet between the lowest steel structure and the travelled portion of the subway. The entrance which is provided by the plans, and complained of in these proceedings, is to the Loblaw business establishment. This entrance is shown as coming into the subway about 100 feet from its western end, and, there being at the point of entrance a drop of about 4 1/2 feet. The street forming such proposed entrance is laid out to a width of 42 feet and comes into the subway from the south side. The total width of the subway is 66 feet, of which 45 feet are available for vehicular traffic, at that point.

It will be readily conceded that wherever practicable subways should be kept free from side entrances, but a glance at the conditions prevailing throughout the city of Toronto and elsewhere makes it apparent that such ideal arrangements cannot always be maintained. Counsel for the complainant, and for the city as well, strongly urged that while it is true that other subways throughout the city carry side entrances similar to the one under consideration, yet the conditions existing at the time such subways w^ere built made it impossible to provide otherwise.

Objection was also made on account of the nature of the vehicles with which the Loblaw Company conveys the product of its factory or warehouse to its various grocery stores throughout the city, complaining that the length of such vehicles would result in a dangerous situation as they come in and out of the proposed side street.

As described by the learned counsel for the complainant, the procedure now followed in that respect seems to present elements of risk, but this, I think, must be taken care of by civic regulations, and, undoubtedly, the question of civil liability on the part of anyone using the streets in a reckless manner will play some part in rectifying an evil of that nature, if any such may exist.

I think each application of this kind must be dealt with having regard to all the circumstances attendant upon the application and the conditions prevailing in the locality. From a personal examination made upon the ground, and from a realization of the manifest objection, especially from a monetary standpoint, to the course urged by the complainant, I do not feel that the approval of the plan in question by the Board's Engineer should be reversed; and for the reasons above indicated I am of the opinion that the application should be dismissed.

Ottawa, April 7, 1925.

Assistant Chief Commissioner McLean concurred.