July 1, 1935, Vol. 25, No. 8 Judgments, orders, regulations and rulings (Ottawa) Page 157

Application of the Canadian National Railways for an Order granting leave to abandon the operation of that portion of its Deseronto Subdivision, in the Province of Ontario, between Trenton (M. 35.5) and Brighton (M. 45.4) a distance of 9.9 miles.



McLean, Assistant Chief Commissioner:

Application was made by the Canadian National Railways under section 165 (a) of the Railway Act, subsection 3 of the Canadian National and Canadian Pacific Act, 1933, and all other appropriate statutory provisions, for an order granting it leave to abandon the operation of a portion of the Deseronto Subdivision, in the province of Ontario, between Trenton (M. 35.5) and Brighton (M. 45.4)—a distance of 9-9 miles. The line passes through well settled farming territory, the apple industry being quite highly developed. A good paved highway open all the year round parallels this line, over which regular bus services are operated and many trucking operations are reliably conducted. Railway revenues have suffered severely from truck competition. The mileage in question extends from Trenton to Brighton. There are no intermediate stations on this line between these points. It was further stated that the line was used as a matter of convenience for the handling of freight, and that at no point is this line more than two miles distant from the Oshawa Subdivision. There has been no train service operated over the line in question, and no maintenance done since 1932.

So far as the application standing by itself is concerned, there is no opposition. The Brighton Township Board of Trade has signified its satisfaction at having the Canadian National Railway track between Trenton and Brighton abandoned. Subject to the status of the contract later referred to, the Town of Trenton is not opposed to the application. The Township of Brighton was represented by Messrs. Deneys and Tompkins. Mr. Deneys for the township stated that the farmers felt that as weeds had grown up they are a menace to the farms in the locality, and wondered if the tracks were to be taken up and whether the land could be turned back to the farms again, or else have somebody cut the weeds. Reference was made to the fact that from Brighton down through the township the railway is close to the highways, and empty cars are being stored which furnished a refuge for tramps. Counsel for the Canadian National stated that the policy of the railway was wherever possible to give the right-of-way back to the abutting owners of the land. He also undertook to look after the question of the cars being moved from the present location.

Under the agreement the railway agreed to establish a main line divisional point in the town of Trenton, and maintain and operate roundhouse and machine shop. The company was to employ in or about the divisional point premises at least one hundred men. Provision was made for some land being purchased. The town agreed to close certain streets in order to give additional yard room. The town to pay the railway $14,000 on completion of roundhouse and machine shop and commencement of operation thereof. There was to be exemption of municipal taxes and assessments, other than school taxes, for a period of ten years beginning with the assessment for the year 1912, and for the next ten years taxation at the annual value of $50,000. It was set out that should the railway at any time within the terms of twenty years mentioned in the agreement fail to maintain a divisional point at Trenton, and should remove or close its said shop or works, the railway shall return to the town the said sum of $14,000, and forfeit thereafter its said exemption from taxation.

In support of its position in regard to the status of the agreement, the town of Trenton relies upon section 35 of the Railway Act. Prior to the amending legislation of 1908 contained in section 8, chapter 61, 7-8 Edward VII, the Board had no jurisdiction in regard to the enforcement of agreements. Legislation aforesaid was repealed and replaced by section 1, chapter 32, 8-9 Edward VII. In view of the fact that jurisdiction so conferred was an invasion of a field hitherto occupied by the courts, the exact words of the section are worthy of the most careful consideration. It will be noted that the subject-matter of the section contemplates the doing by a party to the agreement of something concerned primarily with the physical construction or reconstruction and maintenance of the railway. (City of Victoria and Attorney-General for British Columbia v. Esquimalt and Nanaimo Railway Company, 24 C.R.C. 84, pp. 93-94. Application of the Municipal Corporation of the Town of Leamington, Ontario, for an order directing the Windsor, Essex and Lake Shore Rapid Railway Company to provide and construct a pavement on part of Erie street, Leamington, Ontario.) (13 J. & 0. of the Board, p. 213.)

Consideration of the character of an agreement which the Board has power to deal with under section 35 makes it clear that the section does not apply to the agreement between the town and the railway. The obligation of the agreement does not relate to service. It is apparent that an agreement as covered by section 35 must have to do with railways in operation or those intended to be operated in connection with or as part of the railway. No ruling, therefore, can be made upon the application of the town in regard to the status of the agreement, and order may go approving the abandonment of the tracks. This, however, is entirely without prejudice to whatever rights or remedies may be open to the town in the courts.

June 1, 1935.

Concurred in by Commissioners Norris and Stoneman.

Railways: C.N.Rys.

Stations: Brighton, Trenton