Supreme Court of Canada
Grand Trunk Railway Co. v. City of Toronto, (1910) 42 S.C.R. 613
Date: 1910-02-15
The Grand Trunk Railway Company of Canada and the Canadian Pacific Railway Company Appellants;
and
The City of Toronto Respondent.
(Toronto Viaduct Case.)
1909: November 29, 30; 1910: February 15.
Present: Girouard, Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.
Railways—Jurisdiction of Board of Railway Commissioners—Deviation of tracks—Separation of grades—"Highway"—Dedication— User—Public way or means of communication—Access to harbour—Navigable waters—Construction of statute—"Special Act" -—R.S.C. 1906, c. 37, ss. 2(11) (28), 3, 237, 238, 241; 56 V. c. 4S(D.).
Prior to 1888, the Grand Trunk Railway Company operated a portion of its railway upon the "Esplanade," in the City of Toronto, and, in that year, the Canadian Pacific Railway Company obtained permission from the Dominion Government to fill in a part of Toronto Harbour lying south of the "Esplanade" and to lay and operate tracks thereon, which it did. Several city streets abutted on the north side of the "Esplanade," and the general public passed along the prolongations of these streets, with vehicles and on foot, for the purpose of access to the harbour. In 1892, an agreement was entered into between the city and the two railway companies respecting the removal of the sites of terminal stations, the erection of overhead traffic bridges and the closing or deviation of some of these streets. This agreement was ratified by statutes of the Dominion and provincial legislatures, the Dominion Act (56 Vict. ch. 48), providing that the works mentioned in the agreement should be works for the general advantage of Canada. To remove doubts respecting the right
[Page 614]
of the Canadian Pacific Railway Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company by the Dominion Government of the "use for railway purposes" on and over the filled-in areas included within the lines formed by the production of the sides of the streets. At a later date the Dominion Government granted these areas to the city in trust to be used as public highways, subject to an agreement respecting the railways, known as the "Old Windmill Line Agreement," and excepting therefrom strips of land 66 feet in width between the southerly ends of the areas and the harbour, reserved as and for "an allowance for a public highway." In June, 1909, the Board of Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there. Held, Girouard and Duff, JJ. dissenting, that the Board had jurisdiction to make -such order; that the street prolongations mentioned were highways within the meaning of the "Railway Act"; that the Act of Parliament validating the agreement made in 1892 was not a "special Act" within the meaning of "The Railway Act" and did not alter the character of the agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific Railway Company, having acquired only a limited right or easement in the filled-in land, had not such a title thereto as would deprive the public of the right to pass over the same as a means of communication between the streets and the harbour.
[...continues at great length and detail...]
