MONK (Jacques Cartier) moved for :

Copy of all correspondence upon the subject of an indemnity to Joseph Larose, of St. Laurent, P.Q., wounded in connection with the Cote St. Luc rifle ranges ; and copy of the judgments of the Exchequer and Supreme Courts upon the petition of right of said Joseph Larose.

He said : In moving for this correspondence with regard to the claim made by Mr. Joseph Larose, of St. Laurent, I merely wish to call the attention of the Minister of Militia and Defence (Hon. Mr. Borden) to the circumstances regarding it. The Minister of Militia and Defence and the members of this House will probably remember that three or four years ago Joseph Larose was very severly wounded by a bullet, which, as I think is admitted on all hands was established at the time he urged his claim against the government, came from the government rifle ranges at Cote St. Luc. An investigation was held by the department, and after taking evidence, the government came to the conclusion that Joseph Larose was entitled to an indemnity. This was a short time after the injury had been inflicted. The amount of $1,000 was placed in the estimates. But in the meantime the condition of Mr. Larose having become no better but worse, he consulted counsel in Montreal, retaining the services of one of our lawyers there, and after consulting others, his lawyer came to the conclusion that this sum of $1,000 was not sufficient to indemnify Mr. Larose for the injury he had received, the injury in the meantime having become of a permanent nature, as it is to-day. Ha therefore proceeded to obtain a fiat from the government in order to make a claim before the Exchequer Court. He proceeded by petition of right, and his petition was dismissed- I have not seen the judgment-but I think upon some technical ground. Speaking from memory, it was upon the ground that he had been wounded when he was not upon public works, but was off the area where those public works were being executed, and this barred his claim. That is what I was told ; I have not seen the judgment This motion calls for a copy of the judgment of the Exchequer Court, and the judgment of the Supreme Court as well. He appealed his case to the Supreme Court and the appeal was dismissed. To-day the claimant is exactly in the same condition as he was after the wound had been inflicted. He is no better and no worse ; he is disabled for life, and is unable to execute any agricultural work whatever upon his farm. He is not a man of large means, he is obliged to employ a paid servant to do the work which otherwise he would be able to do himself. Under these circumstances, I think it is proper that the equity of his claim should be once more brought to the attention of the government, and I would ask the Minister of Militia and Defence to investigate anew his claim, after communicating with the lawyer who represented him in these two courts, and if possible, to grant him, if not the indemnity which was voted previously by this House, at any rate some indemnity to which I think he is absolutely entitled.' Possiblv, in view of the incapacity in which he finds himself to-day to do any agricultural work, 1 Mr. MONK.

the government might find some employment for him. But under the circumstances, he having been unfortunate in his attempt to recover before the courts, having been defeated, so far as I understand, upon a mere technical point, I think his claim should commend itself to the minister of the department.

Mr. Speaker, the circumstances as stated by the hon. gentleman (Mr. Monk) are practically the facts. I am not thoroughly familiar with the judgment, but I know the result of the judgment is what the hon. gentleman has stated. In addition to that, however, I am aware that the judge, in delivering that judgment, expressed the hope- I think it was a hope-that the government might look further into the case, that although he had not been able to go into the case on account of some technicalities, he still thought it was a case that the government might fairly investigate further. I may say to the hon. gentleman that I have had it under consideration recently and that I felt that parliament would consent that the sum of $1,000 which was voted two years ago, I think, and not then accepted, should be again offered to Mr. Larose. In view, however, of the statement made by the hon. gentleman I am quite willing that a further examination of Sir. Larose should be made by a competent surgeon. I was not aware that his condition of health was serious. I was under the impression that he was able to do a certain amount of work, but if he is entirely unfitted for doing work perhaps it would be desirable that a further examination of the case should be made, and I shall be very glad indeed to have that done if necessary.

If I indicate to my hon. friend (Sir. Slonk) where he will find the judgments, perhaps he will be good enough to withdraw his motion as it would then be unnecessary for us to get the judgments of the Supreme and Exchequer Courts. Sly hon. friend will find the Exchequer judgment at 6 Exchequer Court Reports, page 425, and the Supreme Court Judgment at 31 Supreme Court Reports, page 206. I may just add that when the accident happened and an investigation was made by the Slilitia Department, it was decided to place $1,000 in the estimates to provide for the remuneration of Sir. Larose to some extent for the accident, although, of course, no liability was admitted. Sir. Larose was not satisfied with the amount then offered and took proceedings in the Exchequer Court by which proceedings he claimed $10,000 damages. It was found in the Exchequer Court that there was no jurisdiction in the court to deal with the case, because the accident, if accident there was, did not happen on what is known as a

public work, it being held that the rifle range at Cote St. Luc was not a public work within the meaning of the Exchequer Court Act. The judge said that he thought the amount then put in the estimates to make provision for the damages would still remain available to him. The amount did remain available. Notwithstanding that La-rose took an appeal to the Supreme Court, and the Supreme Court held, first, that there was no claim because the accident did not occur upon a public work, the man being a mile distant from the Cote St. Luc rifle ranges from which the bullet was supposed to have been fired, and it held further that as a matter of fact there was no evidence that the rifle ball had been fired from a rifle in the hands of a servant of the Dominion government or even of a militiaman, because the rifle ranges at Montreal are frequented, not only by militiamen, but by those who desire to indulge in target practise. However, so far as the courts are concerned, it has been decided that this matter is out of court. X am very glad to hear the Minister of Militia and Defence (Hon. Mr. Borden) say that the amount originally intended to be paid might still be available, and I think this is fairly generous treatment under the circumstances, because the Crown has been put to a fairly large amount of costs in defending these suits.

I was not aware that the court had decided exactly to the extent which the hon. Minister of Justice just referred, and I am not aware that the rifle ranges, being used with the consent of the government even by a man who is not a militiaman, would shield the government from responsibility. However, in view of the explanations which have been just given, I see no object in pressing the motion, and I would therefore ask permission to withdraw it.

I will read from the judgment of the Supreme Court the following extract:

I would say, apart from the reason that this rifie range was not a public work in the sense of the Act, that there is no evidence here that the suppliant's wounding resulted from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment, or that he suffered any injury on any public work. Moreover, it is not proved who fired the shot that wounded the suppliant. It may. have been fired by one of the amateurs, or volunteers not on duty, who were there practising on that day with the men having what is called in the case, government practise.

Motion withdrawn.

Mr. Speaker, I would ask the hon. gentleman (Mr. Maclean) to allow this item to be postponed as the government is going to introduce a measure to the same purpose.

Mr. MACLEAN.

May I ask the right hon. gentleman when the government are likely to introduce the measure ?

I think on Wednesday.

Mr. MACLEAN.

All right.

COWAN (South Essex) moved second reading of Bill (No. 4) respecting drainage on and across the property of railway companies. He said : Mr. Speaker, this subject of drainage on and across the property of railway companies is one that is not new to this House. It was some years ago introduced by the then hon. member for West Elgin (Mr. Casey). In 1900, some amendments were made to the Railway Act. The object and the purport of the Bill at that time was to amend the procedure by which municipalites and landowners could drain across the property of railway companies. In 1900, the Act was amended enabling landowners to come before the Railway Committee of the Privy Council. Prior to that time they could only reach it through the municipalities and if it were a drain under the Ditches and Watercourses Act of Ontario, not being a municipal drain, within the true sense of a municipal drain, tjjey could not get before the Railway Committee of the Privy Council. In 1900, the Railway Act was amended enabling a land owner to come before the Railway Committee of the Privy Council if he desired to drain across the land of a railway company. My object in introducing this Bill is to adopt the provincial laws in force in the various provinces enabling the landowners to use the provincial machinery to drain across the lands of the railway companies under the same procedure as they could drain across the land of any other landowner- with the exception, that wherever the procedure does not enable or provide for notice to be served upon the railway company, a notice shall be served upon them; giving the railway company an opportunity of agreeing with the engineer of the municipality or landowner as to the point at which the railway shall be crossed, and also as to the cost and other details in connection with it. In the event of these two parties, after a conference, failing to agree, the Bill then provides that the county court judge, or the judge having jurisdiction in the district, should settle the matter-the question of costs being determined by the judge. In order to safeguard the interest of the travelling public I have inserted a clause

to the effect that the railway companies shall have the right to do the work upon their own lands. I quite realize that it would be inadvisable to permit every person to invade the railway lands and construct a drain or tunnel under the road-bed. I have, therefore, in the interest of the railway companies, made that provision.

The necessity for drainage across railways was decided on in this House when the Railway Act was amended in 1900. I think the Prime Minister then admitted that there was a necessity for the simplification of the existing machinery. I contend that the Railway Committee of the Privy Council is not the proper tribunal before which a private landowner should be compelled to go in order to enable him to construct a drain costing practically only a few dollars. There are very few farmers who will invoke the machinery at present in force and go to the Railway Committee of the Privy Council. The name in itself 'Railway Committee of the Privy Council' scares the average landpwner from coming before that body, and the fact that an ordinary farmer may have to travel hundreds of miles to Ottawa is an absolute barrier. The farmers are not acquainted with the machinery of that tribunal, and I venture to say that there are not 50 per cent of the members of this Blouse; yes, not 50 per cent possibly of the lawyers of this House who are acquainted with the different steps to he taken in order to bring a case before the Railway Committee of the.Privy Council.

The portions of the province of Ontario which I think stand most in need of this legislation are the western counties. Take the counties of Essex, Kent, Elgin and Lambton and I am within the mark when I say that there is not a thousand acres in any of these counties but has been either directly or indirectly assessed and taxed for the construction of drainage work. In those flat sections of the country it is necessary to construct large artificial drains extending for miles, and portions of these counties present the appearance of being ditched like a checker board. So far as the county of Essex is concerned, the fall is to the north into Lake St. Clair. Along the northern border of that county, the Grand Trunk Railway and the Canadian Pacific Railway and the Michigan Central, three large trunk lines have constructed their road-beds. In order that the farmer could successfully prosecute an action under the Ontario law against a railway corporation for the damming up or damming back of water, it must have been a natural stream or a natural watercourse. There are but few natural watercourses in that county, because the water flows gently over the surface of the land with a fall probably of from four feet to nine feet per mile. The result is that there is not sufficient current, and no hill to precipitate the water at a rapid rate so as to form cuts in the Mr. COWAN.

earth, and so there are miles and miles in that county where the water flows gently over the surface of the soil leaving no track behind it that could within the meaning of the law be called a natural watercourse. The result is that when the water flows down to the railway track and the railway company construct their road-bed closing up the point across which that water originally flowed, no action will lie against the railway corporation, because they have not stopped up what is called a natural stream, or a natural watercourse within the meaning of the Ontario decisions.

If a farmer desires to cross that track with his drain he is compelled to come before the Railway Committee of the Privy Council. As we know, railway corporations are slow to grant anything that they are not obliged to grant. I venture to say that there are few instances in which any railway corporation has ever permitted a culvert to be constructed under its road-bed, until it was compelled to do so by the highest legal authority. Suppose the matter is in dispute and a farmer in the county of Essex finds it necessary to construct a drain, then you ask him to come 500 miles to the Railway Committee of the Privy Council at Ottawa, to bring his witnesses and his engineers, and to retain counsel. I say there is not one farmer out of a hundred who will do that. I am within the mark in saying, that in these low lying sections of the country every four or five years some farmer loses the entire crop of the soil, because he is unable to make proper drainage across these railways. The land in that section of the country being largely clay and not porous as in sandy sections, it holds the water on the surface and therefore drainage is absolutely necessary. There is scarcely a township in the county of Essex that has not spent hundreds of thousands of doUars in the construction of drains to drain the land. It is a direct tax. These drains are filled up with silt, they cave in and so forth until it becomes necessary to renew them about every ten years on an average. The tax for the construction of large drains in the county of Essex through the flat section, runs from 75 cents to $3 per acre and it is a recurring tax. The railway corporations, I am bound to say, wherever the opportunity was afforded them to prevent the farmer or municipality draining across their lines, have not hesitated to take advantage of the opportunity. One corporation draining through a natural creek found it necessary to cross a railway in the construction of a drain costing between $30,000 and $40,000, and the railway company refused to let the dredge pass under the railway bridge until arrangements were made for the payment what they said-according to the statement of the contractor-was the actual cost. They made an arrangement that they should pass under the bridge on a

Sunday afternoon when there was little traffic. It took twelve men four hours to raise the girders, and before the railway company permitted the dredge to pass, they compelled them to deposit $1,500, as according to the statement of the contractor-

I do not know how true-it was on the understanding that the sum was to cover the expense and that he was to receive back anything in excess of the actual expense. When he wanted to get the dredge out again he was compelled to deposit $1,500 more.

It took twelve men four hours, or forty-eight hours labour of one man, to do it. I complained to the Department of Railways and Canals of what I thought was a deliberate steal, and the reply I got from the department was that they had submitted my complaint to the railway company, and the railway company said there was a contract, and consequently the department could not interfere in a matter governed by a contract between the two parties. The corporation still has that $3,000 for ninety-six hours work. In other words, the railway corporation charged at the rate of $31 per hour for what cost it 12i cents per hour. There is no question of tariff or transportation, which is as important to the western counties as this matter respecting drainage. We do not want anything but what is fair, but we do want to be in a position to prevent a railway corporation from holding water back along its ditches for miles and flooding, in the county of Essex, the most fertile belt in the province of Ontario. Mr. Speaker, I move the second reading of this Bill.

Hon. JOHN HAGGART (South Lanark).

I would like to ask the hon. gentleman if he intends that the laws of the different provinces regarding drainage across the property of railway companies shall apply, not only as they are at present, but also as they may be from time to time amended by the different provinces.

Mr. COWAN.

Section 3 of the Bill provides that subject to the provisions of this Act municipalities and landowners shall have the right of drainage on and across the property of any railway company to the same extent and by the same proceeding as they have by law on and across the property of any other landholders. This is subject to the provision that the railway company shall have the option of itself constructing a portion of the drains crossing its own land. In this I think we would be adopting the laws of the provinces, as they are now. and as they may subsequently be amended. Such is the intention at all events.

Hon. Mr. HAGGART.

I have no objection to the Bill going to the Railway Committee and there being fully discussed. But I would like to draw the attention of the Minister of Justice to the question whether

we have . the power to delegate _ to the different provinces an exclusive jurisdiction which we possess ourselves. By the provisions of this Bill, we are going to apply not merely the laws and procedure of the different provinces at present in force, but as they may be amended from time to time by the provincial legislature. Of course I may be told that we are simply applying the same principle as applies in the Franchise Act, but I do not think that we have the right to delegate to the different provinces the power to legislate, as they may see fit, from time to time, regarding a matter over which we have exclusive jurisdiction. If we have the right to delegate this power to the provinces why not delegate it to the different municipalities or to the different townships, which are more directly interested and have a better knowledge of the subject than this parliament can possess ?

Mr. COWAN.

For the simple reason that no municipality in the county of Essex has any right to make a law which would enable anv landowner to drain across the property of another municipality or another landowner.

Hon. Mr. HAGGART.

If we have the right to delegate to a province could we not also delegate to a municipality ? I object to this Bill on the constitutional ground.

The hon. member has another ground on which he urges the acceptance of his measure. He says it will furnish a more expeditious and less costly means of dealing with the matter-that it is better to have it decided by a county court judge than by the Railway Committee of the Privy Council. Well, I have this much confidence in the Railway Committee of the Privy Council, even as at present constituted, to believe that that committee will deal with this matter better than any county court judge or arbitrators or any other judge the hon. gentleman may select in the county of Essex or elsewhere, both from the point of view of equity and cheapness. There is no cheaper tribunal to be had than the Railway Committee of the Privy Council. The party need not bring his witnesses, his counsel need not attend, the Privy Council will still hear the case, and may send, at the expense of the Dominion, an officer of the department for the purpose of looking into and reporting upon it. It is the cheapest and fairest possible tribunal that I know of. It is very popular to say that a party may get his witnesses near at home, and his counsel, and the court, and that that is a much cheaper and better system ; but until a commission is appointed, I believe that the cheapest and most equitable tribunal is the Railway Committee of the Privy Council.

But what I particularly object to is the delegation by the Dominion of its powers to the provinces, and I think that if the question ever comes before the courts, they will decide that we have no power to make

the delegation proposed either to the provinces or to the municipalities.

Mr. HAUGHTON LENNOX (South Sim-coe).

May I ask the hon. member for Essex a question ? I understood him to say that the work may be executed by the railway companies, with the object, of course, of securing public safety. Is there any provision in the Bill for determining the amount of expense ?