May 20, 1919

UNION

Thomas George Wallace

Unionist

Mr. WALLACE:

Would the minister

kindly postpone the consideration of this Bill until every member has a copy of the amendments sent by the special committee to the House of Commons Committee? Some of the members have not had an opportunity of considering them.

Topic:   RAILWAY ACT CONSOLIDATION.
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UNION

John Dowsley Reid (Minister of Railways and Canals)

Unionist

Mr. J. D. REID:

The hon. member was present on' the Committee and knows the amendments that were proposed, and I hardly think it is fair that we should postpone proceeding with the Bill. We know what the amendments are when they are mentioned here.

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UNION

Edward Walter Nesbitt

Unionist

Mr. NESBITT:

I would suggest that it might be well to postpone the consideration of any long amendments, but there is no need to do that in the case of small, simple amendments such as changing a word or tvvo.

Mr. H. A. iMAlOKI'E: In answer to the inquiry of the hon. member for Parkdale (Mr. Mowat), the following cases have been decided on the point on which I touched regarding the question whether a judge is persona non designata or has the power of the court:- j

Marsan vs. G.T.P- (2 Alta. Law Reports): Saunders vs. E. D. & B. (6 Alta. Law Reports) : Gauthier vs. C.N.R. (7 Alta. Law Reports). In every one of those cases the question was discussed whether an order given by a judge sitting as an arbitrator had the force and effect of a judgment of a court. If it has not, you may not appeal from it; if it has, you may appeal. A very peculiar situation has arisen, in this way: Where notice has been given of an interim direction by a judge, and notice of appeal has been taken from that direction, subsequently, if an arbitration was held, you could not appeal from the arbitration because, it would be contended, you had appealed from the direction. Then the question would be; should we have appealed from the direction? This question has arisen, and I should like to have the point cleared up. '

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L LIB

Daniel Duncan McKenzie (Leader of the Official Opposition)

Laurier Liberal

Mr. McKENZIE:

The doctrine which the hon. member expounds is well known to the law. I did not have the opportunity of attending the Committee when this Bill was being considered. The question is, was it the intention of the Committee that the judge should sit as a judge and discharge the ordinary functions of a judge, from whose direction there would be an appeal? If it was the intention of the ' Committee that the judge's decision should be final, there is no necessity for providing for an appeal. If- that was not the intention, we should make it clear what was intended.

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UNION

William Alves Boys

Unionist

Mr. BOYS:

I think there is no question that it was the intention of the Committee that there should be an appeal, because the Committee dealt with section 232 in which an appeal is provided for. I do not think the point raised by the hon. member for Edmonton applies in so far as the province of Ontario is concerned, unless it be on a question of practice. If his idea is that we should expand the meaning of the word judge so that any action on the part of a judge acting under this Act should be subject to the ordinary appeals and consolidated rules of the province of Ontario, that would necessitate a complete revision of the rules and would revolutionize our practice. Section 232 lays down that an appeal shall lie, and the proceedings that are to be taken. It was the intention of the Committee that that appeal should be open either to the railway company or to the person whose land was being expropriated.

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L LIB

Daniel Duncan McKenzie (Leader of the Official Opposition)

Laurier Liberal

Mr. McKENZIE:

If the sections make it clear what the intention of the Committee was, I think we should be satisfied.

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UNION

William Alves Boys

Unionist

Mr. BOYS:

I do-not think there can be any doubt as to the intention of the Committee, because section 232 in plain English provides for an appeal. All that paragraph (13) of section 2 does is to say that a "judge" means a judge of a superior or county court, and I think that definition is necessary, otherwise it might be held that "judge" meant only a judge of a superior court. When we say that it means a judge of a superior or county court we realize that the appeal provided for under section 232 would lie from either.

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UNION

Henry Arthur Mackie

Unionist

Mr. H. A. MACKIE:

Section 232 says: "Within one month after receiving from the arbitrator .... a written notice of the making of the award." It is quite clear that the appeal is from the award. My hon. friend from South Simcoe has stated my position correctly. I desire to revolutionize this section so that an arbitration judge shall be constituted a judge of a court from whose judgments there shall be an appeal, just as in the case of a judge of a court.

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UNION

Hugh Boulton Morphy

Unionist

Mr. MORRHY:

I rather agree with my hon. friend from South Simcoe. I would point out to my hon. friend (Mr. H. A. Mackie) that section 232 provides for dealing directly with questions of fact upon the evidence taken before an arbitrator. Further, paragraph (7) of section 2 defines a "court" as follows:

" Court " means a superior court of the province or district, and wihen used with respect to any proceedings for the ascertainment or payment, either to the person entitled, or into court,

of compensation includes the county

court of the county where the lands lie; and "'county court " and " superior oourt " are to be interpreted according to the Interpretation Act and Amendments thereto.

So we have all the machinery possible under section 232 to cover anything a judge may do as arbitrator.

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UNION

Henry Arthur Mackie

Unionist

Mr. H. A. MACKIE:

I quite realize that there is an appeal from every act of a judge of a court as designated here, but if he is sitting as an arbitrator in an arbitration he has not the power of a judge of a court, but of an arbitrator; he is in the position of a person designated. If there is no arbitration there is no appeal

of an intermediate character up to the point of arbitration, because one cannot appeal unless there is an

award. Section 232 is the only one

under which an appeal is provided for. Suppose under section 215 you go to a judge designated as arbitrator and ask him to direct that John Smith or Peter Jones be summoned before a certain board for the settlement of differences and some one desires to take an appeal from that. There can only be an appeal from the award. The judge should be a judge of the court and not an arbitrator purely and simply, and all he does should have the force and effect of a judgment from which we may appeal, whether there is an award or not.

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L LIB

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

Will the hon. member state his amendment?

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UNION

Henry Arthur Mackie

Unionist

Mr. H. A. MACKIE:

It would take me some time to formulate it. I did not expect that the Bill would be taken up this afternoon, nor that it would be dealt with ir. this way.

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L LIB

Daniel Duncan McKenzie (Leader of the Official Opposition)

Laurier Liberal

Mr. McKENZIE:

Where is the authority in this Act to go before a judge to have an order to compel somebody else to appear before a board?

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UNION

Henry Arthur Mackie

Unionist

Mr. H. A. MACKIE:

Section 215 says:

(c) A notification that if within ten days after the service of this notice, or, where the notice is served by publication, within one month after the first publication thereof, the party to whom the notice is .addressed does not give notice to the company that he accepts the sum offered by the company, either he or the company will be entitled to apply to have the compensation fixed by arbitration as provided in the Railway Act, 1919.

A notice to this effect must be served upon the opposite party preliminary to proceeding to arbitration to fix compensation' or damages. If an application is made under this section, it is not to a judge of the court, but to a judge appointed as arbitrator.

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

If the party to whom you serve notice is in default and does not accept within ten days you just set your case for trial. That is the law of Quebec. If the other party does not appear it is an ex paTte arbitration. You do not need to have an order from the court 5 p.m. to set your case. You set it de jure. After you set your case a man is debarred from pleading further unless he receives permission.

Mr, H. A. MACKIE: My point is that it is before a man acting as an arbitrator and not as a judge.

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?

Mr BUREAU:

He has all the powers of an arbitrator, and you proceed the same as . if you had three arbitrators under the old system. If a man is in default you do the same as in an ordinary process-we call it "inscription" in our province-for trial, and the otl|er party may appear to crossexamine witnesses. In our province that would be allowed even though he had not disputed or filed an appearance. He may appear in person at the time of the trial, and has a right to cross-examine witnesses , if he desires, but he is barred from filing pleadings. When a man declines to accept your amount and says he wants so much for his land, that is a complete answer to your notice-I am not sure what it is designated in Ontario, whether it is "bill of particulars." If he does not answer he is in default and you inscribe the case before the court and proceed.

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UNION

Henry Arthur Mackie

Unionist

Mr. H. A. MACKIE:

Suppose a railway company offers a lump sum for a piece of land in which four or five parties are interested. One man may ask a certain sum for his interest, and it may not be accepted, with the result that there is an . arbitration. The company or some individual interested in the land appeals, and A or B, who is willing to accept a certain sum and avoid further .proceedings, has no remedy. He has no judgment in his favour. Any direction that the court gives is a direction from an arbitrator and not a judge and the man must stand the proportion of costs of all proceedings.

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L LIB
L LIB

Daniel Duncan McKenzie (Leader of the Official Opposition)

Laurier Liberal

Mr. McKENZIE:

That is a question for the final division of the money. When there are several persons interested in the land the money must be paid into court and there must be some machinery to divide the money according to their interest, and the man who took the appeal would have to take the responsibility of costs.

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UNION

Henry Arthur Mackie

Unionist

Mr. H. A. MACKIE:

If I were permitted I could get the reports, which I have not with me, and could, convince the Committee that I am absolutely right in my point.

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May 20, 1919