Wilson and others vs Esquimalt and Nanaimo Railway Company

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1921 Supreme(SC) 88

Privy Council
Sir Robert Stout, Duff, Carson, Viscount Cave, Justice Viscount Haldane, JJ.
Wilson and others -Appellant
Versus
Esquimalt and Nanaimo Railway Company -Resopndent
On Appeal from the Court of Appeal of British Columbia
Decided On : 18-11-1921

Important Points

Disallowance of a provincial statute does not affect private rights already completely constituted. Additionally, executive tribunals exercising statutory discretion are not bound by technical rules of evidence or court procedure, provided they act judicially and conscientiously.

Subject

Constitutional Law - Statutory Disallowance and Administrative Jurisdiction

Act Referred

BRITISH NORTH AMERICA ACT: S.56, S.90
CANADA LAND REGISTRY ACT: S.104

Headnote

(A) British North America Act, 1867 - Sections 56 and 90 - Disallowance of Provincial Statutes - Effect on vested rights - The phrase "shall annul the Act from and after the day of such signification" indicates that disallowance of a Provincial statute is inoperative as to private rights completely constituted and founded upon transactions entirely past and closed.

(B) Constitutional Jurisdiction - Provincial vs. Federal - When a railway is declared a "work for the general advantage" of the Dominion, the Province ceases to have authority to deprive the company of legal title to subjects forming part of the "railway." However, lands acquired as subsidies not held as part of the "railway" or undertaking remain within Provincial legislative jurisdiction regarding "property and civil rights."

(C) Administrative Law - Powers of Executive Tribunals - An authority vested with the power to decide based on "reasonable proof" must maintain a judicial temper and act conscientiously. Such a tribunal is not bound by technical rules of evidence or the rules of procedure regulating courts of justice. Its decisions, exercised within discretion, are final and not reviewable in legal proceedings.

Facts of the case:
A railway company held title to lands granted as a subsidy. Under provincial legislation, settlers who occupied and improved land prior to a specific date could apply for Crown grants. Appellants applied under an amending act and received a grant. Subsequently, the amending act was disallowed. The railway company challenged the grant on grounds of federal jurisdiction, the effect of disallowance, lack of registration, and improper administrative procedure.

Findings of Court:
The grant was valid as the right was completely constituted before the disallowance of the statute. The provincial legislature retained jurisdiction over subsidy lands not forming part of the railway undertaking. The administrative authority acted within its discretion and was not bound by strict rules of evidence or court procedure.

Issues: Whether the disallowance of a provincial statute nullifies rights already granted under it; whether the land fell under federal jurisdiction as part of a "work for the general advantage" of the Dominion; and whether the administrative process for issuing the grant was legally flawed due to evidentiary rules.

Ratio Decidendi: Disallowance of a statute under the British North America Act does not retrospectively strip private individuals of rights already fully vested. Furthermore, executive tribunals exercising statutory discretion are not bound by the technical rules of evidence or judicial procedure, provided they act judicially.

Result: Appeal allowed. Cross-appeal partly allowed.

Legal Category Hierarchy

Advocates Appeared:
Paines, Linklaters, Leonard, White, S.S. Taylor, H.B. Robertson, M. Macnaghten, John Simon

Duff, J. :-

This is an appeal from the judgment of the Court of Appeal of British Columbia of 3rd February, 1921, affirming the judgment of the Trial Judge, Gregory, J., in favour of the respondent company, in which their Lordships have to consider the effect of the Vancouver Island Settlers' Rights Act of 1904, and the amending Act of 1917, that was subsequently disallowed, as well as the effect of that disallowance upon the rights of the grantees under Crown grants issued by authority of those enactments.

Two actions were brought by the respondent company to establish its title to certain lands comprised in a grant to the appellants professedly made under the authority of the statutes mentioned.

A history of the legislation and other public and private proceedings and transactions affecting more or less directly the land whose title is in controversy would be a rather voluminous one, but it is unnecessary now to enter into that history in detail. Admittedly, these lands are situated in a considerable district in Vancouver Island known as the Esquimalt and Nanaimo Railway Belt; a tract of land granted by a Provincial Statute to the Dominion Government in execution of the terms of an arrangement arrived at in the year 1883, in settlement of disputes between the two Governments, and in turn by the Dominion Government, pursuant to the same arrangement, granted to the Esquimalt and Nanaimo Railway Company (the respondent company) as a subsidy in aid of the construction of a line of railway (the Esquimalt and Nanaimo Railway) in Vancouver Island. But for the legislation of 1904 and 1917 the respondent company's title would be indisputable.

In 1904 the Vancouver Island Settlers' Rights Act was passed by the Legislature of British Columbia; the relevant provisions of it being these :

" Section 2; "In this Act, unless the context otherwise requires: (a) ' Railway Land Belt' shall mean the lands described by Section 3 of Ch. 14 of 47 Vict , being 'an act relating to the Island Railway, the Gravingdock, and Railway lands of the Province,' (b) 'Settler' shall mean a person who, prior to the passing of the said Act, occupied or improved lands situate within the said railway land belt, with the bona fide intention of living thereon.

"Section 3; Upon application being made to the Lieutenant Governor in Council, within twelve months from the coming into force of this Act, showing that any settler occupied or improved land within said railway land belt prior to the enactment of Ch. 14 of 47 Vict., with the bona fide intention of living on the said land, accompanied by reasonable proof of such occupation or improvement and intention, a Crown grant of the fee simple in such land shall be issued to him, or his legal representative, free of charge and in accordance with the provisions of the Land Act in force at the time when the said land was first so occupied by the said settler."

By a judgment of this Board in McGregor v. Esquimalt and Nanaimo Ry. Co. , (1907) A. C. 462 it was decided that a grant under the Statute of 1904 had the effect, as to the lands comprised in the grant, of displacing the title of the railway company and vesting a title in fee-simple in the grantee. The time limit of twelve months fixed, by Section 3 of the Statute of 1904 was extended by a statute of 1917 to September 1 of that year. On 5th July, 1917, the appellants Wilson and McKenzie as executors of Joseph Ganner, deceased, applied under the Act of 1917 for a Crown grant of the lands in dispute, alleging that Joseph Ganner in his lifetime and before 19th December, 1883, the relevant date mentioned in Section 3 of the Act of 1904, had improved these lands with a bona fide intention of living thereon; this allegation being supported by statutory declarations of the executors and others. The late Joseph Ganner had already in "his lifetime received a conveyance of these lands, "less the right of way for the railway," by deed reserving to the company the right to take timber