The Board is empowered by the Railway Act, 1906, s. 238, as amended
by 8 & 9 Edw. VII. c. 32, s. 5, to act upon its own motion to facilitate the
elimination or diminishing of grade crossings; and for this purpose
authority is conferred upon the Board to order that part of a highway be
closed or to require the proper municipal authority to close it and the
railway company is not required to comply with s. 167. [Parkdale v.
West (1887), 12 App. Cas. 602, distinguished.]
Brant v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 268, 36 O.L.R. 619, 30
[Followed in North Bay Landowners v. Can. Northern Ontario Ry. Co.,
23 Can. Ry. Cas. 35.]
ALTERING GRADE OF HIGHWAY DAMAGES REMEDY ARBITRATION.
For damages to property by altering the grade of a street under a valid
order of the Board, to alter a grade crossing, the remedy is by arbitration
proceedings under the Railway Act, 1906, not by an action against the
railway company acting under the order.
Brant v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 268, 36 O.L.R. 619, 30
[Followed in North Bay Landowners & Can. Northern Ontario Ry. Co.,
23 Can. Ry. Cas. 35.]
STREET RAILWAY CROSSING DIAMOND DERAILMENT OF TRAIN LIMITA-
TION OF ACTION.
The defendants' railway crossed at grade the plaintiffs' tracks under
an order of the Board, which directed that the defendants provide a dia-
mond for the crossing at their own expense. Several years later cars of
the plaintiffs passing over the diamond became derailed and were injured
or destroyed, and an action was brought more than a year after the acci-
dent to recover damages for the injury and destruction. The plaintiffs
charged that it was the defendants' duty to keep the diamond and all ap-
pliances in connection with the crossing in good repair, which they had
failed to do and had so caused the derailment and damage. The derail-
ment was not shewn to have been the result of want of maintenance or of
negligence on the part of the defendants and they were not bound under
the order of the Board to maintain and repair the diamond. The action
was dismissed because barred by s. 306 of the Railway Act. [Guelph &
Goderich Ry. Co. v. Guelph Radial Ry. Co., 5 Can. "Ry. Cas. 180; Grand
Trunk By. Co. r. United Counties Rj. COL, 7 Can. RT. Cas. 294; Can.
Northern" RT. Co. T. Robinson  A.C, 739, 13 Can. RT. Cas. 412,
distinguished; Edmonton Street RT. Co. T. Grand Trunk Pacific RT. Co,
7 D.L.R. 888, referred to.]
Grand Trunk RT. Co. T. Sarnia Street RT. Co., 21 Can. RT. Cas. 160, 37
LIABILITY TO ABrnrsG omens FOB OBSTRUCTING HIGHWAY WITH
A railway company for which a municipal corporation agrees to close
a certain street, and which is authorized by the Board to construct a level
iil^aain^ thereon, is liable in damages to the owners of lots on said street,
if, before the street is closed by the city, the company obstructs the street
by constructing a railway across it; such damages may be recovered in an
action, although a claim for compensation is pending, under the Railway
Act, 1906, for trespass on the land of the plaintiff actually taken for the
purposes of the railway, or for portions of lots of which parts have been
Holmested v. Moose Jaw and Can. Northern Ry. Co., 22 Can. By. Cas.
169, 9 Sask. LJL 327. 29 D.L.R. 761.
[Followed in Holmested T. Moose Jaw and Can. Northern Ry. Co., 22
Can. Ry. Cas. 177, 36 D.LR. 747.]
TEXDEK OF AMOUXT OF DAMAGES FOB CONSTRUCTION CONDITIOS PRECEDENT
SMOKE AXD XOISE.
& 235 of the Railway Act, 1906. as amended by 1-2 Geo. V. e. 22, s. 6,
does not make the payment or tender of the amount of damages the land
would suffer by the building of the railway, a condition precedent to the
building of such railway. The section does not give the Court jurisdiction
to award damages due to noise, smoke and vibration caused by operation
of the railway: any such claim should be made by application to the
Board. [Parkdale v. We* (1887), 12 App. Cas. 602. referred to.]
Hornstein T. Can. Northern By. Co., 23 Can. By. Cas. 424, 44 DJLJt. 511.
LIABHJTT FOE DAMAGES CAUSED BY BLASTEXG.
A railway company specially authorized by Dominion Act (2 Geo. V. e.
74), to construct and operate a tunnel is liable in damages under the. Do-
minion Railway Act and the common law of Quebec for injury to property
caused by blasting in connection with such construction although a neces-
sary consequence thereof.
Bickerdike T. Can. Northern Montreal Tunnel & Terminal COL, 38 D.LJL
HIGHWAYS CHAXGEXG GRADE OF STREET SUBWAY DAMAGES TO LATD-
The fact that an order-in-eotmcil authorizing the construction of a sub-
way at a railway crossing had directed that "all land damages'' should be
paid by the municipality on whose behalf the application had been made,
in pursuance of the Nova Scotia Railways Act. R-S-N.S. 1900, c. 99, ss.
178, 179, does not confer a right of action in damages for the change of
grade against the municipality upon a landowner whose land fronted
upon the opposite side of the street from that on which the subway was
built and where there was consequently left to the landowner his original
mode of access on his side of the street, although of diminished width.
[Compare Parkdale T. West, 12 A.C. 602, 56 L.J.P.C. 66, affirming West T.
Parkdale, 12 Can. S.C.R. 250; and see East Freemantle v. Annois, 
Burt v. Sydney, 15 D.L.R. 429.
INDEPENDENT CONTRACTOR LIABILITY OF EMPLOYER INJURIES TO ADJOIN-
A railway company will be liable for damage to land adjoining its
right-of-way occasioned by the negligent operations of its contractors for
the construction of the roadbed, if in letting the contract no care was
exercised by the railway company to provide that in the blasting opera-
tions which were an essential part of the contract the "top-lofting" method
which would throw debris upon the lands of the adjoining owner should
not be adopted, and the contractors damaged the adjoining property by
following that method where another course of operations was open to
them under which the injury might have been avoided. [Hounsome v.
Vancouver Power Co., 9 D.L.R. 823, 18 B.C.R. 81, affirmed; Hardacre v.
Idle District,  1 Q.B. 335, and Robinson v. Beaconsfield,  2
Ch. 188, referred to.]
Vancouver Power Co. v. Hounsome, 19 D.L.R. 200.
RELEASE WHAT INCLUDED IN INJURING ADJOINING PROPERTY.
A release of all damages which the landowner conveying a strip of land
for a railway right-of-way may sustain "by reason of the construction
and operation of the railway,'' and which does not specifically cover inju-
ries due to the company's negligence, will not prevent a recovery for dam-
ages occasioned to the adjoining lands of the grantor by blasting opera-
tions conducted by the construction contractor, in respect of which the
railway company in letting the contract was negligent in imposing no
precautions for protecting the adjoining land.
[Hounsome v. Vancouver Power Co., 9 D.L.R. 823, 18 B.C.R. 81, af-
Vancouver Power Co. v. Hounsome, 19 D.L.R. 200.
EXPROPRIATION COMPENSATION Loss OF ACCESS HIGHWAY CROSSED BY
The obstruction of natural, proximate and direct approaches to land by
the construction of a railway, across existing streets, entitles the owner
to compensation for depreciation in the value of the land, as against the
railway company, but not against the city agreeing to the location.
[Holmested v. C. N. Ry. Co., 22 Can. Ry. Cas. 169; Holditch v. Can. North-
ern Ontario Ry. Co., 27 D.L.R. 14,  1 A.C. 536, 20 Can. Ry. Caa.
Holmested v. Moose Jaw and Can. Northern Ry. Co., 22 Can. Ry. Cas-
177, 36 D.L.R. 747.
DAMAGES Loss OF ARCHITECT'S DRAWINGS MEASURE OF DAMAGES VALUE
Where architectural plans of a building submitted in competition and
not accepted were, in the course of transit, destroyed by fire, the proper
measure of damages is the value of the plans to the architect for exhi-
bition purposes, and not the cost of their reproduction.
Nicolais v. Dominion Express Co., 20 B.C.R. 8.
JURISDICTION HIGHWAY CLOSED BY-LAWS LANDOWNERS, ADJACENT AND
Where streets are crossed by the construction of a railway after an
agreement is entered into with the municipality specifying the manner in
which such crossings are to be made, providing that by-laws are to be
passed to close portions of certain streets, and for the payment of com-
pensation by the railway company, and an order of the Board is obtained
granting permission to cross the streets upon the conditions of such agree-
ment and providing that the railway company be responsible for any com-
pensation which property owners affected (i. e., landowners adjacent or
abutting on the streets i may be legally entitled to recover under the Rail-
way Act and the Municipal Act, and such compensation is withheld or
refused to be made by the railway company, the Board has jurisdiction to
determine it or refer the matter either to a member of the Board under s.
13, amended by 7 & 8 Edw. VII. c. 62 (D. i, s. 4, or to a person appointed
by the Board under s. 60 for inquiry and report, and the previous order
of the Board granting permission to carry the railway across the streets
should be amended accordingly. Subsequently a by-law was passed, clos-
ing the portions of such streets and an amending order became unneces-
sary. [See ss. 29 and 235, amended by 1 4 2 Geo. V. c. 22, s, 6: Holditch
v. Can. Northern Ontario Ry. Co..  1 A.C. 536, at p. 543. 20 Can.
Ry. Cas. 101; Brant v. Can. Pac. Ry. Co., 36 OJ-.R. 619, 20 Can. Ry. Cas.
268, followed. Can. Northern Ontario Ry. Co. v. North Bay, 18 Can. Ry.
Cas. 309, reversed.]
North Bay Landowners v. Can. Northern Ontario RT. Co., 23 Can. RY.
See Bonds and Securities.
See Fraud and Deceit.
As to charges, see Tolls and Tariffs.
QUICK RELEASE OF CARS SMALL AXD LARGE DEALERS CREDIT FOR FREE
The Wallaceburg Sugar Co. applied to the Board for an order directing
the railway companies to establish what is generally known as an Average
Demurrage Plan. Under the Canadian Car Service Rules (framed for the
quick release of cars rather than the collection of demurrage of the
Canadian Car Service Bureau, to whose rules Canadian and foreign rail-
way companies operating in Canada conform, 48 hours free time are al-
lowed to dealers for the unloading of cars, for an additional time 1.00
per car per day is charged unless on account of the number of cars ten-
dered to the dealer being unreasonable or the inclemency of the weather
preventing unloading with reasonable despatch, an extension of free time
is justified and allowed. By the establishment of the Average Demurrage
Plan the dealer would get credit on future shipments of the free time he
had saved under the 48 hours previously and could hold such shipments
in cars without any demurrage charge until the time credited to him had
expired: Held (1), that in the public interest the application should be
dismissed; 48 hours under ordinary circumstances being sufficient time for
unloading cars. (2) That the contract of carriage is, that the car con-
taining the goods after reaching the point of destination shall be released
and unloaded with all reasonable despatch, not to exceed 48 hours in the
case under consideration. (3) The penalty of $1.00 per day for extra
time makes the dealer prompt in releasing cars and thus increases the
supply of them for the shipping public, while the Average Demurrage
Plan might make a dealer dilatory in unloading so long as he had free
time to his credit. (4) Each car, under the Car Service Rules being dealt
with by itself, insures equal treatment between the smaller and larger
dealer, but if the Average Demurrage Plan were in force it would give
preference and advantage to the dealer with a large number of cars to un-
load and with a large capacity for storage.
Wallaceburg Sugar Co. v. Canadian Car Service Bureau (Average De-
murrage Case), 8 Can. Ry. Cas. 332.
FREE TIME EXTENSION UNREASONABLENESS OF TWO-DAY LIMIT WEATHER
The applicants applied to the Board to extend the free time for unload-
ing charcoal from two to three days: Held (1), that the applicants have
failed to shew that the time limit of two days is not sufficient under ordi-
nary circumstances and the onus of establishing the unreasonableness of
the two-day limit is upon them. (2) Railway companies now allow addi-
tional free time when the weather conditions are unfavourable for unload-
ing expeditiously. (3) The application must fail, the time limit of two
days being sufficient.
McDiarmid v. Grand Trunk and Can. Pac. Ry. Cos., 8 Can. Ry. Cas. 337.
DEMURRAGE CHARGES SPUR TRACK FACILITIES.
Demurrage charges upon cars, due to slowness in unloading them by
reason of a longer haul, may be considered as an element of damages for
the wrongful removal by a railway company of a spur track adjacent to a
coal and lumber yard, from which tracks cars of coal and lumber could be
quickly and cheaply unloaded directly into such yard, where, by reason
of such removal, such commodities had to be hauled by the owner of such
yard from a greater distance in a slower manner.
Robinson v. Can. Northern Ry. Co. (Man.), 14 Can. Ry. Cas. 281, 5
[See 6 Can. Ry. Cas. 101, 37 Can. S.C.R. 541, 11 Can. Ry. Cas. 289, 19
Man. L.R. 300, 11 Can. Ry. Cas. 289, 43 Can. S.C.R. 387, 13 Can. Ry. Cas.
412,  A. C. 739.]
FREE TIME TRANSSHIPPING GRAIN.
A period of five days, excluding Sundays and legal holidays, is sufficient
time free from demurrage for transshipping grain from cars to vessels
at St. John, N.B.
Montreal Board of Trade v. Can. Pac. Ry. Co. (St. John Demurrage
Case), 23 Can. Ry. Cas. 10.
NOTICE OF ARRIVAL DELIVERY OF NOTICE DEMURRAGE.
An advice note mailed to a consignee, but not received by him, is not
notice within the meaning of a bill of lading subjecting the goods to de-
murrage charges if not removed after "written notice has been sent or
given;" the burden of proving that the notice reached the consignee is
upon the sender.
Duquette v. Can. Pae. Ry. Co., 37 D.L.R. 298.
DEMURRAGE RULES REVISED AND ADOPTED.
Canadian Car Demurrage Rules were revised and adopted by the Board.
DEVIATION OF LIXE. 221
Discussion of average and reciprocal demurrage was postponed until after
the conclusion of the war.
Re Car Demurrage Rules (Canadian Car Demurrage Rules Case), 24
Can. Rv. Cas. 180.
DEPARTMENT OF RAILWAYS.
See Government Railwavs.
See Negligence; Rails and Roadbed: Street Railways; Carriers of Pas-
sengers: Crossing Injuries; Employees.
DEVIATION OF LINE.
JURISDICTION CONSTRUCTED LINE LOCATION REQUEST MUNICIPAL BT-
LAW SPECIAL ACT.
The Board has no power under s. 167 of the Railway Act, 1906, to order
deviations, changes or alterations in a constructed line of railway, of
which the location has been definitely established, except upon the request
of the railway company. Anglin, J-, contra. [Grand Trunk Ry. Co. v.
Department of Agriculture for Ontario (Vinelands Station Case . 42 Can.
S.C.R. 557. 10 Can. Ry. Cas. 84, distinguished.] Per Fitzpatrick. C.J..
and Idington, J. The Dominion statute, 58 4 59 Viet. c. 66. confirming
the municipal by-law by which the location of the portion of the railway
in question was definitely established constitutes a special Act within the
meaning of the Railway Act, 1906, ss. 2 (28) and 3. [Can. Pac. Ry. Co.
v. Toronto (Toronto Viaduct Case).  A.C. 461, 12 Can. Ry! Cas.
Hamilton v. Toronto, Hamilton & Buffalo Ry. Co. (Hunter Street Case),
17 Can. Ry. Cas. 370, 50 Can. S.C.R. 128.
JURISDICTION LOCATED AND CONSTRUCTED LINES SPECIAL ACT MUNIC-
Ss. 26 (2) and 28 of the Railway Act, 1906. give the Board jurisdiction
under the provisions of s. 167 to order railway companies to deviate
their located and constructed lines. If the powers of the Board are not
over-ridden by the special Act and municipal by-law, it may. on fair and
reasonable terms, disregard any contract, agreement or arrangement by
ordering deviations of the located and constructed lines of railway com-
panies, as it may decide that the public interest and safety demands.
[Grand Trunk Ry. Co. v. Department of Agriculture for Ontario (Vine-
lands Station Case). 42 Can. S.CJS. 557. 10 Can. Ry. Cas. 84: C.P.R.
Co. v. Toronto (Toronto Viaduct Casei.  A.C. 461. 12 Can. Ry. Cas.
378, followed; Central Saskatchewan Boards of Trade v. Grand Trunk
Pacific Ry. Co.. 10 Can. Ry. Cas. 135; British Columbia and Alberta Mu-
nicipalities v. Grand Trunk Pacific Ry. Co., 13 Can. Rv. Cas. 463. referred
Hamilton v. Toronto, Hamilton & Buffalo Ry. Co. (Hunter Street Case),
17 Can. Rv. Cas. 353.
Ejection of drunken passenger from train, see Carriers of Passengers.
See Provisional Directors.
Prohibition of railway directors to be parties to railway construction
contracts, see Contracts; Constitutional Law.
EXAMINATION PRIVILEGED DOCUMENTS REPORTS OF OFFICIALS TO COM-
PANY RESPECTING ACCIDENTS.
(1) Reports made by the employees of a railway company to their supe-
rior officers in accordance with its rules concerning an accident resulting
in death, and immediately thereafter, are not privileged from production
in an action 'against the company for damages arising out of the acci-
dent, if they were made in the discharge of the regular duties of such
employees and for the purpose of furnishing to their superiors informa-
tion as to the accident itself and were not furnished merely as materials
from which the solicitor of the company might make up. a brief, and an
officer of the company who has made an affidavit on production of docu-
ments, must, on his examination on such affidavit, answer questions as to
whether such reports were made, who received them, and how they came
to be made, and generally furnish such information concerning them that
the Court may be in a position to decide, on a further motion, whether
they are privileged or not. [Wooley v. North London Ry. Co. (1869),
L.R. 4 C.P. 602; and Anderson v. Bank of British Columbia (1876), 2
Ch. D. 644, followed.] (2) If any of the information sought on such exam-
ination, and to which the plaintiff is entitled, is not within the knowledge
of the deponent, he must ascertain the facts and give the information.
[Harris v. Toronto Elec. Light Co. (1809), 18 P.R. (Ont.) 285, followed.]
(3) That the names of some of the defendants' witnesses would be dis-
closed, if the questions were answered is not a sufficient reason for refusing
to answer. [Marriott v. Chamberlain (1S86) , 17 Q.B.D. at p. 165, and Hum-
phries v. Taylor (1888), 39 Ch.D. 693, followed.] (4) Questions as to
whether reports had been sent in as to the condition of the locomotive
before the accident, and as to repairs thereto, must also be answered.
Savage v. Can. Pac. Ry. Co., 15 Man. L.R. 401.
[Relied on in Bain v. Can. Pac. Ry. Co., 15 Man. L.R. 545.]
REPORTS OF OFFICIALS OF COMPANY RESPECTING ACCIDENTS.
(1) In an action for damages resulting from a railway accident, when
negligence is charged, reports of officials of the company as to the acci-
dent made before the defendants had any notice of litigation, and in ac-
cordance with the rules of the company, are not privileged from produc-
tion, although one of the purposes for which they were prepared was for
the information of the company's solicitor in view of possible litigation.
( 2 ) The fact that the reports sought to be withheld were written on forms
all headed, "For the information of the solicitor of the company and his
advice thereon," is not sufficient of itself to protect them from produc-
tion. (3) When the officer of the defendants who made the affidavit on
production was cross-examined upon it and as a result made a second affi-
davit producing a number of documents for which he had claimed priv-
ilege in the first, the examination on the first affidavit may be used to
contradict the statements in the second, although there was no further ex-
amination. (4) An affidavit on production cannot be contradicted by a
nit; but. if fiom any source an admission of its inoor-
can be gathered, the affidavit cannot stand.
.Savage v. Can. Pae. Ry. Co, IS Man. L.R. 381.
DAMAGES FOB ACCTDEXT Reruns C.C.P.
A company sard in damages on account of an accident may be conpcBei,
to produce at tie trial all report* oi the accident Bade by its employees
in the ordinary course of their business, or of their doty, but not its re-
porte nude at the request or instance of it* solicitor, in answer to inquiries
made to the latter, with a view to and in contemplation of anticipated lit-
Stacker T. Cam. Pae. By. Co_ 5 Que. P.R. 117.
OFFICE* OF BAH.WAT COMPAXT STAMOX AGENT SEJCTJOX FOBEMAX
CHIEF CUBK xx OFFICE OP GEXEKAI. sci
A station a^ent is an officer of a railway company within the nwanin*
of Bah? 301 and liable to be examined for discovery. A section f orenun is
nor is the chief elerk in the office of a general up*r-
r. C J*^. Co. 5 Terr. LR. 503.
The word -^manager 9 in Art. fSC G. C- P- may be interpreted as be-
ing the manager of the worts, and in an action in damages for an accident
the man who was in charge of the works when the accident took place can
be examined on discovery on behalf of the victim of the accident.
Pita T. Atlantic, Quebec t Western Ry. COL, 10 Que. PJBL 1*2.
MEDICAL EXAXIXATIO* BEFOBE STATEMENT or DEFENCE.
An examination under Con. Ride +62 is an examination for discovery.,
and that rule most be applied in the fame way as Con. Rnle 442: and an
mmu for the mrdiril examination of the plaintiff, in an action where the
liability is disputed, win not be made if opposed before the delivery of
the statement of defence.
v. Toronto RT. Co_ 13 OJJL 4O4.
EXAMZVATIOX OF OFFICES OF DCFEAUAXT COMFANT 1 XFOBMATIOX XOT VS
rFJt>>XAI. EXOWLEDGE OF Ot'Htl ME3IOBAXDCM PKEPAKED BT OTHEKS
REFTSAL. TO VOCCH ron ACCTACT DTTT OF OFFICE* TO IXTESTI-
Fraser v. Can. Pae. Ry. Civ 4 WJ^R. 525 (Han.).
OFFICEB OF COMPAXT EXOXE DUTFJL
An engine driver in the employment of a railway company is an mffirrr
thereof within tine meaning of Con. Ride 439. and may be examined for dis-
covery under the provisions of that rule. [Knight v. Grand Trunk Ry. Co.
(1890s 13 PR. (Ont.) 386. overruled. Leiteh v. Grand Trunk Ry. Co.
I1S8S). 12 PR. (Ont.) Ml. 671. 11390*. 13 P.R. (Ont.) 369: Dnw^on v.
London Street Ry. COL (189S), 18 PJEL (Ont.1 233; and Gasarlman v.
Ottawa. Arnpriar ft Parry Sound Ry. Co. (189S|, 18 PJL (Out.) 261 r
considered and applied.]
Morrison T. Grand Trunk Ry. Co_ 2 Can. Ry. Cas. 390, 4 OJLR. 43.
[Reversed in a OT-R. 38. Can. Ry. Cas. 398; considered in Eggieston
v. Can. Pae. Ry. COL, $ Terr. L.R. 5O4: considered in Gordanier r. Can.
North. Ry. COL, 15 Man. I_R. 5; followed in Akrons T. Tanners' Asszu. C
OFFICER OF COMPANY EXGINK DRIVER.
On application for leave to examine an engine driver for discovery,
under Con. Rule 439, as an officer of the defendants, in an action under
R.S.O. 1897, c. 1GG, the Fatal Accidents Act: Held, reversing 4 O.L.R. 43,
'2 Can. Ry. Cas. 390, that, inasmuch as the engine driver never was in
charge of the train, never assumed the duties of conductor, and never
acted for the defendants in relation to the control of the train, so as to
make him responsible to the defendants, except for the management of
his engine, he was not an officer of the company examinable under that
Morrison v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 398, 5 O.L.R. 38.
FORMER AGENT OF COMPANY.
Where relevant information for discovery to the opposite party in a
damage action is specially within the knowledge of the plaintiff company's
former agent and not of their present manager, the Court may direct that
the plaintiffs shall either produce the former agent for discovery, or in
the alternative, that the plaintiff company's manager attend for further
examination for discovery after having applied to the former agent for
the information and thereupon disclose the information so obtained. [Bol-
ckovv v. Fisher, 10 Q.B.D. 161, distinguished.]
Ontario & Western Co-operative Fruit Co. v. Hamilton, G. & B. Ry. Co.,
1 D.L.R. 485, 21 O.W.R. 82.
ACCIDENT REPORTS EMPLOYEES.
A company examined on discovery by a plaintiff injured in a railway