tlie parties or by resolution of the arbitrators, then the sum offered by
the company as aforesaid, shall be the compensation to be paid by the
company." "157. If the sole arbitrator appointed by the Judge, or any
arbitrator appointed by the two arbitrators dies before the award has
been made, or is disqualified, or refuses or fails to act within a reasonable
lime, then, in the case of the sole arbitrator, the Judge, upon the applica-
tion of either party, and upon being satisfied by affidavit or otherwise of
such death, disqualification, refusal or failure, may appoint another ar-
bitrator in the place of such sole, arbitrator; and in the case of any
arbitrator appointed by one of parties, the company and party respectively
may each appoint an arbitrator in the place of its or his arbitrator so
deceased, or not acting; and in the case of the third arbitrator appointed
by the two arbitrators, the provisions of s. 151 shall apply; but no recom-
mencement or repetition of the previous proceedings shall be required in
any case." (S. 151 provides for- the appointment of a third arbitrator
either by the two arbitrators or by a Judge.) : Held, that the provisions
of s. 157 apply to a case where the arbitrator appointed by the proprietor
died before the award had been made, and four days prior to the date
fixed for making the same; that in such a case the proprietor was entitled
EXPROPRIATION. 299
to be allowed a reasonable time for the appointment of another arbitrator
to fill the vacancy thus caused, and to have the arbitration proceedings
continued although the time so fixed had expired without any award hav-
ing been made, or the time for the making thereof having been prolonged.
Shannon v. Montreal Park 4 Island Ry. Co.. 28 Can. S.C.R. 374.
[Overruled in Desonneanx v. Ste. There-* de Blainville. 43 Can. S.C-R.
9*1 considered in Wynnes v. Montreal P. * I. Ry. Co.. 9 Qne. Q.B. 498.]
IMPROPER ASSESSMENT OF DAMAGE.
On an arbitration in a matter of the expropriation of land under the
provisions of the Railway Act. the majority of the arbitrators appeared
to have made their computation of the amount of the indemnity awarded
to the owner of the land by taking an average of the different estimates
made on behalf of both parties according to the evidence before them:
Held, reversing the decision of the Court of Queen's Bench, and restoring
the judgment of the Superior Court fTaseherean and Girouard. -T-T.. dis-
senting), that the award was properly set aside on the appeal to the
Superior Court, as the arbitrators appeared to have proceeded upon a
wrong principle in the estimation of the indemnity thereby awarded.
Grand Trunk Ry. Co. T. Coupal. 28 Can. S.C.R. 531."
[Applied in Ontario & Quebec Ry. Co. v. Vallieres. 36 Qne. S.C. 339;
referred to in Fairman v. Montreal. 31 Can. S.CJL 218.]
AWAKD EQCTTT OF EEDEMPTIOT No NOTICE TO THUD AKBITEATO*.
Bills filed to enforce awards and to recover moneys to be paid thereunder
for lands taken by the C.S. Ry. Co. The facts connected with the making
of the awards and the subsequent litigation will be found in 41 U.C.Q.B.
195, 28 U.C.C.P. 309, o AJL (Ont-i 13. and 9 AJEL (Ont.l 310. The CS.
Ry. Co. appealed to the Supreme Court of Canada from the judgments of
the Courts below maintaining the awards. Before the Supreme Court,
counsel for the appellants for the first time contended that, in the Norvell
case the award was bad because the arbitrators had dealt only with the
equity of redemption of the landowner, and that in the other cases the
awards were bad on their face as being signed by only two of the three
arbitrators without shewing a notice to the third arbitrator: Held, in
the Norvell case, that the C.S. Ry. Co. should be allowed to amend their
answer in the cause in the Court of Chancery as they might be advised,
in order to shew that the award was in respect only of the equity of
redemption and not the fee simple, and upon such amendment being made,
the award should be declared null and void: Held, in the other cases,
that the C.S. Ry. Co. should be at liberty to amend their answer in order
to shew that the awards were made by two of the arbitrators in the ab-
sence of, and without notice of the meeting of the said two arbitrators
to. the third arbitrator, with liberty to the plaintiffs to file with the
registrar of the Supreme Court their signification of their desire for new
trials, when such new trials should be granted without costs: in default
of such signification in any case the award was declared null and void.
Appeals allowed, but without costs, the objections having been taken for
the first time on appeal.
Canada Southern Ry. Co. T. Norvell. See Cass. Can. S.C.R. Dig 1898.
p. 34.
[Commented on in Freeman v. Ontario, etc.. Ry. Co., 6 O.R. 413; re-
ferred to in Birely v. Toronto, Hamilton & Buffalo Ry. Co.. 25 AJL (Ont.)
88.]
300 EXPROPRIATION.
NOTARY PUBLIC AS ARBITRATOR.
An award was made by a majority of arbitrators, establishing at the
amount of $4,474 the indemnity to be paid to the respondents for a piece
of land of which they were dispossessed by appellants under 45 Viet. c.
23 (Que. ). Action was taken for the above sum and costs of arbitration
and law costs, amounting altogether to $4,658.20. Judgment was rendered
by the Superior Court against the appellants for said amount, with in-
terest and costs, which judgment was unanimously confirmed by the Court
of Queen's Bench. The principal ground for defence was that Mr. C., being
the agent of the respondents, was disqualified from acting as their arbi-
trator. On appeal to the Supreme Court of Canada: Meld, that the
evidence sheVing that Mr. C. was not in the continuous employ of respond-
ents, but acted for them from time to time only, in his professional ca-
pacity as a notary public, and not in any other capacity, he has not
disqualified from acting ^as arbitrator. Appeal dismissed with costs.
North Shore Ry. Co. v. Ursuline Ladies of Quebec (1885), Cass. Can.
S.C.R. Dig. 1898, p. 36.
ARBITRATION ADJOURNMENT.
The consent of the parties to an arbitration under the Railway Act,
1906, to an adjournment as provided by s. 204 can be given verbally, and
the statement of it in the minutes of a subsequent sitting of the arbitrators
is valid.
Can. Northern Ry. Co. v. Nault, 42 Que. S.C. 121, 22 Que. K.B. 221.
[Affirmed in Can. Northern Ry. Co. v. Nault, 16 Can. Ry. Cas. 198.]
APPOINTMENT OF ARBITRATORS BY JUDGE.
A judge, in exercising in the power conferred by s. 196 of the Railway
Act, 1906, to appoint arbitrators to assess the compensation to be paid
to the owners by a railway company for land compulsorily taken, acts as
persona designata, and, after making the appointment, he is functus officio
and has no jurisdiction to rescind the order of appointment, even if it is
shewn that such order had been made without jurisdiction. [C.P.R. v.
Little Seminary of St. Therese, 16 Can. S.C.R. 600, followed.]
Re Chambers and Can. Pac. Ry. Co., 20 Man. L.R. 277, 15 W.L.R. 694.
NOMINATION OF ARBITRATORS POWER OF ARBITRATORS.
(1) The choice of a third arbitrator, left by agreement to two arbi-
trators named by the parties, may be made, although there may have been
no disagreement between such two arbitrators, a-s the Act does not require
that as a condition precedent. (2) An agreement to dispense with the
hearing of witnesses does not prevent the arbitrators doing so of their
own motion should they judge it expedient. (3) In the estimation of
compensation for expropriation of land, under the Railway Act, 1903, arbi-
trators ought not to take into consideration the increased value which the
construction of the railway gives to the locality generally, but the excess
of increased value, if any, received by the lands of which the expropriated
property was part, over that given to neighbouring lands. (4) Where
arbitrators have been given the power of finally determining the questions
under arbitration, they may allow interest upon the amount of the com-
pensation awarded from the time of taking possession of the land expro-
priated or condemn the expropriating party to perform works required to
reduce the damages to the amount of the compensation awarded against
them.
Quebec Improvement Co. v. Quebec Bridge & Ry. Co., 29 Que. S.C. 328.
[Reversed in 16 Que. K.B. 107, [1908] A.C. 217.]
EXPROPRIATION. 301
ABMTBATIO* PATMEST OUT or Coorr TO
The power to "set aside or discharge" mentioned in s. 30 of the English
Judicature Act, 1873, implies the power to "vary." A Judge sitting in
Court has power to vary an order which he has made in Chambers. Sem-
He, the practice of the Chancery Division of the High Court in England
s to varying orders is the most convenient and should be adopted in
fllhnli Where money was in Court, paid in by a railway company under
an order enabling the company to proceed with work which has been en-
joined in the action and after the award of arbitrators under the expro-
priation provisions of the Railway Act a Judge in Chamber? ordered
payment out of part of the money to satisfy the award, which last-men-
tioned order was entitled as well as in the action as in the matter of
the arbitration proceedings: On application to the same Judge "M*"^;
in Court: Held, that the Judge was not acting wholly as a persona
designata, as in fcig the order he acted as well in the cause as in the
arbitration proceedings and was not, therefore, after order made functus
officio, and had power to vary the order made.
Re Grand Trunk Pacific Ry. Co. and Marsan, 3 Aha. L.R. 65.
ADJOCBXMFJVT FOB A WAKD.
Arbitrators appointed to fix the compensation to be paid in an expro-
priation under the Railway Act had, at their first meeting, fixed July
6th, 1897, for giving their award. On June 29th r 1897, after the enquet'e
for the expropriation was dosed, the proceedings were adjourned to July
8th without any special enlargement of the time for rendering the award.
At the time of the adjournment the solicitors for both parties were present
no objection : Held, that the adjournment on June 29th. was a
enlargement of the time fixed for the rendering of the award.
Wynnes v. Montreal Park 4 Island Ry. COL, 9 Qne. Q.B. 483, reversing
li Qne. S.C. 105 and restoring 14 Qne. S.C. 409.
FOB LAJD TAKFJS ABBTrtATIOX JCDGMEXT TO
Usher r. Town of North Toronto, 2 O.W.X. 851, 18 O.WJBL 90S.
OF SOLE AKBITKATOC "OPPOSITE PAnTT," MEAXIXG OF EVI-
DENCE BT AFFIDAVIT.
A railway company having served on both the owner of the land and
the mortgagee the notice and certificate prescribed by SB. 146V 147 of the
Railway Act, 1888, the owner refused the sum offered and notified the
company of the name of her arbitrator, but the mortgagee gave no such
notice: Held, that, under s. 150 of the Act, the company was entitled to
apply to have a sole arbitrator appointed, as the mortgagee should be
treated as an "opposite party'* within the meaning of that section. After
giving notice to the company of the name of her arbitrator, the owner sold
and conveyed the property to another peram The land had been bought
under the Real Property Act, and on the certificate of title issued to the
purchaser there was endorsed a memorandum of the deposit in the Land
Titles Office of the minister's certificate and the plan and book of refer-
ence: Held, that the purchaser must be deemed, under s. 145 of the
act, to have had notice of the expropriation proceedings and was bound by
then. ITrinmrr in support of an application under s. 150 of the Act may
be by affidavit.
Re Can. Pae. Ry. Co. and Batter, 1 Can. Ry. Cas. 457, 13 Man. LJL 300.
302 EXPROPRIATION.
CLERICAL ERROR IN AWARD MOTION TO REFER BACK.
Motion for an order referring back to the arbitrators, to enable them to
correct a clerical error, an award made under the Dominion Railway
Act: Held, that if the provincial legislation (R.S.O. 1897, c. 62) ap-
plied, the motion was needless, the arbitrators having power (s. 9 (c) )
correct the mistake. If that legislation were not applicable, there was no
power, under the Dominion Railway Act or otherwise, to remit the award,
nor to correct the error upon this motion.
Re McAlpine and Lake Erie & Detroit River Ry. Co., 3 Can. Ry. Gas.
95, 3 O.L.R. 230.
REVISION OF AWARD AS TO AMOUNT AWARD OF COSTS BY ARBITRATORS.
(1) On an appeal from an award of arbitrators, under the Railway
Act, 1888, s. 161, so far as the appreciation of damages is concerned no
new evidence can be adduced, and no objection based upon the admis-
sion of illegal evidence, or the exclusion of legal evidence, can be con-
sidered, unless the illegalities complained of appear of record. (2) The
award cannot be explained or varied by extrinsic evidence .of the inten-
tion of the party making it. Error of law or fact on the part of the
arbitrators, or excess of jurisdiction, must appear on the face of the
award, or from the evidence or documents of record. (3) The Court will
not interfere with the discretion of the arbitrators as to the amount of
the award, unless it be as a check upon possible fraud, accidental error,
or gross incompetence. (4) The award of costs by the arbitrators does
not invalidate the award, where it simply follows the rule established by
the Railway Act itself, for in such case the party has no grievance. (5)
The award of a block sum is valid, the law not requiring the arbitrators
to distinguish between the amount awarded for value of land taken, and
that awarded for damages to other lands.
Pontiac Pacific Junction and Ottawa, etc., Ry. Cos. v. Community Gen-
eral Hospital, etc., 3 Can. Ry. Cas. 99, 20 Que. S.C. 567.
[Approved in Ontario & Que. Ry. Co. v. Vallieres, 36 Que. S.C. 354.]
NOTICE COMPENSATION ARBITRATION.
A railway company, having given notice of requiring certain land for
their railway, and having taken possession of it, cannot abandon their
notice and give a new notice for the same land. [Can. Pac. Ry. Co. v.
Little Seminary of Ste. ThSrese, 1C Can. S.C.R. 606, applied.] Where the
company named in their new notice a larger sum of compensation money
than in their original one, and a dill'erent arbitrator: Held, upon a
motion by the landowner to compel company to proceed with the arbi-
tration, that, although the new notice was ineffective, and the arbitration
could proceed only under the original notice, the appointment of the new
arbitrator should be confirmed (the landowner not objecting), and the
company should be allowed to increase their offer, but not so as to prej-
udice the owner as to anything that might have occurred before the new
notice, and the offer of the increased sum might be taken into considera-
tion upon the question of costs.
Re Haskill et al. and Grand Trunk Ry. Co., 3 Can. Ry. Cas. 389, 7
O.L.R. 429.
AUTHORITY OF ARBITRATOR FAILURE TO GIVE NOTICE TRESPASS.
By c. 104 of the statutes of 1902, the recompense to the owner of land
taken for railway purposes, and for the value of earth, stones, gravel, etc.,
removed, was required to be fixed by three arbitrators, one chosen by the
company, another by the owner or proprietor, and, where these were unable
EXPKOPRIATIOX. 303
to agree as to the amount of their award, a third, to be appointed by the
two arbitrator? first nominated. The company's engineer wrote to M_. who
had previously acted for the company, requesting him to ascertain whether
plaintiffs had arranged their title to the gravel pit at Loch Ben in soeh
a way that the arbitrators could get to work and. if so. to let them know
that he 1 11. wa=- prepared to act, -and asked them to appoint their nun
so that yon two. if yon cannot agree to the valuation, may select a third."
He added. ~1 will send an agreement of arbitration which each one can
subscribe to. or. if they have one already drafted, yon can forward it here
for approval."* No agreement was sent by the engineer, and none was
forwarded for approval by M-, but. acting on the letter received. \L, in
company with plaintiff's nominee, met and invest igated the damages, and.
with CL, who was appointed third arbitrator, signed an award for the
amount of which action was brought: Held. Russell. J-, dissenting on
this point: that the fetter written by the company's engineer, in the
absence of anything in the statute as to how the arbitration was to be
conducted, or the steps to be taken previous to inquiry, was as effective
as any agreement, even if such were necessary, and the company were
bound by it: Held. also, that defendant-, having failed to proceed in the
regular way. by giving notice to the proprietors of the purposes for which
they entered, and for which they could only enter after notice, were tres-
passers and liable as such.
Mclsaac et aL v. Inverness Ry. * Coal COL. C Can. Ry. Cas. 112, 38 XJS-R.
[Reversed in 37 Can. S.CJR. 134. 6 Can. Ry. Cas. 121.]
ArTHOMTT FOB SCBMIS^IOX TO JJTBITEATIOX TE*PAS8.
By statute, in Nova Scotia, if land is taken for railway purposes the
compensation therefor, and for earth, gravel, etc.. removed, shall be fixed
by arbitrators, one chosen by each party and the third, if required, by
those two. A railway company intending to expropriate, their engineer
wrote to M-. who had acted for the company in other eases, instructing
him to ascertain whether the owners had arranged their title so that the
arbiration could proceed and, if so, to ask them to nominate their man.
who. with M.. could appoint a third if they could not agree. The engineer
added, ~1 win send an agreement of arbitration which each one can sub-
scribe to. or, if they have one already drafted, yon can forward it here
for approvaL 3 Xo such agreement was sent by, or forwarded to, the engi-
neer, but tike three arbitrators were appointed and made an award on
which the owners of the land brought an action: Held. < Jng the
judgment appealed from. 38 N^R. 80, C Can. Ry. Cas. 112, that mm the
company had not taken the preliminary steps required by the statute
which, therefore, did not govern the arbitration proceedings, the award
was void for want of a proper submission. The company entered upon
land and cut down trees and removed gravel therefrom without giving the
owners the notice required by statute of their intention to take their
property. The owners by their action above mentioned, claimed ilimapn
for trespass as well as the amount of the award: Held, t*t as the ace
of the company was not authorised by statute the owners could sue for
trespass and as. at the trial, the action on this claim was dismissed on
the ground that such action was prohibited there should be a new trial.
In mm mi Ry. 4 Coal Co. T. VfTnaar, 6 Can. Ry. Cms. 121, 37 Can. S C.R.
134.
304 EXPROPRIATION.
MISCONDUCT OF ARBITRATORS GROSS UNDERVALUATION OF MINING CLAIM
INTERESTED MOTIVES.
The Court will not interfere to set aside an award unless corruption,
partiality, misconduct or irregularity is distinctly proved against the
arbitrators, and mere suspicion is not sufficient; or unless the sum awarded
is so grossly and scandalously inadequate as to shock one's sense of jus-
tice. The plaintiff having made an application under subs. 3 of s. 168
of the Railway Act, 1903. to set aside the award of the majority of the
arbitrators on the ground that it was unjust, improper, unreasonable and
grossly and scandalously inadequate and against the weight of evidence,
also, that no reasons were given for the amount of the award: Held, (1)
that there was no evidence which would warrant a finding of corruption,
partiality or irregularity on the part of the majority of the arbitrators
or that the amount of the award was grossly and scandalously inadequate.
(2) Under s. 164 arbitrators are not bound to give reasons for their con-
clusions though it would be better to do so.
Morley v. Klondike Mines Ry. Co., 6 Can. Ry. Cas. 183, 5 West. L.R.
109.
[Followed in Harrigan v. Klondike Mines Ry. Co., 6 Can. Ry. Cas. 193,
5 W.L.R. 137.
MISCONDUCT OF ARBITRATORS GROSS UNDERVALUATION OF MINING CLAIM
INTERESTED MOTIVES.
Application by plaintiffs, similar to that in Morley v. Klondike Mines
Ry. Co., 5 W.L.R. 109, 6 Can. Ry. Cas. 183, to set aside the award of a
majority of the arbitrators, on the ground that the award is unjust, im-
proper, unreasonable, and grossly and scandalously inadequate, and that
the same was made without regard to the evidence, and on the ground that
the majority of arbitrators acted unfairly, improperly and not as fair or
just arbitrators between the parties on such arbitration, or in making
such award: Held, following case supra, that where there is no evidence
of corruption or to sufficiently sustain the reasons set out in the appli-
cation, the award must stand.
Harrigan v. Klondike Mines Ry. Co., 6 Can. Ry. Cas. 193, 5 West. L.R.
137.
TERMS OF SUBMISSION EXCEEDED.
Where arbitrators were appointed under deeds of submission to value
three expropriated lots of ground and the indemnity for damages, it being
declared that they should act as mediators (amiables compositeurs) but
should be bound to conform to the provisions of s. 161 of the Railway Act,
1903, and the award in lieu of valuing the third lot in money ordered
that the expropriators should return it in part and construct a road on
their own adjoining land, to be maintained by them in perpetuity for the
benefit of the parties expropriated: Held, affirming 16 Que. K.B. 107, that
arbitrators who are also appointed mediators cannot disregard their in-
structions, and that the error vitiated the whole award.
Quebec Improvement Co. v. Quebec Bridge & Rv. Co., 7 Can. Ry. Cas.
336, [1908] A.C. 217.
COMPULSORY TAKING OF LAND APPEAL FROM AWARD OF ARBITRATORS.
(1) Upon an appeal, under s. 209 of the Railway Act, 1906, from an
award of arbitrators determining the compensation to be paid to an owner
for the compulsory taking of his lands by a railway company, the Court
will not assume the function of the arbitrators and make an independent
award, but will rather treat the matter as it would an appeal from the
EXPROPRIATION. 305
decision or verdict of a Judge, and the award will not be disturbed, unless
the arbitrators manifestly erred in some principle in arriving at their
conclusion. (2) Interest on the amount awarded should not be added by
the arbitrators, especially in a case where the claimant remain* in pos-
session of the property until after the date of the award. (3) It is proper
that the claimant should be allowed the actual value of the property to
him. and not merely the market value as on a sale. (4) The arbitrators
are not bound to allow ten per cent, extra on the amount of the compen-
sation for the compulsory taking, although that is frequently done, and
the Court will not interfere with their refusal to allow such percentage.
Can. Northern By. v. Robinson, 8 Can. By. Gas. 226, 17 Man. LJEL 396.
[Approved in Be Clarke and Toronto, Grey & Bruce By. Co.. 18 OJLIL
628, 9 Can. By. Cas. 290; commented on in Be Davies and James Bay By.
Co., 20 OXJL 534.]
RATIFICATION OF AWARD.
A petition for the ratification of an arbitration award, upon an expro-
priation of land by a railway company for the bnildhig of its line, is
presented in the interest of the railway company solely, the company shall
pay the costs of appearance upon the petition, with the costs of the ex-
prporiated owners attorneys on the petition, but not the costs on a reply
to the petition. The costs incurred in the distribution of the moneys
deposited in Court by the company petitioner shall be taken out of the
said moneys as in the ordinary course of law.
Chateauguay & Northern By. Co. v. Laurier, 9 Can. By. Cas. 51. 9 Que.
PJ1. 245.
INTERVENTION INTERESTED PARTT JURISDICTIOX OF SUPERIOR COURT.
A party, claiming the ownership of land expropriated by a railway com-
pany, may intervene in the expropriation proceedings; but such interven-
tion will not affect the validity of any proceedings had till then against
the registered proprietor. The Superior Court is the tribunal which has
jurisdiction to allow such intervention.
Be Montreal t Southern Counties By. Co. and Woodrow, 10 Can. Bv.
Cas. 496, 11 Que. P.B. 230.
COMPENSATION VALUE or LAXD TAKEN DAMAGE TO RESIDUE AMOUNTS
XOT SEPARATED IX AWARD INTERFERENCE WITH WORKING OF FARM.
Arbitrators having awarded to the claimant $30,607 as compensation for
about 4| acres of his stock and dairy farm of 465 acres, expropriated by
the contestants for their right-of-way, under the Railway Act, and for
damage to the residue of his land, the amount awarded was reduced on
appeal to $20,000. The arbitrators not having stated the principles by