clark v. canadian national railway co., [1988] 2 S.C.R. 680
Canadian National Railway Company Appellant
v.
James Mark Clark, an infant by his father and next friend Mark Byron Clark Respondent
and
The Attorney General for New Brunswick Respondent
and
The Attorney General of Canada, the Attorney General of Quebec and Canadian Pacific Limited Interveners
indexed as: clark v. canadian national railway co.
File No.: 19299.
1987: May 8; 1988: December 15.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain*, and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for new brunswick
Constitutional law ‑‑ Division of powers ‑‑ Federal undertaking ‑‑ Negligence ‑‑ Child seriously injured by train ‑‑ Action brought after limitation period provided for by federal act governing railways but within time allowed by provincial statute ‑‑ Whether action statute barred ‑‑ Whether federal limitation provision constitutionally valid or constitutionally applicable ‑‑ Whether federal limitation provision conflicted with and rendered inoperative s. 18 of the provincial Limitation of Actions Act ‑‑ Constitution Act, 1867, ss. 91(29), 92(10) ‑‑ Railway Act, R.S.C. 1970, c. R.‑2, s. 342(1) ‑‑ Limitation of Actions Act, R.S.N.B. 1973, c. L‑8, s. 18.
Respondent, who was then two years old, was seriously injured when he was struck by a C.N. train after he had wandered onto unfenced C.N. lands and railway tracks. The accident was alleged to have been caused by the negligence of the appellant and its employees, and in particular by a breach of common law duty of care, as well as breaches of provisions of the Railway Act and the Uniform Code of Operating Rules. The action was instituted more than three years after the cause of action arose. In its defence the appellant denied the allegations of negligence and pleaded in the alternative that the respondent's action was barred by the two‑year limitation period in s. 342(1) of the Railway Act. Respondent, however, argued that the applicable limitations of actions provision was s. 18 of the provincial Limitations of Actions Act, which would permit the action to be commenced within six years of the infant's attaining the age of majority. On an application for the determination before trial of a question of law, the Court of Queen's Bench held that the limitation period in s. 342(1) of the Railway Act was not applicable to the respondent's action against the appellant. The Court of Appeal upheld that decision. At issue here is whether s. 342(1) is applicable as a matter of construction and constitutional validity. The constitutional questions queried (1) whether s. 342(1) of the Railway Act was constitutionally valid or constitutionally applicable to this action, and (2) if so, whether it conflicted with and rendered inoperative s. 18 of the provincial Limitation of Actions Act.
Held: The appeal should be dismissed. Section 342(1) is ultra vires to the extent that it purports to apply to an action for damages for personal injury arising under provincial law. It was not necessary to answer the second constitutional question.
The action was a common law action for negligence arising under provincial law despite reliance on statutory duties. As a matter of construction, s. 342(1) applies to infant plaintiffs, notwithstanding any benefit that they might have under provincial law, because no exception was made on their behalf by Parliament. The provincial legislature cannot make exceptions to federal legislation.
The word "operation" in s. 342(1) should be given its plain and ordinary meaning which would include the running of the cars. To make "operation" mean "coming into operation", and so restrict the limitation period to actions arising during the period of the coming into operation, would add words which were not there and introduce an element of ambiguity as to when construction ends and operation begins. The ambiguity, if any, was in the French version alone. Given the general nature of the language used, Parliament did not intend to protect railways from actions during the period of the coming into operation of the railway but not during the period of its continuing operation.
Properly construed, s. 342(1) was intended to bar an action such as the one at bar. The purpose of the provision was to protect the railways from lawsuits generally and it was law suits founded on negligence to which railways were most vulnerable. Nothing in s. 342(1) suggested that Parliament intended its scope to be so restricted.
However, s. 342(1) is ultra vires in so far as it applies to an action such as the present one. The New Brunswick legislature is constitutionally competent to legislate in respect of general limitation periods by virtue of s. 92(13) and (14) of the Constitution. Undertakings falling under federal legislative competence by virtue of s. 92(10) are not thereby removed from the ambit of provincial legislative competence, and are not entirely embraced by the legislative authority of Parliament. While section 342(1) of the Railway Act is plainly legislation in relation to railways, a limitation provision relating to an action for personal injury caused by a railway cannot be said to be an integral part of federal jurisdiction. The core federal responsibility regarding railways is to plan, establish, supervise and maintain the construction and operation of rail lines, railroad companies, and related operations. The establishment of general limitation periods which affect those injured by the negligence of the railway is not part of that core federal responsibility or of any penumbra sufficiently proximate to satisfy the "integral element" test.
Section 342(1) can be restricted to a constitutionally permissible scope. The limitations period provision can be read as applying solely to breaches of statutory causes of action validly created under the Railway Act. Although Parliament may not have intended to restrict the limitation provision to those causes of action specifically created by the statute, s. 342(1) is capable of bearing that restricted meaning. To confine s. 342(1) to validly enacted causes of action under valid federal legislation does not deprive the section of all real effect; it merely reduces its scope to what is constitutionally permitted.
Cases Cited
Applied: Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; considered: Levesque v. New Brunswick Railway Co. (1889), 29 N.B.R. 588; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; distinguished: Canadian Northern Railway Co. v. Pszenicnzy (1916), 54 S.C.R. 36; Williams v. Canadian National Railway Co. (1976), 75 D.L.R. (3d) 87; McArthur v. Northern and Pacific Junction Railway Co. (1890), 17 O.A.R. 86; Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; referred to: The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Grand Trunk Railway Company of Canada v. Attorney‑General of Canada, [1907] A.C. 65; West v. Corbett (1913), 47 S.C.R. 596; Winnipeg Electric Railway Co. v. Aitken (1921), 63 S.C.R. 586; British Columbia Electric Railway Co. Ltd. v. Pribble, [1926] A.C. 466; Canadian Northern Railway Co. v. Robinson, [1911] A.C. 739, aff'g (1910), 43 S.C.R. 387; Greer v. Canadian Pacific Railway Co. (1915), 51 S.C.R. 338; Deputy Minister of Revenue v. Rainville, [1980] 1 S.C.R. 35; R. v. Popovic, [1976] 2 S.C.R. 308; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Reference respecting the Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R 654; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co. v. Nor‑Min Supplies Ltd., [1977] 1 S.C.R. 322: Canadian Pacific Railway Co. v. Notre‑Dame de Bonsecours, [1899] A.C. 367; Madden v. Nelson and Fort Sheppard Railway Co., [1899] A.C. 626; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; Attorney‑General for Alberta and Winstanley v. Atlas Lumber Co., [1941] S.C.R. 87; Cushing v. Dupuy (1880), 5 App. Cas. 409.
Statutes and Regulations Cited
Canadian National Railways Act, R.S.C. 1970, c. C‑10, s. 18.
Constitution Act, 1867, ss. 91(29), 92(10), (13), (14).
Employers' Liability Act, R.S.M. 1913, c. 61, s. 12.
Limitation of Actions Act, R.S.N.B. 1973, c. L‑8, s. 18.
Lord's Day Act, R.S.C. 1970, c. L‑13, s. 4.
Manitoba Railway Act, R.S.M. 1913, c. 168, s. 116.
Official Languages Act, R.S.C. 1970, c. O‑2, s. 8(2)(d).
Railway Act, R.S.C. 1970, c. R‑2, ss. 227, 336, 342(1).
Rules of Court of New Brunswick, s. 23.01.
Uniform Code of Operating Rules.
APPEAL from a judgment of the New Brunswick Court of Appeal (1985), 62 N.B.R. (2d) 276, 17 D.L.R. (4th) 58, dismissing an appeal from a judgment of Dickson J. (1984), 50 N.B.R. (2d) 356, 5 D.L.R. (4th) 690, on a preliminary issue. Appeal dismissed.
John J. Robinette, Q.C., and Ronald Jackson, for the appellant.
E. Neil McKelvey, Q.C., Ronald Ashfield, and Stephen J. Hutchison, for the respondent James Mark Clark.
Bruce Judah, for the respondent the Attorney General for New Brunswick.
R. P. Hynes and M. L. Basta, for the intervener the Attorney General of Canada.
Jean Bouchard, for the intervener the Attorney General of Quebec.
C. R. O. Munro, Q.C., and James V. West, for the intervener Canadian Pacific Limited.
The following is the judgment delivered by
1. The Court‑‑The question raised by this appeal is whether the limitation period in s. 342(1) of the Railway Act, R.S.C. 1970, c. R‑2, is applicable, as a matter of construction and constitutional validity, to the action in negligence of the respondent infant against the appellant railway company for injury as a result of being struck by a train operated by the appellant, or whether the applicable limitation period is that provided by s. 18 of the Limitation of Actions Act, R.S.N.B. 1973, c. L‑8.
2. The appeal is by leave of this Court from the judgment of the New Brunswick Court of Appeal (1985), 17 D.L.R. (4th) 58, dismissing an appeal from the judgment of Dickson J. of the Court of Queen's Bench (1984), 5 D.L.R. (4th) 690, which held, on an application for the determination before trial of a question of law, that the limitation period in s. 342(1) of the Railway Act was not applicable to the respondent's action against the appellant. Before this Court, the Attorney General of Canada and Canadian Pacific Limited intervened in support of the appellant's contention that s. 342(1) is valid and applicable legislation. The Attorneys General for New Brunswick and Quebec intervened to support the respondent's claim that the section would not constitutionally bar the action.
I
Statutory and Constitutional Provisions
3. The Railway Act provides as follows:
342. (1) All actions or suits for indemnity for any damages or injury sustained by reason of the construction or operation of the railway shall, and notwithstanding anything in any Special Act may, be commenced within two years next after the time when such supposed damage is sustained, or if there is continuation of damage, within two years next after the doing or committing of such damage ceases, and not afterwards.
4. The Limitations of Actions Act provides:
18 Where a person entitled to bring an action is at the time the cause of action accrues an infant, mental defective, mental incompetent or of unsound mind, the period within which such action shall be brought shall be six years, or two years from the date when such person becomes of full age, or of sound mind, as the case may be, whichever is the longer.
24 Nothing in this Act extends to any action where the time for bringing the action is by statute specially limited.
5. The Constitution Act, 1867, s. 91(29) assigns to Parliament exclusive legislative authority in relation to:
91. ...
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
6. In section 92(10), the following matters, inter alia, are excepted from provincial legislative competence:
92. ...
10. ...
a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
b. Lines of Steam Ships between the Province and any British or Foreign Country:
c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
7. The Canadian National Railways Act, R.S.C. 1970, c. C‑10, s. 18, declares the railway or other transportation works in Canada of the C.N.R. to be works for the general advantage of Canada.
8. The following constitutional questions were stated for determination in this appeal:
1. Is section 342(1) of the Railway Act, R.S.C. 1970, c. R‑2, constitutionally valid or constitutionally applicable to this action?
2. If section 342(1) of the Railway Act, R.S.C. 1970, c. R‑2, is constitutionally valid and constitutionally applicable to this action, does it conflict with and render inoperative s. 18 of the Limitation of Actions Act, R.S.N.B. 1973, c. L‑8?
II
Facts
9. The statement of claim alleges that on July 24, 1978, when he was two years of age, the respondent wandered on to the unfenced lands and railway tracks owned and maintained by the appellant and was struck by a train operated by the appellant, as a result of which the respondent suffered personal injuries which rendered him completely paraplegic and totally disabled. The respondent's statement of claim alleges that the accident was caused by the negligence of the appellant and its employees. The particulars of the alleged negligence pleaded in the statement of claim include various allegations of breach of common law duty of care, as well as breaches of provisions of the Railway Act and the Uniform Code of Operating Rules specified by the Canadian Transport Commission pursuant to s. 227 of the Railway Act.
10. The respondent's action was instituted on September 1, 1981, more than three years after the cause of action arose. In its defence the appellant denies the allegations of negligence and pleads in the alternative that the respondent's action is barred by the two‑year limitation period in s. 342(1) of the Railway Act.
11. The respondent's position is that as a matter of construction and constitutional validity, s. 342(1) is not applicable to a common law action for negligence and, in any event, not applicable to an action by an infant, and that the applicable limitations of actions provision is s. 18 of the provincial Limitation of Actions Act which would permit the action to be commenced within six years of the date when the infant becomes of full age.
12. The appellant contends that not only is s. 342(1) valid federal legislation, as applied to the respondent's action, that prevails by the rule of paramountcy over s. 18 of the Limitation of Actions Act, but that in any event, the application of s. 18 is expressly excluded by s. 24 of the provincial Act.
III
Judgments of the New Brunswick Courts
(a) Court of Queen's Bench ((1984), 50 N.B.R. (2d) 356, 5 D.L.R. (4th) 690)
13. The issue was brought before Dickson J. of the Court of Queen's Bench on an application, by agreement, under Rule 23.01 of the Rules of the Court for the determination before trial of a question of law raised in the pleadings. Dickson J. held that he was bound by the judgment of this Court in Canadian Northern Railway Co. v. Pszenicnzy (1916), 54 S.C.R. 36, to find that s. 342(1) was constitutionally applicable to an action for common law negligence. However, he also held that s. 342(1) did not bar the respondent's action, and following the judgment of the Nova Scotia Court of Appeal in Williams v. Canadian National Railway Co. (1976), 75 D.L.R. (3d) 87, held that it should be construed so as not to apply to the procedural law governing actions by infants, and that it did not displace the special limitation period for infants found in s. 18 of the New Brunswick Limitation of Actions Act. He further held that s. 24 of the Act did not have the effect of making s. 342(1) applicable because the word "statute" in s. 24 should be construed as referring to a statute of the provincial legislature and not to a statute of Parliament.
(b) New Brunswick Court of Appeal ((1985), 62 N.B.R. (2d) 276, 17 D.L.R. (4th) 58)
14. By a majority, the Court of Appeal dismissed the appeal. La Forest J.A. rejected the analysis offered by Dickson J., and held that the words of s. 342(1) are broad enough to encompass common law actions for negligence in the operation of a railway. There was no basis for making an exception for actions by or on behalf of infants. In La Forest J.A's view, it was necessary to confront the constitutional issue. He held that the judgment of this Court in Pszenicnzy, supra, was not binding because it was not a considered opinion of the Court on the constitutionality of s. 342(1). La Forest J.A. stated that federal undertakings must comply with provincial laws unless such laws interfere with their status or powers or discriminate against them. To sustain s. 342(1) as valid federal legislation, it had to be shown that it regulated an integral aspect of a railway undertaking. It is not enough that the legislation had an effect on the organization of the railway and the way it operates. La Forest J.A. suggested that s. 342(1) might apply to rights of action validly created by the Railway Act, but concluded that the limitation of actions for personal injury caused by a railway did not constitute an integral aspect of a federal matter and therefore s. 342(1) was ultra vires to the extent that it purported to apply to common law actions in negligence.
15. Hoyt J.A. agreed that s. 342(1) was ultra vires in so far as it purported to apply to an action in negligence at common law. He also agreed with the reasons of Dickson J. that s. 342(1) was procedural only and should not be interpreted as changing the general procedural law of the province relating to infants or as relieving the railway of the force of the quite separate protection given to an infant by the provincial Act.
16. Angers J.A., dissenting, felt constrained by the case law, in particular the decision of this Court in Pszenicnzy, to uphold the constitutional validity of s. 342(1). He indicated, however, that if he were free to do so, he would have found that s. 342(1) did not apply to a common law action. He stated that he would have held that the true intent of Parliament with respect to the limitation period was to restrict its application to damages resulting from the construction or the coming into operation of the railway. Drawing on the French text of s. 342(1) which used the phrase "de la construction ou de la mise en service du chemin de fer", Angers J.A. held that Parliament never intended it to apply to a common law action for negligence arising out of the ongoing operation of the railway.
IV
Applicability of S. 342(1) to the Respondent's Action
17. Although the questions of construction and constitutional validity are obviously closely related, it is appropriate to consider first the questions of the proper characterization of the respondent's action and of the construction of s. 342(1) of the Railway Act.
18. As already indicated, the respondent's action is for negligence consisting of both breaches of statutory duty under the Railway Act and breaches of a common law duty of care. Despite the reliance on statutory duties, the action remains a common law action for negligence: The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. The respondent is asserting a common law right of action arising under provincial law and not a right of action created by the Railway Act, although liability may be affected by provisions of that Act.
(a) Does Section 342(1) Apply to Infant Plaintiffs?
19. In Williams v. Canadian National Railway Co., supra, a case similar to the present one and relied upon here by the judge at first instance, Mac‑ Keigan C.J.N.S. indicated that, absent authority, he would have found s. 342(1) ultra vires. However, he considered himself to be bound by Pszenicnzy, supra, and by a series of cases which have assumed the validity of the section: Grand Trunk Railway Company of Canada v. Attorney‑General of Canada, [1907] A.C. 65; West v. Corbett (1913), 47 S.C.R. 596; Winnipeg Electric Railway Co. v. Aitken (1921), 63 S.C.R. 586; British Columbia Electric Railway Co. Ltd. v. Pribble, [1926] A.C. 466.
20. However, MacKeigan C.J.N.S. went on to hold that s. 342(1) did not operate so as to deprive an infant of the benefit of a provincial law similar in terms to s. 18 of the New Brunswick Limitation of Actions Act. In MacKeigan C.J.N.S.'s view, s. 342(1) of the Railway Act was purely procedural and therefore should be construed so as to constitute a minimal interference with provincial procedural rules. While the federal enactment did reduce the time for commencement of an action from the six years provided in provincial legislation to two years, it did not relieve a railway of the quite separate and specific procedural protection afforded infants by the provincial act (at p. 99):
[Section 342] should not be construed as creating more than the minimum interference with provincial procedural rules governing an action against a railway than the language compels. All it does is reduce from six years to two years the limitation period for an action against a railway. It should not be gratuitously construed as also relieving the railway of the force of the quite separate protection given an infant by the provincial Statute of Limitations.
Section 342(1), which we assume to be valid federal legislation, changes the limitation period for a provincial action to one of two years. Section 3 of the statute [The Nova Scotia equivalent of s. 18 of the New Brunswick Act], a valid provincial Act, extends that period for an infant. We thus have here no conflict between a federal statute and a provincial statute and thus no paramount need for the federal to override the provincial.
21. We agree with La Forest J.A. in rejecting this interpretation of s. 342(1) and we would adopt his reasoning on this point (at pp. 286‑87):
I find myself unable to agree with this reasoning. Subsection 342(1) provides that an action like the present must be commenced within two years. It makes no exception. Consequently, a provincial statute that purports to provide a longer period of limitation for such action, whether generally or in respect of certain persons or groups, inevitably conflicts with s. 342(1) and must be deemed to be inapplicable to matters covered by s. 342(1). This raises no question of legislative concurrency, as was argued before us. The two sections cannot live together in this way; they conflict. The federal statute says the maximum delay for bringing an action is two years. The provincial statute permits it to be brought within a longer period in the case of children.
It must be observed that s. 342(1), if valid, derives its validity from the fact that it deals with railways. Whatever inconveniences may result in the working and management of railways from delays in bringing actions against them, e.g. the necessity of preserving records of accidents and keeping employees and others available as witnesses, these inconveniences are the same whether an adult or an infant is involved. If Parliament had wished to provide for an extension of time for the benefit of children it would have done so.... It is for Parliament and not for the provincial legislature to make exceptions to federal legislation.
(b) Does Section 342(1) Apply to the Daily Operation of Railways?
22. There is a difference between the English and French versions of s. 342(1) relied upon by the respondent. The English version speaks of the "construction or operation of the railway" while the French speaks of "la construction ou de la mise en service du chemin de fer". Elsewhere in the statute, as Angers J.A. indicated in the Court of Appeal, the word "operate" is translated as "exploiter". Therefore, it is contended, the limitation period must apply only to actions arising from the time of construction or the coming into operation of the railway immediately following construction.
23. To give the word "operation" this narrow interpretation would be contrary both to authority and to the plain meaning of the words. It has been held in several cases that "operation" must bear its full and common sense meaning. In Canadian Northern Railway Co. v. Robinson (1910), 43 S.C.R. 387, the question arose whether an action for recovery of damages for injuries suffered because of the railway's failure to furnish reasonable and proper facilities for receiving, forwarding and delivery freight was barred by the limitation period in the Railway Act. The answer turned upon a determination of whether the railway's conduct fell within the scope of "operation of the railway". The majority held that the limitation period did not apply. However, the Court was clearly of the view that "operation" was not limited to the coming into operation of the railway. The Privy Council dismissed the appeal, [1911] A.C. 739, and Viscount Haldane stated that "operation seems to signify simply the process of working the railway as constructed" (p. 745). In Greer v. Canadian Pacific Railway Co. (1915), 51 S.C.R. 338, the question was whether burning worn‑out ties to keep the railway right‑of‑way free from combustible material came within the definition of "operation of the railway". The majority held that the burning of ties did come within the means of "operation". This Court considered the matter again in Winnipeg Electric Railway Co. v. Aitken, supra, where the question arose whether breach of a street railway company's contract to carry a passenger safely came within the scope of "construction or operation of the railway" in s. 116 of The Manitoba Railway Act, R.S.M. 1913, c. 168, so as to make applicable a limitation period barring recovery. Anglin J. said, at p. 594: "If the running of the cars is not `operation of the railway', I find it difficult to conceive what would be." He continued, at p. 595:
The primary rule of statutory construction is that, unless to do so would lead to absurdity, repugnancy or inconsistency with the rest of the statute the grammatical and ordinary sense of the words should prevail. The language of section 116 of the Manitoba Act is precise and unambiguous. No absurdity, repugnancy or inconsistency can arise from giving to it its natural and ordinary sense.
The decision in Winnipeg Electric was cited with approval by the Privy Council in British Columbia Electric Railway Co. Ltd. v. Pribble, supra, where a similar construction was given the words "sustained by reason of the ... railway" in a British Columbia limitations statute.
24. The plain and ordinary meaning of "operation" includes the running of the cars. To make "operation" mean "coming into operation" is patently to add words which are not there, and to introduce an element of ambiguity as to when construction ends and operation begins. In our view, the ambiguity, if any, is found in the French version alone. In the event of conflict between English and French versions, resort may be had to the true spirit, intent and meaning of the provision so as to construe the provision in a manner consistent with its objectives: Official Languages Act, R.S.C. 1970, c. O‑2, s. 8(2)(d). The English version is, in our view, unambiguous, and in such a case that version should govern in preference to the version in the other language which would introduce imprecision and ambiguity: Deputy Minister of Revenue v. Rainville, [1980] 1 S.C.R. 35; R. v. Popovic, [1976] 2 S.C.R. 308. It seems highly implausible, given the general nature of the language used, that Parliament intended to protect railways from actions during the period of the coming into operation of the railway but not during the period of its continuing operation. For these reasons, we conclude that s. 342(1) cannot be said not to apply by reason of the definition of "operation".
(c) Does Section 342(1) Apply to Common Law Negligence Actions?
25. In his dissenting reasons in the Court of Appeal, Angers J.A. indicated that if he did not feel constrained by the decision in Pszenicnzy, he would have found that s. 342(1) did not bar the plaintiff's action quite apart from the question of its constitutionality. He said, at pp. 299‑300:
In any event, if it were within my power to find that s. 342(1) of the Railway Act does not apply here, it would not be on the basis of its unconstitutionality but on its application to a common law action. The cases to which I have referred extended the application of s. 342(1) to common law actions and declared it intra vires the Parliament. Those cases could have restricted the application of the limitation provision of the Railway Act solely to actions arising out of provisions of the Railway Act, as was done in Skobel v. McDonald et al. (1959), 19 D.L.R. (2d) 678 (B.C.S.C.), a case where a right of action provided by a statute was held subject to the limitation period of that statute; see also Cairney v. MacQueen, [1956] S.C.R. 555. In a case like the present, only rights of action arising out of the Railway Act would be limited by the Railway Act. Other actions such as an action based on negligence or any other action founded on a provincial statute would be governed, as far as limitations are concerned, by the provincial statute.
26. Both precedent and the purpose of the section suggest that s. 342(1) was intended to apply to common law negligence actions. With respect to precedent, Greer v. Canadian Pacific Railway Co., supra, and Pszenicnzy, supra, were cases in which the limitation period in the Act was applied to common law actions for damages or injuries sustained by reason of negligence in the operation of a railway. The purpose of the provision would seem to be protection of railways from lawsuits generally. If the purpose of the section were to shelter railways from lawsuits, it was law suits founded on negligence to which railways were most vulnerable. There is nothing in the language of s. 342(1) to suggest Parliament intended its scope to be so restricted, and accordingly, we would conclude that, properly construed, s. 342(1) was intended to bar an action such as the respondent's.
V
The Constitutionality of S. 342(1)
27. Rights of action for damages for personal injury and the procedure relating thereto is a matter which, for constitutional purposes, falls within exclusive provincial legislative competence in relation to "Property and Civil Rights" (Constitution Act, 1867, s. 92(13)) and "Procedure in Civil Matters" (s. 92(14)). Parliament has exclusive legislative jurisdiction in relation to railways and works declared to be for the general advantage of Canada (ss. 91(29), 92(10)). Under which head of power does the prescription of the respondent's action fall? The case law does not present a crystal clear answer.
(a) Case Law Dealing with the Constitutionality of the Railway Act's Special Limitation Period
28. Two provincial courts of appeal considered the validity of the predecessor sections to s. 342(1) soon after Confederation. In Levesque v. New Brunswick Railway Co. (1889), 29 N.B.R. 588, the New Brunswick Court of Appeal held that Parliament had the exclusive right to legislate on the subject of railways. The limitation of actions for damages sustained by reason of the operation of the railway was held to be incidental to the federal power over railways, and the special limitation provision with respect to railways was held to be intra vires Parliament. Tuck J. stated, at p. 596:
When the Parliament of Canada has the right to legislate upon a given subject, they have the power to make such provisions relating to that subject, as may be necessary to enforce and carry into effect their legislation.
Procedure forms an essential part of laws dealing with railways, as it does with laws relating to insolvency. When the Parliament of Canada acquired the right to make laws to govern the defendants' railway, power was given by implication to interfere with property and civil rights in the Province, so far as a general law relating to this subject might affect them.
29. Similarly, King J. stated, at p. 604:
It was next contended by Mr. Gregory that the Act was ultra vires the Dominion Parliament, on the ground (as contended), that the passing a statute of limitations is not incidental to powers exercised in dealing with railway legislation. It was admitted that, where a right is conferred by an Act of Parliament, a limitation of the right of action in respect of it may be imposed; but it is contended that here the plaintiff's claim or right rests on a Provincial statute. But it seems to me that if the Dominion Parliament have the power to confer the right, or to take away the right altogether (as I think they must have when they acquire plenary powers of legislation under the terms of The British North America Act, as they have done in this case), they have the power to set bounds to the enforcement by action of the right. This is substantially a limiting of the right.
30. Allen J. agreed, holding that prescribing the time for bringing an action against the railway was (at p. 613) "incident to the right of the Dominion Parliament to legislate on the subject of railways".
31. The Ontario Court of Appeal had occasion to consider the same section in McArthur v. Northern and Pacific Junction Railway Co. (1890), 17 O.A.R. 86. The court divided evenly on the issue of the validity of the limitation provision in the Railway Act. Hagarty C.J.O. and Osler J.A. were of the view that the impugned section was intra vires Parliament. They emphasized the fact that the impugned section was a continuation of the pre‑confederation legislation. Osler J.A. was of the opinion that the legislation was (at p. 125) "well within the competence of Parliament to pass in order to legislate generally and effectually on a subject within its exclusive powers, even though it may, to some extent, trench upon the subject of property and civil rights." Burton and Maclennan JJ.A. took a contrary view. Burton J.A. stated that s. 91 specifically listed instances where the federal government had power to deal with procedural matters, for example, bankruptcy and insolvency and maritime courts. He continued, at p. 114:
When therefore we find a Parliament whose powers do not extend to deal with property and civil rights, except in the instances specifically enumerated, it is difficult to suggest a reason for the validity of the exercise of the power in the present case.
32. In Greer v. Canadian Pacific Railway Co., supra, this Court faced the interpretive issue as to the scope of the section already discussed. The action was for breach of statutory duty and while no constitutional issue was raised, Duff J. did comment that (at p. 349) "as regards causes of action given by provincial law only, it appears to me that it would be arguable that a Dominion enactment relating only to procedure would be ultra vires."
33. The most significant authority on the constitutionality of s. 342(1) is Canadian Northern Railway Co. v. Pszenicnzy, supra. The plaintiff, an employee of the defendant railway company, was injured while removing rails from one car to another with other employees. One of the rails slipped from the hands of another employee and crushed the plaintiff's foot. The plaintiff's action was based on the Employers' Liability Act, R.S.M. 1913, c. 61, which removed the defence of common employment and gave a right of action to a worker injured as a result of the negligence of a fellow employee. The suit could not be called a common law action for negligence, but it was a right of action arising under provincial law, and to the extent that the special limitation period of the Railway Act was held to be applicable and intra vires the case is authority very relevant to the issues presented in the present case.
34. The Manitoba Employers' Liability Act, s. 12, provided that a suit for compensation had to be brought within two years of the accident causing the injury, while s. 306 of the Railway Act, the precursor of s. 342(1) in the current act, provided that a suit for damages against a railway had to be brought within one year. The action was brought with the two‑year period, but more than one year after the date of the accident. The issue presented was which limitation period applied. As La Forest J.A. observed in the Court of Appeal, the report of the arguments in the Manitoba Court of Appeal and in this Court does not show that any constitutional issue was raised. However, in addressing the issues of construction, judges in both courts expressed certain assumptions of constitutional validity.
35. In the Manitoba Court of Appeal (1915), 25 D.L.R. 128, Howell C.J.M. held, citing Grand Trunk Railway Company of Canada v. Attorney‑General of Canada, supra, that Parliament had legislative authority to regulate the rights of action of an employee of a federal railway against the employer for injury suffered in the course of his employment, and that it could validly prescribe a limitation period for such an action. Howell C.J.M. held, however, that Parliament did not intend in s. 306(1) to displace the limitation period prescribed by s. 12 of the Manitoba Employers' Liability Act. This was similar to the view taken in Williams, supra, and by Dickson J. in the case at bar. Perdue J.A. took a similar course. He made the following statement (at p. 132), reflecting a constitutional assumption in aid of interpretation:
A company incorporated by Dominion statute and subject to the provisions of the Railway Act remains, apart from matters purely of railway legislation, subject to the jurisdiction of the provincial legislature: C.P.R. v. Notre Dame du Beausecours [sic], [1899] A.C. 372. It cannot now be questioned that the Employers' Liability Act operating a railway in the province. If parliament had intended to pass an enactment limiting the time for bringing any suit for damages against a railway company (assuming that it has the power to pass such a law), one would think that in so seriously invading the field of property and civil rights, it would have made its intention clear and unmistakable. I think that the several clauses of sec. 306, grouped together as they now are in the same sec., shew that there was no intention to amend or limit the provisions of the provincial Act.
36. Thus the issue before this Court in Pszenicnzy was whether s. 306(1) applied to a cause of action arising under provincial law. While that was presented as a question of construction, the Court made certain assumptions of constitutional authority in coming to a conclusion as to the correct interpretation of s. 306(1). In other words, the Court would not construe the section in a way which would, in its view, be unconstitutional. The majority were of the view that the section applied. Fitzpatrick C.J. said, at p. 40:
Assuming, as I think we must, that it was competent to the Dominion Parliament to pass this legislation I am satisfied that the language of paragraph 1 is sufficiently comprehensive to include all claims for damages, whether they arise at common law or under a statute.
Davies J. felt bound to agree by virtue of the majority decision in Greer, supra, although he had dissented in that case. Anglin J. (with whom Brodeur J. concurred) gave the fullest consideration of any member of the court to the constitutional issue, at p. 47:
If this "law is truly ancillary to railway legislation," although it should deal with and affect civil rights in the province and should overlap provincial legislation, it is intra vires and must prevail in cases which fall within its scope. Grand Trunk Railway Co. v. Attorney‑General for Canada, [1907] A.C. 65. Many reasons may be surmised why Parliament should consider it advisable, if not necessary, for the efficient and satisfactory working and management of their undertakings, that railway companies should be relieved from the necessity of preserving records of accidents and keeping available as witnesses for more than a year employees and other persons who may be in a position to give evidence as to them. With the merits of such a policy we are not concerned. So long as Parliament has not, under the guise of railway legislation, enacted what is not such but is truly legislation as to civil rights, its authority may not be questioned.
Idington J. would have distinguished Greer and held the limitation section of the Railway Act inapplicable to the case before him (pp. 43‑44):
It is conceivable that a burning of refuse including old ties on the track was rendered imperative by that section.
If that view is accepted, though it was not mine, then the company acting under the paramount authority of the "Railway Act" and discharging a duty created thereby could not be held bound by any Act of the legislature in conflict therewith and, as a corollary thereto, the applicability of the limitation of action in section 306 of the "Railway Act" may be arguable.
37. There is nothing of that sort in this case.
It cannot be pretended, at least so far it has not been since the legislation questioned in, and the decisions in the case of In re Railway Act of 1904, 36 Can. S.C.R. 136, and the same case under the name of Grand Trunk Railway Company v. Attorney‑General of Canada, [1907] A.C. 65, that the "Employers' Liability Act" or similar legislation does not bind the railway companies.
38. Since Pszenicnzy, the constitutionality of the special limitation period found in the Railway Act seems to have been assumed, perhaps because of the judicial statements just quoted. In Williams v. Canadian National Railway Co., supra, the Appeal Division of the Nova Scotia Supreme Court considered itself bound by Pszenicnzy, although MacKeigan C.J. indicated, at p. 89, that he would have decided Williams differently if he were not bound by authority:
Without benefit of authority, I would have considered s. 342(1) ultra vires as an unwarranted intrusion into the administration of justice, as an improper restriction of a common law right of action and as a trespass on "property and civil rights" reserved to the Province, a trespass not justified by Parliament's right to legislate as to railways. I must agree with Chief Justice Cowan, however, that high authority binding on us has held the section intra vires.
In the present case, two judges of the New Brunswick Court of Appeal, La Forest and Hoyt JJ.A. found that Pszenicnzy was not a "considered opinion" of the Supreme Court of Canada on the point, and therefore not a binding authority. As La Forest J.A. pointed out, the constitutional issue does not appear to have been argued in Pszenicnzy and the validity of the provision now impugned was in that case assumed.
39. In this Court, the characterization of the manner in which the Court dealt with the issue some seventy years ago is, of course, not determinative. It remains, however, that the Court would be less willing to interfere with a decision arrived at after full argument and deliberation, and it can hardly be said that the point at issue here received such treatment in Pszenicnzy, nor are the other authorities on the point which have been discussed particularly compelling.
40. (b) Changing Circumstances
41. La Forest J.A. expressed the view that the changing circumstances in relation to railways and their significance called for a fresh look at the constitutional issue raised. La Forest J.A. made particular reference to Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687, where the Court considered the duty of a railway company to users of public crossings. Doubt is said to have been cast on the validity of the early railway cases in light of changing circumstances (at p. 708):
The McKay case was decided over seventy years ago, when Canada was, to quote Sedgewick J. in that case, "a young and only partially developed territory". Davies J. in the same case expressed concern that railway development not be impeded. The past seventy years have wrought many changes within Canada and today one might perhaps be inclined to question the relevance and validity of a rule of law which limits the common law duty of care of a railway to the special case or the exceptional case, particularly if those words are to receive a strict or narrow construction. It may well be that the interests of a young and undeveloped nation are best served by a minimum of impediment to industrial growth and economic expansion but in a more developed and populous nation this attitude of laissez faire may have to yield to accommodate the legitimate concern of society for other vital interests such as the safety and welfare of children.
Laskin C.J. agreed with these comments and continued, at pp. 689‑90:
To them I would add, in emphasis of what he has said on the point, that I am unable to appreciate why railway companies, in the conduct of their transportation operations, are today entitled to the benefit of a special rule, more favourable to them, by which their common law liability is to be gauged. When all allowances are made for the force and legal effect of the rules and regulations of the regulatory agency, the Canadian Transport Commission, to which railway companies are subject, and when the question of their liability turns on the common law of negligence as is the case here, they cannot claim to be judged by any different standards than those that apply to other persons or entities charged with liability for negligence.
42. These comments, of course, were made in the Paskivski case in relation to a rule of common law, whereas the issue before us is one of constitutional validity. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, a case decided after the New Brunswick Court of Appeal rendered judgment in the case at bar, the issue was the validity of the Lord's Day Act, R.S.C. 1970, c. L‑13, s. 4, under the Canadian Charter of Rights and Freedoms. One submission in the case was the purpose of legislation may shift or be transformed over time by changing circumstances. The Court unanimously rejected such a doctrine (at pp. 334‑35):
First, there are the practical difficulties. No legislation would be safe from a revised judicial assessment of purpose. Laws assumed valid on the basis of persuasive and powerful authority could, at any time, be struck down as invalid. Not only would this create uncertainty in the law, but it would encourage re‑litigation of the same issues and, it could be argued, provide the courts with a means by which to arrive at a result dictated by other than legal considerations. It could effectively end the doctrine of stare decisis in division of power cases.
...
Furthermore, the theory of a shifting purpose stands in stark contrast to fundamental notions developed in our law concerning the nature of "Parliamentary intention". Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable.
43. In the absence of an amendment to the constitution itself, legislation, if once constitutionally valid, does not with time and changing circumstances shift its purpose so as to become constitutionally invalid. The purpose of legislation cannot logically be said to alter with the passage of time and changing circumstances. However, as was pointed out in R. v. Big M Drug Mart Ltd. in the passage immediately following that just quoted, the scope of a given legislative power and the classification of legislation for constitutional purposes does evolve over time:
As Laskin C.J. has suggested in R. v. Zelensky, [1978] 2 S.C.R. 940, at p. 951, "new appreciations" and "re‑assessments" may justify a re‑interpretation of the scope of legislative power. While this may alter over time the breadth of the various heads of power and thereby affect the classification of legislation, it does not affect the characterization of the purpose of legislation, in this case the Lord's Day Act.
44. R. v. Big M Drug Mart Ltd. does not, therefore, preclude a reassessment of the constitutionality of legislation. This Court has made it clear that constitutional decisions are not immutable, even in the absence of constitutional amendment: See, e.g. Reference re The Farm Products Marketing Act, [1957] S.C.R. 198, at pp. 212‑13; Reference respecting the Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141, at p. 161; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R 654, at p. 661.
45. It is our view, for the reasons which follow, that the approach taken in Pszenicnzy, with regard to the scope of the federal power over railways and the classification of the impugned section of the Railway Act underlying the holding or assumption of constitutionality, is inconsistent with that taken in the modern jurisprudence of this Court with respect to s. 92(10) of the Constitution Act, 1867.
(c) Application of Provincial Law to s. 92(10) Undertakings
46. The first principle is that of the general applicability of provincial legislation of general application. It is well‑established that undertakings falling within federal competence by virtue of s. 92(10) are subject to provincial laws of general application: see the recent judgment of this Court in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, at pp. 762‑63, per Beetz J., describing the "general rule" in the following way:
... works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction: Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367 ("Bonsecours"); Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751 ("Natural Parents"); Dick v. The Queen, [1985] 2 S.C.R. 309; Derrickson v. Derrickson, [1986] 1 S.C.R. 285.
47. In several instances, both in this Court and in the Privy Council, the application of provincial laws of general application to railways has been upheld: Canadian National Railway Co. v. Nor‑Min Supplies Ltd., [1977] 1 S.C.R. 322: Canadian Pacific Railway Co. v. Notre‑Dame de Bonsecours, [1899] A.C. 367, at p. 372; Madden v. Nelson and Fort Sheppard Railway Co., [1899] A.C. 626, at pp. 628‑29.
(d) The "Integral Element" Test for Federal Legislative Competence
48. The second important principle is that the constitutionality and application of federal legislation pursuant to s. 92(10) is governed by what has been described as the "integral element" approach. The term "integral element" is from the opinion of Beetz J. in Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754. The question arose in that case whether provincial wage control legislation was applicable to a contractor working on the construction of an airport on land belonging to the federal government. Beetz J., writing for the majority, held that the provincial laws were applicable (at pp. 768‑69):
The issue must be resolved in the light of established principles the first of which is that Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule: Toronto Electric Commissioners v. Snider, [1925] A.C. 396. By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject: In re the validity of the Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the Stevedoring case). It follows that primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence; thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one . . . .
The majority of the Court was of the view that the construction of an airport is not in every respect an integral part of aeronautics. A contrast was made between the design of an airport, which would be something of exclusive federal interest, and a requirement that a protective helmet be worn, a matter which would relate to provincial safety regulations and have nothing to do with aeronautics.
49. The Construction Montcalm Inc. approach was affirmed the following year in Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115. In that case the issue was whether employees of Northern Telecom were employed upon or in connection with the operation of any federal work, undertaking or business so as to come within the jurisdiction of the Canada Labour Relations Board. Construction Montcalm was summarized as follows, at pp. 131‑32:
In an elaboration of the foregoing, Mr. Justice Beetz in Construction Montcalm Inc. v. Minimum Wage Commission set out certain principles which I venture to summarize:
(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule;
(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject;
(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence;
(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one;
(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation;
(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of "a going concern", without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.
A recent decision of the British Columbia Labour Relations Board, Arrow Transfer Co. Ltd., [1974] 1 Can. L.R.B.R. 29, provides a useful statement of the method adopted by the courts in determining constitutional jurisdiction in labour matters. First, one must begin with the operation which is at the core of the federal undertaking. Then the courts look at the particular subsidiary operation engaged in by the employees in question. The court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as "vital", "essential" or "integral".
50. While tailored to meet the particular issue of constitutional competence in the field of labour relations, this summary provides a guide for the analysis required in the case at bar.
51. These principles were recently reiterated in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), supra. There, provincial occupational health and safety legislation was held inapplicable to a s. 92(10) undertaking on the ground that the provincial measures entered (at p. 798) "directly and massively into the field of working conditions and labour relations on the one hand and, on the other ... into the field of the management and operation of undertakings". A similar result was reached in the companion cases, Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, and Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897. Provincial limitation of action legislation plainly does not impinge upon the management or operation of the railway in the manner of the legislation at issue in those cases. Moreover, as noted earlier, Beetz J. specifically adverted to the first general constitutional principle which prevails with reference to s. 92(10) undertakings: they are subject to provincial laws of general application that do not bear upon their specifically federal aspects.
52. (e) Application of Principles
53. There can be no doubt that the New Brunswick legislature is constitutionally competent to legislate, as it did, in respect of general limitation periods by virtue of s. 92(13) and (14) of the Constitution.
54. It is clear from the authorities just discussed that undertakings which fall under federal legislative competence by virtue of s. 92(10) are not thereby removed from the ambit of provincial legislative competence, and equally, that they are not entirely embraced by the legislative authority of Parliament. While section 342(1) of the Railway Act is plainly legislation in relation to railways, a limitation provision relating to an action for personal injury caused by a railway cannot be said to be an integral part of federal jurisdiction. The core federal responsibility regarding railways is to plan, establish, supervise and maintain the construction and operation of rail lines, railroad companies, and related operations. The establishment of general limitation periods which affect those injured by the negligence of the railway is not, to our mind, part of that core federal responsibility or of any penumbra sufficiently proximate to satisfy the test articulated in the cases just referred to. Such limitation periods are not an integral part of jurisdiction over railways, but rather, as La Forest J.A. put it in the Court of Appeal, at p. 294, "an attempt to reframe for the benefit of railway undertakings the general legal environment of property and civil rights in which these undertakings function in common with other individuals and enterprises." The analogy drawn by La Forest J.A. to the operation of interprovincial truck and bus lines serves to illustrate the point. There can be no doubt that such undertakings fall within federal competence pursuant to s. 92(10), yet it would seem extraordinary to suggest that Parliament could impose a special limitation period to govern actions for injuries caused by undertakings and thereby massively disrupt and interfere with the course of personal injury litigation within the province where an accident occurred. We conclude, therefore, that the assumption made in Pszenicnzy regarding the constitutionality of the limitation period in the Railway Act is no longer valid. We would hold that s. 342(1) is ultra vires in so far as it applies to an action such as the present one.
55. (f) Reading Down s. 342(1)
56. It is necessary to consider whether s. 342(1) can be restricted to a constitutionally permissible scope. In this case, the question is whether the limitations period provision can be read as applying solely to breaches of statutory causes of action validly created under the Railway Act, i.e., statutory causes of actions which themselves are integral elements of federal competence over railways. La Forest J.A. was of the view that they could be so restricted (at pp. 297‑98):
At the same time I would think s. 342(1) would have application to rights of action validly created by the Railway Act. If Parliament has the right to impose special obligations on a railway and give an action to a party to enforce it, it would seem to follow that it has the right to restrict that obligation, whether it be in terms of the time within which it is to be subject to it or otherwise. ... I raise the matter here simply to indicate that the s. 342(1) would be intra vires in its application to an action validly created by the Railway Act, in which case as earlier mentioned it would apply unaffected by s. 18 of the Limitation of Actions Act.
...
Accordingly, while the words of the provision must in this court be taken to be broad enough to cover it, they could henceforth be so read as confined in their operation within the scope of the constitutional powers assigned to Parliament. It is sufficient for present purposes to hold that the section does not apply to a common law action for negligence in the operation of a railway.
57. We are in agreement with La Forest J.A. on this point. In our opinion, the provision can and should be read down. There is nothing improper in a statute creating a specific cause of action. The Railway Act does create statutory causes of action (see s. 336) and s. 342(1) is constitutionally applicable to govern such actions.
58. Although Parliament's intent may not have intended to restrict the limitation provision to those causes of action specifically created by the statute, s. 342(1) is capable of bearing that restricted meaning. To confine s. 342(1) to validly enacted causes of action under valid federal legislation does not deprive the section of all real effect; it merely reduces its scope to what is constitutionally permitted.
VI
Conclusion
59. We conclude that s. 342(1) is ultra vires the federal Parliament in so far as it purports to apply to a common law action for negligence in the operation of a railway. We would add, as did La Forest J.A. in the Court of Appeal, that the issue in this case is the jurisdiction of Parliament to create special limitation period for those undertakings described in s. 92(10). Different considerations arise with reference to limitation periods enacted under other heads of federal power such as bankruptcy or bills of exchange which would fall within the rubric of "property and civil rights" were they not carved out by specific conditional provision: See, e.g., Attorney‑General for Alberta and Winstanley v. Atlas Lumber Co., [1941] S.C.R. 87; Cushing v. Dupuy (1880), 5 App. Cas. 409.
60. We would therefore answer the constitutional questions as follows:
Question (1)Is section 342(1) of the Railway Act, R.S.C. 1970, c. R‑2, constitutionally valid or constitutionally applicable to this action?
Answer:Section 342(1) is ultra vires to the extent that it purports to apply to an action for damages for personal injury arising under provincial law.
Question (2)If section 342(1) of the Railway Act, R.S.C. 1970, c. R‑2, is constitutionally valid and constitutionally applicable to this action, does it conflict with and render inoperative section 18 of the Limitation of Actions Act, R.S.N.B. 1973, c. L‑8?
Answer:In the light of the answer to question 1, it is not necessary to answer this question.
61. The appeal is accordingly dismissed with costs.
Appeal dismissed with costs.
Solicitor for the appellant: Ronald Jackson, Moncton.
Solicitors for the respondent James Mark Clark: Ashfield, DeWitt & LeBlanc, Fredericton.
Solicitor for the respondent the Attorney General for New Brunswick: The Department of Justice, Fredericton.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste‑Foy.
Solicitor for the intervener Canadian Pacific Limited: Katharine F. Braid, Toronto.