31 Victoria, c. 12 (Canada)
An Act respecting the Public Works of Canada
[Assented to 21st December, 1867.]
HER Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows :
DEPARTMENT OF PUBLIC WORKS.
Department and Minister of Public Works
1. There shall be one Department of Public Works fin. Canada, Over which the " Minister of Public Works " for the time being, appointed by commission under the Great Seal of Canada, shall preside and have the management and direction of the Department, and shall hold office during pleasure.
Deputy, Secretary, Chief Engineer and other officers
2. The Governor may also appoint a Deputy of the Minister of Public Works, who shall be Chief Officer of the Department, a Secretary for the Department, a Chief Engineer, and such other officers as may be necessary for the proper conduct of the business of the Department, all of whom shall hold office during pleasure.
3. The Governor may also appoint from time to time as many Engineers, Superintendents, and other Officers as he may deem necessary, fur the construction, maintenance, use, and repair of Public Works and Buildings, and may at his pleasure remove them or either of them.
Duties and power of the Deputy
4. It shall be the duty of the said Deputy, and he shall have authority, (subject always to the Minister,) to oversee and direct the other officers and servants of the Department ; he shall have the general control of the business of the Department, and such other powers and duties as may be assigned to him by the Governor in Council, and in the absence of the Minister and during such absence, may suspend from his duties any officer or servant of the Department. who refuses or neglects to obey his directions as such Deputy.
It shall be the duty of the Secretary, unless otherwise directed in any case by the Minister, to keep separate accounts of the moneys appropriated for, and expended on each Public Work and building; to submit the said accounts to be audited in such manner as may be appointed by the Governor in Council ; to have charge of all plans, contracts estimates, documents, titles, models, and other like things relating to any such work or building; to keep proper accounts with each contractor and other person employed by the Department ; to see that all contracts are properly drawn out and executed ; to prepare all certificates upon which any warrant is to issue ; to keep minutes of all the proceedings of the Department, to prepare reports, and to conduct, under the direction of the Minister, the correspondence of the Department, and generally, to do and perform all such acts and things pertaining to the business of the Department, as he may from time to time be directed to do and perform by the Minister ;
Copies of documents certified by him to be authentic
and a copy of any map, plan or other document in the custody and charge of the Secretary, certified by him as a true copy, shall be held to be authentic, and shall be primâ facie
of the same legal effect as the original, in any Court or elsewhere.
6. It shall be the duty of the Chief Engineer to prepare maps, plans, and estimates for all Public Works which are about to be constructed, altered or repaired by the Department ; to report for the information of the Minister, on any question relating to the Public Works which may be submitted to him ; to examine and revise the plans, estimates and recommendations of other Engineers and officers, and generally to advise the department on all engineering questions affecting the public works of the Dominion.
What acts only shall bind the Department
7. No deeds, contracts, documents or writings shall be deemed to be binding upon the Department or shall be held to he acts of the said Minister, unless signed and sealed by him or his deputy, and countersigned by the Secretary.
Actions for enforcing contracts, &c
8. All actions, suits and other proceedings at law or in equity, for the enforcement of any contract, agreement, or obligation in respect of any public work, building, or property under the control of the Department, shall be instituted in the name of Her Majesty's Attorney General for Canada.
Recovering possession of maps, plans, &c., relating to Public Works
9. The Governor may from time to time require any person or corporation, or any provincial authority, having the possession or custody of any maps, plans, specifications, estimates, reports or other papers, hooks, drawings, instruments, models, contracts, documents or records, not being private property, and relating to any public work, building or property which is now or which may hereafter be placed under the control of the Department of Public Works, to deliver the same without delay to the Secretary of the Department.
What works be under the control of the Department
10. The Canals, Locks, Dams, Hydraulic Works, Harbors, Piers and other works for the improving the navigation of any water,—the slides, dams, piers, booms and other works for facilitating the transmission of timber,—the roads and bridges, the public buildings, the railways and rolling stock thereon, the vessels, dredges, scows, tools, implements and machinery for the improvement of navigation,—the Provincial Steamers, and all other property heretofore acquired, constructed, repaired, maintained or improved at the expense either of the late Province of Canada or of New Brunswick or Nova Scotia, and also the works and properties acquired or to be acquired, constructed or be constructed, repaired or improved at the expense of Canada,—and also all such portions of the property known as the " Ordnance Property " transferred to the late Provincial Government of Canada by the Imperial Government and afterwards placed under the control of the Department of Public Works,—shall be and shall continue to be vested in Her Majesty and under the control and management of the Minister of Public Works, with the following exceptions, viz :—
1st. Such public works and property as have been or may hereafter be lawfully transferred to either of the Provinces of Ontario, Quebec, Nova Scotia or New Brunswick ;
2nd. Such public works and property as have been or may hereafter be leased, sold, or otherwise lawfully transferred to municipalities, incorporated companies or other parties, unless the same are subject to he and are resumed by Her Majesty in virtue of the provisions of any Act, or of any lease, sale or transfer thereof, or relating thereto ;
3rd. Such public works and property as may by any Act of the present Session be placed under the control and management of any other Minister or Department ;
4th. Such public works, roads, bridges, harbors or property as have been or may hereafter be, by Proclamation, abandoned or left to the control of municipal or local authorities.
Other works may be so plated by Proclamation
11. The Governor may, from time to time, by Proclamation, declare any other works, roads, bridges, harbours, slides, light-houses or buildings purchased or constructed at the public expense, and which have not been assigned to any provincial government, to be works, roads or buildings subject to the provisions of this Act, and they shall thenceforth be under the management of the department.
Existing contracts, &c., continued
12. All contracts, bonds, agreements or leases for or respecting any work or building, now the property of Canada, or for any tolls for the same, entered into by the Commissioner of Public Works of the late Province of Canada, or by the Board of Works of the Province of Nova Scotia or of the Province of New Brunswick, or by any commissioners or other persons duly authorized to enter into the same, shall enure to the use of Her Majesty, and may be enforced as if they had been entered into with Her Majesty under the authority of this Act.
Lands, water courses, &c., acquired for Public Works, how vested and managed
All lands, streams, water-courses and property acquired for the use of Public Works or Buildings, shall be vested in Her Majesty, and when not required for the said works or buildings, may be sold or disposed of under the authority of the Governor, and all hydraulic powers created by the construction of any public work, or the expenditure of public money thereon, shall be vested in Her Majesty, and any portion thereof not required for the public works, may be sold or leased under the authority aforesaid ;
Proceeds of sales or leases
and the proceeds of all such sales and leases shall be accounted for as public money.
All Public Works paid for by the Dominion to be under control of Department
14. All public works and buildings hereafter constructed or completed at the expense of Canada, shall, unless otherwise provided by law, be under the control of the Department and subject to the provisions of this Act.
Expenditure for construction or repair of works
15. The Minister shall direct the construction, maintenance and repair of all canals, harbours, roads or parts of roads, bridges, slides and other public works or buildings, in progress or constructed, or maintained at the expense of Canada, and which by this Act are or shall hereafter be placed under his management and control ; but nothing in this Act shall give authority to the Minister to cause expenditure not previously sanctioned by Parliament, except for such repairs and alterations as the necessities of the public service may demand.
Warrants for money for Public Works
16. No warrant shall be issued for any sum of the public money appropriated for any public work under the management of the said Minister, except on the certificate of the Minister or his deputy, that such sum ought to be paid to any person named in the certificate, in whose favor a warrant may then issue, which warrant shall in all cases be deemed a legal tender to such person.
Attesting accounts of contractors
17. The Minister or his deputy may require any account sent in by any contractor, or any person in the employ of the Department, to be attested on oath, which oath as well as that to be taken by any witness, the Minister or his deputy may administer.
Power to examine persons on oath
18. The Minister may send for, and examine, on oath, all such persons as he deems necessary, touching any matter, upon which his action is required, and may cause such persons to bring with them such papers, plans, books, documents and things, as it may be necessary to examine with reference to such matter, and may pay such persons a reasonable compensation for their time and disbursements, and such persons shall attend at the summons of the Minister after due notice, under the penalty of five pounds in each case.
Annual report to the Governor, to be before ParIiament
19. The Minister shall make and submit to the Governor, an annual Report on all the works under his control, to be laid before both Houses of Parliament within twenty-one days from the commencement of each Session, showing the state of each work and the amounts received and expended in respect thereof, with such further information as may be requisite.
Tenders to be invited for works ; exception
20. It shall be the duty of the Minister to invite tenders by public advertisement for the execution of all works, except in cases of pressing emergency, where delay would be injurious to the public interest, or where, from the nature of the work, it could be more expeditiously and economically executed by the officers and servants of the Department.
Security to be taken from contractors
The Minister, in all cases or where any public work is being carried out by contract, shall take all reasonable care that good and sufficient security be given to and in the name of Her Majesty, for the due performance of the work, within the amount and time specified for its completion ;
Provision when the lowest tender is not taken
and also in all cases where it seems to the Minister not to be expedient to let such work to the lowest bidder, it shall he his duty to report the same and obtain the authority of the Governor previous to passing by such lowest tender ; but no sum of money shall be paid to the contractor on any contract, nor shall any work be commenced until the contract has been signed by all the parties therein named, nor until the requisite security shall have been given.
Power to make surveys, &c
22. The Minister is hereby empowered to authorize the engineers, agents, servants and workmen employed by or under him to enter into and upon any ground to whomsoever belonging, and to survey and take levels of the same, and to make such borings or sink such trial pits as he deems necessary for any purpose relative to the works under his management.
Certain persons employed by the Department to have like powers as to surveys, as if they were licensed surveyors for the Province where they act for the Department
23. The Minister may employ any Engineer, or any person duly licensed or empowered to act as a Surveyor for any Province in Canada, to make any survey, or establish any boundary, and furnish the plans and descriptions of any property acquired or to be acquired by Her Majesty for the use of Canada ; and such surveys, boundaries, plans and descriptions shall have the same effect as if the operations pertaining thereto or connected therewith, had been performed by a Land Surveyor duly licensed and sworn in and for the Province in which the property is situate ; and the boundaries of such properties may be permanently established by means of proper stone or iron monuments, planted by the Engineer or Surveyor so employed by the Minister, and shall be of the same effect to all intents and purposes as if such boundaries had been drawn and such monuments planted by a Land Surveyor duly licensed and sworn for the Province in which the property is situate and shall be held to be the true and unalterable boundaries of such property,—provided such boundary lines are so established and such monuments of iron or stone are planted after due notice thereof has been given in writing to the proprietors of the lands to be thereby affected, and that a Procès-Verbal or written description of such boundaries is approved and signed, in the presence of two witnesses, by such Engineer or Surveyor on behalf of the Minister, and by the other parties concerned ; or that in ease of the refusal of any party to approve or to sign the same, such refusal is recorded in such Procès-Verbal or description ; and provided such boundary marks or monuments are planted in the presence of at least one witness, who shall sign the said Procès-Verbal or description, which shall afterwards be deposited with the Secretary of the Department, as part of the records of his office.
Power to take possession of and to acquire lands
The Minister may at all times acquire and take possession, for and in the name of her Majesty, of any land or real estate, streams, waters, and water courses, the appropriation of which is in his judgment necessary for the use, construction and maintenance of any Public Work or building, or for the use, construction or maintenance of hydraulic privileges made or created by, from or at any Public Work, or for the enlargement or improvement of any Public Work or for obtaining better access thereto ;
Parties enabled to contract
and he may for such purpose contract and agree with all persons, seigniors, bodies corporate, guardians, tutors, curators and trustees whatsoever, not only for themselves, their hesrs, successors and assigns, but also for and on the behalf of those whom they represent whether infants (minor children) absentees, lunatics, married women, or other persons otherwise incapable of contracting, possessed of or interested in such lands, real property, streams, water and water courses, and all such contracts and agreements, and all conveyances or other instruments made in pursuance of any such contract or agreement shall be valid to all intents and purposes whatever.
Power to take materials from uncleared lands
25. The Minister and his agents may enter upon any uncleared or wild land, and take therefrom all timber, stones, gravel, sand, clay or other materials, which he or they may find necessary for the construction, maintenance and repair of Public Works or buildings under his management, or may lay any materials or things upon any such land, for which compensation shall be made at the rate agreed on or appraised and awarded as herein provided ; and the Minister may make and use all such temporary roads to and from such timber, stones, clay, gravel, sand or gravel pits, required by him for the convenient passing to and from the works during their construction and repair, and may enter upon any land for the purpose of making proper drains to carry off the water from any public work, or for keeping such drains in repair, making compensation as aforesaid.
26. The compensation agreed on between the parties, or appraised and awarded in the manner hereinafter set forth, shall be paid for such land, real property, streams, waters and water courses, timber, stone or other material, to the owners or occupiers of such lands or property, or to the persons suffering such damage as aforesaid, within six months after the amount of such compensation has been agreed on or appraised and awarded.
Notice, and tender before taking possession
27. When any such owner or occupier, refuses or fails to agree for conveying his estate or interest in any land, real property, streams or water courses as aforesaid, the Minister may tender the reasonable value in his estimation of the same, with notice that the question will be submitted to the arbitrators hereinafter mentioned ; and in every case the Minister may, three days after such agreement or tender and notice, authorize possession to be taken of such land, real property, streams or water courses so agreed or tendered for.
Notice when the owners do not reside on the land
28. If the owners of such land, real property, streams or water courses, do not reside on or near the property so required, then notice shall be given in the " Canada Gazette," and in two newpapers published in or near the District or County in which such property is situate, of the intention of the Minister to cause possession to be taken of such lands, or real property, streams or water courses, and after ten days from the publication of the last notice possession may be taken accordingly.
Power to alter the line of any public road
29. The Minister may discontinue or alter any part of a public road, where it is found to interfere with the proper line or site of any Public Work, as aforesaid ; but before discontinuing or altering such public road he shall substitute another convenient road in lieu thereof; and the land theretofore used for any road, or part of a road, so discontinued may be transferred by the Minister to, and shall thereafter become the property of the owner of the land of which it originally formed part.
Removal of fences adjoining any Public Work, and construction of ditches
Whenever it is necessary in the prosecution of any Public Work, for the Minister or his contractors or servants to take down or remove any wall or fence of any owner or occupier of hinds or premises adjoining such Public Work, or to construct any back ditches or drains for carrying off the water accumulating behind the banks of any Public Canal, the Minister or contractors or their authorized servants shall replace such wall or fence as soon as the necessity which caused their being taken down or removed has ceased, and after the same has been so replaced, or when such drain or back ditch is completed,
Obligations of land owners
the owner or occupier of such lands or premises shall maintain such walls or fences, drains or back ditches to the same extent as such owner or occupier might be by law required to do, if such walls or fences had never been so taken down or removed, or such drains or back ditches had always existed.
How appointed, and for what purpose
The Governor may, from time to time, constitute a Board of Arbitration and appoint any number of person not exceeding four, who shall he arbitrator or arbitrators and appraiser or appraisers for Canada, and who shall arbitrate on, appraise, determine and award the sums which shall be paid to any person for land or property taken fo any Public Work, or for loss or damage caused by such taking, or in respect of any claim arising out of any contract, and with whom the said Minister has not agreed, and cannot agree ;
and every such arbitrator shall receive such remuneration as shall be from time to time fixed by the Governor.
32. The said arbitrator or arbitrators shall take, before the said Minister or some one of Her Majesty's Justices of the Peace, the following oath :
"I, A. B., do swear that I will well and truly hear, try and examine into such claims as may be submitted to me for compensation for land or property taken possession of for the use and purposes of [or as the case may be,] and that will also well and truly examine into such claims as may be submitted to me for compensation for damages consequent upon the construction of any public work, or for payment or allowance in respect of any contract ; and that I will give a true judgment and just award thereon to the best of my knowledge and ability ; and that I will take into due consideration, the benefits derived and to be derived by the claimants through the construction of such public work as well as the injury done thereby. So help me God."
33. The Governor may appoint one or more proper persons to act as clerk or clerks to the said Arbitrator or Arbitrators, and may remove any such clerk and appoint another or others, whenever he sees fit ; and may fix the amount of the remuneration to be allowed any such clerk.
WHAT CASES MAY BE REFERRED TO ARBITRATION.
How and in what cases claims are to be made
If any person or body corporate has any claim for property taken, or for alleged, direct or consequent damage to property, arising from the construction, or connected with the execution of any public work, undertaken, commenced or performed at the expense of the Dominion, or of the late Province of Canada, or of the Province of Nova Scotia or New Brunswick, or for the defence of Canada, or any claim arising out of or connected with the execution or fulfilment, or on account of deductions made for the non-execution or non-fulfilment of any contract for the construction of any such public work, made and entered into with the said Minister, either in the name of Her Majesty, or in any other manner whatsoever, or with any Board or Commissioners lawfully authorized to enter into the same on behalf of the late Province of Canada, or of the said Provinces of Nova Scotia or New Brunswick, such person or body corporate may give notice in writing of such claim to the said Minister, stating the particulars thereof, and how the same has arisen ;—
Tender of satisfaction by the Minister
And thereupon the Minister may at any time within thirty days after such notice tender what he considers a just satisfaction for the same, with notice that the said claim will be submitted to the decision of the Arbitrators acting under this Act, unless the sum so tendered is accepted within ten clays after such tender, which shall he deemed to be legally made by any written authority for the payment of such sum given under the hand of the Minister, and notified to the person or body corporate having such claim ;—
Form of tender by Minister
And a tender so made shall he sufficient likewise in case of tender of compensation by the Minister under any other section of this Act ;
Security for costs by claimant
(2) But before any claim under this or any other section of this Act shall be arbitrated upon, the claimant shall give security to the satisfaction of the Arbitrators (or any one of them), for the payment of the costs and expenses incurred by the Arbitration in the event of the award being against such claimant or of its not exceeding the sum so tendered as aforesaid.
Claim may be referred to one or more of the Arbitrators
The Minister may refer any of the claims aforesaid either to one or to any greater number of arbitrators as he may see fit ; and except in case of appeal as hereinafter provided, when the claim has not been referred to the whole Board,—the award of the sole arbitrator shall be binding if there be only one, and the award of a majority of the said arbitrators if there be three or more acting in the case, shall be binding as if made by all the arbitrators;
One Arbitrator may take the evidence, &c
and in any case where the claim is referred to more than one of the arbitrators, any one of them may receive the evidence and hear the parties, and may exercise all the powers of the arbitrators preliminary or incident to the hearing and to the taking of the evidence, which shall thereafter be submitted to all the arbitrators to whom the case is referred, and the award of the majority of whom shall be binding, except in case of appeal as aforesaid.
No arbitration in cases where the contrary is provided by the contract
36. No arbitration shall be allowed in any case where by the terms of the contract therein it is provided that the determination of any matters of difference arising out of or connected with the same shall be decided by the Minister, or the Architect, or by any Engineer or Officer of the Department.
Limitation of time within which claims must be made
No claim for land or other property alleged to have beer taken for, or injured by, the construction, improvement, main tenance, or management of any Public Work, or for damages alleged to have been occasioned directly or indirectly to any such land or other property by the construction, maintenance or management of any such Public Work,—and no claim arising out of, or connected with the execution or agreement for the construction of any such Public Work, or of any part thereof,— shall be submitted to, or be entertained by the arbitrators under this Act, unless such claims and the particulars thereof have been filed with the Secretary of the Department, within twelve calendar months next after the loss or injury complained of, when such claim relates to the taking of, or damage occasioned to, land or other property,—and when such claim relates to, or is alleged to arise out of, the execution or fulfilment of any contract or agreement for the construction of any Public Work, unless the same has been filed as aforesaid, within three calendar months next after the date of the final estimate made under such contract ;
Proviso : as to claims filed under former Acts
but nothing in this section shall prevent the arbitrators from entertaining, investigating or awarding upon any claims filed in the proper Office within the delay allowed by any Act then in force in the Province in which such work was constructed.
POWERS OF THE ARBITRATORS, AND PROCEEDINGS BY OR BEFORE THEM.
Power to summon witnesses
The said Arbitrator or Arbitrators may, by summons or order in writing, signed by any one of them or by their Clerk, to be left at the last usual place of residence of the party to whom it is addressed, command the attendance from any part of Canada, of all witnesses or the production of any documents required by any of the parties, and may swear the said witnesses to testify truly respecting the matters on which they are to he interrogated ;—
Penalty for non-attendance
and the disobedience of such summons or order in writing, or neglect to attend and produce such documents shall subject the party disobeying, neglecting or refusing to a penalty of not less than five dollars nor more than twenty-five dollars to be recovered before any Justice of the Peace and levied under the warrant of such Justice, by distress and salt of the goods and chattels of the offender unless the party establishes reasonable cause for such disobedience, neglect or refusal.
As to documents to be produced
But no person shall be compelled to produce any document that he would not be compelled to produce at a trial in the Queen's Bench, Common Pleas, Supreme Court or Superior Court ; or to attend as a witness more than three consecutive days,
and every witness shall he allowed in addition to his reasonable travelling expenses, a sum not exceeding five shillings a day at the discretion of the arbitrators ; and such remuneration shall be paid by the party requiring his attendance.
Arbitrators to consider the advantages as well as disadvantages of the work to the claimant
39. The arbitrators shall consider the advantage as well as disadvantage of any Public Work, as respects the land, or real estate of any person through which the same passes or to which it is contiguous, or as regards any claim for compensation for damages caused thereby ; and the arbitrators shall, in assessing the value of any land or property taken for the purpose of any Public Work, or in estimating and awarding the amount of damages to be paid by the Department to any person, take into consideration the advantages accrued, or likely to accrue to such person or his estate, as well as the injury or damages occasioned by reason of such work.
Value to be estimated as at the time or taking possession &c
40. The Arbitrators, in estimating and awarding the amount to be paid to any claimant for injury done to any land or property, and in estimating tip amount to be paid for lands taken by the Minister, under this Act, or taken by the proper authority under any former Act, shall estimate or assess the value thereof at the time when the injury complained of was occasioned, and not the value of the adjoining lands at the time of making their award.
In awarding upon any claim arising out of any contract in writing, the Arbitrators shall decide in accordance with the stipulations in such contract, and shall not award compensation to any claimant on the ground that he expended a larger sum of money in the performance of his contract, than the amount stipulated therein, nor shall they award interest on any sum of money which they consider to be due to such claimant, in the absence of any contract in writing, stipulating payment of such interest ;—
How penalties in contracts shall he construed
And no clause in any such contract in which a drawback or penalty is stipulated for the non-performance of any condition thereof, or any neglect to complete any public work, or to fulfil any covenant in such contract shall he considered as comminatory, but it shall be construed as importing an assessment by mutual consent, of the damages caused by such non-performance or neglect.
Evidence to be taken in writing
In the investigation of any claim the Arbitrators shall cause all legal evidence offered on either side to be taken down and recorded in writing, and shall make and keep a list of all plans, receipts, vouchers, documents and other papers which may be produced before them during such investigation ;
but they may, with the consent in writing of the Minister, and of the opposite party, take the testimony of the witnesses adduced on either side orally, and in such case need not reduce it to writing.
Copies of awards to be furnished
43. The Arbitrators shall deliver to the Minister, a copy of their award in each case, and to each individual claimant a copy of so much thereof as relates to his particular claim, within one month after they have agreed to the same.
Appeal to the whole Board in cases, where all the Arbitrators have not acted
44. If in any case where a claim has, under the thirty-fifth section, been referred to one Arbitrator, or to more than one Arbitrator hut not to the whole Board, the claimant is dissatisfied with the award made, such claimant may, by notice in writing delivered to any Arbitrator who has joined in the award, or the Clerk of the Board, within one month after the award has been notified to the claimant, pursuant to the forty- third section of this Act, appeal to the Board of Arbitration, and it shall be the duty of the Board to bear the appellant, and to make such decision and award as to them, or a majority of them, may seem just, from which decision and award there shall be no further appeal whatever.
Is what case, only new evidence may be adduced on appeal
45. In case of such appeal, the appellant shall have no right to adduce further evidence than that already given on the original reference, unless he shews to the satisfaction of the Board that his knowledge of the existence of such further evi- dence has arisen since the first hearing os the case, or unless the Board shall think it right on hearing the claimant to admit further evidence.
Copies of depositions, &c
46. The Clerk to the arbitrators shall, on payment at the rate of six pence for every hundred words and one shilling additional for every certificate, deliver to any person requiring the same, certified copies of any depositions or papers taken or filed before the arbitrators.
By whom the costs shall be paid
47. If the sum awarded in any case is greater than the sum tendered, the Minister shall pay the costs of arbitration, but if less, the costs shall be paid by the person who refused the tender.
48. And such costs shall in other cases where the award is in favor of the claimant, be paid by the Minister, in addi- tion to the sum awarded, and shall in either case be taxed by the proper officer of the Court of Queen's Bench, Supreme Court or Common Pleas, in the Provinces of Ontario, Nova Scotia and New Brunswick, and in the Province of Quebec by a Judge of the Superior Court.
Works for defence may be declared Public Works within this Act
49. The Governor in Council may declare any work for or connected with the defence of Canada, to be a Public Work within the purview of this Act, whether such work is to be constructed or the land roquired for it is to be acquired, wholly at the expense of Canada, or partly, or wholly at the expense of the Imperial Government ; and all the powers conferred upon the Minister of Public Works, and upon the Official Arbitrators or any of them, by the sections of this Act numbered from twenty-two to forty-eight both inclusive, and all the provisions of the said sections, shall then extend and apply to such work, and to the lands and property required for the same, as shall also such other sections and provisions of this Act as the Governor in Council may from time to time direct.
Powers of the Minister to extend to the exercise of clearance rights
With respect to any work so declared to be a Public Work, the powers of the Minister of Public Works shall extend to the demolition and removal of all such buildings, walls, woods, trees, fences, or other obstructions natural or artificial, and to the filling up of such hollows, natural or artificial, on any land, as would in the opinion of the Engineers, civil or military, employed on such work, impair the effect thereof, and to the preventing the construction or existence of any such obstruction thereafter, without acquiring the land itself ; and the said Minister or his agents may, after notice as provided by sections twenty-seven and twenty-eight and tender of reasonable compensation in his estimation for the right intended to be exercised, enter upon any such lands and cause the required work to be performed, and may at any time thereafter again enter thereupon and remove any such obstruction so as to restore the land to the state in which it was after the first performance of such work ; and if the renewal of any such obstruction has been caused by the fault of the owner of the lands, or of those through whom he claims, the cost of removing it may be recovered from him by the said Minister ;
Compensation to be fixed by Arbitrators
and the compensation to be paid for the exercise of the powers given by this section shall, if not agreed upon by the parties, be determined by the official arbitrators above mentioned.
Powers of H. M. Principal secretary of State for the War Department, under former Acts, saved
Nothing in this Act shall affect the powers vested in Her Majesty's Principal Secretary of State for the War Department, by the Act of the Legislature of the late Province of Canada, passed in the twenty-ninth year of Her Majesty's Reign, chapter seven (which shall hereafter be construed as referring to this Act and to the Minister and Arbitrators herein-mentioned, instead of the Commissioner and Arbitrators mentioned in the said Act) or by any other Act of the said late Province or of either of the Provinces of Nova Scotia or New Brunswick, or shall affect any provision of any such Act not inconsistent with this Act ;
His powers under this Act
And any work in any part of Canada, certified by the commander of Her Majesty's Forces in Canada or in the Province in which such work is or is to he situate, to be required for defence of Canada shall be held to be a Public Work within the meaning of this Act, and the said Principal Secretary of State shall have the same powers and rights with regard to the taking possession of lands or materials required for any such work, and with regard to lands required to be cleared and kept cleared of obstructions as aforesaid, as are hereby vested in the Minister, and the price to be paid for such lands or the compensation to be paid for the exercise of such powers and rights, if not agreed upon by the parties, shall be determined by the official Arbitrators appointed under this Act, as if such lands had been taken, or such powers and rights exercised, by the said Minister.
SALE OR TRANSFER OF PUBLIC WORKS TO LOCAL AUTHORITIES.
Works may be declared no longer under control of the Minister
52. The Governor may by Proclamation declare any Public Road or Bridge under the management and control of the Minister, to be no longer under his control ;—And upon, from and after a day to be named in the Proclamation, such road or bridge shall cease to be under the management and control of the Minister, and no tolls shall thereafter be levied thereon under the authority of this Act.
How they shall then be kept up, &c
53. Any public road or bridge declared as aforesaid, to he no longer under the management of the Minister, shall be under the control of and shall be maintained and kept in repair by the municipal or other authorities of the locality, and the Road Officers thereof in like manner with other Public Works and Bridges therein under their control.
Power to enter into arrangements for transfer of works, to local authorities, &c
The Minister may enter into arrangements with any Provincial Government, Municipal Council or other Local Corporation or authority, or with any Company in Ontario or Quebec, incorporated for the purpose of constructing or holding such work or works of like nature in the same Province—for the transfer to them of any of the Public Roads, Harbours, Rivers or River Improvements, Bridges or Public Buildings (whether within or without the limits of the local jurisdiction of such municipal Councils or other authorities), which it. is found convenient to place under their management :—
And on the completion of such arrangements, the Governor may grant, and by so granting, transfer and convey for ever or for any term of years, all or any of such Roads, Harbours, Rivers and River Improvements, Bridges or Public Buildings to such Provincial Government, Municipal Council or other Local Authority or Company (hereinafter called the Grantee,) upon such terms and conditions as have been agreed upon ; and for and notwithstanding any thing this or any other Act, the said Governments, Municipal Councils or other Local Authorities may enter into such arrangements and may take and hold any works so transferred.
Form and effect of transfer
55. Any such grant may be made by Order in Council, published in the Canada Gazette ;— and by such Order any or all of the powers and rights vested in the Crown, or in any officer or Public Department, in respect of such Public work, may be granted to and vested in the grantee to whom the Public work is granted :
Conditions and limitations of the grant
(2) And such Order in Council may contain any conditions, clauses and limitations agreed upon, which, as well as all the provisions of such Order in Council, shall, (in so far as they are not inconsistent with this Act, and do not purport to grant any right or power not immediately before the making of such Order in Council, vested in the Crown or in the Governor, or in some Officer or Department of the Government,) have force and shall be obeyed, as if they had been contained in this Act, and had made part of the enactments thereof ;
Revoking or amending the grant
(3) And any such Order in Council may, with the consent of the Grantee, be revoked or amended by any subsequent Order in Council published as aforesaid ;—and a copy of the Canada Gazette containing any such Order in Council shall be evidence thereof,—and the consent of the Grantee thereto shall be presumed unless disputed by such Grantee, and if disputed, shall be proved by any copy of such Order in Council, on which the consent of the Grantee thereto shall be written and attested by such signature or seal, or both, as would be sufficient to make any Deed or Agreement the Deed or Agreement of such Grantee.
What the conditions of the grant may extend to
The provisions and conditions of any Order in Council made under this Act may extend—to the mode of adjusting and determining any difference arising between the Crown and any Municipal Corporation, Local Authority or Company, as to their respective rights under the same,—or to the reservation of the right of re-entry by the Crown into possession of any Public Work on the default of such Corporation, Authority or Company to perform the conditions agreed upon—and to the vesting in any Sheriff power to give possession of such Public Work to any Public Officer for the Crown, on any warrant under the hand and seal of the Governor to be addressed to such sheriff, reciting such default and commanding him to give possession to such Officer for the Crown as aforesaid ;—
Enactments may be made for enforcing conditions
And no enactment made for the purpose of enforcing the provisions of any such Order in Council as aforesaid, shall be deemed an infringement of the rights of the Municipal Corporation, Local Authority or Company to which it relates, but nothing in this section shall prevent the enforcement of the rights of the Crown in any legal manner not inconsistent with the provisions and conditions of any such Order in Council.
Work transferred to be kept in the-rough repair
57. One of the conditions of every such lease or transfer of any Bridge, Road or Public Work, shall be—that such work shall be kept in thorough repair, and that for all the purposes of such contract, sale or lease, the sufficiency of such repair shall be ascertained and decided on by such Engineer as shall be appointed to examine the same by the Minister.
Governor in Council may impose tolls for use of Public Works
58. The Governor may, by Order in Council to be issued and published as hereinafter provided, impose and authorize the collection of Tolls and Dues upon any Canal, Railway, Harbor, Road, Bridge, Ferry, Slide, or other Public Work, vested in Her Majesty, or under the control or management of the Minister, and from time to time in like manner may alter and change such Dues or Tolls, and may declare the exemptions therefrom ; and all such Dues and Tolls shall be payable in advance and before the right to the use of the Public Work in respect of which they are incurred shall accrue, if so demanded by the Collector thereof.
Tolls on the St. Lawrence canals
59. The same tolls shall be payable on steamboats or vessels of any kind and passengers, brought down the river St. Lawrence, past any of the Canals between Montreal and Kingston, as would be payable on such steamboats, vessels or passengers, if the same had been brought through the Canal or Canals past which they are so brought down ; and such tolls shall be levied in like manner, and under the like penalties and forfeitures for the non-payment thereof.
Exemptions from toll in favor of H. M. troops
Her Majesty's Officers and Soldiers, being in proper uniform, dress or undress (but not when passing in any hired or private vehicle,) and all carriages and horses employed in Her Majesty's service, when conveying persons or baggage, shall be exempted from payment of any tolls on using or travelling over any road or bridge under the control of the Department,
Exemption as to canals limited
but nothing herein shall exempt any boats, barges, or other vessels employed in conveying the said persons, horses, baggage or stores along any canal, from payment of tolls in like manner as other boats, barges and vessels are liable thereto.
61. All tolls and dues imposed under this Act may be recovered, with costs, in any Court having civil jurisdiction to the amount, by the Collector or person appointed to receive the same, in his own name or in the name of Her Majesty, and by any form of proceeding by which debts to the Crown may be recovered :
And all pecuniary penalties imposed by this Act, or by any regulation made under the authority thereof shall be recoverable with costs before any Justice of the Peace tor the District, County or place in which the offence was committed, upon proof by confession or by the oath of any one credible witness, and may, if not forthwith paid, be levied by distress and sale of the goods and chattels of the offender, by warrant under the hand and seal of such Justice ;
and if sufficient distress cannot be found, and Much penalty be not forthwith paid, such Justice may, by warrant under his hand and seal, cause the party offending to be committed to the Common Gaol of the District or County, there to remain without bail or mainprize, for such time as such Justice may direct, not exceeding thirty days, unless such penalty and costs be sooner pay ;—
And such penalties shall belong to Her Majesty for the use of the Dominion ;
As to tolls and dues on timber
(3) Provided always, in respect to tolls and dues on timber passing any slide, and to penalties for violating any regulation respecting such slides, or for non-payment of such tolls and dues, that the same may be enforced, imposed and collected, by and before any Justice of the Peace within any District or County in Canada in which the timber respecting which such tolls or dues, or the person from whom such payment or penalty is demanded, happens to be at the time application is made to such Justice to enforce payment of the same.
Goods on board vessels liable for tolls, &c
62. The goods on board of any such steamboat, vessel, raft, crib or other craft, or the animal or animals, attached to any carriage or vehicle, and the goods contained therein, to whomsoever the same belong, shall be liable for any Tolls, Dues or Fines so imposed and levied,—and they or any of them, may be seized, detained and sold in the same manner as the steamboat, vessel or other craft, carriage or vehicle, in which they are or to which they are attached, as if they belonged to the person contravening any such Regulation,—saving the recourse of the real owner thereof against such person who shall be deemed the owner for the purposes of this Act.
Moneys from tolls to be paid over to the Receiver General
63. All tolls, dues or other revenues imposed and collected on Public Works, shall be paid by the persons receiving the same to the Receiver General of Canada, in such manner and at such intervals as may be appointed by him, but such intervals shall in no case exceed one month.
Tolls on public roads may be let out to farm
64. The Governor may order the Tolls at the several gates erected or to be erected on any public road or bridge vested in the Crown, or under the management of the Minister, to be let to farm under such regulations and by such form of lease as he thinks expedient ;—and the lessee or farmer of such Tolls, or any person he may appoint, may demand and take such Tolls, and proceed for the recovery of the same in the name of such lessee or farmer, in case of non-payment or evasion thereof, in the same manner and by the same means as are given by law to any collector of Tolls or other persons authorized to collect the same.
Governor in Council may make regulations for such use
65. And for the due use and proper maintenance of all such Public Works, and to advance the public good—the Governor may, by Order in Council, enact from time to time such Regulations as he may deem necessary for the management, proper use and protection of all or any of the Public Works, or for the ascertaining and collection of the Tolls, Dues and Revenues thereon.
And impose fines for contravention
The Governor may, by such Orders and Regulations, impose such Fines, not exceeding in any one case, one hundred pounds, for any contravention or infraction of any such Order or Regulation, as he deems necessary for ensuring the observance of the same, and the payment of the Tolls and dues to be imposed as foresaid,—
Or authorize the seizure and sale of vessels contravening regulations
and may also by such Orders and Regulations provide for the non-passing or detention and seizure, at the risk of the owner, of any steamboat, vessel or other craft, carriage, animal, timber or goods, on which Tolls or dues have accrued and have not been paid, or in respect of which any such Orders or Regulations have been contravened or infringed, or any injury done to such Public Works and not paid for, or for or on account of which any fine has been incurred and remains unpaid,—and for the sale thereof, if such Tolls, dues, damages or fine be not paid by the time to be fixed for the purpose, and for the payment of such Tolls, Dues Damages or Fine out of the proceeds of such sale, returning the surplus, if any, to the owner or his agent ;
Proviso : rights of the Crown saved
But no such provision shall impair the right of the Crown to recover such Tolls, Dues, Fine or Damages in the ordinary course of law and any such Tolls, Dues or Fines may always be recovered under the sixty-first section of this Act.
And whereas, for the better protection of life and property, as well on the Public Works and Railways of the Dominion, as on Railways managed by Companies in Nova Scotia and New Brunswick, it is expedient to extend to them the provisions made for that purpose as regards Railways managed by Companies in Quebec and Ontario,
Punishment of persons employed on Public Works and Railways, disobeying regulations lawfully made
therefore, if any officer or servant of, or any person employed by the Department on any Railway or Public Work being under the control of the Department, or by any Railway Company in Nova Scotia or New Brunswick, wilfully or negligently contravenes any by-law, order or regulation of the Department, or of the Company, or any Order in Council, lawfully made or in force respecting the Railway or the Public Work on which he is employed, and of which a copy has been delivered to him, or has been posted up or open to his inspection in some place where his work or his duties, or any of them, are to be performed,—
If injury is done by such disobedience, to person or property
then if such contravention causes injury to any property or to any person, or exposes any property or any person to the risk of injury, or renders such risk greater than it would have been without such contravention, although no actual injury occurs, such contravention shall be a misdemeanor, and the person convicted thereof shall, in the discretion of the Court, before whom the conviction is had, and according as such Court considers the offence proved to be more or less grave, or the injury or risk of injury to person or property to be more or less great, he punished by fine or imprisonment or both, so as no such fine exceeds four hundred dollars, nor any such imprisonment. the term of five years ; and such imprisonment, if for two years or upwards, shall be in the Penitentiary for the Province in which the conviction takes place.
If not such injury is done
68. if such contravention does not cause injury to any property or person, nor expose any property or person to the risk of injury, nor make such risk greater than it would have been without such contravention, then the officer, servant, or other person guilty thereof, shall thereby incur a penalty not exceeding the amount of thirty days pay, nor less than fifteen days pay of the offender from the Department or Company, in the discretion of the Justice of the Peace before whom the conviction is had, and such penalty shall be recoverable with costs before any one Justice of the Peace, having jurisdiction where the offence has been committed or where the offender is found, on the oath of one credible witness, other than the informer.
Appropriation of pecuniary penalties
69. One moiety of any pecuniary penalty under either of the two next preceding sections shall belong to Her Majesty for the public uses of the Dominion, and the other moiety to the informer, unless he be an officer or servant of, or person in the employ of the Department or Company, in which case he shall be a competent witness, and the whole penalty shall then belong to Her Majesty for the uses aforesaid.
Regulations, &c., to be published in the Gazette
70. All Proclamations, Regulations or Orders in Council made under this Act, shall be published in the Canada Gazette, and a copy of such Gazette purporting to be printed by the Queen's Printer, and containing any such Proclamation, Order or Regulation, shall be legal evidence thereof.
Repeal of Acts inconsistent with this Act
All Acts and parts of Acts of the late Province of Canada, or of the Province of Nova Scotia or New Brunswick which were in force immediately before the day when this Act comes into effect, shall be repealed upon, from and after that day, so far as they are inconsistent with this Act, and shall be superseded by this Act so far as they make the same provision in effect in any case as is made therein by this Act ;—
but the enactments in this Act, so far as they are the same in effect as those so superseded, shall be construed as declaratory and as having been in force from the time when the enactments they supersede respectively became law ;—so that (among other things) all rights acquired, all appointments made and all proceedings commenced under any such enactments shall remain valid and be continued under the corresponding enactments of this Act, as being in effect the same law ; and no Act or Enactment repealed by any Act or Enactment hereby repealed shall revive by reason of such repeal.