Their oath. Clerks to be appointed. Their remuneration. Present arbitrators may complete &c. "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 real property proposed to be "taken possession of for the use and purposes of, (or as the "case may be,) and that I will also well and truly examine "into such claims for compensation for damages consequent upon the construction of the said work; and that I will give "a true judgment and award thereon to the best of my know"ledge and ability; and that in determining such award I "will take into due consideration the benefits to be derived to "the persons making such claims as aforesaid, as well as the "injury done thereby. So help me God." 43. The Governor shall appoint one or more proper persons to act as Clerk or Clerks to the said Arbitrator or Arbitrators; and may remove such Clerks and appoint others whenever he sees fit; And each of the said Clerks shall be allowed the sum of fifteen shillings for every day of his attendance to his duties as such. 44. Provided always, that the arbitrators for Upper and Lower Canada, respectively, appointed under the Acts hereby pending cases, repealed or superseded, and in office when this Act comes into force, and the clerks to the said arbitrators respectively, shall continue in office until removed, for the sole purpose of completing eases pending before the said arbitrators, and in which they have actually proceeded to take evidence, before this Act comes into force, and of giving their award therein, and shall with respect to such cases only, have all the powers conferred on any arbitrators by this Act, and shall receive the compensation allowed them by former Acts:-And in case of any vacancy among the arbitrators for Upper or for Lower Canada, or their clerks, while any such case is pending before them, the Governor in Council may, if need shall be, appoint another or others to act in such cases only, with the powers aforesaid; and any person so appointed an arbitrator shall take the oath aforesaid, unless he be an arbitrator appointed for the whole Province under this Act. Vacancies among present arbitrators. How the word 45. Whenever in the following sections of this Act, the "arbitrators" word "arbitrators" occurs, it shall be understood to mean shall be con- the arbitrator appointed under this Act, if there be then only following pro- one, and the arbitrators appointed under this Act, if there be strued in the visions. more than one ;---Except that as regards any case pending, and in which evidence has been taken as aforesaid before arbitrators when this Act comes into force, it shall be understood to mean the arbitrators to whom such case was referred, or any majority of them, or of those acting in such case, and subject always to the power hereinafter given to the Commissioner to refer any matter to any one or more of the Arbitrators, if there be more than one. What What cases may be referred to Arbitration. work, or out such work, before the 46. If any person or body corporate has any claim for pro- If any party perty taken, or for alleged direct, or consequent damages to having a claim of any kind property, arising from the construction or connected with the for damages execution of any public work undertaken, commenced or arising from performed at the expense of this Province, or of either of the any public late Provinces of Upper or Lower Canada, or any claim of any conarising out of or connected with the execution or fulfilment, tract, with reor on account of deductions made for the non-execution or gard to any non-fulfilment of any contract for the performance of any such shall bring public work, made and entered into with the said Commis- such claim sioner either in the name of Her Majesty, or in any other man- Commissionner whatsoever, or with any other Board, or any other Com- er. missioners lawfully authorized to enter into the same on behalf of this Province, or either of the said Provinces of Upper or Lower Canada,-such person or body corporate may give notice of such claim to the said Commissioner, stating the per- The Commisticulars thereof, and how the same has arisen ;-And thereupon, sioner may, within thirty the Commissioner may, at any time within thirty days after days, tender such notice, tender what he considers a just satisfaction for such amount the same, with notice that the said claim will be submitted to as he may the decisions of the Arbitrators acting under this Act, unless the sum so tendered is accepted within ten days after such tender, which shall be deemed to be legally made by any ed the claim written authority for the payment of such sum given under the shall be subhand of the said Commissioner, and notified to the person or mitted to the body corporate having such claim;-And a tender so made arbitrators. shall be sufficient likewise in case of tender of compensation by What shall be the Commissioner under any other section of this Act; the 2. But before any claims either under this section or under any other section of this Act, shall be arbitrated upon, claimant thereof shall give security to the satisfaction of the Arbitrators (or of any two of them,) for the payment of the costs and expenses incurred by the arbitration, in the event of the award of the Arbitrators being against such claimant, or of its not exceeding the sum so tendered as aforesaid. think sufficient. If not accept a tender under this chapter. Claimants to give security for the costs of arbitration, to the satisfac tion of the arbitrators. Costs, how to Reference trators: if more than one, 47. It shall be competent for the Commissioner to refer any of the claims aforesaid either to one or to any greater number of Arbitrators as he may see fit; and 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 more than one more of ma acting in the case, or of a majority of the Arbitrators acting jority to be in any case pending when this Act comes into force, shall in binding. all cases be binding as if made by all the Arbitrators. 48. No arbitration shall be allowed in any case where by the No arbitration terms of the contract therein, it is provided that the determina- when the contract provides tion of any matters of difference arising out of or connected with another the same shall be decided by the Commissioner or by any course. Engineer or officer of the Department. Claims for land or damages, or arising out of contracts, to be filed within a certain time. Time and tration. 49. No claim for land or other property alleged to have been taken for or injured by the construction, improvement, maintenance 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 on management of any such public work, and no claim arising out of or connected with the execution of any contract or agreement for the performance of any such public work or of any part thereof, shall be entertained by the arbitrators under this Act, unless such claims and the particulars thereof have been filed at the office of the Commissioner, which may be established under this Act,-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 at the said office, within three calendar months next after the date of the final estimate made under such contract: But nothing herein contained shall prevent the Arbitrators from entertaining, investigating or awarding upon any claims filed within the delay allowed by any Act then in force. 50. Whenever the Commissioner cannot effect an amicable place of arbi- settlement of any such claim, he shall refer the same to the said Arbitrators within sixty days from the filing thereof; and the said Arbitrators shall proceed to investigate and make their award thereon, at such time and place as the Commissioner shall appoint. All disputes may be referred to the arbitrators. 51. If any claim arises against the said Conmissioner of a nature different from those described in this Act, which the Commissioner is unable to settle amicably, then such claim (unless the same be made for salary, wages, or allowances by any subordinate officer or person in the employ of the Commissioner) shall be referred to the said Arbitrators, who shall investigate and give their award upon such disputed claim, in like manner as provided for their award upon other claims: But no such disputed claim shall be entertained by the Arbitrators, unless the same, with the particulars thereof, has been twelve months filed at the office of the Commissioner within twelve calendar after it arose. months after the same arose. But such claim must have been filed within Arbitrators to summon Powers of the said Arbitrators, and proceedings by or before them. 52. The said Arbitrators may, by summons or order in writto have powers ing, to be left at the last usual place of residence of the party witnesses, and to whom it is addressed, command the attendance from any to swear them. part of the Province 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 obey sum are to be interrogated ;-And the disobedience of such summons Penalty for or order in writing, or neglect to attend and produce such docu- refusing to ments shall subject the party disobeying, neglecting or refusing, mons. to a penalty of not less than one pound nor more than five pounds, to be recovered before any Justice of the Peace, and levied under the warrant of such Justice, by distress and sale of the goods and chattels of the offender unless the party establishes reasonable cause for such disobedience, neglect or refusal : 2. But no person shall be compelled to produce any document What docuthat he would not be compelled to produce at a trial in the ments witnes-Queen's Bench, Common Pleas or Superior Court, or to attend ses may be compelled to as a witness more than two consecutive days ;---And each of the produce. said witnesses shall be allowed, in addition to his reasonPayment of able travelling expenses, a sum not exceeding five shillings a witnesses. day, at the discretion of the said Arbitrators; and such remuneration shall be paid by the party requiring his attendance. the advant ages as well as to the party 53. The said Arbitrators shall consider the advantage as well Arbitrators as disadvantage of such public work, as respects the land or shall consider real estate of any person through which the same passes or to which it is contiguous, or as regards any claim for compensa- disadvantages tion for damages brought before them ;-And the said Arbitrators of any work shall, in assessing the value of any land or real estate proposed claiming damto be taken for the purposes of any such public work, or in ages. estimating and awarding the amount of damages to be paid by the said Commissioner to any person, take into consideration the advantages likely to accrue as well as the injury or damages But no party occasioned by reason of such work :-But the Arbitrators shall to pay any not in any case award that any sum be paid by any person to sum to the the said Commissioner on account of any such advantages. Commission-er for such advantages. ors in estimat 54. The said Arbitrators, in estimating and awarding the Rules to be amount to be paid to any claimant for injury done to any land observed by or real property, and in estimating the value of lands taken the arbitrat by the said Commissioner under this Act or any former Act, ing the value shall estimate or assess such land or real property in accor- of lands taken, dance with the value thereof at the time when the injury complained of was occasioned, and not according to the value of the adjoining lands at the time of making their award. &c. 55. The said Arbitrators, in investigating and awarding upon Arbitrators to any claim arising out of any contract in writing, shall decide in be bound by the stipulaaccordance with the stipulations in such contract, and shall not tions of any in any case award compensation to any claimant on account of contract. his having expended larger sums of money in the performance of any work than the sums for which he contracted to perform such work; nor shall they award to such claimant any interest As to interest. upon 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 ;—And no clause in any such contract Penalties not to be deemed in which any drawback or penalty is stipulated for the noncomminatory. performance of or neglect to complete any public work, or to fulfil any covenant in such contract, shall be considered as comminatory, but shall be construed as importing an assessment by mutual consent of the damages arising out of such non-performance or neglect. Arbitrators to take evidence in writing, &c. Or orally by consent. Arbitrators to of their 56. The said Arbitrators, in investigating any claim, shall cause all legal evidence offered on either side, to be taken down and recorded in writing, and shall make a list of all plans, receipts, vouchers, documents and other papers which may be produced before them during any such investigation : 2. Nevertheless, the said Arbitrators may, with the consent in writing of the said Commissioner and of the opposite party, take the testimony of the witnesses adduced on either side orally, and shall not in such case reduce it to writing. 57. The said Arbitrators shall furnish the Commissioner furnish copies with a copy of their award, and a copy thereof to each individual as far as relates to his particular claim, within one month after each decision, in order that the amounts awarded may be paid by the Commissioner, within four months thereafter. awards in order that the sum awarded may be paid. Clerks to fur nish copies of papers. Payment for the same. As to costs of arbitration. Costs to be taxed, and how. Appeal given 58. The said Clerk to the Arbitrators shall deliver to any person requiring the same, certified copies of any depositions or papers taken or filed before the Arbitrators: And before delivering any such copies, the Clerk shall be entitled to payment at the rate of six pence for every hundred words contained in the same, and one shilling additional for any certificate. 59. If the sum awarded exceeds the sum tendered, the Commissioner shall pay the costs of arbitration, but if not, the costs shall be paid by the person who refused the tender made by the Commissioner: 2. And such costs shall in other cases, when the award is in favor of such claimant, be paid by the said Commissioner in addition to the sum awarded, and shall in either case be taxed by the proper officer of the Court of Queen's Bench or Common Pleas, in Upper Canada, and in Lower Canada by a Judge of the Superior Court; And in every case in which the claimant has been represented or assisted by an Attorney before the Arbitrators, the fees of such Attorney shall be taxed and allowed to him as in a contested case in the said Superior Court, or in the Circuit Court, according to the sum awarded. Appeals from awards in Lower Canada. 60. Any Claimant dissatisfied with any award made by to either party the said Arbitrators in Lower Canada, may appeal from such from award of award by petition addressed to the Superior Court, sitting in arbitrators. Term |