Agency Rulings

Order No. 1990-R-82

February 27, 1990

IN THE MATTER OF the application by Canadian Pacific Limited (hereinafter CP), pursuant to section 160 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) (hereinafter the NTA, 1987), for authority to abandon the operation of a portion of the Kentville Subdivision from Kentville (mileage 4.6) to Annapolis Royal (mileage 58.4) and the entire Yarmouth Subdivision from Annapolis Royal (mileage 0.0) to Yarmouth (mileage 86.6) (hereinafter the branch line), a total distance of 140.4 miles, in the Province of Nova Scotia;

IN THE MATTER OF National Transportation Agency (hereinafter the Agency) Order No. 1989-R-182 dated July 13, 1989, which directed CP to abandon the operation of the branch line one year from the date of the Order; and

IN THE MATTER OF the application by CP, pursuant to section 41 of the NTA, 1987, for an Order varying Order No. 1989-R-182 by changing the effective date of abandonment of operations over the branch line from July 13, 1990 to January 16, 1990.

File Nos. T6120/288
T6120/289

WHEREAS the application made pursuant to section 41 of the NTA, 1987 was received by the Agency on November 27, 1989;

AND WHEREAS CP requested a variance of Order No. 1989-R-182 on the grounds that the issuance of Order-in-Council P.C. 1989-1974 which authorized the discontinuance of VIA Rail Canada Inc.'s (hereinafter VIA) passenger-train service over the branch line effective on January 15, 1990, constitutes a change in the facts or circumstances pertaining to the establishment of the abandonment date of July 13, 1990 set out in Order No. 1989-R-182;

AND WHEREAS all interested parties who appeared at the Agency's public hearing on April 5 and 6, 1989 in Bridgetown, Nova Scotia in respect of CP's abandonment application under section 160 of the NTA, 1987 were given until January 8, 1990 to respond to CP's section 41 of the NTA, 1987 application for a variance of Order No. 1989-R-182;

AND WHEREAS the Province of Nova Scotia opposed the application on the grounds that the discontinuance of VIA's service was not a change in fact or circumstances as the Agency was aware when it set the abandonment date of July 13, 1990 that VIA's service on the branch line would probably be discontinued as a result of the April 26, 1989 Federal Budget; that it was in the public interest that the original abandonment date should stand; that sufficient time was required by the Annapolis Valley Affiliated Boards of Trade (hereinafter AVABT) to prepare an appeal of the Agency's Order No. 1989-R-182; and that shippers had planned their operations based on the July 13, 1990 abandonment date;

AND WHEREAS the AVABT requested the Agency to hold CP's application in abeyance in order to allow the Governor in Council sufficient time to rule on AVABT's appeal of Order No. 1989-R-182;

AND WHEREAS J.G. Jarvis, Associate, Transport 2000-Atlantic, opposed advancing the abandonment date in order to give several American "short line" operators an opportunity to acquire the branch line, should they be interested;

AND WHEREAS Superior Propane Inc. opposed advancing the abandonment date because it continues to use the branch line and it has planned its delivery schedules on the basis of the direction set out in Order No. 1989-R-182 and an earlier abandonment date would seriously affect its supply and delivery plans;

AND WHEREAS CP has advised the Agency, in response to Superior Propane Inc.'s opposition, that it has not handled any traffic to Superior Propane Inc.'s facilities on the branch line since June of 1989 as Superior Propane Inc. has used alternative means of transporting its products since that time;

AND WHEREAS section 41 of the NTA, 1987 provides that the Agency may review, rescind or vary any decision or order made by it if, in its opinion, since the decision or order issued, there has been a change in the facts or circumstances pertaining to the decision or order;

AND WHEREAS the Agency has considered all of the material received and on file related to the subject matter.

NOW THEREFORE, THE AGENCY HEREBY:

1. Finds that, pursuant to section 41 of the NTA, 1987, the discontinuance of VIA's passenger-train service on the branch line, as ordered by Order-in-Council P.C. 1989-1974, is a change in the facts and circumstances pertaining to Order No. 1989-R-182 and the abandonment date set therein.
2. Finds that Superior Propane Inc. will not be unduly inconvenienced by the varying of Order No. 1989-R-182 since CP has not handled any of its traffic on the branch line since June 1989.
3. Finds that AVABT's petition to the Governor in Council is a separate matter to this application and is beyond the legal purview of the Agency.
4. Finds unsubstantiated the arguments raised by the Province of Nova Scotia which claimed that the Agency was aware that VIA's service on the branch line would likely be discontinued as a result of the April 26, 1989 Federal Budget.
5. Finds that the arguments raised by J.G. Jarvis, Associate, Transport 2000 - Atlantic are not conclusive as there is no evidence of active negotiations or interest by American "short line" operators to acquire the branch line.

NOW THEREFORE, IT IS ORDERED THAT:

Order No. 1989-R-182 is hereby varied pursuant to section 41 of the NTA, 1987, by changing the effective date of abandonment of the operation of the branch line to March 27, 1990.