Part of the Agency's mandate is to help resolve disputes between railway companies and other parties, or between railway companies.
The Agency investigates complaints and applications on the following topics:
rail noise and vibration;
transfer and discontinuance of railway lines;
running rights and joint track usage;
level of service;
public passenger service; and
incidental charges, such as demurrage.
In most cases, railway companies and other parties can and usually do resolve disputes by negotiating agreements themselves. When negotiations break down, the Agency can be asked by one or both parties to intervene with a number of dispute resolution options, ranging from facilitation to formal adjudication.
In 2009-2010, the Agency resolved 38 rail dispute cases.
25 were resolved through facilitation;
5 were resolved through mediation; and
8 were resolved through formal adjudication.
2 disputes were determined to be eligible for referral to final offer arbitration.
Rail Noise and Vibrations: Working together towards solutions
The method by which traffic is transferred from the lines of one railway company to another.
Building upon the guidelines developed in 2008-09 to help communities and railways resolve issues related to railway noise and vibration, the Agency has released a brochure called Rail Noise and Vibration Complaints: Working together towards solutions. Designed to provide a very brief overview of the process used to resolve disputes related to rail noise or vibration, the publication leads the reader through the main steps of the Agency's complaint process. Working together towards solutions is a useful tool to inform readers of collaborative measures available and to direct them towards the more comprehensive guidelines.
In 2009-10, the Agency received one new rail noise and vibration complaints, and resolved one other. Two complaints carried over from previous years were resolved through mediation.
In October 2009, after investigating a complaint filed by a community group, the Agency found GO Transit in breach of its obligation under section 95.1 of the Canada Transportation Act to cause only such noise and vibration as is reasonable during construction of the West Toronto Diamond grade separation. This was in relation to GO Transit's pile-driving activities at the construction site. The Agency found that, given the circumstances, local residents' prolonged exposure to the noise and vibration generated at that location was unreasonable.
Before making a final determination and ordering any changes to the project, the Agency provided GO Transit with the opportunity to comment on the Agency's proposed measures related to the noise and vibration. After an assessment of GO Transit's comments, as well as comments by the West Toronto Diamond Community Group and the City of Toronto, the Agency issued a final decision ordering GO Transit to implement corrective measures for its project.
100% compliance with prescribed mitigation conditions to reduce environmental, economic and social impacts of railway construction projects.
Status as of March 31, 2010: no applications for projects requiring mitigation conditions received in 2009-10
Construction of rail lines
Laying new track of any length has the potential to affect the environment through which it is to run. The Agency is empowered by the Canadian Environmental Assessment Act to gauge the impact of new construction on the environment, and either issue or withhold permission to proceed based on the results of that assessment.
In 2009-10, the Agency was involved in nine ongoing environmental assessment processes for proposed rail line construction projects, and issued three decisions giving authority to construct railway lines.
Another 47 environmental assessment processes for projects such as road and utility crossings required Agency involvement.
In 2009-10, the Agency processed 111 agreements filed by parties who had successfully conducted their own negotiations related to crossings. These agreements became orders of the Agency. Where no agreement could be reached, the Agency was called upon by the parties involved to assist them in reaching a fair and equitable resolution.
The Agency issued decisions on three crossings through its formal adjudication process, and resolved a further 24 cases through facilitation and 3 through mediation. In addition, two cases were closed internally or withdrawn.
Applications dealing with recent legislative changes
Public passenger service providers
When a public passenger service provider is unable to reach an agreement with a railway company concerning the use of its railway, land, equipment, facilities or services, the service provider may apply to the Agency to decide the matter.
The Agency issued its first decision under subsection 152.2(1) of the Canada Transportation Act, determining the amount to be paid by VIA Rail Canada Inc. for the use of certain of the Hudson Bay Railway Company's railway, land, equipment, facilities and services. The amount determined by the Agency reflected the cost associated with the public passenger provider's use of the railway's infrastructure and services and took into account a number of factors.
Level of service
The Agency issued three decisions regarding complaints about railways' level of service.
Central Alberta Transloading Terminal Limited (CATT), a transload operator, filed a complaint asserting that CPR failed to meet its level of service obligations and that it charged unreasonable demurrage for the late return of rail cars. The Agency did not find any evidence that CPR had breached its level of service obligations and dismissed this aspect of the complaint. As the demurrage component was based entirely on the level of service complaint which the Agency dismissed, the application regarding demurrage charges was also dismissed.
While it was argued by the railway company that the transload operator did not have standing to bring an application under section 120.1 of the Canada Transportation Act, as it is a mechanism only available to shippers, the Agency found that the term "shipper" does not prevent a party from bringing a complaint to the Agency under this section of the Act when it is subject to demurrage charges related to a contract or other agreement.
Northgate Terminals filed a complaint against CN, seeking a determination that the reduction of the number of deliveries by CN was a breach of the railway company's level of service obligations to it. The Agency found that CN had breached it level of service obligation to provide adequate and suitable accommodation for the receiving of traffic and ordered that a second switch be provided, subject to certain conditions.
In another level of service complaint against CN, filed by Western Grain Trade, the Agency found that CN had not breached its level of service obligations.
Producer car loading sites
Railway companies are required under the Act to keep current, and publish on their Internet site, a list of available sidings in the Western Division where railway cars allocated by the Canadian Grain Commission can be loaded by individual producers. A railway company may only remove a siding from its list sixty days after giving notice of its intention to do so.
In September 2009, the Agency received a number of letters from parties concerned about CN's plans to delist 53 producer car loading sites and asking the Agency to stop this action. However, as CN was following the process provided for in the Act, the Agency did not have the authority to prevent CN from delisting its sidings. CN delayed delisting these 53 available sidings until January 1, 2010.
In December of 2009, the Agency received two level of service complaints with respect to CN's delisting of its producer car loading sites, in which the complainants stated that their future ability to access local rail service would be harmed if the sites are closed, resulting in unacceptable and inadequate level of rail service. The complainants requested that the Agency put a moratorium on the further delisting of any sites and on the removal of infrastructure from already delisted sites to allow time for the matter to be examined, including by the Rail Service Review Panel. The request for a moratorium was dismissed as the complainants had failed to satisfy the Agency that the test established by the Supreme Court of Canada for interim injunctive relief had been met.
At the end of the fiscal year, the level of service complaints were still being heard.