Order No. 1993-R-402

December 21, 1993

December 21, 1993

IN THE MATTER OF an agreement between the Canadian National Railway Company (hereinafter CN) and the Cape Breton and Central Nova Scotia Railway Limited, pursuant to subsection 158(2) of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), to convey by sale CN's lines of railway between Truro and Sydney to the Cape Breton and Central Nova Scotia Railway Limited comprising 113.98 miles of the Hopewell Subdivision between Truro and Havre Boucher, 113.90 miles of the Sydney Subdivision between Havre Boucher and Sydney and 8 miles of the Oxford Subdivision between Stellarton and the end of rail, including spurs, land and buildings, related facilities and itemized equipment, in the province of Nova Scotia; and

IN THE MATTER OF exhibits filed in the above proceedings entitled "Cape Breton & Central Nova Scotia Railway Business Plan" and "Railtex, Inc. Pro Forma with Nova Scotia", which documents contain the notation "confidential - not a public document".


WHEREAS during the course of the public hearing into the above-noted proceeding on June 8, 1993, a document entitled "Cape Breton & Central Nova Scotia Railway Business Plan" was filed with the National Transportation Agency (hereinafter the Agency) together with a claim for confidentiality pursuant to section 11 of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the General Rules);

AND WHEREAS during the course of the public hearing into the above-noted proceeding on June 10, 1993, a document entitled "Railtex, Inc. Pro Forma with Nova Scotia" was filed with the Agency together with a claim for confidentiality pursuant to section 11 of the General Rules;

AND WHEREAS on June 8, 1993 and June 10, 1993, the Agency determined that the "Cape Breton & Central Nova Scotia Railway Business Plan" and "Railtex, Inc. Pro Forma with Nova Scotia" were confidential and, in keeping with section 11 of the General Rules, that these documents were filed with the Agency as confidential exhibit Nos. "CB and CNS (CONFIDENTIAL)-3" and "CB/CNS CONFIDENTIAL-9" (hereinafter the confidential exhibits);

AND WHEREAS further to the Agency's determination, these exhibits were both clearly marked with the notation "confidential - not a public document";

AND WHEREAS on December 14, 1993, Mr. David W. Brown and Mr. Peter J. Davidson, counsel to the Brotherhood of Maintenance of Way Employees ( hereinafter the BMWE) attended at the offices of the Agency, at 15 Eddy Street, Hull, Quebec, for the purpose of reviewing the transcripts and exhibits filed with the Agency in the above-noted proceeding;

AND WHEREAS the Agency subsequently became aware that the confidential exhibits had been inadvertently placed in the Agency's public file;

AND WHEREAS following Messrs. Davidson and Brown's attendance at the Agency's offices, Mr. Davidson subsequently admitted to the Agency counsel that copies of the confidential exhibits had been made and removed from the Agency's premises;

AND WHEREAS as a result of this admission, both the Agency counsel and the Agency's Secretary and General Counsel demanded the immediate return of the confidential exhibits and advised Mr. Davidson both verbally, on December 20, 1993, and in writing, on December 21, 1993, that the information contained in the confidential exhibits must not be used in any way, that the contents of the confidential exhibits must not be disclosed to any persons, that copies of the confidential exhibits must not be provided to any person and that no copies of the confidential exhibits should be retained;

AND WHEREAS on December 21, 1993, the Agency counsel attended at the offices of the BMWE and requested the return of the confidential exhibits and presented both Messrs. Davidson and Brown with an "Undertaking and Declaration" respecting confidentiality for their signatures;

AND WHEREAS on December 21, 1993, Messrs. Davidson and Brown as well as Mr. Gary Housch, Vice-President of BMWE, refused to return the confidential exhibits to the Agency counsel and Messrs. Davidson and Brown both refused to sign the "Undertaking and Declaration".

NOW THEREFORE, ALL EMPLOYEES, MEMBERS, SERVANTS AND AGENTS OF THE BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES ARE HEREBY ORDERED, PURSUANT TO SUBSECTION 36(1) OF THE NATIONAL TRANSPORTATION ACT, 1987, TO:

  1. Return all copies of the confidential exhibits filed in the proceeding and entitled "Cape Breton & Central Nova Scotia Railway Business Plan" and "Railtex, Inc. Pro Forma with Nova Scotia" to the Agency or its agent appointed in writing and if necessary such agent shall be entitled to the assistance of an officer or officers of the Royal Canadian Mounted Police or local police force in enforcing this Order. Upon presentation of a copy of this order the officer or officers so requested shall provide such assistance as is necessary to carry out the provisions and intent of this order.
  2. Maintain the confidentiality of, and not to copy or disclose to any person, the confidential exhibits filed in the proceeding and entitled "Cape Breton & Central Nova Scotia Railway Business Plan" and "Railtex, Inc. Pro Forma with Nova Scotia" or any of the information contained therein.
  3. Not use in any manner the information contained in the confidential exhibits filed in the proceeding and entitled "Cape Breton & Central Nova Scotia Railway Business Plan" and "Railtex, Inc. Pro Forma with Nova Scotia".
  4. Not discuss, indirectly or directly communicate amongst or between themselves any of the information contained in the confidential exhibits filed in the proceeding and entitled "Cape Breton & Central Nova Scotia Railway Business Plan" and "Railtex, Inc. Pro Forma with Nova Scotia".
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