Decision No. 350-R-2013

September 5, 2013

APPLICATION by the Quayside Community Board, related to the mediated settlement agreement filed with the Canadian Transportation Agency pursuant to subsection 36.1(7) of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No.: 
L312/13-14

APPLICATION

[1] On June 21, 2012, the Quayside Community Board (QCB) filed with the Canadian Transportation Agency (Agency) a Settlement Agreement (the Agreement) reached as a result of a mediation between itself and the Canadian National Railway Company (CN), the Canadian Pacific Railway Company (CP), the BNSF Railway Company (BNSF) (Federal Railway Companies), the Southern Railway of British Columbia (SRY) and the City of Westminster (the City). On September 5, 2012, QCB pursuant to subsection 36.1(7) of the Canada Transportation Act (CTA) requested the Agency to enforce the Agreement.

[2] QCB submits that there have been numerous breaches of the Agreement by the Federal Railway Companies and SRY in respect of its confidentiality, as well as Clauses 1, 2, 4, 6a), 6c), 8, 9 and 10.

BACKGROUND

[3] On July 4, 2008, QCB filed a complaint with the Agency pursuant to subsection 95.1 of the CTA against the Federal Railway Companies and SRY, concerning noise and vibration arising from operations in the New Westminster Interchange Yard (Yard) affecting the Quayside area residents.

[4] On December 10, 2008, the Federal Railway Companies, QCB, SRY and the City signed the Settlement Agreement which meant that the issues were resolved and the mediation case was closed. On that same date, the parties signed a Disposition Statement.

[5] On April 13, 2010, QCB filed a second complaint with the Agency, stating that the mediated solution had failed. The Federal Railway Companies and SRY responded that a valid agreement had previously been entered into on the subject matter of the second complaint, and, therefore, the Agency could not adjudicate the matter.

[6] In Decision No. LET-R-152-2010, the Agency determined that the Agreement was not an Agency order, nor did it constitute a consent order or judgment. The Agency found that, in the absence of a final order or judgment on consent or otherwise, the Agency, in the exercise of its jurisdiction under section 95.3 of the CTA, was not barred from hearing the second complaint on the basis of issue estoppels, or that the Agency was functus officio. The Agency also found that it could adjudicate the second complaint as the complaint fell within the ambit of section 95.1 of the CTA.

[7] Subsequent to Decision No. LET-R-152-2010, the Federal Railway Companies filed an appeal with the Federal Court of Appeal. On September 28, 2011, the Federal Court of Appeal, in BNSF Railway Company v. Canadian Transportation Agency, 2011 FCA 269 (the FCA Decision), set aside the Agency Decision and returned the matter to the Agency to determine whether “the settlement agreement was intended to finally resolve the issues raised in the first complaint. If so, given the finding of the Agency that the two complaints are ‘virtually identical’, the Community Board will be precluded from re-litigating those issues before the Agency.”

[8] In Decision No. 107-R-2012, the Agency found that the Agreement was intended to finally resolve the issues raised in the first complaint and that QCB was precluded from relitigating those issues before the Agency.

[9] On July 4, 2012, QCB, pursuant to subsection 36.1(7) of the CTA, filed the Agreement with the Agency, which became enforceable as if it were an order of the Agency after filing.

[10] On September 5, 2012, QCB requested the enforcement of the Agreement. QCB also requested that the Agency make an interim order restricting rail Yard transfers to a third party.

[11] Following receipt of QCB’s request for enforcement, Agency staff proceeded with a fact-finding process according to the Agency’s procedure. During the fact-finding process, staff requested comments from QCB, the Federal Railway Companies, SRY and the City in order to prepare a Fact-Finding Report (Report). Following receipt of comments, the Report was prepared and circulated for final comments. QCB, the Federal Railway Companies and SRY provided their comments.

[12] Subsequent to the Report, an Agency panel was appointed. In its Decision No. LET-R-80-2013, the Agency recognized that SRY is a provincially-regulated railway company that does not fall under the jurisdiction of the Agency and that the Agency would therefore proceed with this matter with only the Federal Railway Companies as respondents. The Agency also found it important to consider the perspectives of SRY and the City on this matter in its deliberations. The Agency noted that SRY and the City took part in the mediation process, are signatories to the Settlement Agreement and have a role in the implementation of the Agreement. Therefore, SRY and the City were provided with an opportunity to comment on the issues raised before the Agency pursuant to section 46 of the Canadian Transportation Agency General Rules, SOR/2005-35, as amended (General Rules).

[13] In the same Decision, the Agency expressed the opinion that the Report was relevant and necessary to assist the Agency in the adjudication process and advised that it would therefore, form part of the evidence considered by the Agency in this case. The Agency also advised that the comments, submissions and evidence provided by QCB, the Federal Railway Companies, SRY and the City to Agency staff, both regarding the current case, as well as in preparation for and in response to the Report, did not form part of the record in this adjudication. Submissions and related evidence on both the adjudication case and the Report had to be filed with the Agency as part of the pleadings process in the current case.

[14] With respect to QCB’s request for an interim order, the Agency, in Decision No. LET‑R‑80‑2013, referred QCB to Decision No. LET-AT-R-356-2001, in which the Agency confirmed that the three-part test applicable to requests for interlocutory injunctions and stays also applies to requests for an interim order under subsection 28(2) of the CTA. The Agency indicated that should QCB wish to pursue the request for an interim order, it must file a submission and supporting evidence to meet the three-part test.

[15] QCB, in its reply of ­­­­­­June 14, 2013, indicated that it would not pursue its request for an interim order.

[16] The Agency findings provided below are based on the Report and the submissions made during the pleadings process in this case.

PRELIMINARY MATTERS

The City’s whistle blowing complaint

[17] In their submissions, the Federal Railway Companies and SRY refer to a whistle blowing complaint filed by the City on July 4, 2008 against the Federal Railway Companies.

[18] The whistling complaint is outside the scope of the current case and the Agreement and will not be considered by the Agency.

Relief sought by QCB

Positions of the parties

[19] QCB, in its application, requests the following relief from the Agency should the Agency find that some of the terms of the Agreement have been breached:

  1. issue and enforce orders that permanently eliminate unreasonable noise resulting from night time rail operations in the Yard between the hours of 19:00 and 7:00 hours;
  2. or set aside the Agreement and rescind the disposition statement.

[20] QCB submits that the Agency has authority and broad judicial powers under sections 25 and section 27.1 of the CTA. According to QCB, this may include awarding damages, relocating rail yard operations, changing rail yard hours of operations, ordering dispute resolution mechanisms and communication protocols between the parties, imposing reporting requirements on the railway companies and, if necessary, setting aside a settlement agreement and rescinding a disposition statement that has been filed with the Agency.

[21] QCB submits that the relief requested falls within the jurisdiction of the Agency. In any case, QCB will accept the Agency’s decision on the appropriate relief.

[22] The Federal Railway Companies and SRY state that the Agency has previously held, in Decision No. 107‑R-2012, that QCB cannot relitigate issues that have already been resolved. The Federal Railway Companies and SRY add that QCB cannot use its request regarding compliance with the Agreement to seek orders that would impose operational restrictions on the railway companies. The Federal Railway Companies and SRY submit that certain aspects of relief sought by QCB in this case could only be considered in response to an application brought pursuant to subsection 95.3(1) of the CTA. The Federal Railway Companies and SRY also submit that no such application is before the Agency and even if it were, there is no legal or evidentiary basis for the Agency to make orders that would restrict the operations of the railway companies in these circumstances.

[23] The Federal Railway Companies and SRY conclude that at least some of the relief sought would directly impact other residents who live along the rail corridor through New Westminster (who are not members of QCB), on the customers of the railway companies and SRY who depend on timely and continuous operations in the Yard, on the railway companies themselves in relation to their level of service obligations under the CTA and on the other residents, landowners and municipalities in the Coquitlam area.

Analysis and findings

[24] The Agency is aware that QCB’s 2008 and 2010 complaints requested that the Agency issue an order restricting rail operations in the Yard to certain hours.

[25] The Agency reminds QCB that, when setting aside Decision No. LET-R-152-2010, the Federal Court of Appeal concluded that if the Agreement was intended to finally resolve the issues raised in the first complaint, “given the finding of the Agency that the two complaints are ‘virtually identical’, [QCB] will be precluded from relitigating those issues before the Agency.”

[26] Further, in Decision No. 107-R-2012, the Agency found that the Agreement was intended to finally resolve the issues raised in the first complaint and that QCB was precluded from relitigating those issues before the Agency.

[27] Therefore, considering that the Agency has ruled in Decision No. 107-R-2012, that the Agreement is final and binding, the Agency does not have the authority to consider the specific relief sought by QCB.

[28] Notwithstanding, the Agency may enforce the Agreement.

Jurisdiction

Positions of the parties

[29] The Federal Railway Companies and SRY submit that the Agency has no jurisdiction in connection with any alleged act by or omission of any of the railway companies in relation to the Agreement prior to the date of its filing with the Agency. As for the period after the filing of the Agreement with the Agency, the Federal Railway Companies and SRY state that no act by or omission of the railway companies said to be in breach of the Agreement is being alleged by QCB.

[30] In addition, the Federal Railway Companies and SRY state that the Agency has repeatedly and correctly declared in the past that its jurisdiction does not extend to enforcing private agreements for parties, whether parties are involved in proceedings before the Agency or not. The Federal Railway Companies and SRY add that the Agency has no jurisdiction to enforce the Agreement, in particular, to undertake a determination of whether and to what extent the terms of the Agreement have been complied with, either in whole or in part, by the railway companies.

[31] The Federal Railway Companies and SRY state that the majority of the subject matter in the Agreement that QCB requested to be enforced on September 5, 2012, has, for all intents and purposes, been “spent.”

[32] QCB maintains that the Agency has jurisdiction under the CTA to enforce the Agreement through its formal adjudication process and that under this process, the Agency can investigate whether the railway companies have met their obligations under the Agreement of December 2008.

[33] The City is also of the view that the Agency has the jurisdiction to enforce the Agreement through its formal adjudication process.

Analysis and findings

[34] Subsection 36.1(7) of the CTA states:

An agreement that is reached as a result of mediation may be filed with the Agency and, after filing, is enforceable as if it were an order of the Agency.

[35] In Decision No. 272-R-2013, the Agency referred to two decisions of the Federal Court of Appeal in Canada (Canadian Human Rights Commission) v. Warman (2011 FCA 297) (Warman) and in Professional Institute of the Public Service of Canada v. Bremsak (2012 FCA 147) [Bremsak], and concluded that an agreement entered into between parties and filed pursuant to a provision of the CTA (in that case, subsection 101(1) of the CTA) remains an agreement between parties even though it may be considered as an order of the Agency for enforcement purposes. Those references in Decision No. 272-R-2013 are set out below:

The Federal Court of Appeal (FCA) examined the status of an order of an administrative tribunal that becomes an order of the Federal Court in Canada (Canadian Human Rights Commission) v. Warman (2011 FCA 297) (Warman). There, the FCA found that the order of an administrative tribunal, once filed for registration with the Federal Court under the provisions of the Act, remains an order of an administrative tribunal despite being filed with the Federal Court for enforcement:

In my view, the issue raised in this appeal turns on the registration provision set out in section 57 of the Act, and in particular whether the order enforced under the authority of that provision is the order of the Tribunal or the order of the Court.

The answer to that question is relatively straightforward when one considers that the only order being enforced under this scheme is that of the Tribunal and that there is to-day no legal principle that restricts the use of contempt powers to orders issued by superior Courts.

[…] in the present case, there is only one order – the Tribunal order – which is enforced by the Federal Court pursuant to section 57 as though it was an order of that Court. This intent is best reflected by the French text according to which: “les ordonnances rendues en vertu des articles 53 et 54 […] peuvent […] être assimilées aux ordonnances rendues par celle-ci [i.e., la Cour fédérale]. ”

In Professional Institute of the Public Service of Canada v. Bremsak (2012 FCA 147) [Bremsak], the FCA confirmed the approach set out in Warman. Referring to the reasons given by Judge Noël, who wrote the majority decision in Warman, the FCA indicated in Bremsak that: “…More broadly, Warman stands for the proposition that in enforcement proceedings following the filing of a tribunal order in the Federal Court, what is being enforced is the tribunal order”.

From Warman and Bremsak, it is clear that the mechanism by which an order of an administrative tribunal becomes an order of a court for the purpose of enforcement does not alter the nature of this order. The order of an administrative tribunal remains an order of this tribunal, despite being filed for enforcement with the Federal Court.

The decisions in Warman and Bremsak pertain to orders of administrative tribunals that become Federal Court orders by operation of law. However, the Agency notes that the statutory provisions examined in these two cases established a mechanism by which an agreement or amendment becomes an order described in the same words, or words having the same effect for all practical purposes, as those used in subsection 101(2) of the CTA. In English, subsection 101(2) of the CTA uses the expression “becomes an order”(in French “est assimilée à un arrêté de l’Office”), whereas section 57 of the Canadian Human Rights Act and subsection 52(2) of the Public Service Staff Relations Act respectively use the expressions “may be made an order” (in French “peuvent être assimilées aux ordonnances rendues par [la CF]”) and “becomes an order” (in French “est assimilée à une ordonnance rendue par [la CF]”).

[36] In this case, the Agency finds that the principles outlined in Warman and Bremsak apply, by analogy, and with such modification as the circumstances require, to the interpretation of subsection 36.1(7) of the CTA. The Agency concludes that, after an agreement is filed with the Agency in accordance with subsection 36.1(7) of the CTA, it is enforceable as if it were an order of the Agency. Having said this, the Agreement remains an agreement between the parties, even after it is filed with the Agency.

[37] The wording of subsection 36.1 (7) of CTA is clear to the effect that an agreement reached as a result of mediation is enforceable forward after filing. It is up to the parties to the agreement to file the agreement with the Agency as soon as possible to allow for enforcement in the event of any breach. In the present case, the Agreement was filed more than three years after it was signed.

[38] The Agency has, pursuant to subsection 33(4) of the CTA, the discretion to enforce an agreement that has been filed. Such agreement becomes enforceable under subsection 36.1(7) of the CTA. Subsection 33(4) of the CTA, which contains the word “may,” empowers the Agency to enforce the agreement, without imposing a duty to do so. The issue raised in this application concerns the enforcement of an agreement which was entered into as a result of a mediation conducted pursuant to subsection 36.1(1) of the CTA. The issue of the Agency’s jurisdiction in this case goes beyond the simple consideration of a private agreement between parties and therefore the Agency deems it appropriate to exercise its jurisdiction under subsection 33(4) of the CTA.

[39] The Agency is of the opinion that one of the logical consequences of an agreement being enforceable after filing is that it is enforceable from that point on and, while the Agency could consider evidence of an ongoing breach, it cannot issue orders to remedy breaches in periods prior to the filing. In this case, certain clauses of the Agreement have lapsed and cannot be enforced due to the passage of time.

[40] Considering the Agency’s previous finding that an agreement must be enforced forward after filing, the Agency is of the opinion that it is not necessary to determine whether the requirements of Clauses 8, 9 and 10 have been met as they have been superseded by Clause 11 of the Agreement.

[41] Based on the wording of Clause 11, the Agency is of the opinion that, unlike Clauses 8, 9 and 10, Clause 11 does not, supersede Clauses 1 to 7. Had the intent of the Agreement been that Clause 11 was to supersede Clauses 1 to 7, the Agreement would have stated this. Therefore, the Agency finds that Clauses 1 to 7 of the Agreement are still in force.

[42] Having found that the Agency has jurisdiction to enforce the Agreement as if it were an order of the Agency after filing, the Agency will examine whether the Federal Railway Companies have met their obligations under Clauses 1, 2, 4, 6a) and 6c) of the Agreement. Considering its previous finding, the Agency will not examine Clauses 8, 9 and 10. Clauses 3, 5, 6(b), 7, 11, and 12 will not be examined because no breach is being alleged by QCB.

Confidentiality of the Agreement

Positions of the parties

[43] QCB submits that the Federal Railway Companies placed the Agreement into the public domain when they filed the Agreement with the Federal Court of Appeal as part of a Request for Leave to Appeal. QCB adds that when the Federal Railway Companies filed their Request for Leave to Appeal with the Federal Court of Appeal, they included the Agreement and made no request to either the Federal Court of Appeal Registrar or to the judge that any document be kept confidential or sealed. QCB states that because there is no remedy available, this breach is irreparable. According to QCB, this breach, in and of itself, would be sufficient grounds to have the Agreement set aside.

[44] QCB states that this is not the first time the railway companies have alleged that QCB has breached the confidentiality terms of the Agreement by filing the 2010 complaint with the Agency. According to QCB even if the confidentiality clause of the Agreement had been breached by QCB, it would not give the railway companies the right to release the entire Agreement into the public domain.

[45] The Federal Railway Companies and SRY are of the view that in the circumstances that have transpired, in particular now while the Agency is adjudicating the matter, none of the parties can rely upon or seek to enforce the confidentiality provisions in either the Agreement to Mediate of December 9, 2008 or in the Agreement of December 10, 2008.

[46] The Federal Railway Companies and SRY submit that QCB disclosed the terms of the Agreement it believed had been breached by the railway companies, in an April 13, 2010 letter to the Agency. The Federal Railway Companies and SRY state that they were then compelled to raise those terms, first with the Agency and second with the Federal Court of Appeal. The Federal Railway Companies and SRY add that to that limited extent, the Agreement was disclosed to the Agency and then to the Federal Court of Appeal, as it was a necessary part of the adjudicative and legal proceedings.

[47] The Federal Railway Companies and SRY submit that, in these circumstances, QCB determined to unilaterally ignore the confidentiality obligation in the Agreement. The Federal Railway Companies, to defend themselves against the allegations both before the Agency and the Federal Court of Appeal, were then free to refer to the terms of the Agreement in their defence. The Federal Railway Companies and SRY add that QCB itself waived any obligation of confidentiality that might have once been owed by the railway companies to QCB.

[48] The Federal Railway Companies and SRY state that the proper administration of justice, both by the Agency and the Federal Court of Appeal, requires that a litigant (in this instance the railway companies) disclose in the evidence information that may have been received in confidence when such disclosure is necessary for the fair disposal of the proceedings at hand. The Federal Railway Companies and SRY add that in order to properly and fully address the issues raised by QCB before the Agency (and later before the Federal Court of Appeal), the precise terms of the Agreement needed to be disclosed, discussed and analyzed.

[49] The Federal Railway Companies and SRY state that the confidentiality aspect of this matter was dealt with, expressly, by the Report. The Federal Railway Companies and SRY add that it was also specifically addressed by the Agency, in the context of the Agreement, in Decision No. LET-R-80-2013.

Analysis and findings

[50] The Agency notes that the Agreement clearly states that “[t]his agreement is confidential, unless the parties agree otherwise.”

[51] With respect to QCB’s 2010 complaint, the Agency concluded, as follows in paragraph 25 of Decision No. 107-R-2012.

The Agency, pursuant to subsection 24(4) of the General Rules, finds that the full document is relevant to the extent that its intent is the focus of this proceeding. The railway companies’ concern is not that the Settlement Agreement not be considered by the Agency but that the terms of the Settlement Agreement be kept confidential and not be placed on the public record. The Agency also notes that subsection 36.1(4) of the CTA requires that “all matters relating to the mediation of a dispute shall be kept confidential”. Therefore, those clauses of the Settlement Agreement under the heading “Terms of Agreement and Implementation Schedule” will not be placed on the public record but will be maintained in confidence. However, to address an apparent concern of QCB, the Agency confirms that it has reviewed the entire Settlement Agreement in making its decision in this matter.

[52] The Agency notes that, in the context of proceedings leading to that Decision, it granted a claim for confidentiality pursuant to section 23 of the General Rules, relating to those clauses of the Agreement under the heading “Terms of Agreement and Implementation Schedule.” At the time, QCB objected to the claim for confidentiality of the Agreement, pointing out that there is no information in the Agreement that has not already been the subject of public disclosure in either the Federal Court of Appeal, the Agency defence or through correspondence approved by the railway companies for public release.

[53] The Agency is aware that the Agreement and the information it contains form part of the public record of the Federal Court of Appeal. Considering its earlier finding that the Agreement is enforceable as if it were an order of the Agency after filing and having noted that the Agreement forms part of the public record of the Federal Court of Appeal, the Agency is of the opinion that it is not necessary for the Agency to examine this paragraph of the Agreement in order to resolve the present dispute.

[54] Nevertheless, as indicated in Decision No LET-R-80-2013 and consistent with Decision No. 107-R-2012, the Agency will maintain the confidentiality of the Agreement throughout this proceeding. Therefore, those clauses of the Agreement under the heading “Terms of Agreement and Implementation Schedule” will not be placed on the public record but will be maintained in confidence. Therefore, the Agency will issue both public and confidential reasons for the Decision it renders in this case.

ISSUE

[55] Have the Federal Railway Companies met their obligations under the Agreement?

ANALYSIS AND FINDINGS

The Law

[56] Subsection 36.1(7) of the CTA states:

An agreement that is reached as a result of mediation may be filed with the Agency and, after filing, is enforceable as if it were an order of the Agency.

[57] Subsection 33 (4) of the CTA states:

The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action.

Clause 1 of the Agreement

[58] The Agency finds that the Federal Railway Companies have met their obligations with respect to Clause 1 of the Agreement.

Clauses 2 and 4 of the Agreement

[59] The Agency finds that the Federal Railway Companies have met their obligations with respect to Clauses 2 and 4 of the Agreement.

Clauses 6a) and c) of the Agreement

[60] Evidence dating back to 2009 has been filed by the parties with respect to Clauses 6a) and 6c) of the Agreement. Considering its earlier finding that the Agreement is enforceable as if it were an order of the Agency after filing, the Agency is of the opinion that it is not necessary to consider evidence relating to Clause 6 which pre-dates the filing of the Agreement on July 4, 2012.

[61] The Agency concludes that the Federal Railway Companies have not established that they have fulfilled their obligations under Clauses 6a) and c) of the Agreement. The Agency is of the opinion that Clauses 6a) and c) constitute a joint obligation on the Federal Railway Companies pursuant to the Agreement.

[62] The Agency notes that there is no termination clause governing this section of the Agreement and therefore, unless amended by consent of the parties, the duty continues in perpetuity.

ORDER

[63] Due to the confidentiality of the Agreement, a separate letter decision will be issued to QCB, the Federal Railway Companies, SRY and the City, in confidence, setting out the more detailed reasons for this Decision as well as the related Agency Order requiring the Federal Railway Companies to take remedial action to fulfill their obligations under Clauses 6a) and c) of the Agreement.

Member(s)

Geoffrey C. Hare
Raymon J. Kaduck
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