Decision No. 389-R-2016

December 30, 2016
APPLICATION by the Corporation of the City of Cambridge (Cambridge) and the Corporation of the City of Kitchener (Kitchener) against Canadian Pacific Railway Company (CP).
Case number: 
15-03403

INTRODUCTION

[1] On August 28, 2015, Cambridge, on behalf of itself and Kitchener (applicants), filed the above application with the Canadian Transportation Agency (Agency) for authority to construct an at‑grade road crossing at mileage 7.40 of CP’s Waterloo Subdivision, and for the apportionment of liability for the construction and maintenance costs of the crossing (proposed crossing). The applicants seek to convert an existing private crossing at mileage 7.40 of CP’s Waterloo Subdivision into a road crossing.

[2] The Agency opened pleadings on September 4, 2015. Subsequently, both CP and the applicants applied for several extensions of their time limits to file their respective answer and reply. On August 25, 2016, the Agency granted the last extension request, which provided the applicants until September 19, 2016 to file their reply. The applicants filed an interim reply on August 25, 2016. On September 19, 2016, the applicants filed a supplemental reply to replace the interim reply.

[3] Between September 21, 2016 and October 20, 2016, CP filed with the Agency the following requests:

  1. request that the Agency dismiss the application pursuant to section 27 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) (request to dismiss);
  2. request that the Agency permit CP to file documents pursuant to section 34 of the Dispute Adjudication Rules (request to file documents);
  3. request for an order striking new issues, evidence and arguments raised in the applicants’ reply or alternatively, that the Agency direct the applicants to file a reply that is compliant with the Dispute Adjudication Rules (request to strike); and,
  4. request for an order pursuant to section 32 of the Dispute Adjudication Rules requiring the applicants to provide a complete response to CP’s October 7, 2016 notice for the production of documents (notice for the production of documents and a request to require a response).

[4] The applicants seek costs in relation to CP’s request to strike, and to CP’s request to require a response and the related notice. Both CP and the applicants seek costs in relation to the request to dismiss. CP seeks costs in relation to the request to file documents.

PRELIMINARY MATTERS

CP’s request to require a response

[5] The Agency notes that in its October 20, 2016 reply to its request to require a response, CP states that it is no longer seeking the document that was the basis of its notice for the production of documents. As such, the Agency will not address CP’s request to require a response.

ISSUES

  1. Should the Agency grant CP’s request to dismiss the application?
  2. Should the Agency grant CP’s request to file documents?
  3. Should the Agency grant CP’s request to strike certain portions of the applicants’ reply?
  4. Should costs be awarded to CP and the applicants?

1. SHOULD THE AGENCY GRANT CP’S REQUEST TO DISMISS THE APPLICATION?

CP’s position

[6] CP submits that Cambridge has passed a zoning –by-law amendment, which implicitly provides that no public traffic will travel across the proposed crossing to the business park until an indefinite time in the future. As a result, CP maintains that the application should be dismissed without prejudice to the applicants’ right to file a new application in the future.

[7] CP states that on September 27, 2016, Cambridge passed the zoning by-law amendment, which rezoned the business park and fundamentally altered the relevant roadways. CP argues that in the applicants’ September 19, 2016 reply, they failed to advise the Agency that the previously represented main entrance to the business park was under consideration for variance, or that, if varied in the proposed manner, the factual foundation of the application would change. CP points out that, unlike the configuration set out in the application, the new configuration does not include any public traffic into the business park from King Street, as no road will connect King Street to the business park. Instead, the ingress and egress to Phase 1A of the business park will be via Maple Grove Road.

[8] CP notes that the previous configuration of the business park dictated that public traffic at the proposed crossing would occur as of 2020 with direct access into Phase 1A of the development. CP maintains that, based on the information available to CP, the earliest potential projected use by the public of the proposed crossing appears to be between the years 2030 and 2035. CP submits that this projection is based on its understanding and interpretation of various reports provided by the applicants, such as the Master Environmental Servicing Plan and the Transportation Impact Study submitted by the applicants (and reproduced in the January 2016 Dillon Consulting Limited Report [Dillon Report]). These reports reference 2020 as the completion of Phase 1A, and 2032 as the date of completion and occupancy of all of Phase 1 of the business park.

[9] According to CP, the applicants’ application and reply relied on the assumption that the King Street public access would exist and that this justified a conversion of the existing private crossing to a public crossing. CP asserts that this has now changed as a result of the zoning by‑law amendment, which implicitly provides that no public traffic will travel across the existing private crossing until sometime in the indefinite future, if at all. Consequently, CP argues that the application is now moot and the authorization sought by the applicants is premature as it is based on a hypothetical development in the unspecified and distant future.

[10] CP argues that the application is deficient and should be dismissed for failing to set out the relevant facts and issues. CP submits, for example, that significant confusion exists regarding what Phase 1A and 1B of the business park will consist of, and also the timeline for the construction of each phase. CP asserts that this information is not clearly set out in the pleadings or supporting documentation, nor has the Agency been provided with a clear understanding of what the development of the business park involves. CP submits that significant confusion also exists regarding the ingress and egress into the business park. As an example of this, the application states that the proposed crossing will be the main entrance, while the reply states that the proposed crossing will be a secondary or tertiary entrance. Finally, CP alleges that the design plans of the zoning by-law amendment show that the proposed crossing will not be an entrance at all, at least until 2030-2035. According to CP, this confusion and shifting representations constitute deficiencies that fundamentally void the application. To support its position, CP refers the Agency to Decision No. LET-R-5-2016, where the Agency dismissed an application for being defective because the applicant did not anticipate the respondent’s issues and set them out in the application.

[11] In its reply to the applicants’ response to the request to dismiss, CP states that the request to dismiss is permissible under subsection 26(2)(c) of the Dispute Adjudication Rules. CP adds that the request to dismiss pertains to highly relevant issues that the Agency must decide upon in the proceedings.

The applicants’ position

[12] The applicants submit that CP’s request to dismiss should be denied as it was filed after the close of pleadings, contrary to subsection 27(1) the Dispute Adjudication Rules.

[13] The applicants disagree with the significance that CP places on the zoning by-law amendment. The applicants state that the proposed modification to the draft Plan of Subdivision is to provide flexibility in developing the land, and expressly provides for flexibility in that “the extension of Boychuk Drive […] could occur should a large block for a data centre or other use not be required.” The applicants further state that the variance was obtained in part due to CP’s ongoing obstruction and the delay in the anticipated completion of the current proceedings. The applicants note that the zoning by-law amendment provides an option, but not a requirement, to terminate Boychuk [Drive] in a cul de sac, which can be altered to enable the continuation of public access through Phase 1B to and from the King Street access over the proposed crossing. The applicants assert that Paradigm Transportation Solutions Limited provided comments dated October 24, 2016, stating that the 2014 Traffic Impact Study clearly indicates that 2017 was intended as full development and 2025 as full occupancy of Phase 1 of the business park, and that traffic improvements required in the first five years, including the proposed crossing providing access via King Street, must be in place on opening day.

[14] The applicants further point out that in the Dillon Report, appended at Appendix A to CP’s answer, it is noted that there could be a need for a second access to the business park by 2020, and that such a need would be market-driven. This would mean that if the market dictated more business park uses earlier, then the trigger for a second access point could occur sooner. Accordingly, the applicants conclude that the zoning by-law amendment has, if anything, accelerated the need for a second access to the business park. The applicants maintain that 2020 is now a realistic timeframe for the construction completion relating to either an at‑grade or a grade separated crossing, as recognized by CP’s consultant in the Dillon Report.

ANALYSIS AND FINDINGS

The timing of CP’s request to dismiss

[15] CP filed its request to dismiss on October 20, 2016, which is subsequent to the applicants’ filing of their reply.

[16] Subsection 26(1)(c) of the Dispute Adjudication Rules provides that if additional documents are filed after an answer is filed, pleadings are closed the day on which the last document is to be filed under these Rules. Since the Agency did not require the filing of any other documents after the filing of the reply, pleadings were closed upon the filing of the reply.

[17] Nevertheless, pursuant to section 6 of the Dispute Adjudication Rules, the Agency may vary those Rules.

[18] The Agency is of the opinion that the issues raised by CP in its request to dismiss must be addressed in order to ensure the just determination of the issues raised in the application. The Agency will therefore consider the request to dismiss.

The request to dismiss

[19] In 65-R-2008">Decision No. 65-R-2008, the Agency stated that a case will be hypothetical in nature if it raises merely possible or abstract questions coupled with hopes and expectations which render it impossible to make a determination with regard to them. In this matter, the applicants have provided an extract from the plan of survey and various plans, for example, the Master Environmental Servicing Plan approved by the City of Cambridge and the Region of Waterloo, and the General Arrangement Plan appended to the application. The Agency is of the opinion that there has been enough evidence submitted by the applicants to determine that the business park, including the proposed crossing, is a planned construction, and that its realization is more probable than not. The Agency therefore disagrees with CP’s position that the application is moot and/or premature.

[20] However, in considering the application, the Agency must assess the facts presented by the applicants concerning the proposed crossing. As stated in Decision No. LET-R-5-2016, it is important that an application contain the necessary information because a complete application promotes litigation efficiency – reducing time, cost, and affording the responding party enough details to enable it to plead in response.

[21] Furthermore, the Agency expects an application to be filed with any and all necessary supporting evidence. Alternatively, if necessary and relevant evidence becomes available after the filing of the application, the Agency expects the applicants to file a request to introduce that new evidence.

[22] In this case, the Agency is of the opinion that the new information CP refers to in its request to dismiss, including but not limited to the apparent change of King Street’s role at the proposed crossing and the zoning by-law amendment, is material to the application and may impact the Agency’s determination on the suitability and the costs apportionment of the proposed crossing.

[23] As an example, the applicants state in the application that CP was aware that mileage 7.40 would be the main entrance point for “the subject lands”, in particular, as the location of the long standing crossing. In contrast, appended to the applicants’ reply to the application is a letter from Paradigm Transportation dated September 15, 2016, stating that it is expected that King Street will have a secondary or tertiary role in serving the needs of the site.

[24] In the absence of a complete set of current facts, including but not limited to changes affecting vehicular access points to the business park, the application is affected by a fundamental defect. Furthermore, since the zoning by-law amendment was adduced by CP’s counsel after CP filed its answer to the application, CP did not have the opportunity to fully respond to the application, including the circumstances surrounding the zoning by-law amendment. The Agency therefore grants CP’s request to dismiss the application without prejudice. This means that the applicants may file a new application at a later date.

[25] Should the applicants decide to file a new application, it must include all the relevant facts and any and all necessary supporting evidence.

2. SHOULD THE AGENCY GRANT CP’S REQUEST TO FILE DOCUMENTS?

[26] In light of the above, the Agency will not address CP’s request to file documents.

3. SHOULD THE AGENCY GRANT CP’S REQUEST TO STRIKE CERTAIN PORTIONS OF THE APPLICANTS’ REPLY?

[27] In light of the above, the Agency will not address CP’s request to strike.

4. SHOULD COSTS BE AWARDED TO CP AND THE APPLICANTS?

[28] The applicants seek costs in relation to CP’s request to strike, and to CP’s request to require a response and the related notice. Both CP and the applicants seek costs in relation to the request to dismiss. CP seeks costs in relation to the request to file documents.

[29] In light of the above, the Agency will not address the requests for costs relating to CP’s request to strike and CP’s request to file documents.

[30] Regarding the request to require a response and the related notice for the production of documents, the applicants assert that the pleadings process should not be unduly extended to pursue matters that are of limited usefulness to the determination to be made by the Agency, and that CP failed to disclose when CP accessed the documents for which it requested production.

[31] With respect to the request to dismiss, CP submits that the applicants’ failure to bring the new plans for the development of the business park to the Agency and CP’s attention caused CP to waste considerable time and money responding to what is now an irrelevant set of facts. The applicants submit that CP has materially misrepresented evidence, in particular, evidence related to when public use of the proposed crossing will be required.

[32] The Agency’s practice for such requests is to award costs only in special or exceptional circumstances. The Agency finds that this case does not meet those special or exceptional circumstances, and therefore dismisses both the applicants’ and CP’s requests for costs.

Member(s)

William G. McMurray, Member
Stephen Campbell
P. Paul Fitzgerald
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