Decision No. 740-R-1994
November 15, 1994
IN THE MATTER OF a complaint filed by Mr. Réjean Isabelle pursuant to sections 147 and 325 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), to the effect that the Quebec North Shore and Labrador Railway Company did not provide adequate and suitable accommodation for the carriage of passengers and their personal effects.
File No. T 7425-7/94-1
By letter dated July 14, 1994, Mr. Réjean Isabelle (hereinafter the complainant) filed a complaint with the National Transportation Agency (hereinafter the Agency) and requested it to conduct an investigation into the alleged failure of the Quebec North Shore and Labrador Railway Company (hereinafter QNS&L) to provide adequate and suitable accommodation for its passenger transportation service and the associated baggage transportation service. The complainant found fault with the inconveniences resulting from QNS&L's practice of carrying passengers and their personal effects on different trains, claiming that this greatly impaired the quality of the passenger-train service provided by QNS&L.
As the complainant did not specify under what section of the Act the complaint was filed, the Agency informed the parties concerned, by letter dated July 25, 1994, that it was considering the complaint as having been filed under sections 147 and 325 of the National Transportation Act, 1987 (hereinafter the NTA, 1987).
QNS&L answered the complaint on September 6, 1994 and by letter dated September 22, 1994, the complainant filed his response to the answer submitted by QNS&L.
In order to adequately assess the issues raised by the complainant, the Agency instructed QNS&L by letter dated October 6, 1994, to provide it with certain information and documents pertaining chiefly to various aspects of its policy on carrying passengers' personal effects. By letter dated October 19, 1994, QNS&L filed the information requested by the Agency and by letter dated November 3, 1994, the complainant submitted his comments.
QNS&L operates a passenger-train service between Sept-Îles and Schefferville and between Ross Bay Junction and Wabush/Labrador City in the provinces of Quebec and Newfoundland. On March 9, 1982, it filed an application for authority to discontinue the operation of this passenger-train service. On September 25, 1985, the Canadian Transport Commission, the predecessor of the Agency, denied the application. In reconsidering the application for discontinuance of the service pursuant to subsection 268(2) of the Railway Act, R.S.C., 1985, c. R-3, which stipulates that the Agency shall reconsider an application for discontinuance of passenger-train services at intervals not exceeding five years from the date of the original application or last consideration thereof, the Agency ruled, by Order No. 1990-R-507 dated September 19, 1990, that this passenger-train service continued to be an uneconomic service, but that the operation of the service should not be discontinued.
As the operation of this service was determined to be uneconomic, QNS&L was eligible, pursuant to section 270 of the Railway Act, to claim the amount of any actual loss attributable to the passenger-train service not exceeding eighty per cent of the loss as certified by the Agency.
The complainant stated that QNS&L had discontinued the operation of a mixed train service consisting of coach cars and a few freight cars and had been operating a separate passenger and freight train service since the beginning of 1994, thereby causing significant inconvenience to passengers. He stated that the passenger and freight train services were not provided on the same day and this operation of separate trains obliged passengers to send their personal effects such as all-terrain vehicles, canoes, boats, motors and food a day ahead of their departure, in both directions.
The complainant contended that, under this system of separate trains, the personal effects that had to be transported by the freight train were deposited near the track and left unsupervised and unprotected. The complainant further contended that accommodation for passengers' personal effects depended on the availability of sufficient space on the next freight train; otherwise, the personal effects might be delayed for several days. The complainant cited his experience on his trip in June 1994 when he had to wait 18 days to retrieve his all-terrain vehicle.
The complainant was concerned about the possible impact of the operation of separate trains on the shipment of animal carcasses during the hunting season. The complainant also argued that QNS&L's discontinuance of ticket sales at the station obliged travellers to go to a travel agent and thus caused further inconvenience.
The complainant noted that, although QNS&L received subsidies from the federal government, it did not provide very good service to its clientele. The complainant requested that the Agency act on his complaint and require QNS&L to restore an adequate service to satisfy the needs of all its clients.
SUMMARY OF ARGUMENTS
QNS&L stressed the need to differentiate between personal effects and freight. It stated that goods such as wood, gasoline, all-terrain vehicles, canoes and motors were not personal effects, but should be considered freight.
With respect to the sale of tickets, QNS&L wondered how the fact that passengers had to secure their ticket from a travel agency could be an inconvenience, because they could now obtain tickets when it suited them. QNS&L pointed out that it made this change in order to better anticipate the number of passengers and to avoid needless waiting and delays caused by the selling of tickets at the station just prior to the departure of the train.
QNS&L argued that its clientele consisted of three categories of passenger: tourists; residents of Schefferville and Labrador City; and persons practising outdoor sports. It stressed that its mandate as a common carrier was to link the northern cities of Schefferville and Labrador City by a passenger-train service, and that it decided to redefine the services provided. QNS&L indicated that it had acquired six self-propelled passenger cars to improve the quality of the service provided and in particular to make the trip faster and more comfortable. It further stressed that, as the self-propelled cars had neither the motive power nor the capacity to carry freight, it could not provide the type of service demanded by the complainant without reverting to operating a mixed train, something that would be of benefit only to outdoor sports passengers. It emphasized that the volume of traffic generated by that category of passengers did not justify the costs involved in such a service, and that, under the "user-pay" principle, a service of that kind would make the ticket price prohibitive.
The complainant pointed out that QNS&L had in no way addressed certain points raised in his complaint, in particular, the issue of whether QNS&L assumed responsibility for effects left unsupervised and unprotected along the track, and whether it considered moose and fish as freight or personal effects.
The complainant reiterated that he found it unacceptable, especially for people who did not live in the area, that the present service provided by QNS&L obliged travellers to go to the departure point a day ahead to ship their personal effects and to stay behind a day or sometimes even longer on the return journey to retrieve their personal effects.
The complainant objected to the allegation that the new ticket-selling arrangements enabled QNS&L to anticipate the number of passengers, because the tickets sold could be used at any time for six months. The complainant also objected to the allegation that the new equipment used by QNS&L was faster.
The complainant concluded by saying that passengers practising outdoor sports were a category that should not be neglected, considering their contribution as tourists and the economic benefits that they brought to the region.
REQUEST FOR FURTHER INFORMATION
For the purposes of analysis, and to clarify certain points raised during the proceedings, the Agency directed to QNS&L a request for information concerning the operation of its passenger transportation service and in particular its policy on the carriage of passengers' personal effects.
In its answer to the request for information directed to it by the Agency, QNS&L stated its views on certain aspects of the complaint.
QNS&L stressed that its clientele consisted of two groups of travellers: 77 per cent were residents and tourists who used the passenger-train service to travel between Sept-Îles, Labrador City and Schefferville while 23 per cent were occasional passengers travelling to intermediate points between the three main cities for sporting or recreational purposes. QNS&L argued that such occasional passengers required the transport of goods that resembled more to freight than baggage, and that some of that freight required special equipment for loading and unloading because of its weight and dimensions, thereby giving rise to greater handling times.
QNS&L stated that, at the beginning of June 1994, it introduced a new system whereby it operated trains composed solely of passenger cars or entirely of freight cars. QNS&L indicated that it had developed this new system in light of the criticisms expressed about the quality of the trains and trip times. The carrier argued that this new system was more in keeping with the needs of its main clientele and should ensure faster, more efficient and more comfortable transport that was also less costly to operate. QNS&L contended that this new system also made it possible to substantially shorten stop times along the route so that passengers were no longer penalized by the lengthy stop times required for handling freight under the old system.
QNS&L stated that it was also out of a concern to improve the quality of its services that it now asked passengers to secure their tickets from travel agencies. QNS&L stressed that this new way of doing things improved the service provided to resident passengers and the tourist clientele by relieving passengers of the need to go to the carrier's stations to buy their tickets, by enabling them to secure tickets anywhere in Quebec and by allowing more punctual train departure.
QNS&L argued that the misadventure suffered by the complainant, which resulted in an 18-day delay to retrieve his vehicle, was due solely to circumstances beyond its control, namely, the labour dispute which impaired efficiency on the resumption of the carrier's operations. QNS&L contended that the introduction of this new service was in no way the cause of this isolated incident.
QNS&L stated that moose, fish or any other perishable item was accommodated by the freight train in box cars in the winter and refrigerated cars in the summer.
QNS&L noted that it assumed responsibility for goods left by passengers when they were in its possession; however, the carrier stated that it could not be responsible for a passenger's goods that had to be left at an intermediate point along the track where there was no shelter, station or staff.
QNS&L concluded by claiming that it would be unreasonable and unconscionable to require it to provide transportation for freight such as all-terrain vehicles, canoes, boats, motors and gasoline to the detriment of the quality of the passenger-train service that it had introduced recently for the benefit of the majority of passengers. QNS&L added that the service perfectly met the needs of it main clientele for the transport of themselves and their personal affects.
The complainant stated that on his last trip on September 15, 1994, he found that the new system was not any more punctual, because the train left 40 minutes late. The complainant further pointed out that the equipment required to load or unload some freight was very easy to move.
The complainant objected to the fact that the misadventure that he suffered in June 1994 could be attributed to the QNS&L labour dispute, because that had ended in May. The complainant also pointed out with regard to the return trip to Sept-Îles that the only train allowing stops at intermediate points was the one running between Schefferville and Sept-Îles on Fridays and that service did not allow recovery of his effects before the following Monday.
In his complaint filed under section 147 of the NTA, 1987 the complainant asked the Agency to investigate QNS&L's passenger-train service in order to rule on whether QNS&L had breached its common carrier obligations within the meaning of sections 144 and 145 of the NTA, 1987 by providing a service of alleged inadequate and unsuitable quality to meet the needs of passengers.
It appears from the arguments presented that the main points in this case on which the Agency is called upon to rule are the following: did QNS&L breach its common carrier obligations to provide adequate and suitable accommodation by:
- not allowing some passengers to carry all their personal effects on the same train that provided their own transport?
- not assuming responsibility for passengers' effects deposited at intermediate points along the route?
- discontinuing the direct sale of tickets and entrusting this service instead to a travel agency?
Section 147 of the NTA, 1987 empowers the Agency to investigate a complaint that a railway company is not fulfilling the obligations placed on it as a common carrier under section 144 or 145. If the Agency determines that the company is not fulfilling its obligations, it may order the railway company to implement corrective measures, pursuant to subsection 147(4) of the NTA, 1987.
In the present complaint, the general obligations binding on QNS&L appear in section 144 of the NTA, 1987, and more specifically in subsection 144(1). According to subsection 144(1), every railway company shall, according to its powers, furnish adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage and for the carrying, unloading and delivering of all such traffic. Subsection 144(1) also provides that every railway company shall, without delay, and with due care and diligence, receive, carry and deliver all such traffic. Section 271 of the Railway Act, as amended by section 325 of the NTA, 1987, stipulates that sections 144 to 147 of the NTA, 1987 apply in relation to any passenger train service, and, for that purpose, "traffic" means the traffic of passengers and includes any rolling stock relating to the transportation of passengers.
The Agency conducted the investigation required pursuant to section 147 of the NTA, 1987. The results of its investigation are set out below for each issue.
Before dealing with the issues raised in this case, it seems advisable to study the operational measures instituted by QNS&L together with certain revisions made in its policy on the carriage of personal effects in order to assess the impact of these changes on the quality of the services provided to the travelling public.
In June 1994, QNS&L introduced changes in the rolling stock used for its passenger-train service. According to QNS&L, changes were made necessary by the age and the condition of the rolling stock. It decided to withdraw from service the "conventional" passenger cars that it had formerly operated and introduce self-propelled cars. QNS&L also decided to discontinue operating mixed freight and passenger trains, except for one train a week from Ross Bay Junction to Schefferville and from Schefferville to Sept-Îles, and split these two services into separate trains which it operates on different days.
Before the introduction of this new system in June 1994, QNS&L operated its passenger train service with "conventional" passenger cars and baggage cars combined with freight cars to accommodate passengers' personal effects that could not be carried in the baggage cars. Since the introduction of this new system, the passenger train service has consisted solely of passenger cars, dining cars and mixed cars with a passenger compartment and a baggage compartment. QNS&L contended that the new composition of its passenger trains did not allow it to continue to accommodate certain heavy and/or bulky personal effects that it used to carry on the rolling stock dedicated to freight transport. Under the carrier's present system of operation, such personal effects now have to be transported in its freight train service.
1. Responsibility for passengers' personal effects
In its investigation into whether the restriction imposed by QNS&L on the carriage of certain heavy and/or bulky personal effects constituted a breach of its common carrier obligations, the Agency first examined the regulatory framework governing operations of this kind.
QNS&L contended that goods such as all-terrain vehicles, canoes, boats and motors bore more resemblance, by their weight or dimensions, to freight than to baggage, and that, accordingly, it was under no obligation to accommodate such goods on the same trains that carried passengers. The responsibilities and obligations of railway companies with respect to the carriage of baggage are defined in the Baggage Car Traffic Regulations, C.R.C., c. 1197.
The Agency reviewed the wording of these Regulations to determine their impact on the goods which are the subject of this complaint. Among the goods concerned, the Agency noted that the carriage of some canoes and motors is governed by the provisions of the Baggage Car Traffic Regulations.
The Agency noted regarding canoes, motors and any other article subject to the Regulations that subsection 6(5) provided that ¨the carrier shall endeavour to forward such baggage or other articles on the same train or steamer with passenger but will not be responsible for failure to do so¨.
With respect to all-terrain vehicles and boats, the Regulations provide that vehicles owned by individuals are to be forwarded by the freight service. Subsection 15(5) stipulates that
Aeroplanes, airships, automobiles, motorcycles and other conveyances or machines propelled or operated by engines or motors, attached or detached, will not be accepted for transportation in regular or special baggage car service, and applicants will be transferred to the Freight Department or Express Company...
Similarly, the Agency noted that the Regulations do not in any way refer to the carriage of fish, moose or any other perishable item. There is no doubt in the Agency's mind that such goods are to be considered as freight that requires special conditions of carriage and cannot be carried as regular baggage.
The Agency wishes to stress regarding the transport of freight that every carrier is under the obligation to carry the freight entrusted to it with reasonable diligence pursuant to subsection 144(1) of the NTA, 1987. However, there is no statutory or regulatory provision respecting the transport of freight that confers on a shipper, or a passenger for freight that he wishes to have transported as personal effects, the right to require a carrier to carry such freight on a particular train or on a specific date, except by special agreement between the shipper and the railway company.
The Agency recognizes that the main rationale of the service operated by QNS&L is to provide a railway service for users wishing to travel on its system. With respect to the quality of the services provided by QNS&L, the Agency is of the opinion that the carrier is free to alter how its services are provided to the public, subject to its common carrier obligations to furnish adequate and suitable accommodation to the travelling public. The Agency notes that the introduction of the new rolling stock had the effect of improving some aspects of its service, such as comfort and trip time, to the benefit of all passengers but also of obliging a minority of passengers to have their freight carried on separate trains. The Agency immediately recognizes that this restriction could cause serious inconvenience to some passengers. However, while not wishing to minimize the potential consequences of this restriction, the Agency notes that, in introducing this new system, QNS&L preferred to improve the quality of passenger transport at the expense of the flexibility and convenience that it formerly afforded some passengers wishing to transport heavy and/or bulky personal effects. Quite clearly, the Agency cannot decide this aspect of the complaint without taking into consideration the operational and financial constraints that QNS&L had to take into account in making its decision to impose such a restriction and leaving the management of QNS&L some discretion in how to operate its service, particularly with respect to auxiliary services related to the operation of a passenger-train service.
After duly weighing the facts and arguments submitted in this complaint, the Agency has determined that the fact the QNS&L carried some heavy and/or bulky goods entrusted to it as personal effects by some of its passengers on separate trains was not sufficient grounds to conclude that QNS&L had breached its obligations to furnish adequate and suitable accommodation for the carrying of passengers and their goods.
The Agency has also examined the circumstances surrounding the delay in delivering the complainant's all-terrain vehicle in June 1994. QNS&L stated that this was an isolated incident, caused by the labour dispute which impaired efficiency on the resumption of the carrier's operations. The Agency is of the view that QNS&L might have felt the effects of the labour dispute for some time after its activities were resumed and that it cannot hold the carrier responsible for the effects directly or indirectly due to a labour dispute.
2. Liability for personal effects to be transported on the freight train
QNS&L's decision to operate separate freight and passengers trains has meant that passengers' personal effects that could not be accommodated in the regular baggage service have had to be carried by freight trains since June 1994. QNS&L argued that passengers using the train service for sporting and recreational purposes travelled mainly to intermediate points along the route. When such passengers wish to transport bulky personal effects that cannot be accepted in the regular baggage service, the effects have to be deposited at places where QNS&L does not have shelters, stations or staff. QNS&L stated that it could not be responsible for a passenger's effects when they had to be left at intermediate points. With respect to the Sept-Îles-Ross Bay Junction segment on which the complainant has travelled, the Agency notes that QNS&L operates only one freight train a week on its whole system that stops at intermediate points. Passengers bound for Ross Bay Junction the day after the day of operation of that freight train are confronted with the situation that their excess personal effects will be left unprotected for approximately 12 hours. On the return trip to Sept-Îles, QNS&L transports passengers and their personal effects simultaneously since it provides a mixed train service in that direction.
The Agency has paid particular attention to the policy on liability adopted by QNS&L and notes that, in the absence of a written agreement between the two parties limiting the carrier's liability, the Railway Traffic Liability Regulations, SOR/91-488 established the limits of the railway company's liability.
Section 4 of the Regulations provides that
Subject to sections 3, 8 and 15, for the purpose of paragraph 153(2)(b) of the Act, a carrier shall be liable, in respect of goods in its possession, for any loss of or damage to the goods or for any delay in the transportation of the goods unless that liability is limited by these Regulations.
The complainant indicated that he was concerned by the carrier's failure to assume responsibility for personal effects deposited at intermediate points along the route, commonly called flag stations. As the Agency has not been presented in the present case with a concrete incident involving actual loss or damage, it is of the opinion that it would be inappropriate to determine on a hypothetical basis whether goods deposited on QNS&L property or land adjacent to QNS&L property were in the company's possession, and whether the carrier could be held liable for loss of or damage to such goods.
3. Sale of tickets
The Agency also examined the allegation that QNS&L's discontinuance of the sale of tickets at its stations and entrusting of the sale of tickets to a travel agency instead caused further inconvenience to passengers. The Agency notes that the travel agency will serve as the distributor for all other travel agencies elsewhere in the Province of Quebec requesting QNS&L tickets for their clients. The Agency is of the opinion that QNS&L's discontinuance of ticket sales at stations may indeed result in inconvenience to passengers not wishing to buy their tickets in advance. However, the Agency considers that the number of such passengers is small.
In order to determine whether the discontinuance of ticket sales constituted a breach of its carrier obligations by QNS&L, the Agency examined this change in the sale of tickets in the context of the responsibilities and obligations of the carrier in that regard. The Agency notes that the new system established by QNS&L for the sale of tickets in no way contravenes the Passenger Ticket Act, R.S.C., c. P-3. Section 2 of the Act provides that:
Any railway, steamboat or ferry company subject to the jurisdiction of Parliament, or to which the Railway Act applies, or the Minister of Transport, with respect to any railway under the control of the Government of Canada, may appoint, in any city, town or village in Canada, such person or persons as it or he chooses as agents for the sale of passenger tickets to passengers or persons who desire to travel by the railway, steamboat or ferry of the company employing those agents, or by any Government railway, as the case may be.
The Agency wishes to stress that, although the Act allows QNS&L to delegate the sale of tickets to an intermediary, it nevertheless remains its responsibility to ensure that the intermediary discharges its mandate properly and does not operate in such as way as to impede or reduce the full accessibility of the travelling public to QNS&L's services.
In the light of the foregoing, the Agency considers that QNS&L fulfilled its obligations pursuant to section 144 or 145 of the NTA, 1987. It therefore hereby denies the complaint filed by Mr. Réjean Isabelle.