Decision No. 749-R-2000
November 29, 2000
APPLICATION by Chalmers Hardenbergh, pursuant to subsection 140(2) of the Canada Transportation Act, S.C., 1996, c. 10, for a determination by the Canadian Transportation Agency as to whether the Canadian National Railway Company's St. Leonard Spur, between mileages 0.75 and 0.94, with headblock at mileage 195.24 of the Napadogan Subdivision, in the province of New Brunswick, constitutes a yard track, siding, spur or other track auxiliary to a railway line.
File No. R 8150/559
On August 1, 2000, Chalmers Hardenbergh filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
On September 25, 2000, the Canadian National Railway Company (hereinafter CN) filed its answer to the application and on October 5, 2000, Mr. Hardenbergh filed his reply to the answer.
The St. Leonard Spur is the remaining west end portion of the St. Quentin Subdivision. The St. Quentin Subdivision used to run between Tide Head, mileage 0.00 (near Campbellton), and I.N.R. Junction, mileage 105.76 (near the town of Saint-Léonard), in the province of New Brunswick.
On April 6, 1983, CN applied to the Railway Transport Committee of the Canadian Transport Commission, pursuant to section 253 of the Railway Act, R.S.C., 1970, c. R-2, for authority to abandon the operation of the St. Quentin Subdivision between Tide Head (mileage 0.00) and I.N.R. Junction (mileage 105.76).
By Order No. R-38237 dated June 28, 1985, the Railway Transport Committee of the Canadian Transport Commission ordered CN to continue the operation of the St. Quentin Subdivision between mileages 0.00 and 105.76.
Following the proclamation of the National Transportation Act, 1987, S.C., 1987, c. 34, the National Transportation Agency (hereinafter the NTA) was required to reconsider the application for the abandonment of the St. Quentin Subdivision. On July 20, 1988, the NTA issued a notice to that effect and invited submissions on the matter.
By letter dated July 22, 1988, CN advised the NTA of its wish to amend the abandonment application by replacing mileage 105.76 with mileage 103.50, in order to provide for a private siding to a new mill at Saint-Léonard. On April 7, 1989, NTA Order No. 1989-R-80 was issued authorizing the abandonment of the operation of the St. Quentin Subdivision between mileages 0.00 and 103.50.
The remaining 2.26 miles of the St. Quentin Subdivision was redesignated as an industrial spur track and was subsequently renamed as the St. Leonard Spur with headblock at mileage 195.24 of the Napadogan Subdivision, near Saint-Léonard.
The issue to be addressed is whether the subject trackage constitutes a yard track, siding, spur or other track auxiliary to a railway line, pursuant to subsection 140(2) of the Canada Transportation Act (hereinafter the CTA).
POSITIONS OF THE PARTIES
Mr. Hardenbergh alleges that CN did not follow the discontinuance process as it did not give notice of its intention to discontinue operating the subject trackage. Hence, Mr. Hardenbergh requests that the Agency determine whether this trackage should have been subject to the statutory discontinuance process.
CN submits that the application should be dismissed as there can be no determination made in the abstract as the railway operations on the subject trackage have been discontinued effective June 22, 1999.
CN further submits for information purposes that:
- the minuscule segment of line in question had, over time, become redundant to railway operations;
- there was only one customer on this track segment, and there was no requirement for service to this industry;
- subsequent to the discontinuance, the industry in question elected to purchase the property; and
- no other railway service was affected by the discontinuance.
In his reply, Mr. Hardenbergh states that under the current statute, anyone addressing the question as to whether a railway is correctly labelled a spur is calling for a determination after the fact, in the abstract.
ANALYSIS AND FINDINGS
The transfer and discontinuance process set out under sections 141 to 146 of the CTA applies to all railway lines held by railway companies under the legislative authority of Parliament. Within this process, a railway line excludes yard tracks, sidings, spurs or other track auxiliary to a railway line. The Agency may pursuant to subsection 140(2) of the CTA determine that a particular trackage meets any of these descriptions and, thus, is excluded from the statutory operation of railway line transfer or discontinuance process. Conversely, the Agency may determine that a particular trackage constitutes a line of railway and, therefore, is subject to the statutory transfer or discontinuance process.
CN argued that the Agency could not make a determination pursuant to subsection 140(2) of the CTA as such a determination would be made in the abstract as railway operations over the St. Leonard Spur have been discontinued since June 22, 1999. The Agency does not determine what constitutes a yard track, siding, spur or other track auxiliary to a railway line for every portion of track of this type that is discontinued by a railway company. In fact, section 140 of the CTA leaves the discretion of what constitutes a yard track, siding, spur or other track auxiliary to a railway line to the railway company and discontinuance can proceed without notification to the Agency. However, once the Agency is in receipt of an application in which the discretion of the railway company is challenged, it must, pursuant to its legislative mandate, determine as a question of fact whether a portion of track is or is not a yard track, siding, spur or other track auxiliary to a railway line. Only such determinations which are made in the abstract could allow the Agency to assess whether or not the railway company was subject to the discontinuance process.
The Agency has considered all of the material submitted by the parties and the documentation on file with the Agency concerning the subject trackage, and notes the following:
- By letter dated August 1, 1989, CN advised the NTA that the remaining portion of the St. Quentin Subdivision between mileages 103.5 and 105.76 has been redesignated as an industrial spur track, namely the St. Quentin Spur;
- CN's timetables for the years 1992 and 1997 indicate that the St. Leonard Spur extends 1.0 mile north of the Napadogan Subdivision with headblock at mileage 195.5;
- The subject railway line does not connect at both ends with any other railway line. It only connects by a wye track at mileage 0.00 with the Napadogan Subdivision with headblock at mileage 195.5. The subject trackage was only used to serve local traffic;
- By letter dated August 19, 1999, CN notified the Agency that it had discontinued operating the portion of the St. Leonard Spur between mileages 0.75 and 0.94, the end of the spur, effective June 22, 1999. CN submitted that this portion of the St. Leonard Spur had become redundant to railway operations and that the sole customer on this trackage had no objection to the discontinuance of railway operations; and
- No objections were received by the Agency subsequent to CN's filing of the notice of discontinuance.
The Agency finds that this trackage was designated by CN as a spur since 1989 and that it is a dead-end track. The Agency also finds that the trackage subject to this determination is the end portion (0.19 mile in length) of a one mile section of track which served only one customer. In addition, no objections to its discontinuance were filed with the Agency since CN's letter of August 19, 1999.
In light of the foregoing, the Agency hereby determines, pursuant to subsection 140(2) of the CTA, that the St. Leonard Spur, between mileages 0.75 and 0.94, with headblock at mileage 195.24 of the Napadogan Subdivision, in the province of New Brunswick, constitutes a spur and, consequently, is not subject to the requirements of Part III, Division V (Transferring and Discontinuing the Operation of Railway Lines), of the CTA.