Decision No. 97-R-2006
February 21, 2006
IN THE MATTER OF a complaint filed by Ville de Lévis, pursuant to section 116 of the Canada Transportation Act, S.C., 1996, c. 10, alleging that the Canadian National Railway Company is not fulfilling its obligations to provide suitable facilities for unloading plastic granules at the Joffre Yard.
File No. T 7375-3/05-2
 In a letter dated September 30, 2005, Ville de Lévis (hereinafter the City) filed a complaint with the Canadian Transportation Agency (hereinafter the Agency). In its complaint, the City requests that the Agency investigate the alleged failure by the Canadian National Railway Company (hereinafter CN) to provide suitable facilities at the Joffre Yard in the Charny area of the city of Lévis, thereby causing noise problems in the surrounding area.
 On November 3, 2005, the Agency informed the parties that it was reviewing the complaint and requested that they submit their respective arguments.
 On November 22, 2005, CN filed its answer and the City did not reply.
POSITIONS OF THE PARTIES
 The City submits that for some time CN has been unloading freight at the Joffre Yard in a manner that does not seem to be in compliance with the level of service provisions of the CTA. The City adds that there is no specific facility for unloading cars filled with plastic granules as they are unloaded with a pump installed on a tank truck.
 The City indicates that the unloading takes place early in the morning and late at night, which disturbs the peacefulness of the neighbourhood. Because of the intensity of the noise arising from the unloading activities, the City concludes that CN is not fulfilling its obligations as a public carrier, in that it does not provide suitable facilities for unloading plastic granules.
 CN submits that this complaint contains no details as to the dates of the events in question or the events themselves. CN adds that the complaint makes no mention of how CN is allegedly failing to fulfill its obligations, nor of which shipper is affected by the alleged lack of suitable facilities.
 CN indicates that in the context of a service complaint, the provisions of subsection 27(2) of the Canada Transportation Act (hereinafter the CTA) must apply. However, the City has submitted no argument to the effect that there will be substantial commercial harm if the Agency does not grant the City's application.
 CN also submits that, in the past, the issue of noise at the yard in Charny has been the subject of mediation efforts and of an application for leave to launch a class action suit with the Quebec Superior Court. CN adds that in that case, the Quebec Superior Court found that the City was responsible for the situation as it had issued construction permits for residential homes in the neighbourhood of the yard.
 CN indicates that this complaint appears to be nothing other than an additional attempt to complain about normal noise arising from railway operations at the yard in Charny and that it should therefore be dismissed.
 The issue to be addressed is whether CN has failed to fulfill its common carrier obligations, within the meaning of sections 113 to 115 of the CTA, by failing to provide suitable facilities for unloading plastic granules.
ANALYSIS AND FINDINGS
 In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings and all relevant factors.
 The City requested that the Agency investigate the service offered by CN with respect to handling plastic granules, in order to determine whether CN has failed to fulfill its common carrier obligations. Section 116 of the CTA confers upon the Agency the authority to investigate a complaint alleging that a railway company is failing to fulfill its common carrier obligations, pursuant to sections 113 to 115 of the CTA.
 Sections 113 to 115 of the CTA set out the statutory service obligations of federally-regulated railway companies and include the services that a railway company must provide to accommodate traffic. Section 113 of the CTA deals with what is generally referred to as the common carrier obligations. Pursuant to that section, a railway company shall, according to its powers, provide adequate and suitable accommodation for the receiving, loading, carriage, unloading and delivering of the traffic that is to be carried on its railway. It also provides that every railway company must, without delay and with due care and diligence, receive, carry and deliver the traffic.
 If the Agency determines that the railway company is not fulfilling any of its service obligations, it may order that the company take corrective measures, pursuant to subsection 116(4) of the CTA. Section 27 of the CTA empowers the Agency to grant such relief as it deems fair and proper, while subsection 27(2) provides that where an application is made to the Agency by a shipper in respect of a transportation rate or service, the Agency may grant the relief sought, in whole or in part, but only if it is satisfied, after considering the circumstances of the particular case, that the applicant would suffer substantial commercial harm if the relief were not granted.
 In order to determine whether the level of the service provided by CN was satisfactory and sufficient under the circumstances, the Agency must carefully examine the particulars of the service provided by CN in light of its obligations. In this regard, the Agency notes, as CN raised, that the City has provided very few details to support CN's alleged failure to provide satisfactory service with respect to the traffic in question, details which would have been necessary to allow the Agency to make an informed decision in the present case. Elements of evidence, such as circumstances and specifics of the plastic granule unloading process, as well as the identity of the shipper and the respective roles of the shipper and CN in the unloading process, constitute key elements in this case for which the City has not provided any significant evidence.
 The Agency notes the specific nature of this complaint in that the City has elected to request that the Agency consider the complaint in light of the provisions of section 116 of the CTA, which govern the level of service provided by a railway company, while complaints concerning excessive noise arising from railway activities have traditionally been considered by the Agency pursuant to section 95 of the CTA. This section confers on railway companies general powers for constructing and operating a railway, while requiring them to do as little damage as possible while exercising these powers. The Agency has, on several occasions in the past, conducted investigations following complaints concerning noise arising from railway activities pursuant to section 95 of the CTA and the powers conferred on the Agency by section 37, which provides that the Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.
 However, orders in which the Agency determined that railway companies had not done as little damage as possible when exercising their powers related to the operation of a railway, were appealed to the Federal Court of Appeal, which ruled that the Agency is not authorized under the CTA to regulate noise, smoke and vibrations. Specifically, on December 7, 2000, the Federal Court of Appeal ruled, in Canadian National Railway Co. v. Brocklehurst (C.A.)  2 F.C. 141, that the Agency did not have jurisdiction to hear complaints concerning noise, smoke or vibrations arising from the operations of a federally-regulated railway company within the meaning of section 95 of the CTA. Consequently, the Agency notes that it cannot investigate the present complaint pursuant to the provisions of section 95 of the CTA.
 Moreover, while the dispute resolution mechanism concerning the level of service provided by a rail carrier is available to anyone wishing to file a complaint with the Agency, in fact, complaints filed with the Agency pursuant to section 116 of the CTA are generally filed by persons who have a direct connection with the carrier that is the subject of the complaint. The Agency notes that it is very difficult for the City, as it has no such direct connection with CN and is not a party to the contract governing the traffic that is the subject of the complaint, to file significant evidence concerning the nature of the traffic in question or details of the way that CN is providing the service or of its failure to provide satisfactory service. Nevertheless, the fact remains that the burden of proof lies with the City.
 The lack of a direct connection with the carrier in question or of a direct interest in the dispute also has an impact on a complainant's ability to meet the requirements of section 27 of the CTA as, in order for relief to be granted in the context of a service level complaint, the complainant must clearly establish that it would suffer substantial commercial harm if the requested relief were not granted in whole or in part. The Agency notes that the City has not submitted any evidence of such commercial harm, within the meaning of section 27 of the CTA, and is of the opinion that it would be very difficult in this instance to establish the existence of substantial commercial harm, given the City's lack of a direct interest in the dispute.
 After consideration of the facts and arguments submitted in the present case, the Agency finds that there is no evidence clearly establishing that the level of service provided by CN constitutes a failure to fulfill its obligation to provide suitable facilities for unloading the traffic in question.
 Based on the above findings, the Agency hereby dismisses the complaint.
- Gilles Dufault
- Guy Delisle
- Mary-Jane Bennett