Letter Decision No. LET-R-12-1999
Level of Service Complaint of Naber Seed & Grain Company Limited
This is in reference to Canadian Transportation Agency (Agency) Decision No. LET-R-318-1998 dated December 17, 1998 wherein the Canadian National Railway Company (CN) was directed to provide the Agency with reasons supporting its motion of December 16, 1998.
On December 21, 1998, CN filed a Memorandum of Fact and Law requesting that the applicant's, Naber Seed & Grain Company Limited (NSG), Reply to Final Answer dated December 7, 1998 be struck from the record of the proceedings before the Agency. CN submits that the reply exceeds the proper scope of a reply, contrary to the rules of natural justice.
NSG's answer to CN's memorandum was filed on December 23, 1998 and a subsequent reply was filed by CN on December 30, 1998.
The Agency has considered the arguments put forward by CN that fairness and the normal scope of a reply require the Agency not to allow NSG to file evidence on grain weeks 9 and 12 and to expand the scope of its application for those weeks so that CN knows the case it has to meet.
The Agency notes that CN, in its final answer of November 27, 1998, submitted pleadings on the above-noted weeks through statements of evidence appended to its answer. CN did so in response to NSG's answer to the Agency's questions set out in Decision No. LET-R-300-1998 and "in the event that the Agency exercises its discretion in favour of the applicant ... through an abundance of caution". The evidence filed by CN led NSG, in its final reply filed on December 7, 1998, to also provide further evidence on grain weeks 9 and 12.
CN also argues that NSG cannot rely on its response to CN interrogatories to argue its case. The Agency notes that under the National Transportation Agency General Rules, responses to interrogatories are filed with the Agency and form part of the record.
Finally, on the issues raised by CN as to inconsistent pleadings filed by NSG and the impeachment of NSG's own witness, the Agency considers that those arguments refer to the weight to be given to the evidence when deciding on the merits of this case.
The Agency considers that the evidence now on the record for weeks 9 and 12 has to be analysed to assess the level of service provided by CN to NSG. Therefore, CN's motion to have NSG's reply struck from the record is dismissed. The Agency hereby advises CN that it may file an answer to NSG's Reply to Final Answer on or before Monday, January 18, 1998. NSG may file a response to any answer of CN on or before Thursday, January 21, 1998.