Letter Decision No. LET-R-253-1999
Application by the Canadian National Railway Company pursuant to subsection 145(5) of the Canada Transportation Act for a determination of the net salvage value of a line of railway in the Cudworth Subdivision in the province of Saskatchewan
The Canadian Transportation Agency (Agency) acknowledges receipt of a letter addressed to Agency counsel dated October 13, 1999, from the Canadian National Railway Company (CN) concerning the upcoming deadline for a net salvage value determination in the above-captioned proceeding.
CN proposes that the deadline of October 20, 1999, in these proceedings be extended indefinitely upon condition that the pleadings as between CN and the respondent municipal governments (the Respondents) in this proceeding be closed. CN also states that as pleadings have closed, it does not intend to reply to the Respondents' interrogatories dated September 23, 1999. CN acknowledges, however, that pleadings are not closed in respect of the outstanding issues relating to the treatment of rehabilitation assets, which issues are identified in the Agency's Notice of Public Hearing dated August 20, 1999.
The Agency cannot accept CN's conditional consent. It is the mandate of the Agency and not of CN to determine when pleadings are closed and it is inappropriate for CN to attempt to do so in exchange for its consent to an extension of the deadline. It is particularly inappropriate and inconsistent for CN to do so in light of CN's letter dated September 29, 1999, whereby it amends its earlier reply in these proceedings.
The Agency finds that there are at least four matters outstanding, apart from the rehabilitation asset issues, which militate against the close of pleadings. First, the Respondents have issued interrogatories to CN which CN now states it shall not answer. Pursuant to section 20 of the National Transportation Agency General Rules (the General Rules) the Respondents have the right to apply to the Agency for a decision on whether CN should be compelled to answer.
CN cannot unilaterally choose, however, not to answer.
Second, and as raised by CN and the Respondents in these net salvage value proceedings, there is an ongoing debate regarding the purported effect of reclamation bylaws on net salvage value. The Agency is in receipt of a request from the Canadian Pacific Railway Company seeking leave to intervene before the Agency on this issue and in Decision No. LET-R-249-1999, this request was granted. The Agency has also concluded that given the far-reaching impact of any decision on this issue, comments from other affected persons should be solicited. In order for these persons to have a meaningful participation on this matter, they must be offered sufficient time to exchange information and present their position. In light of the impending deadline, the Agency finds that this right will be compromised and, to accept CN's approach would exacerbate the degree of unfairness as it would effectively preclude CP and other potentially affected persons from commenting on CN's position in this matter.
Thirdly, pursuant to section 18 of the General Rules the Agency may require information from the parties to this proceeding.
Finally, one possible outcome of the rehabilitation assets hearing is a determination that rehabilitation assets do not form part of a railway company's interest in a railway line to be transferred to governments pursuant to section 145 of the Canada Transportation Act. If this is the case, the Agency expects that pleadings between CN and the Respondents would be necessary in order to permit a satisfactory identification and quantification of any affected rehabilitation assets.
In light of the above, pleadings in this matter cannot be closed. Consequently, CN is required to advise, within one working day of the date of this letter whether it consents to an extension of the statutory deadline for a period of time after the issuance of an Agency decision in the rehabilitation asset hearing. Should CN not agree to such an extension, the Agency will have no other alternative but to suspend the final determination of the net salvage value in the Cudworth proceedings pending the determination of all outstanding issues.