Letter Decision No. LET-R-267-1999
By letter dated October 1, 1999, the Norfolk Southern Railway Company (hereinafter NS) applied pursuant to section 78 of the National Transportation Agency General Rules to have clauses 1 and 4 of Order No. 1999-R-308 and Decision No. 391-R-1999 of the Canadian Transportation Agency (hereinafter the Agency), dated July 6, 1999, stayed pending the disposition of the appeal before the Federal Court of Appeal. NS was granted leave to appeal the Order and the Decision of the Agency by the Federal Court of Appeal on September 21, 1999. NS seeks a stay of the 30-minute limitation in clause 1 of the Order and a stay of clause 4 of the Order requiring the implementation of the joint plan pending the disposition of the appeal before the Federal Court of Appeal.
NS also requested the Agency to deal with the matter on an urgent basis and thus to abridge the time limits for the response to its application for a stay to 10 days. By Decision No. LET-R-246-1999, dated October 7, 1999, the Agency granted NS' request to abridge the time limits and directed the respondents Taylor to file their answer to NS' application for a stay within 10 days of the receipt of the letter decision. The Agency also directed NS to reply within five days of the receipt of the respondents' submissions.
On October 13, 1999, the respondents filed their answer with the Agency. On October 15, 1999, NS filed its reply with the Agency. Confirmation of the respondents' opposition to the application for a stay was made on October 18, 1999.
- NS, as a temporary measure and within fifteen (15) days of the date of this Order, to cease parking its idling diesel locomotives for longer that thirty minutes in the St. Thomas Yard.
- NS, if it is unable to comply with the requirements of clause 1, to relocate within or out of the St. Thomas Yard the parking of its idling diesel locomotives and such new location shall not be within 300m of a residence.
- CN and NS, as a permanent solution and within (60) days of the date of this Order, to submit a joint relocation of NS diesel locomotives, including any other mitigation measures, all being satisfactory to the Agency, providing full particulars as to the alternatives considered and the proposed locations where these idling diesel locomotives are to be stored.
- CN and NS, unless otherwise directed by the Agency, to implement the joint relocation plan within thirty (30) days of the Agency's acceptance of the joint relocation plan.
- CN and NS to cooperate in the implementation of both the temporary measures and the joint relocation plan.
In its application for a stay, NS states that it is complying with the order and that it was prepared not to idle the engines for a period longer than 30 minutes as long as the weather allowed it. NS is therefore seeking a stay of the 30 minutes limitation in paragraph 1 of the order pending the hearing and disposition of the appeal by the Federal Court of Appeal.
NS has also filed, together with CN, and pursuant to clause 3 of the Order, a joint plan for the relocation of the locomotives in accordance with the time requirements of the Order. NS has filed this plan without prejudice to its rights to challenge the jurisdiction of the Agency to order it to file such a plan. NS is therefore seeking a stay of paragraph 4 of the Order requiring the implementation of the joint plan pending the disposition of the appeal by the Federal Court of Appeal.
To decide whether a stay should be granted, the Supreme Court of Canada developed a three-part test in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,  1 S.C.R. 110, affirmed in RJR - MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 312.
The first part of the test is whether there is a serious question to be tried. In RJR - MacDonald, supra, the Court held that there were no specific requirements to be met in order to satisfy this test, but that the threshold was a low one and entailed a preliminary assessment of the merits of the case. In the case before the Agency, NS submits that the Court of Appeal, in granting leave to appeal the Decision and Order of the Agency, recognized that NS has a prima facie case. NS adds that the Federal Court of Appeal has granted CN leave to appeal the same Order and Decision of the Agency on similar grounds and that it granted CN leave to appeal in a separate case involving CN's yard in Oakville. All three appeals deal inter alia with the Agency's jurisdiction to deal with noise complaints under section 95 of the Canada Transportation Act, S.C. 1996, c. 10 (hereinafter the CTA). In their answer to NS' application for a stay, the respondents Taylor expressed their concern that if the Agency did not have jurisdiction to deal with noise complaint then no other administrative body would be in a position to decide such issues.
The Agency is of the view that the issue of its jurisdiction in matters of noise complaints under section 95 of the CTA is a serious one. Furthermore, the Agency is also of the view that a decision by an appellate court to grant leave on an issue that goes to the heart of the Agency's jurisdiction and mandate under the CTA indicates that a serious question is raised. Accordingly, the Agency finds that NS has met the first part of the test.
The second part of the test is whether the litigant who seeks the stay would, unless the stay is granted, suffer irreparable harm. In RJR - MacDonald, supra, the Court held that, under this part of the test, the only issue to be decided is whether a refusal to grant the relief could so adversely affect the applicant's own interests that the harm could not be remedied if the eventual decision on the merits did not accord with the result of the interlocutory application. The Supreme Court held that "irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
The Agency is well aware that in a case such as the present one the examination of the second part of the test is closely related to the analysis of the third part of the test which is the balance of convenience test. At this stage, it is necessary to determine which of the two parties will suffer the greater harm from the granting or refusal of the request pending a decision on the merits. The factors to be considered vary in each individual case.
In its application, NS submits that if it is not granted a stay it will have to move its locomotives out of St. Thomas Yard, which would involve considerable cost to either lease or build new tracks as well as increase transportation and overtime costs for its crews. NS states that these costs would be unrecoverable if it succeeds in its appeal before the Federal Court of Appeal. Although the respondents Taylor did not discuss this part of the application, they did oppose the statements contained in the affidavit filed in support of NS' application for a stay.
Although NS has not provided any evidence as to the actual cost it would have to incur to relocate its locomotives, the Agency recognizes that NS will incur costs if it has to move its locomotives out of St. Thomas Yard, whether it leases the tracks or builds new ones. The Agency is of the view that those costs will likely be unrecoverable if the decision on the appeal of the case does not differ with the Agency decision.
In its original decision, the Agency found that the noise, vibration and diesel fumes emanating from NS idling locomotives are to some extent adversely affecting the respondents Taylor. Since the issuance of the order, however, the Agency takes note that during the summer months NS is in a position to comply with clause 1 of the Order. Indeed, NS has been complying with the order and is prepared not to idle the engines for a period longer than 30 minutes as long as the weather allows it. To grant the stay would continue the adverse effect on the respondents Taylor but this would be limited to the winter. The Agency is thus of the view that, on a balance of convenience, NS will suffer greater harm from the refusal of the stay application.
Accordingly, pending the disposition of the appeal before the Federal Court of Appeal, the Agency will grant a stay of clause 1 of the Order but only for the duration of the cold weather months, i.e. from October 1 to April 30 of each year, when it is necessary to idle the diesel locomotives for longer than 30 minutes. During the other months of the year, NS is to comply with clause 1 of the Order.
As a consequence, the Agency will not require NS to comply with clause 2 of the Order during the period of time clause 1 of the Order is stayed.
With respect to clause 4 of the Order, the Agency concludes, based on its previous findings, that the application of clause 4 may cause irreparable harm to NS in the event the decision of the Federal Court of Appeal differs with the Agency decision. Accordingly, the Agency grants a stay of clause 4 of the order until the Federal Court of Appeal renders a final decision on the appeal.
As with clause 2 of the Order, the Agency will not require NS to comply with clause 5 of the Order.
The Agency hereby:
- Grants, in part, NS' application for a stay;
- Stays the application of clause 1 of the Order during the cold weather months, i.e. from October 1 to April 30 of each year until the Federal Court of Appeal renders a final decision on the appeal;
- Relieves NS from complying with clause 2 of the Order during the period of time clause 1 of the Order is stayed;
- Stays the application of clause 4 of the Order until the Federal Court of Appeal renders a final decision on the appeal; and
- Relieves NS from complying with clause 5 of the Order until the Federal Court of Appeal renders a final decision on the appeal.