Letter Decision No. LET-R-37-2016

An Erratum was issued July 29, 2016

July 29, 2016

Application by the Corporation of the City of Cambridge (Cambridge) and the Corporation of the City of Kitchener (Kitchener) against the Canadian Pacific Railway Company (CP) pursuant to section 101 of the Canada Transportation Act, S.C., 1996, c.10, as amended (CTA) regarding the construction of an at-grade public crossing across CP railway track at about mileage 7.40 of the Waterloo Subdivision, Ontario; and pursuant to section 16 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA) regarding the apportionment of costs of the construction of that crossing.

Case number: 
15-03403

BACKGROUND

Cambridge, on behalf of itself and Kitchener (applicants), filed the above application with the Canadian Transportation Agency (Agency) on August 28, 2015.

The Agency opened pleadings on September 4, 2015, and provided CP until September 28, 2015 to file its answer to the application (answer).

On September 22, 2015, CP requested an extension of time until January 15, 2016, to file its answer. Subsequently, CP and the applicants agreed to several extensions of CP’s time limit to file its answer. On February 4, 2016, the Agency granted the most recent extension request, providing CP until March 1, 2016 to file its answer.

On February 26, 2016, CP filed a request pursuant to subsections 5(1), 15(1), 27(1) and (2), as well as 30(1) and (2), and section 6 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (SOR/2014-104) (Dispute Adjudication Rules) (Request), in which CP requests that the Agency:

  1. Grant an extension to CP’s March 1, 2016 filing deadline.
  2. Add parties to the proceedings, specifically:
    1. Intermarket Real Estate Group/lntermarket CAM (developer);
    2. The Regional Municipality of Waterloo (Waterloo); and
    3. Kitchener.
  3. Pursuant to section 25 of the CTA, order the applicants, the developer, and  Waterloo to produce the following documents relating to the crossing:

a. cost sharing agreements (item a);

b. engineering reports and/or crossing construction studies (item b);

c. vehicular traffic reports and /or vehicular traffic density studies (item c);

d. city or regional council minutes, resolutions or discussions relating to the Light Rail Transit (LRT) development (item d);

e. city or regional council approvals of the LRT development (item e);

f. consultations and/or reports (item f);

g. all documents referring to the “Cambridge Report” dated July 7, 2015 (item g); and

h. a list of all relevant materials not produced on account of confidentiality/privilege, which sets out the grounds for non-disclosure (item h).

4. “Reset the time limits and/or procedures”.

On March 1, 2016, the applicants filed their response to the Request. On the same day, the parties were informed that the Agency would be staying the proceedings, pursuant to section 41 of the Dispute Adjudication Rules, until such time that it has ruled on the Request.

On March 4, 2016, the developer and Waterloo filed their respective responses to the Request, which included requests for an award of costs against CP. On March 8, 2016, CP filed its reply to the respective responses of the applicants, the developer and Waterloo.

On June 17, 2016, the Agency issued a letter decision in which it found that CP had provided few particulars to identify the documents that CP seeks in the Request and directed it to provide greater particulars with respect to items b, c and g, and state which, if any, of those documents are already in its possession.

On June 22, 2016, CP filed an additional submission in response to the Agency’s June 17, 2016, direction (June 22 submission). On June 23, 2016, the applicants filed a response to CP’s June 22 submission.

1. CP’S REQUEST

Adding parties to the proceedings

CP submits that the developer should be a party to the proceedings because the crossing will provide public access to the developer’s property, and therefore, the developer stands to directly benefit from the crossing.

Furthermore, according to CP, Waterloo should be made a party to these proceedings because it also stands to benefit from the crossing. Specifically, the crossing will accommodate Waterloo’s future LRT “track sites”, which are expected to run parallel to CP’s track and cross at the proposed crossing.

The applicants, the developer and Waterloo oppose the Request.

In their February 29, 2016 submission, the applicants assert that the proper parties are before the Agency, and state that no other party is required to be added. With respect to Waterloo, the applicants argue that there is no “present clear connection” between the proposed crossing and Waterloo’s possible project. The applicants refer to Decision No. 22-R-2001 in support of their position. In that Decision, the Agency noted that any arrangement by either the road authority or the railway company with respect to the funding of their respective responsibilities at the crossing is a private matter.

The developer submits that it is not a necessary or proper party to the proceedings. The proposed crossing is a public crossing that will serve the much larger “East Side Lands”, broader municipalities, businesses and many interests. The developer contends that there is no basis for adding as parties to the proceedings all landowners, businesses, lenders, individuals and other persons who might benefit from a public crossing. Additionally, the developer and the applicants have established private arrangements for cost apportionment and there is no basis for doubling the potential cost to the developer and other landowners by making them a party to the proceedings.

According to Waterloo, the Request is based on an incorrect statement that “the crossing will accommodate Waterloo’s future LRT track which will run parallel to CP’s track and will cross at the Crossing”. Waterloo asserts that there is no governmental funding commitment for Stage 2 of the LRT project, and that without funding, the LRT project will not proceed. Furthermore, the proposed track to which CP refers is one of two main routes that are being considered.

The Agency notes that Waterloo’s alleged interest in the proposed crossing would be based on the LRT project, which is currently a hypothetical undertaking. As such, the Agency finds that the proposed LRT project is not material to the resolution of this dispute.

In their application, the applicants state that they seek a road crossing with “the public assumption of the roadway being developed on either side of the crossing”. The Agency notes that the applicants’ position in relation to the Request implies that any costs of constructing or maintaining the road crossing that derive from the need for the applicants to provide access for the public, including the business park users, will necessarily be apportioned to the applicants in accordance with subsection 16(4) of the RSA. As such, the Agency finds that the principles outlined in Decision No. 22-R-2001 apply, by analogy, to the matter at issue in this case. The Agency is of the opinion that any arrangement by the applicants and the developer with respect to the funding of the applicants’ respective responsibilities at the crossing is not material to the resolution of this dispute.

In light of the above, the Agency is of the opinion that CP has failed to establish that the addition of the developer and Waterloo as parties to the dispute is necessary to enable the Agency to adjudicate on the matters raised in the application.

Finally, the Agency notes that Kitchener, as a co-applicant, is already a party to the proceedings.

Accordingly, the Agency dismisses the Request with respect to this matter.

Production of documents

In support of its Request, CP states that “CP has been working at an informational deficit with respect to the involvement of the different Relevant Parties and their respective plans for the crossing, present or future”.

According to the applicants, the Request is “unnecessary, untimely, and improper” and “lays out a long and general list of materials”. Furthermore, the applicants assert that “the particulars” sought by CP in its June 22, 2016 submission do not reasonably relate to the application.

According to Waterloo, the documents sought by CP in relation to Waterloo and the LRT are already in CP’s possession or are publically available.

The developer agrees with the applicants’ submission dated March 1, 2016.

The Agency, when determining whether it should grant the Request, must consider whether the information requested is relevant and whether it will further the proceeding before the Agency.

On the issue of relevancy, the Supreme Court of Canada indicated that “the relevance of evidence is tested by reference to what is in issue.” The Court indicated that “the trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight” (Lax Kw’alaams Indian Band v. Canada (A.G. of Canada) (2011), 3 S.C.R. 535, at para. 41).

In this case, the Agency is seized with an application pursuant to section 101 of the CTA, for the construction of a suitable road crossing; and pursuant to subsection 16(4) of the RSA, for the apportionment of costs of the construction of that crossing. The Agency is of the opinion that the pleadings process should not be unduly extended to allow parties to pursue matters that are of limited usefulness to the determination to be made by the Agency.

Regarding Waterloo and the developer, respectively, the Agency has found above that the proposed LRT project, as well as funding arrangements with respect to the applicants’ responsibilities, are not material to the resolution of this dispute.

The Agency also notes that, in general, the Request, the reply, and the June 22 submission lack specificity in that they fail to identify the specific information CP seeks to access and/or its relevancy in relation with the proceedings.

While a party may seek the production of relevant information, a party cannot embark on a fishing expedition. In this context, the Agency finds that CP has failed to establish how the information requested with respect to items A and B, as well as D to H, is relevant and will further the proceeding before the Agency. Therefore, the Agency dismisses the Request with respect to items A and B, as well as D to H.

With respect to item C, the Agency is of the opinion that data regarding the proposed feeder road for the development in the vicinity of Mileage 7.4, including the contemplated closure of the crossing at Riverbank Drive, may be relevant in assessing the suitability of the proposed crossing with the closure of the Riverbank Drive crossing.

Therefore, the Agency orders the applicants to confirm whether there is an existing traffic impact study or report on the Riverbank Drive crossing, and if one does exist, to file it with the Agency by 5:00 p.m. Gatineau local time on August 5, 2016 with a copy to CP.

Extension of time

On March 1, 2016, the parties were informed that the Agency would be staying the proceedings, pursuant to section 41 of the Dispute Adjudication Rules, until such time that it has ruled on the Request. The Agency also stated that CP is therefore not required to file its answer until further notice.

CP will have until 5:00 p.m. Gatineau local time on the tenth business day after the date of receipt of the applicants’ submission on the Riverbank Drive Crossing to file its answer to the application, and to provide a copy to the applicants. The applicants will then have five business days from the receipt of CP’s answer to file their reply, and to provide a copy to CP.

2. COSTS

Waterloo and the developer seek their costs with respect to the Request. According to Waterloo, the Request constitutes an abuse of process, and Waterloo has expended considerable time and cost to respond to the Request. Similarly, the developer states that it should be awarded costs for having to respond to the Request.

The Agency’s practice is to award costs only in special or exceptional circumstances. The Agency finds that this case does not meet those special or exceptional circumstances and therefore dismisses the requests for an award of costs.

3. OTHER MATTERS

The Agency notes that two links to documents have been provided to the Agency as part of the applicants’ application in lieu of filing an “Appendix 2” with the Agency. As such, the documents referred to in Appendix 2, the East Side Lands Final Draft Master Environmental Servicing Plan and the Transportation System Assessment, do not form part of the file for these proceedings.

The Agency orders the applicants to file the documents referred to in Appendix 2 with the Agency by 5:00 p.m. Gatineau local time on August 5, 2016 with a copy to CP.

Member(s)

William G. McMurray
Stephen Campbell
P. Paul Fitzgerald
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