How to apply for level of service arbitration
If you're not sure if you should file a submission for arbitration under section 169.31 of the Canada Transportation Act, these steps can help:
Before filing a submission
Step 1: Attempt to resolve the issues directly with the railway company
As part of your submission for arbitration, you will need to prove that you attempted to negotiate a contract and resolve all the matters in your submission.
The Agency can only arbitrate matters that a shipper has attempted to resolve.
You should make specific requests to the railway company about your specific level of service needs. You should discuss or negotiate these needs – or at least attempt to.
If you can't prove that you attempted to resolve all the issues, your submission may be dismissed.
How to prove that an attempt has been made to resolve the matters
What constitutes “an attempt to resolve matters” will be determined on a case by case basis.
Evidence of an attempt to resolve matters could include e-mails, letters or exchanges of correspondence, and minutes from meetings that were held.
Unlike submissions on rail noise and vibration, submissions for rail level of service arbitration will be accepted even if all other avenues of dispute resolution have not yet been exhausted.
Attempts must be made to resolve all matters with the railway company. New matters that have not been previously raised with the railway company are not eligible for arbitration.
Subsections 126(1.1) to (1.5) of the Canada Transportation Act set out a process for negotiating a level of service agreement. However, this process is not mandatory. An attempt to resolve the issues can include any process used by a shipper to attempt to negotiate a level of service agreement with a railway company.
Using a representative: A third party represent can represent a shipper and attempt to negotiate with a railway company on its behalf to arrive at a level of service agreement.
In this case, there must be evidence that the third party is representing an identified individual shipper and that the specific matters to be negotiated are for that same shipper.
Step 2: Provide notice of your intent to arbitrate
You must send a written notice to the Agency Secretariat and the railway company indicating that you intend to file a submission for arbitration.
The notice must be provided at least 15 days in advance of your submission. During this period, you have the option of continuing negotiations.
Your notice needs to include:
- a brief description of the matters you will submit to the Agency for arbitration;
- a description of the traffic to which the service obligations relate; and
- an undertaking with respect to the traffic or an operational term (if applicable).
See subsection 169.33(2) for more information.
How to file a submission
If you have attempted to resolve the issue and provided notice at least 15 days ago, then you can file a submission for arbitration.
Your submission for arbitration must contain:
- a detailed description of the matters being submitted for arbitration, as set out in subsection 169.33(1); and,
- evidence that an attempt has been made to resolve each of the matters submitted for arbitration.
Your submission should be sent to the Agency Secretariat and the railway company at the same time.
What happens next?
The Agency will review your submission.
A submission can be dismissed, in part or in whole, if you have not:
- provided written notice of your intent to arbitrate;
- provided a detailed description of the matters being submitted; or
- demonstrated to the Agency's satisfaction that an attempt has been made to resolve the matters contained in the submission.
The railway company has 10 days to file an objection to the application.