Decision No. 107-R-2012

INTRODUCTION

[1] On July 4, 2008, the Quayside Community Board (QCB) filed a complaint with the Canadian Transportation Agency (Agency), pursuant to section 95.1 of Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against the Canadian National Railway Company (CN), the Canadian Pacific Railway Company (CP), the BNSF Railway Company (BNSF) and Southern Railway of British Columbia (SRY), concerning noise and vibration arising from operations at the New Westminster Yard.

[2] The case was referred to mediation. The parties entered into an Agreement to Mediate dated December 9, 2008 (Agreement to Mediate) and mediation took place on December 9 and 10, 2008. On December 10, 2008, following the mediation, the parties entered into a Settlement Agreement. On that same date, the parties filed a Disposition Statement with the Agency. Both documents were signed by representatives of QCB, the railway companies and the City of New Westminster (City). The Disposition Statement was also signed by the Agency-appointed mediators.

[3] On April 13, 2010, Matthew Laird, President of QCB at that time, filed a second complaint and stated that the mediated solution had failed. He attached the July 4, 2008 complaint to the second complaint and requested the specific relief that was sought in the original complaint. CN, BNSF and SRY responded that a valid agreement had previously been entered into by the parties on the subject matter of the second complaint and, therefore, the Agency could not adjudicate the matter.

[4] In Decision No. LET-R-152-2010, the Agency determined that the Settlement Agreement entered into at the completion of the successful mediation was not an Agency order, nor did it constitute a consent order or judgment. In addition, the Agency found that, in the absence of a final order, or judgment on consent or otherwise of the Agency in exercise of its jurisdiction under section 95.3 of the CTA, there was no basis upon which to assert that it was barred from hearing the second complaint on the basis of issue estoppel, or that the Agency was functus officio. The Agency also found that it could adjudicate the second complaint as the complaint did fall within the ambit of section 95.1 of the CTA.

[5] Subsequent to that Decision, CN, CP and BNSF (railway companies) filed an appeal with the Federal Court of Appeal. On September 28, 2011, the Federal Court of Appeal, in Decision 2011 FCA 269 (FCA Decision), set aside the Agency Decision and returned the matter to the Agency to determine whether “the settlement agreement was intended to finally resolve the issues raised in the first complaint. If so, given the finding of the Agency that the two complaints are ‘virtually identical’, the Community Board will be precluded from relitigating those issues before the Agency.”

[6] In response to this direction, the Agency issued Decision No. LET-R-108-2011 dated October 20, 2011 seeking comments from the railway companies and QCB on whether the Settlement Agreement was intended to finally resolve the issues raised in the first complaint. In Decision No. LET‑R‑135‑2011 dated December 16, 2011, the Agency sought comments from the City on the same issue, as it was a signatory to the Settlement Agreement.

PRELIMINARY MATTERS

Request for withdrawal from Matthew Laird

[7] On January 18, 2012, correspondence was received from Mr. Laird. He requested that he be removed from any correspondence or involvement with this ongoing process. He copied the railway companies, QCB and the City on this request. No further comments on this matter have been received to date. Mr. Laird stated that he has not been involved with the QCB for well over a year. He added that he is in the process of moving out of New Westminster and therefore is no longer a stakeholder in this complaint.

Agency analysis and finding

[8] Section 31 of the Canadian Transportation Agency General Rules, SOR/2005-35 (General Rules) states that:

1. A party may, on notice filed with the Agency, withdraw an application or other pleading, or discontinue participation in a proceeding, at any time before its final determination.
2. The party shall serve a copy of the notice of withdrawal or discontinuance on the other parties.
3. On receipt of a notice of withdrawal or discontinuance, the Agency may fix any terms and conditions to the withdrawal or discontinuance, including costs, that it considers appropriate.

[9]  The Agency notes that the FCA Decision specifically names Mr. Laird as one of the respondents in this case. However, he is not specifically mentioned anywhere in the text therein. The Federal Court of Appeal consistently refers to the Community Board and not its individual representatives.

[10]  The Agency also notes that in its own correspondence and pleadings in this case, it too has referred to the applicant as QCB, and not any particular representative. Given that representatives of community boards are not bound to those positions indefinitely, that James Crosty has identified himself as the current representative of QCB, and taking into account that Mr. Laird states that he is no longer a stakeholder in this case, the Agency finds no reason to keep Mr. Laird as a party to this proceeding.

[11]  The Agency finds it appropriate to accept Mr. Laird’s withdrawal notice with no terms or conditions, including no costs.

Objection filed by the railway companies

Positions of the parties

[12] The railway companies object to Decision No. LET-R-135-2011 wherein the Agency asked for comments from the City, as a party to the mediation and a signatory to the Settlement Agreement, on the direction to the Agency from the Federal Court of Appeal. The railway companies state that it is beyond the jurisdiction of the Agency to solicit submissions from the City, which was not a party to either the first or second complaint filed with the Agency. Further, the railway companies state that the time for filing submissions expired, and that neither QCB nor the railway companies requested the Agency to seek a submission from the City.

[13] The railway companies submit that under the Agency’s enabling legislation, no general power is afforded to the Agency to undertake an investigation in connection with making a determination on the matter before it. The railway companies argue that, in seeking evidence, documents, materials or submissions from third parties, the Agency is purporting to exercise a right to conduct its own investigation on the matter rather than to confine its deliberations to the evidence of the parties before it whose rights the Agency has been directed to determine by the Federal Court of Appeal.

[14] The railway companies further assert that under section 18 of the General Rules, the section pertaining to requirement for additional information, there is no provision to seek evidence, documents, material or submissions from third parties in connection with a matter before the Agency, especially where there is a lis inter partes (a dispute between parties) and the Agency is exercising its adjudicative powers.

[15] The railway companies also state that there was no basis for the Agency to afford the City a final (or any) right of reply as there is no dispute between the parties and the City. As such, the railway companies request that the Agency withdraw Decision No. LET-R-135-2011 and ignore the City’s submissions.

[16] The City disagrees, stating that as a signatory to the Settlement Agreement, clearly it is a party to it and this has been recognized by the Federal Court of Appeal in paragraph 5 of its Decision to refer this matter back to the Agency wherein it specifically lists the City as a party in respect of the Settlement Agreement. The City states that nowhere in the FCA Decision is there direction from the Federal Court of Appeal that the Agency could only consult the railway companies and QCB in making its determination.

[17] No comments were received from QCB on this matter.

Agency analysis and finding

[18] The Agency does not agree with the railway companies’ position that the Agency had no authority to seek comments from the City. The railway companies take an overly narrow view of the Agency’s powers in considering a matter before it. While the General Rules do not specifically address the Agency’s powers to seek information from a third party, the absence of a specific applicable rule does not constitute a limit to the Agency’s procedural powers. This is specifically noted in section 3 of the General Rules, which states:

1. When the Agency is given a discretion under these Rules, it shall exercise the discretion in a fair and expeditious manner.
2. The Agency may, with or without notice,
1. do whatever is necessary to deal with anything that is not covered by these Rules; or
2. do anything prescribed in these Rules on its own, even if the Rules state that a party must make a request or motion to the Agency.

[19] Moreover, as stated in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, administrative bodies like the Agency are masters of their own procedures. In addition, the Supreme Court of Canada stated the following in Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 with respect to the powers of adjudication:

In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.

[20] While the City was not a party to the complaint that led to the decision appealed to the Federal Court of Appeal, the Agency is of the opinion that it was important to provide the City with an opportunity to comment on the question before the Agency. The City took part in the mediation process and was a signatory to the Settlement Agreement such that, in the Agency’s opinion, the City’s perspective on whether the Settlement Agreement was intended to be final and binding was important to consider in the Agency’s deliberations. Moreover, as a party to that Agreement, the City may be affected by the Agency’s decision.

[21] With respect to the railways companies’ claim that the City should not have been afforded a right to reply, the Agency is of the opinion that providing a right of reply allows for a thorough consideration of matters at issue and is fully consistent with principles of fairness and natural justice. In any case, at their request, the Agency provided the railway companies with a further opportunity to respond to the City’s submissions.

[22] Therefore, the Agency, pursuant to section 3 of the General Rules, finds that it did have jurisdiction to seek comments from the City. Consequently, the Agency will accept those comments and use them in its consideration of this matter.

Confidentiality

[23] The railway companies, pursuant to section 23 of the General Rules, made a claim for confidentiality relating to those clauses of the Settlement Agreement under the heading “Terms of Agreement and Implementation Schedule.” Reasons given by the railway companies for this claim are: the signatories to the Settlement Agreement specifically agreed that it was confidential; the portions of the Settlement Agreement that are confidential are not relevant to any matter before the Agency; disclosure of the Agreement could interfere with current negotiations between the railway companies and other parties pursuant to section 95.3 of the CTA; and negotiating positions of the railway companies could be revealed to parties of other potential complaints pursuant to section 95.3 of the CTA.

[24] QCB objects to the claim for confidentiality of the Settlement Agreement. QCB points out that there is no information in the Settlement Agreement that has not already been the subject of public disclosure in either the Federal Court of Appeal, the Agency defense or through correspondence approved by the railway companies for public release. Furthermore, QCB indicates that it is those very portions of the Settlement Agreement for which the railway companies claimed confidentiality that clearly show that there was only a partial settlement.

Agency analysis and finding

[25] The Agency, pursuant to subsection 24(4) of the General Rules, finds that the full document is relevant to the extent that its intent is the focus of this proceeding. The railway companies’ concern is not that the Settlement Agreement not be considered by the Agency but that the terms of the Settlement Agreement be kept confidential and not be placed on the public record. The Agency also notes that subsection 36.1(4) of the CTA requires that “all matters relating to the mediation of a dispute shall be kept confidential”. Therefore, those clauses of the Settlement Agreement under the heading “Terms of Agreement and Implementation Schedule” will not be placed on the public record but will be maintained in confidence. However, to address an apparent concern of QCB, the Agency confirms that it has reviewed the entire Settlement Agreement in making its decision in this matter.

ISSUE: WAS THE SETTLEMENT AGREEMENT INTENDED TO FINALLY RESOLVE THE ISSUES RAISED IN THE FIRST COMPLAINT?

[26] In accordance with the directions of the Federal Court of Appeal in the FCA Decision, the Agency must determine whether the Settlement Agreement was intended to finally resolve the issues raised in the first complaint.

Positions of the parties

The railway companies

[27] The railway companies indicate that this is a judicial matter and, as such, the Agency’s decision must be based on findings of fact and the application of objective legal standards to those facts.

[28] The railway companies submit that based on contract interpretation, the Agency must focus both on the factual matrix or factual circumstances surrounding the parties, and the legal effect of the circumstances which is a question of law. The railway companies support this argument by citing Petty v. Telus Corp., 2002 BCCA 135 (Petty v. Telus Corp.) as an example of how the Agency should approach the matter before it. In that case, the Court stated that: “The question is what the parties intended by the language of the agreement, viewed objectively, in the circumstances in which the agreement was made.”

[29] The railway companies argue that the Agreement to Mediate, the Settlement Agreement and the Disposition Statement are conclusive factual evidence that the parties intended to create legal relations and finally resolve the complaint. The railway companies state that QCB did not indicate any other intent when those documents were signed.

[30] The railway companies submit that the Settlement Agreement states that it “documents the terms of agreement reached during the mediation session held between the parties [...] in the matter of a dispute concerning noise [...]” and therefore is defined by the parties as an agreement, not merely as a memorandum or statement of principles or guidelines. As such, the railway companies argue that the express terms of the Settlement Agreement confirm that the parties actively applied themselves to crafting a comprehensive solution to resolve the first complaint.

[31] The railway companies state that in the Settlement Agreement, the parties were specifically asked to specify the “issues that have been resolved and any outstanding issues should be clearly identified and itemized here, as well as on the Disposition Statement.” The railway companies submit that the collective response was “not applicable” because all issues, in the minds of the parties, were fully resolved.

[32] The railway companies provide several arguments in relation to their understanding of facts surrounding the mediation process. They submit that as per the wording of the Agreement to Mediate, the parties agreed:

• to negotiate in the mediation process in good faith with a concerted effort to resolve the dispute;
• that the role of the mediators was defined and the common purpose of the mediation was recorded as being to work “[...] towards reaching a solution to the dispute in question [...]”;
• that the parties and their representatives had status in that they were required to be “[...] duly authorized to negotiate and enter into an agreement [...]” which was to resolve the complaint; and,
• that the “[...] process of mediation will continue until a negotiated settlement is reached [...]”.

[33] The railway companies submit that the parties expressly confirmed that the Disposition Statement was, in itself, an agreement. They state that the parties declared in the Disposition Statement their agreement that the “parties and the mediator negotiated in the mediation process in good faith and (had) [...] fully [...] resolved the aforementioned dispute to the satisfaction of the parties. The (parties) also consent to the closing of the (Agency’s) file regarding the formal application before the (Agency).”

[34] The railway companies state that the agreement was recorded in the Disposition Statement and “was communicated to the Agency as being both an agreement and the agreement between the parties and was intended, on any objective analysis, to be acted upon not only by the parties themselves, but by the Agency as well.” The railway companies also submit that after the mediation, no further steps were taken by QCB to continue a formal adjudication of the first complaint and a letter from the Agency dated December 17, 2008 advised the parties that the mediators “have informed me that the matter has been resolved to the satisfaction of the parties.” The railway companies argue that none of the parties objected to or took issue with this statement, which indicates that, in the minds of the parties, an agreement was reached and fully resolved the first complaint.

[35] The railway companies further state that QCB’s views and understandings with respect to the Settlement Agreement are matters that may not be considered by the Agency. The railway companies add that the spirit and intent of the Settlement Agreement alluded by QCB is not found in the express terms of the Settlement Agreement or any of the associated documents. The railway companies state that whatever any of the parties might have thought, hoped or expected from the Settlement Agreement is not, as a principle of law, a matter the tribunal can take into account when formulating its answer to the question posed by the Federal Court of Appeal.

[36] The railway companies state that the overarching purpose of the mediation process in which the parties engaged was to reach an agreement to resolve the first complaint, and that purpose was met.

Quayside Community Board

[37] QCB is of the opinion that the Settlement Agreement should not be considered a final binding agreement that prevents a hearing and resolution of its complaint.

[38] QCB submits that the Federal Court of Appeal presented the question of whether the Settlement Agreement fully resolved the complaint in a very broad form. QCB argues that the question provides an opportunity to consider a much broader picture of the events leading up to the Settlement Agreement and the railway companies’ subsequent performance. QCB adds that providing a narrow view, which focuses on the language of the Settlement Agreement, would ultimately work to frustrate the intent and spirit of the legislation governing public complaints under the CTA.

[39] Furthermore, according to QCB, Petty v. Telus Corp. speaks to not what one or other of the parties meant, but “the meaning which the document would convey to a reasonable person” which goes to the heart of the Settlement Agreement, which QCB considers to be a fluid document and not a final agreement, but a collaborative approach.

[40] The Settlement Agreement, from QCB’s perspective, was not a final resolution to the complaint, but formed part of the Agency’s dispute resolution process which, if not implemented by the railway companies, would lead to a formal Agency investigation and adjudication.

[41] In QCB’s view, the Settlement Agreement “form,” in the context of collaborative measures, was not a legal contract ending any opportunity for a complaint to be investigated, but a “documented collaborative measure” wherein the railway companies and QCB made promises and agreed to perform specific tasks at specific times. However, QCB also states that it understood that “on the condition that the rail companies and the QCB honoured all of the commitments contained in the agreement we would have resolved the complaint.”

[42] QCB states that it understood the Settlement Agreement to be more of a “conditional understanding.” QCB adds that it felt that the railway companies would have to find solutions in a reasonable time period on the issue of night time operations and complaint resolution mechanisms – the simple reasons for the mediation.

[43] In response to the railway companies’ claim that no outstanding issues were identified in the Settlement Agreement because the words “not applicable” were inserted in the section for identifying such issues, QCB claims that this is clearly incorrect as there were many “outstanding issues to be addressed and actions requiring implementation.”

[44] QCB states that the Disposition Statement was “characterized at the last minute as merely an administrative document, not as a document that would forever close the complaint when the Settlement Agreement included specific performance clauses.”

[45] QCB is of the opinion that the mediation process was part of the collaborative measures required by the Agency in order for a formal complaint to be processed and that this is outlined in the Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration (Guidelines). QCB notes that the Guidelines state that “mediation is a more structured and managed process” wherein the parties meet to resolve disputes in a non-adversarial and non-litigious manner. QCB argues that this indicates that the underlying goal of mediation is a collaborative approach to finding an informal way to achieve the goals of both parties.

[46] QCB asserts that the Guidelines outline the procedure to be followed and make it very clear: “The Agency will only conduct an investigation or hear a complaint once it is satisfied that the parties have tried and exhausted the collaborative measures set out above.”

[47] QCB states that it was its understanding that entering into the Agency’s “collaborative measures process” was only the first step in the Agency’s process to proceed with a formal investigation and make a formal adjudication. QCB agreed to participate in the Agency mediation as, on its own, it was not able to bring all the stakeholders together in one room to resolve the noise issue.

[48] QCB asserts that without any doubt it wanted to find a resolution to a problem. QCB agrees that the parties met to find a resolution about noise and vibration. However, QCB argues that the Settlement Agreement provided for further action and review, so it would be impossible to consider the issue fully resolved. QCB states that this is evidenced by a railway company bulletin issued as part of the Settlement Agreement which states: “It was further agreed that this responsibility would be temporary as a more desirable solution is being worked out.” This, QCB argues, clearly demonstrates that the Settlement Agreement was a fluid document and not a final agreement.

City of New Westminster

[49] The City states that the railway companies have taken a very narrow position in their initial submissions.

[50] While the City recognizes that the question posed by the Federal Court of Appeal is not whether the parties are performing their obligations under the Settlement Agreement, the City submits this fact is relevant to answering the question posed by the Court.

[51] The City submits that the Settlement Agreement was intended to finally resolve the issues between the parties, assuming that the parties met their obligations under the Settlement Agreement. The City also submits that if QCB is correct that the railway companies have breached the Settlement Agreement, the only conclusion to be drawn is that the original complaint remains unresolved.

[52] Further, the City challenges the railway companies’ argument that if QCB claims that the railway companies have breached the terms of the Settlement Agreement, QCB cannot seek redress from the Agency or the Federal Court of Appeal. The City argues that this approach would render the mediation process meaningless as there would be no effective way to address a situation in which a party to a mediation settlement agreement chooses not to meet its obligations. The City states that no party would ever agree to mediation if there was not an effective way to ensure that the other party meets its obligations under any settlement agreement reached at mediation.

[53] The City points out that if QCB were to file the Settlement Agreement with the Agency in accordance with subsection 36.1(7) of the CTA, the Agency would have the power to enforce the Settlement Agreement as though it were an order of the Agency. In this regard, the City submits that under section 25 of the CTA, the Agency has the general power to enforce its orders and subsection 33(4) of the CTA allows the Agency to enforce one of its own orders.

Agency analysis and findings

[54] In spite of their differing positions, the parties each indicate in some form that the Settlement Agreement was intended to resolve the complaint before the Agency.

[55] The railway companies point to the Agreement to Mediate, the Settlement Agreement and the Disposition Statement, as well as subsequent conduct by QCB, and argue that upon an objective analysis of these documents and the surrounding circumstances, the Settlement Agreement was clearly intended to finally resolve the issues raised in the first complaint.

[56] QCB submits that the Settlement Agreement merely formed part of the Agency’s collaborative measures process, which QCB saw as a first step towards a formal Agency investigation and adjudication. However, QCB also states that it understood that “on the condition that the rail companies and QCB honoured all of the commitments contained in the agreement we would have resolved the complaint.” QCB further indicates that it “wanted to find a resolution to a problem. The parties met to find a resolution about noise and vibration.” For its part, the City states that the Settlement Agreement “was intended to finally resolve the issues between the parties assuming that the parties met their obligations under the Settlement Agreement.”

[57] There are a range of possible forms and results of mediation. Indeed, mediation agreements may partially resolve a complaint, they may be formal or informal, and they may be temporary or permanent. In all cases, it is the parties who must determine and define the nature and effect of any understanding that is reached.

[58] Importantly, in this case, the question that the Federal Court of Appeal posed and that the Agency must address was not whether the issues had been resolved, but whether “the settlement agreement was intended to finally resolve the issues raised in the first complaint.” In this particular case, it is the Agency’s opinion that the relevant documents to be considered in addressing that question include not only the Settlement Agreement, but the Agreement to Mediate and the Disposition Agreement. The Agency is also of the opinion that when these documents are read together objectively, on a balance of probabilities, they were intended to finally resolve the issues raised in the first complaint.

[59] The Agency agrees with the railway companies that the wording in the Agreement to Mediate, which was signed by all the parties, indicates that the parties, through the mediation process, had the intention of resolving the issues raised in the first complaint. The Agreement to Mediate states that the parties intended “to negotiate in the mediation process in good faith with the concerted effort to resolve the dispute.”

[60] No party has claimed that, going into the mediation process, their intention was anything but to resolve the issues. On the contrary, the parties have stated that the resolution of the complaint was their objective.

[61] The Settlement Agreement was signed by all parties to the mediation and no party informed the Agency, prior to the filing of the second complaint 18 months later, that not all the issues had been resolved through the mediation as reflected in the Settlement Agreement.

[62] The Settlement Agreement contains specific terms and an implementation schedule that outline the parties’ respective obligations in relation to the noise complaint filed on behalf of QCB.

[63] The only comment in the non-confidential section of the Settlement Agreement headed “Agreement pertaining to administrative items” was “not applicable,” even though it was clearly stated that “issues that have been resolved and any outstanding issues should be clearly identified and itemized here, as well as on the Disposition Statement.”

[64] The Disposition Statement clearly states that the parties “chose mediation as the dispute resolution mechanism” and “have fully resolved the aforementioned dispute to the satisfaction of all parties.” The Disposition Statement also states that the parties consented “to the closing of the [A]gency’s file regarding the formal application before the [A]gency.”

[65] The Agency is of the opinion that whether the Settlement Agreement and Disposition Statement are viewed as administrative in nature, as argued by QCB, or not, as argued by the railway companies, by signing those documents, the parties were expressing their commonly shared view that the dispute had been fully resolved to their satisfaction. The Agency notes QCB’s concern about the process that led to those documents being signed. However, in the absence of fraud or undue influence, the Agency must determine the intention of the parties primarily as expressed in the documents that were signed at the completion of the mediation process.

[66] With respect to the position taken by QCB and the City that the Settlement Agreement would finally resolve the complaint only if the parties met their obligations under the Settlement Agreement, the Agency is of the opinion that this is an issue of compliance with, and enforcement of, the Settlement Agreement. The question referred to the Agency by the Federal Court of Appeal does not relate to whether the parties have complied with the Settlement Agreement, but rather whether the intention of the parties, in signing the Settlement Agreement, was to resolve the issues raised in the first complaint.

[67] The Agency is of the opinion that the concerns of both QCB and the City as expressed throughout this proceeding have been more directed at their common view that the railway companies have not complied with the terms of the Settlement Agreement. The Agency agrees with the railway companies that this confuses the concept of facts pertaining to the binding nature of the Settlement Agreement with the performance of the Agreement. Whether the terms of the Settlement Agreement have been met is not the question that the Federal Court of Appeal directed the Agency to address.

[68] The Agency finds that QCB’s claim that the Settlement Agreement was a “conditional understanding” is more properly related to enforcement. The validity of any contract is generally conditional on each party performing what it has agreed to do and an alleged non-performance does not speak to the intent of the Settlement Agreement.

[69] The City also challenges the railway companies’ argument that if QCB claims that the railway companies have breached the terms of the Settlement Agreement, QCB cannot seek redress from the Agency or the Federal Court of Appeal. The City argues that this approach would render the mediation process meaningless as there would be no effective way to address a situation in which a party to a mediation settlement agreement chooses not to meet its obligations. The City states that no party would ever agree to mediation if there was not an effective way to ensure that the other party meets its obligations under any settlement agreement reached at mediation.

[70] However, the City answers its own concerns on that point by indicating that QCB does in fact have options. It states that under section 25 of the CTA, the Agency has the general power to enforce its orders:

The Agency has, with respect to all matters necessary or proper for the exercise of its jurisdiction, the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders or regulations and the entry on and inspection of property, all the powers, rights and privileges that are vested in a superior court.

[71] The City further states that if QCB were to file the Settlement Agreement with the Agency in accordance with subsection 36.1(7) of the CTA, the Settlement Agreement would be enforceable as if it were an order of the Agency.

[72] Furthermore the City states that subsection 33(4) of the CTA allows the Agency to enforce one of its own orders:

The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action.

[73] The Agency can clarify that, to date, none of the parties have taken steps to file the Settlement Agreement with the Agency to make it an order of the Agency or to have it enforced. The Agency agrees that these are options available to the parties with respect to the question of enforcement. The Agency also refers to subsection 33(1) of the CTA which indicates the manner in which an Agency order may be made an order of the Federal Court or of any superior court which is then “[...] enforceable in the same manner as such an order.”  

CONCLUSION

[74] The Agency finds that the Settlement Agreement was intended to finally resolve the issues raised in the first complaint. Therefore, QCB is precluded from relitigating those issues before the Agency.