Decision No. 14-R-2024

Summary

[1] CN filed an application with the Canadian Transportation Agency (Agency) pursuant to section 32 of the Canada Transportation Act (CTA), to review and vary Decision 118‑R‑2023 (Initial Decision). CN also filed a request for confidentiality regarding details of its internal operations and a request to stay the Initial Decision.

[2] In this decision, pursuant to section 32 of the CTA, the Agency addresses whether there has been a change in the facts or circumstances pertaining to the decision that was not discoverable at the time of the initial hearing. The Agency will then address procedural requests filed by both parties.

[3] For the reasons set out below, the Agency:

• dismisses CN’s application;
• will not consider CN’s request to stay the Initial Decision as the issue is moot;
• denies its request for confidentiality; and
• removes the documents marked as confidential from the record as they are not relevant, and maintains only the redacted versions on the public record.

[4] For the reasons set out below, the Agency denies the Rural Municipality of Headingley’s (RM) requests that the Agency award costs. Additionally, in light of the Agency finding that the Initial Decision stands, there is no need to proceed with the consideration of RM’s various requests that the Agency:

• coordinate with the Minister of Transport (Minister) any conditions that may be deemed appropriate;
• either reconfirm the December 2024 deadline ordered in the Initial Decision or provide a new deadline;
• appoint a compliance officer to ensure that CN complies with the authorization of the crossing;
• require CN to be granted leave from the Agency before commencing with further applications in respect of the Initial Decision; and
• set aside the cost apportionment allocation in order to permit the RM to seek contribution from CN.

Background

[5] On August 2, 2023, the Agency issued the Initial Decision, which authorized the construction and maintenance of the RM’s proposed at-grade crossing at mile point 10.7 of CN’s Rivers Subdivision (Crossing), pursuant to subsection 101(3) of the CTA.

[6] On December 22, 2023, CN filed its application to review and vary the Initial Decision on the grounds that the operational impact of the revised Duty and Rest Period Rules for Railway Operating Employees (DRPR) constitutes a change in the facts or circumstances that warrants a review and reconsideration of the Initial Decision.

[7] On February 28, 2024, the Agency issued Decision LET-R-11-2024 where it advised the parties that an application under section 32 of the CTA is subject to a two-part test. The Agency opened pleadings on the first part of the test, namely, whether CN has met the burden to demonstrate that there has been a change in the facts or circumstances pertaining to the Initial Decision. The Agency also deferred pleadings on CN’s request for confidentiality until pleadings opened on the second part of the test, if applicable.

The two-part test under section 32 of the CTA

[8] The Agency must first determine if there has been a change in the facts or circumstances pertaining to the decision that was not discoverable at the time of the initial hearing. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in the facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

Part one of the two-part test

Submissions

[9] CN submits that regardless of what the anticipated potential impact of the revised DRPR had on the Crossing, the actual impact of the revised DRPR was not discoverable until the end of October 2023.

[10] CN states that it is statutorily obligated to comply with the DRPR, which was established under section 19 of the Railway Safety Act. CN submits that the revisions to the DRPR that came into effect on May 25, 2023, caused a more serious impact on its operations than what it had anticipated. It argues that the impacts related to the implementation of the revised DRPR will seriously affect CN’s operations if the Crossing is constructed. These impacts include reduced maximums on on-duty time, increased minimum rest periods and introduced reset breaks, all of which result in more frequent crew changes and overall reduced crew availability. Additionally, if the Crossing is constructed, the time necessary for dividing the trains to stage them on a shorter section of track will also count against the maximums on on-duty time.

[11] CN submits that it only became aware of the negative operational impact of the revised DRPR after the Initial Decision was issued on August 2, 2023. CN explains that once the revisions of the DRPR came into effect, it analyzed data collected between May 25 and June 21, 2023, and concluded that hours of daily delay had already increased. CN conducted further analysis from data collected between June 22 and October 31, 2023, and concluded that hours of daily delay had increased significantly since May of 2023. Therefore, CN states that the impact of the revised DRPR could not be discovered until after the Initial Decision was issued.

[12] The RM argues that CN’s claim that it had insufficient time to collect data and analyze the impact before the issuance of the Initial Decision is not supported. The RM submits that the impacts of the revised DRPR were clearly discoverable before the issuance of the Initial Decision. The DRPR was issued by the Minister of Transport on November 25, 2020, and therefore clearly known by CN before the issuance of the Initial Decision. The RM adds that railways were encouraged to voluntarily comply with the DRPR at an earlier date and so CN could have complied earlier and collected relevant data before the Initial Decision as issued. Furthermore, Part D of the DRPR, which came into effect on November 25, 2021, allowed CN to voluntarily comply upon notice to the Minister and start collecting data at that time.

Analysis and determination

[13] The Agency finds that CN has not established that there has been a change in the facts or circumstances pertaining to the Initial Decision as provided for in section 32 of the CTA.

[14] The wording of section 32 must generally be construed to include only the facts or circumstances that did not exist at the time of the original hearing or were undiscoverable by the applicant for review at that time. As the Agency has stated in previous decisions such as Decisions 103-R-2020, 219-AT-A-2013, and 488-C-A-2010, if a fact was known to the applicant or discoverable through exercise of due diligence at the time of the initial complaint, it cannot constitute a change in the facts or circumstances. The text of section 32 expressly refers to new facts and circumstances arising since the decision.

[15] The burden of proof rests with the applicant requesting the review to demonstrate to the Agency that the alleged change in the facts or circumstances was not discoverable at the time of the decision and that it might have had an impact on the decision if it had been known at the time the decision was made.

[16] CN asserts that the impact of the revised DRPR was not discoverable until after the issuance of the Initial Decision. However, in its application, CN states that it began collecting and analyzing data in May of 2023, after the revised DRPR came into effect, and that it had determined in June of 2023 that the hours of daily delay had already increased. This analysis had commenced before the issuance of the Initial Decision and the upward trend in the hours allocated to daily delay therefore existed at the time of the initial hearing.

[17] CN contends that it did not become fully aware of the magnitude of the impact until the end of October 2023, when its analysis determined that the hours of daily delay had significantly increased since the revised DRPR came into effect. However, given that CN was aware that the daily delay hours had already increased at the conclusion of its earlier analysis, CN should have performed its due diligence and informed the Agency of this information during the initial hearing. The Agency therefore finds that CN has not met its burden of establishing that the impact of the revised DRPR was not discoverable at the time of the initial hearing.

[18] Irrespective of CN’s argument that the revised DRPR had not yet come into force when parties had submitted arguments in response to LET-R-2-2023 (Show Cause Letter), issued on February 2, 2023, CN had ample opportunity to anticipate the potential impact of the implementation of the revised DRPR and raise the matter to the Agency. CN also confirms that neither party addressed the revised DRPR at that time.

[19] Prior to the Agency’s rendering of the Initial Decision, CN chose not to file a request under the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) with the Agency to submit evidence on operational impacts caused by the revised DRPR if the Crossing was to be authorized. In fact, CN should have been further motivated to provide the information, given that the Agency had held in the Show Cause Letter that CN had not provided sufficient evidence to substantiate the precise nature and magnitude of the impacts on CN’s railway operations at the Crossing. That being said, CN did not file any request to file whatever evidence that it had in its possession.

[20] CN possesses the most knowledge of its operations and their constraints as influenced by geography and regulatory requirements. CN is a sophisticated business that makes complex decisions involving projections and forecasting as to capital and labour resources on a regular basis. CN should have made these arguments at the time of the hearing of the Initial Decision. A section 32 application is not the venue to make arguments or, at the least, draw attention to potential issues or concerns, which were previously identifiable, even if incompletely.

[21] Given that the impact of the revised DRPR was discoverable by CN through the exercise of due diligence, the Agency finds that CN has not established that there has been a change in the facts or circumstances pertaining to the Initial Decision. Accordingly, the Initial Decision stands and the Agency therefore dismisses CN’s application for a variance of Decision 118-R-2023.

Agency Decisions on Procedural Requests

CN’s request to stay the Initial Decision will not be considered

[22] CN requests that the Agency stay the Initial Decision pending the outcome of its application. The RM opposes this request.

[23] In light of the Agency’s finding that the initial Decision stands, CN’s request is now moot, and thus, does not require further consideration.

CN’s claim for confidentiality is denied

[24] CN also filed a request for confidentiality for certain supporting evidence. It provided a confidential version of the documents and a public version in which the information that CN considers confidential has been redacted. CN submits that the public release of the commercially sensitive information would cause it to suffer specific and direct harm. CN also argues that if the request for confidentiality is not granted, it may be forced to withdraw its application and would be discouraged from submitting similar information in the future.

[25] The first step in determining whether a request for confidentiality should be granted is assessing whether the information is relevant to the dispute proceeding. If the information is not relevant, the Agency may decide not to place it on the Agency’s record.

[26] In Decision LET-R-11-2024, the Agency deferred pleadings on CN’s request for confidentiality and found that the information CN seeks to protect only related to the second part of the two-part test under section 32 of the CTA. Given that the Agency will not proceed to part two of the test, the Agency finds that the information in which CN is seeking a confidentiality order is not relevant. The Agency therefore denies CN’s request for confidentiality.

[27] Consequently, the Agency removes the documents marked as confidential from the record of this proceeding since they are not relevant, and only maintains the redacted versions on the public record.

RM’s request for costs is denied

[28] In its submission on part one of the test under section 32 of the CTA, the RM filed various requests. Among them, it requests to make submissions on recovering its legal costs from CN for this proceeding. The RM submits that arguments should be allowed given the overwhelming amount of material filed by CN in what it considers an unnecessary proceeding.

[29] The Agency’s practice with respect to claims for costs under section 25.1(1) of the CTA is to award costs only in special or exceptional circumstances. In Decision 136-C-A-2022, the Agency listed factors it may consider when deciding whether to award costs, which could include the results of the adjudication, whether the case has important public-interest dimensions, and whether either party behaved in a manner that unnecessarily lengthened the proceeding. The Agency finds that the RM has not provided sufficient arguments to establish that an award of costs is warranted, and therefore denies the RM’s request for filing submissions on the matter.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	25.1; 32; 101(3)
Railway Safety Act, RSC 1985, c 32 (4th Supp)	19
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104	31; 34