Decision No. 222-R-1990

April 23, 1990

File No. T 6115/699

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BACKGROUND

On November 28, 1989, the Canadian National Railway Company (hereinafter CN) filed an application for authority to abandon the operation of a portion of the Uxbridge Subdivision and associated spur lines between the aforementioned mileage points. The Town of Lindsay filed a notice of motion on January 18, 1990 to compel production of certain documents by CN related to, inter alia, the calculation of actual losses as contained in CN's "Statement of Traffic, Revenues and Costs" dated November, 1989. On January 26, 1990, CN filed its answer to the notice of motion opposing the production of documents requested by the Town of Lindsay.

The National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) (hereinafter the NTA, 1987), provides that an abandonment application will be treated in several steps. An application may be opposed within sixty (60) days thereof on grounds related to the matters to be considered under section 167 of the NTA, 1987. In the absence of such opposition, the National Transportation Agency (hereinafter the Agency) shall order that the operation of the branch line be abandoned pursuant to section 162 of the NTA, 1987. If such an opposition is filed, the Agency shall then determine the amount of actual loss, if any, attributable to the branch line in each of the prescribed financial years and cause such public notice of the determination and of the principal factors applied in making the determination. In accordance with section 164 of the NTA, 1987, the Agency shall then determine whether the branch line is economic or uneconomic and whether there is a reasonable probability of its becoming economic in the foreseeable future, if it is uneconomic. In accordance with subsection 165(1) of the NTA, 1987, where the Agency determines that a branch line is uneconomic and that there is no reasonable probability of its becoming economic in the foreseeable future, the Agency shall order the abandonment of the operation of the branch line. In accordance with section 166 of the NTA, 1987, where the Agency determines that a branch line is economic or that, although it is uneconomic, there is a reasonable probability of its becoming economic in the foreseeable future, the Agency shall order that the operation of the branch line be abandoned, unless it determines that the operation of the branch line is required in the public interest. In its determination of whether the operation of the branch line is required in the public interest, the Agency shall consider the factors provided for in section 167 of the NTA, 1987, one of which being the actual losses incurred in the operation of the branch line.

A number of interventions have been filed in opposition to CN's application, including one from the Town of Lindsay. The Agency has yet to make its determination of the amount of actual loss. The Town of Lindsay has requested the production of CN's costing documents at this time so that it will be in a position to meaningfully oppose the abandonment application. Furthermore, the Town of Lindsay has indicated that it undertakes to keep all documents received confidential.

CN opposes the disclosure of the documents requested by the Town of Lindsay on the grounds that, generally, the Town of Lindsay has no need for the information and that, particularly, the information requested is either confidential, not relevant, not specific and/or not manageable. In addition, CN contends that disclosure of the documentation requested would cause specific direct harm to CN.

ISSUES

In Decision No. 193-R-1988 dated August 1, 1988, the Agency set forth the relevant issues considered in dealing with a request for disclosure of detailed costing information by Bowater-Mersey Paper Company Ltd. (hereinafter Bowater) in respect of CN's application to abandon the operation of a portion of the Chester Subdivision. The motion presently before the Agency is similar to that of Bowater and raises similar issues.

CN has claimed, pursuant to section 11 of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the NTA General Rules), that the documents requested are confidential, that the Town of Lindsay has no need for the information, and that their disclosure would result in specific direct harm to CN.

Where such a claim for confidentiality under section 11 of the NTA General Rules has been made, the first issue the Agency has to determine is whether or not the documents sought are relevant. The Agency, in making this determination, will, among other matters, consider whether the Agency uses the documents in its determination of the amount of actual loss or in its other above-mentioned determinations in accordance with the NTA, 1987. In the case where the Agency determines that a document is not relevant to the matters at hand, it will not order its disclosure.

Where the Agency determines that a document is relevant, the second issue it has to determine is whether or not its disclosure would result in specific direct harm for the party making the claim for confidentiality. This latter determination relies on the party claiming confidentiality to submit, in accordance with the provisions of subsection 11.(2) of the NTA General Rules, details as to the nature and extent of the harm if a document were made public. The Agency must then determine whether specific direct harm is likely to result from disclosure of the document and, in the event that specific direct harm is shown, whether it is sufficient to outweigh the public interest in disclosing the document.

Subsection 11.(11) of the NTA General Rules states:

11.(11) Where the Agency is of the opinion that, based on all the material before it, a document is relevant to the proceeding in respect of which its disclosure is sought and no specific direct harm would be likely to result from disclosure, or any such specific direct harm shown is not sufficient to outweigh the public interest in disclosing the document, the Agency shall place the document on the public record.

Subsection 11.(13) of the NTA General Rules states:

11.(13) Where the Agency is of the opinion that, based on all the material before it, the specific direct harm likely to result from public disclosure of a document justifies a claim for confidentiality, the Agency may

(a) order that the document not be placed on the public record but be placed in a confidential file;

(b) order that an abridged version or part of the document be placed on the public record; or

(c) order that the document be disclosed at a hearing to be conducted in camera.

A document placed on the public record is accessible to anybody upon request; however, a document placed on a confidential file is not available to anyone outside the Agency unless it is ordered disclosed by the Agency. In the case of confidential information which has been ordered disclosed, the Agency may require that parties in receipt of such confidential information undertake not to disclose it.

FINDINGS

The Town of Lindsay has requested the production of the following documents:

1. A listing of all 1989 originating and terminating traffic on the Uxbridge Subdivision with details as in CN's abandonment application dated November 24, 1989.

   This is basically a request for CN to provide a 1989 statement of traffic. This information has not as yet been filed by CN with the Agency.

2. Documents showing any carload traffic forecasts for the Uxbridge Subdivision.

   The Agency finds that this information is not relevant, particularly since, pursuant to the Agency's Railway Lines Abandonment Regulations, SOR/88-25, CN is not required to provide the Agency with documentation pertaining to carload traffic forecasts in respect of the portion of the Uxbridge Subdivision proposed to be abandoned. Accordingly, the Agency will not order CN to disclose this information.

3. A listing of all the 1986, 1987, 1988 and 1989 train movements over the Subdivision with dates, locomotive numbers, number of cars and trailing tons together with details as to where the trains originated and terminated in the full cycle of operations.

   The data requested in respect of the year 1989 has not as yet been filed by CN with the Agency. The Agency is of the view that, with the exception of the dates of the train movements over the Subdivision and the locomotive numbers, the information requested for the years 1986, 1987 and 1988 is relevant to the proceedings. The Agency is of the opinion that the nature and extent of the specific direct harm shown by CN is not sufficient to outweigh the public interest in disclosing the working papers for the information cited above which is considered relevant. Consequently, CN is ordered to provide the Town of Lindsay with this information, for the years 1986, 1987 and 1988, but exclusive of any working papers containing unit costs. Moreover, the said documents will be placed on the public record.

4. Documents and working papers describing all maintenance performed on the line and when accomplished between 1985 and November, 1989.

   The requested information with respect to the year 1985 is not considered to be relevant to the proceedings as the year 1985 is not one of the prescribed financial years pursuant to section 163 of the NTA, 1987, as established in accordance with subsection 8(1) of the Agency's Railway Lines Abandonment Regulations. The information requested for the year 1989 has not as yet been filed by CN with the Agency.

   The Agency is of the view that CN's working papers, as submitted to the Agency, describing all maintenance performed on the line, by year, for the years 1986, 1987 and 1988, in respect of the portion of the Uxbridge Subdivision proposed to be abandoned, are relevant and that the nature and extent of the specific direct harm shown by CN is not sufficient to outweigh the public interest in disclosing this information.

   Insofar as the Town of Lindsay's request for the documents and working papers indicating when (interpreted as requesting a precise date) the maintenance work was performed on the line, the Agency is of the opinion that the Town of Lindsay has not satisfactorily established the relevancy of this information. Therefore, CN is only required to provide the Town of Lindsay with the year in which the said work was performed. Accordingly, the Agency orders CN to disclose only that information indicated above which is considered to be relevant in respect of the years 1986, 1987 and 1988. Moreover, this documentation will be placed on the public record.

5. Documents with the conditions attached to the Decision on the abandonment of the Subdivision between Lindsay and Peterborough.

   The Agency considers that the Town of Lindsay has not satisfactorily established the relevancy of the documentation requested. Therefore, the Agency will not order CN to disclose this information.

6. Documents with the conditions attached to the Decision on CN's adoption of service in Lindsay with the abandonment of Canadian Pacific Limited's line.

   As previously indicated in the Agency's letter of January 31, 1990 to Mr. Richard Lande of Lande & Associates, the Agency is of the view that these documents are not relevant to the proceedings and, therefore, will not order CN to disclose this information.

7. Detailed documentation, including all working papers and methodology supporting the calculations of on-line and off-line revenues and costs for the three years listed in the November 24, 1989 application.

   With respect to on-line revenues, the Agency determines that the working papers supporting CN's calculation for the years 1986, 1987 and 1988 are considered relevant. The Agency is of the opinion that the nature and extent of the specific direct harm shown by CN is not sufficient to outweigh the public interest in disclosing the working papers which support the on-line revenues. It is noted that CN's Statement A3 which is included in CN's application provides a detailed breakdown of carload freight revenues.

   The working papers in support of the calculation of on-line and off-line costs as submitted to the Agency are considered relevant as the Agency uses them in making its determination of the amount of actual loss. The Agency is of the opinion that the nature and extent of the specific direct harm shown by CN is not sufficient to outweigh the public interest in disclosing the documentation requested, except in respect of the documentation which supports the development of off-line service units including off-line crew wages. The Agency orders CN to disclose the requested documentation, as excepted, to the Town of Lindsay. These documents, as excepted, will be placed on the public record.

   Insofar as the excepted documentation is concerned, the Agency is of the opinion that CN has shown that specific direct harm is likely to result from public disclosure of these documents and justifies the claim for confidentiality. CN is ordered to provide these documents to the Town of Lindsay provided the Town of Lindsay undertakes in writing to the Agency and CN that it will not disclose these documents. These documents will be placed on a confidential file.

   The unit costs and the individual cost items under each category were explicitly not requested and, therefore, they will not be ordered disclosed.

8. Documentation supporting CN's downgrading of the weight limits on the Subdivision, together with documentation and copies of all materials on how it advised its customers of the changes.

   The Agency is of the view that the Town of Lindsay has not satisfactorily established the relevancy of these documents. Therefore, the Agency will not order CN to disclose this information.

9. Details with documentation and worksheets on how crews are assigned work on the trains operating on the Subdivision, where they board and leave the train, the typical crew consist, the wages and benefits received on-line and off-line and how wages and divisions are calculated.

   In the case of item No. 9, the amount of on-line crew wages and the number of 3 and 4 man train crews utilized in the operation of the trains on the subject portion of the Subdivision in each of the years 1986, 1987 and 1988 are considered by the Agency to be relevant to the proceedings. The Agency is of the opinion that the nature and extent of the specific direct harm shown by CN is not sufficient to outweigh the public interest in disclosing this information and, therefore, the Agency orders CN to disclose this information to the Town of Lindsay. The said documentation will be placed on the public record.

   Furthermore, the Agency is of the view that the total off-line crew wages and the proportion of the number of 3 and 4 man train crews utilized in the operation of CN's system network for the years 1986, 1987 and 1988 are relevant and that the nature and extent of the specific direct harm shown by CN is not sufficient to outweigh the public interest in disclosing this information. Accordingly, the Agency orders CN to disclose this information to the Town of Lindsay exclusive of any working papers containing unit costs. These documents will be placed on the public record.

   However, the Agency does not consider that the Town of Lindsay has satisfactorily established the relevancy of such specifics as how crews are assigned work on the trains operating on the Subdivision, where they board and leave the train, the benefits received on-line and off-line and how the on-line and off-line crew wages and divisions are calculated. Therefore, the Agency will not order CN to disclose this information.

CONCLUSIONS

For the above-mentioned reasons, the Agency hereby orders CN to disclose the information, as previously indicated.

The documents that the Agency has ordered CN to disclose shall be submitted to Mr. Richard Lande, Counsel for the Town of Lindsay, no later than two (2) weeks from the date of this Decision provided Mr. Lande and his consultant, Mr. Carl J. Liba, have, by that date, filed with the Agency and copied to CN undertakings, in the form attached, that they will not disclose any of these documents identified above as requiring confidential treatment.

CN shall also file a copy of the disclosed information with the Agency.

The Agency is cognizant of the amount of work involved in the preparation of the package of documents to be disclosed for the three prescribed financial years. Therefore, the Agency encourages the parties to negotiate whether the disclosure of information in respect of only one of the three prescribed financial years would satisfy the intervener's requirements for such information.

There is one other matter that the Agency wishes to address in this Decision. CN's answer to the notice of motion raises the issue of the specific direct harm to CN which would occur by the disclosure of service units in conjunction with the Agency's standard statement of determined actual loss for the prescribed financial years which contains the individual cost items under Categories 1, 2, 3 and 4. CN contends that the disclosure of such information would permit the mathematical derivation of certain unit costs. Historically, unit costs have not been allowed to be publicly disclosed as their disclosure would cause specific direct harm to the railway company.

In Order No. 1989-R-56 dated March 22, 1989, the Agency dealt with a similar situation in respect of CN's application to abandon a portion of the Chester Subdivision concerning the disclosure of costing information and the format of its statement of the amount of actual loss pursuant to section 163 of the NTA, 1987. In recognition of the potential harm to CN, the Agency limited its statement of the amount of actual loss to show only the cost category totals, thereby eliminating the potential derivation of certain unit costs. In the case at bar, the Agency is proceeding in the same manner.

Accordingly, the Agency will issue, in the near future, an interim determination of the amount of actual loss in an abridged format. The deadline date for the filing of submissions in response to the Notice of Actual Loss will be May 22, 1990.

The Town of Lindsay will have until May 22, 1990 to file its response which shall be served on CN and copied to the Agency, after which the pleadings will close.