Decision No. 474-R-2013

On November 20, 2013, the Federal Court of Appeal (FCA), in 2013 FCA 270 (FCA Decision), set aside Decision No. 285‑R‑2012 (Decision) and returned the matter to the Canadian Transportation Agency (Agency).

In the Decision, the Agency found that, by not continuing to provide rail service at Wilkinson Steel and Metals Inc.’s (Wilkinson) Saskatoon facility, the Canadian National Railway Company (CN) was in breach of its level of service obligations. The Agency noted that CN was unable to provide service at the junction of Wilkinson’s private siding and CN’s line due to the removal of Federated Co‑operatives Limited’s (Federated) private siding, which was beyond CN’s control. However, the Agency noted that CN failed to inform Wilkinson that CN’s access to Wilkinson’s private siding required access to Federated’s private siding, notwithstanding CN’s involvement in the design, approval and construction of Wilkinson’s private siding and switch in 1965 and the relocation of a section of the private siding in 2001.

The Agency concluded that CN had an opportunity both in 1965 and in 2001 to communicate the information related to Wilkinson, that is, on both of those occasions Wilkinson could have used the information to locate its private siding so that CN would not need to access Federated’s property in order to provide Wilkinson with rail service.

In the FCA Decision, the FCA stated that the Agency should have considered whether “Wilkinson ought reasonably to have informed itself in 1965 or 2001 as to the legal basis of CN’s access to the spur west of the Wilkinson property.”

The Agency noted that Wilkinson withdrew from participation in the appeal. Therefore, in Decision No. LET‑R‑131‑2013, the Agency requested Wilkinson to inform the Agency whether it intended to participate in the process and requested CN to indicate to the Agency what would be, in its view, the impact of Wilkinson’s non-participation on the Agency’s process.

Wilkinson advised that it does not intend to participate in the process.

CN argues that as Wilkinson does not intend to participate in the process, this renders the process unnecessary given that Wilkinson, the initiator of the matter before the Agency, has no interest in pursuing the matter. CN requests the Agency to dismiss Wilkinson’s complaint.

Given Wilkinson’s decision to not participate in the process and CN’s request that the Agency dismiss the complaint, which indicates that neither Wilkinson nor CN has any interest in pursuing the matter, the Agency dismisses the complaint.