Decision No. 559-AT-R-2004

October 21, 2004

October 21, 2004

APPLICATION by VIA Rail Canada Inc. pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, for a variance of Decision No. 473-AT-R-2004 dated August 30, 2004.

File No. U3570/94-1-1


APPLICATION

On September 29, 2004, VIA Rail Canada Inc. (hereinafter VIA) requested the Canadian Transportation Agency (hereinafter the Agency) to vary Decision No. 473-AT-R-2004 which was a follow-up to Decision No. 479-AT-R-2002.

BACKGROUND

In Decision No. 479-AT-R-2002 dated August 28, 2002, the Agency made a determination with respect to an application filed by Jean Lemonde, on behalf of Minikami (Club de mini Basket-ball en fauteuil roulant "Les Kamikazes"), and ordered corrective measures.

On August 30, 2004, the Agency issued Decision No. 473-AT-R-2004 (hereinafter the Decision). Therein, the Agency ruled that VIA had not complied with all of the corrective measures contained in Decision No. 479-AT-R-2002 and ordered VIA to take correctives measures within thirty (30) days from the date of that Decision.

On September 29, 2004, VIA filed a submission in response to the Decision.

JURISDICTION OF THE AGENCY

Pursuant to section 32 of the Canada Transportation Act (hereinafter the CTA), the Agency may review, rescind, or vary any decision if new facts or circumstances have arisen since the issuance of the decision.

The Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the decision.

ISSUE

The issue to be addressed is whether there has been a change in the facts or circumstances within the meaning of section 32 of the CTA since the issuance of the Decision and, if so, whether such change is sufficient to warrant a review, rescission or variance of the Decision.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered VIA's submission filed on September 29, 2004, in response to the Decision.

In order for the Agency to exercise its discretionary power under section 32 of the CTA, it is incumbent upon an applicant to demonstrate to the satisfaction of the Agency that there has been a change in the facts or circumstances pertaining to the decision since its issuance.

In this case, VIA provides several arguments for its request for the Agency to vary the Decision. The Agency has considered VIA's submission and notes that even though VIA disagrees with the Decision made by the Agency, VIA does not raise any new facts or demonstrate that there has been a change in circumstances since the issuance of the decision that would warrant the Agency to review, rescind or vary the decision.

CONCLUSION

In light of the foregoing, the Agency concludes that VIA has not presented evidence that there has been a change in the facts or circumstances since the issuance of the Decision, as contemplated by section 32 of the CTA.

Accordingly, the Agency will not review, rescind or vary Decision No. 473-AT-R-2004.

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