Decision No. 95-R-2017

SUMMARY

[1] On July 31, 2017, MOOSE filed an application requesting that the Canadian Transportation Agency (Agency), pursuant to section 32 of the CTA, review, rescind or vary the orders pertaining to the discontinuance of the Maniwaki Subdivision between mileages 0.0 and 20.3. In addition, MOOSE requests that the Agency issue an interim order, pursuant to subsection 28(2) of the CTA, requiring that “[…] the Municipality of Chelsea, and all related parties acting as agents or representatives or all bodies having a contract or agreement with the Municipality of Chelsea, refrain from dismantling any railway structure of the Maniwaki Subdivision […].”

[2] The Agency will address the following issue:

Should the Agency review, rescind or vary the orders pertaining to the discontinuance of the Maniwaki Subdivision between mileages 0.0 and 20.3?

[3] For the reasons set out below, the Agency dismisses MOOSE’s application.

BACKGROUND

[4] On June 8, 1966, the Board of Transport Commissioners for Canada issued Order No. 121001 (1966 Order) authorizing the Canadian Pacific Railway Company (CP) to abandon a portion of the Maniwaki Subdivision from mileage 0.0 to mileage 2.23, in Hull, Quebec.

[5] On December 11, 1984, the Canadian Transport Commission issued Order No. R-37548 (1984 Order) authorizing CP to abandon the operation of a portion of the Maniwaki Subdivision between Laman (mileage 3.0) and Maniwaki (mileage 80.7) on January 1, 1986.

[6] On December 20, 1985, the Canadian Transport Commission issued Order No. R-38843 (1985 Order) extending the date of the abandonment of the portion of the Maniwaki Subdivision from Laman (mileage 3.0) to Wakefield (mileage 19.7) set in the 1984 Order until June 1, 1986.

[7] On July 2, 1986, CP signed a letter of agreement (agreement) with the City of Hull (now the City of Gatineau), the Municipal Corporation of the Township of Hull, West Part (now the Municipality of Chelsea) and the Municipality of La Pêche (which now includes the village of Wakefield). The agreement provides, in part, as follows:

Following abandonment thereof, Canadian Pacific will donate to the municipalities identified above its line of Railway from mileage 3.0 to mileage 20.3 (Wakefield) Maniwaki Subdivision [...].

Upon request of the municipalities, Canadian Pacific will undertake to operate a tourist passenger train service over its rails between the National Museum of Science and Technology, Ottawa, Ontario, and mileage 3.0, Maniwaki, Subdivision […]. Said undertaking only to be applicable during the years 1986 and 1987 but not subsequently.

[…] should the municipalities so request, Canadian Pacific will provide crews to operate the said tourist passenger trains between mileage 3.0 and Wakefield subject to […] it being understood that the foregoing undertaking of Canadian Pacific is applicable only during the years 1986 and 1987 and not subsequently.

During the years 1988, 1989 and 1990 inclusive (but only during those years), Canadian Pacific will, upon request of the municipalities, operate tourist passenger trains over its railway between Hull Station (Montcalm Street) and mileage 3.0 and over the trackage of the municipalities (mileage 3.0 to Wakefield) […].

In consideration of the payment of a nominal sum by the municipalities, Canadian Pacific will provide accommodation on its right-of-way between Montcalm Street, Hull, Quebec, and mileage 3.0, Maniwaki Subdivision, to permit the municipalities to construct a line of railway between these points for the sole purpose and that purpose only of operating a tourist passenger train.

The municipalities undertake and agree to absorb all costs, both direct and indirect, as a result of the construction of their trackage on Canadian Pacific’s right-of- way and to afford Canadian Pacific the right to review and approve in advance the construction plans with respect to the said trackage between Montcalm Street, Hull, and mileage 3.0, Maniwaki Subdivision. The municipalities undertake to comply with all Federal railway regulations, rules and orders applicable to such construction insofar as same may affect Canadian Pacific.

[8] On January 15, 1987, a document dated December 19, 1986 was registered in Gatineau. The document sets out the donation of the portion of the abandoned line of railway between mileages 3.0 and 20.3 of the Maniwaki Subdivision from CP to the City of Gatineau and the Municipalities of Chelsea and La Pêche.

[9] On May 2, 2016, MOOSE filed with the Agency a request for a determination of the jurisdictional authority relating the portion of the Maniwaki Subdivision from mileage 0.0 to mileage 20.3 between the City of Gatineau and the Municipality of La Pêche. In response, an Agency staff letter was issued concluding that, based on a search of records, the subject line of railway is no longer part of the federal transportation system.

THE LAW

[10] Section 32 of the CTA states:

The Agency may review, rescind or vary any decision or order made by it or may re‑hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[11] Subsection 28(2) of the CTA states:

The Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application.

MOOSE’S POSITION

[12] Moose submits that there have been changes in the facts and circumstances pertaining to these orders of sufficient importance to warrant their review, rescission or variance. More specifically, MOOSE claims that the agreement demonstrates that the “discontinuance of the Maniwaki Subdivision between mileage 0.0 and 20.3 was rendered ambiguous because in fact, they were not used.”

[13] MOOSE notes that on June 27, 1992 the Hull, Chelsea and Wakefield Railway commenced operation over the former CP Maniwaki Subdivision between Hull and Wakefield. On October 17, 1999, the Hull, Chelsea, Wakefield Railway opened a new connection with the CP Lachute Subdivision at Laman. According to MOOSE, the above events render the 1966, 1984, and 1985 Orders “ambiguous, and possibly abeyant.”

[14] MOOSE claims that had the discontinuance authorizations granted in 1966, 1984 and 1985 been brought to fruition in relation to the Maniwaki Subdivision between Gatineau and La Pêche, the municipalities signing the agreement would not have needed to commit to compliance with federal railway regulations for Maniwaki Subdivision and CP would not have:

1. maintained its rights with respect to usage of its right-of-way between Hull, Quebec (Montcalm Street) and mileage 3.0, Maniwaki Subdivision; and
2. continued to carry on business offering interprovincial passenger rail services extending from Ottawa through Gatineau to Wakefield.

[15] MOOSE refers to The Queen v. Board of Transport Commissioners, [1968] S.C.R. 118 (GO Decision), in which the Supreme Court of Canada found that the GO Train in the Greater Toronto Area is under federal regulation because the Parliament of Canada has jurisdiction over everything that physically forms part of a railway subject to its jurisdiction. MOOSE argues that if the Maniwaki Subdivision south of mileage 3.0 remained under federal jurisdiction then the entire 20.3 km railway is under federal jurisdiction.

[16] MOOSE acknowledges that a section 32 review of the discontinuance of the Maniwaki Subdivision between mileages 0.0 and 20.3 would require retracing historical land title, transfer and survey records, in order to establish definitively which legal entity or entities hold rights and responsibilities today for the corridor.

ANALYSIS AND DETERMINATIONS

[17] The Agency accepts that the agreement and the evidence establishing that, subsequent to the orders being made, operations were conducted over the line of railway constitute new facts as contemplated by section 32 of the CTA; however, the Agency finds that MOOSE has not established that these new facts warrant a review, rescission or variance of the 1966, 1984 and 1985 Orders.

[18] MOOSE argues that, after CP’s donation of the line of railway to the municipalities, the line continued to be an integral part of CP’s railway network because it connects to CP’s own line in the south and therefore continues to be under federal jurisdiction. However, MOOSE did not provide any evidence to support this claim other than citing the GO Decision.

[19] MOOSE argues that, as CP agreed to provide some service on the line (for a specified period) after it was donated to the municipalities, the subject line of railway was not actually abandoned. However, MOOSE has not provided any rationale as to why agreeing to provide crews over the donated line is inconsistent with the line being abandoned by CP.

[20] Finally, MOOSE argues that CP’s agreement to provide accommodation on its right-of-way to permit the municipalities to construct a line of railway for the sole purpose of operating a tourist passenger train impacts the orders. However, MOOSE also did not provide any rationale as to why this is inconsistent with the line being abandoned by CP.

[21] Although MOOSE acknowledges that a proper review of the orders would require additional steps and evidence, these steps were not taken by MOOSE and no additional evidence on historical land title, transfer and survey records was filed by MOOSE.

[22] As the Agency has addressed MOOSE’s application under section 32 of the CTA, it is not necessary to consider MOOSE’s request under subsection 28(2) of the CTA.

CONCLUSION

[23] The Agency dismisses MOOSE’s application.