Letter Decision No. CONF-1-2016

APPLICATION

[1] On July 29, 2015, Emerson Milling Inc. (EMI) filed with the Canadian Transportation Agency (Agency) an application against the Canadian National Railway Company (CN) pursuant to sections 113 to 116 and 127 of the of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

[2] EMI submits that CN “is refusing to provide service to EMI.”

[3] EMI requests that the Agency determine that CN’s refusal to provide adequate and suitable accommodation for the receiving and loading of EMI’s traffic is a breach of CN’s level of service obligations under the CTA. EMI also requests that the Agency order CN to:

1. Determine that CN’s refusal to provide adequate and suitable accommodation for the receiving and loading of EMI’s traffic is a breach of CN’s level of service obligations under the CTA;
2. Provide service to RD-47 in accordance with the orders that EMI will place in future;
3. Interswitch rail cars received in interchange from the BNSF Railway Company (BNSF) between the interchange at Emerson, Manitoba and RD-47; and
4. In the alternative, provide service to EMI in any manner and within any time or during any period that the Agency deems expedient, having regard to all proper interests.

[4] As part of its answer to EMI’s application, CN requests that EMI’s application be dismissed. CN submits that the Agency has ruled on the matter in 2015-07-10">Letter Decision No. 2015-07-10 and is therefore functus officio. CN further submits that the current application is res judicata. CN argues that “EMI now seeks the very same relief, on the basis of the very same circumstances, as its level of service complaint filed on December 24th, 2015.[sic]” In addition, CN requests that the Agency award it costs on a solicitor-and-client basis in this proceeding.

BACKGROUND

[5] EMI’s facility, located at RI 58 River Road Emerson, Manitoba, does not connect to any portion of the CN rail network, or any rail network; it is located 8 kilometres from CN’s track RD-47.

[6] In March 2013, CN and EMI entered into Temporary License Agreement No. CNSA 23054-L (TLA) running from March 1, 2013 to July 31, 2015. [REDACTED]

[7] Prior to the TLA, EMI had used RD-47 for approximately 25 years without a formal agreement.

[8] On December 24, 2014, EMI filed a level of service application against CN (December 24^th application).

[9] On July 10, 2015, the Agency issued a confidential decision on EMI’s December 24^th application (Decision).

Post-Decision

[10] The following facts, arising after the issuance of the Decision, are not disputed by the parties.

[11] On July 16, 2015, CN sent EMI a letter which stated that:

….EMI should not submit to CN or BNSF any requests for rail cars to be placed on track RD47 for loading after the TLA expiry date of July 31.

If EMI intends that cars be placed by CN for loading by EMI after July 31 at another CN location, EMI should notify CN in writing and confirm in advance that alternative location and whether EMI intends that cars are to be supplied by CN, BNSF or another party, before EMI submits any further request to CN.

[12] On July 24, 2015, in a letter to CN, EMI requested to use track [REDACTED], which was being leased by [REDACTED]. EMI indicated that [REDACTED] had agreed to allow EMI to use the siding for the foreseeable future.

[13] On July 28, 2015, in a letter to EMI, CN responded that:

The CN-owned railway siding and lands being used by [REDACTED] are subject to confidential agreements between the two parties.

These agreements place restrictions on the uses of the premises and do not permit use of the siding by or for the account of third parties without CN’s written consent.

This is to inform you that [REDACTED] has neither sought or obtained CN’s consent and that, if requested by [REDACTED], CN does not intend to provide consent to [REDACTED] for third party use of these assets.

[14] On July 29, 2015, in an e-mail to CN, EMI noted that there is another customer on [REDACTED], [REDACTED], located on the [REDACTED] of the siding and that between [REDACTED] and [REDACTED], “[t]here is room for [REDACTED].” EMI then inquired whether CN would allow EMI to transfer its current lease arrangement at RD-47 to the open siding at [REDACTED]. EMI also inquired about other possible alternatives.

PRELIMINARY MATTER - RES JUDICATA

Position of CN

[15] According to CN, EMI’s current application is res judicata because EMI, in its December 24^th application, sought relief with respect to its access to RD-47 and the Agency was “well aware of the nature of the TLA and its imminent expiry.” CN argues that the Agency did not grant EMI’s request for an order to require CN to continue to provide EMI access to RD-47.

[16] In response to EMI’s assertion that the Agency did not address this request for relief, CN submits, referring to Doering v. Grandview (Town), [1975] SCJ No. 93 (SCC), that it is well-established that a judicial or administrative decision does not need to expressly address every aspect of a dispute. According to CN, the Agency was “alive to the expiry of the TLA. It simply did not grant the relief sought by EMI.” CN submits that EMI is now seeking the same relief, on the basis of the same circumstances, as in its December 24^th application.

[17] CN claims that EMI conceded this in its current application and that the only recourse available to EMI is to seek leave to appeal the Decision to the Federal Court of Appeal. CN states that, unless the Decision is overturned on appeal, the issues raised by EMI are res judicata.

Position of EMI

[18] EMI argues that CN’s claims with respect to res judicata are “misplaced, and based on a misapprehension of the applicable principles.” EMI submits that the subject matter of its December 24^th application and the current application are “entirely distinct.”

[19] Firstly, EMI argues that its December 24^th application referred to a defined period of time and was “explicitly retrospective in nature.” The Agency ruled on CN’s level of service during that period and ordered relief that specifically referred to that period. By contrast, the current application is explicitly prospective in nature and seeks relief on that basis.

[20] Secondly, EMI argues that it is CN’s obligation to interswitch EMI’s traffic, an obligation on which “CN now defaults, and that is the issue at the heart of the [current] Complaint.” This issue only arose after the Agency issued its Decision with respect to EMI’s December 24^th application and thus could not have formed part of that application.

[21] Therefore, EMI maintains that, although similar relief was requested in the two applications, there are significant differences in the facts and allegations, and as a result, res judicata does not apply.

[22] According to EMI, the doctrine of res judicata only applies once an issue has been raised and distinctly determined between the parties. EMI, quoting Richter Gedeon Vegyeszeti Gyar Rt v. Apotex Inc., 2002 FCT 1284, states the relevant question is: “what did the court [or tribunal] actually decide the first time around?” EMI argues that the issues in its current application have not been distinctly determined between the parties and were not decided by the Agency in the Decision.

[23] Finally, EMI submits that the Agency has a broad statutory mandate to hear level of service applications and refusing to hear a case based on “a rigid application of res judicata or functus officio would constitute an unnecessary fettering of that mandate…”

Findings and Analysis

[24] For the following reasons, the Agency finds that the principle of res judicata does not apply to EMI’s current application.

[25] The Agency has not previously decided the grounds of complaint in the current application. In the Decision, the Agency addressed the issue of whether the level of service provided by CN during the “complaint period” (Week 1 of the 2013-2014 crop year to Week 21 of the 2014-2015 crop year) was contrary to its statutory level of service obligations. The Agency found that CN had breached its level of service obligation owed to EMI at RD-47 during the complaint period and ordered CN to provide EMI with the cars it had ordered but did not receive during the period of complaint. For greater clarity, the Decision restricted itself to a time period during which the TLA was in force. That issue is not before the Agency in the current application.

[26] Res judicata applies to prevent the re-litigation of causes of action or issues previously decided; it does not prevent an applicant from requesting the same remedy in the context of a different complaint, even against the same respondent. Furthermore, res judicata applies in respect of final decisions. In the Decision, the Agency did not address whether CN’s refusal to provide accommodation to EMI for loading its traffic at RD-47 constituted a breach of its level of service obligations and therefore, it did not issue a decision, final or otherwise, on this issue. While CN had previously expressed its position that it would not provide service at the expiry of the TLA, the TLA did not expire until after the Decision was issued.

[27] The Agency cannot be considered to have made a decision on an alleged breach that it did not address and that, at the time of its Decision, had not yet occurred.

[28] While it is true that the expiration of the TLA was known to the Agency at the time of the December 24^th application, the future conduct of CN and EMI in relation to that expiration was not. In other words, at the time of EMI’s December 24^th application, the Agency would have had to speculate about how either CN or EMI would conduct itself as a result of the expiration of the TLA. Accordingly, the matter could not have been determined by the Agency, even implicitly, in the context of the December 24^th application.

[29] In relation to EMI’s current application, the Agency will address whether CN owes EMI level of service obligations and if so, where the obligations are owed. This will include a consideration of the issue of whether, after the expiry of the TLA, RD-47 is a point of stopping as contemplated in paragraph 113(1)(a) of the CTA. According to paragraph 113(1)(a), a railway company must furnish at “all points of stopping established for that purpose, adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage on the railway.” As will be discussed in greater detail below, this is significant to the issue before the Agency in EMI’s current application, given that a railway company must furnish adequate and suitable accommodation for the receiving and loading of traffic at such points.

[30] It is further noted that the current application also raises, for the first time, the question of whether CN breached its service obligations when it refused to provide EMI service at another location on the [REDACTED]. EMI’s request for service at this location, and CN’s refusal, also occurred after the Agency’s Decision. Similarly, EMI’s request in its current application for an interswitching order at Emerson was not part of its December 24^th application.

[31] Finally, in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, the Supreme Court of Canada reviewed the prerequisites for the application of issue estoppel, a concept related to res judicata, and held that:

The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.

[32] The Agency is of the opinion that dismissing the application, which raises the issue of CN’s refusal to provide EMI service at RD-47 upon the expiry of the TLA, on the basis that it is res judicata would be inconsistent with this principle. Given that there was no decision made on the issue of CN’s refusal to provide accommodation to EMI for loading its traffic at RD-47, there was no basis upon which EMI could have appealed that decision, as is suggested by CN.

[33] Moreover, if res judicata did apply, which it does not, the Agency would nevertheless exercise its discretion in these circumstances and hear the case.

[34] For these reasons, the Agency rejects CN’s request to dismiss EMI’s current application.

ISSUES

1. Does CN have level of service obligations with respect to EMI’s traffic?
2. If so, at what location(s) is/are the level of service obligations owed?
3. Did CN breach its level of service obligations with respect to EMI’s traffic?
4. Should the Agency issue an order pursuant to the interswitching provisions?
5. Should the Agency award CN costs, and if so, on what basis?

POSITION OF EMI

[35] EMI states that CN has refused to provide service after the expiry of the TLA and that its refusal constitutes a breach of its level of service obligations.

[36] EMI submits that paragraph 113(1)(a) of the CTA requires CN to provide adequate and suitable accommodation at RD-47. The imposition of what EMI describes as a contract of adhesion by CN, the TLA, does not affect the existence or enforceability of EMI’s continued right to service.

[37] EMI submits that RD-47 is a loading track and was established by CN as a loading track and has been used by EMI for the past 25 years as a loading track. EMI argues that CN conceded this fact in a previous case before the Agency (466-R-2013">Decision No. 466-R-2013). In that case, CN argued that the capacity of the Emerson Yard referred to by Richardson International Ltd. (RIL) was less than what is depicted by RIL because the siding to the north of the mainline, RD-47, is leased to a customer for its exclusive use.

[38] According to EMI, RD-47 is clearly a point of stopping established for the purpose of receiving and loading traffic offered for carriage on the railway.

[39] EMI argues that, even if CN is permitted to exclude EMI from RD-47 under the level of service provisions of the CTA, the Agency should exercise its discretion to prevent CN from doing so because CN has provided service at RD-47 for 25 years and, according to EMI, CN has not established why it cannot continue to do so. EMI submits that the Agency should order CN to either provide continued access at RD-47 or another reasonable alternative.

POSITION OF CN

[40] According to CN, without access to a rail line, EMI is owed no service from CN any more than it is owed from the Canadian Pacific Railway Company (CP) or BNSF, and the Agency cannot intervene on that basis. CN argues that property rights and rights of access to a railway company’s property are only provided to shippers when entering into an agreement with the railway company. Absent such agreement, shippers have no access to the railway company’s property, benefit from no property rights and no obligations are triggered towards the shipper.

[41] CN acknowledges that EMI entered into such an agreement to access a track on property owned by CN (the TLA); however, CN submits that the TLA is now terminated and EMI no longer has any rights to access CN’s property. CN argues that the level of service obligations in the CTA do not create property rights or the right of access to a railway company’s property.

[42] CN proposes that the level of service regime may be triggered by extant property rights acquired by shippers to access a rail line, such as a lease, a license, a facility, and/or a private siding to which a railway company has reasonable access. However, the level of service regime cannot create such property and/or legal rights in the first instance. CN argues that it is EMI’s responsibility as a commercial entity to purchase, lease or otherwise acquire the property and facilities necessary to conduct its business. CN maintains that it is irrelevant to these proceedings that EMI has been provided some form of limited access to RD-47 in the past.

[43] According to CN, the CTA does not authorize the Agency to adjudicate or declare the property rights of an applicant. CN argues that this is consistent with 688-R-1999">Decision No. 688-R-1999 (Koeneman) and the Federal Court of Appeal’s decision in Canadian National Railway Company v. Canadian Transportation Agency, 2013 FCA 270 (Wilkinson).

[44] CN submits that “shippers owe correlative obligations under the level of service provisions to arrange for reasonable conditions under which their traffic may be provided to a railway for carriage.” CN submits that this proposition dates back to the Supreme Court of Canada’s decision in Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] S.C.R. 271 (Patchett).

[45] CN maintains that it is not obligated to find a location for EMI to load its rail cars. CN further argues that EMI is not a captive shipper and has multiple options, including CP’s line, which is closer to EMI’s facility than RD-47. CN also suggests that EMI could transload in Winnipeg, Manitoba.

[46] CN claims that because RD-47 is located within CN’s rail yard, it is not a stopping point established for the purpose of receiving and loading traffic. CN maintains that even if it was such a stopping point, there is no way it can be construed as such after the expiry of EMI’s contractual rights under the TLA. According to CN, EMI does not have and has never had any rights to access RD-47 or load traffic on it aside from those contractual rights granted by CN and those rights have expired. CN asserts that if the Agency grants EMI rights beyond the TLA, such an order would be nothing short of expropriation, and although the Agency does have broad remedial powers under the CTA, it does not have the power to expropriate CN’s property.

[47] CN argues that a railway company cannot be required to ship the goods of anyone who simply drives up to the railway company’s private siding and demands ongoing service. This type of demand cannot be viewed as reasonable, nor can it be afforded the protection of the level of service provisions.

[REDACTED].

FINDINGS AND ANALYSIS

[48] EMI’s application addresses fundamental questions of whether EMI is owed service from CN and if so, where the service is owed. The first step in considering EMI’s application is to determine whether CN has level of service obligations with respect to EMI’s traffic. If it does, the next step is to determine the location(s) where CN must discharge these obligations with respect to the receiving and loading of EMI’s traffic. The CTA requires CN to execute such obligations at “the point of origin, at the point of junction of the railway with another railway, and at all points of stopping established for that purpose,” therefore at the second step of its analysis, the Agency will determine if, for each of the locations where EMI requested service (RD-47 and [REDACTED]) and where CN offered service (LE77 and a transloading facility in Winnipeg), the location is a point of stopping within the meaning of paragraph 113(1)(a) of the CTA.

[49] The final step, based on the determinations of whether and where service is owed, is to determine whether CN has breached its level of service obligations.

Issue 1: does CN have level of service obligations with respect to EMI’s traffic?

[50] The first issue that must be determined by the Agency in this case is whether CN has level of service obligations with respect to EMI’s traffic. There are specific elements in section 113 of the CTA that set out the nature of a railway company’s obligations: the traffic, the accommodation and the location where the railway company shall furnish the accommodation.

[51] In contrast to most level of service cases that relate to questions of car supply and/or the frequency of car spotting, the current case addresses a more fundamental issue because it raises the question of whether a statutory right to rail service exists and if so, where. This is the result of the fact that EMI does not have a facility that connects to a railway line, that is, EMI’s facility is not located on or near a line of railway and therefore does not have a rail siding (leased or owned) on which it can receive and load its traffic.

[52] In the Agency’s opinion, its decision in Koeneman and the Federal Court of Appeal’s decision in Wilkinson are distinguishable from, and do not resolve, the issue in the current case. Both Koeneman and Wilkinson involved a railway company’s level of service obligations at the junction of a shipper’s private siding and a railway line. They do not address the present circumstances, which raise the question of whether a railway company owes level of service obligations at locations other than at the junction of a shipper’s private siding and a railway. Thus the Agency must consider whether EMI has a right to service at other locations or, as CN alleges, its obligation to provide service to EMI only results from the TLA.

Level of service provisions

[53] Sections 113 to 116 of the CTA establish a railway company’s level of service obligations with respect to traffic offered for carriage on the railway. These sections are little changed from the Railway Clauses Consolidation Act, 1851, 14 – 15 Vict., c. 5 and have been reviewed many times by Parliament. Their purpose is to provide a remedy for shippers to reduce the imbalance in bargaining power in their dealings with the railway companies and thus ensure outcomes consistent with the national transportation policy in section 5 of the CTA.

[54] Section 113 states that a railway company shall, according to its powers, furnish adequate and suitable accommodation for “all traffic offered for carriage on the railway.” It further describes that the purpose of the adequate and suitable accommodation is to allow for the receiving, loading, carriage, unloading and delivering of the traffic and that the railway company must receive, carry and deliver the traffic without delay and with due care and diligence.

[55] The language in the level of service provisions refers to the obligations of the railway company with respect to traffic; throughout the provisions the obligations are linked to traffic. This is consistent with section 116 of the CTA which describes the Agency’s role in relation to level of service complaints.

[56] Section 116 sets out that “any person” may file a complaint alleging that a railway company is not fulfilling its obligations. The obligations are linked to the traffic, and the movement of that traffic.

[57] The choice of language is important. The level of service provisions in the CTA are not dependent on a shipper and carrier setting out particular obligations in a written agreement (the terms of which are often in dispute). Instead, the provisions apply where traffic is offered for carriage, thereby focusing generically on the subject that gives rise to a relationship between the parties, rather than on the specific relationship, contractual or otherwise, that might exist between them.

[58] In 442-R-2008">Decision No. 442-R-2008, the Agency provided detail on what it considers to be “traffic”, finding that the traffic offered for carriage must be actual traffic and not merely proposed traffic. In that case, the applicant, who was developing an industrial park, requested a rail spur connection, arguing that it might be able to attract a client who would have traffic to offer, if the site had rail access. The nature of the traffic and the client were unknown. The Agency rejected the notion that such purely speculative traffic would create an obligation:

With respect to traffic “offered for carriage”, the term is not defined in the CTA but has been interpreted to mean actual traffic as opposed to potential traffic through various decisions issued by the Agency and its predecessors.

[…]

The Agency finds that while Trackside has offered potential traffic for carriage, it has not provided any specific evidence of actual traffic to be offered for carriage to CN. Actual traffic need not be “immediately available”, but it needs to be more than “proposed”.

[59] In the current case, the Agency notes that on July 10, 2015, CN informed EMI that “it should not submit to CN or BNSF any requests for rail cars to be placed on track RD47 for loading after the TLA expiry date of July 31.” EMI has actual traffic to be moved, as substantiated by the fact that [REDACTED].

[60] The Agency finds that as EMI has traffic that it is offering for carriage on CN’s railway line, CN has obligations with respect to that traffic, including the obligation to take, to carry to and from, and to deliver traffic at the points of stopping on the payment of the lawfully payable rate. Furthermore, as set out in the level of service provisions, these obligations include providing accommodation that is adequate and suitable for EMI to receive and load its traffic.

[61] CN’s obligation to receive, load, carry and deliver traffic is not contractual; it is created by virtue of the level of service provisions of the CTA. While the CTA provides for confidential contracts, the contracts do not create service obligations but instead provide for “the manner in which the obligations under this section are to be fulfilled by the company.”

Issue 2: If so, at what location(s) are the level of service obligations owed?

[62] As the Agency has found that CN has level of service obligations with respect to EMI’s traffic, the Agency will now consider where CN is obligated to furnish adequate and suitable accommodation with respect to the receiving and loading of EMI’s traffic.

[63] Paragraph 113(1)(a) of the CTA provides detail as to where a railway company shall furnish the adequate and suitable accommodation for the receiving and loading of traffic; that is: “at a point of origin, at the point of junction of the railway with another railway, and at all points of stopping established for that purpose.”

[64] According to CN, it does not have a statutory obligation to provide EMI with suitable and adequate accommodation for the loading of its traffic at RD-47, but only a contractual obligation, which disappeared when the TLA expired. Furthermore, CN maintains that the level of service provisions do not create property rights or a right of access to railway property; such rights are only provided to shippers when entering into an agreement with the railway company.

[65] In interpreting paragraph 113(1)(a) of the CTA, the Agency notes that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament” (The Queen v. Canada Trustco Mortgage Company, 2005 SCC 54).

[66] The Agency is also guided by the language in subsection 116(4) of the CTA, which establishes the remedies that the Agency may order if it determines that a railway company is not fulfilling any of its service obligations. In particular, the Agency may order that “specific works be constructed or carried out,” “property be acquired” and “cars, motive power or other equipment be allotted, distributed, used or moved as specified by the Agency”, which implies that the railway company’s property and equipment may be used to discharge its level of service obligations.

[67] It is CN’s position that it establishes, with respect to its own property, a point of stopping. This implies that, with respect to points of stopping on a railway company’s property, there are no level of service obligations except the ones accepted by that company and that the company could unilaterally decide to no longer provide service at a point of stopping on its property, regardless of the traffic being offered or established patterns of service.

[68] While a railway company must have the option to reconfigure its infrastructure and service offerings from time to time, the level of service provisions allow recourse to shippers who might be unduly affected by such a change or who may feel that it is arbitrary or unbalanced. The entire logic of sections 113 to 116 of the CTA rests on the ability of an interested party to question the railway company’s actions and its rationale for not meeting its obligations, which is, more often than not, expressed in logistical terms such as congestion, infrastructural changes or constraints and efficiency of service. As an expert tribunal, the Agency will reflect on the claims made by both parties.

[69] The Agency finds that a point of stopping, even on a railway company’s property, is not established by the railway company when it enters into an agreement that grants a party the right to access the railway company’s property. That is to say the obligation is not contractual in nature. When infrastructure exists on which trains can stop and have stopped, that location is a point of stopping pursuant to paragraph 113(1)(a) of the CTA.

[70] Based on the above considerations, the Agency will now determine whether each of the locations identified by the parties constitutes a point of stopping.

RD-47

• RD-47 is a track located in the Emerson Yard.
• The Emerson Yard is a location where, in addition to conducting standard yard operations, i.e. switching cars and marshalling trains, regulated interswitching is conducted.
• For more than 25 years EMI has received and loaded its traffic at RD-47.
• At the expiry of the TLA (July 31, 2015), EMI stopped loading its traffic at RD-47. However according to CN, it required the use of RD-47 to accommodate the “significant increase in other traffic and operational demands”; for example, to hold southbound cars offered for interchange to BNSF, interchange activities and to meet “service obligations to customers other than EMI.”

[71] EMI received and loaded its traffic on RD-47, both of which are examples of activities that occur because trains can and have stopped at that location. After the expiry of the TLA, CN required the use of RD-47 to conduct yard operations, including holding cars, interchange activities and other activities necessary to serve its customers, which are also examples of activities that occur because trains can and have stopped at that location. The Agency therefore finds that RD-47 is a point of stopping established for that purpose.

LE77

• LE77 is a siding at Emerson Junction, on the east side of the mainline, south of Post Road.
• CN suggested in 2012 that EMI use LE77 as an alternative to RD-47.
• CN offered to lease 3600 feet of LE77 to EMI and CN would upgrade the track to 100lb rail. CN would also have provided a capital contribution to a maximum of [REDACTED] for the possible track and roadway upgrades provided that EMI submitted a business case meeting CN’s standard financial requirements.
• In 2012, EMI declined CN’s offer, stating that LE77 is not suitable for its current or future needs. EMI explained to CN that the site is subject to flooding, as are many of the connecting roads; that it does not have a trackside roadway suitable for heavy trucks; that the trackside roadway must have “drive thru (preferred) or turnaround capability for B-train style trucks”; and that EMI would not be able to acquire the necessary property to allow construction of trackside product storage.

[72] The Agency notes that it was CN that proposed to EMI that it move its transloading operations from RD-47 to LE77, and although CN offered a capital contribution for upgrades to the site, there is no indication that these upgrades were necessary for trains to be able to stop at that siding. Therefore, LE77 is a location where trains can stop and where CN planned to have trains stop. The Agency therefore finds that LE77 is a point of stopping established for that purpose.

[REDACTED]

• [REDACTED] is a CN-owned siding located on the [REDACTED].
• [REDACTED] and [REDACTED] are CN customers being served at [REDACTED].
• [REDACTED] leases part of [REDACTED].
• At the expiry of the TLA, EMI applied to CN to use [REDACTED]. According to EMI, [REDACTED] agreed to allow EMI to use the siding; however CN declined. EMI then asked to use the portion of [REDACTED] between [REDACTED] and [REDACTED]. CN submits that there are road crossings in the area that render the location unsuitable for increased switching activity.

[73] The Agency notes that there are currently two customers being served at [REDACTED], thus CN is stopping trains at this location. The Agency therefore finds that [REDACTED] is a point of stopping established for that purpose.

Transloading Facilities on Winnipeg

• CN refers to transloading facilities in Winnipeg provided by North American Food Ingredients Inc. (NAFI) and CANDO Modal Logic Services.
• [REDACTED].

[74] CN recommended, [REDACTED] in Winnipeg and therefore it is a location where CN can and does stop trains. The Agency therefore finds that [REDACTED] transloading facility in Winnipeg is a point of stopping established for that purpose.

[75] The Agency notes that although it has identified the preceding four locations as points of stopping, this may not be an exhaustive list of all locations that may be points of stopping in respect of EMI’s traffic.

[76] The Agency further notes that a railway company’s obligation to furnish adequate and suitable accommodation for the receiving and loading of traffic at these locations is, pursuant to Justice Rand’s findings in Patchett, “permeated with reasonableness in all aspect of what is undertaken…”. Justice Rand further found in Patchett that:

The duty being one of reasonableness how each situation is to be met depends upon its total circumstances. The carrier must, in all respects, take reasonable steps to maintain its public function; and its liability to any person damaged by such a cessation or refusal of services must be determined by what the railway, in light of its knowledge of the facts, as, in other words, they reasonably appear to it, has effectively done or can effectively do to meet and resolve the situation.

[77] Furthermore, the Federal Court of Appeal in Canadian National Railway Company v. Northgate Terminals Ltd., 2010 FCA 147 (Northgate) said the following:

As I read Patchett, the three propositions to which CN refers in its argument are not free-standing principles of law. They are guidelines that must inform any determination by the Agency of a service complaint, but they do not necessarily compel a particular outcome. That is because the determination of a service complaint requires the Agency to balance the interests of the railway company with those of the complainant in the context of the particular facts of the case.

[78] In addition, in Patchett, Justice Rand identified a shipper’s correlative obligation:

To the duty of the railway to furnish services there is a correlative obligation on the customer to furnish reasonable means of access to his premises.

[79] The concept was most recently addressed by the Federal Court of Appeal in Wilkinson:

The answer to that question is critical to the correct application of Patchett which, as explained above, has two aspects, the second being the correlative obligation of the customer of a railway company to provide reasonable access to its private siding.

[80] Considering that there are at least four points of stopping established for that purpose, the Agency will consider where (if anywhere) service should be provided, taking into account the level of service obligations, in light of reasonableness, and the shipper’s correlative obligation.

DIRECTION

[81] In order for the Agency to render a final decision, it will consider the following factors for each point of stopping identified in this decision.

• Can adequate and suitable accommodation for the receiving and loading of EMI’s traffic be furnished at the point of stopping?

• Is it reasonable, considering the operational constraints that may exist, for CN to furnish adequate and suitable accommodation for the receiving and loading of EMI’s traffic at the point of stopping?

• What, if any, is EMI’s correlative obligation with respect to its traffic at the point of stopping?

[82] As the parties have not previously filed submissions specifically on these factors with respect to all of the locations identified by the Agency as points of stopping, EMI is provided until March 18, 2016 to submit its comments. CN will have until the fifth business day after the date of receipt of EMI’s comments to file a response and EMI will then have until the third business day after the date of receipt of CN’s response to file its reply. All submissions must be filed by 5:00 p.m. Gatineau local time with the Agency, with a copy to the other party. Finally, if EMI or CN would like the Agency to consider any other location(s), it should present relevant evidence and argument, taking into account the criteria for identifying a point of stopping.

[83] When the submissions have been received, the Agency will consider the evidence on file and issue a ruling on Issue 3: Did CN breach its level of service obligations with respect to EMI’s traffic, as well as on Issue 4: Should the Agency issue an order pursuant to the interswitching provisions and Issue 5: Should the Agency award CN costs, and if so, on what basis?

[84] The Agency is of the opinion that a negotiated settlement on the question of service location would be preferable. That is, having found that CN has level of service obligations with respect to EMI’s traffic and that there are at least four locations that are points of stopping, the Agency encourages the parties to arrive at an agreement on this matter.

[85] If the parties come to an agreement, EMI should file a request to withdraw its application pursuant to section 36 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (SOR/2014-104) [Dispute Adjudication Rules], at which time the Agency will consider, pursuant to subsection 36(2) of the Dispute Adjudication Rules, Issue 5: Should the Agency award CN costs, and if so, on what basis?

This is a public redacted version of Confidential Decision No. CONF-1-2016 that issued on March 4, 2016 which cannot be made publicly available.