Letter Decision No. LET-R-122-1999
Application by Ville de St-Pierre and Ville de Montréal-Ouest (the Municipalities) pursuant to the Canada Transportation Act for cost apportionment determination of the railway work carried out at mileage 6.74 of the Canadian National Railway Company's Montréal subdivision.
On March 11, 1999, the Canadian National Railway Company (CN) filed a notice of application asking the Canadian Transportation Agency (the Agency) to declare it has no authority to entertain the previously mentioned application.
CN concedes that section 101 of the Canada Transportation Act (CTA) contains a reference to section 16 of the Railway Safety Act (RSA). This reference, however, does not modify or broaden the statutory jurisdiction of the Agency pursuant to the RSA. Whether section 16 is interpreted by itself or in conjunction with section 101, CN maintains that the legally entitled party as stated in section 16 must be the "promoting party", just as the work in question must be "a proposed railway work", as per the English version of the section.
CN is also of the opinion that, with respect to the case currently under consideration by the Agency, the Municipalities cannot be referred to as "promoting parties" or equivalents under the RSA. Furthermore, the overpass cannot be considered or deemed to be a "railway works" project under the aforementioned legislation.
Finally, CN contends that the Municipalities are not free to choose the RSA sections which they believe should apply to them. Should they choose not to adhere to the requirements and obligations of section 8 of the RSA pertaining to the mandatory notice, it would be unfair and incoherent to allow them to invoke the discretionary provisions contained in section 16 which deal with railway work cost apportionment.
In their answer dated March 24, 1999, the Municipalities pointed out that part I of the RSA (Construction or Alteration of Railway Works) comprises sections 7 to 17, which includes section 16. Sections 12 to 17 of the RSA therefore allow for the filing of applications with the Agency.
In subsection 42 of their February 9, 1999 brief, the Municipalities noted that their application was filed with the Agency pursuant to section 16 of the RSA.
However, in their reply dated March 24, 1999, the Municipalities noted that their true intent was to refer the issue of railway work cost apportionment to the Agency (pursuant to section 101 of the CTA), as evidenced by their pleadings. According to subsection 101(4) of the CTA, the said cost apportionment must be carried out according to the criteria stipulated in subsection 16(4) of the RSA.
CN had nothing to add in its closing comments. However, it emphasized that it denies all of the allegations, facts and arguments laid out in the document dated March 24, 1999.
The Agency has reviewed the positions of both parties as well as the relevance of section 101 of the CTA and section 16 of the RSA.
The Agency noted that the Municipalities, in their application filed on September 25, 1998, neglected to refer to specific legislation. They did, however, indicate that they intended to file an application pursuant to subsection 101(3) of the CTA, in spite of the fact that their February 9, 1999 pleading refers to section 16 of the RSA. When no agreement is possible, the parties may refer a matter to the Agency for cost apportionment. Pursuant to section 101 of the CTA, the parties may negotiate amendments to cost apportionment agreements. According to the Agency, the CTA does allow for the referral of issues to the Agency by the parties for dispute resolution. This stipulation is applicable even in cases where railway infrastructure work has been undertaken or even completed. On this issue, the Agency notes that the French version of section 16 of the RSA contains the wording "installations ferroviaires une fois terminées", which differs from the English version's "proposed railway work". Moreover, the Agency finds that it would be unreasonable to delay work intended to increase railway and public safety simply because the parties cannot agree on the apportionment of costs related to the construction and future maintenance of the overpass. In this case, the Agency's jurisdiction stems from section 101 of the CTA, as the facts demonstrate.
Consequently, the Agency hereby rejects CN's notice of application.
With respect to a possible reply by CN, the Agency has no choice but to abbreviate the time frames for the filing of CN's reply and an ensuing answer from the Municipalities, as the legislative deadline for this application is May 31, 1999. Consequently, CN will have 10 days from the date hereof to file its answer with the Agency and serve copies to the Municipalities. Upon reception of CN's reply, the Municipalities will have 5 days to reply to both CN and the Agency.
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