Letter Decision No. LET-R-165-2010

Introduction

This refers to a complaint filed with the Canadian Transportation Agency (Agency) by Peace River Coal Inc. (PRC) against the Canadian National Railway Company (CN) on April 22, 2008. In its Decision No. 392-R-2008, the Agency declined jurisdiction under section 120.1 of the Canada Transportation Act (CTA) because the complaint was with respect to the terms of a tariff that had been incorporated by reference into a confidential contract between the parties. However, pursuant to section 40 of the CTA, the Governor in Council (GIC) rescinded the Agency's Decision by Order-in-Council No. P.C. 2010-749. Accordingly, the Agency will reconsider this complaint.

This complaint process is a quasi-judicial one carried out pursuant to the CTA and the Canadian Transportation Agency General Rules, SOR/2005-35 (General Rules), which can both be accessed on line at http://www.otc-cta.gc.ca.

Preliminary jurisdictional issue

CN's Notice of Motion dated April 28, 2008 raises the issue of the Agency's jurisdiction to consider PRC's complaint under section 120.1 of the CTA. CN's position is that the fuel surcharge in question is, in fact, a part of the transportation rate and, as such, is excluded from consideration as set out in subsection 120.1(7). CN requests that the Agency suspend pleadings on the merits of PRC's complaint pending the determination of the jurisdictional issue. PRC filed its answer to this motion on May 7, 2008 and CN filed its reply on May 9, 2008.

Given the nature of the jurisdictional issue raised by CN in its motion, the Agency finds it appropriate, pursuant to section 22 of the General Rules, to consider and determine this jurisdictional issue before proceeding with its consideration of the merits of PRC's complaint under section 120.1. Accordingly, the Agency will postpone pleadings on the merits until such time as it has ruled on the jurisdictional issue.

Furthermore, given that the Agency's determination of this jurisdictional issue may affect many more than just the parties to this proceeding, the Agency considers it appropriate to invite interested persons to intervene in this preliminary jurisdictional proceeding.

To this end, the Agency is now requesting comments, that are to be received on or before November 1, 2010, from any interested party who wishes to make a submission on the following issue: whether a fuel surcharge constitutes "a charge" as contemplated under subsection 120.1(1) of the CTA, or whether a fuel surcharge forms part of the "rate for the movement of traffic" and as such is excluded from subsection 120.1(1) by virtue of subsection 121(7) of the CTA. Copies of the submissions should be served on CN at the same time as they are filed with the Agency.

CN will then have until November 11, 2010 at the latest, to respond to any comments from the interested parties.

To ensure that Agency proceedings are effective, the Agency will only grant extensions of time in exceptional circumstances. The factors taken into consideration by the Agency for any extension request can be accessed on line at http://www.otc-cta.gc.ca/eng/extensions. Parties must provide clear and convincing evidence supporting any such request.

Written comments can be sent to the Agency via e-mail at: rif-rir@otc-cta.gc.ca

Alternatively, comments may be sent by mail to the following address:

Secretary
Canadian Transportation Agency
Ottawa, Ontario K1A 0N9
Attention: John Corey

Should you have any questions regarding your submission, you may contact Patricia Lavigne, by telephone at 819-953-0318, by facsimile at 819-953-8353, or via e-mail at Patricia.Lavigne@otc-cta.gc.ca.