VIA moved its case against CN's crossing supplements to Quebec Superior Court, following the vacating of its application for judicial review in Federal Court in February, 2025. The case is still before the Court in Montreal, though obviously not on the urgent basis VIA had requested. It appears to this interested observer that the Court may hear the case in December of this year, or January of 2026.
Previous posts providing scene-setting for the Superior Court situation:
Due to the volume of requests for information on the CN-imposed crossing speed reductions and their effects on VIA (three sample requests below from VIA's Governance and Ethics webpage), the VIA Access To Information (ATI) & Privacy Co-ordinator worked with VIA's external law firm to compile a repository of key publicly available documents from the court file, made available to multiple requestors for temporary access as requested.
In this post, you'll read samples of public court documents made available to me through an ATI request - affidavits, exhibits and emails - some translated from French, bringing to light some of the background work and meetings that have taken place before and after the April 23, 2025 Quebec Superior Court interlocutory injunction hearings, and the subsequent June 20, 2025 Appeal Court of Quebec appeal of the rejection thereof covered in
Part 2 of this series. It remains to be seen when the case will finally be heard in Quebec Superior Court - likely in December, 2025 or early in 2026. This post shows, for the first time, the increasing role that the government regulator, Transport Canada was assuming as a real participant in resolving the CN-imposed crossing speed reductions. Prepare a beverage if you wish. Or two. Or three...
As in previous Court-related posts, where appropriate, selected direct quotes or completely-unaltered passages directly from Court documents are in "quotations", with editorial notes appearing in [square brackets]. Points that I found particularly notable or surprising are underlined. Let's start this post back in March, 2025...
ALLONS-Y! ON TO THE QUEBEC COURT!
On March 10, 2025, VIA and CN were in Quebec Superior Court before the Honourable Enrico Forlini in a case management conference. CN was represented by the new-to-the-file legal firm NortonRoseFulbright, whose lawyers said the volume of evidence (more than 10,000 pages, purportedly) and short timeline made it impossible to agree to a schedule. Another meeting was scheduled for March 14, which lasted one hour, a subsequent day-long meeting on March 19, and a 90-minute meeting on March 20 discussed documents including those from Transport Canada.
A POSSIBLE RESOLUTION? DOUBLE-VENTURE TRAINS
Public court documents supporting VIA's injunction include a revealing March 27, 2025 email from VIA's General Counsel Denis Lavoie to CN's Chief Legal Officer Olivier Chouc with the subject line - Notice to CN of Double-Venture implementation (email in italics - below). This would have been a rather drastic resolution, operationally, to CN's Crossing Supplement, with many train suspensions! Interestingly, VIA trains No 60/50 and 62/52 did begin operating as double-Ventures between Toronto and Montreal/Ottawa (respectively) on February 2, 2025, perhaps as a test for marshalling more double-Ventures that would be permanently-coupled. [Spoiler - the double-Venture plan was not subsequently implemented.]
As CN is aware, VIA has been considering coupling Venture trains, effectively increasing their axle count from 24 to 48. VIA’s understanding is that those “Double Ventures” would not be subject to the restrictions imposed by CN requiring sub-32- axle Venture trains to apply CROR 103.1(f) at 308 crossings. We would respectfully ask a confirmation from CN that our understanding is correct at your earliest convenience, but by no later than March 28 at 2 p.m. as we need this information to ensure the fastest possible implementation of this new temporary operating model.
VIA intends to move forward with the implementation of the Double Ventures as soon as reasonably practicable.
Switching to a Double-Venture operating mode entails making important service reductions affecting the public as VIA will not be able to operate its current schedule. It simply does not, and will not in the foreseeable future, have enough trains and cars to do so, nor adequate infrastructure to support large numbers of Double Ventures. As such, VIA would have to implement the following temporary service suspensions, representing 52 trains out of the 388 trains VIA operates weekly on the Corridor:
The attached draft equipment cycling plan and trainsets also reflect the intended implementation of the Double Ventures and Legacy trainsets that VIA expects to operate under this mode of operation.
Although the intent of this communication is not to go into the details of the impacts of this measure, it goes without saying that these temporary service suspensions will also have significant impact on our workforce as well (not only on the public).
Please be advised that VIA does not renounce the use of the frequencies associated with the above temporary suspensions as we intend to use them again and resume our full passenger service schedules as soon as possible.
VIA wants to emphasize that it does not want to do this and that it constitutes in no way an admission that a train must have 32 axles as a minimum to operate safely. However, VIA has no other alternative to alleviate the unsafe burden on VIA’s locomotive engineers.
Proposed collaborative path forward -
Finally, as already proposed on March 12, 2025, VIA once again proposes that CN lift its restrictions on the crossings for which CN has no indication of any short warning times.
VIA proposes that the parties continue to monitor for short warning times, perform testing, assess root causes, conduct required risk assessments, and implement proportionate remediation measures where and when necessary to maintain safe operations. VIA has always been open to transparent collaboration with CN and continues to invite such collaboration.
CN and VIA should conduct joint testing to accumulate objective empirical data for both VIA and CN trains warning times, continually assess risks and appropriate mitigations. The path we are proposing is the normal industry evidence-based approach, with continuous testing and investigation, and targeted and proportional remediations only where risk levels require them and are appropriate after considering the full picture, as per the requirements of the Safety Management System Regulations.
If CN is interested in the above, please let us know as soon as possible.
The reply from CN's Chouc came the very next day, tartly threatening to share VIA's plan with the Quebec Superior Court, as the Double Venture implementation would make VIA's injunction moot, thereby imperilling VIA's case. Omnipresent on-board shunt enhancers were proposed as a shoulda-coulda-woulda solution:
Thank you for your email and the discussion yesterday. We confirm that the Crossing Supplement would not apply to the “Double Ventures” operating with 48 axles, which we understand you intend to implement next Monday, March 31 based on the equipment cycling plan attached to your email.
Considering the risk inherent to operating your Venture trainsets in their original configuration, you are making the responsible decision. It is unfortunate that we are where we are when the issues associated with this type of equipment have been known to the industry and to VIA for over a decade, including at the time VIA chose to purchase the equipment. It is also unfortunate that VIA elected not to equip the trains with shunt enhancers which have been proven to solve the issue.
We take note of your comments regarding service reductions. It is unclear to us why VIA has opted for this solution over less disruptive options, including adding a third person in the cab of the locomotive (which would not have to be a qualified engineer) or increasing the number of axles by a lesser amount (at least 32).
In light of this material development, it is obvious that VIA’s application for an interlocutory injunction from the Quebec Superior Court is moot. We will be writing to the Court to provide an update on the situation.
As to the proposed path forward, we are certainly interested, as we have always been, in co-operating with VIA for purposes of ensuring that VIA’s trains run safely on CN’s infrastructure. I will ask Hoang Tran to reach out to Nicolas Panetta to set up a meeting to discuss the appropriate modalities.
AFFIDAVIT OF VIA's NICHOLAS MACKENZIE re: DOUBLE-VENTURE TRAINS
On March 30, Nicholas MacKenzie, then VIA's Senior Manager, Network Planning (until becoming ALTO's Director, Operations and Rolling Stock in July, 2025) swore this five-point affidavit regarding the Double-Venture trains, with the above email exchange just completed:
1. VIA’S POTENTIAL DEPLOYMENT OF DOUBLE-VENTURE TRAINS AS AN INTERIM MITIGATION MEASURE IF AND WHEN REASONABLY PRACTICABLE
Since I signed my affidavit on March 3, 2025, VIA has continued to assess ways to mitigate the impact of CN’s grade crossing restrictions, and the review process of the Double-Venture option that I described in affidavit has progressed. VIA intends to move forward with this option if and as soon as reasonably practicable, as a temporary measure for a few weeks until the Restrictions are lifted in the very short term and insofar as operationally feasible. It remains unsure whether we will have the capacity to implement the Double-Venture Plan and when it will be feasible, given the operational, technical, safety, business, and other validations that remain to be completed and may take weeks.
On March 27, 2025, as part of this validation process, VIA sought from CN confirmation that, if it were to deploy a Double-Venture cycling plan as soon as reasonably practicable, CN would not impose restrictions under CROR 103.1(f). On March 28, 2025, CN confirmed the restrictions would not apply to the use of Double- Venture trains. I reviewed CN’s March 28 response and want to correct in this affidavit many of CN’s misunderstandings, including its mistaken claim that we “intend to implement [the Double-Venture Plan] next Monday, March 31”, given that VIA continues to assess the feasibility of this potential solution and that our notice to CN was part of this assessment.
Many internal and external stakeholders have to sign off on the Double-Venture Plan, including approvals from Metrolinx and Canadian Pacific Railway for instance. We expect that deploying Double-Venture trainsets would temporarily mitigate the urgent safety risks caused by the restrictions’ unacceptable impact on the cognitive workload of VIA’s locomotive engineers, but it would create a host of other gravely harmful consequences for VIA and the Canadian public.
2. DETAILS ON THE POSSIBLE PLAN TO DEPLOY DOUBLE-VENTURE TRAINS
In parallel to technical, safety, business, and other validations, my team and I have developed and continue to develop a plan (Double-Venture Plan) to assess the feasibility of deploying Double-Venture trainsets. As it stands, this would involve:
- Coupling (or “jaying”) 8 Venture trains (out of VIA’s fleet of 24 [actually 28 at the time] Venture trains) into 4 “Double-Venture” trainsets operating with 48 axles;
- Shortening VIA’s remaining 19 trainsets, which consist of various older models that are all 30 years old or more (“Legacy trains”);
- Keeping on standby a Legacy train and a single Venture train, both in Toronto and Montreal, to replace any train that might have a problem;
- Moving VIA’s unused Venture trainsets out of service.
Having more than 4 Double-Venture trainsets in service is not realistic because we have limited storage and maintenance capacities and because Double-Venture trainsets are too long to park overnight at various stations. At present, roughly two-thirds of VIA’s Legacy trains operate with 5 or 6 cars (24-28 axles), but to minimize service disruption the Double-Venture Plan would shorten many Legacy trains and have over 50% running with 4 cars only (20 axles), thus reducing capacity on these Legacy trains. The Double-Venture Plan assumes, as a necessary condition, that VIA will operate without CN’s restrictions.
3. DOUBLE-VENTURE TRAINS WOULD CAUSE VERY SIGNIFICANT SERVICE CUTS, FURTHER AGGRAVATING VIA’S REDUCED SERVICE
- Two principal metrics are used to measure the offer of passenger rail service: Available Seat Miles (ASM), measuring the capacity of passenger service offer calculated by multiplying the number of seats available by the distance travelled; and
- Departures per week, measuring the frequency of how many trips are offered from an origin point to a destination point.
Switching to Double-Venture trainsets would be aggravating VIA’s already reduced offer to Canadian passengers, but the safety risks due to the restrictions’ impact on VIA locomotive engineers’ cognitive workload are not considered to be tolerable and must be addressed urgently. Should we implement the Double-Venture Plan in the near term until the Restrictions are lifted and insofar as operationally feasible, VIA’s passenger services would be brought down to 25 million ASM and 336 train departures weekly (i.e. 280 legacy departures plus 56 Double-Venture departures).
This 25 million ASM offer would represent an immediate reduction of approximately:
- 18% in ASM in comparison to the service that VIA should have offered but for the decision to put on hold the Venture fleet’s gradual deployment (30.5 million ASM);
- 14% in ASM in comparison to the schedule for 2025 (29 million ASM).
This would also represent an immediate cancellation of 52 train departures weekly in comparison to the 2025 budget (388 departures weekly), mostly between Toronto and Ottawa. For context:
- With the gradual deployment of Venture trains, VIA should have been able to offer roughly 30.5 million ASM weekly in April 2025, bringing VIA’s offer back to pre- pandemic levels.
- But due to the effect of VIA’s January 2025 decision to put on hold the gradual deployment of Venture trains (given the Restrictions’ workload impact) and of the Legacy train phase-out, VIA is already offering much less service than it should.
- Specifically, VIA now offers 26.1 million ASM and 370 train departures weekly following the cancellation of 18 departures per week in early-February 2025.
4. OTHER VERY SERIOUS CONSEQUENCES THAT WOULD RESULT FROM IMPLEMENTING THE DOUBLE-VENTURE PLAN TEMPORARILY
Given the urgency of addressing the safety risks due to the CN-caused excessive cognitive workload of locomotive engineers, VIA may be forced to accept an unacceptable solution like deploying Double-Venture trains if and when reasonably practicable for a few weeks until the restrictions are lifted and insofar as operationally feasible. VIA’s assessment confirms that no solution other than operating Double-Venture trains would feasibly remove safety risks related to the engineers’ excessive workload in the near term.
Implementing the Double-Venture Plan means choosing the lesser of two evils, and it would still cause very serious consequences to VIA, employees, and the general public:
- Capacity and frequency reductions would prevent VIA from fulfilling its mandate to provide adequate services to Canadians.
- VIA would lose further customers switching to other less sustainable modes of transportation (like driving or flying), as VIA would expect an important drop in tickets sold due to changed passenger travel habits, some of which may be permanent.
- Implementing the Double-Venture Plan would cause important financial losses given the lost revenues resulting from the cancellation of 52 train departures weekly and an increase in operating costs due to the need to pull a second (often empty) Venture train. This is in addition to the fact that numerous Venture trains representing investments of roughly half a billion dollars would have to be put out of service.
- Service cuts would aggravate the serious harm to VIA’s reputation and brand, which has already suffered from the train delays caused by the Restrictions.
- For the weeks during which the Double-Venture Plan may be implemented, service cuts would necessarily result in a loss of seasonal employment and a temporary conversion of some full-time VIA jobs to part-time jobs.
5. THE DOUBLE-VENTURE PLAN COULD ONLY BE A TEMPORARY MITIGATION MEASURE
The Double-Venture Plan – if its feasibility is validated – could only serve as a temporary Band-Aid mitigation measure to suspend the unacceptable workload levels of locomotive engineers for a few weeks until CN’s restrictions are lifted in the very short term and insofar as operationally feasible, not longer.
For instance, deploying the Double-Venture Plan in the longer term could lead to job losses, as an equivalent of 25-30 full-time jobs would no longer be needed. Nor can VIA allow the very significant and serious Double-Venture service cuts to become permanent, given its public mandate and the fact that aging Legacy trains must continue to be decommissioned gradually.
VIA will therefore have no other reasonable option but to reintroduce single Venture trains if the restrictions are not lifted in the short term. Maintaining the Double-Venture Plan longer than a few weeks is unsustainable and would force VIA to cut down its services further and further.
* * * * *
Early in April, 2025 [beginning on April 1 = April Fool's Day!] several affidavits were sworn for the upcoming case. Some affiants had provided previous affidavits, but some were participating in the case for the first time, such as:
APRIL, 2025 AFFIDAVIT - ELLIOTT KAYE
April 1, 2025 - Elliott Kaye - CN Signals and Communications Quality Assurance Manager. [It is a rather long affidavit, reproduced almost fully and lightly-edited. One of the few sources of information on testing conducted pursuant to the
Ministerial Order MO 24-01.]
I was in charge of several aspects of loss of shunt testing conducted by CN in December 2024 on the Drummondville, St. Hyacinthe, and Kingston subdivisions. I am also presently leading the technical response to requests from Transport Canada in connection with Ministerial Order 24-01.
A. Testing conducted by CN in December 2024 in the Drummondville, St. Hyacinthe, and Kingston Subdivisions
- On December 10, 17, and 18, 2024, CN conducted testing on VIA Rail Canada Inc.’s (“VIA”) Venture Trains specifically directed to loss of shunt at 24 crossings on CN Drummondville, St. Hyacinthe, and Kingston Subdivisions. These 24 crossings were selected because they are a good representation of the type of grade crossing warning systems in place across the network. The purpose of this testing was to replicate part of the testing done by the National Loss of Shunt Committee in the United States on CN’s network in Canada. We performed this testing in December, when shunting conditions are ideal due to wet weather, so that the results obtained could serve as a baseline for other testing to be conducted in poor shunting conditions. I was involved in the design of this testing program (e.g. what data was to be collected and in what order the crossings should be tested).
- To perform the tests, we co-ordinated with VIA because we needed their locomotive engineers not to apply the Crossing Supplement when approaching the crossing. For the tests, we needed the trains to approach the crossings at a constant speed, rather than decelerating until they were close to each crossing and accelerating again once the warning system was activated for the required amount of time. We manually protected the crossings during the tests by stationing flaggers (i.e. personnel with flags) at the crossings. A number of Transport Canada rail safety personnel attended the testing, namely Mr. Ioan Chis, Mr. Pierre Marcotte for the testing in Drummondville and St. Hyacinthe Subdivisions, and Mr. Darrell Vidler and Mr. James Rochon for the testing in the Kingston Subdivision.
- My role in this testing comprised the following: (i) track circuit sensitivity testing that was conducted starting on October 31, 2024; (ii) coordinating the retrieval of 1⁄4 second logs and producing shunting profiles on the basis of these logs; and (iii) compiling all of the other data recorded during our tests for each crossing, namely the identifying information for the train, time, test speed, axle count, temperature, humidity, and barometer readings. We recorded this data for every train that passed through the 24 crossings that were part of the testing program, which enabled us to compare the shunting profiles of various trains and axle configurations, including those of VIA’s Venture trains.
- We had received Ministerial Order 24-01 on December 10, 2024, the first day of this testing program. As a result, we included the IXS logs downloaded from the grade crossing warning systems on the date of the tests, the shunting profiles, and the data collected about the test conditions as part of our response to Ministerial Order 24-01 on January 9, 2025.
- I am also the author of a document that describes the methodology and results of the December 2024 testing (the “Summary of Testing” document). This document was included in the package that was sent to Transport Canada on January 9, 2025. The Summary of Testing document also describes the loss of shunt testing that CN performed on the Illinois Department of Transportation (IDOT) Venture trains and the simulated testing performed on VIA’s Venture trains.
- As I described in the Summary of Testing document, the results of this testing were consistent with our expectations based on our work on the National Loss of Shunt Committee. The following is an extract of the Summary of Testing document: During the testing we saw three distinct shunting profiles. The freight train has an ideal shunting profile, where the train is detected by the crossing warning system once it gets on the approach, and it shunts in a linear manner. The 28 axle VIA shunting profiles shows that the crossing warning system also detects the train once it hits the approach, but the shunt profile is moving away from being linear with signs of erratic shunting. Lastly, the 24 axle VIA shunting profiles shows that the crossing warning system has a hard time picking up the train once it hits the approach, the profile is even less linear than the 28 axle, and it is far more erratic as well. Looking at both the 28 and 24 axle profile there are signs of a potential floating shunt situation. During our testing there was not a floating shunt detected, due to the weather conditions, but given the data the potential is there. We would need a sustained period of dry conditions, which would then create a scenario where we potentially could have a floating shunt. We witnessed similar results during our testing in Effingham, Illinois while doing similar testing. The White Paper Report that was created by the National Loss of Shunt Committee, out lines [sic] all of the various, extensive testing that we have done to mitigate the floating shunt issue.
- We detected only one short warning time that we suspect was attributable to train handling (i.e. a train accelerating through the crossing), but these results were in line with our expectations given that the testing was intentionally carried out in ideal shunting conditions and, as noted, intended to serve as baseline testing for other testing to be conducted in poor shunting conditions. For investigating loss of shunt, the shunting profiles provide the most important information. Despite the ideal shunting conditions of these tests, we still found clear indications of poor shunting with the VIA Venture trains. Based on our experience with the same testing in the United States, this type of shunting behavior could turn into erratic and very erratic shunting and floating shunts (i.e. when the shunt hops between different axles of the train) in poorer shunting conditions.
B. Analysis of Short Warning Time Data for the Drummondville Sub. Prepared for Transport Canada
- On February 11, 2025, CN provided Transport Canada with a spreadsheet in which it analyzed a subset of the raw data that CN had provided to Transport Canada on January 9, 2025 in response to Ministerial Order 24-01 (the “Drummondville Short Warning Times Analysis”). I am aware that this analysis was provided to Transport Canada in response to a request during a call on January 31, 2025 that CN identify the rationale for short warning times for approximately 25% of the crossings that were the subject of the Ministerial Order. I work closely with Troy Samuel and Thomas Hilliard, who attended the call on behalf of the Signals and Communications team.
- The Drummondville Short Warning Times Analysis was prepared by members of our Signals and Communications team for the Eastern Region (i.e. Eastern Canada), but I have been working on a similar analysis in connection with a request from Transport Canada that we provide a comprehensive analysis of short warning times in respect of all of the logs submitted to Transport Canada in response to MO 24-01. As such, I am familiar with the underlying methodology and the type of records that are used. It is not the intent of either analysis to identify instances of shunting problems as we do not have corresponding 1⁄4 second logs for the crossings, dates, and times under review by Transport Canada. Rather, these analyses were prepared in response to Transport Canada’s more general concerns about short warning times. To record a 1⁄4 second log, the current state of the technology is such that you need to be physically at the crossing. It may also be necessary to upgrade the display and track cards for certain grade crossing warning systems. In contrast, the data being analysed in the Drummondville Short Warning Time Analysis and the larger analysis that I am preparing for Transport Canada is based on the logs recorded as a matter of course by the grade crossing warning devices at our crossings.
- In response to the request from Transport Canada on January 31, 2025, CN decided to provide an analysis of short warning time data for the Drummondville subdivision first because the same information was needed to respond to two letters of non-compliance, dated January 21 and 22, 2025, respectively. These letters raised concerns about, among other things, short warning times observed by two Transport Canada Railway Safety Inspectors (Signal Systems & Crossings), Mr. Ioan Chis and Mr. Pierre Marcotte, at crossings in the Drummondville subdivision. As noted above, Mr. Chis and Mr. Marcotte also attended the testing on the Drummondville and St. Hyacinthe subdivisions in December. The crossings addressed in the Drummondville Short Warning Times Analysis were selected because they were the crossings at which short warning times had been observed by Transport Canada’s inspectors, as noted in the letters of non-compliance.
- I am aware that the Drummondville Short Warning Time Analysis was updated on March 21, 2025, to correct the inadvertently omission of 54 occurrences of short warning times for one of the crossings included in the spreadsheet. The Drummondville Short Warning Times Analysis is a spreadsheet made up of seven worksheets, each of which is labelled with the relevant crossing number. The purpose of the analysis is, as stated above, to identify short warning times and their cause insofar as that is possible, and the train associated with the short warning time.
- Calculating the actual warning time is straightforward provided you understand the nomenclature in the downloads. One of the issues we encountered during the recent exchanges with Transport Canada is that they identified a huge number of short warning times in our data that were not actually short warning times because we believe they were using the warning times recorded in the train log, even though there is a statement in the log itself that the actual warning times shown in the log are “FOR MAINTENANCE PURPOSES ONLY” and “ARE NOT USED IN WARNING TIME CALCULATIONS.” The format of the logs depends on the model of the device from which they are downloaded. The next step is to determine if the actual warning time calculated on the basis of the logs is compliant with the minimum warning time for that crossing. The minimum warning time for a grade crossing warning system can be identified from its design and board plans and for the crossings covered by the Drummondville Short Warning Times Analysis, ranged between 24 and 33 seconds. These plans were provided to Transport Canada in accordance with the Ministerial Order. The information available in the design and board plans can vary. Some show only design warning time, while some show both design and the minimum warning time.
- If a short warning time is identified, then the next step is to look further into the downloads to see what happened before the grade crossing warning system was activated. This is where the information about the speed at which the train was travelling becomes relevant. If the downloads show the train stopped or slowed down enough after entering the crossing approach and before reaching the crossing itself, then the grade crossing warning system will have had an opportunity to recover (e.g. the gates will start to lift). This could happen, for example, where a train stops to pick up passengers. We also look to see if the train sped up in the crossing approach or “charged” the crossing, which may be a non-compliance with CROR 103.1(g) if the train accelerates by more than 5 MPH. Either one of these circumstances can result in short warning times, but they are generally the easiest to determine just with the download alone.
- Other less obvious reasons for short warning times require additional investigations as the download data alone can only get us so far. To further investigate the movement of a particular train through the crossing, we take historical information from our wayside inspection systems (i.e. hot box detectors or HBDs) and our dispatch systems. We use the time from the crossing downloads and cross reference that to the wayside systems to determine direction of travel, train information, and the number of axles. This information can be found in Columns H to O of each worksheet of the Drummondville Short Warning Times Analysis. The time that the train passed by the site of the closest hot box detector is recorded in Column K of each worksheet of the Drummondville Short Warning Times Analysis, alongside the location of that hot box detector, which is recorded in the preceding column I. We can also look at our dispatch system to get the train ID and see if there was any other activity with the movement (e.g., train meet, train came out of the siding, crossover move within an approach, etc.).
- It is possible that the time stamps recorded by the wayside inspection systems and the grade crossing warning systems are not synchronized, due to, for example, a power outage or daylight savings times at one, and not the other, as the two devices do not communicate with each other. The time stamps recorded by the wayside inspection systems are accurate because they are updated in real time.
- Finally, the time period over which this analysis was conducted was determined by the amount of data available in the logs downloaded from the grade crossing warning systems at the crossings in question. For example, the first tab in the spreadsheet addresses the crossing at mile post 46.35, for which data was available between October 27, 2024 and January 8, 2025 (i.e. the date we downloaded the logs), whereas for the second tab in the spreadsheet which addresses the crossing at mile post 51.72, we had more data, back to August 21, 2024. The amount of data that we can get from a particular grade crossing warning system depends on the storage capacity of the device and the number of events that it logs. As new events are recorded, records of older events are lost unless we download the data.
APRIL, 2025 AFFIDAVIT - HOANG TRAN
On April 1, 2025 CN's Senior Director, Regulatory, System Safety and Passenger Operations, Hoang Tran provided a 492-page affidavit to the Court. The affidavit and supporting exhibits, including emails, reveal much of what was going on between VIA, CN and Transport Canada in early-2025, prior to VIA's injunction against CN's Crossing Supplement reaching the Quebec Superior Court in late-April, 2025.
Regarding the December 10, 17, and 18, 2024, CN-conducted testing on VIA Venture trains specifically directed to loss of shunt at 24 crossings on the Drummondville, St. Hyacinthe, and Kingston subdivisions, Hoang Tran explained, "It was necessary to coordinate with VIA to perform the tests and we invited them to participate in the testing. However, VIA refused to sign a non-disclosure agreement which would have prevented them from sharing the results of the testing with the media. We were concerned about this possibility because we anticipated that VIA would not provide the proper context and interpretation of the data. Accordingly, we did not share the results with them. They have of course received them since through the disclosure made by the Attorney General in the Federal Court proceedings."
January 22, 2025 - Another round of testing took place on the short-warning time plagued CN Drummondville Subdivision on January 7-8, 2025. Transport Canada's Railway Safety Inspector Pierre Marcotte wrote (above) to Steven Mazzella, CN S&C Director:
From January 7, 2025, to January 8, 2025, I conducted an inspection of signals belonging to the Canadian National Railway Company and identified the non-conformities [short warning times at crossings] described in my attached inspection report: Mileages 46.07, 46.35, 51.72, 61.83 and 74.11. Transport Canada is also noting the concerns identified during the inspection for the purpose of informing the regulated party and for its consideration. Please inform this office in writing, no later than February 6, 2025, how you intend to address these non-conformities and concerns.
February 14, 2025 - In response, Lynda MacLeod, CN's Senior Manager Regulatory Affairs wrote to Transport Canada's Ioan Chis, Railway Signal Systems & Crossing Inspector for the Quebec Region in Dorval with the following analysis:
CN’s preliminary review of the Drummondville data suggested that almost all incidents of short warning times were associated with VIA Venture Equipment. CN has now reviewed this data in greater detail and confirms the following:
- The total number of incidents of short warning time documented in the attached file is 206.
- 191 are associated with VIA equipment (93%) most of which are VIA Venture equipment (90%) and some marginal VIA Legacy [equipment] (3%)
In the letter you have requested CN to provide a corrective action plan. CN reiterates that CN’s crossing equipment is functioning properly as designed. Regarding the CN identified events, CN has confirmed that these events were not as a result of loss of shunt but were largely attributable to crew accelerating in the crossing approach. As a corrective action CN will be issuing an educational notice and will be coaching crews. CN reiterates, that while CN has not had the time to do the same exercise for the over 300 crossings included with the MO, given these Drummondville crossings are a subset of the MO dataset, CN believes the Drummondville findings to be representative of what would be found in the complete data set. [...even though it was the Drummondville Sub short warning times at Alstom XP4-equipped crossings that led to the first GBO's being issued. This seems a key point because CN is portraying the Drummondville crossings initially problematic to VIA's Ventures as a microcosm, choosing to believe those crossings were representative of its entire Corridor crossing protection network.]
Moreover, CN has used the tools it has within its control to try to mitigate this safety issue by placing restrictions on VIA Venture equipment. Importantly, Ministerial Order MO 24-01 notes that the information provided by CN will be used by TC in determining next steps including requiring companies to implement corrective measures. In the interest of safety, CN looks forward to working collaboratively with Transport Canada however, clearly this is not a CN issue and it remains CN’s position that any regulatory action should not be directed at CN.
February 19, 2025 - Transport Canada is clearly not satisfied with CN's view of things and its insistence that VIA's Ventures are the sole cause of short warning times. Maryam Hedayati, Transport Canada's Senior Railway Engineer and A/Chief Engineer, Crossings and Signals, Railway Safety Operations emailed CN's Lynda McLeod:
First, I would like to clarify that the there are two separate activities that occurred in parallel.
- The Ministerial Order [MO 24-01]) to verify compliance to GCR 16.1.1 – Task of TC Headquarters (HQ) – The review suggested evidence of non-compliant short warning times - prior and post [issuance of the CN] crossing supplement.
- Onsite inspections were part of our oversight plan, which happen to include small percentage of crossings in the M.O. This activity revealed a certain number of non-compliant short warning times as well.
Ministerial Order Data:
A designated railway safety inspector at HQ is evaluating CN’s submission as part of the M.O. to verify compliance for the 304 crossing locations. The preliminary analysis to date identified:
- Approximately 80 (representing 26% of the 304 locations) grade crossing warning systems located over ten (10) subdivisions in the provinces of Quebec and Ontario, experienced short/non-compliant warning times based on the timeframe provided in the logs. The detailed list of crossing locations is attached to help CN focus its analysis.
- These preliminary findings suggest the presence of non-compliances/short warning times have occurred prior to, and post, implementation of the Crossing Supplement, which highlights that concerns remain where warning systems are not consistently and reliably providing compliant warning times.
- The responsibility to ensure compliance with the operation of warning systems at both public and private grade crossings, resides on the railway company as per the Grade Crossings Regulations. As the host railway, CN is responsible for the infrastructure and maintaining operation requirements, and ensuring that their operation, and any local railway company operations does not result in non-compliances/short warning times.
Drummondville Subdivision Data:
- A cursory review of the Drummondville Subdivision data highlights approximately 13 instances of short/non-compliant warning times (versus 206 short warning time CN noted) for the 8 crossings. This may be due to CN’s internal practices for establishing warning times, versus GCS minimum warning time requirements.
- The trains involved in these instances of short/non-compliant warning times included VIA Venture, CN, and unidentified trains.
February 21, 2025 - A meeting was held between eight TC participants and four CN participants to discuss the dual issues: the Ministerial Order data and the Drummondville data. In a follow-up email, TC's Maryam Hedayati provided a copy of the slides [title slide (above) other slides virtually totally-redacted] and "a summary of occurrences at crossings with alleged non-compliances to-date". Titles of the redacted slides: Determining Non-compliances, Findings, Example Drummondville 51.72, Annex: Train type consideration.
During the meeting, CN "noted that short warning times are related to the train types and offered to provide this information. While the train type is of interest, [TC's] primary concern is addressing these non-compliances, and ensuring that a reliable and consistent warning time is provided for all train types at these crossings." Non-compliances were to be addressed by February 28, 2025.
February 25, 2025 - TC's Pierre Marcotte emailed CN's Lynda McLeod re: inspection reports dated January 21-22, 2025. Noted: the number of short warning times was inconsistent mostly related to CN Drummondville Sub crossing Mi. 61.83. An update was requested from CN by March 11, 2025.
February 28, 2025 - CN's Hoang Tran emailed TC's Maryam Hedayati: "Our Signals and Communications team has reviewed the Summary of Occurrences at crossings with alleged non-compliances data provided. Their findings, based on the Summary of Occurrences TC has provided in conjunction with the data set that CN provided in response to the M.O., are inconsistent with, and vastly different from TC’s findings. While our team did find some instances where there were short warning times, the prevalence of these was nowhere near the numbers contained in the Summary of Occurrences. Given the large discrepancy in our own findings versus what you have highlighted, we strongly believe that we should align on the possible magnitude of the problem, if any, before discussing potential additional mitigating measures and controls, [asking for a further meeting]."
March 21, 2025 - CN responded to Mr. Marcotte’s email of February 25, 2025, explaining that 54 occurrences of short warning times had been inadvertently omitted for the crossing at mile 61.83 between August 13, 2024, and October 12, 2024, contending that "all of these instances of short warning times were associated with VIA Venture equipment. We made this statement because we want any corrective measures ordered by Transport Canada to be addressed to the right company."
March 4, 2025 - TC representatives suggested an agenda for an upcoming meeting:
- Preliminary Findings of TC analysis of the Ministerial Order Submission
- Effectiveness of Measures Implemented to address Increased Cognitive Workload
- Collaborative approaches to addressing safety risks identified by both CN and VIA
March 6, 2025 - VIA's Nicholas Panetta responded to the agenda as circulated, suggesting some solutions to the ongoing issues:
- First step should be to lift restrictions across the network for crossings where CN has no data of short warning for VIA trains (the vast majority). This makes sense to remove the intolerable cognitive workload risk across the network where there’s no short warning times, and since we are five months after October 11, 2024, without a risk assessment from CN or any information showing any immediate safety threat.
- Second, CN could keep restrictions at crossings on the Drummondville Sub where CN has some short warning times data. This would not be a permanent solution. Industry practice would be to have some temporary protections at those crossings while they are being fully investigated and proper solutions duly implemented (e.g. through adjusted crossing system activation time and/or rail grinding to remove rust).
- Third, VIA and CN should continue testing to accumulate objective empirical data for both VIA and CN trains warning times, to continually assess risks and appropriate mitigations.
- The path we are proposing is the normal industry evidence-based approach, with continuous testing and investigation, and targeted and proportional remediations only where risk levels require them and are appropriate after considering the full picture, as per SMS. This is the approach that CN should have adopted and which we believe TC would want the parties to adopt going forward.
Hoang Tran in turn responded, in his affidavit: If VIA truly believed such a high risk of cognitive overload on the part of their locomotive engineers, they do not appear to have taken any significant measures to mitigate this. These statements indicate that VIA has set out on a path of putting service before safety when they state that they have not found an “operationally acceptable remediation” short of removing the crossing restrictions. He also claimed, by including slide decks of agendas of all 2024 monthly CN/ VIA Monthly Safety Calls as exhibits, that over the course these meetings, VIA had not raised the issue of cognitive workload risk brought on by the CN Crossing Supplements. Therefore, he opines, it was not a problem or VIA would have raised it.
March 9, 2025 - CN's Hoang Tran emailed Jay Rieger, TC's Director of Regulatory Affairs, Rail Safety and Security: "As you are no doubt aware, VIA is seeking injunctive measures to suspend CN’s Crossing Supplement related to their Venture Fleet when operating in configurations below 32 axles. CN has decades of testing and data from the Loss of Shunt Committee demonstrating that short and light passenger trains with their specific wheel profiles cause a floating shunt condition that can lead to short warning times on crossings equipped with automatic warning devices. Should VIA be successful in obtaining relief from the Crossing Supplement and its restrictions, there is no doubt that there will be an increase in short warning times caused by their Venture Fleet’s irregular shunt. This will increase risk not only to VIA trains, their passengers and crews, but also to the public. To this end, we would like to know if Transport Canada has requested shunting data on VIA infrastructure as it relates to their Venture Fleet? If so, what have been the findings? In the interest of rail safety, we feel that it is critically important that we be able to make the appropriate representations to the Courts to enlighten their decision.
March 12, 2025 - TC's Jay Rieger emailed CN's Hoang Tran in response to the above:
Hoang Tran sent a short email in response to Jay Rieger's above March 12 email, nine days later, on March 21 and doubling down on CN's position:
"Sorry for the late reply on this. CN respectfully disagrees with your statement to the effect that "thus far, have no reason to believe that short warning times on CN's network is related exclusively to only one type of train, or configuration". The data communicated to Transport Canada shows that the vast majority of short warning times event are associated with VIA's Venture equipment."
Also on March 12, 2025 Hoang Tran wrote to Jay Rieger and other Transport Canada officials to provide them with copies of the additional evidence filed by VIA in this application between March 3 and 9, 2025 for the March 10 case management conference [mentioned at the top of this post] in Quebec Superior Court before the Honourable Enrico Forlini.
Interestingly, this evidence, originally written by VIA's legal team's Bogdan Catanu to CN's legal team, had argued for CN to co-operate with VIA's Interlocutory Injunction with urgency, as VIA was compelled to act because the "situation has reached a breaking point", suggesting keeping restrictions only on the 13 problematic Drummondville Subdivision crossings. In an appendix there are chiding comments such as, "CN's Crossing Supplements were implemented reactively...a 'snap' decision...when the full scope of VIA Venture operations supposedly became known...CN lacked clear governance protocols, leaving senior personnel unprepared", a clear reference to Hoang Tran's infamous and sudden October 11, 2024 epiphany that VIA's Ventures were operating widely in the Corridor!
March 21, 2025 - Hoang Tran received a call from Stephen Scott, Transport Canada's Director of Rail Safety, informing CN that Transport Canada had called a high-level meeting between Assistant Deputy Ministers and CN’s leadership, and were possibly considering issuing a Ministerial Order to address the issue of increased cognitive load on VIA’s locomotive engineers. CN was informed that this decision would be made on the basis of information provided to Transport Canada by VIA, which we did not have access to at that time, but presumed was consistent with the position that it has taken in these proceedings and before the Federal Court. CN was invited to participate in a meeting with Brigitte Diogo, the Associate Deputy Minister of Transport Canada on Monday, March 24, 2025.
Brigitte Diogo was appointed Associate Deputy Minister of Transport Canada, effective May 6, 2024. Prior to this, she served as Deputy Commissioner of the Canada Revenue Agency starting in April 2022. As Director General of Rail Safety at Transport Canada from 2015 to 2020, she was responsible for overseeing safety requirements for federally regulated railway companies including compliance monitoring and enforcement. In this role, she led significant legislative and regulatory changes to improve rail safety regime in Canada.
CN was apparently extremely concerned about the prospect that the Crossing Supplement could be lifted. On Sunday March 23, 2025, Olivier Chouc, CN’s Senior Vice President and Chief Legal Officer, [conveniently and somewhat self-servingly] sent a "short backgrounder" with CN's position to Ms. Diogo to provide her with background on the issues and to urge Transport Canada not to take any action before taking all of the relevant considerations into account. The email includes updated reports from independent experts that CN lawyers had engaged, largely doubling down on CN's previous position. Excerpts of the backgrounder, which was not short and actually ran to six pages(!) are in quotes (below). It gives the impression that CN was actively withholding information from VIA:
"In preparation for our call on Monday, I thought I would provide a short backgrounder on the issue. The information contained in this email, as well as in the documents attached hereto and the information CN will share on the call tomorrow are provided to you with the expectation that they will be treated confidentially. Disclosure of any of this information, including to VIA, could be harmful to CN. In light of the information below and the serious safety risks which prompted CN to adopt the Crossing Supplement, we urge Transport Canada not to take any action before all of the relevant considerations have been taken into account."
"
In 2004, there was a collision involving multiple fatalities attributed to a loss of shunt issue with an Amtrak train. The National Loss of Shunt Committee concluded that the shunting performance of the Siemens Venture Railcars used by IDOT in the Chicago area was significantly worse than the shunting performance of the Amtrak train involved in that accident. Given the serious consequences of loss of shunt, CN has implemented operating restrictions such as minimum axle counts and speed restrictions in the United States." [This incident was prior another incident involving a Detroit-Chicago Amtrak train operating on CN tracks in Michigan's Canton-Township that hit a vehicle and killed the five occupants on
July 9, 2009. There had been several documented reports of activation failures at this one crossing with no apparent equipment malfunction found. The US Federal Regulator found CN at fault, which was the start of mandated minimum-axle counts, and CN was directed to lead an industry-wide Loss of Shunt task force to find mitigations for the loss of shunt issue.] FRA report from 2004 incident included in exhibits:
"VIA’s Test Results - CN only became aware on March 12, 2025, that Transport Canada has also been conferring with VIA in relation to short warning times, presumably in relation to VIA’s infrastructure. We understand VIA claims the tests it performed on its infrastructure did not reveal shunting issues. We do not know what tests VIA has performed or how their data has been analysed, but we ask that you keep in mind that loss of shunt is unpredictable and can be influenced by a number of factors, including testing conditions, wheel wear, and weather."
"Fundamentally, VIA’s own behaviour is inconsistent with the opinion of its experts. If VIA agreed with [human factors expert witness] Ms. Rudin-Brown that excessive cognitive workload posed an imminent risk to public safety, it would have acted immediately to mitigate this risk."
"VIA’s Position is Untenable - VIA has been oscillating in its position, first denying that its equipment was deficient, and then suggesting CN’s infrastructure was non-compliant. VIA’s shifting position masks the reality that it failed to properly investigate the compatibility of its equipment with the North American infrastructure and is now attempting to deflect blame on the host freight railway. Consider the facts:
- The issue is known and well documented, as evidenced by the Committee’s report.
- VIA knew or ought to have known about the issue. VIA retained the services of Jacobs Engineering to finalize the technical requirements. Jacobs played a key role in evaluation and negotiation during the procurement.
- VIA is using on its own infrastructure the same equipment as CN, namely GCP 3000’s and HXP grade crossing predictors.
- VIA has required that its next order of Venture Train Set be equipped with Shunt Enhancers.
- CN does not experience the issue with its equipment."
"VIA realized that its position was undefendable and, as a result, fabricated an argument that CN’s solution created a greater risk than the problem it was designed to remedy."
"A slower VIA consumes more capacity, an outcome that is entirely adverse to CN’s own interests. CN’s actions have been motivated by one thing only: safety."
Re: Onboard shunt enhancers:
"It is telling that Siemens, the car manufacturer, also sells the shunt enhancer system that remedies the problem, a clear acknowledgement by the manufacturer that its equipment suffers from that shortcoming. VIA has been suggesting that shunt enhancers are illegal in Canada, in an effort to obscure the issue."
If VIA is genuinely concerned with the risk associated with the alleged increased in cognitive charge, it has options:
- adding an additional crew member in the cab;
- adding two cars to its consist; or
- reducing the speed to a point where it no longer needs to observe crossing activation.
[This suggestion from CN to put more bodies in the cab comes across as a misplaced attempt to suggest how VIA should spend its salary budget.] VIA claims adding a crew member would be a cause of distraction. That statement ignores the fact that that freight and passenger operations routinely add a third member in the cab of a locomotive, including for training purposes, without increasing the risk.
On the addition of railcars, VIA claimed only a few months ago that the option could not be implemented and now advises that it is “under review”.
[Then throwing in the legal kitchen sink for the benefit of Associate Deputy Minister Diogo:]
"The reality is that VIA is pushing all levers to get to its desired outcome, including circumventing the legal process and leveraging an upcoming election to pressure the Government into acting. Finally, it is worth noting that VIA was given the option to present a safeguard order earlier this week. Doing so would have meant delaying a hearing on its application for injunctive relief. VIA chose not to present its safeguard because it knew it could not meet the burden, thereby acknowledging its concern over the cognitive charge is not the risk they claim it is."
[Clearly, CN did not want anything to detract from the course of action and positions they'd long held, such as on cognitive workload, also that VIA's position was 'shifting', their superior investigative resources, throwing shade at Onboard Shunt Enhancers, divulging VIA's future Venture orders (?) and wanting CN to have direct line to Transport Canada!]
Concluding:
Ms. Diogo responded to Mr. Chouc’s email, copied to ten others at Transport Canada and four CN contacts, on Sunday March 23, 2025, stating the following:
"I look forward to our meeting on Monday. Like CN, safety is a top priority for Transport Canada. I am aware that loss of shunt is a decades old issue in the railway industry and I am aware of the work of the National Loss of Shunt Committee in the U.S. from a briefing received from my team. It would be helpful to hear about the approach CN has taken on this issue in the U.S.; meaning, what requirements have been imposed (by CN or other host railways) on passenger railways using lighter equipment on CN’s track in the U.S. and what solutions they have adopted in response. This is just one of the questions I have for tomorrow."
March 24, 2025 - The call with Deputy Minister Diogo took place as planned. Transport Canada did not take any action that CN was aware of in respect of the issue of cognitive load on VIA’s locomotive engineers, which is a very strong indication that we were successful in convincing the Deputy Minister that our concerns about the VIA Venture trains were legitimate and serious. Mr. Chouc sent the following email to Deputy Minister Diogo following the meeting:
"Thank you very much for your time today. Acknowledging your comments about the need to explain that data that we have already provided, we would be pleased to make available Jamie and Tom to provide those explanations. Just let us know when and we will try to accommodate. I think the data is crucial to fully understand how this is not a freight equipment issue, but clearly a passenger equipment issue."
In closing, Hoang Tran's affidavit ends with:
"CN does not benefit from imposing the Crossing Supplement on VIA. In fact, VIA’s implementation of the Crossing Supplement has increased the time the average VIA train spends on CN’s railways. This only adds to congestion on CN’s railways, which makes it more difficult for CN to manage its operations and ensure on-time performance by cargo trains on its rail network. Having to impose the Crossing Supplement has also caused CN significant reputational harm given VIA’s decision to maintain their schedule without being forthright with their passengers about the cause of the delays, blaming everything on CN."
[Hmmm....blaming. I, too have been critical of VIA in previously-published posts for not explaining to its passengers more directly that CN is the cause of the delays caused by the imposition of the Crossing Supplement. Vague references to the 'infrastructure owner' are as close as VIA gets. But blaming excessive dwell time of VIA trains on CN lines on VIA? Early on, VIA has been taking the higher ground on repetitional harm - real reputational and financial harm - and has the public surveys to prove it, previously introduced in its case as a reason for this issue to be resolved.]
April 10, 2025 - Another affidavit by Hoang Tran disputes evidence by an expert witness called by VIA regarding a draft spreadsheet of short warning times. It ends with this puzzling passage:
"VIA’s rationale for cancelling trains in January 2025 - I have received a copy of VIA’s Plan d’argumentation dated April 6, 2024 [sic], which asserts that it has put the gradual deployment of its Venture fleet on hold at the end of January 2025 in order to not increase the risk related to the cognitive workload of its locomotive engineers. According to VIA, this decision has resulted in the cancellation of 18 train departures per week or about 5% of its weekly train departures. When these trains were cancelled, I had a conversation with Richard Desforges, VIA’s Director of Transportation and Operating Practices because I needed to be able to explain the reduction in our revenues. He told me that trains were being cancelled because VIA needed to pull Venture trainsets out of service to address reliability issues."
[So for those who believe the Crossing Supplement is but one strategy CN is employing to rid its network of VIA passenger trains while suggesting VIA needs to build its own Corridor network, doesn't it seem strange that CN monitors the substantial revenue stream flowing from VIA so closely, even when a tiny reduction in the number of trains is made?]
With that, the affidavits and arguments were submitted and ready to be heard by early-April.
END OF AFFIDAVITS
April 6, 2025 - CN submitted a 51-page argument plan against VIA's application for interlocutory injunction, dismissing many of VIA's positions opposing the CN Crossing Supplements, even minimizing the credibility of VIA's expert witness on crew fatigue. [Creepily submitting that the expert witness must believe that VIA's Ventures are in fact safe, since she and her husband rode Venture-equipped trains on two occasions from Montreal to Ottawa. Information apparently gleaned from the expert witness's submitted expenses totalling some $9,000.]
April 3-7, 2025 - Meetings discussed documents further; examinations and cross-examinations took place.
April 10-11, 2025 - The Honourable Serge Gaudet presided over the hearing into the interlocutory injunction against CN.
April 23, 2025 - The Superior Court of Quebec chose not to intervene and grant an interlocutory injunction against CN, see judgement in Part 2 of this series of posts.
VIA's APPLICATION IS STILL BEFORE THE QUEBEC SUPERIOR COURT
June 20, 2025 - The Appeal Court of Quebec issued a judgement on an application for leave to appeal from a judgment rendered during the proceedings on April 23, 2025. The application for leave to appeal the judgment rendered in the course of the proceedings, with legal costs, was rendered by The Honourable Myriam Lachance, Judge of the Court of Appeal.
June 26, 2025 - A hearing was held in Quebec Superior Court, Montreal courtroom 17.09 from 1030-1109 before the Honourable Serge Gaudet. A request made by CN was for confidentiality and sealing, and VIA deferred to the Court's discretion. CN and Transport Canada have, since that date, exchanged a large number of technical documents in accordance with the ministerial order. Some of the documents were filed by CN or VIA in response to an application for an injunction by VIA. Accordingly, the Court had signed the draft judgment submitted to it, with certain modifications. Specifically, to provide for the redaction of the file and documents within 30 days, and that for this purpose, the entire file would be available for the parties to carry out the said redaction, after which the file will be returned to the registry.
Some of the documents exchanged between CN and Transport Canada contain confidential and highly sensitive information about CN's rail infrastructure, rail traffic, the activation, operation, design, and programming of level crossing warning systems, as well as the results of tests conducted by CN on these warning systems; CN has filed an application requesting the court to issue various orders to protect the confidentiality of certain documents exchanged with Transport Canada; the application is supported by two sworn affidavits signed by representatives of CN; and those sworn affidavits confirm that the public disclosure of the documents covered by the application poses a risk to the safety of passengers on VIA trains and employees, and the general public. The court ordered all persons, including representatives of the plaintiff, not to reproduce, communicate, or publish, directly, the confidential information, except for the purposes of this litigation and in accordance with the terms of this judgment.
A LEFTOVER PROCEEDING ON COSTS - FROM THE FEDERAL COURT CASE
July 22, 2005 - A decision rendered by the Federal Court related to the costs awarded in the February 19, 2025 Order granting the Canadian National Railway Company’s (CN) motion and striking out Via Rail Canada’s (VIA) application for judicial review.
In a filing on March 31, 2025 CN's contended that it had incurred $1,393,219.50 in costs responding to VIA Rail Canada Inc.’s Application, which CN further contended was found to be without any possibility of success and suffering from an obvious fatal flaw. The legal fees incurred by CN related to two motions brought within VIA’s Application. The first motion was an injunction brought by VIA, which sought to stay CN’s decision to issue restrictions on certain VIA train operations in the interest of public safety. The second was a jurisdiction motion brought by CN. CN was ultimately successful on its jurisdiction motion, striking VIA’s Application in its entirety without leave to amend. CN is without question the successful party in this proceeding.
A lump sum of $512,038.08 was awarded in favour of CN, although for a lower amount than CN's requested lump sum costs that amounted to 38% of costs incurred, $735,621.43, including:
- $657,598.08 in lawyer fees representing 50% of CN’s alleged costs, and
- $78,023.35 in alleged disbursements.
Filings with the Court from both CN and VIA's legal teams ensued over the summer. VIA appealed the costs on August 1. CN responded on October 3, in turn challenging the amount of legal costs to be received from VIA. The matter was to be heard in Federal Court in Ottawa on October 22, 2025.
THE QUEBEC SUPERIOR COURT CASE SIMMERS IN THE SUMMER
July 2, 2025 - During an opinion presentation heard at 9 a.m. in Room 2.16, the Honourable David Collier ruled that given the substantial volume of evidence and the number of expert witnesses announced by the parties (five each), and considering that, due to railway safety concerns, the case should be prepared expeditiously, the Court accepted the initial protocol of the proceedings dated July 2, 2025, and referred the case to the co-ordinating judge for a ruling on the request for special handling.
As a result, on August 7, 2025 the Honourable Frederic Perodeau appointed the Honourable Donald Bisson, to provide special management of this proceeding, decide all incidental applications and make all appropriate orders, until the case is set for trial and judgment. Then, on September 23, 2025 he issued scheduling after a 90-minute hearing - the pre-trial examination of VIA representatives to be held between October 14-31, 2025 with hearing of CN's objections scheduled for December 1, 2025.
September 18, 2025 - VIA made 124-page application (above) for a permanent injunction before the Civil Division of Quebec Superior Court against CN. The allegations were supported by fact evidence and expert opinion evidence adduced by VIA and by CN before the Federal Court in anticipation of a hearing back on February 25, 2025, with very limited additional evidence. I did not go back to cross-reference the two court submissions but it seems that additional evidence has been evinced. The application covered some familiar ground:
"Locomotive engineers operating VIA Venture trains have had throughout the testing campaign, and continue to have to this day, a regulatory obligation to report incidents and infrastructure problems, such non-activation of advance warning devices at crossings. VIA is not aware of any such reports. Neither is CN, as its representatives have admitted under oath." Though CN also noted that “failure to activate” has resulted in loss of life, CN did not specify which train, in what configuration, and the circumstances that led to that loss of life incident, nor that it was caused by loss of shunt."
VIA's application also covered some new ground, showing CN's continued revision of its crossing supplements. Perhaps as a response to VIA's contentions. Perhaps as an admission that the problem does not pertain solely to VIA or is not as widespread and dangerous as CN originally contended:
"AUG. 29 AND SEPT. 13, 2025: VERSIONS 4 AND 5 OF THE CROSSING SUPPLEMENT
Despite VIA’s repeated requests since the imposition of the
Crossing Supplement in October, 2024 to obtain the underlying information supporting these unjustified, abusive, and unlawful measures, and to engage in a collaborative process to resolve the serious issues arising therefrom, CN has consistently demonstrated a marked lack of transparency and co-operation.
It was only thanks to the judicial process that VIA was able to obtain from CN certain data pertaining to the Crossing Supplement (which had always been in CN’s possession) revealing inter alia the absence of any rational basis for the differential treatment of Venture trains.
As such, the continued enforcement of the Crossing Supplement by CN constitutes conduct that meets the threshold of gross negligence or intentional wrongdoing.
Similarly, it was only thanks to recent efforts by Transport Canada (“TC”) aimed at mitigating the adverse impacts of the Crossing Supplement on VIA’s operational performance and the cognitive burden placed on its locomotive engineers that CN agreed to engage in limited dialogue with VIA.
VIA took part in this limited dialogue without prejudice to its rights, reiterating that the Crossing Supplement remains unjustified and must be lifted in full.
Such limited dialogue resulted in CN’s imposition of the “VIA Venture Equipment Crossing Supplement Version 4.0” in English and “Équipement Venture VIA Supplément pour passages à niveau Version 4.0” in French (jointly, the “Crossing Supplement v4”), effective August 29, 2025.
The Crossing Supplement v4 introduced low speed tables for a majority of crossings covered in the previous Crossing Supplement versions. Such low speed tables replaced CROR 103.1(f) requirements with constant reduced speed limits significantly lower than the normal operating speeds for Venture trains.
CN subsequently imposed the “VIA Venture Equipment Crossing Supplement Version 5.0” in English and “Équipement Venture VIA Supplément pour passages à niveau Version 5.0” in French (jointly, the “Crossing Supplement v5”), effective September 13, 2025, which extended low speed tables to additional (but not all) crossings.
In spite of the changes introduced by the Crossing Supplement v4 and Crossing Supplement v5 (including the introduction of low speed tables), the Crossing Supplement’s fundamentally unreasonable, abusive, wrongful, and unlawful nature has remained unaltered and VIA continues to suffer harm therefrom.
Specifically, a portion of grade crossings covered by the Crossing Supplement v3 (approximately 30% thereof after CN imposed the Crossing Supplement v4 and approximately 6% since CN has imposed the Crossing Supplement v5) remain covered precisely by the same requirements mandating the application of CROR 103.1(f), as required in the Crossing Supplement v1, v2, and v3.
Accordingly, the harm associated with the deceleration of Venture trains at these crossings (including delays, cognitive risks for locomotive engineers, and various operational challenges) remains in place.
For the remaining crossings, as mentioned above, the Crossing Supplement v4 and v5 have replaced CROR 103.1(f) requirements with constant reduced speed limits that are significantly lower than the normal operating speeds for Venture trains.
While the introduction of constant reduced speeds may represent a partial improvement in terms of mitigating risks associated with locomotive engineers, it remains premature to draw definitive conclusions regarding their impact thereon.
These reduced speeds, however, continue to cause material delays to VIA’s Venture trains relative to their normal operating speeds without any justification or supporting data.
Despite some partial improvement in VIA’s on-time performance, the Crossing Supplement v4 and v5 continues to artificially reduce VIA’s on-time performance below levels that would otherwise be achieved in the absence of the Crossing Supplement.
Further, with respect to the unreasonable, abusive, wrongful, and unlawful nature of the Crossing Supplement—without limitation and in addition to the harmful effects alleged above—the fourth and fifth versions of the Crossing Supplement:
- Remain applicable solely to 'VIA Venture equipment', thereby perpetuating an unjustified differential treatment of Venture trains, notwithstanding CN’s own data demonstrating a lower frequency of short warning times for Venture equipment compared to other rolling stock;
- Perpetuate a blanket rule applicable broadly across CN’s entire Corridor rail network, rather than addressing localized issues at crossings where a shunting deficiency is demonstrably present, including in contravention of CROR 103.1(f);
- Maintain speed restrictions supported neither by any risk analysis as required under section 15 of the SMS Regulations, nor by any probative evidence of genuine safety concern or of any demonstrable positive impact on mitigating such a concern (especially in spite of TC’s previous conclusion that “data does not show that the supplement has resolved the short warning times”);
- Continue to enforce a rule governing railway equipment (including speed restrictions applicable to specific train types and a requirement for 32 axles or a shunting enhancer) adopted in violation of the mandatory consultation and ministerial approval process set out in section 20 of the Railway Safety Act;
- Continue to impose an exclusive burden on VIA while CN unreasonably refrains from implementing any available corrective measures, contrary to best practices and to the responsibility framework set by the Grade Crossings Regulations, pursuant to which CN is responsible for ensuring its crossings adequately detect rolling stock;
- Retain a requirement that VIA Venture trains operate with shunt enhancers in contravention of section 27.1 of the Railway Locomotive Inspection and Safety Rules; etc."
In conclusion (whew!), it remains to be seen if any more communications are made public before the VIA application is heard in Montreal somewhere around the New Year. Perhaps? Maybe? If so, or even if not so, watch for Part 4 as we venture forward into 2026!
First past the post...
CBC broadcaster and curling great Colleen Jones has left us. I can still remember her comment[at]ing on the Olympic volleyball in whatever year in her down-East accent, "If the Fijian team [is there anymore obscure national volleyball team than that?] can win this match, their government back home has told them they each stand to be given a 'hoose' and a 'cair'.
Running extra...
Happy Thanksgiving to Trackside Treasure's American readers!
You have much to be thankful for in your country that always has been great.
Having just watched Ken Burns' PBS series on the American Revolution,
it's rather amazing your country survived its difficult birth.
Venture Set 32, operating as VIA No 63, delivered VIAphile, fellow modeller and inveterate train/transit rider and loyal Trackside Treasure reader Mark Charlebois to Kingston for a multi-hour last-Saturday summit. Topics we discussed included trains and transit, Montreal and models, Tims and Toms, and more! Mark thinks in paragraphs and has the connections and takes on modern transportation challenges, while I think in cartoon bubbles by comparison! Still living where I used to, Mark has generously gifted and generously grown
my Hanley Spur HO car fleet, in absentia until now! The summit's final communique was written on a Panera napkin which has since passed from view - it included the planned takeover of VIA, EXO and REM agencies in order to rescue them from obscurity, and operate them with an noun salad of insanity, fantasy, genius topped with a dressing of unconventionality, sprinkled with 'what-if' bacon bits!
