VIA and CN in Federal Court - The Facts

VIA applied to Federal Court seeking a judicial review, claiming CN had not performed a risk assessment nor provided evidence to substantiate the grade crossing speed reductions it imposed on VIA's new Venture trains at 304 Corridor grade crossings on October 11, 2024. In a statement of claim, VIA says CN’s orders to slow down for numerous crossings, or lengthen its Venture trains, are unreasonable and have no basis as a safety concern. The next hearing in the judicial review will be held in Montreal on February 25, 2025. I've presented the process so far in this post. While the next stage of the case awaits, in this post I'll be highlighting some of the publicly-available material that both CN and VIA have presented to the Court. 

In this post, you'll find important information submitted to support VIA's application:

• a timeline of communications between VIA and CN;
• an independent and impartial analysis of CN's actions by rail-industry experts;
• the damage being caused to VIA's reputation;
• a few concluding editorial thoughts.

I've tried to keep the timeline clean for clarity. I've interspersed the expert analysis with some extracts from the documents submitted to the Court.

VIA submitted a total of 2,948 pages of material. Frankly, though some of it may be background for citations in VIA's legal strategy, much of it seems redundant to the layman. For instance, two complete bilingual sets of Canadian Rail Operating Rules (241 pages each), two sets of Transport Canada's Grade Crossing Standards (106 printed pages each) and 604 pages of supporting material comprising legal case precedents, industry standards and PowerPoints, etc. Faced with the daunting task of reviewing 3,000+ pages, I was glad of this redundancy!

Several VIA Rail executives, and three expert witnesses from within the rail industry, provided the most compelling material. Their affidavits are supported by mostly-relevant technical material, records of email communication, and minutes of meetings between CN and VIA.

CN's submitted a 65-page compendium of documents to the Court, comprising both versions (v1, v2) of its crossing supplement, VIA's Loss-of-Shunt Risk Assessment, and CN's letter to VIA's CEO. The final document in the compendium is a December 10 letter accompanying the Ministerial Order imposed on CN under Section 36 of the federal Railway Safety Act, with its requirement for CN to submit a report to the Transport Canada Rail Safety Directorate by January 10, 2025.

VIA-CN INTERACTIONS: A TIMELINE

It's important to put a pin in the following early-timeline items. They are relied upon and cited by CN for their actions in subsequent years of the VIA Venture implementation.

August 4, 2021 - CN emails VIA the ten possible consist configurations (four, five, six and eight units) ranked in priority order for simulation CN to review for shunting purposes if necessary:

In 2021, Siemens performs a shunt test with IDOT Venture cars. A presentation shared with CN provided a comparison of the axle loads of IDOT Venture cars and VIA cars in lightest load conditions. This was intended to help CN evaluate whether the results of the shunt tests of IDOT Venture cars would be representative of the cars VIA would be receiving. CN indicated no test was required by them.

October 15, 2021 - CN's Manager of Signals emails VIA: “CN will authorize the use of the new 24-axle train sets on its routes. A ten-day notification to CN is required before placing these train sets in revenue service on any CN route.” “CN reserves the right to place any restriction it deems necessary should shunting problems occur.”  

December 3, 2021 - CN issues Operating Bulletin 638 allowing VIA Venture equipment to operate LRC NB speeds on the Kingston Subdivision.

July 25, 2022 - VIA emails CN: "We are planning on operating to Oshawa on July 27 and to Toronto on August 4 and August 9. Could you please ensure that the bulletin enclosed includes the whole Kingston Sub, we are missing the Great Lakes portion? To our knowledge, “we have no outstanding open topic with regards to the authorization of the new Fleet with CN. Can we get LRC NB authorization for all Corridor? If not, which info is missing?” [Here's Set 1 returning from SW Ontario through Kingston on August 6.]

July 27, 2022 - VIA emails CN: “Since it is our understanding that the CN technical review is completed, and to avoid this situation in the future, could we get a written confirmation by CN that the Host Railway Package submitted by VIA to CN has been reviewed and deem complete, and that CN has no further questions". CN responds that “Engineering will be the ones to sign off. The bulletin confirms your movement also."

October 24, 2022 - VIA emails CN: “VIA Rail is planning to start passenger service with the Venture Fleet on November 8th, 2022. Daily Consists issued by VIA’s Operations Control Centre were accessible by CN showing which VIA equipment was operating on each train. VIA claims this transparency was provided to CN in real-time. On the same day, CN's Manager of Signals - Engineering sent an email to VIA's Project Director for the Rolling Stock Acquisition, part of the Corridor Fleet Renewal Program (New Fleet), asking which Venture configuration VIA would be putting into service. The response was, "Same configuration we have been testing, Long Trainset: Loco + 4 coaches + cab car. We will not change it until we test shorter consist and agree with CN on the path forward."

November 1, 2022 - CN issues Operating Bulletin 640 removing exceptions for VIA Venture equipment on the Kingston Sub.

May 31, 2023 - As part of discussions on Fall 2023 schedule changes, VIA transmits a copy of its Equipment Plan for each Train for each Day of Week from their Network Planning tool. This document includes information showing Venture equipment planned for Ottawa-Toronto and Toronto-Montreal trains. 

August 15, 2023 - VIA emails CN regarding future schedule changes, "Once we have accepted enough Siemens trains, and are using them in full time revenue service, we believe at that point it would be advantageous to re-run the TPCs for the markets which are fully-covered by Siemens fleet (every day of operation). At that point we also do expect to change anchor times as we will also be removing the wye-on-departure for all of the Quebec-Montreal-Ottawa trains. As we accept Siemens consists and put them into revenue service on a near-monthly pace, some of the trains are expected to change equipment types."

March 6, 2024 - Since January, VIA and CN had again been emailing re: schedule changes. Copied in the email chain was Hoang Tran, who in October would famously use the phrase 'I found out today', referring to VIA's Ventures operating outside Quebec-Montreal-Ottawa (QMO) easternmost portion of the Corridor. As Senior Director, Regulatory, System Safety, and Passenger Operations at CN, Mr Tran had risen quickly at CN since 2018, having held similar senior roles at VIA since 2013. 

March 22, 2024 - Ron Bartels, VIA Specialist Director, Engineering emails, "Jacques Luce from CN just called to tell me that they have noticed some potentially inconsistent shunting incidents with some VIA trains. He didn’t have all the details but wants to have a call with VIA next Monday afternoon at 3:00 PM. He mentioned Venture trains and also trains with P42 leading. He said we may need to increase our axle count, but at the moment they don’t have enough info to come to any conclusions." Graphic data from nine crossings had been presented by the National Loss of Shunt Technical Committee: Floating Shunt Phenomenon Overview for VIA Rail dated April 1, 2024. The data was from March 22 (erratic shunt detected) as well as XP-4 grade crossing protection data on March 26 during the passage of VIA No 24 and CN No 121. Importantly, at this time Ventures had been operating on the CN Kingston Subdivision to Coteau since November 2022, and to Toronto since October 2023 without any restrictions from CN. In addition, the restrictions imposed by CN in March, 2024 applied to all VIA trains, not just Venture-equipped trains.

March 28, 2024 - VIA requests additional information regarding restrictions that CN issued for certain grade crossings on the Drummondville Subdivision "DRMV" for all passenger equipment operating with less than 32 axles: at MP 8.16, MP 33.63, MP 40.02, MP 46.07, MP 46.35, MP 51.72, MP 55.66, MP 60.54, MP 60.80, MP 61.83, MP 64.03, MP 74.11 and MP 80.17. A VIA analysis of the CN data subsequently showed that 77 of the 148 occurrences raised as issues by CN were identified at one specific railway crossing on CN’s Drummondville subdivision (MP 40.02). These repetitive occurrences would point to an infrastructure issue that may have been specific to that crossing.

March 29, 2024 - CN responds to a VIA inquiry regarding the Drummondville Subdivision restrictions, stating, “I cannot emphasize enough to you and the rest of VIA Rail this is not a wayside equipment problem. This is a rail-to-wheel interface issue that causes sporadic shunting.”

April 9, 2024 - CN shares a PowerPoint summarizing poor shunting incidents from the Drummondville subdivision and their investigations into loss of shunt incidents in the U.S. as well as data from the Drummondville subdivision documenting 148 short warning events - what CN considered to be short warning times at seven Drummondville Subdivision crossings equipped with XP-4 grade crossing predictors (GCP) from December, 2023 to March, 2024 - the data upon which CN had relied when issuing the 103.1(f) special instructions issued on March 22, 2024. VIA analysis of the data shows that 77 occurred at a single crossing with only one non-compliant. CN did not identify whether warning times were tested for all 49 Drummondville Subdivision crossings or only for the seven identified crossings; compare warning times of VIA trains with those of other rolling stock equipment (such as freight trains), or identify whether warning times involved VIA’s 24-axle Venture trains, its Legacy trains (HEP/LRC), or any other non-VIA trains. This data comprises the only information ever disclosed to VIA relevant to any potential LOS.

May 21, 2024 - CN responds to VIA's intention to file applications for exemptions with the Minister of Transport to allow it to operate Venture equipment, up to 100 mph on Class 5 track at five-inch cant deficiency in curves. CN had no objection. However, because CN currently only allows passenger operations at either four-inch or six-inch cant deficiency, VIA will be restricted to four-inch cant deficiency speeds on CN track. Somewhat ominously, Lynda Macleod, Senior Manager of Regulatory Affairs noted that Ventures may further be speed restricted on CN infrastructure due to shunting issues associated with the short train lengths that VIA wishes to operate.

June 26, 2024 - CN approves moves for VIA's June 19 plan for the inauguration train of the Venture fleet in South-Western Ontario with operating speed requirements as well as the restriction that “PASSENGER TRAINS OPERATING WITH LESS THAN 32 AXLES MUST PROVIDE PROTECTION IN ACCORDANCE WITH RULE 103.1(F) AT PUBLIC CROSSING AT MILE xxx (SUB)”, applied to a list of 75 GCP-4000 technology crossings on the Chatham (33) and Dundas Subdivisions (42). When CN imposed those special instructions, VIA’s Venture trains had already been deployed and operated in Quebec-Montreal-Ottawa service, and on the Montreal-Toronto and Ottawa-Toronto lanes. On most of those other routes, except at certain limited crossings on the Drummondville subdivision, the Venture trains were operating without 103.1(f) special instructions. VIA did not start operating Venture trains again in the SWO region until October, 2024.

August 26, 2024 - CN issues an operating bulletin that, among other things, amends the Great Lakes Division timetable to state that the P+ speeds are applicable to Venture equipment.

October 11, 2024 - Late in the afternoon of the day before Thanksgiving weekend, VIA’s busiest weekend of the entire year, upon suddenly learning that VIA Venture-equipped trains were operating west of Ottawa, CN surprisingly issues a restriction on VIA’s Venture equipment stating that “Unless operating with 32 axles or shunt enhancer, the following crossing mileages listed under each subdivision must be manually protected unless it is known that warning devices have been operating for at least 20 seconds as per CROR 103.1(f)” Loss-Of-Shunt (LOS) restrictions. CN states that its minimum train length is 32 axles and that VIA’s 24-axle Venture equipment has a known shunting issue. Although the CN Crossing Supplement v1 features both the CN and VIA logos side by side, this document was not issued by VIA. It was issued by CN unilaterally. The document purported to cover all Corridor public grade crossings equipped with GCP technology using track circuits to detect trains. The list of crossings therein was so expansive, and perhaps incompletely-checked, that it includes 16 crossings that do not exist; two crossings that are not owned by CN but instead by Metrolinx; and ten crossings that are private grade crossings over which CROR 103.1(f) does not apply.

VIA's Specialist Director, Operating Practices & Transportation Training, with 18 years' experience in the railway industry, noted that when railway companies issue 103.1(f) special instructions, they do so in conjunction with remediation efforts to rectify the condition affecting the relevant crossings. He could think of no other instance when 103.1(f) special instructions were used as permanent blanket rules to perpetually restrict operations of a specific type of rolling stock across all crossings within a large portion of a network.

Emails sent that day within CN include the statement “I found out today that the Venture fleet was now operating on territories where there are crossings equipped with GCP 4000 crossing prediction technology” outside of the Quebec-Montreal-Ottawa territory. CN claims it discovered VIA had been operating Venture train sets on the CN Kingston subdivision two years after the fact, using this to justify imposing restrictions on the QMO, despite being aware that VIA had been operating these train sets on the QMO (which includes a portion of the CN Kingston Subdivision) for approximately two years: 

• October 2022 - Quebec City-Montreal-Ottawa service
• October 2023 - Ottawa-Toronto and Montreal-Toronto routes
• October 2024 - Southwestern Ontario (SWO).

The email, full of mistakes and misperceptions, originated with Hoang Tran, CN's Senior Director, Regulatory, System Safety, and Passenger Operations to CN's Vice-President of Safety, Matthew McLaren. At lightning speed, over the next 37 minutes, one of the CN executives who was cc'd on this email then forwarded it to several contacts at Transport Canada. From TC, the email was sent to VIA's CEO, Mario Peloquin. This is the first known use of the 'I found out today' phrase..

October 14, 2024 - VIA's Vice-President of Railway Operations emails CN's Vice-President of Network Operations to follow up on texts and emails they had exchanged on the weekend CN imposed its speed reductions. Requests were made in the email asking for CN to tell VIA more, in four succinct points, about the basis of CN's decision to implement:

"1. What made it necessary to implement these new restrictions on October 11, 2024, as opposed to another date.

2. The risk analysis supporting the decision.

3. The list of malfunctions of automatic warning devices involving VIA trains in the portion of the network where the new restrictions apply; and

4. The reports relating to those malfunctions or any supporting documentation."

October 16, 2024 - A second email is sent, the VIA VP questioning why it took five days for CN to provide suitable answers to VIA while drastically affecting VIA operations on CN trackage. Once again, the CN VP trots out the "I found out today" story, "On October 11, when it was discovered that these Venture train sets were operating in expanded service with crossings which may experience shunt loss and thus be unprotected, CN took immediate measures to issue the proper instructions to protect the safety of train operations and crossings."

October 18, 2024 - Mario Peloquin (President and CEO, VIA) sends a letter to Tracey Robinson (President and CEO, CN) stating that VIA considers CN’s decision unjustified and harmful, "Respectfully, CN's decision of last Friday does not appear to be justifiable by safety concerns, or any issues attributable to VIA Rail's new Venture fleet."

An excerpt showing VIA's understanding of its Venture operations timeline on CN trackage:

October 23, 2024 - CN and VIA executives at the Vice-President level meet at VIA's headquarters in Montreal to discuss the LOS issue, each side's justifications for their position, and next steps. Per meeting minutes, in one of the discussion points CN accepted the responsibility of not realizing the presence of Venture fleet outside the Quebec-Montreal-Ottawa corridor. Present at the meeting were VIA's Chief Service Delivery, Chief Strategy Officer, Vice President Railway Operations, General Counsel, Director Project Management – New Fleet, Director Enterprise Risks, Director Network Operations and Railway Safety Governance; CN's Executive VP & COO Network Operations, VP Network Operations, VP Safety & Environmental, VP Engineering, AVP Engineering, Expert Sr Network Operations Strategy and Hoang Tran, Director Sr Regulatory & Passenger Operations. Minutes of the meeting were shared by VIA with CN.

The minutes were circulated to CN. CN legal staff  edited the minutes to present their version of events that had occurred on October 11 (draft in black, CN revision in blue) including this one telling example:

Another example of CN adding its preferred messaging:

October 29, 2024 - Top CN and VIA staff meet again in a 30-minute Virtual Teams meeting to discuss the LOS issue during which CN indicates, among other things, that its understanding of LOS stemmed from its experience in the U.S. and that the problem is the wheel to rail interaction that occurs with lightweight rolling stock with a narrow and trued wheel profile and low axle count (under 32). CN concludes, "This is not a Venture car-specific problem. This applies to lightweight rolling stock, with a narrow and true wheel profile/trainsets with a low axle count (under 32) - Venture falls into this category." VIA disagrees with CN’s conclusion in the absence of data. VIA disagrees with further testing without a risk assessment produced by CN. An excerpt from the meeting minutes:

Present at this meeting were VIA's Director Project Management – New Fleet, Director Enterprise Risks, Director Network Operations and Railway Safety Governance, Specialist Director, Infrastructure; CN's AVP Engineering, Senior Manager Engineering Signal Design S&C Standards, Senior Manager Regulatory Affairs, Senior Manager Passenger Operations, and Hoang Tran - Sr Director Regulatory & Passenger Operations. An email accompanying the minutes sent by VIA's Director, Network Operations & Railway Safety Governance Railway Operations to VIA executives up to and including the CEO shows VIA's continuing requests for data that drove CN's decisions, as well as CN's ongoing testing of unspecified crossings, actually 24 crossings spread over five CN subdivisions:

November 5, 2024 - CN's Chief Network Operating Officer Pat Whitehead replies in a three-page letter  to Mario Peloquin’s 18 October letter, stating, “The decision to impose restrictions on the crossings was based on CN’s work carried out with the National Loss of Shunt Committee in the U.S..., combined with additional data points from short warning times (below regulatory minimum warning times) observed on the Drummondville Subdivision” and that “CN must caution that it is not prepared to take a risk of loss of life, however statistically low it might be”.

November 27, 2024 - CN issues updated LOS restrictions stating “Unless operating with 32 axles or shunt enhancer, the following crossing mileages listed under each subdivision must be manually protected unless it is known that Minimum Required Time has been met as per CROR 103.1”. VIA issues informational notice VN24-033 to its crews:

INDEPENDENT ANALYSIS BY RAIL-INDUSTRY EXPERTS

DB E.C.O. North America was brought on-board by VIA to provide an independent, impartial analysis of CN's actions. Specifically, whether CN followed industry standards when implementing the speed reductions, and whether CN used sufficient analysis and evidence to justify what DB termed 'Loss-Of-Shunt (LOS) restrictions'. This was not to be a detailed technical analysis that would have required bipartite buy-in input from CN, nor was it intended to serve as a risk-based assessment.

LOS is not specific to VIA, and causes are multifaceted and therefore not easy to pin down. It is always a risk and must always be mitigated by railways. The only way to prevent it 100% is not to run any trains! CN's sweeping LOS restrictions were a knee-jerk reaction to a single risk factor, not based on a comprehensive understanding of the safety risk level inherent in VIA's Venture operations. When CN's key decision-makers suddenly became aware on October 11, 2024 of where and when Venture operations were taking place outside of the Montreal-Ottawa-Quebec (MOQ) lanes, they immediately adopted wholesale, unscientific LOS restrictions already in place on Amtrak trains operating in some corridors on CN trackage in the U.S., disregarding previous preparations and testing performed by VIA. 

DB E.C.O. North America summarized their expert analysis with four key findings:

1.  CN's implementation of LOS restrictions was reactionary, without proper root-cause analysis. 

Poor lines of communication existed between CN and VIA. Peers in various departments talked to each other; there was rarely a single point-of-contact at the executive level. CN's Canadian passenger operations team did not effectively 'own' its relationship to VIA, unlike its relationship to Amtrak in the U.S. This allowed them to be caught off-guard despite ongoing communication efforts emanating from VIA. 

LOS restrictions made exemptions for On-Board Shunt Enhancers (OSE). OSEs are illegal in Canada at the time of the publication of CN's crossing supplement. FRA approval in the U.S. was only granted on September 20, 2024 as part of ongoing research into OSE effectiveness. CN created an unattainable solution, based on CN policies in place in the U.S., not reflective of the regulatory climate in which Canadian railways operate. Isometric view of a Park Engineering OSE antenna for Amtrak's Siemens ALC-42 SF4 locomotive trucks:

CN ignored VIA's independent static LOS testing performed at the MMC in October, 2021. The report on the testing by engineering firm HATCH concluded that the train's wheelsets has passed the static test and from an S&C point of view could proceed to the dynamic testing. VIA also engaged HATCH to perform independent shunt testing of Venture trainsets in dynamic mode on its own Montreal-Ottawa Alexandria Subdivision in December, 2021. Subsequently, dynamic testing was also carried out on the Metrolinx operation network. HATCH tested a Venture consist on CN/Metrolinx Guelph, Kingston and Oakville Subdivisions in August, 2022. Tested to AREMA and AAR standards, with HATCH concluding in that report, "The train can operate on all Metrolinx-owned territories with no less axles (24) than the consist used on the test held December 6, 2021 between Limoges and Carlsbad Spring on the VIA Alexandria Subdivision." The Venture trains' wheelsets were factory-tested by Siemens, who confirmed their electrical resistance. 

During and after the testing period, the Ventures were in extensive use, and if there had been any shunting problems, they would have been reported to the relevant authorities. The testing campaign that started in October of 2021 is still ongoing. Every train is undergoing a commissioning and burn-in period of approximately six weeks and 1,000 miles of dynamic testing before entering revenue service.

2. CN did not follow Risk Assessment (RA) nor Safety Management System (SMS) rail-industry standards in its implementation: the risk was tolerable, risk severity was critical, but the failure rate was improbable.

CN missed an opportunity to explore other solutions to mitigate LOS risks transparently and fairly. CN relied on incomplete data from one problem area with a 'short warning time' problem - on its Drummondville Subdivision. As early as March, 2024 seven grade crossings in the area west of Drummondville had CN special instructions under CROR Rule 103.1(f) applied to them, with six more added on March 26.

CN did not consult with operational staff nor experts to collect and analyze data, nor consult with VIA staff, or document either. CN applied industry practices to the 2017 Alstom GCP software issue in the US that showed GCP software issues can themselves cause crossing safety risks, not relevant to the Drummondville Subdivision issues. As required by SMS Regulations, VIA has adopted a robust safety management system. According to Transport Canada, VIA's is one of the best, if not the best in the industry, designed to continuously manage risks related to safety matters and to deliver on VIA’s safety action.

VIA released its own Risk Assessment (RA) on October 18, 2024 in the wake of CN-imposed speed-reductions.  VIA’s assessment of the loss of shunt risk related to the Venture trains based on the data points provided by CN and available data from VIA’s own internal investigations drawn from the existing and available data indicates that the severity and probability of an occurrence, based on the CN data of 148 short warning times over almost 26,000 crossing activations that are assumed to have been within specifications, is very low/tolerable. This is because the likelihood of a collision between a train and road user, stemming from a short warning time due to shunt loss, is very low. VIA’s ongoing investigation of occurrences of shunting issues in 2024 has identified climate/extreme weather conditions, rail contamination, absence of freight, and length of crossing approaches as determining factors in intermittent shunting. VIA's RA estimates the risk ratio at 0.001% (VIA assessment) and 0.004% (CN assessment).

VIA's analysis of CN's data from 148 incidents, all on the CN Drummondville Sub:

VIA's analysis of data from 39 incidents From January 1 to October 17, 2024 not limited to Venture-equipped trains on four (Alexandria Brockville, Smiths Falls, Chatham) Subdivisions of its own infrastructure.

VIA made several observations from actions taken on its infrastructure from its risk assessment data analysis that would also apply to CN mitigation strategies. VIA also made use of data recorders, motion detection, monitoring of signalling incidents, and crossing approach instrumentation modifications.

• Rail grinding and rail brushing have a beneficial effect on measurements taken until the next rainfall.
• Repeated and alternating rain and heat adversely affect train detection.
• Controlling vegetation limits the spread of contaminants on the rail, cutting the risk of detection faults.
• Poor train detection is not linked to a specific type of rolling stock.
• The first train of the day on a subdivision does not generate more detection faults.
• Sectors with no freight traffic are more likely to have variable train detection results

The letter from CN's Chief Network Operating Officer Pat Whitehead to VIA's CEO makes several claims not supported by any evidence. He clearly links CN's restrictions with the U.S. National Loss of Shunt Committee and the Drummondville Subdivision warning times, writing "The decision to impose restrictions...was based on CN's work...with the Committee, combined with...short warning times observed on the Drummondville Subdivision. VIA's equipment presents similar characteristics to Amtrak's equipment and is now experiencing the same issues." The letter also links the minimum 32-axle requirement with its imposition on the U.S. portion of [the CN] network.

"As VIA was contemplating the introduction of the Venture fleet, VIA requested that CN review five different equipment configurations for shunting purposes. It was determined that field testing would not be required because of CN’s extensive experience with the IDOT Venture fleet. CN authorized a 24-axle configuration (with a locomotive on each end as per VIA’s representations) for operation on CN with one condition and one caveat: VIA would provide a 10-day notice to CN before placing these train sets into revenue service on any CN route so that CN could deploy test equipment to monitor these movements and CN reserved the right to place any restriction it deemed necessary should shunting problems occur. VIA did not deploy the Venture fleet according to the 24-axle configuration that was authorised by CN. Instead of having loco-coaches(4)-loco as approved by CN, VIA deployed their Venture fleet in a loco-coaches(4)-cab car configuration, not meeting CN’s shunting requirements of a 24-axle count." VIA has never operated the Ventures with two locomotives, despite that consist configuration being one of five possible consist configurations initially listed by VIA for simulation.

The letter also mentions the one-and-only addition of non-Venture [Legacy/HEP] cars to a Venture set: "On September 3rd, 2024, VIA ran a Venture special train between Toronto and Sarnia. Two HEP cars were added to this train to meet the 32-axle minimum requirement and avoid restrictions on crossings. To CN’s knowledge, [this, and the June 26-27, 2024 SWO Inauguration] the only time [sic] that VIA had requested and received CN’s concurrence to operate Venture equipment outside the QMO Corridor." 

The one-and-only picture I've seen of the above-mentioned consist (below - kindly shared by Rob McClintock) snapped stopped at Sarnia, preparing to run around the HEP cars to return to Toronto.  Since the cab car was blocked, the Venture set was wyed to get its locomotive facing east, prior to taking the VIA siding beside the station. Some suggested at the time that the extra cars were to assess the pulling power of the Charger locomotive!

The letter also perpetuated is the 'I found out today' phrase. "Contrary to what was stated in your letter, up to October 11, CN was unaware that the Venture Fleet had been operating outside of the QMO, as VIA did not provide the required 10-day notice to CN. CN had repeatedly requested since 2021 that VIA provide a 10-day notice prior to placing these train sets into revenue service on any CN route so that CN could deploy test equipment along its route to monitor these movements. Despite this requirement, VIA operated over 1,400 VIA trains with Venture equipment outside of the QMO without notice and without any restrictions." [5,000 total trains since 2022 was the number provided by VIA.]

Mr Whitehead also acknowledges Ventures' sufficient shunt: "CN has confirmed to VIA that its crossing infrastructure also meets regulatory requirements. VIA has requested validation of CN’s compliance. To that end, CN has offered to demonstrate to VIA and to Transport Canada that it meets the regulatory requirements of the GCS by systematically detecting railway equipment in any part of the track circuit and a shunt of 0.06 ohms from VIA Venture trains and for any other train."

3. CN's actions constituted a risk reallocation, shifting the risk to other parties disproportionately i.e. VIA head-end crews, causing cognitive overload. The LOS restrictions did not eliminate the risk, they merely shifted it.

By not conducting a Risk Assessment, CN had an incomplete understanding of how risk levels can increase at all points in the event chain of a VIA Venture approaching a grade crossing. CN introduced more 'net' opportunities for safety incidents to happen upon issuing its Crossing Supplement. VIA locomotive engineers counting off the seconds, while reducing and resuming speed at multiple unsigned grade crossings can certainly cause a loss of focus. It is now estimated that 50% of the engineer's total travel time is dedicated to adhering to CN-imposed tasks.

VIA's locomotive engineers work in teams of two per train, with the operating locomotive engineer sitting on the right operating the train using controls like throttles and brakes, and the in-charge locomotive engineer sitting on the left whose primary focus is to interpret signals (such as speed signals, route signals, restrictive signals, station stops, temporary slow orders, and signs indicating the presence of workers) and communicating with rail-traffic controllers to relay information about traffic conditions, among other tasks. The Crossing Supplement v1 required locomotive engineers operating VIA Venture trains to perform the following tasks for every identified grade crossing:

a. Identify unmarked locations situated approximately one mile before the grade crossing;

b. Slow down the train starting at such unmarked locations and manage proper deceleration using various controls to ensure that speed be reduced to 45 mph when passing by the whistle post situated 0.25 mile before a grade crossing;

c. Approach the crossing at steady speed of 45 mph while being prepared to stop;

d. Visually observe automatic warning devices (i.e., lights flashing);

e. Measure at least 20 seconds from the time that automatic warning devices have started operating;

f. Following confirmation that automatic warning devices have operated for 20 seconds, bring the train speed back up to Timetable speed which would varies from 65 to 100 mph depending on the location;

Likewise, the Crossing Supplement v2 now requires engineers operating VIA Venture trains to perform the following tasks for every identified grade crossing:

a. - c. as above;

d. Determine whether the upcoming crossing is gate-equipped or has a specifically prescribed Minimum Required Time;

e. Visually observe: (i) the gate in the horizontal position (when the crossing is gate- equipped), or (ii) automatic warning devices, i.e., lights flashing (when the crossing is not equipped with a gate system);

f. Measure at least: (i) 5 seconds from the time that the gate has come down to the horizontal position (when the crossing is gate-equipped), or (ii) the specifically prescribed time ranging from 20 to 25 seconds from the time that automatic warning devices have started operating (when the crossing is not equipped with a gate system);

g. Following confirmation that the gate or automatic warning devices have been in the horizontal position or have operated for the Minimum Required Time, bring the train speed back up to normal speed of approximately 90 to 100 mph.

CN Chief Operating Officer Patrick Whitehead — who once was a locomotive engineer — acknowledged the increased risk due to the cognitive load on VIA locomotive engineers from the restrictions imposed by CN.

Identifying locations situated approximately one mile before the grade crossing imposes on VIA’s locomotive engineers a constant anxiety and cognitive load. CN did not mark such locations with any post or sign, and VIA’s locomotive engineers bear the constant pressure of estimating the distance between their train and the next grade crossing subject to the Crossing Supplement, which is especially true with poor visual conditions or in locations with few easily identifiable visual cues. VIA’s locomotive engineers have reported that as a result of the Crossing Supplement, they experience significant fatigue and a feeling of being burnt out. Absenteeism increased among locomotive engineers, who also needed to take breaks more frequently. VIA locomotive engineers even took sick days on account of the added stress resulting from the Crossing Supplement.

4. CN did not prove that LOS issues were caused by VIA's Ventures. There is limited justification for the LOS restrictions. CN did attempt to, nor conclusively define the root cause.

CN is incorrect to solely focus on Ventures as the cause of potential LOS issues. LOS does not apply only to Ventures. VIA operated trains over CN trackage for many decades with as few as 16 axles. Why would the 24-axle Venture have a higher inherent risk than an 24-axle LRC or HEP consist, or a CN freight with fewer than 32 axles?

In its November 5 letter to VIA, CN doubles down on its version of improvements that VIA can make, writing that "CN has proposed alternatives that would permit VIA to operated unrestricted over crossings, such as adding cars to meet the minimum 32-axle requirement or installing on-board shunt enhancers." As a gesture, CN informs VIA in the letter that it "has created a task-force that will perform tests at 24 crossings on three different subdivisions over a period of 19 days. The test protocol will be shared with both VIA and Transport Canada and parties will be invited to participate in the data gathering and analysis. CN expects that VIA will participate in the testing that will occur on the infrastructure to determine regulatory compliance. We hope to demonstrate in full transparency that the actions we have taken are appropriate and in the best interests of safety".

In mid-December, 2024 CN foremen were stationed at level crossings along CN's Kingston Subdivision. Their role was to flag certain crossings to allow VIA trains, Venture and non-Venture, to pass over the crossings at track speed, while visually observing proper operation of the gates and crossing warning protection. This was probably to verify information that's automatically recorded in the crossing signal bungalows, also manually recording CN and VIA trains' axle counts and speeds.

Though LOS issues can be attributed to the characteristics of passenger trains, freight trains can encounter these same issues as well. CN only applied restrictions to Constant-Warning technology (GCP) crossings i.e. equipped with GCP-3000, GCP-4000 or XP-4 systems. There is no industry consensus that CN's 32-axle standard is the number-of-axles cut-off above which LOS is no longer a concern.

VIA has resisted adding cars to Venture trains to increase the number of axles from 24 to 32. "Train cars are not easily interchangeable and adding legacy cars to Venture trains would be impractical from a compatibility standpoint. VIA did consider and assess this option, but determined that it was not feasible. Legacy equipment is being cycled out of service entirely by early 2026, because of previously determined engineering retirement dates. By this time, Venture trains will represent 100% of VIA’s equipment. Ordering new compatible Venture cars, in addition to coming at a very significant cost, could take approximately 12 to 24 months. Removing cars from some Venture trains and transferring them to other trains to increase their number of axles would reduce VIA's fleet size by about 50% until new cars could be ordered and installed. Following a thorough risk assessment, VIA also determined that coupling two trains together to increase axle numbers, would increase other safety risks and pose other operational challenges to such a degree that this is not a viable option either."

By January 2025, 55% of VIA’s trains in revenue service are expected to be Venture trains. This is expected rise to 73% by June 2025, 82% by December 2025, and 100% by early 2026, when Venture trains are expected to cover the entirety of VIA’s Corridor ridership. Over the coming months, restrictions imposed on VIA’s Venture trains operating on CN’s infrastructure, which have already affected thousands of passengers, will increase and affect millions.

VIA'S CONCERN FOR ITS REPUTATION 

VIA has monitored delays resulting from the CN crossing supplements and currently estimates that such delays amount to the following additional travel times:

• Québec-Montréal (scheduled time of 3 hours 22 minutes): 15 to 25 minutes of delay.
• Montréal-Ottawa (scheduled time of 2 hours 1 minute): 5 to 10 minutes of delay.
• Ottawa-Toronto (scheduled time of 4 hours 38 minutes): 25 to 45 minutes of delay.
• Montréal-Toronto (scheduled time of 5 hours 17 minutes): 35 to 50 minutes of delay.
• Toronto-Windsor (scheduled time of 4 hours 17 minutes): 25 to 35 minutes of delay.
• Toronto-Sarnia (scheduled time of 4 hours 51 minutes): 20 to 30 minutes of delay.

VIA’s October On-Time Performance (OTP) dropped to approximately 25%. It is anticipated that overall OTP for Q4-2024 will similarly drop, to an all-time low of around 30% as a result of the crossing supplements. Aside from VIA’s poor OTP during the pandemic, the lowest OTP that VIA had ever historically experienced was 46.3% during Q3-2023.

VIA supplied several sample communications received from passengers, specifically mentioning the CN-imposed speed reductions:

CN-imposed speed reductions, the related delays to Venture-equipped VIA trains and associated cratering of VIA’s OTP have harmed VIA’s image and reputation, with numerous customers voicing their complaints and dissatisfaction onboard, online and by phone. Many frustrated VIA travellers have changed their travelling habits and switched to other modes of transportation such as car, bus, or plane.

VIA removed from its webpage the list of its trains that were Venture-equipped. VIA suggested the page was removed because the use of Ventures was so widespread that it wasn't a useful page anymore. Meanwhile, on social media, potential passengers booking passage were actively asking which trains were the 'new trains' so they could avoid booking those departures that were routinely arriving, and in some cases, departing late. The only workaround was on traincar dot info, which lists fairly reliable consisting information.

New Venture trains are the very public image symbolizing VIA’s modernization efforts and identity for the 21st century. VIA has devoted considerable energy and advertising dollars to hype the arrival of the Ventures. When the Ventures are associated with unreliability and failure, it's VIA’s enduring image that is tainted permanently as a result of CN’s crossing supplements.

"I FOUND OUT TODAY"

When I first heard this phrase, sent in an internal CN email from Hoang Tran, Senior Director, Regulatory, System Safety, and Passenger Operations at CN on October 11, I just about fell over. I wondered how anyone occupying the upper levels of management could not truly have known this. Every foreman, section hand, operating trades employee, S&C maintainer and anyone else who lived within a mile of CN's Kingston Subdivision would remember when they first observed their first VIA Venture. I mean, how could you miss them? The fact that 1-2 years later, a senior executive at CN was just learning this is not only shocking, it also strains credulity. All I can think of are childish elementary school experiences:  (eyes-covered) "I don't see you, I don't see you", (ears-covered) "la-la-la!" and sheepishly telling the teacher, "the dog ate my homework". The 'I found out today' phrase reveals either being remarkably removed from reality, or an absolutely asinine attempt to feign ignorance preceding CN's over-reaction and imposition of LOS restrictions. 

THANK YOU, FEDERAL COURTS

Canada's Constitution says the administration of justice (i.e. law enforcement, courts) is a provincial responsibility. The Federal Court of Canada is a narrow exception with specific jurisdiction. In that respect, it is similar to the Tax Court or the military justice system.

I find it interesting that VIA responded to the following questions in an Access To Information request ...

What specific evidence was supplied to VIA by CN regarding specific concerns or any close-calls in 2022, 2023 or 2024? What operational adjustments were considered or made to ensure safety prior to October 11, 2024 in response to those concerns?  What  other  technology,  remedies  or  further  operational  adjustments  is  VIA discussing or considering implementing ? Has VIA discussed or considered lengthening Venture trains to 32 or more axles to meet CN's concerns.

...made mere days after CN brought in its special instructions, by writing in part, "An application for judicial review before the Federal Court has been filed on November 12, 2024 regarding the “Crossing  Supplement  for  VIA  Venture Equipment”.  The  information  requested is therefore protected under [the following sections of] the ATIA." Effectively shielding VIA from releasing certain information to the public.

In the same response, VIA's ATIP Co-Ordinator helpfully pointed not only to VIA's application before the court, but also the case file involving CN and VIA in the publicly-available Federal Courts Files webpage. There, one can find and request documents submitted to the Court, as part of the Online Access to Court Records pilot project, initiated in September, 2022.

I am reminded of that scene from the movie 'A Few Good Men' in which Jack Nicholson's sinister character sneeringly says to Tom Cruise's character, "You can have all the [information] you want, Danny. But you have to ask me nicely." In fact, one study of 432 requests to 25 federal departments, agencies and crown corporations found that the federal government denied information almost 80 per cent of the time.

So thank you, Federal Courts for your transparency. It took only slightly longer to gain access to the documents than it did to create this post. Much quicker than VIA's ATI document delivery time of 2-4 weeks!

Running extra...

SORRY, NOT SORRY

It's happened a few times... 

When I've presented facts that appear to support VIA in blog posts on the HEP testing, Venture implementation, or VIA Rail incidents, I've been called a 'VIA apologist'. (If I was calling someone that, I would instead use the term VIApologist. It's shorter.) I don't work for VIA, I have no reason to apologize for VIA, I occasionally travel aboard VIA. In any posts on VIA topics, where I might be called an apologist, remember that I'm a taxpayer, and as such I help to fund VIA. I want VIA to succeed and continue to prosper, perpetually without a proper mandate. On Trackside Treasure, I present evidence (VIAvidence!) on both sides of these Venture issues. I didn't create these problems, I didn't accumulate or fabricate the evidence. It's just facts. I'm sorry if you think I'm sorry. I'm not. But I do think the Venture implementation is in a sorry state due to CN's actions!