Now that
VIA's application for judicial review of
CN's Crossing Supplement - requiring VIA Venture-equipped trains in the Corridor to slow down at 300-plus crossings to ensure the prescribed activation of warning-devices - has been struck before its expected Federal Court hearing in Montreal at the end of February, the case has now moved to Quebec Superior Court in the Judicial District of Montreal. I have been fortunate to review all 117 pages of VIA's case as submitted to the Court on March 4, 2025. In this post, you'll read VIA's request for an expedited hearing justified by the "exceptional circumstances" that VIA finds itself in.
As in previous Court-related posts, where appropriate, direct quotes from Court documents are in "quotations", and editorial notes appear in [square brackets] while things I find surprising or notable appear in italics because adding exclamation marks is probably bad form!!!
VIA'S CASE IN TEN POINTS
Under Quebec law, specifically Article 158 (expediting the proceedings), Article 509 (an injunction), Article 510 (injunction in the course of proceeding) and 511 (interlocutory injunction necessary to prevent irreparable prejudice to the applicant) and safeguard order - a court judgment settling an urgent issue that cannot wait until the final hearing/trial - usually a temporary decision, here are the ten tenets of VIA's case:
1. The Plaintiff, VIA Rail Canada Inc. (“VIA”) applies to this Court on an urgent basis to seek permanent and interlocutory relief, and for a safeguard order if interlocutory relief cannot be adjudicated in the very short term, to prevent continued severe and irreparable harm caused by the illegal and in any event unreasonable, excessive and abusive conduct of the Canadian National Railway Company (“CN”).
2. This matter engages important issues of public safety and is urgent. VIA has come before this Court as fast as reasonably practicable to seek urgent relief against a serious safety risk and growing harm to VIA’s operations. If VIA’s request for an interlocutory injunction cannot be heard on a sufficiently expedited basis, VIA must request a safeguard order to alleviate the safety risk and harm until the interlocutory injunction can be heard.
3. As explained in more detail herein, before instituting these proceedings, VIA sought to have CN’s conduct judicially reviewed by the Federal Court. This is because the Federal Court potentially had exclusive jurisdiction to control CN’s decision, and VIA’s only recourse would thus have expired on November 12, 2024.
4. After commencing the Federal Court judicial review process, VIA spared no effort to ready a hearing on an interlocutory injunction to stay CN’s restrictions (the “Stay Motion”), on a compressed timetable, to stop the continued irreparable harm it was suffering. VIA acted with all possible diligence, preparing an application raising substantial issues supported by multiple detailed affidavits and expert evidence by December 12, 2024, which it tried to present at the earliest possible opportunity on December 18, 2024, but it was denied the ability to do so.
5. After CN sought additional time to file responding materials and a Motion to Strike, VIA went to great lengths to accelerate and compress the timetable, agreeing to conduct multiple cross-examinations on a daily basis in real-time from January 30, 2025, some conducted very shortly after receipt of CN’s affidavits, and including examinations late into the evenings and on weekends.
6. The hearing on VIA’s Stay Motion was scheduled to proceed on February 25, 2025 and was substantially ready, with the parties having respectively filed multiple affidavits, including expert reports, and having conducted multiple cross-examinations. If granted, VIA’s Stay Motion would have provided relief equivalent in its effect to the interlocutory relief requested herein.
7. However, on February 19, 2025, six days before the scheduled hearing on VIA’s Stay Motion, the Federal Court granted CN’s “motion to strike”, ruling that it did not have jurisdiction to review CN’s decision, and it vacated the February 25, 2025, hearing.
8. VIA is therefore appearing before this Court as soon as reasonably possible to seek interlocutory relief equivalent in effect to the interlocutory relief it was seeking to obtain from the Federal Court on February 25, 2025.
9. The evidentiary record before the Federal Court provides a basis for an expedited hearing before the Court on an interlocutory injunction that respects proportionality and both parties’ right to be heard. This record notably includes the following:
a) VIA’s motion record in support of its Stay Motion;
b) CN’s motion record opposing VIA’s Stay Motion;
c) Transcripts of examinations of both parties’ affiants;
d) Supplementary materials filed by both parties in relation to the Stay Motion;
e) Documents exchanged by the parties during litigation before the Federal Court;
f) Additional documentary exhibits.
10. VIA also adds limited updated evidence of risk assessment and urgency:
a) Affidavits in support of the present application from the same affiants as before the Federal Court, who confirm their testimony before that Court word for word and, where necessary to update the record, give limited supplementary statements;
b) Updated expert reports from Harold T. Kirman and Saeed Fararooy analyzing information disclosed by CN in the Federal Court proceedings;
c) An updated expert report from Dr. Christina Rudin-Brown reflecting further work she has carried out since her first report was filed;
As a result, the allegations hereinbelow are supported by fact evidence and expert opinion evidence adduced by VIA and by CN before the Federal Court in anticipation of a hearing on February 25, 2025, with very limited additional evidence.
SO WHAT'S NEW IN THIS QUEBEC CASE?
So at this point, it appears that VIA will be presenting the same information before a new Judge in a Provincial Court. So what has changed? The evidence submitted to support VIA's injunction speaks for itself, and as in the anticipated February Federal Court hearing accurately represents the legal strategies of both VIA and CN.
Some things have changed, however.
- for one thing, the number of VIA trains safely operating at crossings continues to increase,
- and the number of incidents are still not statistically significant, in fact tolerable.
- CN has done its own testing beginning in December, and Transport Canada (TC) is still involved, although in the three months since CN submitted material to TC, the silence from TC about CN's response to the Transport Minister's order of December, 2024 continues. Watch for an upcoming post on the Ministerial Order.
- it's important to consider why CN continues to keep the bulk of its crossing testing data confidential - the most recent detailed data provided by CN in January and February, 2025 are protected by a sealing order obtained by CN in the Federal Court file.
- VIA has the benefit of time to digest all the affidavits, exhibits and cross-examination of some affiants over the past month-plus, and perhaps refine its legal strategy as to how this information is presented before the Court.
- VIA has accrued more reliable data reflecting CN's actions' affect VIA's On-Time Performance (OTP) month upon month.
- there is additional cross-examination testimony not previously presented in previously-published posts.
VIA'S CASE - NEW AND IMPROVED
CN has admitted the obvious during cross-examinations: it does not hold itself to any “zero-risk of loss of life” safety standard. Its operations comport safety risks and unfortunately result in multiple fatalities on a regular basis, including at grade crossings. CN is holding VIA to a stricter, unattainable, standard, while simultaneously imposing on VIA and the public a substantial safety risk (through increased cognitive workload of Locomotive Engineers (LEs) and destroying VIA’s reputation and ability to fulfill its legislative mandate. Nearly five months on, after extensive litigation has already taken place, CN has yet to produce (or even apparently collect) the overwhelming majority of the data, which is available to CN alone and which would be relevant to quantifying any increase in the probability of a train-vehicle collision at a crossing. CN has entrenched itself in its indefensible “zero-risk of loss of life” position.
Swift relief is needed to put an end increase in the serious safety risks that the Crossing Supplement has imposed on both VIA’s employees and the public-at-large. Relief is also needed to mitigate the continued destruction of VIA’s reputation and operations. An interlocutory injunction and a permanent injunction—and a safeguard order, if the interlocutory injunction cannot be expedited—are all well-justified.
CN describes its obligation to accommodate VIA as a burden that puts it a competitive disadvantage with Canadian Pacific Railway. It portrays VIA using the metaphor of an “albatross” that “CN has had to wear” with shame around its neck for the past 30 years since its privatization. And it alleges, without any foundation, that VIA’s requests to the Agency amount to a request to expropriate CN’s railway.
In this same vein, CN contends that the “only practical way to achieve VIA’s goals of better on-time performance [...] and more frequencies” is for VIA to get its own dedicated railway infrastructure. In other words, CN contends that the only solution to address VIA’s complaints is not for CN to provide better services and allocate additional network capacity to VIA, but for VIA to exit CN’s infrastructure and build its own separate tracks dedicated to passenger services.
When railway companies issue 103.1(f) special instructions [to protect crossings thought to be defective], they [usually] do so in conjunction with remediation efforts to rectify the condition affecting the relevant crossings. CN's use of this rule as a basis for the Crossing Supplement is an exception - 103.1(f) special instructions have not been 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.
CN'S DATA CANNOT CONCLUSIVELY CONFIRM ITS CONTENTIONS
To date, CN has not produced the simulation file and data and has not explained through any fact or opinion witness, including both in its own submissions and on cross-examination, how the model’s predictions worked, nor its assumptions, inputs, variables, formulas, calculations or limitations.
Out of the hundreds of thousands of train event data in possession of CN for VIA Venture trains, CN only ever disclosed two sets of instances of “short warning times” apparently involving VIA Venture trains, all located at a handful of crossings on CN’s Drummondville subdivision; (b) the extremely limited data disclosed by CN is inconclusive, even according to CN; (c) this data does not establish that the VIA Venture Trains are in any way non-compliant or have any “shunting problem”.
VIA Venture trains therefore travelled on the Drummondville subdivision for approximately seven months without restrictions at 36 crossings and with restrictions at only 13 crossings. CN has admitted during the cross-examination of its representative that, by issuing instructions to protect only those 13 crossings, it “considered that [it was] protecting the safety sufficiently.” The approach on the Drummondville Subdivision was more in line with the normal practice in the railway industry, which is to apply protections when safety issues are detected at specific crossings until mitigations are implemented at those crossings.”
CN did not provide any new data to support its decision to impose restrictions on the VIA Venture inaugural special train in June, 2024 operating west of Toronto to Southwest Ontario.
The Crossing Supplement purported to cover all Corridor public grade crossings equipped with Grade Crossing Prediction (GCP) technology. In one sudden, sweeping move, on October 11, 2024, CN restricted 291 additional crossings in a vast geographic area, in addition to the prior 13 crossings that were located in the Drummondville Subdivision where restrictions had been in place since March 2024.
At the time, the only information ever disclosed to VIA relevant to any potential LOS was the limited information shared months earlier in the April 2024 Drummondville Spreadsheet and April 2024 [PowerPoint]. CN has since also confirmed that it did not analyze or rely upon any additional data, even though it was (and still is) in possession of substantial additional empirical data through its continuous monitoring of the VIA Venture trains.
VIA could not understand how CN could take the troubling position that it only found out that VIA Venture trains were operating in the Corridor around October 11, 2024. From a regulatory standpoint, the applicable regulations require CN to have equipment capable of detecting the VIA Venture trains. The regulations do not require VIA Rail to operate with a given number of axles and the 24-axle configuration respects all applicable regulations. VIA did not agree that CN can, through special instructions, shift unto VIA Rail's rolling stock and employees, through onerous and extraordinary operational restrictions, the responsibility of having adequate infrastructure and maintaining its equipment to ensure it complies with grade crossing safety regulations.
CN formally responded to VIA’s October 18, 2024. CN did not disclose any risk assessment, did not quantify what that “statistical risk” might be, and did not point to any additional data concerning VIA’s Venture trains to support its concern that they had an increased risk of loss-of-shunt.
VIA'S APPLICATION BEFORE THE FEDERAL COURT
Having received what appeared to be CN’s final position on November 5, 2024, and considering the ongoing irreparable harm, VIA’s only option was to take legal action. In VIA’s opinion, CN was purporting to exercise a narrow delegation of compulsory state power with associated penal offences under the Federal Railway Safety Act by invoking CROR outside of its jurisdiction, illegally, and unreasonably. The tribunal with exclusive jurisdiction to control CN’s conduct was the Federal Court. VIA’s right to seek a judicial review of CN’s decision before the Federal Court was therefore subject to a 30-day time limit, expiring on November 12, 2024.
CN's own testing in December, 2024 covers a significantly shorter period of time and all underlying data is still not provided, though this phase of testing is the most complete of all three testing phases performed by CN.
CN has entrenched itself and decided to maintain its blanket restrictions, despite mounting irrefutable evidence that CN has increased safety risks to VIA’s passengers, and despite the fact multiple tests, including CN’s own independent tests, show that the VIA Venture trains do not create any significant increase in the risk of collisions.
VIA simply cannot hope for any relief from CN, unless this Court intervenes.
ADDITIONAL AFFIDAVIT INFORMATION FROM EXPERT WITNESSES:
DR RUDIN-BROWN FOR VIA
In light of Dr. Rudin-Brown’s December 16, 2024 report showing excessive LE cognitive workload under the Crossing Supplement’s CROR 103.1(f) special instructions, VIA decided to perform a new risk assessment on January 17, 2025. VIA’s finding of an undesirable risk level accounted for the fact that, every week, there are 11,594 occurrences of Venture trains going over crossings affected by the 103.1(f) restriction.This frequency combined with the heightened cognitive workload reported by LEs in Dr. Rudin-Brown’s December 2024 report entails that there is a good chance that they could miss, react too late to, or misinterpret other signals aimed at avoiding derailments, collision or other safety risk.
VIA’s Specialist Director of Operating Practices & Transportation Training, Mr. Jonathan Cooke, who began his career as an LE, is now responsible for the training of VIA LEs and has first-hand knowledge of their work. Mr. Cooke relied on personal experience having done the job, understanding all of the responsibilities, understanding the territory in which these instructions were issued and the expectations we have for the employees”, “hav[ing] firsthand experience riding with the crews in the cab of Venture locomotives[, and] having conversations with employees ad hoc”, as well as riding in the cabin with LEs from Toronto to Kingston. He observed first-hand the “frustrated” and “hyper-fixated” attitude of VIA LEs on a VIA Venture train trip. The question is not whether one of VIA’s LEs will make a mistake due to the increased workload that may lead to a fatal accident but when.
After her initial report had been filed at the Federal Court, Dr. Rudin-Brown supplemented that initial research with further interviews with randomized participants and increased use of controls, which efforts continue. To date, the additional research has confirmed Dr. Rudin-Brown’s initial conclusions that there is an unacceptable cognitive burden on VIA’s LEs and in fact indicates an elevated risk.
ADDITIONAL AFFIDAVIT INFORMATION FROM EXPERT WITNESSES:
LI-LIAN LUI FOR CN
On January 30, 2025, in the context of the Federal Court proceedings, CN filed a Responding Record in response to VIA’s Stay Motion. With that filing, CN provided a report from an expert, Ms. Li-Lian Lui, which included for the first time a risk assessment regarding the risk of collision between a VIA Venture train and a vehicle at crossings. CN’s expert was shackled by the limited scope of her mandate that excluded multiple data points that she admitted would have been relevant to her assessment:
- Ms. Lui admitted on cross-examination the probability of a collision between a vehicle and a train could be calculated from empirical data, but she did not calculate it in her report.
- Ms. Lui revealed that her mandate was not to provide a full risk assessment of the risk of collision but was limited to reviewing certain documents provided to her, consisting of the April 2024 Drummondville Spreadsheet regarding 148 events of short warning times, the results of the “simulation” carried out by CN in 2021, and the aforementioned “White Paper” authored by the ad hoc LOS Committee.
- She could not explain CN’s 2021 “virtual simulation”, how the model’s predictions worked, its assumptions, inputs, variables, formulas, calculations or its limitations.
- Other empirical data was excluded by CN from the scope of her assignment. Ms. Lui was not given data collected by CN from November 2022 until October 2024 and beyond.
Ms. Lui also admitted that she had misread the probability ratios of short warning times calculated in VIA’s internal risk assessment and believed them to be in the order of magnitude of 10-3, a mistake of two orders of magnitude. She then accepted in cross-examination the correct order of magnitude of short warning times (10-5), which provides a likelihood rating of “remote”, which she then even agreed was conservative.
ADDITIONAL AFFIDAVIT INFORMATION FROM EXPERT WITNESSES:
HOANG TRAN FOR CN
CN reveals additional Short Warning Time (SWT) data, which according to VIA and its experts' updated risk assessments does not justify the Crossing Supplement, either. On February 13, 2025, after cross-examinations were completed and after the time limit for doing so, CN sought to file another affidavit from its witness, Mr. Hoang Tran. CN purported to introduce new data which, CN claimed, it had only recently found while responding to Transport Canada, in the context of answering a December 10, 2024, ministerial order that it produce certain information relating to the Crossing Supplement.
According to Tran, Transport Canada inspectors had attended various crossings on the Drummondville subdivision between December 12, 2024, and January 7, 2025, as a result of which it had issued a letter of non-compliance to CN with respect to five crossings on the Drummondville subdivision, which CN received on January 21, 2025.
According to Mr. Tran, in response to the ministerial order and the letter of non-compliance, “CN decided to look at data for short warning times on the Drummondville Subdivision” (which includes 49 public grade crossings) and “identified 206 short warning times at six crossings on the Drummondville subdivision between August 2024 and January 2025”.These short warning times included CN trains; CN claims that 93% overall were VIA trains, but VIA’s independent experts have observed that CN’s approach to correlating timestamp information and train event data is so imprecise that over 30% of the purported “VIA” trains could actually be different trains altogether. CN disclosed this information and data (though not the source material) to the Federal Court (and, by extension, VIA) in opposition to VIA’s Stay Motion. This disclosure was selective; although VIA had by this point received the information responding to the ministerial order of December 10, 2024, it was not through CN but rather through a notice to attend issued to the affiant of the Attorney-General of Canada.
VIA CASTS DOUBT ON CN'S ADDITIONAL INFORMATION
VIA does not have access to the same data. However, when VIA asked its independent experts to update their analysis based on what data CN had provided, they concluded that the data provided by CN was so faulty as to be worthless:
- It is badly formatted and incomplete, and the data concerning the instances of SWTs contains even less information than the remainder of the database, and the four actual warning times under 20 seconds reported with regard to CN’s trains have the least information of all;
- It reports SWTs on at least eight crossings, or perhaps nine or ten crossings, not the six crossings that CN claimed (including unidentified crossings);
- It contains numerous errors, and the correlations required to relate a particular crossing to particular train mean that some instances may have been misidentified as involving VIA Venture trains;
- Above all, the information provided by CN cannot provide a representative snapshot of the grade crossings affected by the Crossing Supplement. It is not a representative sample of the Corridor; the small sample CN used increased “the likelihood of pitfalls typically associated small sample sizes, including increased variability, higher risk of bias, outsized impact of data outliers and, of particular interest to this matter, higher probability of false positives (i.e., selecting crossings which include a uncharacteristically high number of SWT events).”Worse, VIA’s independent experts were unable to confirm “what crossings were actually included in the sampling of data used to create CN’s Additional Information”.
CN could have “decided to look at” the data it disclosed at any time, not just for a handful of crossings in the Drummondville Subdivision but for all of the crossings affected by the Crossing Supplement. There was also nothing stopping CN from collating data transparently, in such a manner that it could be reasonably analyzed. CN chose not to do either of these things, which again gives rise to an inference that complete and transparent data would not support to CN’s position.
In addition, the data provided by CN does not even try to identify a root cause of the SWTs identified. Factors such as trains accelerating through a crossing and seasonal weather trends like contamination from falling leaves are not isolated in the data. In any event and perhaps most importantly, even taking the new information from CN at face value, VIA’s independent experts determined that “its implied impact to the overall risk of a grade crossing collision is negligible”. Even making key assumptions in favour of CN’s position and ignoring the other, more positive data available, the likelihood of an accident remained improbable (somewhere between one-in-a-thousand to one-in-ten-million) and the risk level tolerable.
VIA MAINTAINS THAT THE CN CROSSING SUPPLEMENT CANNOT BE JUSTIFIED
VIA has a right to permanent and interlocutory injunctive relief to put an end to CN’s illegal, unreasonable and abusive conduct with regard to the Crossing Supplement. VIA has a clear obligation and a clear right to access and use CN’s infrastructure and services to operate its national public intercity passenger rail service, which CN has admitted, and CN has a correlative obligation to accommodate VIA’s operations. This necessarily implies that CN cannot impose unreasonable restrictions on VIA’s operations. CN also has an obligation to ensure that its infrastructure complies with all legal and regulatory requirements.
CN’s Crossing Supplement offends not only the letter, but also the purpose of the public order safety regime from which it arises. Even were it permitted by CROR and by the Railway Safety Act—which it is not—the Crossing Supplement would therefore remain an abuse of CROR 103.1(f). CN should have implemented “a robust system for tracking inspections, repairs, and corrective actions” but instead it “avoid[ed] its responsibility for doing so by imposing a blanket restriction across its network on VIA Venture trains, at hundreds of crossings for which it has not evidence of any issues.
If one were to accept CN’s unproven claim of a significantly increased risk that VIA’s Venture trains will not be detected by its infrastructure, it could only lead to one conclusion: that CN’s infrastructure is non-compliant and that CN is violating the Grade Crossings Regulations, Grade Crossings Standards, and the Railway Safety Act, and has been doing so [since October, 2024]. The Crossing Supplement does little but provide potential cover for those violations, allowing CN to claim that it has solved its problem (if in fact it exists, which CN has not proven) without the burden or expense of fixing its infrastructure as it would be obligated to do by law.
CN did not follow industry common standards when implementing the Crossing Supplement. The restrictions were applied reactively without sufficient supporting evidence, proper root cause analysis, risk assessments, or adherence to Safety Management System regulations. CN contradicted its past conduct, bypassed necessary evaluations, relied on data logs instead of conducting on-site inspections, and ignored key safety practices, ultimately imposing restrictions that do not appear justified or effective.” CN acted unreasonably by taking excessive measures based on months-old information that it had admitted was inconclusive, without the slightest bit of further investigation. CN itself claims that it “immediately” imposed the Crossing Supplement upon “finding out” the same day that “the Venture fleet was now operating” on crossings equipped with GCP technology, a fact that it had been advised of months prior, which is itself an admission of wrongdoing.
Finally, CN's Hoang Tran has questioned VIA’s decision not to revise its schedules to assume trips will take longer and VIA’s decision not to have its trains simply travel at slower speeds throughout the entire Corridor. Both proposals are operationally unfeasible. However, both proposals echo specific positions taken by CN—for its own business reasons—in its dispute with VIA before the Canadian Transportation Agency. As such, these positions advanced in the present litigation appear as a disproportionate weaponization of a safety concern for illegitimate ends, to exert pressure on a party over which CN has total operational control and with which it is embroiled in an unprecedented and historic conflict. This, along with what is stated above, raises obvious and considerable concerns of bad faith.
CN is well aware that the Crossing Supplement cannot be justified, which is the only logical inference to be drawn from the fact that, after five months, CN still has not offered any demonstration of its necessity, let alone a rigorous one. CN has refused to take the steps it must take by law, knowing that doing so would only oblige it to withdraw the Crossing Supplement and/or spend money to remediate its infrastructure. Such wrongful and unreasonable use of CROR 103.1(f) special instructions is an abuse of right. In light of the above, VIA has a clear right to relief from CN’s wrongful conduct, by way of an order that CN cease applying the Crossing Supplement.
VIA'S REPUTATION CONTINUES TO SUFFER MORE EACH DAY
VIA has monitored delays resulting from the Crossing Supplement and has estimated such delays to 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; and
- Toronto-Sarnia (scheduled time of 4 hours 51 minutes): 20 to 30 minutes of delay
The above delay estimates can compound because trains often become asynchronous with existing schedules. For instance, when a QMO train arrives 30 minutes late, this will delay the Ottawa-Toronto train utilizing the same equipment, which then delays the Toronto-Windsor train, etc.
THE REMEDIES CN SUGGESTED CANNOT POSSIBLY BE IMPLEMENTED
Many of these suggested solutions appeared in previously-published posts as easy fixes suggested by CN for VIA's problems with CN. Even the concept of 'doublavay' Venture J-trains is brought up, considered and then dismissed by VIA. Alternative solutions to comply with the Crossing Supplement cannot be implemented in either the short- or mid-term or are otherwise unfeasible:
- adding Onboard Shunt Enhancers may present other safety risks that would need to be tested and would require applying for an exemption with the Minister, a process that would likely take over two years to complete.
- shifting back to Legacy [LRC and HEP] trainsets would not be feasible, as they are being cycled out of service by early-2026 on preset engineering retirement dates.
- increasing the number of axles on VIA Venture trains from 24 to 32 would not be feasible in the short-to-medium-term. Train cars are not easily interchangeable, and adding Legacy cars to VIA Venture trains would be impractical from a compatibility standpoint.
- Ordering new compatible Venture cars would come at a very significant cost and, more importantly, take approximately 12 to 24 months.
- Following a thorough risk assessment, VIA determined that coupling two VIA Venture trains together to increase axle numbers (known as “J-Trains” or “Double-Ventures”), would increase other safety risks and pose other operational challenges to such a degree that this is not a viable option either.
- Since the proceedings began before the Federal Court, VIA was forced to re- explore the J-Train concept, even though it was previously determined that such an option was not viable, for the purpose of reducing residual risk to a level As Low As Reasonably Practicable (known as the “ALARP Principle”). This option is still under review and has not been formally approved. Siemens has advised that it does not wish to help VIA in assessing or implementing this option, considering that J-Trains were not the intended use of VIA Venture trains. This Double-Venture option may also lead to other safety risks that need to be understood, assessed, and addressed satisfactorily.
- The option of coupling some pairs of VIA Venture trains together would only be feasible for a limited portion of VIA’s 24 Venture trains, and therefore it would not fully allow addressing the safety risks caused by CN’s Crossing Supplement. It would also create significant operational difficulties and result in an important reduction of the number of frequencies and trains available in the Corridor, thus compromising the transportation of passengers in Canada.
CN’s sudden imposition of a new blanket rule applicable to VIA Venture trains for the entire Corridor has violently disrupted a status quo which had prevailed for two years before October 11, 2024, with VIA Venture trains operating well over 5,300 trips and entering crossings without any incidents hundreds of thousands of times. In the absence of evidence establishing a serious safety risk at CN’s grade crossings, the balance of inconveniences would be tipped by the legitimate interest of VIA, its employees, its passengers, and the broader Canadian public in ending the unprecedented disruptions to rail transportation services caused by the Crossing Supplement.
Having lost its Federal Court forum for interim recourse nearly on the eve of being heard, VIA—and the public—have simply run out of time. The Crossing Supplement’s impact on safety was already unacceptable in December of 2024; as of March 2025, the risk has only become worse. In January 2025, VIA decided to temporarily suspend the gradual deployment of the Venture fleet, so as to avoid increasing the number of trains in relation to which LEs would be exposed to the increased cognitive workload caused by CN’s Crossing Supplement. This causes serious operational difficulties, as the Legacy fleet must continue to be cycled out due to previously determined engineering retirement dates. VIA's Venture implementation has stalled at 12 sets in the Corridor, that's less than half of the 28 sets received from Siemens so far, with only four more to be delivered.
In addition, as Legacy trainsets are being cycled out at end of life, VIA Venture trains will continue to increase as a portion of traffic along the Corridor. The magnitude of the safety risk must increase for the simple reason that the number of trains affected is continuing to increase. An injustice would arise against VIA’s employees and the public at-large if they were forced to bear a growing risk without the opportunity for this Court to put a halt to that risk for further months. This matter must be resolved, at least on a safeguard basis, as quickly as possible.
VIA'S DESIRED REMEDIES TO BE IMPOSED ON CN BY THE COURT
For these reasons, may it please the Court to, at the Safeguard stage:
- ORDER, until the issuance of a judgment on the interlocutory injunction of the present originating application, to a maximum of six months, Canadian National Railway Company to cease applying the three versions of its “VIA Venture Equipment Crossing Supplement" at all crossing mileages listed in the Crossing Supplement;
- ORDER, until the issuance of a judgment on the interlocutory injunction of the present originating application, to a maximum of six months, Canadian National Railway Company to cease and refrain from applying Canadian Rail Operating Rules rule 103.1(f) special instructions that would purport to apply solely to passenger trains, in both cases operating with less than 32 axles or without any shunt enhancers;
- MAKE any additional order this Court considers just and appropriate in the circumstances;
At the Interlocutory Injunction stage:
- ORDER, until the issuance of a judgment on the permanent injunction of the present originating application, Canadian National Railway Company to cease applying the three versions of its “VIA Venture Equipment Crossing Supplement” at all crossing mileages listed in the Crossing Supplement;
- ORDER, until the issuance of a judgment on the permanent injunction of the present originating application, Canadian National Railway Company to cease and refrain from applying Canadian Rail Operating Rules rule 103.1(f) special instructions that would purport to apply solely to passenger trains, in both cases operating with less than 32 axles or without any shunt enhancers;
- MAKE any additional order this Court considers just and appropriate in the circumstances;
On the Merits:
- ORDER Canadian National Railway Company to cease applying the three versions of its“VIA Venture Equipment Crossing Supplement” at all crossing mileages listed in the Crossing Supplement;
- ORDER Canadian National Railway Company to cease and refrain from applying Canadian Rail Operating Rules rule 103.1(f) special instructions that would purport to apply solely to passenger trains, in both cases operating with less than 32 axles or without any shunt enhancers;
- CONDEMN Canadian National Railway Company to pay VIA Rail Canada Inc. compensatory damages in an amount to be particularized and to be proven at trial, as compensation to the fullest extent possible of VIA Rail Canada Inc.’s prejudice caused by CN’s illegal, wrongful and abusive conduct, with interest and the additional indemnity provided at art. 1619 Civil Code of Québec;
- CONDEMN Canadian National Railway Company to pay VIA Rail Canada Inc. an amount of punitive damages to be to be particularized, on account of Canadian National Railway Company’s intentional and abusive violation of VIA’s right to the safeguard of its reputation under Art. 4 of the Charter of Human Rights and Freedoms, CQLR c C-12;
- RESERVE the right of VIA Rail Canada Inc., in the event Canadian National Railway Company adduces evidence that its track circuits and warning systems cannot systematically detect VIA Rail Canada Inc.’s trains of which the axles and wheelsets have been demonstrated to generate a shunt of no less than 0.06 ohms and operating with less than 32 axles and without shunt enhancers, to seek alternative orders from this Court to order Canadian National Railway Company to take corrective measures to ensure that its track circuits and warning systems at all grade crossings systematically detect all of VIA Rail Canada Inc.’s trains of which the axles and wheelsets have been demonstrated to generate a shunt of no less than 0.06 ohms and operating with less than 32 axles and without shunt enhancers;
THE WHOLE with costs.
So there you have it. A new legal strategy and venue for VIA - to have a Provincial Court provide remedies it requests from CN. We are left to wonder:
- Will the Ontario Court be next?
- Will Transport Canada weigh in before the Quebec Court does? The Transport Minister retains the power to instruct VIA to continue following CN's Crossing Supplement as she does to instruct CN to withdraw it.
- Can VIA do more to make its case in the court-of-public-opinion before its reputation runs out of track?
Two tracks remain for this saga going forward
1. Quebec Superior Court - updates below.
2. Transport Canada Ministerial Order - watch for an upcoming post!
***APRIL 23, 2025 UPDATE***
The Superior Court of Quebec has chosen not to intervene and grant an interlocutory injunction against CN. (VIA had applied to the Quebec Superior Court on an urgent basis to seek permanent and interlocutory relief, and for a safeguard order if interlocutory relief cannot be adjudicated in the very short term, to prevent continued severe and irreparable harm caused by CN's unreasonable, excessive and abusive conduct.) The Court's decision says that Transport Canada, as the authority responsible for rail safety in Canada, is best-positioned to decide this matter. VIA's CEO shared the outcome, and VIA does not view this as a loss. In fact the main legal case - a request for permanent injunction - is still ongoing.
In the course of the legal process in Quebec, VIA and Transport Canada (TC) were able to obtain key information from CN that had been previously unshared. These new insights will significantly support VIA's ongoing discussions with TC and CN. VIA claims that CN's latest data confirms that none of VIA's trains are detected at crossings any differently than other trains operating in the Corridor.
VIA's General Counsel is reviewing the Court's decision and evaluating next steps in the legal, operational and administrative avenues.
Running extra...
Sometimes I think these court-related posts are titularly and tenuously trackside-related. Perhaps even monotonous. When I start thinking that, my mind immediately goes to the non-monotonous melodious
Mahna-Mahna, presented in its original 1969 form. Originally written by Piero Umiliani for a 1968 Italian film titled "Svezia, Inferno e Paradiso" ("Sweden, Heaven and Hell").
First past the post...
A new feature here on Trackside Treasure...each week I'll mention someone who made a positive impression. Kent Brasier stopped by to pick up his copies of my books, telling me he heard about this blog from a fellow model railroader in northern New York. Now that's hands across the border!2
Vista Drive at Bath Road Mi 179 CN Kingston Sub, both unphotographed:
