Ministerial Order - Venturing into CN's Grade Crossing Records

THE CASE SO FAR

VIA's application for judicial review of CN's crossing supplements was not granted. Issued on October 12, 2024 the supplements govern VIA Venture speeds at crossings and are intended to ensure proper shunt for activation of grade-crossing warning protection. CN's Motion to Strike prevailed in a February 7, 2025 proceeding, from which the decision was published on February 20, a mere three business days before the entire matter was scheduled to be heard in Federal Court in Montreal, on February 25.

VIA contended that CN is obligated,  under  the  Canada  Transportation  Act, to  provide access and services over its trackage to passenger service providers such as VIA. CN exercises its powers conferred by the Railway Safety Act and the Canadian Railway Operating Rules (CROR). CN can make rules respecting the operation of railway equipment, and file them with the Minister of Transport. 

VIA pays CN about fees totalling $50 million of your tax dollars per year in a Train Service Agreement to use CN's tracks, which sounds like a reason for CN to keep VIA on its rails! However, consider the fact that this is far less than VIA would have to pay to maintain its own trackage, if that were a viable option, and that the $50 million payment is less than half of 1% of the nearly $17 billion that CN reported as revenues in 2023! In its court proceedings, CN contended that VIA should have its own infrastructure on which to operate. 

TRANSPORT CANADA INTERVENES?

The Department of Transport was created in 1935 by the government of Prime Minister W.L. Mackenzie King merging three departments: the former Department of Railways and Canals, the Department of Marine, and the Civil Aviation Branch of the Department of National Defence. Prior to a 1994 federal government reorganization, Transport Canada had a wide range of operational responsibilities including the Canadian Coast Guard (recently placed under the Department of National Defence), the St Lawrence Seaway, airports and seaports, as well as Via Rail and CN Rail. Transport Canada emerged from this process as a department focused on policy and regulation rather than transportation operations.

Many voices have suggested that Transport Canada (TC) be involved in the CN/VIA Venture issue as part of its oversight and safety roles. Still in play is Ministerial Order # MO 24-01, published to the Transport Canada website. On December 12, two months after CN's unprecedented action, Transport Canada issued the order. Contained in a letter to CN from TC's Director General of Rail Safety and Security on December 10, 2024, the order required submission of information to ensure compliance with grade crossing requirements, such as those found in the Grade Crossing Regulations, and ascertain whether there is an active safety issue. This information would assist TC in determining next steps, which could include requiring companies to implement corrective measures to mitigate any risks and ensure that CN’s implementation of the operating restrictions for VIA’s Venture fleet is effective in identifying and addressing safety concerns as they arise. CN submitted data pursuant to this order by January 9, 2025.

Section 36 of the Railway Safety Act (RSA) provides the Minister of Transport with the authority to order a railway to submit information or documents that the Minister considers necessary for the purposes of ensuring compliance with the RSA and with supporting regulations, rules, orders, standards and emergency directives made under the RSA.

VIA contended that CN did not first consult VIA and obtain the Minister’s approval, it acted without jurisdiction, beyond its jurisdiction, and in violation of the procedure required under the Railway Safety Act.

Compared to the judicial review approach that VIA elected to pursue, the Ministerial Order has more teeth, with specific requirements for CN to submit real technical data, not just subjective affidavits as were submitted in the judicial review process, along with supporting documents that may or may not have been pertinent. In the Ministerial Order, for each grade crossing warning system at the locations listed, the following in short were to be submitted:

• All available records demonstrating warning activation times, including the time gates (if equipped) were in the horizontal position, for each crossing activation for the period starting in May 2024 to the date of this Order..
• Other pertinent data that has been compiled and analyzed by the supplier of the equipment for each grade crossing warning system, for the period starting in May 2024 to the date of this Order.
• Records confirming the breakdown of how the criteria specified in each paragraph of section 16.1.1 of Part E of the Grade Crossings Standards were derived. 
• Most current design & board plans.
• Record of the last yearly test including most current linearization results.

My Access to Information request, received by TC on January 21, 2025 required an extension of time beyond the statutory 30-day limit is necessary to process. The new legislative due date for my request became March 24, 2025. I had requested copies of all the documents CN was required to submit to TC. Apparently, this comprises thousands of pages of machine-readable data. No response had been received by the revised due date. There is a lot of languishing going on at Transport Canada, up-to-and-including the day this post is being published!

The amount of raw data that must be analyzed in this case to draw conclusions seems astronomical and, on the other hand, the methods followed or the calculations established by one or the other to draw conclusions remain fairly obscure. To be convinced of this, one need only note that the experts from CN and TC themselves have difficulty adequately reading the relevant raw data, which requires elaborate exchanges between them over several months, in particular to clarify the question of what are the real "short warning times" that should be taken into account in assessing the situation. 

THE MINISTER'S ROLE IN RAIL SAFETY

TC enacted the Ministerial Order in direct response to VIA's allegation that CN's grade crossing warning system sensors do not meet minimum requirements. 

Contractual relations between railways occur within a regulated rail safety environment. A railway's adoption of internal safety requirements and its application of those requirements to contracting parties does not supersede, override or fulfill the Minister's role.

Minister Chrystia Freeland (above, recently visiting the Port of Saint John) had a wide range of powers sufficient to allow the Minister to address and resolve CN and VIA's safety concerns. Those powers are now held by her replacement in the portfolio, Steven MacKinnon.

Under Section 32.01 Safe Railway Operations the minister could order CN to stop requiring VIA to obey the Crossing Supplement. Conversely, the Minister could order VIA to follow the Crossing Supplement procedures.

If the Minister issues such an order, it could be challenged at the Transportation Appeal Tribunal of Canada, a specialized administrative tribunal. The order can be reviewed by a single member, thence a three-member Tribunal. Their decision is then judicially reviewable by the Federal Court. 

The Minister of Transport, in December, 2024 issued the aforementioned Order # MO 24-01 by which she asked CN to provide her with the relevant data in order to assess whether there is indeed a safety issue (“an active safety issue”) with the shunting of Venture trains and this, with the aim of determining whether measures must be put in place with regard to one or the other of the parties “to mitigate any risks”. 

The Minister has all the necessary powers to order CN to cease applying the directive to Venture trains. If she deems it necessary, the Minister can even act urgently, by simply sending a notice ordering CN to cease this practice, which order will have the same enforceability as an injunction order from the Superior Court. In short, the remedies provided for in the RSA are entirely adequate to protect the interests that VIA seeks to protect by its application for an interlocutory injunction. 

The Minister, although advised by VIA of its concerns regarding the urgency of lifting the application of the directive due to the risks that it could create by cognitive overload for Venture locomotive engineers, did not deem it appropriate at this stage to issue an emergency ministerial injunction. 

The legislative regime put in place by the legislator in matters of railway safety offered VIA a process which is fully capable of adequately responding to the protection of the interests which it seeks to protect by its request for an interlocutory injunction. 

To summarize and put it another way, the federal legislature has established a sophisticated, efficient and flexible administrative system to ensure railway safety in the country. This process relies on the expertise of the Department of Transport in this area. The Minister can issue the necessary orders for railway safety and even ministerial injunctions in an emergency and adapt them to the situation before him. Appeals are provided for before the Transportation Appeal Tribunal of Canada, whose members must have expertise related to the transportation sector in question when they hear a case.

AN UPDATE ON THE DATA PROVIDED IN RESPONSE TO THE MINISTERIAL ORDER

In the midst of the interlocutory injunction case VIA brought against CN in Quebec Superior Court  (I was surprised to learn this week that the main case will be heard by the Court) there was additional information provided by VIA regarding CN's process of providing TC with data and documents:

A supplementary report was filed at the last minute by VIA at the start of the hearing on the morning of April 10, 2025. According to [the report], new data disclosed by CN on April 5, 2025, during cross-examinations—which are claimed to be by far the most comprehensive seen to date—show that the "short warning times" detected on the CN network are not specifically associated with VIA trains but also with CN trains and that, consequently, this data "strongly suggests [that] CN's infrastructure is the cause [of the short warning times], not VIA Venture trains." This new report is accompanied by said data in the form of technical computer files spanning several hundred pages. 

CN instead chose to respond with a sworn statement by Mr. Hoang Tran dated April 10, 2025, in which Mr. Tran explains that he is responsible for compiling and analyzing the data to be submitted to Transport Canada following the Minister’s request for information. He indicates that the files reviewed by in the April 9, 2025 report were not final documents, but rather draft spreadsheets. He estimates that he will need another three weeks of work to complete his analysis of the data. 

Mr. Tran explains that Transport Canada sent CN a file in which some 11,756 alleged short warning time events were identified by department employees. CN must verify whether each of these alleged events is a genuine short warning time, and, if so, identify their cause and the train involved. He goes on to state that, according to CN’s examinations at this stage, the number of “valid” short warning times is closer to 2,000, but that this estimate is expected to decrease further as verifications of alleged short warning times are carried out. 

Mr. Tran is therefore of the opinion that the calculations carried out to determine the proportion of short warning times attributable to CN trains as opposed to VIA trains are therefore unreliable, especially since the analysis of the data used to precisely identify the train involved for each valid short warning time has also not been completed. Mr. Tran also disputes the methodology and calculations for establishing the ratios of short warning times for VIA trains compared to CN trains.

My conclusion based on the above is that the number and type of short warning times is not only unknown by CN but also disputed by them, and forms a significant potential roadblock to TC's work, perhaps explaining in part why work on the data CN submitted to TC in January, 2025 continues to drag on all these months later! 

WHAT NOW?

I've been holding off publishing this post, hoping for some regulatory decision from TC for the last several months, alas and alack, no. VIA proudly stated that they had collaborated with CN in the late-August release of CN's latest kick-at-the-can, its Permanent Slow Orders for Ventures. Clearly, TC is the only hope for VIA and its passengers. 

Are the mandarins working away despite changes at the top? Within the last year, Pablo Rodriguez, Anita Anand, Chrystia Freeland (just stepped down) and now Steven MacKinnon have served in the portfolio under Liberal governments.

Though there's been some OTP improvement, only regulatory action by, wait for it....the legislatively-empowered regulator will resolve this now eleven-month-long sojourn, slog, struggle.

* * * * *

Transport Canada weighs in! But not on CN-imposed crossing speed reductions on VIA's Ventures, noooo, this is a review into rescue maneuver procedures involving passenger trains with inoperative brakes. No specific incident is referred to, though I wonder if CN damaged a Venture or other consist?

Running extra...

David Letterman, John Stewart, and Stephen Colbert were among the legion of comics and commentators supporting Jimmy Kimmel on his unwarranted suspension due to corporate cowering. Here's Stephen shown unusually right-of-centre (at right).

VIA No 1 departed Toronto without a baggage car again on Wednesday, September 17. Two coaches, 8106 and 8116 were pressed into checked baggage service, marshalled ahead of working coaches 8109 and  8125.

Oops, it happened again. Three times the book for three times the price? George's Trains weekly e-newsletter. (Click for more expensive image)

First past the post...

John Longhurst is an author and freelance writer in the field of Christian ecumenism and inter-faith dialogue. As the religion columnist and a reporter at the Winnipeg Free Press since 2003, he made it his goal to promote positive inter-denominational relations to reduce hate and to help readers see the humanity in every person. So reads the citation as John became a member of the Order of Canada, bestowed yesterday in Ottawa by Governor-General Mary Simon. 

This is exactly the type of life's work that we should mark well as a nation - the very best among us. John received the Lieutenant-Governor's Award for the Advancement of Inter-religious Understanding in February 2021, an annual honour presented to a Manitoban who embodies understanding between religious groups. John is also a model railroader, fellow blogger and formerly assistant editor of Canadian Railway Modeller magazine. Congratulations on this richly deserved honour, John!