As I continue to garner (with which to populate posts here!) more public documents from the now moribund Federal Court case, I've been sharing their contents and how they comprised VIA's application for judicial review and responses to it by CN and the Attorney-General of Canada (AGC). Having not been heard, due to CN's motion to strike, the case has been taken to the Quebec Superior Court while Transport Canada (TC) continues to digest CN's submitted grade crossing protection data.
Some of the material in this post may sound familiar and overlap some information I've previously published, although this post contains more contemporaneous emails and views of other documents just made available. Notwithstanding that, I made the decision to not intermingle the material, nor add the new material to the previously-published posts, presenting it herein as it was submitted to the Court chronologically as the anticipated date of VIA's judicial review drew nearer.
The initial "facts" from this Federal Court case has now grown into a series of at least four posts:
- VIA and CN in Federal Court - The Facts, Part 1
- VIA and CN in Federal Court - The Facts, Part 2
- VIA and CN in Federal Court - The Facts, Part 3
- VIA and CN in Federal Court - The Facts, Part 4 (you're reading it!)
- CN-VIA Train Service Agreements
It took one month to be able to review these most recent documents, and a week to prepare the material for this post. Direct quotes from affidavits are presented "in quotation marks" with my editorial comments [in square brackets].
This post, over and above any other in this series, sets out with 'the receipts' exactly how CN arrived at the perceived need for crossing speed reductions. There's nothing here that would convince a knowledgeable reader that they were warranted, however. The search for the smoking gun continues. Two short-warnings of a few seconds do not equal gates that don't lower and bells that don't ring.
- January 30, 2025 - Responding Motion Record of CN to VIA's Application for Judicial Review
- January 27, 2025 - VIA Letter to AGC re: CN's Motion to Strike and January 30, 2025 - AGC Letter responding to VIA
- February 5, 2025 - CN Aide-memoire re: TSA and Guelph Sub
- February 5, 2025 - VIA Aide-memoire CN's Motion to Strike and response to AGC Motion Record
- February 5, 2025 - Joint Cross-Examination Brief of CN's Hoang Tran
- February 13, 2025 - Factum of VIA for Motion to Stay
RESPONDING MOTION RECORD OF CN TO VIA'S APPLICATION
The documents CN brought forward as its Motion Record comprised 1,891 pages of material of which 1,516 pages were supporting materials. The highlights were affidavits in support of CN's response to VIA from CN executives Thomas Hilliard and Hoang Tran, as well as CN-called expert witnesses Li-Lian Liu and Jason Kumagai.
AFFIDAVIT OF THOMAS HILLIARD
Thomas Hilliard, CN Associate Vice-President of Signals & Communications started with CN in 2007. He is based in Indiana and represented CN on the (Loss-Of-Shunt) LOS Committee as well as overseeing the roll-out of VIA Ventures to address any LOS issues, having received regular updates on Ventures since 2021. His affidavit was sworn on January 27, 2025.
LOS is important for constant-warning technology (CWT) at grade crossings including GCP 3000, GCP 400 [sic], XP4 models and others. CWT triggers Grade Crossing Warning Devices in accordance with train speed, relying more heavily on shunting than previous technology. The LOS Committee was formed in 2014. Shunt was identified as the cause of a multiple-fatality incident in 2004 involving an Amtrak train. That same year, CN 'lost' an Amtrak train from the RTC panel for 15 seconds!
The White Paper was published by the LOS Committee in 2024, identifying four root causes of poor shunting. The report begins, "Short passenger trains (<32 axles) have a history of poor shunting...". Until On-board Shunt Enhancers (OSE's) are implemented, CN put restrictions on the operation of Amtrak trains operating on CN tracks in the US: 60-70 mph maximum; minimum 30 axles.
In January, 2021 CN's Hoang Tran, Senior Director, Regulatory, System Safety and Passenger Operations, proposed shunt testing requirements/procedures to VIA to ensure adequate shunting of Ventures at Pontiac, MI. The response from Robert Becker, VIA Senior Director, Fleet Renewal to CN Hoang Tran said that testing seemed extreme though Illinois Dept. of Transportation (IDOT) cars tested were virtually identical to VIA's:
On May 25, 2021 Michael Burgett (who left CN on November 29, 2024) was at that time CN's Senior Manager Engineering, Signal Design, S&C Standards System sent the IDOT Venture testing results to VIA (below). Given the amount of data CN had on IDOT Ventures, VIA agreed to testing by simulation only.
On August 4, 2021 CN sent a presentation slide-deck showing the weights of VIA and IDOT Ventures plus configurations it wanted tested by CN. The simulation testing was conducted by Hilliard's team using a CN-built model in autumn, 2021.
On September 28-29, 2021, VIA's Robert Becker emailed Jacques Luce, CN Manager, Passenger Operations, noting that shunt validation was the final element for CN to accept operation of Ventures on CN track.
During an October 5, 2021 call, CN's Michael Burgett told VIA that there were shunting concerns with trainsets of less than 32 axles.
On a second call on October 15, VIA and Siemens reps viewed the the multicoloured spreadsheet shared by Burgett showing CN's simulation testing results, showing that <7.2% was an acceptable threshold risk for LOS, with >7.2% representing a potential LOS concern. On that same call, Burgett confirmed to VIA that CN would authorize 24-axle Ventures on its track with a 10-day notification requirement, and an ongoing option for CN to impose any required restrictions. (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.)
As of October, 2021 Hilliard understood that VIA's two 24-axle trainsets were authorized for testing only so that CN could collect data with which to evaluate LOS risk. Specifically, Hilliard's team could gather data at "different crossings every 30 days, with any given crossings reviewed every 60-120 days".
But by October 24, 2022 Hilliard said, "I did not appreciate that revenue service would be starting" or where, nor that VIA's deployments were taking place in Quebec-Ottawa-Montreal (QOM) in late-2022 and Montreal-Toronto in late-2023. "Until October 11, 2024 my understanding was that VIA was only running its Venture trains for testing purposes. I have come to learn that there was some miscommunication [!!] that this understanding was incorrect, and that VIA had been operating in revenue service on CN's infrastructure well before October 11, 2024. Had I appreciated that, I would have advocated for increased monitoring of Ventures' shunting. And, following Drummondville (see below) events I would have advocated for restrictions similar to CN's Crossing Supplement."
It was on March 21, 2024 that Burgett emailed Hilliard with the 30-day collected data from several XP4-equipped crossings on CN's Drummondville Sub (below - Flouting [sic] email). Hilliard felt that the Drummondville data was consistent with his LOS experience of months and months with LOS absent then several incidents over a few weeks. Note that some highly problematic locations could have additional buffer time added until additional axle counts [were] implemented:
On March 22, 2024 Hilliard's team consulted Jacques Luce, CN Manager of Passenger Operations, who confirmed that the equipment involved was "almost entirely VIA's Venture trains" and GBO's to protect crossings were issued. Three days later, Burgett was on a call with Hoang Tran and Jacques Luce though "I defer to Mr. Tran's affidavit as to what was discussed on this call."
Burgett contacted ALSTOM, one of CN's suppliers of constant-warning and monitoring equipment with some of the Drummondville shunt profiles. VIA's Specialist, Signals and Communications Kevin Hughes was also in touch with ALSTOM, such as this email to ALSTOM Senior Project Manager Paul Harper:
and the response from ALSTOM:
Drummondville data - shunt profiles showing VIA No 24 and CN No 121:
DRMV spreadsheet data showing short warning times at crossing Mi 80.17 CN Drummondville Sub. The warning times are short both when compared to regulatory requirements AND when compared to the programmed warning times at each crossing (column XP4 WT - below):
On March 28, 2024 Kevin Hughes, VIA's Specialist, Signals and Communications reached out to CN to see if CN's crossing equipment was running with upgraded software, and whether that impacted the Drummondville data. Burgett replied yes, but that upgraded software did not cause short warning times. The next day, CN's Michael Burgett replied by email:
and the response from Kevin Hughes:
This Drummondville data loomed large in CN executives' minds when October, 2024 rolled around. On October 7, "Mr. Tran and other CN personnel came to appreciate that VIA was operating its Venture trains in a 24-axle, single-locomotive configuration in revenue service across Southwest Ontario. GBO's for SW Ontario were issued and I then supported the October 11, 2024 crossing supplement. My support for the Crossing Supplement was based on my ten years' experience with the LOS Committee, simulation testing of VIA's Ventures in 2021 and the Drummondville data. I believe VIA's Ventures with 24 axles presented a serious risk of an LOS event creating a catastrophic risk for loss of life". On a subsequent call, VIA executives advised Hilliard that poor shunting was not a genuine risk, and that a next round of Venture procurement "would include a requirement for OSE's".
On December 10, 2024 Transport Canada ordered CN to file information in response to the Crossing Supplement implementation. CN's response to Transport Canada (to the Ministerial Order of December 10, 2024) dated January 9, 2025, comprised a cover letter from Hoang Tran, Senior Director Regulatory and Passenger Operations, and data on crossings monitored:
CN would like to assure you that it shares Transport Canada’s interest in ensuring safety at crossings on its network. CN’s decision to impose operating restrictions on the crossings where the Venture equipment operates in the Quebe City-Windsor Corridor was taken very seriously. However, in CN’s opinion, imposing restrictions was a necessary preventative measure to mitigate serious and proven safety risks associated with loss of shunt by VIA’s light passenger equipment. As well-established by the documentation previously provided by CN to Transport Canada, there is no doubt in CN’s mind that the situation represents an active safety issue. The operating restrictions were imposed in the interest of safety, to protect the public and CN’s infrastructure.
CN’s decision was based on extensive work carried out by CN with the National Loss of Shunt Committee in the U.S. on which VIA was invited to participate, combined with additional data points from short warning times (below regulatory minimum warning times) observed on the Drummondville Subdivision and simulated testing performed on the Venture equipment.
Based on data and testing performed over a period of 10 years on similar type of light train equipment, including investigations of various potential cause of loss of shunt, the Committee concluded that the root cause for the loss of shunt phenomena it was testing for passenger trains was: equipment with a poor wheel/rail interface influenced by consistently “trued” wheel profile, fewer axles compared to freight trains, lighter equipment and head hardened rail.
Attached is a Summary of CN’s recent testing.
Although the testing completed by CN only revealed one short warning time (as discussed below), CN remains concerned about the poor shunting profiles demonstrated by VIA Venture trains with less than 32 axles. CN also notes that these results were obtained in ideal shunting conditions (i.e., wet weather). In the United States, CN has observed ideal shunting profiles in wet conditions turn into erratic and very erratic shunting and floating shunts in prolonged periods of dry, warm conditions. CN supports continued testing to assess the shunting profiles of VIA’s Venture trains in poorer shunting conditions to inform decisions about restrictions on these trains.
Summary of Testing
Starting on October 31, 2024, we started our track circuit sensitivity testing in preparation for taking logs in response to observing short warning times on VIA trains with less than 32 axles. We also had to upgrade the display and track cards on our GCP 4000 locations in order to capture the ¼ second logs for data capturing. For testing, we identified 10 locations on the Drummondville Sub, 2 locations on the St. Hyacinthe Sub and 12 locations on the Kingston Sub. The following are the locations and the warning devices for each location:
Drummondville Sub:
- MP 033.63 Rand [sic] Du Village XP4
- MP 040.02 De La Station XP4
- MP 046.07 Rang 16 XP4
- MP 046.35 RTE St. Philomeme XP4
- MP 051.72 9th RGE Rd XP4
- MP 053.60 Ch. De La Belgique XP4
- MP 061.83 Chemin Rang 4 XP4
- MP 064.03 Rang 16 XP4
- MP 074.11 10Ieme Rang XP4
- MP 120.38 Rg St. Georges GCP 4000
St. Hyacinthe Sub:
- MP 057.47 Rang Des Trentes GCP 4000
- MP 062.18 Seigneurial GCP 4000
Kingston Sub:
- MP 283.90 Farm Crossing XP4
- MP 281.77 Private Rd. GCP 4000
- MP 279.58 Elliot Rd. GCP 4000
- MP 244.42 Union Rd. GCP 4000
- MP 233.67 2nd Dug Hill Rd. GCP 4000
- MP 223.36 Belleville Rd. GCP 4000
- MP 213.45 County Rd. 7 GCP 4000
- MP 204.27 County Rd. 10 GCP 4000
- MP 181.71 Coronation Blvd. XP4
- MP 163.34 Joyceville Rd. GCP 4000
- MP 153.90 Private Rd. GCP 4000
- MP 151.26 Cliff Rd. GCP4000
On December 10th, 2024, we set up flagmen and field personnel to safely capture ¼ second logs on the Drummondville and St. Hyacinthe Subdivisions. There was approximately 1’ of snow on the ground and temperatures ranging from -5c to -1c with rain in the afternoon. On December 11, there was freezing rain that turned into rain all day. With wet, damp conditions we would expect to see very favorable shunting conditions. We did witness a short warning time at DV 040.02, from VIA 24. We witnessed a 27 second warning time when the min designed warning time is 30 seconds.
This is the only short warning time we physically witnessed during our testing. We suspect that this may be due to the VIA train speeding up in the approach to the crossing. We have yet to receive the requested locomotive downloads from VIA to confirm this at this time.
During the testing we saw three distinct shunting profiles. The freight train has an ideal shunting profile, where the train is detected by the crossing warning system once it gets on the approach, and it shunts in a linear manner. The 28 axle VIA shunting profiles shows that the crossing warning system also detects the train once it hits the approach, but the shunt profile is moving away from being linear with signs of erratic shunting. Lastly, the 24 axle VIA shunting profiles shows that the crossing warning system has a hard time picking up the train once it hits the approach, the profile is even less linear than the 28 axle, and it is far more erratic as well.
Looking at both the 28 and 24 axle profile there are signs of a potential floating shunt situation. During our testing there was not a floating shunt detected, due to the weather conditions, but given the data the potential is there. We would need a sustained period of dry conditions, which would then create a scenario where we potentially could have a floating shunt. We witnessed similar results during our testing in Effingham Illinois while doing similar testing. The White Paper Report that was created by the National Loss of Shunt Committee, outlines all of the various, extensive testing that we have done to mitigate the floating shunt issue.
Below is the graph from the move with the 27 second warning time:
With respect to loss of shunt issues, CN emphasizes that its Quebec City-Windsor corridor is compliant with the grade crossing warning systems and advanced warning time requirements of the Grade Crossing Regulations, and any non-compliance, if present, would be solely attributable to VIA.
Indeed, CN has not experienced any similar shunting issues with its own equipment along the Corridor. Therefore, should Transport Canada decide to order corrective measures, it is CN’s view that such orders should be directed exclusively to VIA, not CN.
In the interest of safety and protecting CN’s infrastructure and the travelling public, CN is of the view there is a need for these restrictions and their inconvenience for VIA are outweighed by the safety of the public, passengers and employees.
CN contended that their infrastructure is not the cause of observed poor shunting, and CN advised VIA that the poor shunting of Ventures was not an equipment issue.
Reportedly, on the CN Kingston Sub in mid-December, 2024 foremen were stationed at the crossings being tested to flag them, and have passing trains go track speed - it was all about the times for the gates. They also asked conventional passenger trains and freights their speed and axle count. 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. During the previous testing periods conducted by CN, it appears CN simply collected data from crossing machines after the fact without additional analysis.
Hilliard concluded with, "If CN's infrastructure was the cause of poor shunting observed in VIA's Venture trains, I would expect to have received a high volume of reports re: crossing deficiencies...I have not received any such reports. The rails and constant-warning technology in the US and Canada is the same. The shunting profiles and patterns we have observed with VIA's Venture trains are consistent with those we have observed in the US. I strongly believe the poor shunting observed with VIA's Venture trains is the same poor shunting we have been investigating in the US through the LOS Committee for over a decade, and that permitting VIA's Venture trains to operate without the Crossing Supplement would create an unacceptable risk of loss of life."
AFFIDAVIT OF HOANG TRAN
Hoang Tran, CN Senior Director, Regulatory, System Safety and Passenger Operations swore a previous affidavit on January 13, 2025. In this second affidavit, of January 30, he notes that he worked at VIA for 22 years, beginning as a Senior Analyst in Finance in 1996, rising to Senior Manager of Network Operations in 2018. His affidavit ran to 177 pages.
On October 24, 2022 VIA tells CN that revenue passenger service with Ventures will begin on November 8. Tran muses through his memory, "I do not recall when I was made aware that Venture trains were being put in revenue service. This led me to understand that this was for revenue service in QMO...sometime the QMO is referred to generically as the 'corridor'' [!] To my knowledge, CN never received separate notice from VIA ...that the Venture fleet was going into revenue service outside of QMO. It was my understanding that VIA's revenue operations with the Venture fleet up to October, 2024 were limited to QMO, where monitoring [of crossings] was occurring. Some of the communications that supported my mistaken belief were:
- December 7, 2023 - VIA asked CN about the process of getting approval from CN to operate Ventures on CN track:
- January 30, 2024 - VIA emails CN to request operation of a Venture train from Montreal-Jonquiere for cold-weather Venture testing using the regular VIA northern Quebec schedule:
- March 6, 2024 - VIA provided CN with engineering specifications of locomotive and cab cars.
- Special trains [in late-June and early-September, 2024] for which CN required GBO's, VIA made no objection.
- August 29, 2024 - VIA looking to make a decision when to deploy Ventures from London to Windsor
As mentioned in the Thomas Hilliard affidavit above, the Drummondville GBO's in March, 2024 were in the collective CN memory. In this affidavit, it reads this way, "The GBOs at crossings in the Drummondville Subdivision were implemented to protect the crossings where CN had observed short warning times. At the time, I did not appreciate that VIA was operating Venture trains elsewhere in the Quebec-Windsor Corridor. Implementing these GBOs in Drummondville accorded with CN’s internal safety-first mandate. If I had fully appreciated that Venture trains were operating more broadly along Corridor, I expect we would have issued the crossing supplement at that time."
Origin of the Crossing Supplement:
On August 29, 2024 Jonathan Cooke, VIA Specialist Director, Operating Practices and Transportation Training sent a text to Brent Medwid, CN Manager, Operating Practices re: deployment of Ventures to SW Ontario, asking whether 'all the outstanding instructions have been issued for these trains [Venture trains]' because VIA was 'looking to make a decision this afternoon on when to deploy to southwestern Ontario'. "Brent sent the message to me. I responded to ask whether we have issued restrictions for all crossings equipped with GCP4000 equipment. We devised a plan to identify all crossings in SW Ontario requiring protection."
[At this point, one has to wonder how Hoang Tran thought Ventures got from QMO to SW Ontario if not in regular revenue service along CN's Kingston Sub.]
An August 30, 2024 email (below) from CN's Luce to Hoang Tran's team prior to Ventures operating in SW Ontario:
From Brent Medwid to Jacques Luce, both of CN, an email (below) introducing the original CN Crossing Supplement 1.0 which was intended for SW Ontario only (Chatham, Dundas, Guelph, Halton, Strathroy Subs) and "when the time comes" signifying sometime in the future.
The date of this version of the Crossing Supplement for SW Ontario only, was October 1, 2024. Ironically, mere days, less than two weeks, before CN issued its Crossing Supplement which had been expanded to apply to selected crossings on all CN trackage in the Corridor.
"In early October, 2024 we planned finalization of the Crossing Supplement for whenever we received notification that VIA was entering service in SW Ontario. [Anticipated to be not "until the new year", 2025.] My team did not realize at that time that VIA had already done so. On October 7, I asked my colleague, Jacques Luce if VIA was operating Venture trains from Montreal to Toronto. He informed me that they were only operating in the QMO...":
So, the lack of understanding, the near-total ignorance of these CN executives of where VIA Ventures were operating on their network - even in the momentous single-digit span of days between when the SW Ontario revenue service began and when the expanded Crossing Supplement would suddenly take effect - is truly shocking. Reality check, local media were publicizing the impending implementation of SW Ontario revenue service over three months earlier, during the operation of the first special train/media opportunity:
The affidavit continues, "I am advised that on October 11 that Jacques Luce "became aware that VIA Venture trains operated through the Guelph Sub. This realization sparked a larger review into where the Venture trains were operating. Mr Luce then instructed Brent Medwid, on my team, to get the Crossing Supplement complete and issued ASAP":
Also on that fateful October 11, 2024 to explain CN's decision to impose the Crossing Supplement, Brent Medwid emailed VIA on that Friday night at 2000 hrs. Twenty minutes later, VIA's Jonathan Cooke had received the message and replied requesting official copies of the crossing supplement in French for VIA crews in Quebec:
VIA's On-Time Performance (OTP)
"Now that the Crossing Supplement has been in place for over three months, I would expect VIA...to propose a schedule that takes into account the realistic departure and arrival times given the Crossing Supplement. VIA's OTP would improve. [This] would improve VIA customer's [sic] experience with respect to OTP, as these customers would have a more realistic expectation of when their train would arrive and departure [sic]."
AFFIDAVIT OF LI-LIAN LUI
Professional Engineer Li-Lian Lui of Partum Consulting, Toronto was retained by CN's legal counsel to provide expert opinions on safety and risk assessment in this Motion to Stay brought by VIA. An early career with CP in 2011 led to experience with Transport Canada, private construction and consultancy in SMS and OHS programs and over 600 crossing assessments. This affidavit was sworn on January 30, 2025 - documents reviewed were the December 12, 2024 VIA Motion Record, as well as the affidavits of Tom Hilliard and Hoang Tran. Retained by CN, it seems unlikely that this expert opinion would conflict with central tenets of CN's case against VIA.
Questions to be answered:
- What is LOS; what are associated risks?
- What is risk presented by poor shunting of Ventures?
- Is LOS caused by Ventures or by CN infrastructure?
- Comment on: Hatch reports from the December 12 Quintal affidavit, the expert affidavits by Fararooy and Rudin-Brown, and VIA's risk assessment of October, 2024.
- What is your evaluation of the Crossing Supplement to mitigate LOS risk?
- What are options available to VIA to comply with Crossing Supplement?
Li-Lian Lui answered:
- My own risk assessment is that shunting risk presented by VIA's Venture trains is at least Elevated and requires mitigation.
- The LOS Committee report pointed to [Venture] trains, not CN infrastructure.
- Discounted Hatch testing due to testing methodology, locations and weather conditions, while supportive of CN's Drummondville data collection (3 months) and LOS Committee data collection (5 years)!
- VIA experts failed to apply appropriate risk assessment framework, not comprehensive, focused on limited scope of conditions.
- CN's Crossing Supplement is an adequate control for addressing inconsistencies with wheel-rail contact area. It allows for VIA to select several options to comply with it; it is lenient,
Options Available to VIA to Comply with the CN Crossing Supplement
The most effective approach to addressing hazards is to eliminate the hazard. Applying this concept to the issue at hand would mean increasing axle count to 32 or more for Venture trains, or modifying the phase-out plan for Legacy equipment. The non-exhaustive list of options (below) could be considered by VIA to mitigate the risk of loss of shunt while complying with CN’s Crossing Supplement:
Conclusions: VIA selected Ventures so it's VIA's responsibility to prove Ventures are safe for passengers and road users.
Suggestions:
- LOS Committee option = reduce speed to 60 mph.
- Rely on older Legacy equipment, plan to extend the fleet's lifeline.
- Adding Venture cars to trainsets - resulting reduction in fleet size could be mitigated.
- Manually protect crossings [!] would involve co-operation of road authorities, require manpower, be in place only at peak times.
- Install Supervisory Control And Data Acquisition (SCADA) [a system of software and hardware elements that allows organizations to control and monitor processes by directly interfacing with instrumentation and viewing real-time data].
- Install OSE's
AFFIDAVIT OF JASON KUMAGAI
"30" Forensic Engineering/Jason Kumagai were retained by CN's legal counsel to review and respond to the Human Factors North expert cognitive workload analysis for VIA by Dr. Christina Rudin-Brown. Again, as a CN-retained expert, it was not surprising that this expert report refuted the Human Factors North report - due to its small sample size of 10 VIA engineers, biased against the Crossing Supplement, and the overall methodology used.
Responding to the January 27, 2025 letter from VIA's counsel to the AGC re: CN's Motion to Strike asking for assurances that VIA directors, officers nor employees be prosecuted under the Administrative Monetary Penalties scheme for contravening the Railway Safety Act or CROR, a January 30, 2025 response letter from the AGC:
VIA was never given access to the full test results or supporting data from CN's “Summary of Testing” document provided by CN to Transport Canada. VIA obtained its disclosure through the Federal Court process for the first time on January 30, 2025, as part of the documents produced on January 30, 2025 by the AGC in response to VIA’s Rule 91 Federal Courts Rules Direction to Attend addressed to Ms. Erika Farnand.
CN AIDE-MEMOIRE RE: TSA AND GUELPH SUBDIVISION
Dated February 5, 2025. Totalling 64 pages, including 54 pages of authorities/references. Highlights:
- Refuting cross-examination by VIA's Panetta and Cooke.
- the TSA allows CN to make reasonable rules.
- CN can regulate VIA movements on the Guelph Subdivision.
- CN's rules are not judicially reviewable.
JOINT CROSS-EXAMINATION BRIEF OF HOANG TRAN
A court transcript of the January 30, 2025 joint cross-examination, submitted to the Court on February 5, shows that counsel for VIA, CN and the AGC made appearances for this joint cross-examination of a CN executive central to the origin of the Crossing Supplement. Although court transcripts are available at a cost per page - probably $1 - but once I reviewed the legal banter and cross-talk in this Court-provided transcript that one might expect when this many lawyers get together, this would have been a waste of perfectly good money for your humble blogger. I'll only post a few of the more informative exchanges from this clearly contentious videoconference documented in this joint cross-examination brief. First, an example of the trivial in the treatise:
Discussion of whether VIA operates on the Guelph Subdivision under Goderich-Exeter Railway or CN aegis. VIA has never signed an amendment to the 2009 TSA and continues to pay the 'Corridor Rate' for operations on the Guelph Sub. The Crossing Supplement includes 56 crossings on the Guelph Sub:
Discussion whether VIA actually collaborated in the formulation of the CN Crossing Supplement since the VIA logo appears on the first page. It did not:
Actually, based on VIA's response and the documents submitted to the Court, VIA did not know about the crossing issues (except perhaps Drummondville Sub and SW Ontario) until after the Crossing Supplement was enacted on October 11. Supporting documents from the cross-examination of Hoang Tran follow. This October 11, 2024 CN email on which crossings were chosen for inclusion in the Crossing Supplement based on the grade-crossing predictor types:
This surprising email (below) from Brent Medwid to Hoang Tran and others at CN was the result of the request in an email from Hoang Tran (above) on the morning of Saturday, October 12 and describes the transition of the CN Crossing Supplement from one that only covers Southwest Ontario to one that covers the entire Corridor:
On October 14, VIA's Vice-President of Operations was reaching out to CN's Vice-President of Operations for more information:
On October 16, 2024 CN public relations staff was reaching out by email (below) to Hoang Tran to craft a response to news that the CN Crossing Supplement had been enacted, with resulting delays to VIA trains. By this date, the story of CN-imposed speed reductions was already being widely disseminated in the media - TV networks and even TRAINS magazine.
This partly-redacted weekly safety update email from Hoang Tran on November 30, 2024 to the CN Vice-President level includes details of ongoing shut [sic] testing:
VIA'S AIDE-MEMOIRE CN'S MOTION TO STRIKE AND RESPONSE TO AGC MOTION RECORD
Dated February 5, 2025. Totalling 544 pages, including 532 pages of authorities/references. Highlights:
- Argues against CN Motion to Strike which does not reach the high required legal threshold to strike.
- Motion to Strike is ill-founded in law.
- Includes the AGCs AMP response of January 27 and whether CROR violations would be subject to AMP.
VIA'S FACTUM ON THE MOTION FOR INTERIM STAY
Dated February 13, 2025, 37 pages. Highlights:
- From November, 2022 to October, 2024 after independent testing and while conducting a continuous testing campaign, VIA operated well over 5,300 trips with its new Siemens Venture trains safely on CN Tracks, without a single incident.
- On October 1, 2024 CN "violently disrupted the previous two years status quo ante". It enacted an unprecedented immediate permanent restriction (the Crossing Supplement) illegally invoking the narrow power conferred to it by the RSA and CROR.
- It goes on to restate VIA's case and refute the Kumagai conclusions.
- Ordering new compatible Venture cars [to lengthen consists and increase axle-counts] would come at a very significant cost and take 12-24 months.
- Reducing VIA trains speeds to 60 mph would make VIA service ineffective and threaten operating crews' rest time between trips.
- The Crossing Supplement has caused the worst delays in VIA's history.
A capsule history of how VIA sees the imposition of the CN Crossing Supplement on its operations:
And finally, "CN chose not to disclose the results of its testing of Venture trains from December, 2024-January, 2025 in these proceedings, VIA and the Court only have them because VIA compelled their disclosure through the Court's process (having been made confidential by CN)."
This fourth and longest post presenting Facts found in the Federal Court Application for Judicial Review by VIA Rail Canada shows the mountain of documents and the Sisyphean effort made by VIA to support its application with affidavits and expert opinions, CN's attempts to argue against them, VIA's vociferous refuting of CN's arguments, affidavits and expert opinions, and so on, submitted per the Court's schedule.
Unfortunately for VIA, its efforts can now be seen to be in vain - the case was not heard by the Federal Court in Montreal as scheduled. Having heard the CN Motion to Strike on February 7, 2025 the motion was granted, and application was dismissed by the Court in its ruling issued February 20, a mere three business days before the application was to be heard. VIA chose not to make an appeal. Instead, any further action on the CN-imposed crossing speed reductions will have to come from Transport Canada's December, 2024 Ministerial Order or VIA's case which is now to be heard before the Quebec Superior Court.
Running extra...
And here we are. With CN-imposed crossing speed reductions in place for 5+ months, this is the type of reverse-engineering that paying VIA passengers are attempting to do while riding late Ventures. Some of this passenger's thoughts are very similar to ones I had back in those first few fraught days in October!
And a review...and a request...and an opinion piece to come...
And another review...and not the first I've heard from those at VIA: "I'm a VIA employee who is very thankful for what you are doing to shed some light on the CN restrictions/shunting situation plaguing our operations since October. I've been reading your articles about the federal court documents."
