Legal beagles! Don't rush! You'll only get your briefs in a knot! All has been quiet on the legal front. VIA has been seeking injunctive relief against CN's Crossing Supplement and euphemistically-named Speed Tables, five versions of which have been issued since October, 2024. Constant checking of the Quebec Superior Court decisions has produced the sound of crickets (are crickets even alive in wintertime)? The previous post on the case was published two months ago.
My optimism surged when I noted a March 12, 2026 judgement among the decisions rendered by the Court. Was this The Big One? No, it was a very tiny one. But first, a spoiler. A VIA source familiar with the status of the Quebec Superior Court matter popped my optimism balloon for an early resolution to delays facing VIA's Venture-equipped Corridor trains:
"No date for the hearing on the merits has been fixed at this time. The parties are still in the process of completing their respective files, and everything should be ready for trial by September. Once this step is completed, the hearing on the merits will be set for a date in 2027 or 2028, subject to the Court’s availability."
This will mean continued pain for VIA and its passengers as Venture-equipped trains continue to arrive at their destinations 15-45 minutes late for what, the next two years?
A RECENT, SECOND SUBMISSION OF DOCUMENTS
A second submission of documents to the Quebec Court was made available. While many documents are familiar to me, there are recent cross-examinations of some of the VIA and CN managers who have provided sworn affidavits. For instance, cross Examination of VIA's Project Director for the Rolling Stock Acquisition, part of the Corridor Fleet Renewal Program (New Fleet) Jean-Philippe Quintal on his affidavit on February 4, 2025 re: CN's historic scant simulation data that formed the basis of the Venture train length/configuration VIA expected to operate.
MS. ROBBINS [lawyer for CN]: I’m asking what he understood from what CN told him from the questions he asked, from the information he reviewed whether these test results represented CN’s assessment of the risk that these configurations would experience loss of shunt.
A. And that’s where -- so I understood it was CN assessment and then we immediately voiced our concerns. Like I explained before, we were surprised by those results. We voiced our concern and asked to understand what is behind those numbers. Yeah, I understood that it was the result of the simulation.
Q. Okay. And if we look at the notes/concerns/restrictions column -- and you've already explained this a little bit. But you see that 10 of the configurations provided, the simulation testing summary here shows that two were sufficiently below the maximum probability rate. Do you see that?
A. I see it.
Q. And for those it says, it’s in green, “Sufficiently below minimum probability rate; no restrictions required.” Do you see that?
A. I see it.
Q. And that was for two consists of 32 axles. What did you understand, Mr. Quintal, the probability rate column to signify?
A. Well, I did not understand where those numbers come from but Michael explained it, to CN it’s their way of defining acceptable or non-acceptable probability. And that’s where -- so I understood it was CN assessment and then we immediately voiced our concerns. Like I explained before, we were surprised by those results. We voiced our concern and asked to understand what is behind those numbers.
Q. And so you asked questions of Mr. Burgett?
A. Yes, I did.
Q. And you had further conversations with Mr. Burgett?
A. We never got any answers. This is - - the only information we received from Mr. Burgett which he communicated by email a couple of months later, but we had no further information with regards -- which could explain how the simulation derives those numbers and how those threshold had been established. Nothing.
SUBSEQUENT ACTIVITIES BEFORE THE COURT
As I reviewed the second submission of the documents, I concluded that they comprise motion practice. That involves formal requests (motions) to a court for specific interlocutory or final orders, typically used to address procedural issues, compel discovery, or request summary judgment. Below are some of the various legal positions being placed before the Court before the injunction is actually heard, and in CN's case an attempt to prevent the injunction from being heard at all.
CN notified VIA on August 29, 2025 that Crossing Supplement 4.0 effective that same day no longer had any effect on VIA, therefore VIA's injunction application should be withdrawn. Failing that, CN would file a motion to partially dismiss VIA's permanent injunction application. CN's position was based on the morphing of the Crossing Supplement into Permanent Slow Orders and Speed Tables in employees' timetables.
VIA countered that on September 8, 2025 CN did not respond, failing to meet an agreed-to response date of September 10, 2025.
CN moving toward dismissal request expected in October, 2025.
VIA brought CN's behaviour to the Court's attention.
September 18, 2025- VIA submitted a Management Notice to the Court.
September 23, 2025 - the Court scheduled interviews with VIA's Peloquin on October 24 and Panetta on October 28.
October 23, 2025 - VIA requested a brief hearing to resolve the above. The issue was the nature of VIA Board of Directors meetings on May 28 and June 15, 2025 on the documents/privilege issue.
October 30, 2025 - CN and VIA exchanged documents on October 1 and 10, and CN conducted pre-trial examinations of Peloquin and Panetta.
November 12, 2025 - CN denied VIA is entitled to injunction; that the issue is moot since Crossing Supplement is no longer being applied to VIA effective November 1, 2025, speed tables instead. CN contends that in the Crossing Supplement - the train to slow down to visually confirm crossing protection is functioning 20 seconds prior. Speed Tables prescribe the speeds Venture trains must respect to ensure adequate shunting. Relevant dates:
- August 28, 2025 - Version 4 of Speed Tables into force.
- September 13, 2025 - Version 5 of Speed Tables.
- November 1, 2025 - Speed Tables (Version 5) were integrated into CN Great Leakes and Champlain employee timetables. Therefore VIA cannot plausibly continue to allege there is a potential security risk associated with Speed Tables, contending that if they were lifted, it would usurp the Transport Minister's decision-making.
January 9, 2026 - there was discussion of privileged documents for the previous two months.
JUDGEMENT ISSUED MARCH 12, 2026
The March 12, 2026 judgement was rather narrow and minor, pertaining to document availability between CN and VIA:
Canadian National Railway Company v. Via Rail Canada Inc.
2026 QCCA 327
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
MONTREAL COURT
THE HONOURABLE STÉPHANE SANSFAÇON, J.C.A.
MINUTES OF HEARING - DATE: March 12, 2026
DESCRIPTION: Application for leave to appeal a judgment rendered in the course of proceedings on January 13, 2026, by the Honourable Donald Bisson of the Superior Court, District of Montreal (Articles 31 and 357 of the Code of Civil Procedure).
Continuation of the hearing of March 6, 2026.
The applicant seeks leave to appeal the judgment rendered on January 13, 2026, by the Superior Court, District of Montreal (the Honourable Donald Bisson), which, as relevant to the application, upholds the objections raised by the respondent to the disclosure of the documents identified as the “Exchanges with Transport Canada” referred to in subsections 50(1) and 121 of the Judgment, as well as documents DOC-00014093 and DOC-00014089 referred to in subsections 121 and 122 of the Judgment.
The application for leave to appeal should be granted;
The proceedings should continue without a factum, by filing statements of case;
Having regard to Articles 13 and 58 of the Rules of the Court of Appeal of Québec in Civil Matters (“R.C.a.Q.m.civ.”), which state the following:
13. Electronic Version. The parties shall send to the Registry of the Court an electronic version of the paper version of their pleadings, briefs, statements, or any other document.
58. Content and Presentation. Subject to the second paragraph, Articles 47, 48, and 51 to 56 of these Rules apply to statements of case.
Parts I to IV of the arguments on the main appeal shall not exceed ten pages, unless the Court or a judge decides otherwise. The same applies to any cross-appeal.
Having regard to the rule set forth in Article 376 of the Code of Civil Procedure, which states the following:
376. An appeal becomes void if the appellant has not filed their factum or statement of case before the expiry of the time limits prescribed for such filing. The clerk issues a statement of voidness, unless a judge is seized of an application for an extension.
FOR THESE REASONS, THE UNDERSIGNED:
GRANTS the application for leave to appeal; GRANTS leave to appeal;
SETS April 24, 2026, as the deadline for service and filing with the registry of the appellant's statement of case. This must include a written statement of argument of no more than 15 pages and three appendices (Art. 13 and 58 of the Quebec Civil Code and Clerk's Notice No. 7);
SETS the deadline for notification and filing of the respondent's statement of argument with the court registry as June 5, 2026. This statement must include a written statement of argument of no more than 15 pages and, if necessary, a supplement to one or more of the appellant's appendices (Art. 13 and 58 of the Quebec Civil Code and Clerk's Notice No. 7);
ORDERS the respondent, Via Rail Canada Inc. to file, at the same time as its statement of case, under seal, four (4) copies of the documents identified as the “Exchanges with Transport Canada” referred to in subsections 50(1) and 121 of the Judgment, as well as documents DOC-00014093 and DOC-00014089 referred to in subsections 121 and 122 of the Judgment;
REFERS the file to the Registrar for a hearing date;
ALL costs to be determined as the appeal proceeds.
HEARING TIME: Appellant: 30 minutes, Respondent: 30 minutes
____________STÉPHANE SANSFAÇON, J.C.A.
WHAT'S THIS? SHUNT ENHANCERS FOR THE LDRR FLEET?
Quite unexpected - as part of the compendium of second submission of documents assembled for VIA's injunction against CN in Quebec Superior Court, the affidavit of Thomas Hilliard, CN's Associate Vice-President of Signals & Communications included an email chain between new-to-me-name Terry O'Brien (position not given) and CN's Manager of Passenger Operations Jacques Luce. Also in the chain were Michael Burgett, CN's Senior Manager Engineering, Signal Design, S&C Standards System and Hoang Tran, CN's Senior Director, Regulatory, System Safety and Passenger Operations.
Also in a February 3, 2025 cross-examination of VIA Specialist Director, Engineering Ronald Bartels, the topic of onboard shunt enhancers came up again.
Terry O'Brien had "engaged his services to facilitate communications between Coast Railways and VIA Rail for the procurement of the LDRR Fleet, a consultant to VIA, and "was he writing on behalf of VIA Rail to get some answers to some questions?" The lawyer for CN angled to get Mr Bartels to say that VIA knew the Venture had poor shunt performance, and might require an on-board shunt enhancers.
The email chain is reproduced below, and dealt with providing Onboard Shunt Enhancers (OSEs) not for Siemens Ventures trains, actually part of the Long Distance Regional Routes (LDRR) fleet procurement, including equipment for transcontinental and regional services.
Affidavit of VIA executive:
Q. And to your knowledge, has VIA exemption for onboard shunt enhancers [for VIA] trains?
A. To my knowledge we have not applied for an exemption permitting shunt enhancers on our trains.
April 26, 2023 email from Terry O'Brien to CN's Jacques Luce:
At the conclusion of our call Monday you requested that we prepare a list of questions VIA wishes to have answered. Please find below a list of those questions:
1. We understand that in order to operate with less than 24 axles, a shunt enhancing device will be required. Please advise the minimum number of axles that will be allowed with the implementation of a shunt enhancer.
2. Please provide the specifications for the shunt enhancing device.
3. When the Corridor Long Trainset with 24 axles was accepted, our understanding was that CN would have an instrumented section of track in the Corridor to monitor the shunting performance. Would CN have any data resulting from this monitoring that could be shared with VIA?
4. Please confirm if CN has any Class 2 track on routes that VIA operates outside the Corridor and if possible, where these would be.
5. Please confirm that the maximum axle load identified in the CN Passenger Equipment Requirements document remains valid for routes that VIA operates outside the Corridor.
6. Please confirm the maximum gradient on routes that VIA operates outside the Corridor and if possible, where these would be.
Trusting this is as discussed however should you need further clarification or have a question you will not hesitate to contact us.
Terry
May 1, 2023 email from Jacques Luce to Terry O'Brien:
Good morning Terry
Here are the answers to Questions 1-3
1. 16 Axles
2. Currently still in development, should be available Q3 2023.
3. Data from wayside recording equipment is checked periodically approximately every 60- 120 days. Graphs show acceptable shunting with the 24 axle configuration.
May 5, 2023 email from Terry O'Brien to Jacques Luce:
Good morning Jacques, thank you for your response with respect to the first three of the six questions we asked last week. We trust you will forward the remainder of the answers as they may be available.
With respect to our question concerning the specifications for the shunt enhancing device, it is understood it remains in development and the specs may only be available later this year. We are however wondering if for the next call (May 15th) a subject matter expert may be available to discuss beyond the device itself, what equipment or systems may or will be required within the cab of the unit. As we shared with you, we are attempting to prepare our bid packages and this information likely will be critical in preparing our spec sheets and the expected responses from the potential suppliers.
We trust you can appreciate our ask and CN will share whatever information may be available currently or as it becomes available, thank you.
Terry
May 16, 2023 email from Terry O'Brien to Hoang Tran:
Hoang
Thank you for this information.
Want also to thank you and the CN team, yesterday’s call was very informative, will follow-up with Amtrak as soon as Michael provides the contact info. Take care, stay safe.
Terry
May 16, 2023 email from Jacques Luce to Michael Burgett:
Thank you for joining our call yesterday. You have been a great help. Once you send the contacts for Amtrak we should be hearing less from VIA.
May 16, 2023 email from Michael Burgett to Jacques Luce:
No problem, happy to help out. Can you provide me a list of email recipients that I should be sending the link out to, or is that something I can provide to you and you will forward on the behalf of CN? I made a request to IT today for the link and was hoping it would be set up by this afternoon, but nothing yet.
May 25, 2023 email from Jacques Luce to Michael Burgett:
Good afternoon,
Do you have the Amtrak contacts?
May 25, 2023 email from Michael Burgett to Jacques Luce:
"Devon Parsons Devon.Parsons@amtrak.com"
June 29, 2023 email from Jacques Luce to Michael Burgett:
Please send the info for VIA. Thank you.
June 30, 2023 email from Michael Burgett to Jacques Luce:
Attached is the manufactures information along with a couple photos of the device that we have been testing and ultimately will require for passenger trains traveling on the CN. Specific specifications are still under review and should be available sometime in late Q4 of this year.
July 3, 2023 email from Jacques Luce to Terry O'Brien:
As promised, please find the attachments (Product Profile and Outline Specification for MkII TCA and photos
HURRY UP AND WAIT...
As I was preparing this post, media interviews with Amtrak and the FRA revealed the mounting of shunt-enhancing antennas on trucks of state-owned Charger locomotives and California Venture cab cars is expected to be completed by the end of December 2026. Amtrak Cascades Airo trainsets entering service in late summer or fall will be delivered with the antennas.
Time to head for the hammock. I will make periodic checks of the Quebec Superior Court judgments, but it appears VIA will be stuck with the CN-imposed speed reductions for months to come!
Running extra...
Thumbnail Thursday. Two kooky Kingston Sub movements recently posted to social media by Lion Liu. A transformer move to Bath's Lennox Generating Station (above) and three unusual locomotives on CN No 369 (below):
This Budd's for you. VIA derailed one of three Dayliners at Missanabie Dog Lake. One chain, two rerailers, two Cats, one icy crossing, six hours here.
People are walking ten miles with a bucket in hand to get 'fresh' water in other countries, meanwhile in Canada...not only did Drake waste precious water to built a release-date ice castle in Toronto, TFD wasted water to hose it down for hours to melt it in order to prevent the Don River from flooding further from the melting ice runoff:
First past the post...
My recent enjoyable Zoom presentation experience for the Bytown Railway Society's April meeting included these around-the-laptop notes on foamcore (above) propped up around my screen and definitely not screen-shared...until now! I am now the proud owner of a copy of John Riddell's fine book on CC&F freight cars that even includes the larger-capacity original-scheme Beehive Corn Syrup tank cars! Published by the BRS, it's a beauty in black & white. Recommended!
