VIA and CN in Federal Court over CN-Imposed Speed Reductions

VIA Rail Canada made an application for judicial review under sections 18 and 18.1 of the Federal Courts Act, one month after CN imposed its Crossing Supplement for VIA Venture Equipment on October 11, 2024. The supplement stipulated that VIA's Siemens Venture trains were to reduce speed at 304 grade crossings throughout Ontario and Québec. This post highlights the course of legal action VIA has decided to pursue to mitigate the delays being caused to Venture-equipped trains by CN's actions.

VIA'S APPLICATION FOR JUDICIAL REVIEW

[WHAT VIA WANTS FROM CN]

VIA's application asks CN to acknowledge that the Crossing Supplement is unlawful and invalid, and that it be quashed. Furthermore, VIA asks for an order prohibiting CN from making rules respecting the design, construction, alteration, operation and maintenance of VIA’s equipment without following the process set out in the Railway Safety Act.

It seems the judicial review [taking CN to court] evolved as VIA's preferred method of addressing CN's actions. In fact, VIA initiated action through its legal counsel five days (possibly earlier) after the CN Crossing Supplement went into effect. As the issue is before the courts, information put forward by VIA is almost entirely protected by Access to Information legislation. That is not to say it's all under wraps. Read carefully! 

Interestingly, nestled within the application for judicial review are a few notable nuggets of information. Nuggets that had been unavailable and heretofore not provided by CN or by VIA:

• CN admitted that the shunt provided by Venture sets of 24 axles was adequate.
• CN has provided no risk assessment justifying its Crossing Supplement.
• CN has offered no evidence of an increased safety risk posed by the Ventures on their tracks.

VIA'S GROUNDS FOR JUDICIAL REVIEW

[VIA'S CASE AGAINST CN]

VIA is mandated by the federal government to operate the national intercity passenger train services, including over CN’s railway network in the Quebec City-Windsor corridor. The Corridor includes these segments of track to which CN’s Crossing Supplement applies: the Dundas, Chatham, Guelph, Halton, Strathroy, Kingston, York, New Market [sic], St. Hyacinthe, Montréal, and Drummondville Subdivisions. VIA operates its own railway equipment pursuant to a  railway operating certificate issued by the Minister of Transport under the Railway Safety Act. 

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 to file them with the Minister of Transport. CN also has the authority to issue special instructions, including under CROR 103.1(f), upon which CN based its Crossing Supplement. CN’s  rules and special instructions must flow directly from a federal statute and the rules enacted under it in conjunction  with  federal  railway companies. VIA also contends that it is CN's responsibility to submit these rules to the Minister of Transport for approval. When approved they come into force and become compulsory. The rules and special instructions CN imposed impact members of the public who use VIA’s government-mandated public passenger service. 

On October 11, 2024, CN imposed the Crossing Supplement, stating that unless  operating with 32 axles or  shunt  enhancer, the 304 crossings must be manually protected unless it is known that warning devices have  been operating for at least 20 seconds  as  per  CROR 103.1(f). The Crossing Supplement  is  not  limited  in  time.  It creates a permanent rule applicable whenever VIA operates its Venture trains at grade crossings.  

VIA further contends that CN  acted  without  jurisdiction. The  Crossing  Supplement has the effect of imposing a new permanent rule governing the design, construction, alteration, operation and maintenance  of  railway equipment.  The  CROR  do  not  grant CN the power to  exempt  itself  from  the procedure set out in the Railway Safety Act by issuing special instructions, demanding that CN follow the applicable procedure, which includes the obligations to consult with impacted parties, such as VIA, for a period of at least 60 days and to provide a notice to, and then obtain, the Minister of Transport’s approval. 

VIA notes that railway track circuits must detect equipment in any part of the track circuit; and they must detect a shunt of 0.06 ohm resistance when the shunt is connected across the track rails of any part of the circuit by providing a warning time of at least 20 seconds before railway equipment reaches a crossing. Operating control circuits must provide consistent warning times for railway equipment operating over the grade crossing.

Venture  trains  in  a  24-axle  configuration  have  been  confirmed  to  provide a minimum resistance of 0.06 ohms as required, as admitted by CN. Since CN’s new rule was purportedly adopted to allay a hypothetical risk that VIA Venture  trains regularly operating over  its  grade  crossings and generating the required 0.06 ohm  shunt would not be detected by  its warning systems, the purpose and effect of CN’s  Crossing Supplement is to allow it to operate its railway  in  violation  of  the  Railway  Safety  Act,  Grade  Crossing Regulations, and Grade Crossing Standards.

In 2018, VIA launched its Corridor Fleet Replacement program, acquiring 32 new Siemens Venture trains to replace its legacy fleet in the Corridor. Since they were deployed beginning in 2022, and up until October 11, 2024, when CN suddenly issued its Crossing Supplement, VIA Venture trains had made well over 5,300 revenue trips over CN’s infrastructure, with no evidence to suggest any safety risk. 

Despite VIA’s repeated requests, CN has not been able to provide VIA with any risk assessment justifying its Crossing Supplement, nor to offer any evidence to substantiate any increased safety risk attributable to VIA’s Venture trains. At the same time, VIA contends that forcing the manual protection of 304 grade crossings creates very real risks to the safety of passengers, employees and the public due to the additional cognitive workload placed on locomotive engineers needing to accelerate and decelerate repeatedly at some grade crossings while referring  to  a  list  of  those  crossings  while  operating  trains.  CN’s Crossing Supplement creates additional safety risks, which are entirely unwarranted, as will be further detailed in VIA’s forthcoming application to stay the Crossing Supplement.

FURTHER FILINGS IN FEDERAL COURT

[THE WHEELS OF JUSTICE TURN SLOWLY...]

The application was made by VIA on November 12. On November 22, VIA made an informal request in a letter to the Court for case management. Associate Judge Martha Milczynski appears to have granted this request after a November 22 letter from CN. 

In a letter dated December 2, CN objected to providing certified material. While awaiting the appointment of the Case Management Judge, out of an abundance of caution and to ensure compliance with the Federal Courts Rules, CN objected to providing a certified copy of the requested material pursuant to Rule 318(2).

CN objected to VIA’s request because it disputed VIA’s characterization of CN as a “federal board, commission, or other tribunal”. Pending the resolution of that threshold issue, it is not appropriate in the circumstances of this case to require the provision of certified copies of any materials.

On December 10, the scene shifted from Toronto and Montreal to Ottawa, where Chief Justice Crampton considered without personal appearance The Court's decision with regard to VIA's letter of November 22. Result: Associate Judge Catharine Moore was assigned as Case Management Judge in this matter. (Previously Senior General Counsel at the Department of Justice Canada in Ottawa, she was appointed an associate judge of the Federal Court on May 1, 2024.) The same day, VIA was preparing an interlocutory motion. CN responded on December 11. 

The pace picked up once the case reached Ottawa! On December 11, the parties were directed to provide the Court, before the end of the day on Thursday, December 12, with their availability for a brief case management videoconference on December 16 or December 17. The purpose of this videoconference is to discuss the order and timing of the anticipated motions.

On December 12, Judge Catharine Moore directed that a case management videoconference will be held at 2:00 on December 16, for for no longer than one hour, to discuss next steps in the proceeding including the appropriate order of the contemplated motions.

The 'evidentiary' ball seems to be in CN's court right now. We'll see how they send it back to the VIA side. CN replied in a letter on December 13 in advance of the case management conference.

Affidavits dated December 12 were received from the following VIA executives (no. of exhibits). The total package sent to the Court comprised 2,948 pages. 

• Jonathan Cooke - Specialist Director, Operating Practices & Transportation Training (8)
• Jean-Philippe Quintal - Project Director for the Rolling Stock Acquisition, part of the Corridor Fleet Renewal Program (New Fleet) (10)
• Derek Tardif - Specialist Director, Railway Infrastructure (responsible for VIA Rail-owned infrastructure)(1)
• Nicolas Panetta - Director, Network Operations & Railway Safety Governance – Railway Operations (36)
• Nicholas MacKenzie - Senior Manager, Network Planning (14)

Expert affidavits dated December 12 were received from the following expert witnesses:

• Saeed Fararooy - Director of Rail Systems Engineering at DB ECO North America
• Harold Kirman - Senior Subject Matter Expert at DB ECO North America
• Dr. Christina Rudin-Brown - formerly the Manager of Human Factors and Macro Analysis at the Transportation Safety Board of Canada

DB E.C.O. North America is part of the DB E.C.O. Group and a subsidiary of Deutsche Bahn AG, the German Federal Railway company. Leveraging a cross-disciplinary team of subject matter experts, technical consultants, and management consultants, DB provides operations, planning, management, and engineering consulting services to the passenger rail, transit, and freight rail industries with a diverse portfolio of public and private sector clients across the United States and Canada. DB has extensive experience using a data-driven approach to support North American rail operators and public agencies in engagements with host railroads, including during legal proceedings.

CN submitted a 65-page compendium to the Court.

The lead lawyers were Bogdan Catanu of Montreal's Woods LLP for VIA Rail, Monique Jilesen  of Toronto's Lenczner Slaght representing CN, and Thomas Swerdfager of the Department of Justice's Quebec Regional office in Ottawa appeared for the Attorney-General of Canada.

The volume of the materials was one topic of discussion, as was the urgency for the Motion, and the dates for exchange of materials.

In a motion dated December 12, VIA sought an interim and interlocutory order staying the application of CN’s impugned Crossing Supplement v2 and, insofar as it may otherwise still be applied, of CN’s impugned Crossing Supplement v1, until the final decision on the merits of VIA’s notice of application for judicial review as it may be amended. The Memorandum of Fact and Law in Support of VIA's Motion for Interim Stay was 34 pages, footnoted by the expert and executive affidavits and supporting documents submitted to the Court on December 12. VIA contended that the legal requirements for granting a stay satisfy the legal test thereof, namely the moving party must demonstrate that there is a serious issue to be tried on the merits; that the moving party will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay.

VIA also 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; that CN erred in law and acted contrary to law, having distorted its power to issue special instructions under the CROR meant to address temporary conditions affecting grade crossings - that  CN used such a power in order to permanently regulate the operation of VIA Venture trains at grade crossings; and CN acted in disregard of the material before it, having issued its Crossing Supplements for reasons contradicted by the evidence and without providing any supporting risk assessment, nor offering any reliable evidence to substantiate any increased safety risk attributable to VIA’s Venture trains.

After the one-hour December 16 Case Management Videoconference, the court directed VIA's motion for an interlocutory injunction will be heard either in person in Ottawa or by video conference on February 25, 2025. The parties were directed to confer and provide a schedule for steps leading up to the hearing of the motion by end of day Thursday, December 19, 2024.

On December 20, written directions received from the Court: Chief Justice Crampton directed the following upcoming deadlines:

• VIA's motion record to be filed by Monday, January 13, 2025. 
• CN's motion record to be filed by Thursday, January 23, 2025. 
• Cross-examinations to be completed by Friday, January 31, 2025. 
• CN's motion records to be filed by Thursday January 30, 2025. 
• Aide-memoire re: Cross-Examinations to be filed by Wednesday, February 5, 2025. 
• CN's motion to strike will be heard on Friday, February 7, 2025.
• Cross-examinations to be completed by Friday, February 7, 2025. 
• VIA's factum to be filed by Thursday, February 13, 2025. 
• CN's factum to be filed by Wednesday, February 19, 2025.
• VIA's motion for an interlocutory injunction will be heard at 30 McGill Street, Montréal, on Tuesday, February 25, 2025 at 9:30 a.m for a duration of one day. 

The expansive and extensive material - 3,000-plus pages of it - presented by VIA and CN makes for some interesting reading. This subsequent post shares VIA's and CN's submissions to the Federal Court.

On January 13, the Notice of Motion on behalf of CN's motion to strike to be heard on Friday, February 7 2025 (for an Order striking VIA's Notice of Application issued November 12, 2024 and dismissing this Application in its entirety) was submitted to the court. The same day, CN's Memorandum of fact and law was filed.

I'll post more details [in this space] as the court process proceeds...

Running extra...

The anonymity of reddit sometimes works. On reddit, you might be stuck with a dumb pseudonym like Blushing-Avocado1234 or Rapido-Yuckygreen6789 or some other tragedeigh to trade any day. There's probably a way to buy your way out of such a handle, but I'm just going with what they gave me. Some people have got me figured out [the avatar probably gives it away]. Much appreciated:

The anonymity of image manipulators gave us this bit of digital sleight-of-hand. VIA not only takes advantage of the mountain skyline, but also a former Skyline photo for the artist's impression in the RFQ for their LDRR fleet. Somebody burnt the midnight oil photoshopping this one!

Late Night Hobbies has some great-looking kits! This one really caught my eye:

This was fun to watch! Windsor Model Railroad Club ride around! Looked for, but didn't find, my favourite structure Walthers Red Wing Milling Co. Unusual or a club layout.