VIA and CN in Federal Court - The Facts, Part 2

On January 13, 2025 CN made a motion to the Federal Court to be heard in Ottawa on February 7, 2025, entitled "An order striking VIA's Notice of Application November 12, 2024 and dismissing the Application entirely." VIA had applied to Federal Court seeking a judicial review on November 12, 2024 claiming CN had not performed a risk assessment nor provided evidence to substantiate the grade crossing speed reductions it imposed on VIA's new Venture trains at 304 Corridor grade crossings on October 11, 2024. In a statement of claim, VIA says CN’s orders to slow down for numerous crossings, or lengthen its Venture trains, are unreasonable and have no basis as a safety concern. The next hearing in the judicial review will be held in Montreal on February 25, 2025. I've presented the process so far in this post. 

While the next steps of the case are about to unfold, in this post I'll be highlighting more of the publicly-available material that both CN and VIA have recently presented to the Court. Here you'll find important information recently submitted to support CN's response. The affidavit of one CN manager, supported by mostly-relevant technical material as well as records of email communication comprise the 1,073 pages of material. Frankly, though some of it may be background for citations in CN's legal strategy, much of it seems redundant to the layman.  

VIA submitted the affidavit of one expert as part of its application, in addition to the VIA management and expert witness material already submitted. For this last submission, VIA submitted 79 pages of material. Much of it is related to the Rudin-Brown expert report (see end of this post), with some related to the dates and reasons for its late inclusion in its application. 

Some of the material in this post somewhat overlaps that presented in The Facts, Part 1. Notwithstanding that, I've decided to not intermingle the material, presenting it herein as it was submitted to the Court chronologically, as part of the judicial review process.

CN's MOTION TO STRIKE VIA'S NOTICE OF APPLICATION FOR JUDICIAL REVIEW

CN's Motion to Strike is supported by an affidavit from a CN manager who has already taken responsibility for recognizing the sudden need, on behalf of CN, to issue speed reductions for VIA's Venture-equipped Corridor trains. The supporting material reinforces CN's initial response to VIA's application, augmented by email communications not previously submitted to the Court, 

CN's grounds for its Motion to Strike: 

• Their claim that CN is not a "federal board, commission or other tribunal" as required to be included by Section 18 of the Federal Courts Act. A claim that the Court lacks the jurisdiction to hear the Application. The Train Services Agreement (TSA) between CN and VIA gives CN control over the movement of VIA's passenger trains providing CN with absolute discretion, including CN's ability to make private arrangements and issue General Bulletin Orders (GBO's).

• VIA Loss-Of-Shunt (LOS): VIA's application arises from the LOS phenomenon, which CN has studied for more than ten years in the US. CN is aware that the Ventures are at an increased risk of LOS since they are lighter and shorter trains than VIA's Legacy (LRC and HEP) trains. 

CN lays out the following timeline to support its grounds:

• In 2021, VIA did not challenge CN's right to impose restrictions on Ventures if necessary. 
• In November, 2022 CN began ongoing testing for LOS when Ventures began operating QMO.
• In early 2024, CN recorded short warning times on the Drummondville Sub (DRMV). CN issued orders for those crossings that VIA did not challenge or seek judicial review.
• On October 11, 2024 after VIA had begun operating Venture trains in the Corridor outside of the QMO, CN took action to protect the safety of its crossings by issuing Crossing Supplement 1. 
• On January 12, 2025 CN issued GBO's "to correct inadvertent clerical errors" in the first two versions of the crossing supplement. (Some crossings were not owned by CN, some crossings that did not exist were mistakenly included in both versions of the crossing supplement, now struck from the crossing supplement.)

Concluding with:

• "This is a private, commercial dispute between contractual counterparties, arising out of CN's exercise of discretion under the TSA [Train Service Agreement]."

(Watch for an upcoming post on the 2009 and 2023 versions of the CN-VIA TSA.) Note that in the October 11, 2024 bullet point, CN adds zero further evidence in the accompanying affidavit as to why their speed reductions were made effective that date. While I continue to (perhaps naively) expect the submission of some solid technical evidence, critical operational exigencies, or demonstrated safety risk beyond a general hypothetical situation that might occur, leading directly to the issuing of the CN crossing supplement, once again CN does not fail to disappoint in this regard in the material it submits to the Court.

The following documentary evidence supports the hearing of the motion. 

CN DIRECTOR "WITH KNOWLEDGE OF THE MATTERS"

In an October 11 email, full of mistakes and misperceptions (original image in this post), the director (per LinkedIn, above) laid out the reasons to initiate the speed reductions including the first known use of the 'I found out today' phrase, as well as the GBO language to be issued to VIA trains.

To back up his and CN's actions, the following points appear in Hoang Tran's affidavit (in "quotations" where required for clarity):

CN and VIA operate under the TSA effective January 1, 2009 for a ten-year term, currently under adjudication before the Canadian Transportation Agency. Pending resolution, CN and VIA agreed to extend the terms of the 2009 TSA in a Status Quo Agreement dated June 20, 2023.

"CN issues approximately 180 GBO's daily, approximately 65,000 annually in Canada." If CN followed the process in Section 20 of the Railway Safety Act, CN operations would grind to a halt. To my knowledge, no GBO, timetable, General Operating Instruction, Operating Bulletin or other form of special instruction made by CN has ever been judicially reviewed. "VIA trains have collectively been subject to hundreds of thousand, if not millions, or tens of millions" of pages of CN GBO's since the TSA came into effect in 2009.

"I am not an engineer and do not purport to provide a detailed technical description of shunt or LOS at a high level." On November 15, 2024 the LOS Committee published its LOS White Paper. CN's former Manager of Signals, Michael Burgett, was Project Manager for the LOS Committee. VIA representatives have been "on the LOS Committee email distribution list since 2021." The White Paper recommends On-Board Shunt Enhancers. 

VIA has announced that by 2026, Venture trains will be the only VIA train in the Corridor, which is largely CN-owned infrastructure. 

(This date, just one year away, makes it clear that whatever solution CN eventually foresees for VIA's Venture-equipped trains on its trackage will necessarily be a long-term solution encompassing all of VIA's then Corridor fleet.)

VIA-CN INTERACTIONS: A TIMELINE

On August 20, 2021 CN shared its testing and findings about LOS in Illinois DOT Venture cars. CN performed simulation testing of Ventures (10 formats in B&W below left - click to enlarge image) based on VIA's recommendations.

As a result of simulation testing, CN's S&C team were concerned about LOS for trains less than 24 axles. Only two-locomotive configurations, in the green-shaded cells, were thought to adequately shunt. (10 formats in colour above right - click to enlarge image.) The rightmost column 'notes' provides CN's conclusions required to mitigate shunt issues. 

Throughout August and September, 2021 VIA asked whether CN approved operation of Ventures on its tracks. (CN Advised that Michael Burgett would have final approval.)

August 19, 2021 email from VIA's Robert Becker to CN's Manager, Senior Mechanical Car Reliability and Director, Mechanical Reliability: Our winter test train is scheduled to arrive at Montreal at the end of September, so we are anxious to have your confirmation that there are no issues.

August 26, 2021 email from CN's Martin Nolan to VIA and CN contacts including CN's Manager, Passenger Operations: We do not see any issues with these cars on our lines as long as the operating rules are followed.

August 30, 2021 email from Robert Becker to CN contacts: You mention from a reliability standpoint you have no issues. Are you still reviewing other standpoints, or does this complete your review?

August 30, 2021 Martin Nolan to VIA contacts: Our review is complete.

August 31, 2021 CN Manager, Passenger Operations to VIA: "Michael Burgett for shunting would be the only final approval needed." CN was still performing simulations into early-October, 2021.

Oct. 15, 2021 email from Michael Burgett to VIA:

March 21, 2024 email from Michael Burgett re: DRMV crossings Mar 21/24 to Jacques Luce, CN Manager of Passenger Operations:

March 22, 2024 CN issues GBO's for seven Drummondville Sub. [DRMV] crossings, and a further six crossings on March 28, 2024. 

March 25, 2024 VIA asked that the DRMV GBO's not apply to the Ocean due to its greater axle count, and the language was changed. "I am not aware of VIA ever raising an issue, with the process undertaken by CN leading to issuance of the GBO's. When CN identifies a safety concern with one or more crossings, it implements a GBO to ensure a safe crossing."

"In March, 2024, VIA consulted with CN about applications to the Minister of Transport relating to speed restrictions for the Venture trains, unrelated to LOS issues." On May 21, 2024 CN advised it had no objection to CN's application to the Minister.

VIA VENTURES WEST OF TORONTO - JUNE, 2O24

In May, 2024 per the TSA, VIA sought CN's approval to deploy Venture 'special trains' in the Corridor in June, specifically west of Toronto. Such a request would also be made in September, 2024. 

May 17, 2024 email from Jason Letellier, VIA Network Planning and Scheduling Manager to CN's Jacques Luce, CN Manager of Passenger Operations cc: Hoang Tran, subject line "NEW FLEET TEST RUN TMC-SARN MAY 22, 2024". Request to operate Venture special deadhead train west of Toronto. Proposed schedule May 22 TMC-Sarnia outside peak hours. We would like to park equipment on the Point Edward Spur or in CN's Sarnia yard, move to the station pocket track to do real-estate/plug-in training/tests.

May 17, 2024 email from CN to VIA: We are reviewing if there is space in the yard. In the meantime, if VIA wants to operate the special train on Guelph Sub, please confirm VIA will pay full Corridor rates.

CN issued GBO's applying to a list of 75 GCP-4000 technology crossings on the Chatham and Dundas Subdivisions, to address potential LOS for the June 26-27 special train. Unusually, VIA No 63 was Venture-equipped with Set 11, thence departing Thursday as a media availability for "VIA's New Fleet Arriving in SW Ontario at London and Windsor". The special train operated Mimico–London (deadhead following VIA 79), London–Windsor (inauguration), then Windsor–Mimico (deadhead following VIA 78), with time slots pre-approved by Metrolinx and CN. VIA's CEO, MP's and mayors rode Set 11 at London and Windsor (as train 671 westward and 678 eastward). VIA did not even publicize the 'inauguration' event on its own website. 

VIA VENTURES WEST OF TORONTO - SEPTEMBER, 2O24

On September 3rd, 2024, VIA ran a Venture special train between Toronto and Sarnia. Two HEP cars were added to this train to meet the 32-axle minimum requirement and avoid restrictions on crossings. To CN’s knowledge, [this, and the June 26-27, 2024 SWO Inauguration] the only time [sic] that VIA had requested and received CN’s concurrence to operate Venture equipment outside the QMO Corridor." 

Venture Set 12 made the trip to Windsor trailing Burton Manor and coach 8101, as VIA No 331. Experiencing mechanical trouble by London, Windsor was eventually reached. Due to the two trailing HEP cars, the bidirectional Venture consist had to be wyed. The crew booked rest and departure east was planned for 0200 overnight as VIA No 334, although the return trip took six hours!

The one-and-only set of photos I've seen of the above-mentioned consist (two above and top photo - kindly shared by Rob McClintock) snapped stopped at Sarnia, preparing to run around the HEP cars to return to Toronto.  Since the cab car was blocked, the Venture set was wyed to get its locomotive facing east, prior to taking the VIA siding beside the station. Some suggested at the time that the extra cars were to assess the pulling power of the Charger locomotive!

For that September 3 special train, rather than wait for a GBO to permit it to operate with 24 axles without restrictions, VIA confirmed it would proceed with a 32-axle train. The operation of this special train was the subject of a flurry of testy emails between CN and VIA, involving scheduling, track availability due to work blocks and even getting VIA to pay while VIA contested what it was being asked to pay!

August 2, 2024 email from Jason Letellier (VIA) to Jacques Luce (CN), one of many below between these two, cc: Hoang Tran. We have adjusted date for test...

August 2, 2024 email from VIA to CN. "As communicated by VIA to CN in numerous emails since 2019 regarding the Guelph Sub, VIA would not pay to CN the Corridor rate until the infrastructure is brought back to the state it was ewhen its operation was conveyed to GEXR. If CN invoices VIA for the special train based on the Corridor rates, VIA will deduct from the applicable invoices an amount reflecting its position that it should not have to pay the Corridor rate.

August 6, 2024 email from CN to VIA. "Unfortunately at this time we will not allow any special or test trains over the Guelph Sub until all matters are rectified." 

August 26, 2024 email VIA to CN cc: Hoang Tran "NEW FLEET TEST RUN TMC-SARN". A revised request to operate our Venture to Sarnia. "We want to take advantage of our equipment availability window for training in Sarnia even if the train does not operate through Kitchener. We require to provide training for accessibility and for equipment maintenance staff. The same-day round-trip is planned with the previous time slots leaving MMC and between London and Sarnia. Thank you for providing CN's approval."

Further emails re: Strathroy work block. Proposed date and times would not work. Evening departure conflicts. VIA offered to adjust later, meeting 87 after 87 arrives. Deadhead movement without customers. 

CN to VIA: There is too much congestion. You need to stay away from westbound times.

VIA to CN: "OK if I send the train to Sarnia for us to do our training and accessibility exercise, we can J both trains together for next morning's departures (VIA84). While 84 operates to Toronto the next morning we split at London and have the special do LNDN-TMC as to prevent switching at UNION."

CN to VIA: Send me a schedule of what you're proposing. I need VIA off the Strathroy during these work blocks. We are working around 87 schedule so nothing before. VIA proposed September 4 Mimico 0830-Sarnia 1135; Sarnia 0840-London 0952; London 1005-1219, 35 minutes ahead of VIA 72.

CN to VIA - Can you do it on the 3rd?

VIA to CN - We can make it work for the 3rd.

August 30 CN to VIA: "Due to short notice we are unable to get the final approval and create the necessary GBO's for: 

PASSENGER TRAINS OPERATING WITH LESS THAN 32 AXLES MUST PROVIE PROTECTION IN ACCORDANCE WITH RULE 103.1(F) AT PUBLIC CROSSINGS AT MILE XXX (SUB). 

Please work on a date the following week and advise."

August 30 VIA to CN: "We are inquiring to operate with a 32 axle train. Will confirm shortly to ensure we operate without CN having to put together the GBO's for this train. Will maintain Sept 3rd for the moment."

Aug 30 CN to VIA "Once you confirm the 32 axles will be met, CN will allow VIA to proceed unrestricted."

Aug 30 VIA to CN: We will be adding 2 HEP cars to the Venture train to meet the 32 axle specification.

VIA'S EXPERT COGNITIVE WORKLOAD ANALYSIS

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. To substantiate this contention and measure its impact on VIA's Corridor locomotive engineers both qualitatively and quantitatively, VIA engaged the services of an industry expert in Human Factor Analysis.

On December 13, 2024 a report entitled 'Cognitive Workload Analysis (CWA) of Locomotive Engineer 'Approach to Crossing' Task Using Legacy vs. Venture Locomotives, prepared by Dr. Christina Rudin-Brown, Ph.D., CCPE of Human Factors North, Inc., Toronto was submitted to VIA's Director, Railway Initiatives, Safety & Railway Operations. Dr. Rudin-Brown, was previously Manager and Senior Human Factors Investigator at Canada's Transportation Safety Board. The report was obtained December 15, 2024 therefore had to amend VIA's Interim Stay Motion Record December 12, 2024, submitted December 18, 2024.

For the analysis, ten VIA Locomotive Engineers (LE) with at least five years' experience, and at least one year's experience with Ventures. Each participant completed a survey, with the 'approach to crossing' tasks presented in flowchart format:

  

LE's mentioned some of their concerns with the rigours of the Venture speed reductions:

• It was more difficult to see operating warning lights in daytime. 
• Passengers express frustration with being late, adding to LC temporal demand. 
• LE's also feel frustration, whether to slow/stop/or not. 
• Visually searching for upcoming crossing protection activation was particularly onerous. 
• The need to start preparing for slowing down for crossings occurs up to two miles beforehand. 
• At night, LE's can see lights operating before the 1/4-mile whistle post but still have to slow and maintain 45 mph. 
• Increased workload diverts LE cognitive resources, potentially leading to making mistakes. 
• LE's questioned the necessity of speed reductions under Rule 103.1(f). 
• Monitoring by management of their compliance to reductions led to us-versus-them adversarial culture. 
• Negative impact on job satisfaction and psychological health. 
• Increased workload leads to impaired performance and thereby increased risk. 

[Here's the take-home message:]

The workload analysis showed a Workload Rating of 10-15 for Legacy, 

with a three-times higher Workload Rating of 30-40 for Venture. 

The report concludes with some suggestions accompanying the analysis:

• Adoption of equipment changes to improve shunting of Ventures.
• Implementation of LE decision aids.
• An automated means to display in-cab whether crossing protection is active. 

If more facts are forthcoming, I'll post them in a subsequent post. **UPDATE @ PUBLICATION TIME, VIA is permitted to challenge the two Crossing Supplements in the context of its Application for Judicial Review - to be held February 25 in Montreal! Further updates in this post.

As we near the four-month mark of this saga of CN-imposed crossing speed reductions, I'm sure the following people are looking forward to resolution: me, VIA employees and management, and most of all VIA passengers who are being massively inconvenienced, delayed and played by CN though they are not being told that. (On second thought, I am looking forward to resolution but will miss the digging to find out the real story. ) Or, as someone in the industry put it to me:

Running extra...

Canadian Railway Modeller (CRM) magazine founder and publisher Morgan Turney has died. CRM Associate Editor John Longhurst published an excellent tribute post on his blog. Here I am posting this on the internet, and here's what resides on the CRM webpage about the internet: "It was with bitter disappointment that we announced that Railfan Canada magazine had to be discontinued due to the proliferation of the Internet and everything that is now 'free'. Social media and all things associated with it is quickly forcing print media to struggle to survive."

Perhaps CRM deserves its own Trackside Treasure post. In 2017, I included CRM while listing 150 Great Things About Canadian Railways, under these general headings: places, people, nicknames, books and authors, logos and developments, locomotives and freight cars, passenger cars and named trains, railway names, preservation and model railways. I built a model of the Tucker MPE elevator, complete with the rooftop piping and extended drive shed. The article appeared in the August-September 1995 issue of Canadian Railway Modeller magazine.