1.INTRODUCTION: THE CONTEXT AND THE ISSUES IN DISPUTE
- In the context of a dispute described in the following paragraphs, the Court is seized of the following objections: Objections by the plaintiff VIA Rail Canada Inc. (VIA) to the communication of 125 documents in response to the request for pre-commitments made by the defendant National Railway Company of Canada (CN) on August 8, 2025 in the context of upcoming preliminary interrogations. These objections relate to lawyer-client professional secrecy, litigation privilege and a significant legitimate interest. The Court notes that some of these 125 documents were transmitted with redacted portions, while others were not transmitted at all;
- CN objections to the communication of part of a document and the complete communication of two other documents in response to a request for pre-engagements made by VIA on August 8, 2025 as part of upcoming preliminary interrogations. These objections concern the lawyer-client professional secrecy the privilege relating to the dispute;
- Fifteen groups of objections made by VIA during the preliminary questioning of Mr. Mario Péloquin, President and Chief Executive Officer of VIA, made by CN on October 24, 2025. These objections are for various grounds, detailed later in section 2.4. The CN also has a more general request for the continuation of this interrogation.
- In addition, there is a question raised by CN as to whether or not VIA waives the privilege in respect of two of the 125 documents communicated to CN on April 1, 2025. The Court will address this issue in the study of the 125 documents.
- VIA is a Federal Crown corporation with a mandate to operate a passenger rail transportation company across Canada. Subject to a few portions of railways belonging to it, VIA does not have a rail network. Its passenger trains run mainly on the CN tracks[1].
- As of 2022, VIA started using Venture trains manufactured by Siemens. These replace the Legacy trains previously used by VIA.
- On October 11, 2024, invoking federal regulations[2], the CN put in place restrictions that have the practical effect of forcing Venture locomotive engineers to slow down and visually verify that the signaling devices (lights, bells or barriers) of more than 300 level crossings of the Quebec-Windsor corridor are working properly for a minimum period of time before committing. Normally, such a check is not necessary because level crossings are equipped with systems that automatically trigger these devices in a timely manner. This restriction is the CN "Crossing Supplement".
- CN has imposed these restrictions on Venture trains because it considers that they raise a "shunt" problem. Shunt is the technical means by which the arrival of a train near a level crossing triggers automated signaling devices.
- Subsequently, on November 27, 2024, CN imposed Version 2 of this Crossing Supplement on VIA, then Version 3 on February 20, 2025 then Version 4 on August 29, 2025 and finally Version 5 on September 13, 2025. The details of these restrictions have no relevance here.
- Suffice it to say that VIA is of the opinion that these restrictions, which create significant delays in scheduled schedules and which disrupt its operations in a very significant way, are unjustified because they are disproportionate and unreasonable. According to VIA, relevant data does not show that Venture trains have a shunting problem, and many tests would establish the opposite. It considers that the CN is acting arbitrarily and in bad faith here, and that these restrictions are in fact motivated by another dispute between the parties that is taking place before the Canadian Transportation Agency.
- VIA then filed proceedings with the Superior Court at the beginning of March, 2025. While reserving its right to damages (the quantum of which remains to be determined), VIA essentially requests that a permanent injunction prohibits CN from applying the restrictions in question.
- CN vigorously challenges this request for injunction and damages from VIA, denying any bad faith, claiming that the restrictions it put in place in October, 2024 are imposed for the safety of the public and that such security imperatives must prevail over VIA's commercial interests.
- As part of the progress of the file, the parties agreed to communicate documents to each other as a pre-commitment before proceeding with the preliminary interrogations outside the Court. In the context of various pre-engagement requests made simultaneously by VIA and CN on August 8, 2025 VIA and CN objected to the transmission of several documents, as indicated above. VIA also objected to several questions during the preliminary questioning of its President, as indicated above.
- The Court is therefore seized of these objections under section
228 of the Code of Civil Procedure ("CPC"). - The Court must therefore answer the following questions:
- Is VIA right to invoke the lawyer-client professional secrecy, the litigation privilege and the significant legitimate interest in order not to transmit all or part of the 125 documents in response to CN's request for pre-commitments? Did VIA waive privileges on two specific documents?
- Is CN right to invoke the lawyer-client professional secrecy and the litigation privilege in order not to transmit all or part of the three documents in response to VIA's request for pre-commitments?
- Are fifteen of VIA's objections, made during the preliminary questioning of its President Mr. Péloquin, well-founded?
- The Court recalls the conduct of the hearing of December 1-2, 2025 in accordance with the applicable precedent [case law not included here].
- Since the parties invoke the lawyer-client professional secrecy, the privilege relating to the dispute and the significant legitimate interest, the parties had to present evidence to support their position. CN and VIA filed the following affidavits, which the Court had read before December 1, 2025:
For VIA:
- Marie-Geneviève Masson, legal consultant at VIA, November 26, 2025 (amended declaration);
- Denis Lavoie, Advocate General of VIA, November 26, 2026 (amended declaration);
- Gabrielle Caron, Senior Legal Advisor, November 24, 2025;
For CN:
- Serena Trignano, paralegal at the CN, November 21, 2025;
- There was an interrogation on sworn statement of the following witnesses: Mr. Masson and Mrs. Trignano. During these interrogations, the parties' lawyers discussed some questions of law in the context of the debate of objections. It was, of course, a public hearing with all the parties, their lawyers and the public on the content of the various grounds for objection and on their application to documents that have been redacted and not transmitted, without there being a dereliction of the documents transmitted or the transmission of the documents not yet transmitted;
- Following each of these interrogations, the Court held two sections of the hearing behind closed doors ex parte, each with only the lawyers of each party so that the Court would hear the representations of each party on the redacted portions of the documents and on the documents not transmitted. The Court then had access to the complete, unredacted documents. During this stage, the Court asked questions to lawyers Masson, Lavoie and Caron when it was VIA's turn, and to Ms. Trignano when it was CN's turn. The registration has been maintained, but the party not present cannot have access to it until the Court allows it. The lawyers of each party also made some representations with regard to the documents. The Court then reviewed the documents in detail. Following this hearing on December 1-2, 2025, the Court took the time on December 10-11, 2025 to read in full and in detail all the documents concerned (125 for VIA and 3 for CN);
- After the ex parte portion, the other party returned to the Court and the completely public hearing resumed (without there being a deredaction of the documents transmitted or the transmission of the documents not yet transmitted). The Court then made a summary of what was presented in the ex parte portion, and allowed the lawyers of the non-present party to ask him questions, to which the Court responded when possible not to reveal the confidential nature of the documents received and not transmitted;
- Following this, the parties were returned to plead the objections in law, but time ran out. Indeed, the evidence phase took longer than expected, so that at the end of the evidence phase closing the hearing of December 2, 2025[4], the Tribunal ordered the parties to plead in writing with respect to all objections;
- Since there was no more time left, the Court ordered the parties to include in their written pleadings their representations on the objections made by VIA during the preliminary questioning of Mr. Mario Péloquin, President and Chief Executive Officer of VIA.
- The Court adds that, at this hearing on December 1-2, 2025 it was also seized of an objection from CN to the communication of documents in response to VIA's 5.4 request for pre-commitments, which required the questioning of a CN representative on his affidavit[5]. Due to lack of time, the parties also had to plead in writing on this objection. On December 10, 2025, the Court has already issued its decision on this objection[6].
- So, what to decide here?
2. ANALYSIS AND DISCUSSION
- The Court begins with the applicable law.
2.1 Applicable law
- The Court begins with the preliminary interrogation in general [lots of legal case law/authorities and discussion on the topic of preliminary interrogation not included here]. In summary:
- The Court's role is to find a delicate balance between two important objectives:
- On the one hand, the timely disclosure of evidence must be supported to facilitate the search for the truth.
- ensure that trials are conducted fairly and effectively and allow the parties to quickly assess the soundness of their respective cases in order to encourage amicable settlement; and
- On the other hand, it must enforce the principle of proportionality to protect access to justice, promote a fair and economic application of the rules of procedure and ensure that business run smoothly rather than being delayed or complicated by the introduction of evidence that does not contribute to the resolution of the dispute between the parties.
- Let us move on to the privileges invoked by the parties.
2.1.2 Professional secrecy lawyer-client
- The protection of the right to professional secrecy is a fundamental and superior obligation that contributes to the proper functioning of our justice system. The right to be able to communicate with one's lawyer in confidence permanently and without the threat that these communications will be disclosed and used constitutes a fundamental right protected both by sections 2858 of the Civil Code of Quebec ("CcQ"), 9 of the Charter of Human Rights and Freedoms[8], 60.4 of the Professional Code[9] and 131 of the Bar Act[10] [further legal discussion not included here]. In summary:
- The three conditions for opening professional secrecy are:
- Communication between a lawyer and his client;
- The lawyer must act in his capacity as a professional;
- There must be an intention to maintain the confidentiality of the information transmitted.
- Every communication involving a lawyer therefore does not ipso facto lead to the application of professional secrecy. In addition:
- The scope of professional secrecy is particularly broad and general and this privilege covers the entire continuum of communications involved in the necessary exchange of information whose purpose is the provision of legal advice;
- Thus, professional secrecy prevents the disclosure not only of communications that solicit or contain legal advice, but also all communications that are part of the continuum of communications necessary for the provision of legal advice.
- Finally, in case of doubt, the Court must ensure that professional secrecy is protected and must raise it ex officio, without considering the criterion of the disregard of the administration of justice.
- The Court notes that the parties do not directly invoke the "prejudicial of common interest", except VIA in a subsidiary manner in respect of certain communications with Transport Canada. The Court does not need to study this privilege in light of the conclusions reached later.
2.1.3 The privilege relating to litigation
- The main purpose of a document is not determined by the use of specific words by the parties, but by the objective intention of the parties behind the preparation of a document.
- This privilege therefore applies only to documents that are made for the purpose of a dispute, actual or foreseeable. However, this privilege does not extend to documents that have served as the basis for their preparation if they have not been used for the purpose of a dispute. Nor is it enough that documents may be later useful and important in the context of a dispute for them to be covered by the privilege, if they do not meet the criteria for opening. Finally, the privilege relating to the dispute usually ends at the same time as the dispute itself. [further legal discussion not included here]
2.1.4 The important legitimate interest
- Case law recognizes that the Court must exercise caution when an important legitimate interest raised involves repercussions on the rights of third parties, in particular when this third party has not had the opportunity to make representations or administer evidence.
- It is certainly inappropriate for sensitive information belonging to a third party to the dispute to be in the hands of an entity whose commercial interests are competing with those of that third party, simply because of a legal remedy to which the third party is in no way a party and which has no connection with the dispute.
- [further legal discussion not included here]
- The Court will now apply these principles to objections in dispute, starting with the objections made by VIA to pre-engagement requests.
2.2 The Court's decisions on VIA's objections – 125 documents (requests for pre-engagements)
- The Court begins with the 125 documents, then with the question of whether or not VIA waives the privilege of two documents. The Court notes that, although the parties have produced ultra-detailed written arguments that span a combined total of almost two hundred pages (with hundreds of pages of various documents in the annex), it does not have to answer all the arguments in detail. The role of the Court is at the end of the track to study only the documents concerned, in the light of the arguments of the parties, the public evidence and the ex parte evidence. The Court cannot explain its decisions by citing the content of the documents in question. So, the parties have made their arguments, the Court decides according to this and explains its reasoning in summary. That's all.
- The length of the parties' arguments is explained by the fact that they do not have access to the documents and must cover almost infinite situations "just in case"; and the other party responds to them.
- The Court also now addresses a general argument raised by CN concerning the conduct of the proceedings. The Court will not intervene in the various deficiencies that CN blames on the different versions of the VIA privileged document register, whether it is the absence of dates, authors or sufficient descriptions. The Court studied the documents one by one, without concern for those elements which cannot change the content of the documents themselves. As for CN's argument that these deficiencies prevented it from doing cross-examinations of the authors of the affidavits, the Court cannot retain it because the Court notes that the cross-examination portion by CN lasted almost the entire day of December 1, 2025 and was excessively detailed, much more detailed than what the Court expected and what the Court has already seen in similar situations of privileges. CN claims a right to a full defense which is, with respect, totally disproportionate, which does not take into account the fact that CN does not have the documents of VIA on departure and which, ultimately, does not in any way trust the Court to be able to study and only the documents covered by the various claims of privilege. The reality is that CN does not believ VIA at all and suspects the latter of claiming privileges for ordinary business documents to which CN believes it is entitled.
- The Court now goes on to detail the 125 documents.
2.2.1 The 125 documents
- VIA classifies into five categories the 125 documents for which it claims a privilege, in order to retain the documents in full or redact a portion. The details of all the documents appear in the table entitled "Modified Register of privileged documents of VIA contested by the CN divided into categories" dated December 9, 2025. Here are the five categories of documents:
- Exchanges with Transport Canada: There are 37 documents, for which VIA claims lawyer-client professional secrecy and litigation privilege. They are covered by the affidavit of Mr. Masson;
- Confidential communications involving lawyers: There are 47 documents, including the first 46 for which VIA claims lawyer-client professional secrecy and litigation privilege, and another (VIA_00005092) for which VIA claims significant legitimate interest. The first 46 documents are covered by the affidavits of Mr. Masson and Mr. Lavoie, and the last one is covered by the affidavit of Mr. Caron;
- Documents of the Board of Directors of VIA and the Executive Committee of VIA: There are 20 documents, for which VIA claims the privilege relating to the dispute and the lawyer-client professional secrecy and which are covered by the affidavit of Me Lavoie. For other parts of five of these documents, VIA claims the important legitimate interest, and Mr. Caron's affidavit covers this;
- Other internal documents in preparation for the dispute: There are 18 documents here. For these 18 documents, VIA claims the privilege relating to the dispute and they are covered by the affidavit of Mr. Masson;
- Other: There are three documents, firstly the document VIA_00005161 for which VIA claims the significant legitimate interest; secondly the document VIA_00005259 of which VIA refuses to disclose a part because it is in no way relevant and does not respond to the request of the CN; and thirdly the documents VIA_00000054 and VIA_00000055 for which VIA claims the privilege of the dispute and the legitimate interest of significant. All these documents are covered by Mr. Caron's affidavit.
- Following the ex parte hearing of December 2, 2025 and the subsequent review of all these documents, the Court decides that VIA has proven by the balance of probabilities that all these 125 documents (either in full or the redacted versions) are covered by the lawyer-client professional secrecy, the privilege relating to the dispute and important legitimate interest, in the manner described and argued by VIA. The Court decides that they do not have to be communicated to CN. The Court will therefore maintain VIA's objections to the communication to CN of these documents and parts of documents. This includes documents DOC-00014093 and DOC-00014089 (also studied in section 2.2.2 regarding the waiver).
- The Court adds that it rejects CN's arguments on these documents, for the following reasons:
- In the Court's opinion, the evidence filed by VIA, i.e. the "Modified Register of Privileged Documents of VIA challenged by CN divided into categories" dated December 9, 2025 and the three affidavits of lawyers Masson, Lavoie and Caron, were sufficiently detailed to allow CN to challenge the validity of the privileges invoked by VIA, especially since the Tribunal answered the questions of CN's lawyers in detail after the ex parte hearing.
- The Court has reviewed all the documents, one by one, covered by the lawyer-client professional secrecy and the litigation privilege, and these are indeed the privileges here for all these documents, even if there are some that include very technical portions. These technical portions are directly related to the dispute. There is no document outside these spheres. There is no document here that would be:
- Business discussions or decisions, or lobbying communications;
- Privileged by the sole fact that a lawyer participates in a meeting;
- Privileged by the sole fact that a lawyer participates in an email exchange aimed at compiling information as part of an investigation conducted by a regulator;
- Pure exchanges with the regulator or shareholder;
All without connection with professional secrecy and/or privilege relating to the dispute.
- According to the Court, all exchanges with Transport Canada and the Minister of Transport that are in the 125 documents are privileged here; none relates to business, report or security communications that are not directly related to the dispute. There are also no documents that are simple exchanges unrelated to this dispute in which Transport Canada informs VIA of its position on the Crossing Supplement; everything that is mentioned is related to the dispute.
- In this context, the Court does not have to go further in the nature of the relationship between VIA, Transport Canada - either the Department or the Minister.
- The Court also does not need to address VIA's subsidiary argument on the common interest privilege.
- The Court will simply indicate that VIA's witnesses have all confirmed that these exchanges are fully within the framework of the privileged relationship of the VIA crown corporation with the Government of Canada, its sole shareholder and principal whose interests it ultimately represents, for whom it carries out its mission as a national public carrier and towards whom it has obligations of obedience and accountability. All exchanges concerned are of a strategic nature in preparation for this dispute.
- Moreover, according to the Court, for the privilege relating to the dispute, VIA has demonstrated that, for each of the documents, it was developed with the main objective of preparing the present dispute between the CN before the Superior Court. These are not only documents likely to be useful and important in the context of the dispute, but documents that are really important in the dispute. And even if they are presentations or documents with various formats.
- Although CN finds what the Court comes to implausible, the Court maintains its conclusion, which is based on the analysis of evidence and documents. The documents that CN obtained and that are not covered by any privilege allowed CN to make excessively detailed assumptions in its argumentation plan, but these are precisely only assumptions that do not correspond to the content of the documents covered by the privileges. Finally, even if CN concludes that Transport Canada plays two roles at the same time, this is up to CN, not the Court, and the effect of this will be pleaded later on the merits. Perhaps there would be reason for the parties to invite Transport Canada to the debate.
- The Court adds that the documents that are text messages here are protected by the privilege relating to the dispute because they were created with the main objective of preparing a dispute. Times are changing and means of communication are adapting.
- Now, as for the documents covered by the important legitimate interest, the Court concludes that VIA has also demonstrated it. We will see paragraphs 6 and 11 of M. Caron's affidavit:
6. A first category of redacting was applied to preserve the confidentiality of highly strategic information relating to the talks surrounding the high-speed train initiative ("TGV", known in English under the terms "High-Speed Rail" or "HSR") whose development is the responsibility of Alto, a subsidiary of VIA Rail that the Government of Canada has mandated to implement the project in collaboration with Cadence, the successful bidder, with the support of Transport Canada and more specifically the TGV/Grands Projects of Transports Canada group ("High-Speed Rail / Major Projects" in English), formerly known as the TGF group ("HFR" In English).
11. The disclosure to CN of information about the talks around the TGV initiative, which is highly strategic, confidential and sensitive, constitutes a serious, real and substantial risk to the important public interest aimed at the strategic development of rail transport in Canada, the maintenance of the confidentiality of ongoing trade negotiations and the protection of strategic thinking surrounding the development of a project of great importance to Canada such as the TGV.
- The Court also asked Mr. Caron questions on this subject during the ex parte hearing. The Court concludes that the evidence of VIA is therefore sufficient.
- The Court points out that the information received in relation to the initiative of the TGV has no relevant link to the present dispute. The Court also notes that CN relies on the Court for the important legitimate interest in connection with the documents referred to concerning the TGV initiative.
- As for document VIA_00005259, the Tribunal confirms that the caviarded party is in no way relevant to the dispute and does not respond to CN's request. VIA could therefore validate it validly.
- Finally, as to CN's argument that VIA would have waived any privilege when communicating on April 1, 2025 of various communications with Transport Canada, in its capacity as the sole shareholder of VIA, the Court cannot accept it because the contemporary exchanges between the parties clearly demonstrate that the various documents were communicated not by waiver of the privilege, but because VIA was forced to do so, to allow VIA to quickly submit its request for interlocutory injunction. In its communication of documents on April 1, 2025, VIA clearly and unambiguously indicated that this transmission was carried out without renouncing the privilege, and that this transmission was only aimed at accelerating the status of the file. That's enough. Therefore, it cannot, under any circumstances, be deduced from this disclosure of documents that VIA intended to waive for the future the privileges covering its communications with Transport Canada, in its capacity as the sole shareholder of VIA.
- In conclusion, the Court notes that, although CN did not see the 125 documents, the latter presented a very detailed and relevant challenge to all the documents, asking the right questions and arguing the right elements. However, CN did not have the benefit of seeing and analyzing the documents as the Court did.
- In short, the Court will therefore maintain VIA's objections to the communication to CN of these 125 documents and parts of documents.
- The Court grants VIA the costs of the court for this portion of the judgment.
2.2.2 The waiver or not by VIA of the privilege regarding two documents
- Finally, CN argues that VIA has waived the privilege in respect of two of these 125 documents, namely documents DOC-00014093 (formerly VIA_00005086) and DOC-00014089 (formerly VIA_00005085), communicated to CN on April 1, 2025. VIA claims that the documents are privileged (privilege relating to litigation and lawyer-client professional secrecy) and that they were communicated to CN inadvertently. According to CN, the circumstances surrounding the communication of these two documents demonstrate that they were communicated deliberately and not inadvertently.
- The Court notes that these two documents appear in paragraphs 6 to 11 of the affidavit of Mr Lavoie and also in the "Amended Register of Privileged Documents of VIA Contested by CN divided into categories" dated December 9, 2025 (in category 3, the documents of the Board of Directors of VIA and the Executive Committee of VIA, p. 11). However, they have already been transmitted in full to CN on April 1, 2025.
- For the following reasons, the Court decides that there has been no waiver by VIA and that CN must destroy and/or return these documents to VIA.
- VIA's lawyers stated on their oath ex officio that the disclosure of the two documents did not occur as a result of a simple error of legal judgment by the lawyer who reviewed the document, but rather because additional information – not apparent when reading the document – only emerged after the documents were communicated, which then allowed VIA's lawyers to assess the privileged nature of these documents.
- That is sufficient according to the Court. Indeed, no waiver, even implicit, can be inferred only from the delivery of a redacted document. It is constant jurisprudence that a waiver of legal privileges must be clear and unequivocal. The waiver is not presumed and the party protected by the privilege does not have to prove the absence of a waiver.
- The Court concludes that VIA has not waived the privilege in respect of both documents. The Court will therefore order CN to return to VIA, within 10 days of this judgment, all paper and computer copies of documents DOC-00014093 and DOC-00014089, and not to keep any paper or computer copies.
- The Court grants VIA the costs of the court for this portion of the judgment.
2.3 The Court's decisions on the objections of CN – three documents (requests for pre-engagements)
- CN claims a privilege on three documents, namely:
- A portion of document CN00039609, for which CN invokes the right to the dispute;
- The document CNPRIV00000005, for which CN invokes the lawyer-client professional secrecy and the litigation privilege; and
- The document CNPRIV00000007, for which CN invokes the lawyer-client professional secrecy and the litigation privilege.
- The details of these documents appear in the table entitled "Privilege Log" dated November 21, 2025. These three documents are covered by Ms. Trignano's affidavit.
- Following the ex parte hearing of December 2, 2025 and the subsequent reading of all these documents, the Court decides that CN has proven by the balance of probabilities these three documents (either in full or the parties) are covered by the lawyer-client professional secrecy and the privilege relating to the dispute, in the manner described and argued by CN, despite the following three elements:
- Ms. Trignano testified that she had neither sent nor received any of the three documents covered. It also did not prepare CN's "Privilege Log" privileged document register;
- Ms. Trignano explained that she had carried out a simple visual review of the documents to confirm the veracity of the descriptions provided by CN;
- Ms. Trignano has no contemporary knowledge of the three documents.
- These three elements do not change anything because the simple study of the documents by the Court confirms that they are covered by the lawyer-client professional secrecy and the privilege relating to the dispute. CN has therefore met its burden of proof, despite Ms. Trignano's minimalist sworn statement, according to the Court. In these circumstances, a more detailed affidavit and a consequently more detailed counter-examination would therefore have changed nothing here.
- In addition, even if CN has indicated several types of privileges that may have changed over time regarding document CN00039609, this does not change anything. It is not a speed contest, lawyers can refine their position and the Court only decides what is submitted to it at the end of that process. In addition, the redacted portion of this document is clearly preferred according to the Court, no matter what VIA's lawyers want to say to the testimony of Ms. Trignagno in this regard, who has no contemporary knowledge of this document.
- The Court therefore decides that these three documents do not have to be communicated to VIA. The Court will therefore maintain CN's objections to the communication to VIA of these documents and parts of documents.
- The Tribunal grants CN the legal costs for this portion of the judgment.
2.4 The decisions of the Court on VIA's objections made during Mr. Péloquin's preliminary questioning
- The Court must finally have 15 groups of objections formulated by VIA during the preliminary questioning of Mr. Mario Péloquin, President and Chief Executive Officer of VIA, as reported by CN on October 24, 2025. The questions, objections and reasons invoked by VIA appear in the VIA table of November 30, 2025; this table was made from the CN table categorizing the objections to be decided into 15 categories. The parties subsequently submitted argumentation plans. The Court notes that CN does not really challenge the objections made by VIA, but rather has a general position on the continuation of Mr. Péloquin's questioning; the Court returns to this in section 2.4.15 of this judgment.
- The Court will study and decide the objection groups one by one, except groups 12 and 13 which it groups together. Some groups have only one objection.
- The Court annexes to this judgment a version of the table of objections of VIA of November 30, 2025 in order to be able to refer to it without having to reproduce here all the context or all the questions under objections. This table is made by the Court from VIA's response to the initial identification of the objections to be decided made by CN.
2.4.1 Group 1
- VIA's objection to question 112 concerns the lack of personal knowledge of the witness. The Court will maintain this objection because the witness replied that he did not remember a document, so it is therefore forbidden to ask him questions about a document he does not remember.
2.4.2 Group 2
- The Court will maintain VIA's objections to questions 139 and 142 because it is clear from pages 76 to 80 of the transcript of Mr. Péloquin's interrogation that the latter has already answered questions 139 and 142, which are therefore repetitive.
2.4.3 Group 3
- The Court will uphold all of this group's objections.
- Questions 161 and 163 seek to know the meaning of an expression ("full back appeals") in a text transmitted by Mr. Péloquin, after the latter had expressly testified to the effect that he had not written the text in question and that "[a]u best of my memory, I was provided the text". In view of this testimony, the witness cannot have the personal knowledge to testify to the nature of the "full back appeals" to which the text provided refers. In addition, VIA's lawyers indicate that after verification, they confirm that answering such a question would reveal privileged information protected by professional secrecy and litigation privilege.
- Question 162 is to find out if the witness is able to testify about the content of the MP-2 email. The ability of the witness to testify on a given subject is an eminently legal issue that does not appeal to the facts on a given subject is an eminently legal issue that does not appeal to the facts of which he is personally aware. This question is also argumentative, even rhetorical, in nature in this context. It cannot be allowed.
2.4.4 Group 4
- The Court will uphold all of this group's objections.
- Question 240 asks "for what reasons, the witness, asked VIA [sic - should be Minister of Transport] to issue an order under the Rail Safety Act". However, the fact of having made a "request" to issue an order is strongly contested by VIA and has never been established at this stage of the file. The witness indicates this in response to the following question, question 241. Any question asked to a witness must refer to a fact that has been proven, not to a pure hypothesis.
- Question 242 is argumentative. It is not allowed to use a witness's interrogation to contradict and challenge the response given by a witness (in this case, confirmation that he or she did not apply to Transport Canada). This is a question of an argumentative nature that aims to influence the witness and is therefore not lawful.
2.4.5 Group 5
- The Court will maintain the objection to question 246, because it is a legal question or a question of opinion.
- After asking the witness if he was seeking Transport Canada's intervention in the dispute by sending his letter of February 4, 2025 the witness replied that "[it] is common practice to inform the Deputy Minister, for me, of development, of things that are done at VIA Rail". Clearly dissatisfied with this response, the CN lawyer persists by means of a question of a legal nature this time in order to qualify his email as a "request to render a directive under the Act". The qualification of this exchange as a request to give a directive under the law is an interpretative question of a legal or opinion nature that does not appeal to the facts of which the witness is aware and which he has already testified otherwise in his answer to question 245. It is the role of the lawyer, and not the witness, to interpret and propose a legal qualification of a document.
2.4.6 Group 6
- The Court has nothing to decide here because the witness answered the question identified by CN (question 268) without an objection being raised.
2.4.7 Group 7
- The Court upholds VIA's objection to question 272. This is a repetitive question to which the witness has already answered and also an argumentative question.
- The witness previously stated in response to question 241 that he did not "apply to Transport Canada by [his] email [MP-5]" (p. 123). Question 272 still concerns Exhibit MP-5 and is therefore strictly identical to question 241 to which the witness has already answered, although the witness has since provided clarifications, for example by confirming in response to question 270 that instead of "wishing for an immediate order from Transport Canada", he was simply seeking to "inform [Mr. Thangaraj] of a draft letter". In addition, since the witness has already confirmed that he did not submit a request to Transport Canada by his email MP-5, question 272 amounts to opposing the witness with a legal qualification contrary to his testimony, which is part of the argument.
2.4.8 Group 8
- The Court has nothing to decide here because the witness answered the question identified by CN (question 393) without an objection being raised.
2.4.9 Group 9
- The Court upholds VIA's objection to question 24 on the grounds of privileges relating to professional secrecy and litigation.
- Question 24 requires information protected by privileges relating to professional secrecy and litigation, because an answer would necessarily disclose the preparation work that the witness has carried out for his interrogation in collaboration with his lawyers on the basis of their legal advice and with the main objective of preparing the dispute.
2.4.10 Group 10
- The Court upholds VIA's objection to question 39 because the witness has already answered it. Indeed, the witness had already confirmed, by his answers to questions 29 to 33, that he is not aware of notes stating the content of his discussions with the Chairman of the Board of Directors. However, it is not allowed to ask the same question repeatedly, even by reformulating it or asking it at different times.
2.4.11 Group 11
- The Court will uphold VIA's objection to question 65 because it is a legal or opinional issue.
- Indeed, the concept of "statutory meeting" is not an expression or qualification used by the witness or that emanates from a document put into evidence. Rather, it is an expression proposed and used for the first time by the CN lawyer in question 16 and for which this lawyer proposes his own definition (pp. 42-43 of the transcript). The witness does not confirm that he uses this expression, but subsequently states that the VIA Steering [ = Executive?] Committee normally meets every week (question 64). Thus, question 65 inviting the witness to determine whether the meetings of the Executive Committee constitute a "statutory meeting" only requires a legal qualification using a concept that has never been used by the witness. It is therefore a legal or opinion question on which a witness does not have to testify.
2.4.12 Groups 12 and 13
- The Court maintains VIA's objections to items 213 and 214 because they are legal or opinion issues.
- Question 213 invites the witness to provide a legal qualification or opinion based on an expression he has never used, i.e. the "operational" nature of VIA's decision of January 16, 2025 to continue operating Venture trains.
- As for question 214, the witness answered the question identified by CN without an objection being raised. The witness replied that he could not answer the question.
- According to what VIA's lawyers present, the witness's response confirms that he could not answer question 214 without revealing the content of discussions with his lawyers or that took place mainly for the dispute. Given this, the witness' response would require disclosure of the privileged information content, and the Court cannot order it.
2.4.13 Group 14
- The Court maintains the objection to question 415 because it is an imprecise question.
- Indeed, question 415 generally asks what the witness knows about the nature of the collaboration between CN and VIA on the development of speed tables. However, the lawyer who questions must ensure that his question is easily understandable to the witness so that the answer given corresponds to the question asked. The question should not raise ambiguity in the mind of the witness when he answers the question submitted to him. It is also essential that the question and the answer be clear to the Court. However, here this question does not meet any of these criteria.
2.4.14 Group 15
- The Court will uphold VIA's objection to question 492 because it concerns the privilege relating to professional secrecy.
- Given the witness' testimony to the effect that he could not answer question 492 without revealing the content of "discussions that would have taken place in the Executive Committee of which M. Lavoie is an active part", the Court finds VIA's objection made to be justified to prevent information protected by the privilege relating to professional secrecy from being disclosed.
2.4.15 The Following
- Given that the Court maintains all the objections made by VIA, the latter therefore has no document to communicate to CN and it is not required that Mr. Péloquin's prior questioning on these now prohibited questions continue, subject to the following.
- Since VIA has here won over the objections of the interrogation of Mr. Péloquin, the Court grants VIA the legal costs for this portion of the judgment.
- However, the task of the Court does not stop there because CN raises a last more general argument, namely that CN asks the Court to be able to continue the interrogation of Mr. Péloquin because CN could not take full advantage of his five hours given the multiple objections and non-relevant comments according to CN on the part of VIA's lawyers. The latter disputes this argument.
- Here are CN's arguments in support of its positions:
- CN would also like to point out that Mr. Péloquin's interrogation was punctuated by an unbelievable number of objections by the VIA prosecutor. This tactic is similar to what the courts have described as obstruction;
- In addition to the objections raised by VIA's lawyer, M. Catanu, the latter intervened many times during the interrogation of Mr. Peloquin in order to issue various and repeated directives to the witness including: i) that he should answer the question only if he remembers it; ii) that he should answer only if he knows the answer; iii) that he must not reveal the content of privileged communications; iv) other various interventions;
- Combined with objections, all of these interventions prevented the CN counsel from asking any questions that would otherwise arise on some crucial factual topics at the heart of the dispute between the parties and the CN defense, including VIA's requests to Transport Canada to lift the restrictions imposed by CN and Transport Canada's position in this regard, VIA's operational decisions regarding the Crossing Supplement, the Venture train shunting problems on VIA's [sic - should read CN's?] infrastructure, the alleged effect of restrictions on driver cognitive load, and the measures mitigation taken by VIA including the purchase of on-board shunt enhancers;
- These multiple interventions also had the effect of greatly limiting the interrogation time allocated to five hours;
- CN submits that VIA has adopted an unreasonable and abusive interpretation of the scope of the lawyer-client privilege and the litigation privilege. The clear purpose of this interpretation was to prevent CN – and the Court – from knowing the truth and to obtain a complete picture of the factual situation surrounding the discussions between VIA and Transport Canada;
- VIA's insistence not to disclose these exchanges demonstrates the obvious relevance of these documents and suggests their unfavorable nature for VIA. However, VIA cannot hide behind the privilege in order to refuse to communicate documents that are at the heart of the dispute;
- According to CN, the barrage of objections raised by VIA must be denounced by the Court. This is a blatant attempt at obstruction aimed at depriving CN of its right to adequately defend itself and to effectively cross-examine representatives of VIA about a central issue in this dispute;
- CN has the right to know the truth about the exchanges between VIA and Transport Canada and to ask questions about it. VIA cannot deny the legitimate exercise of this right by adopting an unreasonable and abusive interpretation of the privilege, or obstructionist maneuvers preventing CN from exploring factual topics beyond a single general question;
- The mere fact that VIA's own lawyer was able to attend certain meetings or business discussions on various subjects related to the dispute does not ensure that all the documents stating these meetings or discussions are privileged;
- Similarly, the mere fact that documents discuss certain commercial or operational issues that are the subject of a dispute does not ensure that these documents are protected by the privilege relating to the dispute;
- Faced with the systematic obstruction of VIA, CN asks the Court to authorize it to re-examine Mr. Péloquin so that he can answer the fundamental questions posed by CN in this file, and provide the requested documents;
- VIA disputes and argues that it had no choice but to issue objections, which it did in order to protect the various privileges.
- The Court partially disagrees with the position of CN because the Court has previously upheld the objections to the various privileges invoked by VIA. Thus, VIA therefore had the right to object to CN's questions. However, no-one could know in advance the decision of the Court, and in a way, many minutes of interrogation were lost. In these circumstances, the Court is of the opinion that CN has the right to fully benefit from a five-hour interrogation time, which it did not have. The Court therefore decides that CN has the right to continue the interrogation of Mr. Péloquin for a period of 2.5 hours, on a date to be agreed between the parties. Questions for which objections have been maintained cannot, of course, be asked.
- The Court states that it does not assign blame to anyone.
FOR THESE REASONS, THE COURT:
Regarding the plaintiff's objections to VIA Rail Canada Inc. to the communication of 125 documents in response to the defendant's request for pre-engagements made by the Canadian National Railway Company on August 8, 2025 in the context of upcoming preliminary interrogations:
- MAINTAINS all of the plaintiff's objections to the communication of the 125 documents and/or portions of these 125 documents described in the "Modified Register of VIA Rail Privileged Documents Disputed by the NCC Divided into categories" on December 9, 2025, in response to the request for pre-commitments made by the Respondent (CN);
- ORDERS the Respondent, (CN), to return, within 10 days of this judgment, to the plaintiff VIA Rail Canada Inc., all paper and computer copies of documents DOC-00014093 and DOC-00014089, and not to keep any hard copy or computer copies;
- ALL, with legal costs in favor of the plaintiff VIA Rail Canada Inc. ;
Regarding the defendant's (CN's) objections to the communication of three documents in response to a request for pre-commitments made by the plaintiff VIA Rail Canada inc, on August 8, 2025 in the context of upcoming preliminary interrogations:
- MAINTAINS the defendant's (CN's) objections to the disclosure of the following documents in response to the plaintiff's request for pre-commitments VIA Rail Canada Inc.:
- A redacted portion of document CN00039609;
- The document CNPRIV00000005; and
- The document CNPRIV00000007.
- ALL, with legal costs in favour of the defendant, Canadian National Railway Company;
Regarding the objections made by the plaintiff VIA Rail Canada Inc. during the preliminary interrogation of Mr. Mario Péloquin by CN on October 24, 2025:
- MAINTAINS all objections made by the plaintiff VIA Rail Canada Inc. during the preliminary questioning of Mr. Péloquin and which appear in the table of November 30, 2025 in the annex to this judgment;
- ORDERS the continuation of the preliminary questioning of Mr. Mario Péloquin on a date to be agreed between the parties, for a maximum period of 2.5 hours, it being understood that the questions for which the Court maintains the objections under this judgment cannot yet be referred to Mr. Péloquin;
- ALL, with legal costs in favor of the plaintiff VIA Rail Canada Inc.
DONALD BISSON J.C.S.
M. Bogdan Catanu, M. Jean-Christophe Martel, M. Laurent Crépeau, M. Omar El Baba,
M. Daniel Martz, M. Alexandre Gélinas, M. Jennifer Price and M. Claudette van Zyl
Woods s.e.n.c.r.l.
Lawyers for the plaintiff VIA Rail Canada Inc.
M. Vincent Rochette, M. Maya Angenot, M. Heather Clark and M. Florence Méthot
Norton Rose Fulbright Canada S.E.N.C.R.L.,s.r.l.
Lawyers of the Defendant (CN)
Hearing dates:
Date of deliberation:
December 1-2, 2025
January 9, 2026 (date of receipt of the last written notes and authorities)
ANNEX
Made from the table of November 30, 2025 of VIA in response to the identification of the objections that CN wishes to have decided (Mario Péloquin's interrogation)
I - Exchanges with Transport Canada
Context: The excerpts cited in the objection groups Nos. 1 and 2 concern Exhibit MP-1. This is a bundle of emails between Mr. Péloquin, Mr. Arun Thangaraj (Deputy Minister of Transport) and Ms. Lisa Setlakwe (Assistant Deputy Minister of Transport) with the subject "Do you want a quick catch up on the Venture issue? ", dated October 12, 2024.
Group 1 - pp. 70-71
M. VINCENT ROCHETTE [hereinafter "VR"]: Q. [111] So, when you send them your email of October 12, 2024 at 11:07 a.m., it's to tell them what?
M. BOGDAN CATANU [hereinafter "BC"]: Q. If you remember.
R. Yes. I don't remember exactly.
VR: Q. [112] But, were you requesting a call with Mr. Thangaraj and Mrs. Setlakwe?
BC: The document speaks for itself.
VR: Q. [113] Isn't it?
BC: No, no, there is an objection. The document speaks for itself.
Objection # 9
VR: Q. [114] What did you want to discuss with Mrs. Setlakwe and Mr. Thangaraj?
BC: Q. If you remember.
R. From what I see, it's a catch-up.
Group 2 – pp. 76-80
VR: Q. [135] So, by sending the notes of Mr. Brankley and your signals expert, to Mrs. Setlakwe and Mr. Thangaraj, what was your objective?
BC: Q. If you remember.
R. It's been a long time, I don't remember exactly.
VR: Q. [136] But, if you send a detailed email like this to Mr. Thangaraj and then to Mrs. Setlakwe, is it because at that time, you want an intervention from Transport Canada?
BC: Is that an argument?
VR: Let the witness answer.
BC: Is that an argument?
Q. [137] I repeat my question. What I suggest to you, Mr. Péloquin, is that when you sent your email of October 12, 2024 your specific objective was that Transport Canada intervenes?
BC: Q. You just have to respond to the best of your memories, Mr. Péloquin.
R. Yes. I don't see a request for intervention in this email.
VR: Q. [138] But your email still ends with: "Thank you for your help and attention". What is the assistance from Transport Canada that you wanted to obtain, by forwarding this email from October 12, 2024 at 5:10 p.m.?
BC: Q. If you remember.
R. I would tell you that this is a common phrase to thank them for listening.
VR: Q. [139] What I suggest to you, Mr. Péloquin, is that you sent the email of October 12, 2024 at 5:10 p.m.), because from that time on you wanted Transport Canada to intervene to lift the restrictions adopted by CN, is that correct?
BC: Objection is argumentative. He has already answered your question, he will not answer.
Objection # 10
VR: You are seriously preventing the witness from answering this question that is at the heart of the dispute without any significant legitimate interest under the Code that authorizes you to prevent the witness from responding?
BC: He has already answered you. He told you what the sentence meant
VR: No.
BC: There you argue after he has given you his answer which obviously does not suit you, there you argue it to tell him that it is rather something else. It's argumentative - what you're doing with him.
VR: Q. [140] I ask you the question, Mr. Péloquin: Was it your intention, when forwarding your email of October 12, 2024 at 5:10 p.m., that Transport Canada intervene to lift the restrictions adopted by CN?
BC: If that was his intention or if that's what he asked? What is your question? Can you have a clear question for the witness?
VR: Q. [141] Did you expect that following the sending of your email, Transport Canada would intervene to lift the restrictions?
BC: Q. To the best of your memory of course, go ahead.
R. I wrote this email then we see that there is no request of any kind in my email.
VR: Q. [142] Thank you for the answer, but it doesn't answer my question. What was the objective you were pursuing by sending this e-mail of October 12, 2024?
BC: I think I'm going to draw the line here, I think he answered that question.
VR: He didn't answer the question because you objected.
BC: I said "to the best of his memory" and he answered you precisely to that question: "What [sic] was your expectation? What was your goal? "You asked it four times. I mean...
VR: Your position is noted, M. Catanu, we will discuss it.
Context: The excerpts cited in objection group No. 3 concerning Exhibit MP-2. This is an email from Mr. Péloquin to Mr. Thangaraj entitled "Shunting issue with CN", dated November 8, 2024.
Group 3 – pp. 86-89
VR: MP-2. Q. [158] It wasn't you who wrote this email, Mr. Péloquin, was it?
BC: Here, I'm going to remind the witness. Q. Mr. Péloquin, you cannot reveal the content of communications with VIA Rail's internal or external attorneys, nor can you reveal the content of discussions or documents that have been prepared mainly for the dispute. Go ahead.
VR: Q. [159] What I was simply asking you to confirm is that it was not you who wrote the email, MP-2?
R. To the best of my memory, I was provided with the text.
VR: Q. [160] Therefore, as commitment number 13, I will ask you to send us the email by which you were provided with the text of the email that was sent to Mr. Thangaraj on November 8, 2024.
BC: Subject to additional verifications, your commitment is preliminarily refused for the grounds of privilege.
VR: What privilege are you invoking?
BC: Probably the lawyer's professional secrecy and litigation privilege; subject to additional verifications.
VR: You will prove it.
Commitment E-13 (objection subject to verification)
VR: Q. [161] On page 2 of the email you sent to Mr. Thangaraj on November 8, 2024 in the section entitled: "Judicial recourse rational [sic]" to the last bullet-point, we can read the following: "The deadline to ask the Federal Court to control CN's decision is Tuesday, November 12, 2024. After that, we will lose that recourse. As mentioned above, VIA plans to proceed with such a filing today. There is a chance the Court will find that it has no jurisdiction over CN. In that case, we'll have full back recourses". What are the full back recourses to which this sentence refers?
BC: I will object to your question.
VR: For what reasons?
BC: Professional secrecy, privilege relating to the dispute and also the fact that he has already told you that he has not written this text. So clearly, he cannot talk about what is written here as the author of the document. He could only interpret it. It's not his role.
Objection # 14 (1)
VR: Who is the author of the document?
BC: I don't know, I'm not your witness.
VR: If you tell me that Mr. Péloquin cannot answer because he is not...
BC: I'm just reminding you of what he gave as an answer.
VR: Let me finish.
BC: No, no, I will continue. I just remind you of what Mr. Péloquin just said in his answer a few moments ago, that the text was provided to him.
VR: Q. [162] Are you able, Mr. Péloquin, to testify on the content of the email, MP-2?
BC: Your question is not an appropriate question for the witness. It is not up to him to determine whether he is able to testify; it is a legal issue.
VR: Q. [163] Do you know what full back recourses the sentence I read to you refers to?
BC: You have my objections. He won't answer.
Objection # 14 (2)
Context: The excerpts cited in objection groups Nos. 4, 5, 6 and 7 concern Exhibit MP-5. This is an email from Mr. Péloquin to Mr. Thangaraj entitled "Shunting issue" with a draft letter to the Minister of Transport attached, dated February 4, 2025.
Group 4 – pp. 121-124
M. VINCENT ROCHETTE: Q. [236] What is your goal in forwarding your email of February 4, 2025 to Mr. Thangaraj?
R. Well, probably it is to communicate to him a draft letter that has been prepared.
Q. [237] Who wanted to ask him what?
M. BOGDAN CATANU: Maybe you could show him the following document in your binder, which is the attachment, so that he has a complete document to look at, before you ask him questions about the document without showing it to him.
M. VINCENT ROCHETTE: Q. Read the letter under tab 6, Mr. Péloquin.
R. ... ... Yes.
VR: Q. [238] So, I repeat my question. What was the objective you were pursuing by forwarding your email of February 4, 2025 to Mr. Thangaraj?
BC: Q. Subject to the same guidelines and if you remember. Therefore, you cannot reveal the content of discussions with your attorneys, nor communications that took place mainly for the dispute.
R. It was to give him a draft letter.
VR: Q. [239] For what purpose?
BC: He just answered your question. You ask him the goal, he told you what the goal was.
VR: Q. [240] For what reasons, Mr. Péloquin, did you ask VIA Rail [sic - should be Minister of Transport] to issue an order under the Railway Safety Act?
BC: Objection, you have not established the premise of your question.
Objection # 17 (1)
VR: This is complete obstruction.
BC: No. The witness never said, "I made a request to the minister." You just put those words in his mouth without establishing the basis of your question. And there, you present it to him as if it were a fact that was admitted and it was a question, a loaded question. This is a classic example of a maneuver of a skilled lawyer trying to corner a witness. We're not here for that.
VR: Q. [241] You submitted an application to Transport Canada by your email of February 4, 2025?
R. No.
VR: Q. [242] What did you do, if it was not a request that you submitted what did you do?
Objection # 17 (2)
BC: This is argumentative. The document speaks for itself. He is there in front of you, you ask him to categorize it for you, to interpret it for you. He has already answered your questions, I think it's time to move on.
VR: He wrote it.
BC: Yes. He has already answered your questions very directly, he said: "No". You heard it.
Group 5 – pp. 124-126
VR: Q. [243] In your email, when you say:
"We thought that requesting an emergency directive, an order under section 33 and 32.01 of the Railway Safety Act would represent a much more expedient way to resolve this issue that is now clearly demonstrated to not be based on risk". When you write: "A much more expedient way to resolve this issue" what is the "issue" you are referring to?
BC: The document speaks for itself. Q. If you remember the outcome and if you are able to respond without revealing the content of privileged communications, you can respond subject to change.
Objection # 18 (subject to change)
R. Yes. The object is clear: shunting issue.
VR: Q. [244] What action do you want Transport Canada to make following the sending of your letter of February 4, 2025?
BC: I will object again. You did not establish that he was looking for an intervention.
Objection #19
VR: Q. [245] Were you looking for an intervention from Transport Canada, Mr. Péloquin?
BC: Q. If you remember and are able to testify without revealing the content of the privileged discussions, subject to change.
Objection # 20 (subject to change)
R. It is common practice to inform the deputy minister, for me, of development, of things that are done at VIA Rail.
VR: Q. [246] Yes, but here you are asking him to issue a directive under the Act, aren't you?
BC: Objection, the document speaks for itself. He is not there to comment on you or interpret the email.
Objection # 21
VR: This is the first time I've heard a comment like this; that a witness is not able to comment or interpret an email that he himself has transmitted.
BC: Listen, the document speaks for itself. What does the document do?
VR: This is complete obstruction.
BC: The document says what it says and it has been transmitted to whom it was transmitted. That's what the document does.
Group 6 – p. 134
VR: Q. [268] Was your email of February 4, 2025, to Mr. Thangaraj, sent to accomplish an objective related to the legal proceedings brought by VIA Rail against CN?
BC: Q. If you know what the objective is and you are able to answer his question without revealing the content of communications with VIA Rail attorneys or communications that took place primarily for the dispute, you can respond.
R. I can't tell you. The document speaks for itself.
VR: Q. [269] I understand that this is what M. Catanu mentions, but...
BC: No, that's what the witness just answered. That's not what I'm mentioning.
Group 7 – pp. 134-136
VR: Q. [270] What I suggest to you, Mr. Péloquin, is that your email of February 4, 2025 was sent to Transport Canada, because you wanted an immediate order from Transport Canada lifting the restrictions adopted by CN, is that correct?
BC: Q. If you remember and are able to answer without revealing the content of discussions with VIA Rail prosecutors or communications mainly for the dispute, you can answer the question.
R. Yes. When I look at the email it is simply to inform him of a draft letter.
VR: Q. [271] Look at your email, you also say:
"We thought that requesting an emergency directive an order under Section 33 & 32.01, on the Railway Safety Act, would represent a much more expedient way to resolve this issue that is now clearly not demonstrated... clearly demonstrated to not be based on risk".
BC: That's what is written, yes.
VR: Q. [272] So, it's a request that you present to Mr. Thangaraj, it's not just an information point, is it?
BC: That's a qualification you're doing. The document speaks for itself. He has already answered your question multiple times. Besides, he told you very clearly: "No, it was not a request". So I apologize, but maybe you should move on.
VR: We will resolve your objections.
BC: Well no, he answered that question, he said he had not made a request. You got a direct answer. So, you can decide all the objections you want, but you are not going to ask the same question ten times in a row to the witness.
II - Discussions related to shunt and Venture Restrictions within the within the Board of Directors and Executive Committee of VIA
Context: The excerpts cited in objection group No. 8 concern Exhibit MP-10. This is a bundle of emails between M. Denis Lavoie (General Counsel of VIA) and Ms. Brigitte Diogo (Deputy Deputy Minister of Transport) from July 4 to 8, 2025.
Group 8 – pp. 192-193
VR: Q. [393] I return to Mrs. Diogo's email, of July 8, 2025, which is the first page of the exhibit MP-10. Has the content of Ms. Diogo's email discussed at the Executive Committee or the Board of Directors of VIA Rail?
Me BODGAN CATANU: Subject to the same instructions that I gave you, that is to say not to reveal the content of discussions you have had with VIA Rail's lawyers, nor to reveal the content of discussion or communication or documents, prepared mainly for the dispute.
R. I can't answer.
VR: Q. [394] You can't answer because of M. Catanu's directives?
R. For two reasons; because of the directive and then I don't remember it either.
Context: The excerpts cited in objection groups Nos. 9, 10 and 11 do not specifically concern a particular exhibit.
Group 9 – pp. 43-44
VR: Q. [19] Do you ever communicate with members of the board of directors of VIA Rail via the Teams platform?
R.... I'm not sure but I would say it's not the usual way, no.
VR: Q. [20] What is the usual way you communicate with board members?
R. Meetings of the Board of Directors.
VR: Q. [21] But when you prepare for the board meetings, there are several informal exchanges that take place with the members?
BC: Do you have a specific meeting to which you are referring?
VR: No.
R. But no, I don't agree, there aren't many meetings to prepare.
VR: Q. [22] Do you ever exchange by text messages with the members of the board of directors of VIA Rail?
R. I would like a clarification. Which members, all members?
VR: Q. [23] Let's start with the chairman of the board of directors, do you ever communicate by text messages?
R. Rarely, but occasionally.
VR: Q. [24] To prepare for today's interrogation, did you look at the text messages you were able to exchange with the chairman of the board of directors, in connection with this file?
BC: Objection, objection. The preparation work that the witness did was in collaboration with his lawyers and he cannot testify on this subject.
Group 10 – pp. 46-49
VR: Q. [29] Do you use other messaging systems to communicate with VIA board members, be it WhatsApp or any other similar application?
R. Emails, but no.
VR: Q. [30] You told me that there was no statutory meeting with the chairman of the board of directors. When there are meetings between the chairman of the board and yourself, are there any agendas that are prepared?
R. No.
VR: Q. [31] Are there anyone, other than the president of the board and yourself, attending the meeting?
R. No.
VR: Q. [32] Do you usually take notes during meetings?
R. No.
VR: Q. [33] Are you aware that the chairman of the board of directors takes notes during your meetings?
R. I don't know.
VR: Q. [34] How often do you typically meet with the Chairman of the Board of Directors?
R. Occasional I would say, when one or the other makes a request to have a meeting.
VR: Q. [35] Are these meetings on your professional agenda?
R. Yes.
VR: Q. [36] As commitment number 3, I will ask you to send us the excerpts from your professional agenda that indicate the dates on which you met, since March 1, 2024 the chairman of the board of directors of VIA Rail.
BC: The commitment is refused, it's a fishing expedition. You have not established the relevance.
Commitment E-3 (refused)
VR: Q. [37] During these meetings, since March 1, 2024 Mr. Péloquin, has it been talking about shunting?
R. I don't remember.
VR: Q. [38] Should we ask the chairman of the Board of Directors?
BC: I don't think the witness is there to agree with your assumptions, so ask him questions of fact.
VR: Q. [39] So, your testimony, Mr. Péloquin, is that there is absolutely no note relating to the content of the discussions you have had since March 1, 2024 with the chairman of the board of directors of VIA Rail?
BC: I think you asked him that question and he answered it.
VR: Q. [40] Is this the subject of your testimony?
BC: Excuse me? I think you heard my objection
Group 11 – pp. 54-55
VR: Q. [16] Do you have statutory meetings with the Chairman of the Board of Directors?
BC: What do you mean by "statutory"?
VR: Q. [17] Do you understand the expression "statutory meeting", Mr. Péloquin?
BC: I would like to understand her, before he answers. What do you mean?
VR: A statutory meeting, as the witness probably knows very well, is a meeting that is set at regular intervals within an organization.
Q. [18] So, I repeat my question to you, Mr. Péloquin. Do you have statutory meetings with the Chairman of the Board of Directors of VIA Rail?
R. No.
[...]
VR: Q. [60] VIA Rail has a management committee?
R. Yes, it is called: "The Executive Committee".
VR: Q. [61] Thank you, it clarifies a question I had for you. In everyday language at VIA Rail: "management committee" or "executive committee" refers to the same group of people?
R. I think so. A management committee is another name.
VR: Q. [62] Who is the management committee of VIA Rail?
R. Executives who work for VIA Rail.
VR: Q. [63] That is to say?
R. Our senior lawyer, the head of human resources, the chief financial CFO, the head of... - the delivery of services, in French - I think Service Delivery and then the sales manager and myself.
VR: Q. [64] That's what I thought. How often does the VIA Rail Executive Committee meet?
R. Normally, weekly.
VR: Q. [65] Is this a statutory meeting?
BC: I will object, it is not up to him to offer qualifiers of this nature. He described the frequency to you. After that, if you want to pretend that it is statutory or not, you will be free to do so.
III – Decision to continue operating Venture trains
Context: The excerpts cited in objection groups Nos. 12 and 13 concern Exhibit MP-4. This is an exchange of emails between Mr. Péloquin and Mr. Arun Thangaraj (Deputy Minister of Transport) with the subject "Shunting on CN and locomotive engineers' cognitive workload" dated January 16 and February 7, 2025.
Groups 12 and 13 – pp. 107-110
VR: Q. [212] Were you in favor of the decision taken on January 16, 2025 to continue operating Venture trains normally?
BC: Q. Again, subject to the same guidelines and if you remember but you cannot reveal the content of the discussions that took place with your prosecutors, nor mainly with a view to the dispute.
R. Well, listen, I sent an email to the deputy minister; so this is the consensus of the executive team.
VR: Q. There you go. Then, excuse me, but M. Catanu often comes back with objections of privilege, but...
BC: It's not objections that I made, it's comments and instructions that I make to the witness to remind him of his duty not to reveal the content of privileged communications.
VR: Q. [213] Is the decision to continue operating VIA Rail trains an operational decision?
BC: This is a qualification or an opinion, so I object.
VR: It's obstruction what you do, then we'll have your...
BC: No. Ask valid questions, I will not object.
VR: We're going to have your...
Objection # 15
BC: You ask him to qualify a decision as "operational" it is a qualification, it is an opinion; he is not obliged to accept your qualifications and opinions. It can describe what a decision entails, takes, what is necessary to take it, who takes it; all these elements can be described by the witness. But your conclusion as to its operational nature or not, it is not there to give you this kind of confirmation. So, ask valid questions, there will be no problem.
VR: Q. [214] On what basis did the Executive Committee make the decision on January 16, 2025 to continue operating Venture trains normally?
BC: Q. Again, subject to the same guidelines and if you remember; you can answer without revealing the content of discussions with your attorneys or that took place mainly for the dispute.
R. With this qualification I can't answer you.
IV – Reduced Speed Venture (versions 4 and 5 of Venture Restrictions)
Context: The excerpts cited in objection group No. 14 concern Exhibit MP-11. This is a joint letter from Mr. Péloquin and Mr. Jonathan Goldbloom (Chairman of the Board of Directors of VIA) to Minister Chrystia Freeland (while she was Minister of Transport) dated August 8, 2025.
Group 14 – pp. 203-204
VR: Q. [415] As of today, what do you know about the nature of the collaboration between CN and VIA Rail, about the development of speed tables?
BC: I would ask you to ask a more specific question than that, M. Rochette.
VR: My question is very precise.
BC: She is absolutely not precise: "What do you know about? "No. Go ahead with a specific question.
VR: What is the nature of the objection?
BC: Your question is too imprecise and therefore, I object to it. The witness is entitled to a specific question.
VR: Do you prevent the witness from responding subject to your objection?
BC: No.
VR: Very good.
BC: I'm stopping him... Yes, actually, we misunderstood each other.
VR: Very good.
BC: I'm preventing him from answering, absolutely.
Objection #34
Context: The excerpts cited in objection group No. 15 concern Exhibit MP-16. This is a letter from Mr. Péloquin to Ms. Tracy Robinson (President and CEO of CN) dated September 11, 2025.
Group 15 – pp. 235-240
VR: Q. [485] I return to the first paragraph of your letter of September eleven (11) two thousand twenty-five (2025), on the second penultimate line, you write: "The locomotive engineers already give positive feedback". What information did you receive about the feedback from locomotive engineers on the speed tables adopted at the end of August two thousand twenty-five (2025)?
BC: Subject to the same guidelines.
R. I can't tell you, I didn't receive it directly.
VR: Q. [486] What do you mean: "I didn't receive it directly"?
R. Well, the locomotive mechanics don't call me directly to give me feedback.
VR: Q. [487] I understand. But my question was:
What information did you receive that allowed you to tell Mrs. Robinson that you had received positive comments from the locomotive engineers?
BC: Subject to the same guidelines.
R. Yes. I don't know.
VR: Q. [488] You don't know. So, as commitment 74, I will ask you to provide us with any internal document to VIA Rail, relating to the feedback received from locomotive engineers with regard to the speed tables that came into force on August 28, 2025.
BC: Subject to the same comments.
Commitment E-74 (under consideration)
VR: Q. [489] Then the positive feedback you refer to meant that the implementation of speed tables had the effect of reducing the cognitive load on locomotive drivers?
BC: Q. Subject to the same guidelines. If you remember.
R. I will stick to what is written. It's not about cognitive load, so I can't say what you just asked me.
VR: Q. [490] As of today, you are unable to answer my questions about the link between the adoption of speed tables, August 28, 2025 and the cognitive load on locomotive engineers?
BC: Q. If you are able to answer his question by following my instructions and you have a memory and understand his question. Go ahead.
R. Yes, I'm not sure.
VR: Q. [491] But as of today, Mr. Péloquin, are you aware that the implementation of the speed tables adopted on August 28, 2025 has reduced the cognitive load on locomotive engineers?
BC: I apologize, but Mr. Péloquin is not here as an expert in cognitive charge or human factors.
VR: Q. [492] Has anyone informed you, since August 28, 2025, that the implementation of speed tables had the effect of reducing the cognitive load on locomotive engineers?
BC: Q. Subject to the same guidelines. If you have a memory and are able to respond without revealing the content of privileged communications, go ahead.
R. According to the directive I cannot answer.
VR: Q. [493] I just want to understand. So, you would have things to tell me but because of the directive, you feel that you can't answer, is that it?
R. That's it.
BC: Q. [494] Mr. Péloquin, to be clear, if you are able to respond without revealing the content of discussions you have had with your lawyers or communications or discussions that you have had mainly with regard to the dispute and you understand his question, you can answer.
So, I want it to be clear because we say: "His directive" I'm not sure it was clear according to the transcript. So, with my clarification, you can confirm or specify. Go ahead.
R. Yes. These would be discussions that would have taken place in the Executive Committee of which M. Lavoie is an active part.
BC: Q. So, on this basis, we object on the basis of privilege, M. Rochette.
VR: I disagree with the basis of the objection but it is noted.
BC: Well, listen, if the lawyer takes an active part in discussions with management, about a solution put in place in the context of a judicial case, you will understand that for now, we will affirm the privilege. And if you are able to convince the Court that there is none, well, we will follow up.
Selected references are below.
***********
[1] CN, which was itself a Federal Crown corporation, was privatized in 1995: CN Marketing Act, L.C. 1995, c. 24.
[2] See section 103.1(f) of the Canadian Railway Operating Regulations adopted pursuant to section 19 of the Railway Safety Act, RCM 1985, c. 32 (4th supplement).
[4] The hearing was scheduled for December 1 and 2, 2025 and was to cover all evidence and all arguments for all objections, but the task was too huge to meet the scheduled time.
[5] Affidavit by Mr. Eliot Kaye of November 21, 2025. Mr. Kaye is a Signals and Communications Quality Assurance Manager in CN in the United States.
Running extra...
I have been watching the news quite a bit recently. What Would Chevy Do? A commentary. And I can afford the space here for a commentary...
...speaking of a fjord reminds me there is ice in Greenland and some say Greenland is a big chunk of ice. But if there's only ice, will it be an iceberg, perhaps Greenberg? (Will Greenberg stars on TBS's hit Wrecked.) An iceberg can't be a country. It's technically an iceberg that (if you wait long enough) will melt. How would you like your country just melting away on you? Where could you reliably find a parking spot. All the ice talk is making the world a sparking pot! But let's keep the cauldron cool. We need peace. I would never get bored of peace...
...this week Greenland was being called Iceland by mistake. Four times. But Iceland is really tiny and if Greenland is just a big chunk of ice, Iceland is just a li'l chunk of lava! When its volcanoes blow, it's a hunk-a hunk-a burnin' lava! And the Mercator projection of the Earth they keep showing makes Greenland look really big. But Iceland will never be bigger than Greenland. Maybe if it WAS bigger, it would be more in demand...
...if you rearrange the letters in 'demand' you can also make 'damned' and 'madden'. And damn, watching the news this week was maddening! And if you rearrange the letters in seminar, like those held in Davos, you can also get 'remains' and 'Marines' and it seems that all the Marines are in Venezuela and oil be darned if I can figure out what part of the Venezuelan government still remains. All is not well. Or wells. Or barrels.
But this commentary is barrelling south fast, so let's go back north. There's also a lot of ICE in Minnesota. There's also a lot of SNOW in Minnesota in the winter. But ICE is using green gas in Minnesota. It's turning parts of the snow in Minnesota green. It's green land. So why does the US want more Greenland when they already have green land? , and before this post gets wrecked...
...Greenland is Danish. I can buy a Danish, but I can't buy Greenland. (I don't have to buy ice because my freezer makes it own. (I'm glad it does, because I lost the recipe.) If I wait long enough, I can buy a Danish at a reduced price. And if Greenland is a chunk of ice, and it's owned by the Danish, why not just wait till 50% of the ice melts, and if you wait long enough, buy it at a reduced price? It's a nice idea for an ice deal, and isn't that nice AND ideal?
First past the post...
All I can say about the above is that the world has become a circus. I'm just glad we can trust one of the carneys working in that circus - among all the clowns.
