VIA'S APPLICATION FOR JUDICIAL REVIEW
[WHAT VIA WANTS FROM CN]
VIA's application asks CN to acknowledge that the Crossing Supplement is unlawful and invalid, and that it be quashed. Furthermore, VIA asks for an order prohibiting CN from making rules respecting the design, construction, alteration, operation and maintenance of VIA’s equipment without following the process set out in the Railway Safety Act.
It seems the judicial review [taking CN to court] evolved as VIA's preferred method of addressing CN's actions. In fact, VIA initiated action through its legal counsel five days (possibly earlier) after the CN Crossing Supplement went into effect. As the issue is before the courts, information put forward by VIA is almost entirely protected by Access to Information legislation. That is not to say it's all under wraps. Read carefully!
Interestingly, nestled within the application for judicial review are a few notable nuggets of information. Nuggets that had been unavailable and heretofore not provided by CN or by VIA:
- CN admitted that the shunt provided by Venture sets of 24 axles was adequate.
- CN has provided no risk assessment justifying its Crossing Supplement.
- CN has offered no evidence of an increased safety risk posed by the Ventures on their tracks.
VIA'S GROUNDS FOR JUDICIAL REVIEW
[VIA'S CASE AGAINST CN]
VIA is mandated by the federal government to operate the national intercity passenger train services, including over CN’s railway network in the Quebec City-Windsor corridor. The Corridor includes these segments of track to which CN’s Crossing Supplement applies: the Dundas, Chatham, Guelph, Halton, Strathroy, Kingston, York, New Market [sic], St. Hyacinthe, Montréal, and Drummondville Subdivisions. VIA operates its own railway equipment pursuant to a railway operating certificate issued by the Minister of Transport under the Railway Safety Act.
CN is obligated under the Canada Transportation Act to provide access and services over its trackage to passenger service providers such as VIA. CN exercises its powers conferred by the Railway Safety Act and the Canadian Railway Operating Rules (CROR). CN can make rules respecting the operation of railway equipment, and to file them with the Minister of Transport. CN also has the authority to issue special instructions, including under CROR 103.1(f), upon which CN based its Crossing Supplement. CN’s rules and special instructions must flow directly from a federal statute and the rules enacted under it in conjunction with federal railway companies. VIA also contends that it is CN's responsibility to submit these rules to the Minister of Transport for approval. When approved they come into force and become compulsory. The rules and special instructions CN imposed impact members of the public who use VIA’s government-mandated public passenger service.
On October 11, 2024, CN imposed the Crossing Supplement, stating that unless operating with 32 axles or shunt enhancer, the 304 crossings must be manually protected unless it is known that warning devices have been operating for at least 20 seconds as per CROR 103.1(f). The Crossing Supplement is not limited in time. It creates a permanent rule applicable whenever VIA operates its Venture trains at grade crossings.
VIA further contends that CN acted without jurisdiction. The Crossing Supplement has the effect of imposing a new permanent rule governing the design, construction, alteration, operation and maintenance of railway equipment. The CROR do not grant CN the power to exempt itself from the procedure set out in the Railway Safety Act by issuing special instructions, demanding that CN follow the applicable procedure, which includes the obligations to consult with impacted parties, such as VIA, for a period of at least 60 days and to provide a notice to, and then obtain, the Minister of Transport’s approval.
VIA notes that railway track circuits must detect equipment in any part of the track circuit; and they must detect a shunt of 0.06 ohm resistance when the shunt is connected across the track rails of any part of the circuit by providing a warning time of at least 20 seconds before railway equipment reaches a crossing. Operating control circuits must provide consistent warning times for railway equipment operating over the grade crossing.
Venture trains in a 24-axle configuration have been confirmed to provide a minimum resistance of 0.06 ohms as required, as admitted by CN. Since CN’s new rule was purportedly adopted to allay a hypothetical risk that VIA Venture trains regularly operating over its grade crossings and generating the required 0.06 ohm shunt would not be detected by its warning systems, the purpose and effect of CN’s Crossing Supplement is to allow it to operate its railway in violation of the Railway Safety Act, Grade Crossing Regulations, and Grade Crossing Standards.
In 2018, VIA launched its Corridor Fleet Replacement program, acquiring 32 new Siemens Venture trains to replace its legacy fleet in the Corridor. Since they were deployed beginning in 2022, and up until October 11, 2024, when CN suddenly issued its Crossing Supplement, VIA Venture trains had made well over 5,300 revenue trips over CN’s infrastructure, with no evidence to suggest any safety risk.
Despite VIA’s repeated requests, CN has not been able to provide VIA with any risk assessment justifying its Crossing Supplement, nor to offer any evidence to substantiate any increased safety risk attributable to VIA’s Venture trains. At the same time, VIA contends that forcing the manual protection of 304 grade crossings creates very real risks to the safety of passengers, employees and the public due to the additional cognitive workload placed on locomotive engineers needing to accelerate and decelerate repeatedly at some grade crossings while referring to a list of those crossings while operating trains. CN’s Crossing Supplement creates additional safety risks, which are entirely unwarranted, as will be further detailed in VIA’s forthcoming application to stay the Crossing Supplement.
FURTHER FILINGS IN FEDERAL COURT
[THE WHEELS OF JUSTICE TURN SLOWLY...]
The application was made by VIA on November 12. On November 22, VIA made an informal request in a letter to the Court for case management. Associate Judge Martha Milczynski appears to have granted this request after a November 22 letter from CN.
In a letter dated December 2, CN objected to providing certified material. While awaiting the appointment of the Case Management Judge, out of an abundance of caution and to ensure compliance with the Federal Courts Rules, CN objected to providing a certified copy of the requested material pursuant to Rule 318(2).
CN objected to VIA’s request because it disputed VIA’s characterization of CN as a “federal board, commission, or other tribunal”. Pending the resolution of that threshold issue, it is not appropriate in the circumstances of this case to require the provision of certified copies of any materials.
On December 10, the scene shifted from Toronto and Montreal to Ottawa, where Chief Justice Crampton considered without personal appearance The Court's decision with regard to VIA's letter of November 22. Result: Associate Judge Catharine Moore was assigned as Case Management Judge in this matter. (Previously Senior General Counsel at the Department of Justice Canada in Ottawa, she was appointed an associate judge of the Federal Court on May 1, 2024.) The same day, VIA was preparing an interlocutory motion. CN responded on December 11.
The pace picked up once the case reached Ottawa! On December 11, the parties were directed to provide the Court, before the end of the day on Thursday, December 12, with their availability for a brief case management videoconference on December 16 or December 17. The purpose of this videoconference is to discuss the order and timing of the anticipated motions.
On December 12, Judge Catharine Moore directed that a case management videoconference will be held at 2:00 on December 16, for for no longer than one hour, to discuss next steps in the proceeding including the appropriate order of the contemplated motions.
The 'evidentiary' ball seems to be in CN's court right now. We'll see how they send it back to the VIA side. CN replied in a letter on December 13 in advance of the case management conference.
Affidavits dated December 12 were received from the following VIA executives (no. of exhibits). The total package sent to the Court comprised 2,948 pages.
- Jonathan Cooke - Specialist Director, Operating Practices & Transportation Training (8)
- Jean-Philippe Quintal - Project Director for the Rolling Stock Acquisition, part of the Corridor Fleet Renewal Program (New Fleet) (10)
- Derek Tardif - Specialist Director, Railway Infrastructure (responsible for VIA Rail-owned infrastructure)(1)
- Nicolas Panetta - Director, Network Operations & Railway Safety Governance – Railway Operations (36)
- Nicholas MacKenzie - Senior Manager, Network Planning (14)
Expert affidavits dated December 12 were received from the following expert witnesses:
- Saeed Fararooy - Director of Rail Systems Engineering at DB ECO North America
- Harold Kirman - Senior Subject Matter Expert at DB ECO North America
- Dr. Christina Rudin-Brown - formerly the Manager of Human Factors and Macro Analysis at the Transportation Safety Board of Canada
DB E.C.O. North America is part of the DB E.C.O. Group and a subsidiary of Deutsche Bahn AG, the German Federal Railway company. Leveraging a cross-disciplinary team of subject matter experts, technical consultants, and management consultants, DB provides operations, planning, management, and engineering consulting services to the passenger rail, transit, and freight rail industries with a diverse portfolio of public and private sector clients across the United States and Canada. DB has extensive experience using a data-driven approach to support North American rail operators and public agencies in engagements with host railroads, including during legal proceedings.
CN submitted a 65-page compendium to the Court.
The lead lawyers were Bogdan Catanu of Montreal's Woods LLP for VIA Rail, Monique Jilesen of Toronto's Lenczner Slaght representing CN, and Thomas Swerdfager of the Department of Justice's Quebec Regional office in Ottawa appeared for the Attorney-General of Canada.
The volume of the materials was one topic of discussion, as was the urgency for the Motion, and the dates for exchange of materials.
In a motion dated December 12, VIA sought an interim and interlocutory order staying the application of CN’s impugned Crossing Supplement v2 and, insofar as it may otherwise still be applied, of CN’s impugned Crossing Supplement v1, until the final decision on the merits of VIA’s notice of application for judicial review as it may be amended. The Memorandum of Fact and Law in Support of VIA's Motion for Interim Stay was 34 pages, footnoted by the expert and executive affidavits and supporting documents submitted to the Court on December 12. VIA contended that the legal requirements for granting a stay satisfy the legal test thereof, namely the moving party must demonstrate that there is a serious issue to be tried on the merits; that the moving party will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay.
VIA also contended that CN did not first consult VIA and obtain the Minister’s approval, it acted without jurisdiction, beyond its jurisdiction, and in violation of the procedure required under the Railway Safety Act; that CN erred in law and acted contrary to law, having distorted its power to issue special instructions under the CROR meant to address temporary conditions affecting grade crossings - that CN used such a power in order to permanently regulate the operation of VIA Venture trains at grade crossings; and CN acted in disregard of the material before it, having issued its Crossing Supplements for reasons contradicted by the evidence and without providing any supporting risk assessment, nor offering any reliable evidence to substantiate any increased safety risk attributable to VIA’s Venture trains.
After the one-hour December 16 Case Management Videoconference, the court directed VIA's motion for an interlocutory injunction will be heard either in person in Ottawa or by video conference on February 25, 2025. The parties were directed to confer and provide a schedule for steps leading up to the hearing of the motion by end of day Thursday, December 19, 2024.
On December 18, the VIA Notice of Motion included submitting the Rudin-Brown expert Affidavit. The report dated December 13, 2024 was obtained December 15, 2024. Therefore VIA had to amend its Interim Stay Motion Record December 12, 2024, submitted to the Court on December 18, 2024.
On December 20, written directions received from the Court: Chief Justice Crampton directed the following upcoming deadlines:
- VIA's motion record to be filed by Monday, January 13, 2025.
- CN's motion record to be filed by Thursday, January 23, 2025.
- Cross-examinations to be completed by Friday, January 31, 2025.
- CN's motion records to be filed by Thursday January 30, 2025.
- Aide-memoire re: Cross-Examinations to be filed by Wednesday, February 5, 2025.
- CN's motion to strike will be heard on Friday, February 7, 2025.
- Cross-examinations to be completed by Friday, February 7, 2025.
- VIA's factum to be filed by Thursday, February 13, 2025.
- CN's factum to be filed by Wednesday, February 19, 2025.
- VIA's motion for an interlocutory injunction will be heard at 30 McGill Street, Montréal, on Tuesday, February 25, 2025 at 9:30 a.m for a duration of one day.
The expansive and extensive material - 3,000-plus pages of it - presented by VIA and CN makes for some interesting reading. This subsequent post shares VIA's and CN's submissions to the Federal Court.
On January 13, 2025 the Notice of Motion on behalf of CN's motion to strike to be heard on Friday, February 7 2025 (for an Order striking VIA's Notice of Application issued November 12, 2024 and dismissing this Application in its entirety) was submitted to the Court. The same day, CN's Memorandum of fact and law was filed. CN submitted 1,073 pages of documents.
On January 21, Associate Judge Catharine Moore directed by oral directions that "The Court directs the parties to advise the Court by close of business on January 23, 2025:(1) whether supplementary evidence in response or further cross-examination is contemplated and (2) whether either the relief sought in the letter or the supplementary evidence or cross-examination, if there is any, will disturb the schedule established for the interim stay motion."
On January 23, the Attorney-General of Canada submitted a response to CN's motion, ominously contending that:
1. CN says VIA is not a federal board, commission or other tribunal.
2. The AGC agrees that VIA's application is not in the Court's jurisdiction and should be struck.
3. CN's decision is a purely contractual matter not within the Court's jurisdiction.
4. Since the application was filed by VIA, the Minister ordered CN to provide data as above, ensuring compliance with regulatory requirements, and to ascertain whether it's an active safety issue.
[The details will be included in an upcoming "VIA and CN in Federal Court - The Facts, Part 3" post.]
On January 27, VIA placed a Notice of Motion before the Court in Ottawa for an Order allowing VIA to file a supplementary record responding to new arguments raised by the Attorney-General of Canada in its record responding to CN's Motion to Strike.
On January 29, Associate Judge Sylvie M. Molgat directed that "A motion record for leave to file a supplementary response has been submitted to the Court - the motion record is rejected for filing as the estimated duration of the motion is not indicated, and it does not contain any written representations. Without prejudice to the VIA, serving and filing a fully compliant motion record, such a motion record, if any, shall be accompanied by a covering letter containing a jointly proposed for the service and filing of any responding motion records, and the parties' common availability for the hearing of the motion during the week of February 3, 2025."
On January 31, VIA alerted the Court to the recent transmission of the responding motion record of CN and to ask this Court for directions. CN requested that the Court decline to make the direction sought by VIA. Additional affidavits submitted:
in support of VIA's interim stay motion:
- Ronald Bartels, retired VIA Specialist Director, Engineering.
in support of VIA's response to CN's motion to strike:
- Karine Dureault (n/a)
- Nicholas Panetta VIA's Director, Network Operations & Railway Safety Governance – Railway Operations
in support of CN's opposition to VIA's affidavits submitted December 12
- Jason Kumagai (expert - human factors),
- Li-Lian Lei (expert - railway health & safety)
- Thomas Hilliard (retired CN AVP of S&C)
- Hoang Tran (CN Senior Director, Regulatory, System Safety, and Psgr. Opns.)
On February 4, Associate Judge Catharine Moore notes VIA's correspondence of January 31, 2025, requesting a direction that CN file its memorandum of fact and law no later than February 4, 2025, as well as correspondence from the Respondents dated January 31, 2025. The Court declines the request and notes that the scheduling Direction from the Chief Justice of December 20, 2024, contained a compressed timeframe for the motion for an interlocutory injunction, at VIA's request, and specifically provides for the filing of facts after the cross-examinations placed on file on February 4. [It seemed that VIA wanted to speed up the timeline already set.]
Documents submitted to meet the deadline imposed in advance of this Friday's motion to strike by CN were: aide memoires by CN and VIA, and the joint cross-examination brief.
On February 7, a hearing for CN's Motion to Strike (by video conference) from 1003-1553h held by the Ottawa (Zoom) Court Registrar. Associate Judge Catharine Moore gave notice that the Court will issue a decision. CN was represented by Mr. Paul-Erik Veel, Attorney-General of Canada by Thomas Swerdfager and VIA by Woods' firm's Matthias Heilke.
Subsequently, Associate Judge Catharine Moore considered without personal appearance The Court's decision is with regard to Motion in writing Doc. No. 21 Result: "1. The Applicant is granted leave to amend the Application for Judicial Review dated November 12, 2024; 2. The Applicant will serve and file the amended Application for Judicial Review and Registry will accept the amended Application for filing as of December 12, 2024; 3. The Applicant is permitted to challenge the two Crossing Supplements in the context of this Application for Judicial Review; and 4.There shall be no costs".
On February 10, CN asked for a sealing order to protect all correspondence, documents, records or data provided by CN or Transport Canada in response to Transport Canada's Ministerial Order MO 24-01 dated December 10, 2024. Associate Judge Catharine Moore directed on February 10 that "The Court acknowledges correspondence from the Respondent CNR [sic] dated February 10, 2025 seeking a confidentiality order pursuant to Rule 151 of the Federal Courts Rules. The Court directs that the VIA Rail Rail provide the Court with its position on the proposed confidentiality order by the end of the day February 11, 2025. "
VIA took no position on that proposed confidentiality order but did not oppose its issuance. By not opposing the issuance of the order, VIA Rail Canada Inc. did not admit that the information for which confidentiality is sought is or is not in fact confidential or sensitive or raises security concerns, etc.
On February 12, a lot happened:
- CN delivered Notices of Motion to all parties and requested a Case Management Conference to discuss scheduling of the motions.
- Associate Judge Catharine Moore rendered a decision without personal appearance of the parties. The Court decided to grant CN's confidentiality request, partially. Certain information may be filed and treated as confidential in accordance with this Order with six terms applying to the filing of the Confidential Information for a period of sixty days from the date of the Order, after which any or all of the parties may bring a motion to the Court for a permanent Order.
- Oral directions from Associate Judge Catharine Moore directed that "The parties are directed to provide their availability for 30-minute case management conference by video conference on February 19, 20 or 21, 2025. The parties are further directed to confer and provide a comprehensive list of agenda items with a brief paragraph summarizing their positions on each item 48 hours before the case management conference." So it appears VIA's application will indeed be heard on February 25 as scheduled, despite CN's attempts to strike it and make the Transport Canada material at least partly confidential.
February 13 was also an eventful day:
- VIA submitted its Factum in support of its Stay Motion, per the agreed-to schedule.
- CN submitted a Notice of Motion contained within a Motion Record returnable at Special Sitting in Montréal on February 25 to begin at 10:00 with leave for short notice requested for an Order granting Canadian National Railway Company leave to file the affidavit (with two exhibits) of Hoang Tran sworn on February 13, 2025, served by Nicole Natalie of CN's legal firm Lenczner Slaght.
- VIA is referred to in court file listing as a "defendant" for the first time.
- (Confidential) motion record of the respondent (Motion for Leave to File a New Affidavit) was filed by CN.
- VIA submitted a letter (dated February 14, actually).
On February 17, the frenetic pace of motions, cross-examinations and case management continued:
- Notice of motion contained within a Motion Record for CN returnable at Special Sitting in Montréal on February 25 at 10:00 for an Order striking the re-examination of Saeed Fararooy in its entirety (questions 220 to 237).
- AND the expert affidavit of Dr. Christina (Missy) Rudin-Brown of Human Factors North sworn on December 16, 2024 and any associated exhibits and transcripts filed on February 17, and her Supplementary Affidavit sworn on January 8, 2025.
- Associate Judge Catharine Moore gave oral directions: "A case management conference will be convened by video conference on February 19, 2025, at 1:00 for no longer than 30 minutes. The parties are directed to confer on the agenda and provide their positions to the Court in accordance with the previous direction no later on February 18 2025."
February 18: Joint Proposed Agenda received from all parties with respect to agenda for Case Management Conference on February 19, 2025 agreed upon by the parties further to the directions of Associate Judge Catharine Moore on February 17.
February 19:
- The Attorney General of Canada (AGC) informed the Court that the AGC will not be filing a factum in response to VIA's December 12, 2024, motion for a stay of the crossing supplement and VIA's February 13, 2025 factum in support of that motion.
- Before Associate Judge Catharine Moore Case Management Conference Result of Hearing 1:00 p.m. for 20 minutes: The Court will issue a Direction. Held by way of video conference Duration per day: 19-FEB-2025 from 01:01 to 01:20 by Zoom, with Bogdan Catanu for VIA, Ms. Jilesen for CN; Thomas Swerdfager for AGC.
February 20, a mere three business days before VIA's Application for Judicial Review was scheduled to be heard, on February 25:
- After the February 7 hearing of CN's motion to strike VIA's judicial review, even though VIA's application was moving forward as recently as yesterday, the short duration of the case management conference - 19 minutes - should have been a clue. The Court's decision on the Motion to Strike was still pending. That is, until today...
- ...in a terse three-line decision by Associate Judge Catharine Moore in the Matter considered without personal appearance, the Court's decision with regard to Motion Doc. No. 26, result:
- "1. The motion is granted. 2. The Notice of Application is struck out 3. The whole, with costs. Final Decision." (See analysis of this decision - added November 6, 2025)
- (As a reminder, Motion Document 26, filed January 13, 2025 was, "Notice of Motion on behalf of Respondent CN's motion to strike will be heard on Friday, February 7 2025 for an Order striking VIA Rail Canada Inc's Notice of Application issued November 12, 2024 and dismissing this Application in its entirety".)
- Associate Judge Catharine Moore directed that, "Further to the case management conference held yesterday and in light of the release of the decision relating to the motion to strike, the date of the hearing of the motion for interlocutory injunction currently scheduled for February 25 is vacated. If the parties require a further case management conference to discuss next steps, time is available at 8:15 on Friday, February 21, 2025 or during the following week." The court document:
- CN sent a letter to the Court, writing further to the Order dated February 19, 2025 striking VIA's Notice of Application for Judicial Review, without leave to amend.
Also, as a reminder, 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 laid 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]."
This was an 'action of filings', not a trial and it never got to a hearing. The evidence before the Court was a plethora of documents submitted by both parties, mores by VIA. The decision is appealable to the Federal Court of Appeal. And it's still unknown how the Ministerial Order will be resolved.
February 21: It sounds as if VIA may appeal the decision? Letter from Defendant - The Respondent is writing further to VIA's correspondence about the motion to appeal" received on February 21. Letter from Applicant - The Applicant is writing further to the message from the Hearings Coordinator yesterday and CN's subsequent correspondence.
February 24: From Associate Judge Catharine Moore "The Court notes the various correspondence from the parties and directs that a brief case management will be convened by video conference on February 25, 2025 at 12:00 Ottawa time to discuss next steps."
There will be an appeal by VIA. On February 25, the brief case management conference was held by Zoom from 1202-1215 before Associate Judge Catharine Moore Language. The Court will issue a Direction held by way of video conference in Ottawa Zoom courtroom, with appearances: Mr. Bogdan Catanu for VIA, Monique Jilesen for CN and Thomas Swerdfager for the AGC.
Oral directions received from Associate Judge Catharine Moore directed that further to the case management conference held [today], the Court will hear an appeal and potentially, a Rule 398 motion to stay the effect of the Order rendered February 19, 2025.
- The Notice of Motion will be served and filed in accordance with the Rules by March 3, 2025
- The balance of the Appellant's record will be served and filed by March 12, 2025.
- The Respondents' records will be served and filed by March 24, 2025.
- If the Appellant intends to bring a motion to stay pursuant to Rule 398 [Stay of Order], the Court will direct a separate filing schedule."
* * * * *
Here is the complete analysis behind the decision rendered by Associate Judge Catharine Moore dated February 19, 2025 (added November 6, 2025):
There are a number of formulations of the test to be applied; however, I am of the view that although they articulate the elements in different ways, they may all be summarized into the two-step approach set out by the Federal Court of Appeal in Oceanex and Air Canada; that is:
(a) Does the jurisdiction or power exercised by the decision-maker find its source in federal law?
(b) If so, is the decision of a sufficiently public character to permit judicial review?
With respect to the first element, whether the source of the power is in federal law, I am not persuaded that the source of the power to issue the Crossing Supplements is, as VIA asserts, an exercise of state authority merely because they engage the CROR which have the force of law through the RSA. CN says that they were acting pursuant to their contract with VIA which expressly, and not surprisingly, permitted CN to regulate the activities of VIA while using CN infrastructure. While I agree that the CROR is statutorily contemplated by the RSA, I also accept that the reference to the CROR was included, as Mr. Tran testified, as a “shorthand” and was not necessary. I find that the Crossing Supplements could have been issued and would have had the same effect on VIA’s conduct even if they had not referenced the CROR. I also note counsel to VIA advised me during the hearing that had the Crossing Supplements not referenced the CROR, this Court would have no jurisdiction to hear the matter. Furthermore, for a period of time, the Second Crossing Supplement provided different instructions than the CROR in that the Second Crossing Supplement required more activation time than the CROR for some of the crossings in issue which is a clear indication that the Crossing Supplements operate independently from the CROR.
VIA also argues that the Crossing Supplements do not derive their authority from the contractual arrangements with CN and specifically not from the TSA because the TSA is not in effect and did not include a particular geographical portion which the Crossing Supplements purport to regulate. I am not persuaded by this argument. It may be that VIA is correct in its assessment of the contractual situation; however, this is not an issue that I need to decide in the context of this motion. Simply put, the lack of a robust contractual underpinning for the action does not transform the action into the exercise of a public power.
I also accept the arguments put forward by the Attorney-General to the effect that while the Minister has delegated authority to approves rules formulated by railway companies on certain safety-related matters, that does not impede CN’s ability to make internal safety requirements regardless of what they are called. Section 4.1 of the RSA establishes that these requirements are subordinate to the rules and regulations made under the RSA and the Minister has no authority to enforce them.
Although in my view the matter can be disposed of on the first part of the test, the analysis should be completed.
With respect to the second element, whether the Crossing Supplements have a public character, I will consider the eight factors that Justice Stratas identified in Air Canada.
1.The character of the matter for which review is sought.
There is no doubt that the protection of the public at rail crossings is a matter of public character; however, VIA’s second argument that its statutory right to operate a passenger service, found in the CN Commericalization Act, is a public mandate is somewhat less compelling given that the “matter” is a safety instruction. In Air Canada, the Federal Court of Appeal affirmed that relationships that are in essence private in nature are redressed by way of the private and not the public law and, indeed, CN’s contract clearly gave it the right to regulate the use of its infrastructure.
2.The nature of the decision maker and its responsibilities.
Although highly regulated, CN is a private corporation. I asked all of the parties to identify for me any cases where a fully private corporation had been subject to judicial review, and none were provided except professional regulating bodies where membership was made mandatory by government regulation. The jurisprudence from which the tests develop is largely directed at Crown corporations, port authorities and other public bodies exercising some public and some private powers and the discussion in those cases is of limited help with the question before the Court. In Bibaud v. Bell Technical Solutions Inc. 2023 F.C. 1113, Justice Roy found the fact that the decision-maker was a private corporation to be “significant” and I adopt that finding here.
There is language in the CN Commercialization Act that declares CN’s rail network to be “works for the general advantage of Canada”; however, the Ontario Court of Appeal has recognized that this simply confirms that CN falls under federal jurisdiction: Halton v. CNR 2024 OCNA 174.
3. The extent to which a decision is founded in and shaped by law as opposed to private discretion
VIA argues that CN had no private discretion to order the Crossing Supplements; however, I cannot accept their argument that CN has no discretion to subject VIA’s employees to penal offences through the CROR. This argument is flawed as it is the Minister who exercises the discretion to prosecute contraventions of the CROR and neither CN nor the Minister have any ability to prosecute activity that contravenes the Crossing Supplements but not the CROR.
4.The body’s relationship to other statutory schemes or other parts of government
While CN is central to rail travel in Canada it cannot be said to be “woven into the network of government” and “exercising a power as part of that network”. Although heavily regulated, CN’s role in the rail transportation system is that of a private actor.
5. The extent to which a decision maker is an agent of government or is directed, controlled or significantly influenced by a public entity.
CN is not an agent of government. Although CROR must be approved by the Minister of Transport, the Crossing Supplements did not. I do not accept VIA’s argument that because the Minister of Transport required information about the Crossing Supplements pursuant to section 36(1) of the RSA, that CN was an agent or acting at the direction of the government.
6. The suitability of public law remedies
The declaratory relief sought in the application is, indeed, in the nature of an administrative remedy. That said, the fact-finding and analysis required to dispose of the application would exceed the traditional limits of judicial review and, indeed, affidavits are already in the record and cross-examination is ongoing concerning topics such as human factors, the cognitive load imposed by the Crossing Supplements as well as rail safety and technical issues of loss of shunt.
7.The existence of compulsory power
VIA argues that the Crossing Supplements enjoy the full compulsory power of the federal government because they put in place penalties including fines and imprisonment which may levied against both VIA and its employees. While it is correct that breaches of the CROR may lead to these consequences, as I have noted above, the Second Crossing Supplement was more restrictive than the CROR in existence when it was issued and, as the Attorney General confirmed, a breach of the Second Crossing Supplement but not the CROR and would not have led to administrative monetary penalties or penal offences.
8.The conduct has attained a serious public dimension
There is no doubt that public safety at rail crossings is an important concern for the travelling public; however, public importance alone does not cloak this Court with jurisdiction.
I conclude that, on balance, the decision to issue the Crossing Supplements is not of a sufficiently public character to warrant judicial review.
The number of CN Decision Subject to Judicial Review:
As this point was argued by both parties, I note it here; however, in my view, it makes no difference to the question of whether there is jurisdiction to entertain this Notice of Application. CN argued that a finding that it is a “federal board, commission or other tribunal” would open the door to judicial review of the approximately 65,000 GBOs that are issued annually. VIA countered that only GBOs that engaged the CROR would be subject to judicial review; but, from the timetable that appears as Exhibit B-6 to the Affidavit of Jonathan Cooke, approximately half of the GBOs do make reference to the CROR. VIA argued, further, that most would not be challenged, in any event. In my view, the issue of whether this Court has jurisdiction is not influenced by the potential number of judicial review applications that may or may not be possible.
In conclusion, for the forgoing reasons, I find that CN is not a federal board, commission or other tribunal within the meaning of sections 2(1), 18 and 18.1 of the Federal Courts Act. The motion will be granted, and the Notice of Application will be struck out without leave to amend. To be clear, this does not leave VIA without recourse as both VIA and CN counsel emphasized to me, but the issuance of the Crossing Supplements cannot be judicially reviewed in this Court.
THIS COURT ORDERS that:
The motion is granted.
The Notice of Application is struck out without leave to amend.
The whole, with costs.
CN's legal firm highlights the success in responding to VIA's application for judicial review, on its website:
[Decision rendered by the Court on July 22, 2025 - This decision relates to the costs awarded in my February 19, 2025 Order granting the Canadian National Railway Company’s (CN) motion and striking out Via Rail Canada’s (VIA) application for judicial review.
For the reasons that follow, I am awarding a lump sum of $512,038.08 in favour of CN. (CN had requested lump sum costs, amounting to 38% of costs incurred, in the amount of $735,621.43, including (a) $657,598.08 in lawyer fees (representing 50% of CN’s alleged costs) and (b) $78,023.35 in alleged disbursements.)
(In a filing on March 31, 2025 CN's contended that it had incurred $1,393,219.50 in costs responding to VIA Rail Canada Inc.’s Application, which was found to be without any possibility of success and suffering from an obvious fatal flaw. The legal fees incurred by CN related to two motions brought within VIA’s Application. The first motion was an injunction brought by VIA, which sought to stay CN’s decision to issue restrictions on certain VIA train operations in the interest of public safety. The second was a jurisdiction motion brought by CN. CN was ultimately successful on its jurisdiction motion, striking VIA’s Application in its entirety without leave to amend. CN is without question the successful party in this proceeding.)
Filings with the Court from both CN and VIA's legal teams ensued over the summer. VIA appealed the costs on August 1. CN responded on October 3, in turn challenging the amount of legal costs to be received from VIA. The matter is to be heard in Federal Court in Ottawa on October 22, 2025.
As part of its costs submissions, CN filed a Bill of Costs. Table 1 below reproduces the amounts claimed for legal fees as well as the totality of the corresponding descriptions submitted in the Bill of Costs to justify the reasonability of those fees:
* * * * *
Counsel for VIA Rail confirmed that VIA Rail Canada shall not be appealing the order issued on February 19, 2025, striking its application for judicial review in this matter.
It's over. In Federal Court, but not Quebec Superior Court:
VIA accuses Canadian National of trying to exclude it from its rail network.
The Crown corporation is asking the Quebec Superior Court to rule on an injunction application. Between Quebec City and Montreal, there are 65 crossings subject to CN-imposed speed reductions. These allegations have not yet passed the test of the courts. CN has not commented on the content of VIA's motion, saying it was a matter of rail safety and pedestrian safety.
VIA and CN have been before Federal Court since last November. In February, the court concluded that it did not have the jurisdiction to rule on the issue. This prompted VIA Rail to turn to the Quebec Superior Court, which has not yet heard the dispute. VIA and CN have been battling this issue in Federal Court since last November. On February 19, the court concluded that it did not have the jurisdiction to rule on the issue. This prompted VIA to turn to the Quebec Superior Court, which has not yet heard the dispute.
Thanks to Bernie Geiger for assistance with this post.
Running extra...
The anonymity of reddit sometimes works. On reddit, you might be stuck with a dumb pseudonym like Blushing-Avocado1234 or Rapido-Yuckygreen6789 or some other tragedeigh to trade any day. There's probably a way to buy your way out of such a handle, but I'm just going with what they gave me. Some people have got me figured out [the avatar probably gives it away]. Much appreciated:
The anonymity of image manipulators gave us this bit of digital sleight-of-hand. VIA not only takes advantage of the mountain skyline, but also a former Skyline photo for the artist's impression in the RFQ for their LDRR fleet. Somebody burnt the midnight oil photoshopping this one!
Late Night Hobbies has some great-looking kits! This one really caught my eye:
This was fun to watch! Windsor Model Railroad Club ride around! Looked for, but didn't find, my favourite structure Walthers Red Wing Milling Co. Unusual or a club layout.
