Date: 20001218
Docket: A-531-99
Ottawa, Ontario, Monday, December 18, 2000
CORAM: DÉCARY
| LÉTOURNEAU |
| NOËL, JJ.A. |
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Appellant
AND:
CITY OF SAINT-PIERRE; CITY OF MONTRÉAL-OUEST
Respondents
JUDGMENT
The appeal is dismissed with costs.
| "Robert Décary" |
| J.A. |
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001218
Docket: A-531-99
CORAM: DÉCARY
| LÉTOURNEAU |
| NOËL, JJ.A. |
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Appellant
AND:
CITY OF SAINT-PIERRE; CITY OF MONTRÉAL-OUEST
Respondents
Hearing held in Montréal, Quebec on Tuesday, November 28, 2000
Judgment rendered in Ottawa, Ontario on Monday, December 18, 2000
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRING: LÉTOURNEAU J.A.
NOËL J.A.
Date: 20001218
Docket: A-531-99
CORAM: DÉCARY
| LÉTOURNEAU |
| NOËL, JJ.A. |
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Appellant
AND:
CITY OF SAINT-PIERRE; CITY OF MONTRÉAL-OUEST
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This appeal concerns the jurisdiction of the National Transportation Agency ("the Agency") under section 101 of the Canada Transportation Act, S.C. 1996, c. 10 ("the 1996 Act") to hear and determine an application for apportionment of costs for work previously performed. The Agency, in Decision No. LET-R-122-1999 dated April 27, 1999, held that it had such jurisdiction. The Canadian National Railway Company ("CN") was given leave to appeal this decision by this Court.
The facts
[2] This case is rather unusual and, to be comprehensible, must be situated in its context.
[3] On May 13, 1959, the Board of Transport Commissioners for Canada authorized the construction of the Saint-James viaduct and apportioned the construction costs among the various parties. The Board's order stipulated that the viaduct's maintenance costs would be assumed half by the City of Saint-Pierre and half by the City of Montréal-Ouest ("the Cities").
[4] On April 10, 1979, the Canadian Transport Commission apportioned the costs of restoration of the overpass between CN and the Cities, CN assuming thirty percent and the Cities seventy percent. The Commission specified that this apportionment applied "[Translation] only to the permanent and provisional repair and consolidation work" ordered in 1978 and that after the completion of the work the two Cities should "[Translation] bear the costs of maintaining the work in the proportions prescribed" by the order of May 13, 1959. This apportionment had been made before the work was commenced.
[5] In 1994, there was a perceived need to restore the viaduct and the Cities informed CN of the need to do some work. The preliminary studies began in 1994 and on May 18, 1994, CN was notified of the nature of the work. On November 2, 1994, CN said that in its opinion "[Translation] the proposed work is maintenance work that would in no way alter the geometrical, operational or structural characteristics of the bridge and is largely necessitated by the normal wear and tear of the materials...." CN concluded that consequently it need not contribute to the cost of the work, which did not constitute reconstruction.
[6] On November 10, 1997, the Cities informed CN that the plans for the work were finally competed and that the decision had been made "[Translation] to proceed with the complete restoration of the Saint James Viaduct in 1998". The letter added:
| [Translation] |
| We are now completing the financial set-up for the project and to this effect we request the participation of Canadian National in assuming a portion of the restoration work, which is estimated at $1,500,000. You will appreciate that the size of this sum is warranted by a complete restoration of the structure. |
| As a rough guide, the Canadian Transportation Commission, through order R-28674, had jurisdiction over the matter during the last major restoration in 1978, and it fixed the apportionment of the costs at 70% for the municipalities and 30% for CN. |
| [A.R., at p. 119] |
[7] CN did not respond to this letter. However, it was informed of the developments and its representatives attended some meetings in which the question of the work was discussed.
[8] On April 1, 1998, some drawings and specifications were prepared. A copy of these drawings and specifications was subsequently sent to CN.
[9] The work was completed in the summer of 1998 and on September 25, 1998, the Cities filed with the Agency an "[Translation] application for apportionment of the costs of the work", which were then assessed at some two million dollars. The application quickly recounts the background of the case. I reproduce here paragraphs 6 and 12 of the application:
| [Translation] |
| 6.- The orders rendered so far have not defined the notion of maintenance work, so at present the parties are not agreed on the apportionment of the costs between the reconstruction work and the repair work. |
| 12.- Under the powers assigned to the Agency by the Canada Transportation Act, which allow it to settle disputes between the railway companies and highway administrations, the Applicants are filing this application and are fully prepared to provide the Agency with any additional document or information. |
| [A.R., at pp. 67-68] |
[10] On March 11, 1999, CN filed a "motion" that it asked be decided without an oral hearing, in which it asked that the Agency declare itself without jurisdiction, essentially on the ground that under section 16 of the Railway Safety Act, R.S.C. 1985 (4th Supp.), c. 32, as it then read, the Agency had jurisdiction only in regard to applications filed prior to the commencement of the work. The Agency dismissed CN's motion, hence this appeal.
The relevant legislation
[11] Section 101 of the Canada Transportation Act:
| 101.(1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or utility crossing may be filed with the Agency. (2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct or maintain the crossing, or apportioning the costs, as provided in the agreement. (3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing. (4) Section 16 of the Railway Safety Actapplies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing. (5) This section does not apply in any circumstances where section 102 or 103 applies. |
| 101.(1) Toute entente, ou toute modification apportée à celle-ci, concernant la construction, l'entretien ou la répartition des coûts d'un franchissement routier ou pardesserte peut être déposée auprès de l'Office. (2) L'entente ou la modification ainsi déposée est assimilée à un arrêté de l'Office qui autorise la construction ou l'entretien du franchissement, ou qui répartit les coûts afférents, conformément au document déposé. (3) L'Office peut, sur demande de la personne qui ne réussit pas à conclure l'entente ou une modification, autoriser la construction d'un franchissement convenable ou de tout ouvrage qui y est lié, ou désigner le responsable de l'entretien du franchissement. (4) L'article 16 de la Loi sur la sécurité ferroviaires'applique s'il n'y a pas d'entente quant à la répartition des coûts de la construction ou de l'entretien du franchissement. (5) Le présent article ne s'applique pas dans les cas où les articles 102 ou 103 s'appliquent. |
Section 16 of the Railway Safety Actin force in March 1999:
| 16. (1) Where the proposing party in respect of a proposed railway work and each other person who stands to benefit from the completion of the work cannot agree on the apportionment between them of the liability to meet the construction, alteration, operational or maintenance costs in respect of that work, the proposing party or any of those persons may, if no right of recourse is available under the Railway Actor the Railway Relocation and Crossing act, refer the matter to the Agency for a determination. (2) A reference to the Agency under subsection (1) shall be made by notice in a form prescribed by the regulations made under subsection (5), and that notice shall be accompanied by such information relating to the proposed railway work as is prescribed by those regulations. (3) The Agency may, in its discretion, by notice sent to the person referring a matter or to any person who might have referred a matter, require that person to give the Agency, within such period as it specifies in the notice, such further information relating to actual or anticipated construction, alteration, operational and maintenance costs in respect of the railway work, or benefits arising from the completion of the work, as the Agency specifies in the notice. (4) Where a matter is referred to the Agency under subsection (1), the Agency shall, having regard to any grant made under section 12 or 13 in respect of that matter, the relative benefits that each person who has, or who might have, referred the matter stands to gain from the work, and to any other factor that it considers relevant, determine the proportion of the liability for construction, alteration, operational and maintenance costs to be borne by each person, and that liability shall be apportioned accordingly. . . . |
16. (1) Faute de recours prévu sous le régime de la Loi sur les chemins de fer ou la Loi sur le déplacement des lignes de chemin de fer et les croisements de chemin de fer, le promoteur et tout bénéficiaire des installations ferroviaires une fois terminées peuvent saisir l'Office de leur désaccord sur leurs obligations en ce qui concerne le coût de réalisation des travaux et les frais d'exploitation et d'entretien des installations réalisées. (2) La saisie s'exerce par avis rédigé en la forme déterminée par règlement de l'Office et accompagné des renseignements qui y sont prévus sur les installations ferroviaires en cause. (3) À son appréciation, l'Office peut, par avis adressé à toute personne qui l'a saisi ou qui aurait pu le faire, obliger celle-ci à produire, dans le délai qu'il y fixe, les renseignements supplémentaires spécifiés dans l'avis et relatifs aux frais de réalisation véritables ou prévus à l'égard de ces travaux, aux frais d'exploitation et d'entretien des installations réalisées ou aux avantages découlant de cette réalisation. (4) L'Office détermine la quote-part de chacun à l'égard des frais de réalisation, d'exploitation et d'entretien en tenant compte de la subvention accordée, le cas échéant, au titre des articles 12 ou 13, des avantages respectifs que retirerait des installations la personne qui l'a saisi ou qui aurait pu le faire, et de tout point qu'il juge utile. Les obligations à l'égard de ces frais sont réparties conformément à la décision de l'Office. . . . |
The standard of review
[12] This Court has had occasion, quite recently, to go over the background of the legislation affecting the Agency and its predecessors (see Canadian National Railway Company v. Brocklehurst, A-537-99; Canadian National Railway Company v. Taylor, A-729-99; Norfolk Southern Railway Company v. Taylor, A-741-99; an unreported judgment rendered on December 7, 2000) and to hold that the standard of review applicable to a question of pure jurisdiction was that of correctness. The issue in that case was which body, the Agency or the courts of ordinary jurisdiction, had jurisdiction to determine issues of nuisance such as noise and vibrations.
Jurisdiction of the Agency
[13] CN's argument, that subsection 101(4) of the 1996 Act incorporates the conditions under which subsection 16(1) of the Railway Safety Actapplies and consequently necessitates that the application be filed prior to the commencement of the work, does not convince me. What subsection 101(4) says is that if the conditions of application (namely, the lack of an agreement as to the apportionment) are fulfilled, "a person" ("la personne" in the less precise French text) who has been unsuccessful in negotiating an agreement (see subsection (3)) has the right to apply to the Agency for apportionment in the same capacity as if he or it were a "proposing party" within the meaning of subsection 16(1). Subsection 101(4) is, in reality, the clause that triggers (if I may put it that way) the Agency's jurisdiction over apportionment in the cases contemplated by section 101, as is subsection 16(1) in those cases contemplated by Part I of the Railway Safety Act.
[14] In short, once subsection 101(4) says that section 16 applies, there is no further need to qualify under subsection 16(1) in order for the Agency to exercise its jurisdiction over the apportionment.
[15] To conclude otherwise would be to give the word "person" in section 101 the limited meaning of "proposing party", which Parliament did not do and which would probably render this section pointless. The same "person" is contemplated in each of the subsections of section 101 -- the English text leaves no doubt about that -- and to adopt CN's interpretation would mean that if the person contemplated in subsection 101(4) is the "proposing party", the same applies to the other three subsections of that section.
[16] To conclude otherwise would also mean considering a new provision, section 101 of the 1996 Act, which applies to the particular context of road crossings or utility crossings, tantamount to an existing provision, section 16 of the Railway Safety Act, which is simply the procedural vehicle chosen by Parliament for the purposes of implementing Part I of the Railway Safety Act, which applies to the general field of "railway work" and contemplates a "proposing party". The latter, according to the definition of this word in subsection 4(1) of the Railway Safety Act, "in relation to a proposed railway work, whether involving the construction of a new railway work of the alteration of an existing railway work, means the person proposing, whether voluntarily or by virtue of a requirement imposed by or under another Act, to undertake that construction or alteration or to cause that construction or alteration to be undertaken" (my emphasis).
[17] I do not know and no one has told us why section 101 applies only to road and utility crossings. What is certain, however, is that section 101 creates a special regime focussed on a voluntary agreement, while Part I of the Railway Safety Actcreates a general regime focussed on a unilateral promotion. To adopt CN's interpretation would mean incorporating within the body of section 101 not only section 16 but the entire Part I of the Railway Safety Act, which extends from section 7 to section 17 inclusive. But it is not Part I to which subsection 101(4) refers, it is section 16 alone.
[18] Consequently, in so far as CN seeks to incorporate in subsection 101(4) a condition as to time (namely, that the application must be filed prior to the commencement of the work) that is said to be imposed by subsection 16(1), this argument must fail. Section 16 must be read in modified form as the circumstances require.
[19] I note in passing that since the impugned decision in the case at bar, subsection 16(1) has been amended by section 10 of chapter 9 of the Statutes of Canada 1999, and now says that the application may be presented "before or after construction or alteration of the work begins".
[20] A further submission by CN is more serious, it seems to me. Section 101, by its own terms and irrespective of section 16, covers only agreements dealing with forthcoming work. Thus subsection 101(2) states that the agreement, once filed, becomes an order of the Agency "authorizing" the construction or maintenance and subsection 101(3) states that failing an agreement the Agency may "authorize" the construction or specify who shall do the maintenance.
[21] Section 101 could certainly be so construed. However, it can be construed otherwise. Subsection 101(1) is addressed to "an agreement" relating to the construction, maintenance or apportionment of the costs and subsection 101(4) specifically refers to the lack of an agreement relating to the apportionment of the costs of the construction or maintenance. An agreement within the meaning of section 101 may therefore be limited to the apportionment of the costs, and there is nothing in principle to prevent such an agreement from being entered into after the commencement of the work. Moreover, subsection 101(1) also covers "an amendment to" an agreement, which suggests that the Agency's jurisdiction is not frozen in time. Once the purpose of the section is to encourage the execution even of agreements that cover only the apportionment of the costs, the Act relies on the intention of the parties and this is not limited in time.
[22] Moreover, it is quite conceivable, and this case could be an illustration thereof, that over the years the costs of maintenance of a crossing so alter that a reapportionment is necessary in all fairness to the parties in question. Why deprive the Agency of jurisdiction in such circumstances?
[23] Similarly, what about the apportionment of the construction or maintenance costs that were incurred in emergency situations? To force some towns or a railway company that did not agree on the apportionment of the costs to await the Agency's approval before undertaking the work makes little sense and yet that is where the rigid interpretation proposed by CN would take us.
[24] Clearly, section 101, as worded, leaves something to be desired. However, it does allow the interpretation that the Agency gave it, and that is the interpretation I adopt since it allows the Agency greater latitude in the exercise of a significant jurisdiction that survived deregulation: the power to determine the apportionment of the costs of repair or maintenance in the event of a disagreement.
[25] Moreover, this interpretation given by the Agency on April 27, 1999, which is consistent with the one it had given on February 15, 1999 in file no. 57-R-1999, which also involved CN, has the advantage of giving section 101 of the 1996 Act, in regard to the date of filing of an application for apportionment, the same meaning as the one subsection 16(1) of the Railway Safety Actnow has following the amendment I referred to earlier. This amendment was assented to on March 25, 1999 and came into force on June 1, 1999.
[26] Finally, CN argues that the apportionment application was based not on section 101 but on section 16 and that the Cities, to the degree they claim that the restoration work on the viaduct is reconstruction, should have given the necessary notice and obtained the approval of the Minister before undertaking it, as is required by Part I of the Railway Safety Act.
[27] On the first point, the Agency could, in the exercise of its jurisdiction, assess the nature and basis of the application it had received. That is an area in which this Court should not intervene.
[28] On the second point, assuming it is correct that Part I of the Railway Safety Actapplies to a portion of the work that was undertaken, it would be up to the authorities concerned to regularize the situation and to the Agency, when it considers the apportionment of the costs, to draw the consequences, if any, of this defect if defect there were.
[29] The Court, in this case, is determining only that the Agency has jurisdiction to receive and determine the application the Cities filed with it even if the work was completed. The Court is not determining whether the Cities are entitled to an apportionment of the costs. Nor is it determining the appropriate distribution of this apportionment if there should be one.
Disposition
[30] I would therefore dismiss the appeal with costs to the two respondent Cities.
| "Robert Décary" |
| J.A. |
"I concur"
Gilles Létourneau J.A.
"I concur"
Marc Noël J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: A-531-99 |
| STYLE: CANADIAN NATIONAL RAILWAY CO. |
and
CITY OF SAINT PIERRE ET AL.
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 28, 2000 |
REASONS FOR JUDGMENT BY DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU AND NOËL JJ.A.
DATED: December 18, 2000
APPEARANCES:
William McMurray FOR THE APPELLANT
Claude Céré FOR THE RESPONDENTS
| CITY OF SAINT-PIERRE; CITY OF MONTRÉAL-OUEST |
Véronique Joly
Ron Ashley FOR THE RESPONDENT
| NATIONAL TRANSPORTATION AGENCY |
SOLICITORS OF RECORD:
Canadian National
Montréal, Quebec FOR THE APPELLANT
Laurier, Céré, Couturier & Chisogne
Lasalle, Quebec FOR THE RESPONDENTS
| CITY OF SAINT-PIERRE; CITY OF MONTRÉAL-OUEST |
National Transportation Agency
Hull, Quebec FOR THE RESPONDENT
| NATIONAL TRANSPORTATION AGENCY2 |