Ottawa Ontario - VIA Rail Canada made an application for judicial review under sections 18 and 18.1 of the Federal Courts Act, one month after CN imposed its Crossing Supplement for VIA Venture Equipment on 11 Oct 2024.
 
The supplement stipulated that VIA's Siemens Venture trains were to reduce speed at 304 grade crossings throughout Ontario and Quebec.
 
This post highlights the course of legal action VIA has decided to pursue to mitigate the delays being caused to Venture-equipped trains by CN's actions.
 
VIA's application 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, Montreal, 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 obligate 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 11 Oct 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 11 Oct 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 12 Nov 2024.
 
On 22 Nov 2024 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 22 Nov 2024 letter from CN.
 
(In a letter dated 2 Dec 2024 CN objected to providing certified material.)
 
On 10 Dec 2024 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 22 Nov 2024.
 
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 1 May 2024.)
 
The same day, VIA was preparing an interlocutory motion.
 
CN responded on 11 Dec 2024.
 
The pace picked up once the case reached Ottawa.
 
On 11 Dec 2024 the parties were directed to provide the Court, before the end of the day on Thursday, 12 Dec 2024, with their availability for a brief case management videoconference on 16 or 17 Dec 2024.
 
The purpose of this videoconference is to discuss the order and timing of the anticipated motions.
 
On 12 Dec 2024 Judge Catharine Moore directed that a case management videoconference will be held at 14:00 on 16 Dec 2024 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 any letter on 13 Dec 2024 (sic) in advance of the case management conference.
 
Eric Gagnon.