Part of the Agency's mandate is to help resolve disputes between railway companies and other parties, or between railway companies.
The Agency investigates complaints and applications on the following topics:
rail noise and vibration;
transfer and discontinuance of railway lines;
running rights and joint track usage;
level of service;
public passenger service; and
incidental charges, such as demurrage.
In most cases, railway companies and other parties can, and usually do, resolve disputes by negotiating agreements themselves. When negotiations break down, the Agency can be asked by one or both parties to assist, through facilitation or mediation, or to deal with a complaint through its formal adjudicative process.
An additional resolution mechanism is final offer arbitration, used to settle rate and service disputes between a shipper and a carrier. Final offer arbitration is administered by the Agency and conducted by an independent arbitrator, who will select either the final offer of the shipper or the carrier. In 2010-11, the Agency received one final offer arbitration request, compared to two the year before.
The Agency received a mandate from Parliament in 2007 to resolve disputes relating to railway noise and vibration. The Agency has since identified and addressed gaps in its expertise in this very specialized and technical area.
Based on the advice of the Agency's Rail Noise and Vibration Technical Advisory Committee, a technical study was also commissioned to identify rail noise measurement methodologies and standards. Once finalized, it will be posted on the Agency's Web site and will help in the assessment of the level and impacts of railway noise.
Railway noise and vibration complaints present some specific challenges for the Agency, as they are usually filed by multiple parties or individuals representing community interest groups and often the complainants are not familiar with the Agency's formal quasi-judicial process.
The Agency is committed to using innovative, facilitative approaches to resolve disputes and finds these types of approaches provide sustainable solutions when parties are working together to develop their own solutions. For example, the Agency found that appointing an inquiry officer to meet with both sides in a dispute and report back to the Agency panel was a highly effective way to achieve a timely resolution.
In 2010-11, the Agency resolved 26 rail dispute cases.
9 were resolved through facilitation;
6 were resolved through mediation; and
11 were resolved through formal adjudication.
4 disputes were withdrawn; and
12 cases are currently in progress.
First collaboration, then adjudication
In 2008, the Agency received a complaint from the Quayside Community Board (QCB) related to noise and vibrations from the operations of four railways at the New Westminster Yard in New Westminster, B.C.
Following successful mediation, the parties arrived at a settlement; however, in April 2010, the QCB filed a second complaint stating that the mediated solution had failed. The QCB asked the Agency to issue a guideline restricting operations in the rail yard between certain hours.
Three railways – the Canadian National Railway Company (CN), BNSF Railway Company and Southern Railway of British Columbia – responded that the Agency did not have jurisdiction because a valid agreement had already been reached. The Agency accepted the QCB's request for formal adjudication but noted that it would be put on hold should the parties, at any point, wish to reenter into a mediation process.
CN has appealed the Agency's Decision to hear the QCB's case to the Federal Court of Appeal. A hearing has yet to be scheduled.
New Guides to Environmental Assessments
In June 2010, the Agency released new guides for environmental assessments of rail infrastructure projects. They include the one-of-a-kind Environmental Self-Assessment Handbook for Rail Infrastructure Projects and an Environmental Assessment Scoping Document.
The guides outline:
filing requirements for an environmental assessment;
other federal authorities who can become involved along with the Agency in an assessment;
the importance of public participation and other factors in a typical assessment; and
information on environmental assessment scoping documents.
Laying new railway tracks of any length has the potential to affect the environment through which it is to run. The Agency is empowered by the Canadian Environmental Assessment Act to gauge the impact of new construction on the environment, and to either issue or withhold permission to proceed based on the results of that assessment.
In 2010-11, the Agency was involved in 18 ongoing environmental assessment processes for proposed rail line construction projects, and issued one Decision giving authority to construct railway lines.
Another 47 environmental assessment processes for projects such as road and utility crossings required Agency involvement.
In 2010-11, the Agency processed 108 agreements filed by parties who had successfully conducted their own negotiations related to crossings. These agreements became orders of the Agency. Where no agreement could be reached, the Agency was called upon by the parties involved to assist them in reaching a fair and equitable resolution.
The Agency issued 1 Decision on crossings through its formal adjudication process, and resolved a further 4 cases through facilitation and 1 through mediation.
5 concerned private or road crossings; and
1 concerned utility crossings.
Level of service: Grain loading sites
In August 2010, the Agency ruled on a complaint from a Saskatchewan agricultural producer alleging that the planned delisting of certain grain loading sites in Western Canada by CN constituted a breach of their level of service obligations under the Canada Transportation Act.
Although the initial complaint covered 53 grain loading sites, the Agency determined that, without additional complaints by other affected farmers, the case could only concern the impact of the delisting of the one site affecting the complainant.
The Agency found that the Act's level of service provisions do not oblige railway companies to maintain and operate all existing or requested producer car loading sites. Requiring railway companies to do so would render meaningless another provision of the Act under which sidings may be delisted – a process which CN followed for all 53 sites.
A second complaint from an agricultural producer association was dismissed because the complainant did not file information that was requested by the Agency.
Status of limited distribution tariffs
In summer 2010, the Agency initiated consultations in order to gain a better understanding of limited distribution tariffs – a type of agreement between railway companies and shippers that is becoming more widespread but that is not provided for under the Canada Transportation Act. The Agency is soliciting the views of interested parties in order to gain a better understanding of the current and future use of limited distribution tariffs and the role they are playing in the marketplace, and whether they should be permitted within the existing legislative regime. The Agency has now received all submissions and is planning to issue a report on its findings in summer 2011.