Dockets:
A-286-16
A-461-16
A-113-17
Citation: 2017 FCA 86
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CORAM:
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STRATAS J.A.
NEAR J.A.
DE MONTIGNY J.A.
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BETWEEN:
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CANADIAN
NATIONAL RAILWAY COMPANY
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Appellant
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and
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EMERSON MILLING
INC. AND CANADIAN TRANSPORTATION AGENCY
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Respondents
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REASONS FOR
JUDGMENT
STRATAS J.A.
[1]
Canadian National Railway Company appeals from
three decisions of the Canadian Transportation Agency dated March 4, 2016
(decision CONF-1-2016), August 26, 2016 (decision CONF-11-2016), and January
20, 2017 (decision CONF-2-2017), all in Case No. 15-03518. The appeals are
court files A-286-16, A-461-16 and A-113-17 respectively.
[2]
These matters were set down to be heard
together. At the outset of the hearing before us, in response to the Court’s
suggestion, the parties agreed that the three appeals should be consolidated. I
so order. The style of cause for the consolidated appeals appears on this
document. These reasons shall be filed in each court file.
[3]
Of the consolidated appeals, the first one,
A-286-16, is the key one. The Agency determined that Agency decided that
Canadian National owed Emerson service at four locations under the Canada
Transportation Act, S.C. 1996, c. 10. Canadian National submits that the
Agency committed procedural unfairness and otherwise rendered an unreasonable
decision. The unreasonableness is said to stem from the Agency’s failure to
give effect to the doctrine of res judicata and its unacceptable
interpretation of the relevant provisions of the Act.
[4]
For the reasons that follow, I would dismiss the
appeal in A-286-16. As Canadian National properly concedes, as a result of the
dismissal of the appeal in A-286-16, the other appeals must also be dismissed.
A.
Background
facts
[5]
Emerson ships oats on Canadian National’s rail
network. Its facility does not connect to any portion of the network. It is
located eight kilometers from Canadian National’s track, known as RD-47.
[6]
For a quarter of a century, Emerson moved its
shipments to the RD-47 track and Canadian National accepted Emerson’s shipments
there—all without any formal agreement with Canadian National regarding the use
of RD-47. Then, in March 2013, Emerson and Canadian National entered into a
temporary licence agreement for the use of RD-47. It was to expire in July
2015. A new agreement was not reached.
[7]
Just before the agreement expired, Emerson filed
with the Agency an application complaining that Canadian National was refusing
to provide it with service after July 2015, contrary to sections 113-116 and
127 of the Act. Emerson alleged that Canadian National’s refusal to provide
adequate and suitable accommodation for the receiving and loading of Emerson’s
traffic at the expiry of the temporary licence agreement was a breach of
Canadian National’s level of service obligations under the Act.
[8]
Broadly speaking, sections 113-116 provide that
when Emerson has “traffic offered for carriage,” Canadian National has a number
of obligations. In particular, and of relevance to this case, is paragraph
113(1)(a). It provides that “a railway company
shall…furnish…at all points of stopping established for that purpose, adequate
and suitable accommodation for the receiving and loading of all traffic offered
for carriage on the railway.”
[9]
In the decision giving rise to the appeal in
A-286-16, the Agency held that Canadian National was improperly denying service
to Emerson. The Agency identified four points of stopping at which a level of
service obligation could be owed to Emerson.
[10]
At the conclusion of its decision, the Agency
called for submissions on whether it was reasonable and practical for Canadian
National to provide adequate and suitable accommodation for the receiving and
loading of Emerson’s traffic at the four points of stopping and what Emerson’s
correlative obligations would be at each location. The Agency identified the
following factors as relevant to its determination (at paragraph 81):
● Can adequate and
suitable accommodation for the receiving and loading of Emerson’s traffic be
furnished at the point of stopping?
● Is
it reasonable, considering the operational constraints that may exist, for
Canadian National to furnish adequate and suitable accommodation for the
receiving and loading of Emerson’s traffic at the point of stopping?
● What,
if any, is Emerson’s correlative obligation with respect to its traffic at the
point of stopping?
[11]
In the end, after considering the parties’
submissions on these factors, the Agency found that accommodation could
reasonably be provided at two of the four points of stopping and that Canadian
National had breached its level of service obligations by refusing to load
Emerson’s traffic at these points of stopping. This decision has given rise to
appeal A-461-16.
[12]
Finally, the Agency called for further
submissions on the issue whether Emerson was entitled to the reimbursement of
expenses arising from the breach. After receiving those submissions, the Agency
awarded Emerson compensation for its expenses caused by Canadian National’s
improper denial of service. This decision has given rise to appeal A-113-17.
[13]
As mentioned above, Canadian National properly
concedes that the main appeal is file A-286-16 and that if it is dismissed,
the other appeals must also be dismissed.
B.
Analysis
[14]
In its notice of appeal, Canadian National
raises three grounds of appeal:
1. The Agency breached its
duty of procedural fairness by expanding the scope of the application filed by
[Emerson] by finding that four additional locations were “stopping points” at
which [Emerson] is potentially owed service.
2. The
Agency erred by failing to apply the doctrine of res judicata and
dismiss [Emerson’s] application as an abuse of process accordingly; and
3. The
Agency erred by determining that [Canadian National] owed service level
obligations to [Emerson] under the Act, despite the expiry of [Emerson’s]
commercial right to access [Canadian National’s] rail infrastructure.
[15]
This Court can only consider “questions of law” and “questions
of jurisdiction” in appeals under the Act: subsection 41(1) of the Act; Canadian
National Railway Company v. Emerson Milling Inc., 2017 FCA 79.
[16]
The first ground of appeal, procedural fairness,
can be entertained by this Court. In Canadian National, this Court
determined that procedural fairness falls under “questions
of jurisdiction” under subsection 41(1) of the Act.
[17]
The second ground of appeal is more problematic.
As stated in the notice of appeal, the issue was stated as one of mixed fact
and law involving the application of settled law/legal standards to the facts.
As explained in Canadian National, above, this is not a “question of law” within the meaning of subsection
41(1) of the Act. However, the memorandum of fact and law can be used to
construe the notice of appeal and gain
“a realistic appreciation” of the appeal’s “essential character”: Canadian National,
above, at para. 29. From Canadian National’s memorandum, we can see that it is
questioning whether the Agency properly stated the law concerning res
judicata. Thus, I am satisfied that there is a question of law here that
this Court can entertain.
[18]
The third ground of appeal resolves itself into
a question of statutory interpretation, which is a question of law that this
Court can consider.
[19]
I turn now to Canadian National’s three grounds
of appeal.
(1)
Procedural
fairness
[20]
Canadian National submits that the Agency
committed procedural unfairness by making an order that was broader than the
scope of the application Emerson placed before it. Canadian National alleges
that Emerson’s application was restricted to the RD-47 track. It says that
other means of access to its network—the other three points of stopped on
Canadian National’s network that the Agency ended up identifying—were not in
play during the proceedings.
[21]
I disagree. First, the application was not
restricted to the RD-47 track. Among other things, Emerson sought access to
Canadian National’s network “in any manner…that the
Agency deems expedient.” Canadian National was on notice regarding the
scope of the proceedings.
[22]
Further, during an application by Emerson for
interim relief, other means of access to Canadian National’s network were
discussed. Canadian National did not object that Emerson’s arguments were going
beyond the scope of the application. Other submissions made to the Agency
during the course of proceedings before it show that the application was not
restricted to the RD-47 track. Further, if during the proceedings Canadian
National felt that matters were going beyond the scope of the application, it
should have made an objection at the earliest opportunity: Irving
Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116, [2010] 2 F.C.R.
488; Re the Human Rights Tribunal and Atomic Energy Canada, [1986] 1 F.C.
103 at pages 107, 110-11 (C.A.).
[23]
In these circumstances, Canadian National cannot
be said to have been taken by surprise by the Agency’s decision which examined
possibilities other than the RD-47 track.
[24]
In the end, the Agency asked for submissions
concerning the practical feasibility of the four points of stopping it
identified and the parties’ obligations that would apply if the Agency
formalized, in an order, a particular point of stopping: see paragraphs 82-83
of the decision. Specifically, it identified three factors on this (see
paragraph 10, above, where they are quoted), and it asked the parties to
comment. This was an opportunity for Canadian National to adduce evidence and
make submissions to the effect that one or more of the points of stopping could
not or should not be used for Emerson’s traffic, was otherwise unreasonable for
that use or should be subject to conditions. Canadian National availed itself
of that opportunity.
(2)
Res judicata
[25]
As mentioned above, in the proceedings giving
rise to appeal A-286-16, Emerson sought an order from the Agency that Canadian
National provide service to it at the RD-47 track or “in
any manner…that the Agency deems expedient.” The Agency granted this
relief to Emerson.
[26]
Canadian National submits that the Agency was
barred from doing so by the doctrine of res judicata, one of the
doctrines that forbids relitigation. Canadian National submits that in earlier
proceedings before the Agency, Emerson asked for this same relief and the
Agency refused it: see the Agency’s decision in Emerson Milling, dated
July 10, 2015 (Letter Decision No. 2015-01-10, Case No. 14-06408).
[27]
In the decision now under appeal, the Agency
acknowledged that Emerson had indeed raised this issue in the earlier
proceeding but the Agency did not decide it. Therefore, in its view, the
doctrine of res judicata did not apply. Res judicata applies to
bar relitigation of proceedings that have been decided.
[28]
Canadian National takes particular issue with
the Agency’s statement in its decision (at paragraph 26) that “[r]es judicata applies to prevent the
re-litigation of causes of action or issues previously decided; it does not
prevent an applicant from requesting the same remedy in the context of a
different complaint, even against the same respondent.” It submits that
this is an error of law.
[29]
The wording used by the Agency is somewhat
loose. Viewed in context, what the Agency was trying to say was that a
genuinely fresh cause of action against the same party can give rise to a
remedy and is not barred by res judicata. This is a correct statement of
law.
[30]
In my view, the determinative question is the
reasonableness of the Agency’s conclusion that it had not dealt with this issue
in the earlier proceedings. If it is reasonable, then there can be no res
judicata: the matter has not already been decided.
[31]
I see no grounds for setting aside the Agency’s
conclusion. Its construction of those earlier proceedings and its assessment of
what the earlier decision dealt with—a question of fact—is a matter on which it
is entitled to deference under the reasonableness standard. Even if the
standard were correctness, I would agree with the Agency’s construction of the
earlier proceedings. Although the issue was placed before the Agency, the
Agency did not deal with the issue in any way. Its reasons are entirely silent
on the issue. Further, the Agency’s determination of the issues in the earlier
proceedings did not decide the issue in any way, impliedly or necessarily. The
Agency was correct in deciding that the doctrine of res judicata does
not apply.
(3)
The statutory
interpretation issue
[32]
Canadian National submits that “[t]he Agency erred by determining that [Canadian National]
owed service level obligations to [Emerson] under the Act, despite the expiry
of [Emerson’s] commercial right to access [Canadian National’s] rail
infrastructure.” Essentially, Canadian National submits that the Agency
went beyond the proper scope of its powers under paragraph 113(1)(a),
properly construed. In doing so, it made an unreasonable decision.
[33]
The parties agree that the standard of review on
this issue is reasonableness. I agree. This Court so held in Canadian
National, above at paragraphs 59-62. Reasonableness
is presumed to be the standard of review of administrative decision-makers’
interpretations of provisions in “[their] own
[legislation] or [legislation] closely connected to [their] function, with
which [they have] particular familiarity,” i.e.,
their home statute: Alberta (Information and Privacy Commissioner) v.
Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 34; Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 at para. 54. This presumption applies even where Parliament has
enacted full, unrestricted rights of appeal: Edmonton (City) v. Edmonton
East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R.
293.
[34]
Overall, I find that the Agency’s decision was
reasonable.
[35]
First, the Agency proceeded upon an acceptable
methodology. It asked itself whether Canadian National has level of service
obligations concerning Emerson’s traffic. This particular question was not
overly contentious before the Agency and, to some extent, is answered by
previous decisions of the Agency.
[36]
Then the Agency asked itself at what locations
level of service obligations are owed. This required it to interpret paragraph
113(1)(a). As mentioned above, this paragraph provides that “a railway company shall…furnish…at all points of stopping
established for that purpose, adequate and suitable accommodation for the
receiving and loading of all traffic offered for carriage on the railway.”
[37]
Then the Agency appropriately cited Canada
Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 in support
of the proposition that it must look at the text, context and purpose of this
statutory provision. In looking at the context of this statutory provision, it
took note of its broad remedial powers, powers that, in its view, shed light on
the meaning of “points of stopping established for that
purpose.” These powers, found in subsection 116(4) of the Act, are the
ability to order that “specific works be constructed or
carried out,” “property be acquired,” “cars, motive power or other equipment be allotted,
distributed, used or moved as specified by the Agency,” and “any specified steps, systems or methods be taken or followed
by the company.” The Agency concluded, appropriately, that in suitable
circumstances, where reasonable, “the railway company’s
property and equipment may be used to discharge its level of service
obligations” (at paragraphs 66 and 76-81).
[38]
The Agency continued its analysis, noting the
competing considerations that influence the interpretation of paragraph 113(1)(a)
(at paragraphs 67-68):
It is [Canadian National’s] position
that it establishes, with respect to its own property, a point of stopping.
This implies that, with respect to points of stopping on a railway company’s
property, there are no level of service obligations except the ones accepted by
that company and that the company could unilaterally decide to no longer
provide service at a point of stopping on its property, regardless of the
traffic being offered or established patterns of service.
While a railway
company must have the option to reconfigure its infrastructure and service
offerings from time to time, the level of service provisions allow recourse to
shippers who might be unduly affected by such a change or who may feel that it
is arbitrary or unbalanced. The entire logic of sections 113 to 116 of the [Canada
Transportation Act] rests on the ability of an interested party to question
the railway company’s actions and its rationale for not meeting its
obligations, which is, more often than not, expressed in logistical terms such
as congestion, infrastructural changes or constraints and efficiency of service.
As an expert tribunal, the Agency will reflect on the claims made by both
parties.
[39]
The Agency’s reasons must be seen in light of
the record before it: Newfoundland and Labrador Nurses' Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708. As a regulatory agency that deals over time with a limited set of
regulatees, its record often extends to “past
proceedings and regulatory experience” and this “can
form part of the data the administrative decision-maker can draw upon in making
a decision”: Bell Canada v. 7262591 Canada Ltd. (Gusto TV), 2016
FCA 123 at para. 15. Thus, some of the rationales for a regulator’s decision
can be seen in other relevant decisions it has made.
[40]
In the decision under appeal, the Agency
referred (at paragraph 68) to “[t]he entire logic of
sections 113 to 116 of the [Canada Transportation Act]” as part
of the basis for its decision. It did not expand on this, though it is rather
evident in paragraphs 67-68 of its decision, quoted above, and its enumeration
of its remedial powers in paragraph 66 of its decision. But the Agency has
discussed this “entire logic” at length in
another recent decision, one that elaborates upon the purposes of sections
113-116 of the Act: see the Agency’s decision in Dreyfus, dated October
3, 2014 (Letter Decision No. 2014-10-03, Case No. 14-02100). This Court has
found this decision to be reasonable: Canadian National Railway
Company v. Dreyfus, 2016 FCA 232.
[41]
At paragraph 10 of Dreyfus, the Agency
noted that one of the purposes of sections 113-116 “is
to enable the Agency to establish the level of service, which, in a normal
competitive environment, would be expected to be set naturally by market
forces.” Thus, “the provisions are intended to
ensure that the level of service is not established solely on the basis of a
railway company’s interests and preferences, especially where railway companies
can exercise monopoly power over captive shippers.” The Agency concluded
that “an overly restrictive interpretation that does
not attain [these] objectives must be rejected.”
[42]
In Dreyfus, the Agency added (at paras.
14-15):
As a shipper remedy, one of the
purposes of section 113 of the [Canada Transportation Act] is to
counterbalance the monopoly or near monopoly power that a railway company may
exert with respect to certain shippers in some circumstances. To the extent
that monopoly power can be exerted, the railway company’s preferences will
overwhelm shippers’ preferences in terms of the overall car supply, supply of
motive power, delays, deployment of crews and other level of service issues. In
other words, it allows the railway company to impose its operational
preferences on shippers to meet its operational efficiency objectives and
maximize its own profit, even if this produces a suboptimal economic outcome
with respect to the industry it serves.
…
…[T]he level of service provisions
have been a robust part of the [Canada Transportation Act] and its
predecessors since before Confederation. They have been retained with little
alteration through numerous legislation reviews by Parliament. Many shippers
are captive to a single railway company and therefore lack bargaining power
either on pricing or on level of service or both. As Class 1 railway companies
rationalize their rail systems through discontinuance and abandonment, more
shippers become captive. The level of service provisions exist to ensure
suitable and adequate conditions for shippers, especially those who are captive
or do not have other viable economic alternatives due to the volumes and
distances involved.
According to the Agency, this is the primary
ill against which sections 113-116 of the Act exists to address.
[43]
In the case before us, the Agency concluded (at
paragraph 69):
The Agency finds that a point of
stopping [under paragraph 113(1)(a) of the Act], even on a railway
company’s property, is not established by the railway company when it enters
into an agreement that grants a party the right to access the railway company’s
property. That is to say the obligation is not contractual in nature. When
infrastructure exists on which trains can stop and have stopped, that location
is a point of stopping pursuant to paragraph 113(1)(a) of the [Canada
Transportation Act].
[44]
Canadian National submits that the requirement
that trains “have stopped” at a place does not
necessarily mean that, following the exact words of paragraph 113(1)(a),
there is a point of stopping “established for that
purpose.” Trains might have stopped at a place decades ago, but not in
the recent past.
[45]
I take Canadian National’s point that there may
be a case where the Agency will have to consider further the meaning of “have stopped” and ensure that its interpretation
sufficiently accords with the statutory requirement that the point of stopping
is “established for that purpose.” But this case
does not attract Canadian National’s concern. All four of the places that the
Agency identified as points of stopping are being used as points of stopping at
present. This is not a case where the Agency has identified a point of stopping
that has not been used for a long time.
[46]
Canadian National also submits that the words
quoted above (from paragraph 69 of the Agency’s decision) give a meaning to
paragraph 113(1)(a) that is far too broad. In its view, if the Agency is
correct, just about any place a train has ever stopped qualifies as a point of
stopping. It says that this imposes too great an obligation on Canadian
National to accommodate traffic offered for carriage.
[47]
I reject this submission. The submission fails
because Canadian National is viewing the Agency’s words, quoted above, in
isolation and is viewing them as the Agency’s comprehensive interpretation of
when to order that a carrier has improperly denied service. The Agency made
clear that its words should not to be taken in isolation. Just because there is
a “point of stopping” in accordance with this
definition does not mean that a carrier like Canadian National must accept
traffic for carriage at that place.
[48]
Instead, the Agency recognized that the words,
quoted above, are just the first step of its determination whether a carrier
must accommodate traffic at a particular place. The Agency made it clear that
the next step in its determination is to “consider
where (if anywhere) service should be provided, taking into account the level
of service obligations, in light of reasonableness, and the shipper’s
correlative obligation” (at paragraph 80).
[49]
The Agency’s reference to “reasonableness” is
key. The Agency recognizes that the obligations of the parties under sections 113-116
of the Act are not absolute but rather are “permeated
with reasonableness”: A.L. Patchett & Sons Ltd. v. Pacific Great
Eastern Railway Co., [1959] S.C.R. 271, 17 D.L.R. (2d) 449. For good
measure, the Agency specifically references Patchett at other places in
its decision: see paras. 44 and 76-79. As this Court noted in Canadian
National, above at paragraph 71, a decision of the Agency under sections
113-116 must reflect this concept in order to be reasonable. In other words, as
this Court put it in Canadian National at paragraph 71, “[i]n developing acceptable and defensible jurisprudence
concerning subsection 113(1) of the Act, the Agency must work within the
standards set by Patchett.”
[50]
In the next step of its determination whether a
carrier must accommodate traffic at a particular place, the Agency (at
paragraphs 81-83) called for submissions on the three factors mentioned above
at paragraph 10.
[51]
Canadian National does not take issue with these
factors. Nor could it. The factors allow the Agency to look at a broad range of
considerations concerning the appropriateness, practicality and fairness of
various possible points of stopping. They are an on-the-ground, practical
expression of the sorts of things that the Agency must consider in order to follow
the reasonableness standards set by the Supreme Court in Patchett. The
Agency has not committed itself to using these factors in all cases. Rather,
the three factors it identified in this case are those that, in its view, were
relevant to the particular circumstances of this case.
[52]
In assessing whether the Agency’s decision
passes muster under reasonableness review, I reiterate what this Court said in Canadian
National, above, at paragraphs 72-73:
Another context
colouring reasonableness review in this case is the nature of the Agency’s
decision and the nature of the Act. The Agency’s decision lies at the very
bullseye of its regulatory know-how and mandate, the very reason why Parliament
has vested the Agency with jurisdiction over the merits of cases like this and
has left us with just a reviewing role.
When the Agency interprets subsection
113(1), it legitimately draws upon its regulatory experience, its knowledge of
the industry and its expertise in the transportation sector, guided by the
standards set by Patchett, above. Provided the Agency adopts a
defensible interpretation of subsection 113(1) and a defensible methodology or
test for determining reasonable conduct, and provided it applies these things
in a manner that is alert and responsive to the evidence before it, this Court
must refrain from second-guessing. The reasonableness of the parties’ conduct
based on the particular facts disclosed by the evidentiary record—the factually
suffused merits of the case—is a matter very much within the ken of the Agency,
not us. See, by way of illustration and analogy, National Corn Growers Assn.
v. Canada (Import Tribunal), [1990]
2 S.C.R. 1324 at pp. 1347-48, 74
D.L.R. (4th) 449 and Council of Canadians with Disabilities v. VIA Rail
Canada Inc., [2007] 1 S.C.R. 650 at para. 104.
[53]
Overall, I conclude that the Agency’s decision
represents an acceptable and defensible interpretation of paragraph 113(1)(a)
of the Act in the context of the framework of sections 113-116 of the Act.
Based on a defensible assessment of the text, context and purpose of this
statutory provision, it suitably embodies the Supreme Court’s standards of
reasonableness in Patchett.
[54]
Canadian National emphasizes what it considers
to be the serious ramifications of the Agency’s decision. It says that the
Agency’s decision constitutes an expropriation of its property and part of its
business. In my view, this submission is overly extreme. The Agency’s order has
been made as part of the overall purpose of sections 113-116, discussed
above—to ensure that rail carriers do not use their ownership over their
network and their monopoly commercial power to harm shippers unduly, but to
ensure that the result accords with the reasonableness standards set out by the
Supreme Court in Patchett.
[55]
Emerson correctly points out that for decades
under this Act and its predecessors, level of service orders have been made
against carriers even though there is no lease, license or private siding
arrangements between the shippers and the carriers: Quebec City v. C.P.R.
(1942), 54 CRTC 342; Re M. Lorne Sheppard, [1991] NTAR 122; Re Louis
Hebert, [1992] NTAR 183; Re Terry Shewchuk et al., [1992] NTAR 191.
The Agency’s decision would also appear to be consistent with judicial
interpretations of the predecessors of these provisions: see, e.g., Grand
Trunk Ry. Co. v. Department of Agriculture of the Province of Ontario
(1910), 42 S.C.R. 557 per Davies J. Further, as mentioned above,
subsection 116(4) gives the Agency broad remedial powers to interfere with the
private interests, commercial interests and property of carriers. The Agency
can order “specific works [to] be constructed or
carried out,” “property [to] be acquired,”
“cars, motive power or other equipment [to] be
allotted, distributed, used or moved as specified by the Agency,” and “any specified steps, systems or methods [to] be taken or
followed by the company.” The Agency concluded, appropriately, that “the railway company’s property and equipment may be used to
discharge its level of service obligations” (at paragraph 66), as long
as that is consistent with the reasonableness standards in Patchett.
[56]
Canadian National says that no other shipper
will now enter into contracts with Canadian National to use its facilities.
Each will act the way Emerson has here. In my view, this is an in terrorem
argument not borne out by reality. Emerson correctly points out that there are
many commercial reasons why shippers and Canadian National may enter into
contracts.
[57]
As well, in its assessment of reasonableness
under Patchett, the Agency may find in a carrier’s favour and require
that a commercial arrangement be entered into as one of the terms of
recognizing a point of stopping or it may find that the shipper must engage in
other acts as part of its “correlative obligation with
respect to its traffic at the point of stopping.” Similarly, it may find
that existing commercial arrangements between the carrier and third parties render
use of a particular point of stopping unreasonable in the circumstances. This
very thing appears to have happened before: Stenen, dated November 7,
2000 (Decision No. 103-R-2000, file no. T7375-3/99-11). In this case, the
Agency found a point of stopping to be unreasonable due to, in part, an
existing private agreement between the carrier and a third party. Acceptance of
traffic at a neighbouring location was, in the circumstances, reasonable.
[58]
As mentioned above, Canadian National fairly
conceded that the other two appeals stood with this appeal (A-286-16). In other
words, the dismissal of the appeal in A-286-16 results in the dismissal of the
appeals in A-461-16 and A-113-17.
[59]
In any event, for completeness, I would add that
the Agency’s decisions giving rise to those appeals were subject to
reasonableness review owing to their discretionary, fact-based nature. I would
add that I am not persuaded that any grounds exist to cast into doubt the
reasonableness of those decisions.
C.
Proposed
disposition
[60]
Therefore, I would dismiss the appeals with
costs to Emerson. The parties have agreed that costs for all the appeals, taken
together, should be fixed in the amount of $3,000, all inclusive. To give
effect to this, I shall award the costs in A-286-16 and there shall be no costs
in A-461-16 and A-113-17. I would like to thank counsel for their able
submissions.
"David Stratas"
“I agree.
D. G. Near J.A.”
“I agree.
Yves de Montigny
J.A.”
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