CTA Home : Rulings : Interlocutory Decisions : 2002

Interlocutory Decisions : 2002

2002-01-23

LET-R-20-2002

File No. T 7375-3/01-8

This is further to Naber Seed and Grain Co. Ltd.'s (Naber) motion of January 8, 2002, wherein Naber is seeking an order from the Agency: i) precluding the Canadian National Railway Company (CN) from naming and/or calling any witnesses after January 11, 2002; ii) allowing Naber's legal representative to individually cross-examine each witness testifying on behalf of CN, including witnesses providing evidence as a panel; and, iii) requiring all witnesses to remain outside of the hearing room until they are required to be present for the purpose of testifying or being cross-examined.

This is also in reference to CN's letter of January 11, 2002 in which CN, as preliminary motions, requests that the Agency: i) summarily deny Naber's request for running rights on the ground that it is legally beyond that which can be granted by the Agency pursuant to the Canada Transportation Act (CTA), and, ii) compel Naber to produce further evidence substantiating that it suffered "substantial commercial harm" as a result of CN's alleged breach of its statutory service obligations for the complaint period.

NABER'S MOTION

i) Calling of additional witnesses

Positions of the parties

In support of its request that the Agency preclude CN from naming and/or calling any additional witnesses after January 11, 2002, Naber submits that in its letter of December 19, 2001, CN attempted to reserve the right to name and call witnesses after the deadlines provided by the Agency in Decision No. LET-R-492-2001. Naber alleges that the requirements of fairness, due process and natural justice require an order to prevent CN's attempt to ignore the Agency's direction.

In answer, CN submits that it is imperative to keep in mind that the Agency has the ultimate authority to control its own procedure. CN points out that in accordance with the Agency's previous procedural directions, CN has provided the Agency with a list of witnesses that it currently intends to present at the hearing, as well as witness statements detailing the evidence each witness will present. CN further points out that it will be filing the expert report of William Rennicke, on January 17, 2002, as prescribed in Agency Decision No. LET-R-492-2001.

Although the above witnesses are those that CN intends to present at the hearing, it states that if an issue arises which is presently unknown or unanticipated which otherwise justifies adding or substituting a witness, it would be inappropriate and procedurally unfair for the Agency to rigidly preclude CN from calling any further witnesses to address these issues. For CN, the parties should not be "handcuffed" from presenting relevant, probative evidence that may assist the Agency in its determination of the matters in issue.

In the opinion of CN, the Agency should approach a request made by either party to call additional witnesses on an individual and ad hoc basis, upon consideration of factors which include the relative importance of the evidence, the reasons for the party not identifying the witness earlier and whether the other party would be prejudiced by the admission of this evidence of the undisclosed witness. CN expresses the view that this approach, which has been consistently adopted by tribunals and courts, avoids any concerns of "trial by ambush" and at the same time provides the requisite flexibility for a party to adjust or respond to unanticipated issues.

Agency decision

In Decision No. LET-R-439-2001 dated November 5, 2001, the Agency issued procedural directions which set out, among other matters, the time frames for the parties to provide the Agency and the party adverse in interest with a list of the witnesses they intended to present at the hearing. The Decision also established the time frames for the filing of witnesses statements and expert reports detailing the evidence each of the witnesses and/or expert witnesses intend to present at the hearing.

By Decision No. LET-R-446-2001 dated November 14, 2001, the Agency, at the request of Naber, amended the time frames set out in Decision No. LET-R-439-2001 to file the above information from December 7, 2001 to December 14, 2001.

Further to Naber's letter of December 18, 2001 in which Naber requested an additional extension of the deadline for the filing of expert reports, the Agency, on December 21, 2001, issued Decision No. LET-R-492-2001 which granted Naber's request for an extension of the deadline to file the report of Professor James Nolan, Messrs. Milt Poirier, Robert Moore and Trenton Baisley. The Agency also directed CN to advise the Agency by January 11, 2002 whether or not it intended to have expert witnesses at the hearing and, if so, to file any expert reports no later than January 17, 2002.

In accordance with the Agency direction set out in Decision No. LET-R-492-2001, CN, prior to January 11, 2002, advised the Agency of its intention to present Mr. William J. Rennicke as an expert witness at the hearing. Furthermore, CN, on January 17, 2002, filed the report for its expert witness.

The procedural directions established by the Agency in Decisions Nos. LET-R-439-2001 and LET-R-492-2001 with respect to the filing of witness statements and expert reports were designed to: i) allow parties to adequately prepare for the hearing; ii) expedite the hearing; and above all, iii) prevent what is often referred to as a "trial by ambush". However, the procedural directions were not designed to preclude a party from calling an undisclosed witness to present evidence on issues which were unknown or could not have been anticipated at the time of disclosure of witnesses.

If an unknown or unforeseeable issue is raised by a party at the hearing, the party adverse in interest will have the ability to present an undisclosed witness with leave from the Agency. When considering such a request, the Agency will examine whether the issue was indeed unknown and unforeseeable prior to disclosure of witnesses, whether the evidence is relevant and helpful to the Agency's determination and whether the testimony of the undisclosed witness itself is likely to cause a prejudice to the party adverse in interest.

In light of the foregoing, Naber's motion seeking an order from the Agency precluding CN from naming and/or calling any witnesses after January 11, 2002 is hereby dismissed.

ii) Cross-examination of CN's witnesses individually

Positions of the parties

Naber argues that in its letter of December 19, 2001, CN indicates that it intends to have three of its witnesses provide evidence as a panel. Naber submits that the requirements of fairness, due process and natural justice require that it should have the opportunity to cross-examine each of the witnesses who will provide evidence on behalf of CN on an individual basis.

CN submits that while the method of presenting evidence by way of a panel presentation may not be the normal practice in civil courts, it is certainly an accepted practice of presenting witnesses before specialized administrative tribunals. CN maintains that the merits to such an approach are clear, particularly where no one individual would be able to fully or adequately give evidence respecting an issue or set of circumstances. While Naber has indicated that it takes no issue with CN leading evidence from its own witnesses as a panel, CN notes that Naber objects to being compelled to cross-examine CN witnesses as a panel. In the opinion of CN, Naber's request will create serious procedural difficulties at the hearing such as duplication of questions, deferral of questions to other panel witness which will ultimately prolong and complicate the public hearing. CN submits that Naber is not prejudiced by cross-examining CN's witnesses in their constituted panel as Naber will still be able to direct its questions to an individual witness on the panel to ascertain his or her particular response.

Agency decision

The use of panels of witnesses have been allowed by the Agency in previous hearings. The benefits of such panels are numerous. It allows the decision-maker to hear the evidence as a whole and it is generally agreed that the evidence received is clearer, particularly when the subject matter is not dealt with exclusively by one person or when no panel member is fully knowledgeable of the issue discussed. Also, it saves time as repetition of the same evidence is avoided.

The question here is not whether CN ought to be entitled to present its evidence through a panel of witnesses but rather if Naber ought to be entitled to cross-examine each panel witness individually without the other panel members being present in the hearing room. In the opinion of the Agency, the individual cross-examination of each panel member would defeat the purpose and negate the advantages of having a panel of witnesses testifying on a specific issue. The evidence brought by the panel of witnesses having been presented as a whole, the Agency finds that the cross-examination should be done in a similar fashion. This will not prevent the Agency from fully appreciating the credibility of the witnesses and from weighing the evidence tendered by the panel.

In light of the foregoing, Naber's motion seeking an order from the Agency allowing Naber's legal representative to individually cross-examine each witness testifying on behalf of CN as a panel is hereby dismissed.

iii) Exclusion of witnesses

Positions of the parties

In answer to Naber's request for exclusion of witnesses, CN states that although it is clearly within the discretion of an administrative decision-maker to decide whether to grant an Order to exclude witnesses, CN submits that in this case, it is clear that the Agency should not exercise its discretion to grant such an Order.

CN submits that the purpose of excluding a witness from a proceeding is to simply assist in ensuring that the witness will not tailor his/her evidence to that which has been heard prior to his/her testimony. CN points out however that this concern is somewhat inconsistent with a proceeding wherein witnesses are able to present evidence in panels.

Given the nature of the proceedings, CN alleges that it would clearly be disadvantaged by such an Order as Naber is the applicant in this proceeding and is therefore entitled to present its evidence first. Having already testified, Naber's witnesses would be able to assist during cross-examination and instruct counsel for the remainder of the proceeding. Unlike Naber's witnesses, CN's witnesses would not be available at the hearing to assist counsel with cross-examination of Naber's witnesses. According to CN, such an advantage conferred upon Naber would clearly contravene the rules of natural justice and procedural fairness.

In support of its position, CN refers to the Federal Court of Canada decision in Homelite v. Canada (Canadian Import Tribunal), [1987] F.C.J. No. 537 (T.D.) where the Court stated that the refusal to exclude an adverse witness while evidence is received from another adverse witness does not necessarily amount to a denial of a fair hearing.

In the opinion of CN, the exclusion of witnesses as proposed by Naber would not only unduly impede the presentation of CN's case at the hearing but would also deny CN the opportunity to adequately respond to the case against it and prepare its witnesses during the hearing.

CN further states that where an exclusion of witnesses is ordered, the order is seldom effective with respect to expert witnesses, who are usually allowed to remain in the courtroom. For CN, it would be highly unusual to exclude expert witnesses in such circumstances as it is important for them to hear the often technical evidence upon which their opinion is sought.

CN argues that in the present case it is essential for CN's witnesses to be present throughout the entire testimony, which will include significant technical evidence in order for them to intelligently respond. While not expert witnesses per se, CN states that its witnesses in this matter need to hear this type of evidence so that they can understand and comment upon it. This, in the opinion of CN, will greatly assist the Agency and the conduct of the hearing.

In any event, CN alleges that any concern that CN's witnesses are tailoring their evidence to be consistent with previous CN witnesses can be dealt with by the weight to be given this evidence by the Agency.

Agency decision

In Wiebe v. R, (1992), 5 Admin. L.R. (2d) 108, (F.C.A.), the Court held that in an adversarial proceeding, where credibility is in issue, a decision-maker faced with a request for the exclusion of witnesses should ask itself whether there is any reason for the witness not to be excluded rather than whether there is any reason for the exclusion order to be made.

In this case, the Agency finds that the order of exclusion of witnesses sought by Naber should be granted with the following two exceptions. First, as opinions sought from expert witnesses often rely on the technical evidence presented the Agency will allow expert witnesses in the hearing room at all times. Second, fairness requires that a witness of each party be allowed in the hearing room at all times for the purpose of instructing and assisting counsel during cross-examination.

Subject to the two above exceptions, Naber's request for exclusion of witnesses is hereby granted.

2- CN'S MOTION

i) Availability of the remedy provided for in paragraph 116(4)(e) to Naber

Positions of the parties

CN alleges that the preferred running rights remedy requested by Naber for its Melfort and Star City processing facilities in both complaints (grain week  6 to 17 of the crop year 2000-2001and grain week 18 to 38 of crop year 2000-2001) is beyond that which can be granted by the Agency pursuant to paragraph 116(4)(e) of the CTA.

CN submits that the words set out in subsection 116(4) of the CTA, when read in their "ordinary and grammatical sense", clearly limit the scope to those situations where a railway company is not providing adequate service to a grain-dependent branch line in its entirety. As such, CN alleges that the wording of subsection 116(4) of the CTA requires the breach to be in respect of service to the line itself, not simply in respect of service to one of the many shippers that may be located along the line. This, in the opinion of CN, is particularly evident from the remedies granted by Parliament in paragraphs 116(4)(d) and (e) where a railway company can be compelled to either add the line to its plan prepared under subsection 141(1) of the CTA or to grant to another railway company the right to operate its trains over the line and provide service to the line. CN submits that Naber is asking the Agency to interpret paragraph 116(4)(e) of the CTA as though it contains the words "the shipper" in place of the words "the line". CN argues that the Courts have repeatedly commented on the impropriety of adding words to legislation, deleting words or otherwise rewriting a provision.

Although the plain and ordinary meaning of subsection 116(4) of the CTA appears to clearly preclude the granting of relief in situations such as the one before the Agency, CN submits that one must still proceed to determine if this interpretation is consistent with the intent of Parliament in enacting paragraph 116(4)(e) of the CTA.

CN points out that Naber, in its submission of September 21, 2001, asserted that "section 116 of the CTA was specifically amended to assist grain shippers, such as itself, who are captive to a railway company which refuses to provide it with a reasonable level of service". CN, however, submits that subsection 116(4) of the CTA has nothing to do with assisting one individual grain shipper in a private dispute with a rail carrier but, rather, has everything to do with discouraging the "de-marketing" of grain lines. CN states that paragraphs 116(4)(d) and (e) were added to the CTA as part of Bill C-34 on July 2000 to address problems that had arisen with respect to light density, grain-dependent branch lines. In support, CN refers to the Stakeholder's Report produced by the Kroeger review process and a news release issued by Transport Canada on May 10, 2000 where it is mentioned that to discourage "de-marketing" of grain lines, the Agency ought to be able or will be able to grant running rights to another party.

In the opinion of CN, in enacting paragraph 116(4)(e) of the CTA, Parliament intended to introduce a "de-marketing" remedy. As such, CN submits that paragraph 116(4)(e) of the CTA cannot be used by an individual shipper unless there is an allegation that the carrier is in breach of the service obligations to the line as a whole.

Aside from the above consideration, CN states that there are compelling economic reasons for concluding that Parliament could not have intended extending the remedy under paragraph 116(4)(e) of the CTA to address complaints of individual shippers. That is, CN submits that a running right is a drastic and intrusive remedy which fragment a railway's network, and adversely affect costs and operational efficiency and productivity. Given this intrusive nature, CN contends that such remedy ought only be used in situations where the problem being addressed is of public importance and interest, i.e., de-marketing of an entire line.

In its answer to the application, Naber submits that section 27 of the CTA which provides that on an application made to the Agency, the Agency may grant the whole or part of the application, or may make any order or grant any further or other relief that to the Agency seems just and proper, gives the Agency the authority to grant the running rights remedy.

Naber further submits that it agrees with CN that the determination of this motion is fundamentally a determination of the scope of paragraph 116(4)(e) of the CTA. Naber argues that the principles of statutory interpretation set out in Decision No. 212-R-2001, Hudson Bay Railway Company v. Canadian National Railway Company, should be used when examining the wording of paragraph 116(4)(e) of the CTA. The principles set out in that Decision include the context or "fit" within the CTA, the overall regulatory framework in the industry, the policy behind the provision, the national transportation policy and any precedent that may be relevant, must be taken into consideration in determining the scope of paragraph 116(4)(e) of the CTA.

As for the national transportation policy, Naber submits that in Decision No. 212-R-2001, the Agency established that the objectives of the national transportation policy are most likely to be achieved when all carriers are able to compete and when economic regulation of carriers and modes of transportation occurs only in respect of those services and regions where the regulation is necessary to serve the transportation needs of shippers and travellers. Naber argues that paragraph 116(4)(e) is like section 138 of the CTA which was the subject of Agency Decision No. 212-R-2001. Naber explains that it is a competitive access provision and provides a regulatory remedy that ultimately offers affected shippers the ability to use two railway companies rather than one. Naber further argues that the Agency has recently noted in its Decision No. LET-R-8-2002, an application by Ferroequus Company Ltd. v. Canadian National Railway Company, that the principles of shipper choice and competition are the cornerstones of Part III of the CTA. Naber asserts that these principles in the national transportation policy provide guidance in the interpretation of paragraph 116(4)(e) of the CTA.

Naber notes that the wording of subsection 116(1) of the CTA, which states that "On receipt of a complaint by any person that a railway company is not fulfilling any of its service obligations, the Agency (...)". Naber asserts that the language clearly indicates that the order of the Agency referred to in section 116 of the CTA can be made on the receipt of a complaint made by any individual person. For Naber, there is no requirement that the complaint be made by multiple shippers. Naber suggests that it is entirely wrong for CN to suggest that the ordinary and grammatical language in section 116 of the CTA means that a service obligation is owed to a "line". Naber submits that rather, the service obligation is owed to any person or shipper. According to Naber, the reference in paragraph 116(4)(e) of the CTA to "in respect of a grain-dependent branch line" is used only to identify the location of the shipper and when such a remedy is available to that shipper.

Naber asserts that section 116 of the CTA provide specific statutory remedies to shippers and imposes obligations on railway companies as part of an effort to redress cases where there is a lack of competition in the marketplace. To this extent, Naber submits that section 116 fits within the competitive access provisions of the CTA.

Naber submits that the brief history of paragraphs 116(4)(d) and (e) of the CTA demonstrates the intention of Parliament to increase competition and the shipper choice through the mechanism of the CTA. Naber submits that the remedy is not limited only to those cases where a shipper could prove an intentional "de-marketing" of a grain-dependent branch line. Naber maintains that the interpretation proposed by CN would create absurdities as the remedy would only be available when every shipper on a grain-dependent branch line files a complaint and demonstrates a breach of service obligation. Furthermore, the remedy would never be available because a "line" cannot be a complainant under the CTA. Finally, this argument should fail because CN could prevent the exercise of the remedy by ensuring that it provides suitable and adequate service to one of the shippers.

Naber states that the Agency has previously commented on the purpose of section 116 of the CTA in Decision No. 212-R-2001. Naber submits that the comments made by the Agency in that Decision indicate that the right granted to a guest railway company under section 116 is to serve an individual shipper such as Naber.

As for CN's argument that the remedy to be granted under paragraph 116(4)(e) of the CTA "adversely effects costs and operational efficiency and productivity", Naber urges the Agency to find that all of these matters arising out of a running rights remedy are railway industry matters that are dealt with by the railway companies on a daily basis.

Naber finally urges the Agency to find that the impact of the narrow running rights remedy requested by Naber under section 116 is not potentially so pervasive that it cannot be legally supported by paragraph 116(4)(e) of the CTA.

In its reply, CN acknowledges the broad powers granted to the Agency pursuant to section 27 of the CTA but asserts that the Agency is governed by the more specific remedies outlined in subsection 116(4) of the CTA when the application is in respect of a breach of level of service obligations.

CN states that in referring to the national transportation policy, one must alway keep in mind what is being contemplated under subsection 116(4) of the CTA. CN submits that the remedy of forced access is a measure intended for the most extreme cases. Any interpretation which would make this severe form of regulatory intervention more widely available would certainly not be in line with the national transportation policy's mandate of limiting economic regulation of carriers.

In response to Naber's assertion that section 116 of the CTA can be invoked by any person, CN acknowledges that an individual shipper such as Naber would have the right to initiate a complaint seeking the relief afforded under subsection 116(4), however, that complaint would have to establish that CN was effectively de-marketing the grain-dependent branch line or portion of the line in respect of which the relief is sought.

CN submits that in light of the various statements contained in reports issued from the Kroeger review and by the Government of Canada respecting Parliament's intention in enacting paragraph 116(4)(e) of the CTA, the Agency must give effect to that intention where the words, as in this case, are capable of or dictate such an interpretation.

CN disputes Naber's submission that the remedies under section 116 of the CTA are part of the competitive access provisions of the CTA. CN submits that while the running rights and joint track usage contemplated in sections 138 and 139 constitute competitive access provisions, CN argues that section 116 serves an entirely different purpose, that is, breach of level of service by a carrier.

CN asserts that its interpretation of subsection 116(4) of the CTA is not only consistent with the express intention of Parliament but is also consistent with the remainder of the CTA. More specifically, CN refers to Division V of Part III of the CTA and to section 146.1. In the opinion of CN, if a carrier attempts to avoid the various financial or other obligations contained in Division V by simply phasing-out service to a grain-dependent branch line, "any person" can apply under paragraph 116(4)(d) of the CTA to compel the carrier to add the line to its plan under section 141. Until such time that the operations on the line have been properly discontinued, any person may seek the additional remedy contained in paragraph 116(4)(e) of the CTA.

Agency decision

On October 22, 2001, the Agency issued Decision No. LET-R-422-2001 which established, among other matters, the terms of reference for the hearing. The Agency stated:

...In this hearing, the Agency will hear evidence on NSG's allegations that CN has breached its level of service statutory obligations for grain weeks 18 to 38 of crop year 2000-2001. Further, with respect to the remedy sought by NSG, the Agency will hear evidence on the issue of whether running rights are an appropriate remedy; on the alternate relief sought by NSG; on CN's new car allocation programs, in particular as they relate to NSG, a specialty crop shipper; and on CN's argument on the rationing of railway hopper cars. It is the view of the Agency that it requires all of this information for the purpose of investigating the relief sought, and accordingly, the Agency hereby joins both files with respect to the relief only. ... [emphasis added]

The Agency, in setting out the terms of reference for the hearing, therefore contemplated hearing evidence on whether the preferred running right remedy sought by Naber was an appropriate remedy. The reason for such an inquiry is that the remedy provided for in paragraph 116(4)(e) of the CTA is a new remedy available. Having never been sought prior to Naber's complaints, the Agency is of the opinion that a hearing is the appropriate venue to examine such a new remedy. CN's motion on the scope of paragraph 116(4)(e) of the CTA only reinforces this. Although the Agency acknowledges that one of the possible outcomes of CN's motion on the scope of paragraph 116(4)(e) of the CTA is the negation of this remedy for Naber, the Agency considers that it is only after hearing the evidence on the exact nature of the rights sought by Naber that an informed decision can be made as to whether such rights are contemplated by these provisions. Accordingly, the Agency defers its decision on this motion.

ii) Disclosure by Naber of further evidence on the substantial commercial harm suffered

Positions of the parties

CN submits that as part its October 2001 application, Naber made very serious and extreme allegations with respect to the "substantial commercial harm" it has suffered as a result of CN's alleged breach of statutory service obligations. CN further submits that given Naber's estimate that it has incurred damage in excess of $3,000,000.00 as a result of CN's alleged breach of its level of service obligations and given the onus placed on Naber, as applicant, to establish substantial commercial harm, it was surprised at the lack of any documentation produced by Naber to substantiate these claims. In the opinion of CN, the Agency and CN are entitled to have Naber: i) produce copies of all contracts where Naber breached its contractual obligation, ii) produce demurrage bills and any other information indicating the actual total amount of vessel demurrage charges paid by Naber during the complaint period, as well as for the same period for crop years 1998-1999 and 1999-2000, and iii) produce all arriving and loading records of vessels for Naber during the complaint period, including information regarding the time of berthing.

According to CN, those documents are only an example of the type of documentation that is required to be produced by Naber should it wish to lead any evidence regarding these losses in an attempt to establish substantial commercial harm. In general terms, CN maintains that Naber should be required to produce all documents supporting the representations made by Mr. Naber at paragraph 117 of his affidavit of October 11, 2001 or the representation made at paragraph 47 of the application with respect to Naber's commercial harm.

In its answer, Naber submits that CN's request is simply an interrogatory set out in the form of a motion. Given the vagueness of CN's request, Naber argues that it would be extremely difficult to state with certainty that it had fully complied with CN's interrogatories. Naber further submits that in Decision No. LET-R-476-2001, the Agency clearly indicated that it would not require the parties to respond to extensive lists of interrogatories as a result of the hearing being scheduled for January 28, 2002.

Naber contends that CN's deliberate decision to wait until January 11, 2002 to file its interrogatories is inappropriate and an abuse of due process. Naber alleges that CN has been aware of Naber's claims in relation to the issue of substantial commercial harm since October 11, 2001 and by choosing to wait until January 11, 2002 to file the interrogatories, CN has waived its right to do so.

In reply, CN submits that its request is not simply an extensive and generally worded interrogatory but rather a request that Naber and Todd Naber either rescind their allegations that Naber suffered $3,000,000.00 in damage as a result of the alleged service breach or, alternatively, provide some documentation to support these representations.

CN argues that without the documents substantiating Naber's allegation of damages, both CN and the Agency will be left without any way of assessing or quantifying Naber's claims of substantial commercial harm. In addition, CN states that the disclosure of these documents prior to the hearing would considerably expedite and provide focus to both the examination and cross-examination of Todd Naber, particularly as it relates to his allegations of substantial commercial harm.

As for Naber's allegation that CN' s request is too broad, CN submits that given that allegations are contained in Todd Naber's own sworn affidavit, Naber should know upon which documents he relies in support of his allegation of substantial commercial harm.

CN finally submits that it has not initiated this motion as an attempt to delay or adjourn the hearing or to interfere with Naber's attempt to prepare for the hearing. In the opinion of CN, production of the relevant documents requested is necessary in order for both the Agency and CN to adequately investigate and assess Naber's claim of substantial commercial harm.

Agency decision

The Agency finds CN's argument on the lack of evidence filed in support of Naber's allegation that it suffered substantial commercial harm to be premature. Following the filing of the application by Naber in October, it was within the purview of CN, pursuant to section 19 of the National Transportation Agency General Rules, to direct interrogatories upon Naber on the allegations of substantial commercial harm. CN opted not to do so. Although, this does not relieve Naber of its obligation to demonstrate to the satisfaction of the Agency that it did indeed suffer substantial commercial harm, it is not for the Agency, at this stage of the proceedings to assess the documentary evidence on file and make a finding as to how conclusive it is.

In light of the foregoing, CN's motion seeking an order from the Agency compelling Naber to produce further evidence substantiating that it suffered "substantial commercial harm" as a result of CN alleged breach of its statutory service obligations for the complaint period is hereby dismissed.