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Interlocutory Decisions : 2000

2000-06-14

LET-R-174-2000

Algoma Central Railway Inc.

By letter dated May 24, 2000, the Algoma Central Railway Inc. (ACRI) applied, pursuant to section 78 of the National Transportation Agency General Rules, to have Order No. 2000-R-102 and Decision No. 233-R-2000 of the Agency dated March 31st, 2000 stayed pending the disposition of the appeals before the Federal Court of Appeal. In the alternative, ACRI has requested a 60 day extension to the implementation of the Order. The Agency has reviewed ACRI's application, Mr. Robinson's answers of May 23 and 24, 2000, and ACRI's reply of May 30, 2000.

To decide whether a stay should be granted, the Supreme Court of Canada developed a three-part test in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, affirmed in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 312.

The first part of the test is whether there is a serious question to be tried. In RJR - MacDonald, supra, the Court held that there were no specific requirements to be met in order to satisfy this test, but that the threshold was a low one and entailed a preliminary assessment of the merits of the case. In the case before the Agency, considering that an application for leave to appeal to the Federal Court of Appeal pursuant to subsection 41(1) of the Canada Transportation Act, S.C. 1996, c. 10 (the CTA) has been filed with the Federal Court questioning the Agency's jurisdiction in matters of noise complaints under section 95 of the CTA, the Agency is of the view that this issue is a serious one and accordingly, finds that ACRI has met the first part of the test.

The second part of the test is whether the litigant who seeks the stay would, unless the stay is granted, suffer irreparable harm. In RJR - MacDonald, supra, the Court held that, under this part of the test, the only issue to be decided is whether a refusal to grant the relief could so adversely affect the applicant's own interests that the harm could not be remedied if the eventual decision on the merits did not accord with the result of the interlocutory application. The Supreme Court held that "irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

The Agency is well aware that in a case such as the present one the examination of the second part of the test is closely related to the analysis of the third part of the test which is the balance of convenience test. At this stage, it is necessary to determine which of the two parties will suffer the greater harm from the granting or refusal of the request pending a decision on the merits. The factors to be considered vary in each individual case.

In its application, ACRI submits that if it is not granted a stay it will not meet the ends of justice if ACRI were required to perform what was set forth in the above-noted Order and Decision while they are subject matter of an application to the Federal Court of Appeal. Furthermore, if a stay is not granted, ACRI would be required to expend significant monies to develop a noise abatement plan. If leave to appeal is granted and then the appeal allowed, this work, effort, and monies, would have been expended for no purpose.

In response, Mr. Steve Robinson submitted that, allowing the stay would be harmful to the residents as ACRI would continue to disrupt their residences with added noise from the log loading operations which tends to increase during the summer months.

ACRI did not provide any evidence to the Agency as to the actual cost it would have to incur to abide by the Agency's Order on May 31, 2000. In addition, the Agency notes that ACRI has already filed its noise abatement plan and follow-up plan. The Agency is addressing the satisfactoriness of these plans in a separate correspondence. Considering the improvements necessary to make ACRI's noise abatement plan and follow-up plan satisfactory, the Agency is of the opinion that the implementation of these plans would not cause ACRI to suffer any irreparable harm.

For these reasons, the Agency is of the view that, on a balance of convenience, Mr. Robinson will suffer greater harm from the granting of the stay application. In addition, the Agency considers that any harm that ACRI may suffer, in the implementation of its noise abatement plan and follow-up plan, would not outweigh the harm caused to Mr. Robinson should noise continue at night or on Sundays and statutory holidays.

Accordingly, the Agency hereby dismisses ACRI's application for a stay of Agency Order No. 2000-R-102 and Decision No. 233-R-2000 dated March 31st, 2000 and denies ACRI's request for a 60 day extension to the implementation of the Order.

If you require additional information, you may contact Mr. Paul Lacoste at (819) 953-2117 or Mr. Glenn Payne at (819) 953-0365, or by fax at (819) 953-8353.