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Interlocutory Decisions : 2000

2000-06-16

LET-R-175-2000

This will acknowledge receipt of CN's letter dated June 12, 2000, requesting an extension to respond to LET-R-161-2000 dated June 2, 2000, and to restore the process outlined in that letter, in regard to the above-noted complaint.

In regard to CN's statement that the Canadian Transportation Agency (Agency) decided to move from an informal system to a quasi-judicial system without notice to CN and that such a move was not at the request of the adjacent residents in Windsor, the Agency notes the following. In most noise complaints, the Agency encourages the parties to reach a consensual resolution of the noise concern through what has been called a facilitation process. Despite the facilitation process, however, the quasi-judicial system, which is the process the Agency normally uses to deal with complaints, continues unless a mutually agreeable solution is reached between the parties.

In the present case, CN requested that the Agency act as facilitator in regard to this matter and on that basis and with the consent of the Committee, a site meeting was arranged for June 1, 2000. In its May 30, 2000 letter cancelling that meeting, CN states that "... CN will follow the usual and customary process, with which the Agency is familiar, that the CN Law Department will now have carriage of this matter". The "usual and customary process", with which the Agency is very familiar, is the quasi-judicial, formal process mentioned above . Therefore, the Agency views any move from an informal to a more formal process to be a direct result of CN's request.

Furthermore, once one party to a dispute requests a formal process, the Agency has to follow that process, regardless of the views of the other party since it is the normal process and, to be effective, the use of any other process requires the consent of both parties.

The Agency notes that CN informed Agency staff just two days prior to the June 1 meeting, which had been scheduled since May 12, 2000, that key CN personnel were unavailable . The Agency further notes that CN proposed in its May 30, 2000 letter to contact Agency staff with alternate meeting dates. Therefore, the Agency concludes that CN has been preparing for such a meeting, including the preparation of the information requested by the Agency, since May 12, 2000.

In light of the above, and the fact that the Committee has not agreed to the extension requested, the Agency hereby directs CN to provide the information requested in its June 2, 2000 letter no later than 5 days from the date of this letter, with a copy to the Committee, otherwise the Agency will make its decision based on information on file at that time. The Committee will then have 10 days in which to reply to CN's submission.

CN has requested the Agency to "restore the process it established by LET-R-161-2000". CN has also stated that its preference is for a consensual resolution as outlined in its June 12, 2000 letter and its reference to the Agency's pilot project on mediation. The options now open to the parties are:

a) to proceed with the quasi-judicial process as per CN's May 30 request, which may include a site meeting similar to that proposed for June 1, 2000; or

b) to use the mediation approach described in the Agency's press release of June 2, 2000 and as more fully outlined in the attached brochure.

Both CN and the Committee are requested to include in their submissions their preferred option.

The parties should note that either option may require the parties to agree to an extension in the legislative deadline, if necessary.

Finally, the Agency notes that CN cancelled the June 1, 2000 meeting on the day (May 29, 2000) that the information was to be provided to the Agency and that CN requested a 10 day extension of time to provide information as directed by the Agency again on the day (June 12, 2000) that the information was to be provided. The rules of natural justice suggest that any request for an extension be filed with the Agency well before the deadline to provide reasonable amount of time for the parties to comment and for the Agency to assess the merits of the request. The Agency expects CN to abide by this principle in the future.