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Interlocutory Decisions : 2001

2001-04-03

LET-AT-R-176-2001

File No. U3570/00-81

By letter dated December 4, 2000, the Council of Canadians with Disabilities (CCD) filed an application with the Canadian Transportation Agency (Agency) for interim relief pursuant to subsections 27(1) and 28(2) of the Canada Transportation Act (CTA), and for a final order pursuant to section 172 of the CTA, with respect to VIA Rail Canada Inc.'s (VIA) Nightstock cars.

By Decision No. LET-AT-R-393-2000 dated December 18, 2000, the Agency requested further submissions from CCD and VIA regarding CCD's request for an interim order. The parties filed extensive submissions which included an additional response by VIA in reply to new facts raised by CCD.

By Decision No. LET-AT-R-35-2001 dated January 24, 2001, the Agency addressed the issue as to whether CCD's request for an interim order should be granted. Although the Agency stayed CCD's request for an interim order preventing VIA from entering into contracts for the retrofit of the Nightstock cars, the Agency required VIA to file with the Agency and provide a copy to CCD of all proposals and plans for the construction or retrofit of the Nightstock cars, as well as its schedule for the assembly, construction and retrofit of the Nightstock cars as soon as they were available. In its Decision, the Agency recognized VIA's intention to commission 24 of these cars into service in December of this year and that there was still work to be done regarding the assembling of some of the cars. Further, the Agency indicated that it was continuing its investigation of CCD's application.

By letter dated January 31, 2001, VIA raised a number of objections to these filing requirements. As a result of this submission, the Agency by Decision No. LET-AT-R-45-2001 dated February 2, 2001, requested comments on the issue of the Agency's jurisdiction pursuant to section 172 of the CTA. Further, by letters dated February 1 and 7, 2001, CCD requested additional relief to which VIA responded.

By Decision No. LET-AT-R-80-2001 dated February 22, 2001, the Agency confirmed that it has jurisdiction to consider the application filed by CCD and that it was proceeding with its investigation.

In the same decision, the Agency clarified the information it required to continue with its investigation and stated that it requires information regarding the eventual configuration of the Nightstock cars, including plans if they contain such information. In addition, any subsequent changes to any information filed with the Agency by VIA was also to be provided to CCD.

Further, by Decision No. LET-AT-R-81-2001 dated February 22, 2001, the Agency required VIA to confirm "that it will provide information to the Agency, to be copied to CCD, that will indicate when it will commence retrofitting or constructing the Nightstock cars."

In a third Agency Decision No. LET-AT-R-82-2001, also dated February 22, 2001, the Agency addressed the remaining requests that were set out in CCD's letters of February 1 and 7, 2001.

By letter dated February 23, 2001, VIA responded to the Agency's direction to confirm that it will provide information to the Agency by advising that "no retrofit plans or construction plans have been prepared. VIA has no fixed time when such plans will be available." By Decision No. LET-AT-R-107-2001 dated March 5, 2001, the Agency found VIA's reply to be unresponsive as VIA had not confirmed whether it will provide the Agency with the required information. In its response dated March 8, 2001 VIA requested that the Agency reconsider its comment that VIA has been unresponsive. The Agency, in Decision No. LET-AT-R-166-2001 dated March 29, 2001 clarified that it was not commenting on the responsiveness of VIA to all submissions filed in these proceedings, but was referring to the specific answer given by VIA to a specific confirmation request posed by the Agency as set out above.

In the same Decision, the Agency further required VIA to indicate whether it will provide information, once it is available, indicating when the retrofitting or construction of the cars will commence and whether VIA will provide the final design of the trains once they have been determined. The Agency also required that VIA provide clarification and additional information with respect to the Nightstock cars. In its response dated April 2, 2001, VIA responded that it can not provide information which is not in existence during the application period and that no decision has been made as to whether the 24 cars that are substantially completed will be further modified with respect to accessibility.

Document Production

As outlined above, throughout these proceedings the Agency has directed VIA to provide the Agency with specific information, which VIA has submitted is not presently available.

It would appear, from VIA's response of April 2, 2001, that the information required to be filed with the Agency once available may not be provided by VIA to the Agency. The Agency is therefore of the opinion that it is necessary to make the attached Agency production order an order of the Federal Court pursuant to section 33 of the CTA so that the Agency can ensure compliance with its order and gather the information it has determined it requires for the purpose of its investigation.

Interim Relief Requested by CCD

CCD, in its letter dated February 24, 2001, requested the following relief:

1. That VIA will disclose to the Agency, with a copy to CCD, the substance of any contractual obligations (including contract amount and penalty clauses for work interruption) it has already entered for the retrofit or construction of the Nightstock cars;
2. That VIA will disclose the extent of the retrofit or construction already done on the Nightstock trains to the Agency, with a copy to CCD;
3. That VIA release engineering and other studies performed for it on the Nightstock cars, which relate to their accessibility and their safety in so far as safety would affect passengers with disabilities;
4. That VIA will direct any contractors engaged in the retrofit or the construction of the Nightstock trains to cease immediately and to advise the Agency in writing, with a copy to CCD, that it has done so; and
5. In the event that any retrofit work or construction continues, notwithstanding VIA's direction to the contractor that it cease, that VIA will disclose this fact to the Agency, with a copy to CCD.
6. That VIA not enter into any contracts for the construction, manufacture or retrofit of the Nightstock trains.

Item 6

This item refers to the relief originally requested by CCD and amended by its letter of January 8, 2001.

VIA in its submissions to the Agency has indicated that it presently has no retrofit or construction plans for these cars. VIA further states in its letter dated April 2, 2001 that "no decision has been made as to whether the 24 cars that are substantially completed will be further modified with respect to accessibility. VIA, inter alia continues to consult with accessibility groups in that regard." VIA has also stated in its affidavit sworn on March 8, 2001 by John Marginson in support of its motion for leave to appeal before the Federal Court that "The final design of the Nightstock trains has not been determined." The information filed by VIA also indicates that VIA continues to have no schedule for the retrofit of the cars. Based on all of the information submitted by VIA to date, the Agency is of the view that in making the production order an order of the Federal Court, the Agency will be in a position to consider CCD's request for an interim order once the information is available and provided to the Agency.

Items 1-5

With respect to this relief requested by CCD, VIA states in its letter of March 16, 2001 that the "order requested seeks information which either does not presently exist or which may exist some time in the future." In light of VIA's response, the Agency is of the view that it is not necessary at this point in time to consider this relief requested by CCD.

Statutory deadline

The Agency notes that in VIA's letter of March 16, 2001 it states that "any interim order that might be granted expires on the day that the Agency is required to issue its final order (April 3, 2001)." It is apparent that VIA is implying that the Agency loses its jurisdiction after the statutory deadline has expired.

The Agency has dealt with its investigation of CCD's application as expeditiously as possible and has made every attempt to meet the statutory deadline of April 3, 2001. However, as part of its investigation the Agency has had to address numerous procedural and jurisdictional matters raised by the parties which have been the focus of much of the Agency's and the parties' attention. In addition, CCD has expanded its original request for relief several times, which has necessitated the filing of further submissions from VIA. In acknowledgement of the important legal issues that these matters have raised, the Agency has always provided the parties with the opportunity to submit their comments on these issues. Furthermore, the Agency is awaiting the filing of information by VIA to further its investigation which VIA has indicated is not yet available. The fact that this information may not be presently available does not preclude the Agency from continuing with its investigation. There are other issues that the Agency can also consider. In view of the foregoing, the Agency has been unable to complete its investigation of CCD's application within the statutory deadline. In recognition of this, the Agency, in Decision No. LET-AT-R-166-2001 dated March 29, 2001, sought the parties' concurrence to extend the statutory deadline.

CCD has responded that it would consent to an extension of time if the Agency issued the interim order. In a letter dated April 2, 2001, VIA stated that CCD's application should be dismissed within the time fixed by statute.

The Agency, under Part V of the CTA, has the mandate to make determinations regarding undue obstacles. By Decision No. LET-AT-R-80-2001 dated February 22, 2001, the Agency determined that it has jurisdiction to consider CCD's application. While the Agency has worked very hard to address the issues that the parties have brought forward, the Agency continues to have a complaint before it that requires a substantive determination pursuant to section 172 of the CTA. In order for the Agency to fulfill its statutory mandate, it will continue with its investigation beyond the statutory deadline.

The Agency is of the opinion that it retains jurisdiction to deal with CCD's application after the statutory deadline has expired. Accordingly, the Agency will continue with its investigation of CCD's complaint.