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Interlocutory Decisions : 2001

2001-06-29

LET-AT-R-304-2001

File No. U3570/00-81

By Decision No. LET-AT-R-278 -2001 dated June 13, 2001, the Canadian Transportation Agency (Agency) required VIA Rail Canada Inc. (VIA) to respond to the Agency's Decision No. LET-AT-R-261-2001 dated May 31, 2001, as well as the issues raised in the Council of Canadians with Disabilities' (CCD) submission of June 11, 2001. By letter dated June 15, 2001, VIA filed its response and by letter dated June 16, 2001, CCD filed its reply. Issues raised by CCD in its letters dated May 28 and June 11, 2001, in addition to those considered below will be addressed in a subsequent Agency decision.

Agreements between Bombardier and VIA and between Alstom Transport Ltd. and VIA

CCD requests that the contracts between VIA and Alstom Transport Ltd. (Alstom) and between VIA and Bombardier be produced to CCD as these agreements are relevant to the proceedings. VIA submits that the Alstom contract is not relevant and therefore need not be produced.

With respect to the agreement between Bombardier and VIA, VIA states that the newspaper article dated May 25, 2001 submitted by CCD concerning an agreement between VIA and Bombardier is misleading because the present agreement between the two parties does not relate to the assembly of the Nightstock trains but rather it is a services agreement that establishes the rates and types of services that Bombardier offers, which will allow VIA to finalize its assembly plans. As such, VIA submits that there are still no documents which respond to Agency Order No. 2001-AT-R-122 dated April 3, 2001. VIA considers this services agreement to be confidential.

In reply, CCD submits that the Agency has now begun considering the issue of undue obstacles and that the evidence of undueness in this case is not limited to the evidence that VIA chooses to provide.

VIA is required to file with the Agency a copy of the services agreement it has with Bombardier by 5:00 pm on July 5, 2001. The Agency will then make a determination as to the relevancy of this document to the proceedings.

The Agency in making its determination as to whether the Alstom and Bombardier agreements will be produced to CCD will consider the submissions filed by the parties. If the Agency determines that the contracts are relevant to the proceedings, it will consider the confidentiality concerns raised by VIA.

Interim Order

CCD requests that the Agency issue an interim order pursuant to subsection 28(2) of the Canada Transportation Act (CTA), which would suspend the retrofit process now underway and preserve the status quo pending a final determination of CCD's application.

In response, VIA advises that there is no need for an interim order because the assembly and car preparation process is not underway, and that it is complying with the Agency's prior production order, as set out in Order No. 2001-AT-R-122.

VIA states that there has been no change in its position since the Agency refused CCD's earlier request for an injunction. As such, VIA submits that the injunction should not be granted. Further, CCD has not met the tests, including an undertaking as to damages, which is required for the issuance of such an order.

CCD asks that its application be decided before the retrofit process actually begins. CCD is concerned that by the time the Agency determines that the retrofit process has begun and attempts to halt it, the damage will already be done.

The Agency first addressed the issue of an interim order in its Decision No. LET-AT-R-35-2001 dated January 24, 2001. The Agency stayed CCD's request for an interim order directing VIA not to retrofit or assemble the Nightstock cars pending the Agency's determination of the section 172 application until further information is submitted by VIA.

In Decision No. LET-AT-R-176-2001 dated April 3, 2001, the Agency stated that:

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.

In light of VIA's submissions as outlined above that it has not begun the assembly and car preparation process, the Agency will not at this point in the proceedings issue the interim order requested by CCD. The Agency will further consider CCD's request for an interim order once it has received VIA's reply to the Agency's production filing requirements as set out below.

Filing of further information

The Agency takes its mandate very seriously and wants to ensure that its mandate can be successfully carried out and that it will be afforded the opportunity to make a section 172 determination based upon the design of the Nightstock trains.

VIA states that it continues to be in the planning stage for the assembly and car preparation of the Nightstock trains, which will be introduced in three phases:

-first phase will be completed by December 2001 (Montréal - Toronto overnight service)
-second phase will be completed by September 2002 (Toronto - Québec)
-third phase will be completed during 2003 (Montréal - Halifax - Gaspé)

VIA submits that each phase will have its own assembly and car preparation plans and that the timing and completion of the plans for the three phases is being negotiated with Bombardier. Once those plans are completed, VIA will produce those plans pursuant to the Agency's Order.

In light of these submissions by VIA, the Agency requires VIA to file the following information which relates to CCD's request for an interim order and the Agency's determination pursuant to section 172 of the CTA:

1. In order to commence services with respect to phase I in December of this year,
- When does VIA expect plans to be sufficiently advanced to allow work to commence on physically preparing the cars to enter service? Submit such plans as soon as they have advanced to this stage.
- When does VIA expect work to start on physically preparing the cars to enter service?
- When does VIA expect such work to be completed?
- What is the current status of each car that is to enter into service in December?

2. With respect to all the accessibility features of the Nightstock trains (for example but not limited to aisle widths, tie-downs, washroom size and features, floor level variations, space for service animals, liftable armrests, accessibility of sleeper car)
- Has VIA made any determinations with respect to accessibility features to be implemented at any of the three phases and if so submit the information related to these determinations to the Agency in whatever form they might be in, including plans and schedules.
- Indicate whether these determinations are subject to further change.

3. VIA makes reference to assembly and car preparation plans.
- What are assembly and car preparation plans?
- Do these differ from retrofit plans?
- Submit any such plans which exist and the dates on which it is expected that plans for the remaining cars will be available.

4. VIA has cars that are substantially completed and those that are shells.
- Are the substantially completed cars those to be used in phase I?

5. File all schedules (1 to 6) missing from the Alstom contract that has been filed with the Agency.

VIA notes that the Nightstock trains will be introduced in three phases and that each phase will have its own assembly and car preparation plans. If phase I plans are concluded before phases 2 and 3, those plans are to be filed first to be followed by the other plans as each of those are completed.

The Agency requires that the aforementioned information and documentation be filed under affidavit attesting to its truth, accuracy and completeness signed by a director or officer of VIA.

VIA has until 5:00 pm on July 6, 2001 to file its answer with the Agency and provide a copy to CCD. CCD has until 5:00 pm on July 11, 2001 to file a reply with the Agency and provide a copy to VIA.