Moose Rail (National Capital Region)

[Joseph Potvin]

My money is on the city.

@kEiThZ,

Interesting that you put it that way. If you mean that as a taxpayer, you hope the City is permitted to dismantle federally regulated public infrastructure without federal authorization, I hope you'll explain your rationale. Especially since that infrastructure is the only remaining railway connection between the Quebec and Ontario sides of the NCR. So can you please help us understand your taxpayer perspective on this matter?

For the simple fact that precedent set by reading in Moose's favour would have such adverse effects all over the country. Here's the thing, if the CTA buys Moose's argument, there will be chaos across the country as community groups use that legislation to start attacking transit proposals everywhere.

Now you've confused me. Is it not true that MOOSE has the only transit proposal on the table presently to connect the NCR? We're pursuing legal cases where railways are being dismantled in what appears to be, through careful analysis, violations of the law. But MOOSE did not legally challenge the dismantling of the Beachburg Sub by CN, because all the laws were followed in that case. We're budgeting to rebuild that line.

But when you say "there will be chaos across the country as community groups use that legislation to start attacking", it sounds as if you object in principle to parties (whether companies like MOOSE, or community groups, or individuals) using existing legislation though normal regulatory processes to advance their causes or to oppose violations that harm their causes? Isn't that what you would want in a rules-based socio-economic system?

Also, ordering compliance can mean many different things. Most notably important is the timeframe in which the CTA might order compliance. If the CTA gives the City several years to figure it all out, Moose will have won a rather pyrrhic victory.

We've anticipated that, and declared our escalation sequence from the beginning. See paragraph 4 in...
https://www.letsgomoose.ca/wp-conte...ocumentation_RE210-R-2012_2016-07-25c_PDF.pdf
If things drag on beyond far what is reasonable, MOOSE will proceed to apply for a Writ of Mandamus in Federal Court. Here's the leading reference case in Canada in which the decision outlines the criteria for a Writ of Mandamus: http://reports.fja.gc.ca/eng/1994/1994fca0343.html
And here's a CN railway case in the US very similar to our own, in which CN seek a Writ of Mandamus against the US body similar to the CTA:
http://www.cn.ca/documents/About-EJE/CN-EJE-Petition-for-a-Writ-of-Mandamus.pdf (note the "Expedited Treatment Requested") and an Amicus Curae from another firm supporting CN http://www.nitl.org/Amicus08-1303.pdf

I am going to laugh if the City just goes ahead with the discontinuance process just to avoid legal costs and back and forth with Moose. They can sever the line and leave it there till such a time as they have a deal with Gatineau.

Careful what you wish for. See Divsion V of the Act. They'd have to offer it for sale at the salvage price (just at the City did). And we'd buy it for continued railway operations (just as the City did). The difference is that we'd really use it... and we suggest that's in the public interest, and consistent with the whole intent of Section 5 of the Canada Transportation Act: http://laws-lois.justice.gc.ca/eng/acts/C-10.4/page-1.html#h-4

Joseph Potvin
President and General Manager | Président et Directeur général
Mobility Ottawa-Outaouais: Systems & Enterprises Inc. (The mOOse Consortium) | www.letsgomoose.com
Mobilité Outaouais-Ottawa: Systèmes & Enterprises Inc. (Le consortium mOOse) | www.onyvamoose.com

 

[steveintoronto]

Just reviewing the Transportation Act, and the CTA is laid out in the Act, with attendant "superior court" powers of appeal and enforcement: (truncated due to length)

[...]
Powers of Agency
Marginal note: policy governs Agency
24 The powers, duties and functions of the Agency respecting any matter that comes within its jurisdiction under an Act of Parliament shall be exercised and performed in conformity with any policy direction issued to the Agency under section 43.

Marginal note: Agency powers in general
25 The Agency has, with respect to all matters necessary or proper for the exercise of its jurisdiction, the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders or regulations and the entry on and inspection of property, all the powers, rights and privileges that are vested in a superior court.

Marginal note: power to award costs

• 25.1 (1) Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding before it.
  
  
• Marginal note:Costs may be fixed or taxed
  (2) Costs may be fixed in any case at a sum certain or may be taxed.
  
  
• Marginal note: payment
  (3) The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.
  
  
• Marginal note: Scale
  (4) The Agency may make rules specifying a scale under which costs are to be taxed.

Marginal note:Compelling observance of obligations
26 The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency.

Marginal note:Relief

• 27 (1) 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.
  
  
• Previous Version
  Marginal note: Orders
  • 28 (1) The Agency may in any order direct that the order or a portion or provision of it shall come into force
    • (a) at a future time,
      
      
    • (b) on the happening of any contingency, event or condition specified in the order, or
      
      
    • (c) on the performance, to the satisfaction of the Agency or a person named by it, of any terms that the Agency may impose on an interested party,
    and the Agency may direct that the whole or any portion of the order shall have force for a limited time or until the happening of a specified event.
    
    
  • Marginal note: Interim orders
    (2) The Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application.
  Marginal note: Time for making decisions
  • 29 (1) The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension or this Act or a regulation made under subsection (2) provides otherwise.
    
    
  • Marginal note: period for specified classes
    (2) The Governor in Council may, by regulation, prescribe periods of less than one hundred and twenty days within which the Agency shall make its decision in respect of such classes of proceedings as are specified in the regulation.
  Marginal note: pending proceedings
  30 The fact that a suit, prosecution or proceeding involving a question of fact is pending in any court does not deprive the Agency of jurisdiction to hear and determine the same question of fact.
  
  Marginal note: Fact finding is conclusive
  31 The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.
  
  Marginal note: Review of decisions and orders
  32 The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.
  
  Marginal note: Enforcement of decision or order
  • 33 (1) A decision or order of the Agency may be made an order of the Federal Court or of any superior court and is enforceable in the same manner as such an order.
    
    
  • Marginal note: procedure
    (2) To make a decision or order an order of a court, either the usual practice and procedure of the court in such matters may be followed or the Secretary of the Agency may file with the registrar of the court a certified copy of the decision or order, signed by the Chairperson and sealed with the Agency’s seal, at which time the decision or order becomes an order of the court.
    
    
  • Marginal note: Effect of variation or rescission
    (3) Where a decision or order that has been made an order of a court is rescinded or varied by a subsequent decision or order of the Agency, the order of the court is deemed to have been cancelled and the subsequent decision or order may be made an order of the court.
    
    
  • Marginal note: Option to enforce
    (4) The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action.
  • [...continues at length...]

• http://laws-lois.justice.gc.ca/eng/acts/C-10.4/FullText.html

Seems that the CTA has a massive stick at its disposal, why are they deferring from swinging it?

 

[Joseph Potvin]

You'll have to excuse my lack of comprehension here, but I don't see anything in para 2

"and following"

Too much to repeat here.

Joseph

 

[Allandale25]

I'd like to ask @Allandale25, @Charles, @kEiThZ and @steveintoronto to set aside their irritation with some discussion comment style and tone.

And I would like to ask if @Charles, @Allandale25 or @kEiThZ might offer their ideas about why they think the Agency and the City are on conflicting paths about Decision-210-R-2012, and also why Rail Safety Directorate of Transport Canada and the City are on conflicting paths about safety on the PoWB. (Related to this matter generally, I'll pick up a comment from @kEiThZ separately.)

1. No, I'll continue to ask people to be civil if they make snarky, unhelpful comments like "are you blind".

2. My idea is that I look forward to reading what the CTA says next.

In another post you've already said you've got an escalation plan ("Writ of Mandamus") if necessary. Look forward to seeing how that pans out.

 

[kEiThZ]

Yeah. I don't see much further point in going around in circles. Let's see what the CTA says. Till then, I'm sure the City, the province and the Feds are all happily chugging along planning Phase 2 of the LRT.

 

[Urban Sky]

1. No, I'll continue to ask people to be civil if they make snarky, unhelpful comments like "are you blind".

Yes, such comments are certainly not helpful to maintain a constructive discussion culture, but before taking either side, I would invite everyone to have a look at the comment in question:

Link to comment: http://urbantoronto.ca/forum/threads/moose-rail-national-capital-region.25806/page-22#post-1251965

In this comment, Charles accuses Steve to having posted paragraph [41] while ommiting paragraph [4].

However, in the original post, Steve had clearly included both (even more: paragraph [41] was only added as an "Edit to add", while paragraph [4] had already been included in the initial version of the post):

http://urbantoronto.ca/forum/threads/moose-rail-national-capital-region.25806/page-22#post-1251823

Note that Charles published his comment at 5:28 PM, thus almost 6 hours after Steve's comment had been last edited at 11:37 AM (only 7 minutes after it was written).

Steve then pointed out that he had in fact included both paragraphs...

http://urbantoronto.ca/forum/threads/moose-rail-national-capital-region.25806/page-22#post-1251969

...to which Charles repeated his claim:

http://urbantoronto.ca/forum/threads/moose-rail-national-capital-region.25806/page-22#post-1251972

It is only then that Steve wrote the "are you blind":

http://urbantoronto.ca/forum/threads/moose-rail-national-capital-region.25806/page-23#post-1251975

Please correct me if I'm missing something with my subjective perception and recollection of this dispute, but I'd honestly like to know how those who condemn Steve for his choice of words would have reacted in his place...

Just my 2 cents, but thank you for reading!

TLDR: Steve posted paragraph

 

[Allandale25]

^ "I don't think you understood the point I was trying to make" is a lot more of a civil way of responding than "are you blind". It really is that simple.

 

[Urban Sky]

^ "I don't think you understood the point I was trying to make" is a lot more of a civil way of responding than "are you blind". It really is that simple.

In which case I find your self-constraint when faced with (in my subjective view) unjustified accusations like "It's always interesting how something taken out of context can be used to show one side's argument vs the other's." and "However you chose to only actually quote para 41, giving the perception that the city had been found to be in the wrong when in fact the CTA had ruled that the City had not discontinued the line." admirable!

Errors are what make us human (so are also emotions, by the way), but if someone vehemently repeats his accusations despite having been (in my view - feel free to disagree) proven wrong, I find it a bit cheap to solely place to solely blame the other side for using an unfriendly word, and speaking of which: "are you blind?" is hardly an insult, as it aims at a "no": "Are you blind?" "Of course not!" "Then why are you not able to see it?"

I am well aware that Steve is not exactly an angel (and I did have my beef with him before), but I can't help my impression that some people's reflex here is to instantaneously side against him whenever he is a side of a conflict.

As I said: just my two cents...

 

[kEiThZ]

I am well aware that Steve is not exactly an angel (and I did have my beef with him before), but I can't help my impression that some people's reflex here is to instantaneously side against him whenever he is a side of a conflict.

Goodwill is earned. Being brutish towards others in every exchange will cement your reputation very quickly. Did people miss such basic socialization lessons in grade school?

It's not like many of us haven't come across know-it-alls before. How many of you willingly socialize with one and rush to sign up to work with them? I thought so. Now why would anybody put up with it on a forum where it's our leisure time discussing issues we're passionate about.

My rule for dealing with unpleasant people is simple. I only put up with it if I'm being paid to do so.

 

[Charles]

Well, as this forum has degraded beyond the level of civil debate that I am prepared to engage in, I will say my farewells. As I've said before, we all have our opinions and we can all choose to highlight those points that reinforce our own opinions. Ultimately, only time will tell, CTA and the legal process will determine certain aspects of this case, and market forces will dictate the ultimate success or failure. Perhaps I'll check back in in a year or two to see what may have transpired.

 

[Allandale25]

Article from over the weekend here. Notes the latest letter the City of Ottawa sent to the CTA.

 

[steveintoronto]

Article from over the weekend here. Notes the latest letter the City of Ottawa sent to the CTA.

Excellent heads-up. Rather than comment on the details of that article (I'll wait until further is published), the *tone* has changed dramatically from the City of Ottawa. I suspect that sharper legal counsel has prevailed on them...and their solicitor.

There might have even been intervention in the form of a legal letter from Transport Canada or the Minister of Transport, something has changed their attitude on this. Again, I have to state: This isn't just about MOOSE, even though they're the ones in this particular case of holding the Law to what is written. This legal situation has far more at stake than just that particular issue. I do question the time frame stated to restore the bridge, and so will the CTA, as it brings into question, especially now that the City has stated the degree of poor repair, why it was allowed to happen w/o an application to abandon. Clearly precedents have been set on this, the CP case outside Vancouver on a spur across a bridge to a large customer allowed to deteriorate to the point of not being usable is indicative. CTA ordered remediation.

Edit to Add: RE: case noted prior:

Letter Decision No. CONF-4-2017
REDACTED VERSION
February 28, 2017
[...]
SUMMARY
[1] Univar Canada Ltd. (Univar) filed with the Canadian Transportation Agency (Agency) a complaint against CP alleging that CP failed to fulfill its level of service obligations as a result of a fire on July 9, 2014 that damaged the Marpole Rail Bridge (Marpole Bridge), which runs south from the Marpole Spur and allows for direct rail service to Univar’s facility in Richmond, British Columbia (facility).

[2] Univar requests that the Agency find that CP has failed to fulfill its level of service obligations for the receiving, loading, carrying, and delivering of traffic to and from the facility and order CP to:

1. repair the Marpole Bridge and restore rail service forthwith, and to fulfil its level of service obligations to and from the facility; and
2. compensate Univar, pursuant to paragraph 116(4)(c.1) of the CTA, for all expenses Univar incurred due to CP’s service failure, including legal fees, until such time as CP has restored rail service to the facility. Univar requests that the compensation be paid by CP on a monthly basis. Alternatively, Univar seeks its legal fees for this proceeding under section 25.1 of the CTA

[3] CP denies that it has breached its level of service obligations and states that is was unable to provide direct rail service to Univar as a result of force majeure circumstances. It asks the Agency to dismiss the application.

[4] The issues to be addressed in this case are:

1. Did CP breach its level of service obligations to Univar?
2. If so, what is the compensation to which Univar is entitled?
3. Should the Agency award Univar’s legal fees?

[5] For the reasons set out below, the Agency finds that:

1. Following CP’s cessation of service after the fire that damaged the Marpole Bridge, CP has been in breach of its level of service obligations to provide direct rail service to Univar except from July 10, 2014 until July 9, 2015 (first reasonable pause) and from March 11, 2016 until June 10, 2016 (second reasonable pause). CP remains in breach from the end of the second reasonable pause until such time that CP either restores direct rail service to Univar by rehabilitating the Marpole Bridge, or it has been relieved of its obligation to operate the line pursuant to section 146 of the CTA. To be relieved of its obligation, CP would have to complete the transfer and discontinuance process as set out in Part III, Division V of the CTA (discontinuance process).
2. Univar is entitled to compensation for the expenses it incurred as a result of CP’s failure to fulfill its level of service obligations, from the end of the first reasonable pause until the commencement of the second reasonable pause, and from the end of the second reasonable pause until such time that CP either restores direct rail service to Univar by rehabilitating the Marpole Bridge, or it has completed the discontinuance process.
3. The Agency dismisses Univar’s request for an award of legal fees.

[...]

https://otc-cta.gc.ca/eng/ruling/conf-4-2017

Edit to Add: Been digging for some background to the Metro story linked and discussed above. The author's submission was edited, and is missing some crucial information. I won't comment further but to clarify that the "John Manconi" referred to in article is:

General Manager, Transportatation Services
Company Name City of Ottawa
Dates Employed Jul 2016 – Present
Employment Duration 1 yr 3 mos

The city has not weighed in openly about the Moose Rail proposal, but in a memo sent to council on Friday, John Manconi said that “if another agency or organization were to decide to provide train service from Gatineau to Bayview Station, the City anticipates working in a coordinated and consultative manner with that agency or organization to provide access to the railway line on the Prince of Wales Bridge.”

That's quite a shift in position as per prior statements.

Note also:

...city clerk Rick O’Connor wrote in a letter to the CTA that “the City wishes to be very clear in confirming that it is not providing any assurances, representations or commitments of any kind regarding its ability to meet, or accommodate, these timelines.”

That's legally problematic for the City of Ottawa...I suspect the CTA will rule on the need for consultation with MOOSE and any other potentially involved parties before imposing action.

It seems the author has a copy of the letter. I'd like to see a copy of that...will Google later and perhaps write to the author to see where it's published, if at all.

 

[muller877]

Note also:

That's legally problematic for the City of Ottawa...I suspect the CTA will rule on the need for consultation with MOOSE and any other potentially involved parties before imposing action.
.

I wonder if the City realizes that Moose has no economic loss from the bridge closure. Only if Moose can prove there is economic hardship on them (and quantify it) would the City be forced to pay them compensation. And if they don't plan to be profitable how can they show the economic hardship? What expenses do they have for Ottawa to pay?

The City can just agree to pay economic damages...and unless Moose can prove the quantum of them the economic hardship is $0.

The other issue Moose will face is that the intent of the legislation is to deal with the loss of shipping routes, not passenger routes. Passengers are dealt with elsewhere in the Act and it is a legal question whether these judgements actually applies to passengers.

And realistically a commuter railway that goes from one 'burb to another burb while avoiding downtown will never actually get off the ground and I wonder when they will stop beating a dead moose (sorry for the joke).

 

[kEiThZ]

I wonder if the City realizes that Moose has no economic loss from the bridge closure.

LOL. They absolutely do. You can bet that their lawyers have calculated potential damages and costs and decided that fighting Moose is worthwhile.

Here's the thing, if Moose wins (and that's a big if), it'll still be a pyrrhic victory. The City can be ordered to share the corridor. But the costs that the city can require would still be substantial for a start-up like Moose. Moreover, nothing says that Moose has to get specific time slots in which to run their trains (like rush hour). All that will have to be negotiated. And all that will be expensive. And despite what Mr. Potvin says, I'm skeptical he has the business case to make it work.

Over on SSP, somebody has done the math. It would work out to something like 20% of the region's residents moving to areas surrounding the stations to make their business case work. And that's the best case scenario. Needless to say the numbers look rather fantastical. And if we can do rough math here, just imagine what their investment backers are saying after crunching more detailed math.

And realistically a commuter railway that goes from one 'burb to another burb while avoiding downtown will never actually get off the ground and I wonder when they will stop beating a dead moose (sorry for the joke).

This. Apparently, Moose will be suddenly so wildly profitable with its PPR model that they can provide free daycare, free parking, and cafe bars on the train. Maybe they'll pay the OC Transpo fare required to transfer to the LRT.

I still can't get past the fundamental problem of the plan: who moves to the country for high-density living or even suburban living of any sort? The whole attraction of these small towns is cheap, large lots. If 20% of residents were to move there (aside from the region becoming an utter mess), a lot of these small towns would entirely lose their appeal. They'd become mini versions of Orleans and Kanata.

 

[steveintoronto]

I wonder if the City realizes that Moose has no economic loss from the bridge closure.

That completely misses the point as that pertains to the CTA and a MOOSE "complaint"...not a suing for damages or losses. That may or may not be a competence of the CTA's Tribunal, what the various relevant Acts state is Federal Court, the division of which eludes me at this point in time. I'll add the reference later for the exact quote. Legal repercussions for violating the Acts are serious. This is about far more than just MOOSE.

I must ignore other comments and press ahead on posting the letter referred to in Allandale's last post, and consequently discussed by me. It was attached as part of a council memo:

Again, my impression of this is that this is a much more professional and well-advised over-view on the conditions that OC Transpo and the City of Ottawa are required to conform to. OC Transpo falls not only under various Acts under the jurisdiction of the CTA, but is *directly accountable* to the CTA due to the nature of the Capital Region being trans-border Ontario and Quebec, even to the degree of local bus issues!

This letter alone, even before the CTA responds, is indicative of a climate that MOOSE has been requesting all along, and as is their right under the laws of this nation.

Edit to Add: In reference to which court the Transportation Act (and I surmise other related acts) has jurisdiction:

Canada Transportation Act (S.C. 1996, c. 10)
[...]
Review and Appeal
Marginal note:Governor in Council may vary or rescind orders, etc.
40 The Governor in Council may, at any time, in the discretion of the Governor in Council, either on petition of a party or an interested person or of the Governor in Council’s own motion, vary or rescind any decision, order, rule or regulation of the Agency, whether the decision or order is made inter partes or otherwise, and whether the rule or regulation is general or limited in its scope and application, and any order that the Governor in Council may make to do so is binding on the Agency and on all parties.

Marginal note:Appeal from Agency

• 41 (1) An appeal lies from the Agency to the Federal Court of Appeal on a question of law or a question of jurisdiction on leave to appeal being obtained from that Court on application made within one month after the date of the decision, order, rule or regulation being appealed from, or within any further time that a judge of that Court under special circumstances allows, and on notice to the parties and the Agency, and on hearing those of them that appear and desire to be heard.

[...]

http://laws-lois.justice.gc.ca/eng/acts/C-10.4/page-4.html

Further to that, "The Agency" (CTA) has the full powers of the Federal Court, and subsidiary to that:

S.C. 2001, c. 29

Short Title
Marginal note:Short title
Transportation Appeal Tribunal of Canada Act.


Transportation Appeal Tribunal of Canada
Marginal note:Establishment

• 
  
• Aeronautics Act, the Canada Shipping Act, 2001, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation.
  
• Marginal note:Jurisdiction in respect of other Acts
  (3) The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act, sections 129.01 to 129.19 of the Canada Marine Act and sections 39.1 to 39.26 of the Navigation Protection Act.

• 2001, c. 29, ss. 2, 71;
• 2007, c. 1, s. 59;
• 2008, c. 21, s. 65;
• 2012, c. 31, s. 345.

Previous Version
[...]

http://laws-lois.justice.gc.ca/eng/acts/T-18.5/FullText.html

As stated prior, it seems a new degree of legal competence is prevailing at Ottawa City Council...One has to wonder if the impetus was external?

Late Edit to Add:
Reading this again:
Decision No. 210-R-2012
June 6, 2012
COMPLAINT by Mobility Ottawa-Outaouais: Systems & Enterprises Inc. pursuant to Part III, Division V of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
[...]
https://www.otc-cta.gc.ca/eng/ruling/210-r-2012

It appears that many of the City's latest claims in their letter to the CTA are completely contradictory to what was made in 2012.