Since this discussion always seems to polarise to "someone should just do it" pitted agains alarm about "expropriation" or legal principles of taking private property with or without just compensation, it's worth actually citing the law. ie the
Canada Transportation Act. Of this,
Division VI.1 is the most relevant..
Section 152.1 reads:
- 152.1 (1) Whenever a public passenger service provider and a railway company are unable to agree in respect of any matter raised in the context of the negotiation of any agreement concerning the use of the railway company’s railway, land, equipment, facilities or services by the public passenger service provider or concerning the conditions, or the amount to be paid, for that use, the public passenger service provider may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.
Interestingly, the term "public passenger service provider" refers specifically to VIA Rail. (Section 87)
And, Section 152.2(2) reads
(2) In determining that amount, the Agency must take into consideration, among other things,
- (a) the variable costs incurred by the railway company as a result of the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services, including, but not limited to, its variable costs incurred to maintain safe operations and to avoid congestion and undue delay;
- (b) the railway company’s cost of capital, based on a rate set by the Agency, applied to the net book value of the assets to be used by the public passenger service provider, less any amount to be paid by the public passenger service provider in respect of those assets;
- (c) the cost of any improvements made by the railway company in relation to the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services;
- (d) a reasonable contribution towards the railway company’s constant costs; and
- (e) the value of any benefits that would accrue to the railway company from any investment made by the public passenger service provider.
As to Co-Production, Section 139 reads
- 139 (1) The Governor in Council may
- (a) on the application of a railway company, a municipal government or any other interested person, or on the Governor in Council’s own initiative, and
- (b) after any investigation that the Governor in Council considers necessary,
- request two or more railway companies to consider the joint or common use of a right-of-way if the Governor in Council is of the opinion that its joint or common use may improve the efficiency and effectiveness of rail transport and would not unduly impair the commercial interests of the companies.
- Marginal note:Order in Council for joint or common use of right-of-way
(2) If the Governor in Council is satisfied that significant efficiencies and cost savings would result from joint or common use of the right-of-way by two or more railway companies and would not unduly impair the commercial interests of the companies, the Governor in Council may make any order for the joint or common use of the right-of-way that the Governor in Council considers necessary.
- Marginal note:Compensation
(3) The Governor in Council may also, by order, fix the amount of compensation to be paid in respect of the joint or common use of the right-of-way and any related work if the companies do not agree on the amount of that compensation.
There are other sections of the Act which prescribe how an arbitration is to be conducted in such a dispute - the short answer is, it may end up being "final offer selection" - a legal concept where the ruling body must pick one party's position or the other's, in total, but can't create its own solution.
So plainly, there is a certain amount of law already existing that plays on these situations..
I am not a lawyer and there are doubtless a million clauses and meanings and past rulings that bear on interpreting all this, but the point is - this law has been around for long enough that I can't see anyone challenging it on base Constitutional grounds. There have been past rulings applying this law and the parties (ie VIA, and the railways) have accepted the law as the basis for such decisions.
Imposing Coproduction or building a new intercity HxR or commuter line alongside existing freight trackage is a much broader and perhaps challenging thing to argue (as opposed to narrower issues where arbitration has been sought in the past eg CP's opposition to increasing the number of VIA trains per day through Smiths Falls). But the law is there and the process exists to deal with such things.
The question then becomes - why is this never done? I suspect it boils down to a lawyers' maxim - Never ask a questiion unless you are prepared to accept the answer. The CTA has made many decisions in the past -
Index here - which doubtlessly set precedent particularly around rates of return on capital and on use of railway lines. The experts might well be able to predict the likely cost parameters that the CTA would impose, and may have a good idea of "worst case' rulings if they lose.
In the end, it doesn't totally matter what the law says today, if there is legislative will to change the law - but parliament can't just wave a wand and arbitrarily make things work as they would like. (Only Doug Ford can do that, it seems).
I don't expect any of this to trigger on any of the proposals we are discussing, and certainly not by an initiative of the current or future government.
My point is just - there
is law, and a process, and it
can be used if anyone in high places actually saw good reason for doing so, and was willing to fund whatever the final price might be.
- Paul
