VIA Rail

[reaperexpress]

I wonder if you understand how conflict resolution works. VIA is arguing that the CN directive was inappropriate. Win or lose, that is the singular issue before the court and all the parties will be able to speak to. Do you expect the court to rule on matters not before it? The court isn't Santa Claus.

Maybe CN acts naughty because in the steam era receiving lumps of coal from Santa was a desirable outcome.

 

[Jonny5]

I am not trained in law. I have not had any run ins with law. Sadly my knowledge is through what is reported(and what is not). I have many assumptions biased on a fair and just justice system. Sadly, many of those are incorrect.

As far as the precedence I think of, one could argue that both this and the other things that CN are doing is to purposely delay Via and prevent them from being able to run according to their schedule.

This almost certainly is a case where the contract had vague or ambiguous language and likely never contemplated this situation.

Many people think large corporations with in-house legal counsel always draft iron-clad contracts that are perfectly written to cover every possible scenario. The reality is far from that, indeed it's very far from it. Many times these contracts have massive errors or omissions in them, or they have sloppy writing, or they omit many important or potential details about future changes or unexpected events that cannot be forseen many years earlier.

I suspect the real outcome here is not a court ruling, but VIA and CN making a settlement out of court to amend the contract (this is what happens in 90% of contract lawsuits) and they both agree to alter the contract to allow VIA to operate at least partially the way they want to operate, while CN is tasked with fixing their crossings but on an extended timetable.

In other words, nobody "loses". Each side gets something they want immediately, and then they move on and do what they need to do over the next few years.

 

[lenaitch]

This almost certainly is a case where the contract had vague or ambiguous language and likely never contemplated this situation.

Many people think large corporations with in-house legal counsel always draft iron-clad contracts that are perfectly written to cover every possible scenario. The reality is far from that, indeed it's very far from it. Many times these contracts have massive errors or omissions in them, or they have sloppy writing, or they omit many important or potential details about future changes or unexpected events that cannot be forseen many years earlier.

I suspect the real outcome here is not a court ruling, but VIA and CN making a settlement out of court to amend the contract (this is what happens in 90% of contract lawsuits) and they both agree to alter the contract to allow VIA to operate at least partially the way they want to operate, while CN is tasked with fixing their crossings but on an extended timetable.

In other words, nobody "loses". Each side gets something they want immediately, and then they move on and do what they need to do over the next few years.

You could be right, but I doubt this is even a contract dispute. It strikes me as a dispute between two parties operating in a regulated environment, which makes me wonder why it is court and not before the regulator.

You are correct about the course of contract law. Unless they choose to specialize in areas such as criminal law, HTA (mostly paralegals now), etc. the vast majority of lawyers will never see the inside of a courtroom for a trial.

 

[micheal_can]

This almost certainly is a case where the contract had vague or ambiguous language and likely never contemplated this situation.

Many people think large corporations with in-house legal counsel always draft iron-clad contracts that are perfectly written to cover every possible scenario. The reality is far from that, indeed it's very far from it. Many times these contracts have massive errors or omissions in them, or they have sloppy writing, or they omit many important or potential details about future changes or unexpected events that cannot be forseen many years earlier.

I suspect the real outcome here is not a court ruling, but VIA and CN making a settlement out of court to amend the contract (this is what happens in 90% of contract lawsuits) and they both agree to alter the contract to allow VIA to operate at least partially the way they want to operate, while CN is tasked with fixing their crossings but on an extended timetable.

In other words, nobody "loses". Each side gets something they want immediately, and then they move on and do what they need to do over the next few years.

Another part of my dream world where contracts are thoughtful and ironclad. Maybe this case will help Via learn to make their contracts more ironclad.

 

[crs1026]

You could be right, but I doubt this is even a contract dispute. It strikes me as a dispute between two parties operating in a regulated environment, which makes me wonder why it is court and not before the regulator.

You are correct about the course of contract law. Unless they choose to specialize in areas such as criminal law, HTA (mostly paralegals now), etc. the vast majority of lawyers will never see the inside of a courtroom for a trial.

When VIA has gone before the CTA in the past, the CTA’s first test has been to determine if there is a commercial agreement between the parties, and if so the remedy to a dispute is to seek standard commercial arbitration. See here for a lengthy discussion of this process.

To seek a remedy from the CTA, I would guess that VIA would have to prove that the matter is outside any existing agreement. Perhaps that explains why this has gone to the courts and not to the CTA.

One has to suspect that VIA and CN already have language in their agreements saying that CN must make best efforts to handle VIA trains... and also language stating that VIA trains must adhere to CN's safety and operating requirements. And as noted, the explicit language of the contract will likely not speak to Venture equipment or shunt resistances....That creates a lawyer's open season where the parties can argue the intent of the contract in fairly general terms and the arbitrator must hear evidence and decide how the intent of whatever wording was negotiated applies to this situation.

And since we don't know the language of the existing agreement, we spectators are generally unable to figure out what the answer might be.

- Paul

 

[Bordercollie]

When VIA has gone before the CTA in the past, the CTA’s first test has been to determine if there is a commercial agreement between the parties, and if so the remedy to a dispute is to seek standard commercial arbitration. See here for a lengthy discussion of this process.

To seek a remedy from the CTA, I would guess that VIA would have to prove that the matter is outside any existing agreement. Perhaps that explains why this has gone to the courts and not to the CTA.

One has to suspect that VIA and CN already have language in their agreements saying that CN must make best efforts to handle VIA trains... and also language stating that VIA trains must adhere to CN's safety and operating requirements. And as noted, the explicit language of the contract will likely not speak to Venture equipment or shunt resistances....That creates a lawyer's open season where the parties can argue the intent of the contract in fairly general terms and the arbitrator must hear evidence and decide how the intent of whatever wording was negotiated applies to this situation.

And since we don't know the language of the existing agreement, we spectators are generally unable to figure out what the answer might be.

- Paul

If there was a problem with the low shunt signal the argument should be made that this should have been discovered during the testing phase before the trains were allowed to enter regular service.

The fact that CN gave the trains their LRC+? Designation means that it was approved, to later retract that at a later date due to "potential" safety concerns is a non starter. There isn't a single recorded incident of a crossing not activating. So their argument is worthless.

 

[Trackside_Treasure]

Transport Canada got involved in the VIA/CN Venture speed-reduction issue in a letter to CN from TC's Director General of Rail Safety and Security on December 10...
"Transport Canada takes this matter seriously and, through this order, is seeking
information to ensure compliance with grade crossing requirements, such as those found
in the Grade Crossing Regulations, and ascertain whether there is an active safety issue. This information will
assist TC in determining next steps, which could include requiring companies to
implement corrective measures to mitigate any risks.
In addition, there remains a need to ensure that CN’s implementation of the operating restrictions for VIA’s Ven
Venture fleet is effective in identifying and addressing safety concerns as they arise.

Pursuant to section 36 of the Railway Safety Act, the Canadian National Railway Company is hereby ordered, within 30 days of
receipt of this Order, to file with the Minister of Transport:
All available records demonstrating warning activation times, including the time
gates (if equipped) were in the horizontal position, for each crossing activation for
the period starting in May 2024 to the date of this Order." [of all the crossings upon which CN imposed speed reductions throughout the Ontario-Quebec Corridor.

This report to TC is due over a month before the next Court session for the judicial review VIA launched concerning CN's actions, scheduled for February 25.

 

[Bordercollie]

Transport Canada got involved in the VIA/CN Venture speed-reduction issue in a letter to CN from TC's Director General of Rail Safety and Security on December 10...
"Transport Canada takes this matter seriously and, through this order, is seeking
information to ensure compliance with grade crossing requirements, such as those found
in the Grade Crossing Regulations, and ascertain whether there is an active safety issue. This information will
assist TC in determining next steps, which could include requiring companies to
implement corrective measures to mitigate any risks.
In addition, there remains a need to ensure that CN’s implementation of the operating restrictions for VIA’s Ven
Venture fleet is effective in identifying and addressing safety concerns as they arise.

Pursuant to section 36 of the Railway Safety Act, the Canadian National Railway Company is hereby ordered, within 30 days of
receipt of this Order, to file with the Minister of Transport:
All available records demonstrating warning activation times, including the time
gates (if equipped) were in the horizontal position, for each crossing activation for
the period starting in May 2024 to the date of this Order." [of all the crossings upon which CN imposed speed reductions throughout the Ontario-Quebec Corridor.

This report to TC is due over a month before the next Court session for the judicial review VIA launched concerning CN's actions, scheduled for February 25.

This will tell you if CN's claim is baseless or not. If there are any situations where crossings did not activate then they have a valid claim.

I don't know if they would have a record of every train and every crossing would they?

 

[smallspy]

I don't know if they would have a record of every train and every crossing would they?

Each active crossing system logs every single activation, storing the time of activation, train speed, time that the gates are down, etc. Transport Canada requires this information so that the TSB can investigate in the event that an incident happens at that crossing. Passive crossings have no detection and thus no means of tracking anything.

They would then be able to cross-reference this data against the stored train information from the RTC2 system to be able to tell exactly which trains were where.

Dan

 

[Bordercollie]

Each active crossing system logs every single activation, storing the time of activation, train speed, time that the gates are down, etc. Transport Canada requires this information so that the TSB can investigate in the event that an incident happens at that crossing. Passive crossings have no detection and thus no means of tracking anything.

They would then be able to cross-reference this data against the stored train information from the RTC2 system to be able to tell exactly which trains were where.

Dan

It's stored for two years?

 

[Trackside_Treasure]

This will tell you if CN's claim is baseless or not. If there are any situations where crossings did not activate then they have a valid claim.

I don't know if they would have a record of every train and every crossing would they?

Crossing protection data is saved, I believe for 30 days at each installation, possibly longer in some sort of CN central database? But let's put it this way...if there are any deficiencies or short activations due to loss of shunt, CN will have those tucked away and readily accessible.

I can add that CN did not provide any such claim in its judicial review. So does that make it baseless? VIA has asked CN repeatedly for information to support CN's claims, maintaining there is none that rises to the level of the speed reductions that CN implemented on the Ventures.

 

[Bordercollie]

Crossing protection data is saved, I believe for 30 days at each installation, possibly longer in some sort of CN central database? But let's put it this way...if there are any deficiencies or short activations due to loss of shunt, CN will have those tucked away and readily accessible.

I can add that CN did not provide any such claim in its judicial review. So does that make it baseless? VIA has asked CN repeatedly for information to support CN's claims, maintaining there is none that rises to the level of the speed reductions that CN implemented on the Ventures.

I guess the lawyers are paid regardless.

 

[micheal_can]

Crossing protection data is saved, I believe for 30 days at each installation, possibly longer in some sort of CN central database? But let's put it this way...if there are any deficiencies or short activations due to loss of shunt, CN will have those tucked away and readily accessible.

I can add that CN did not provide any such claim in its judicial review. So does that make it baseless? VIA has asked CN repeatedly for information to support CN's claims, maintaining there is none that rises to the level of the speed reductions that CN implemented on the Ventures.

If there is no evidence of it being an issue, why would CN do this?I don't want to believe they did it maliciously. However,if they did, besides removing the slow order, what can Via do/get for compensation? (maybe operating control of the Kingston Sub....)

 

[Bordercollie]

If there is no evidence of it being an issue, why would CN do this?I don't want to believe they did it maliciously. However,if they did, besides removing the slow order, what can Via do/get for compensation? (maybe operating control of the Kingston Sub....)

Good luck.

Maybe 500k for their loss in revenue.

 

[crs1026]

A technical question..... is the shunt resistance threshold for crossing gates different from the shunt resistance threshold that determines "occupancy" for CTC?
I'm not aware of any incidents where Venture trains disappeared altogether from RTC screens, if there were, one might have heard mention of these in the grapevine.
Granted, crossing protection is a more demanding scenario as even a few seconds disappearance might make the passage over a crossing unsafe....where a train disaapearing and then reappearing from the RTC console might simply trigger a nuisance alarm for the RTC.... I'm just wondering if the technology is identical or not. If similar, one would think CN would have data on any such disappearances also..... if in fact these disappearances do happen.

- Paul