TATC File No. H-4150-99
MoT File No. PISF - 946749
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Canadian National Railway Company, Applicant
- and -
Minister of Transport, Respondent
Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.), subsection 31(3)
Decision: July 12, 2016
Citation: Canadian National Railway Company v. Canada (Minister of Transport), 2016 TATCE 19 (Review)
[Official English translation]
Heard in: Québec, Quebec, March 23, 2016
REVIEW DETERMINATION AND REASONS
Held: The Minister of Transport has not proven, on a balance of probabilities, that he was justified in issuing an order applying at all times to the applicant. Consequently, the Tribunal refers the case back to the Minister for reconsideration.
 On June 11, 2015, Mr. Mario Bernier, a railway operations inspector with Transport Canada, issued a notice and order to the Canadian National Railway Company (CN), excerpts of which read as follows:
[Translation] CN carries out frequent switching operations at the grade crossing located at mile 0.29 of track CL77 at the Limoilou Yard. A large number of people on bicycles and on foot are blocked by these movements for periods sometimes exceeding the limit permitted under the Canadian Railway Operating Rules (CRORs). Some people using the grade crossing were seen on June 9, 2015 passing under the couplings when a train was stopped on this grade crossing. In my view, based on these observations, the switching operations carried out at this grade crossing as well as the number of people who use it, there is an immediate threat to rail safety.
I therefore order the Canadian National Railway Company to do the following: At the grade crossing at mile 0.29 of track CL 77 of the Limoilou Yard, prohibit any movement that stops on the grade crossing from starting up again unless the grade crossing is protected on both sides by employees to ensure that the public is protected. These employees must be able to communicate with the train team to prevent the train from moving in cases of intrusion.
 On June 18, 2015, in accordance with section 31.1 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA), CN applied to the Transport Appeal Tribunal of Canada (the Tribunal) for a review of the notice and order issued on June 11, 2015.
II. ACTS AND REGULATIONS
 Subsection 31(3) of the RSA, in force on June 11, 2015, provided the following:
31. (3) If a railway safety inspector is of the opinion that the operation of a line work or railway equipment threatens the safety or security of railway operations, the inspector, by notice sent to the company or to any other person who owns or leases the equipment,
(a) shall inform them of that opinion and of the reasons for it; and
(b) may, if the inspector is satisfied that the threat is immediate, order either of them to ensure that the line work or railway equipment not be operated, or not be operated otherwise than under specified terms and conditions, unless it is operated so as to remove the threat, to the inspector's satisfaction.
 The notice and order issued on June 11, 2015 pursuant to subsection 31(3) of the RSA mentioned [translation] “an immediate threat to railway security”. Subsection 4(4.1) of the RSA defines an immediate threat as a situation “in which a person could be injured or made to be ill or damage could be caused to the environment or property”, where such a situation “already exists”.
 The Tribunal entered into evidence Exhibit M‑1, a copy of the version of the RSA in force on June 11, 2015, prior to its amendment several days later on June 18, 2015.
(1) Examination-in-chief of Mr. Mario Bernier
 Mr. Bernier has been a railway safety inspector designated by the Minister of Transport under 27(1) of the RSA for the past two years. Previously, he held the position of train conductor for the Canadian Pacific Railway.
 Mr. Bernier filed the notice and order of June 11, 2015 (Exhibit M‑2) and read them out.
 Mr. Bernier also filed an email dated June 11, 2015 in which he forwarded CN the notice and order along with a diagram of the Limoilou Yard showing the various train tracks, the bicycle path/walkway and the grade crossing at issue in this case, marked with an “X” (Exhibit M‑3).
 Mr. Bernier confirmed that his manager, Mr. Robert Gaudet, had asked him to inspect the grade crossing following the publication of newspaper articles and the broadcast of a news report on the TVA television station.
 On January 28, 2015, Mr. Bernier observed two instances of non-compliance with rule 103(d) of the “Canadian Rail Operating Rules” (CROR), namely, that no train is allowed to stop at a crossing at grade for longer than five minutes during switching operations.
 Mr. Bernier's discussions that day with CN employees for the purposes of his investigation revealed the following, among other things:
- Trains often regularly remained too long in the grade crossing during switching operations;
- Once, one of the applicant's employees had to hold a person back by placing his hand on the person's shoulder as this person tried to lift a stroller over a train coupling at a grade crossing;
- The pathway is used by as many as fifty or so users per hour in winter, and 400 or so per hour in summer.
 Mr. Bernier confirmed that he had sent a letter reporting the non-compliance to Mr. Gilbert Dunberry, CN Superintendent in Québec. He reported that Mr. Dunberry had told him that switching operations took longer in winter because of the cold and the requirement to comply with Transport Canada brake inspection rules, resulting in delays at the grade crossing. Mr. Dunberry was to begin discussions with the City of Québec to close the pathway in winter.
 Mr. Bernier went back to inspect the grade crossing again on June 9 and 10, 2015. During those two days, he observed instances of non-compliance with CROR 103(d) in relation to stop times at the grade crossing and trespassing onto the tracks by pedestrians trying to get around a train stopped on the grade crossing.
 Mr. Bernier reported that, on June 9, while he was documenting non-compliance with rule 103(d) by making a video recording of a train stopped in the grade crossing for more than five minutes as people waited, he saw two joggers approach and then run alongside the tracks, trespassing into the area in an effort to get around the train. Anticipating the possibility that these two persons might ultimately decide to pass between two cars of this long train, Mr. Bernier decided to stop recording and catch up with them to prevent such action. When he reached them, one of the persons ran away in the opposite direction, while he saw the other crouched between the train cars on the other side of the tracks. The train then began to move.
 To support his testimony, Mr. Bernier presented the video sequence he had filmed on June 9, 2015 (Exhibit M‑5), in which we see people waiting at the grade crossing and two others who trespassed in front of the engine along the tracks. Mr. Bernier also presented two photographs taken on the same day (Exhibit M‑6): the first showed a person along the tracks beside the train, and the second showed the same person still beside the tracks but on the other side of the grade crossing.
 Mr. Bernier presented a form entitled “Railway Safety Inspector Decision Making Checklist” (Exhibit M‑7). He explained that this form is a work tool designed to assist railway safety inspectors in determining whether a situation presents an imminent threat.
 Mr. Bernier explained that the notice and order were not intended to be punitive, but rather a means of protecting the safety those using the grade crossing. On the same day that the notice was issued, Mr. Bernier specified to applicant that, under the terms of the order, the persons assigned to supervise the grade crossing need not be CN employees but simply had to be able to communicate with the engine crew in the event of any trespassing on the tracks or under the cars.
 Mr. Bernier confirmed that on March 23, the day of the hearing, the order was still in force and that CN had failed to show in any manner that the threat had been eliminated.
(2) Cross-examination of Mr. Bernier
 Mr. Landry asked Mr. Bernier how many people had used the pathway during his four-hour inspection on January 28, 2015. Mr. Bernier confirmed that he had not counted the number of persons who had used the trail at the grade crossing because the purpose of his inspection was to observe the train team. However, he reported from memory having seen between 10 and 20 users, although he was unable to state the exact number.
 During the inspection on January 29, 2015, Inspector Bernier did not observe any rail movement or any pathway users.
 Mr. Tremblay, of the CN Police, is the one who informed Mr. Bernier that there were sometimes as many as 50 users per hour in winter and 400 in summer.
 Mr. Landry asked Mr. Bernier if he had a copy of the procedures that establish when an inspector is required to follow up. Mr. Bernier confirmed that he did not have the procedure with him.
 On June 9, 2015, Mr. Bernier confirmed that he saw a large number of users on the pathway, but only one instance of unsafe behaviour at the grade crossing. He also confirmed that he had spoken with a fellow inspector to determine whether or not he should issue an order. He returned to the grade crossing the next day and, based on his observations, decided to issue a notice and order to CN.
 Mr. Bernier confirmed that on June 9, an individual had crossed between two cars or under the couplings and that on June 10 he had not witnessed any unsafe behaviour.
 Mr. Bernier confirmed that he had no data on the number of pathway users (pedestrians, cyclists, etc.) on the grade crossing in the evening or at night, but that the order applies 24 hours a day, 7 days a week and 365 days a year.
 Mr. Bernier explained the form comprising Exhibit M‑7, the calculation method used to determine the risk level and how he came to identify a “highly probable risk”.
 Mr. Bernier confirmed for Mr. Landry that he considered an order the best means of addressing the dangerous situation at the grade crossing.
 When asked about the reasons that had led him to issue the notice and order, Mr. Bernier answered:
[Translation] Based on the information I gathered from the train team, the police officer, newspaper articles and my own observations, it was clear that these were regular switching operations, regular non-compliance. I had seen impatient persons try to cross, completely disregarding the signage, which suggested an immediate threat to safety that had to be addressed.
 Mr. Bernier confirmed that he was unaware of the agreement between the City of Québec and CN concerning the grade crossing in question, and that he had not checked to determine who was responsible for the grade crossing.
 The Tribunal admitted into evidence a series of internal Transport Canada emails concerning a draft of the notice and order signed by Mr. Bernier. In an email dated June 10, 2015, Mr. Bernier's manager wrote: “Draft of Notice and order being done now...” Mr. Landry asked how a draft of the notice and order could be under preparation at the same time that Mr. Bernier was conducting his inspection in Québec. Mr. Bernier explained that he had consulted his manager and other employees of the Department in Ottawa for advice about engineering questions and appropriate vocabulary. He specified that the final decision was his.
(1) Examination-in-chief of Mr. Pierre Bergeron
 Mr. Bergeron entered his curriculum vitae into evidence (Exhibit A‑2) and briefly summarized his professional experience. Formerly a detective with the CN Police, he was a regional director responsible for Quebec and Ontario in 2015.
 Mr. Bergeron explained the background and context of the bicycle pathway crossing the Limoilou sorting yard using an aerial photograph of the area (Exhibit A‑3). In the 1990s, the City of Québec developed a network of bicycle paths. At the time, pedestrians who needed to get to the other side of the industrial area had to make a three- or four-kilometer detour or cross through the sorting yard illegally, as many did. CN therefore sold a portion of the property to the City of Québec, which used it to develop the bicycle path.
 The deed to the property was entered into evidence (Exhibit A‑4). Mr. Bergeron explained that the land became the responsibility of the City of Québec, and that three grade crossings were created when the bicycle path was developed.
 The outcome of this process by CN and the City of Québec was to channel pedestrian and bicycle traffic onto a pathway connected to the larger bicycle pathway network belonging to the City of Québec.
 Mr. Bergeron confirmed that no rail incidents causing injury or death had occurred at the grade crossing at issue since 1999.
 Transport Canada, the City of Québec and the Québec police department had discussed the matter and had collaborated in an effort to control pedestrian and bicycle traffic. The frequency of intrusions in the sorting yard diminished significantly once the bicycle path opened.
 Mr. Bergeron gave examples of locations that the City of Québec had deemed dangerous to pedestrians (particularly school children) and where it had taken the necessary steps to reduce the threat at no cost to CN. For its part, CN helped train crossing guards in order to raise their awareness of the threats present at grade crossings.
 Mr. Bergeron confirmed the estimated number of pedestrians using the grade crossing: from 300 to 400 individuals per hour in summer, and considerably fewer in winter given that snow is not removed from the pathway, namely, approximately 50 per hour. At night (between 9 p.m. and 5:30 a.m.), fewer than 10 people use the crossing based on the analysis conducted by the CN Police.
 Mr. Bergeron stated that the Québec Police visit the Limoilou Yard once a year to engage in discussions and share information. City of Québec police bicycle patrols at the grade crossing focus more on awareness-raising than enforcement activities.
 Mr. Landry asked Mr. Bergeron to comment on the following excerpt from a Transport Canada letter dated June 1, 2001, sent to CN and the City of Québec (Exhibit A‑5):
[Translation] In order to change unlawful behaviour and raise awareness among pathway users, the [Communauté Urbaine de Québec] indicated that its patrols would be asked to pay greater attention to these crossings for the time being.
 Mr. Bergeron confirmed that, pursuant to sections 26.1 and 26.2 of the RSA, police officers are empowered to issue tickets. Mr. Bergeron confirmed that approximately two thousand tickets had been issued last year in Quebec, including approximately 50 to 100 at the Limoilou grade crossing.
(2) Cross-examination of Mr. Bergeron
 At the request of Mr. Villemure, the Minister's representative, Mr. Bergeron read the first condition set out at page 6 of the deed of sale of the property to the City of Québec (Exhibit A‑4) :
[Translation] That the City agree to pay the construction and maintenance costs of grade crossings and of automatic protection systems in accordance with all requirements established by Canadian National and any authority having jurisdiction, it being understood that such work will be performed by Canadian National in accordance with the above-mentioned order.
 Mr. Bergeron confirmed that a protection system is in place on the bicycle path, that it had been installed by CN, and that the City of Québec had paid the costs of the work.
 Mr. Bergeron mentioned another condition of the agreement, namely:
[Translation] That the City agree not to interfere with the operation, maintenance or use of the railroad right-of-way and tracks.
 Mr. Bergeron stated that in his opinion, [translation] “clearly, based on the contract, pathway users interfere with railroad operations.”
 Mr. Villemure explained the RSA scheme that Mr. Bernier had used to reach his decision to issue a notice and order to the Applicant, specifically the aforementioned subsection 31(1).
 Mr. Villemure also drew attention to the definition of “threat” within the meaning of the RSA: “a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured,” specifying that the threat is considered immediate if such a situation already exists. Mr. Villemure underscored that this definition is extremely important to the extent that the inspector's authority to issue the order in question in this case revolved around the said definition.
 Mr. Villemure then reviewed the evidence submitted while calling attention to the fact that no testimony for the applicant had contradicted Mr. Bernier's testimony.
 Mr. Bernier had been informed of the fact that a problem seemed to exist at the Limoilou Yard grade crossing. When he visited the location to observe the facts in person on January 28 and 29, he saw a train stopped for more than five minutes at the grade crossing.
 Mr. Villemure drew attention to the fact that CN had stated that it could not comply with Transport Canada requirements because cold temperatures disrupted operations and switching movements.
 Mr. Villemure also drew attention to the fact that during his subsequent inspection on June 9, 2015, Mr. Bernier had commented that the grade crossing was still occupied for more than five minutes and that he had witnessed a situation in which two joggers had tried to get around the train and cross through it between two cars. On June 10, he observed that pathway users seemed to show blatant disregard for the instructions of CN employees.
 Mr. Villemure asserted that when Mr. Bernier issued the notice and order pursuant to section 31 of the RSA, he had no authorization to issue an order to the City of Québec. He also underscored the fact that Mr. Bernier was unaware of the agreements between the City of Québec and CN, or the contract obligations of the parties concerned.
 Mr. Landry considers that Mr. Bernier was unable to make a reasonable decision given that he did not have full knowledge of the relevant data, context or information.
 Mr. Landry contends that there is insufficient evidence, on a balance of probabilities, since the Minister failed to produce certain items of evidence, specifically concerning the threat or hazard during evenings and nights.
 For example, Mr. Landry mentioned Mr. Bernier's testimony with regard to the threat not being the same at 4 o'clock in the afternoon in June and in the middle of the night in January. Mr. Landry also underscored that the Minister had failed to present any evidence concerning the number of users on the bicycle path in question in the evening or at night. Therefore, Mr. Landry considered it unreasonable to issue an order applicable 24 hours a day, year-round.
 Mr. Landry then underscored that the evidence presented consisted of information that Mr. Bernier had obtained from a CN constable, without making his own autonomous, independent verifications, and that he allowed this information to suffice, despite all of the investigative authority available to him.
 According to Mr. Landry, Mr. Bernier's decision does not meet the reasonableness standard. The inspector visited the premises twice, on January 28 and 29, 2015, and later on June 9 and 10, 2015. He did not observe any unsafe behaviour in January and witnessed only one instance of unsafe behaviour in June.
 Mr. Landry highlighted that Mr. Bergeron had mentioned that the City of Québec had met its responsibilities at other grade crossings, including some that were manned by crossing guards. Mr. Landry indicated that it might have been possible to prompt the City of Québec to meet its responsibilities in respect of the grade crossing at issue in this case, and protect the safety of the public.
 Mr. Landry stated again that Mr. Bernier had insufficient data and had failed to make sufficient verifications even though he had the authority to obtain information from the City of Québec given its active involvement in maintaining the safety of the bicycle path.
 According to Mr. Landry, Mr. Bernier's testimony contained conflicting information. Following a TVA news report, his manager apparently instructed him to visit the grade crossing in January to assess the facts. Mr. Bernier apparently observed no unsafe behaviour, and returned to the location in June, at which time he observed one instance of unsafe behaviour. In his testimony, Mr. Bernier reported that he did not immediately make a decision, but consulted his colleagues and manager.
 However, according to the email dated June 10 in Exhibit A‑1, in which Mr. Bernier's manager wrote—in the words used by Mr. Landry—[translation] “the notice and order is being written and then will be issued,” the decision was made midway through the day before Mr. Bernier had even completed the form entered as Exhibit M‑7 and therefore had not yet made a decision. Mr. Landry thus contends that the inspector's discretion was limited or exercised by a person other than the person authorized accordingly by law.
C. Minister's Reply
 According to Mr. Villemure, one must take into consideration the governmental context and the fact that Mr. Bernier was not permitted to make unilateral decisions. More specifically, he had to keep the Minister's office informed. The RSA clearly establishes that a copy of the notice must be sent to the Minister, who must not be caught off guard, and this accounts for the emails exchanged with Ottawa.
 Mr. Villemure underscored that Mr. Bernier was ultimately the person who signed the notice and order in his own name, and the one present at the hearing to testify in this regard.
 The video sequence filmed by Mr. Bernier (Exhibit M‑5) shows unsafe behaviour by pathway users at the grade crossing. However, the inspector's analysis is limited to a few hours in the morning and afternoon, rather than a 24-hour period on different days of the week, to warrant issuing an order effective at all times.
 The notice and order require CN to ensure that two persons are present when a train occupies the grade crossing, regardless of the time of day, although the Minister did not submit evidence to the Tribunal showing that an immediate threat is indeed present at all times.
 The facts presented to the Tribunal do not warrant issuing an order to CN to [translation] “prohibit any movement stopping on the grade crossing from starting up again unless the grade crossing is protected on both sides by employees to ensure that the public is protected” 24 hours a day, 365 days a year.
 The wording of the agreement between the City of Québec and CN shows that the City is responsible for paying the construction and maintenance costs associated with grade crossings, in accordance with all requirements of all authorities having jurisdiction, and it agrees not to interfere with the operation, maintenance or use of the railroad right-of-way or tracks. The pathway crossing the sorting yard is therefore the property and responsibility of the City of Québec, and the tracks are the responsibility of CN. The Minister had to give consideration to this agreement, which was signed by both parties.
 The fact that the Minister waited a year less a few days before appearing before the Tribunal raises doubt about the severity of the immediate threat described at the hearing.
 The RSA provision under which the notice and order in question were issued is no longer in force. It was revoked at the same time that section 32.01 was added, authorizing the Minister to, “by order sent to a company, road authority or municipality, require the company, road authority or municipality to stop any activity that might constitute a threat to safe railway operations or to follow the procedures or take the corrective measures specified in the order”.
 The Tribunal considers that the parties and railway safety would be best served if the situation at the Limoilou Yard grade crossing were analyzed in light of the new wording of the Act, with consideration for pathway hours of operation and train movements, and in consultation with the parties concerned.
 The Minister of Transport did not prove, on a balance of probabilities, that he was justified in issuing an order applying at all times to the applicant. Consequently, the Tribunal refers the case back to the Minister for reconsideration.
July 12, 2016
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