TATC File No. H-4218-98
MoT File No. 11647325
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Canadian National Railway, Applicant
- and -
Minister of Transport, Respondent
subsection 31(2) of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.)
Decision: November 30, 2016
Citation: Canadian National Railway v. Canada (Minister of Transport), 2016 TATCE 33 (Review)
Heard in: Toronto, Ontario, on June 23, 2016
REVIEW DETERMINATION AND REASONS
Held: The Minister has not proven on a balance of probabilities that he was justified in issuing a Notice and Order to the applicant under subsection 31(2) of the Railway Safety Act. The matter is referred back to the Minister for reconsideration.
 On February 19, 2016, Mr. Bruce Watson, Railway Safety Inspector, Transport Canada, issued to the Canadian National Railway (CN) a Notice and Order which included the following:
On January 28, 2016, I performed an operations inspection at Goreway Drive in Brampton, Ontario (Mi. 8.8 CN Halton Subdivision) and observed that the crossing was blocked an excessive amount of time by CN trains entering CN's Brampton Intermodal Terminal. I observed:
CN Train 121, Locomotive CN 2843, occupied the crossing for 43 minutes from 09:02 to 09:45. After a brief stop for a false dragging equipment indication, the train continued into Brampton Intermodal Terminal by stopping 3 additional times before clearing the level crossing at Goreway Drive. During this time a substantial number of vehicles were stopped on the road, which included Public Transit and School buses. Also stopped on the road was an emergency response vehicle, which after a period of time put on its emergency lights, performed a three point turn and departed.
On February 15, 2016, CN wrote to Transport Canada with a twofold plan to address this issue. The long term plan is to install a Grade Separation at this location, projected to be completed in 2018. In the interim, CN has also stated that they:
- Will be reaching out to the City of Mississauga and the City of Brampton to arrange for a meeting in the upcoming weeks to discuss options to address this issue;
- Will be proposing to discuss alternative routes for emergency vehicles whereby the priority routes would be via the grade separated crossings at Airport Road and Finch Road and:
- Will be proposing to put into place a communication protocol for emergency responders for direct communication with CN when Goreway Drive must be used.
Therefore, this Notice and Order is being issued under subsection 31(2) of the RSA to inform you that, in my opinion, an immediate threat to safe railway operations exists. Pursuant to subsection 4(4.1) of the RSA, an immediate threat is defined as “a situation already exists” wherein a “hazard or condition such that a person could be injured or made to be ill or damage could be caused to the environment or property.”
Trains blocking the public crossing at Mi. 8.8 of the CN Halton Subdivision at Goreway Drive in Brampton Ontario, for an extended period of time, and the railway's unwillingness to immediately rectify the issue will create uncertainty for pedestrians and vehicular traffic. This situation is resulting in dangerous driver behaviour being taken at the crossing and could also delay the passage of emergency vehicles through the crossing in an emergency situation which could reasonably be expected to lead to a person being injured or made to be ill.
I therefore order that Canadian National Railway (CN) shall:
1) Ensure that all trains arriving at Brampton Intermodal Terminal are provided a clear route with all switches directly lined into their yard track, allowing for trains to pull continuously until the crossing is clear.
2) CN Rail to provide to the undersigned on a weekly basis, copies of Event Recorder downloads from the Grade Crossing Warning System at Mi. 8.8, Halton Subdivision (Goreway Drive, Brampton, ON).
II. STATUTES AND REGULATIONS
 Subsections 31(2) and 4(4.1) of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA) state the following:
31(2) If the railway safety inspector is satisfied that the threat is immediate, the inspector may, in the notice, order the person or any company whose railway operations are affected by the threat, to take the measures that are specified in the notice to mitigate the threat until it has been removed to the inspector's satisfaction
4(4.1) For the purposes of this Act, a threat is a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property, and a threat is immediate if such a situation already exists.
 Rule 103(d) of the Canadian Rail Operating Rules (CROR) states the following:
103(d) Except at those public crossings indicated in special instruction, no part of a movement may be allowed to stand on any part of a public crossing at grade, for a longer period than 5 minutes, when vehicular or pedestrian traffic requires passage. Switching operations at such crossing must not obstruct vehicular or pedestrian traffic for a longer period than 5 minutes at a time. When emergency vehicles require passage, employees must cooperate to quickly clear the involved crossings.
(1) Mr. Bruce Watson
 Mr. Bruce Watson presented his credentials as a railway safety inspector for Transport Canada. His principal functions are to monitor and ensure compliance for safety on railways, and monitor and ensure compliance to the CROR. Mr. Watson has performed this function since October 2012. Previously, he was employed by CN for 37 years of which the last eight years he was the risk manager of operations for Southern Ontario and was also a qualified locomotive engineer and conductor.
 Mr. Watson confirmed that Exhibit M-1 was the Notice and Order that he issued to Mr. Berrada of CN on February 19, 2016.
 Mr. Watson described Exhibit M-2A, which is the layout of the tracks between mileage 7.91 and mileage 10 of CN's Halton subdivision. The map shows the entrance to the switches and the track layouts leading into CN's Brampton Intermodal Terminal (BIT).
 Mr. Watson also described Exhibit M-2B, a Google street map showing Goreway Drive, Steeles Avenue and CN's Halton subdivision, and the entrance into the BIT.
 Mr. Watson identified the public crossing and the schools near the BIT. He described Goreway Drive as a four-lane road; two lanes northbound and two lanes southbound. It is a major thoroughfare travelling between Brampton and Mississauga.
 Mr. Watson mentioned that in this area, there is a lot of vehicular traffic such as school buses, public transit buses, trucks, private vehicles and emergency vehicles.
 Mr. Watson identified the dotted lines on the map as indicating where trains arrive southbound from Northern Ontario and where the westbound train from Montreal, Quebec arrives at the BIT.
 Mr. Watson explained the problem once the trains get to the crossover tracks. As trains enter the terminal, they proceed westbound on the main track, go through the switch across Goreway Drive, and proceed around the big curve. As they approach the crossover switch, the manager or yard master will decide if they want the train to cross over from one track to another. If the switches are lined correctly, it is a very simple and easy procedure for the train crew. If the switches are not lined correctly to where they want the train to go into the yard, the train must stop. Typically, the conductor gets off the locomotive, walks over and realigns the switch to the correct track, gets back on the locomotive and they proceed.
 Mr. Watson continued to explain that the crossover switch is about 5,400 feet from the main switch. For a 12,000-foot train, that would mean the train stopped at the crossover would still have 12,000 feet extending back from where the locomotive is, which would mean there would be approximately 6,000 to 6,500 feet east of the crossing and about 5,000 feet west of the crossing, therefore the train would be stopped on the grade crossing.
 Mr. Watson explained that his office had received information of excessive blocking at this crossing, so he performed unannounced inspections on January 5th and 6th,2016.
 During Mr. Watson's inspections, he observed “quite a few” trains entering BIT, of which three trains had sat on the crossing for excessive periods of time. Following his observations and assessment on January 6th, Mr. Watson met with Mr. Sean Madigan, Superintendent, Greater Toronto Area for CN, to explain his findings.
 Mr. Watson spoke to Exhibit M-3, a letter of non-compliance to Mr. Madigan, in which he explained some of the administrative information. Mr. Watson's observations of January 5th were as follows:
- Crossings were not cleared within five minutes as per CROR 103(d). January 5th at 8:21, the gates went down at the Goreway Drive crossing. Very shortly after 8:21, the crossing was occupied by CN 2912.
- At 8:28, the train stopped and the crossing continued to be occupied. At 8:30, the train began to pull, continuing into BIT. At 8:33, the train stopped and the crossing remained occupied. At 8:35, the train began to pull again into BIT.
- At 8:43, the train cleared the crossing. The gates went up and traffic resumed. The total time that traffic was stopped at the crossing was 22 minutes. For mathematical purposes, the total time the crossing was blocked as per CROR 103(d) was 15 minutes.
 Mr. Watson continued to speak to a second occurrence that was identified in his report attached to the non-compliance letter (Exhibit M-3).
- On January 5th at 9:34, the gates went down at the crossing. At 9:35, the crossing was occupied by CN 2812 West and traffic was stopped. At 9:42, the train stopped and the crossing continued to be occupied.
- At 9:45, the train began to pull again to resume its arrival into BIT. At 9:55, the train cleared the crossing. The gates went up and traffic resumed. The total time traffic was stopped was 21 minutes. The total time the crossing was blocked as per CROR 103(d) was 13 minutes.
 Mr. Watson then spoke to the third occurrence in his report (Exhibit M-3).
- On January 5th at 11:19, again, the gates went down at the crossing. At 11:21, the crossing was occupied by CN 2261 West. The traffic was stopped at that time. At 11:30, the train stopped. The crossing continued to be occupied. At 11:31, the train began to pull again into BIT.
- At 11:38, the train cleared the crossing. The gates went up and traffic resumed. The total time the traffic was stopped was 19 minutes. The total time the crossing was blocked as per CROR 103(d) was nine minutes.
 Mr. Watson then addressed his January 6th observations:
- At 9:12 in the morning, the gates went down. At 9:13, the crossing was occupied by CN 2877. At that time, the traffic was stopped. At 9:20, the train stopped and the crossing continued to be occupied.
- At 9:21, the train began to pull to resume its journey into BIT. At 9:27, the train cleared the crossing. The gates went up and traffic resumed. The total time the traffic was stopped was 15 minutes. The total time the crossing was blocked as per CROR 103(d) was seven minutes.
 Mr. Watson read the reply from Mr. Madigan, dated January 7, 2016 (Exhibit M-4), in response to Mr. Watson's non-compliance letter. The content of the document is as follows:
This is in response to your Letter of Non Compliance dated January 6, 2016 regarding the occupancy of the crossing at mileage 8.80 of the Halton Subdivision (Goreway Road). I thank you for the opportunity to provide our insight respecting this issue.
After reviewing the identified incidents, it came to light that trains arriving Brampton Intermodal Yard were not being lined directly into their yarding track resulting in the necessity to stop the train and line the switches, sometimes on more than one occasion. This practice, unfortunately, resulted in the identified crossing being blocked beyond the permissible time. In addition, it was observed that a yard movement were positioned themselves not clear of the fouling point of the arriving movement which additionally hampered one of the movement's direct entrance to their yarding track.
Effective immediately, all trains arriving Brampton Intermodal Terminal will be provided a clear route with all switches directly lined into their yarding track allowing the train to pull continuously until the crossing is clear.
I trust that these actions address the concerns raised in your letter of Non Compliance. Should you have any questions, please do not hesitate to contact me.
 Mr. Watson confirmed that he was satisfied with Mr. Madigan's reply to the non-compliance letter.
 Mr. Watson stated that he performed follow-up inspections on January 28th and 29th,2016, to ensure CN was implementing Mr. Madigan's instructions as per his January 7th letter of response.
 Mr. Watson indicated the location at which he was positioned to observe the train movements and stated that on January 28th, out of the 14 trains going through the crossing, two trains were non-compliant. On January 29th, out of six trains, one was non-compliant. He provided details of the non-compliant trains as follows:
- At 9:02, the gates went down. CN 2843 occupied the crossing. Traffic was stopped. Almost at the exact same time, at 9:02, an alarm was broadcast on the radio that the dragging equipment detector at mileage 7 had indicated equipment dragging on this train.
- At 9:03, the train stopped. At 9:07, the train was notified by the dispatcher that it was a false alarm and the train began to pull again. At 9:17, the train stopped while the crossing was occupied. At 9:19, the train began to pull, resuming its arrival into BIT. At 9:28 the train stopped.
- At 9:30, the train began to pull again. At that time, he observed an ambulance that had been waiting for the full time in the traffic. They put on their emergency lights, turned around and left.
- At 9:40, a carman arrived and performed an outbound inspection on the train departing on the opposite track. At 9:44, the train began to pull again and resume its journey into BIT. At 9:45, the gates went up, the crossing was cleared and the traffic resumed.
- The total time the train was blocked was 43 minutes. Assuming it was per the CROR, the blockage would have been 28 minutes.
 Mr. Watson described his second observation of January 28th:
- At 10:40, the gates went down as CN 2944 West occupied the crossing and traffic was stopped. At 10:49 the train stopped and the crossing remained occupied.
- A minute later, the train began to pull and resume its journey into BIT. At 10:51, the train stopped. At 10:52, the train began to pull again to resume its arrival into BIT.
- At 11:01, the train cleared the crossing. The gates went up and traffic resumed. The total time the gates were down was 21 minutes. From the time the train first stopped to the time the crossing was cleared was 12 minutes.
 Mr. Watson addressed his observations from his January 29th inspection:
- At 9:42, the gates went down at the Goreway Drive crossing. At 9:42, CN 5676 occupied the crossing and traffic was stopped. At 9:53, the train stopped while occupying the crossing.
- At 9:55, the train began to pull, proceeding into BIT. At 9:56, the train stopped while occupying the crossing. At 9:58, the train began to pull again, resuming its arrival into BIT.
- At 10:02, the crossing was cleared. The gates went up and traffic resumed. The total time the gates had been down was 20 minutes. The total time from the first stop to the time the gates were cleared was nine minutes.
 Mr. Watson described his observations of human behaviour at the crossing:
- Vehicles pulling out of the stopped traffic, doing a three-point turn and travelling in the opposite direction to escape the traffic jam.
- People shutting off their cars, opening their car doors, getting out, trying to see…trying to judge when the train was going to start moving again. They were standing on the road.
- One ambulance that had escaped by doing a three-point turn with its emergency lights on.
- Pedestrians were present but he did not observe any unsafe or hazardous actions.
 Mr. Watson indicated that he met with Mr. Madigan to share his observations of the inspections. Mr. Madigan believed that the problem had been resolved.
 Mr. Watson explained that he presented his observations to his supervisor. At that point, he did not take any further action as he believed that discussions were taking place with senior Transport Canada managers and CN's Law Department.
 Mr. Watson read and spoke to an e-mail of February 18th, 2016 (Exhibit M-5) from Lynda Macleod, Manager, Legislative Affairs, CN Law Department. It was directed to Stephanie Lines and Brian Jeans of Transport Canada with the title “Crossing at Goreway Road in Brampton”. The content of the document is as follows:
This is in response to your e-mail of February 16 in which you inquire about the ability for CN to have the switches in BIT lined-up in advance of all trains entering the yard in order to allow the train to proceed more quickly into the yard.
CN has reviewed this matter in detail. Unfortunately, it is apparent that this would be impossible to achieve in all situations due to the availability of resources. Additional assignments would have to be put in place at BIT at a significant cost. Furthermore, the pre-lining of switches would still result in occupancy of the crossing with a train in movement for extended periods of time due to a train having to enter Rule 105 territory.
That said, CN is willing to do what it reasonably can to allow the train to proceed more quickly into the yard which may include the pre-lining of switches when resources are available.
It should also be noted that, as referenced in our letter dated February 15, 2016 to the Ontario Region of TC, CN in collaboration with the road authorities, is taking concrete steps to address any potential safety issues with emergency responders as well as progressing the permanent solution of a grade separation. Additionally CN is proposing a meeting with all parties including Transport Canada to review the issues and identify any other options available in order to implement workable solutions for all stakeholders. We remain available to discuss.
 When asked by Mr. Villemure what Mr. Watson thought of Ms. Macleod's response and the letter dated February 15th, 2016, he answered that the long-term solution, the grade separation, is certainly the best solution. However, CN's response on February 18th did not address the short-term solution to the crossing being blocked for extended periods of time when the trains are starting and stopping repeatedly.
 Mr. Watson explained that on February 18th, once he received a copy of the e-mail addressed to Stephanie Lines and Brian Jeans, his decision was made that a Notice and Order was the tool to enhance safety at this location. Mr. Watson continued by stating that driver behaviour, the ambulance stuck in traffic, and the pedestrians in the area all contributed to his decision. He added that there was a school to the north, two schools to the south, a residential neighbourhood and many people in the area.
 Mr. Watson confirmed that he prepared the document entitled Railway Safety Inspector Decision-Making Checklist (Exhibit M-6). At the request of Mr. Villemure, he then read specifically what was ordered to CN, that being paragraphs 1 and 2 of the Notice and Order, which states that CN shall:
1) Ensure that all trains arriving at Brampton Intermodal Terminal are provided a clear route with all switches directly lined into their yard track, allowing for trains to pull continuously until the crossing is clear.
2) […] provide to the undersigned on a weekly basis, copies of Event Recorder downloads from the Grade Crossing Warning System at Mi. 8.8, Halton Subdivision (Goreway Drive, Brampton, ON).
 Mr. Watson explained that the second part of the Notice and Order would allow Transport Canada to receive data from the crossing computer system.
Cross-Examination of Mr. Bruce Watson
 Mr. Watson provided a brief overview of his actions prior to issuing the Notice and Order. He stated that he performed a site inspection for any practices that appeared to be unsafe or contrary to the CROR. He added that in this particular case, he wanted to observe if CN was complying with the measures that Mr. Madigan had committed to for improving track alignment at the crossing.
 Mr. Watson added that following his inspections of January 5th and 6th, he issued the letter of non-compliance to Mr. Madigan, of which he said was sufficient corrective action. Mr. Watson provided information pertaining to his inspections of January 28th and 29th, about which he met with Mr. Madigan and expressed to him that CN was not implementing the corrective action it had committed to. He confirmed that he did not send another letter of non-compliance to CN.
 When asked the reason why he did not issue an Administrative Monetary Penalty (AMP), Mr. Watson replied that typically with an AMP, there must bea clear violation of a rule in the CROR. In this case, the risky or hazardous behaviour was on public roadways by people in Mississauga or Brampton. That was in large part the reason why Transport Canada decided to go with the Notice and Order. He also added that it was clear in his mind that CN was in breach of CROR 103(d).
 Mr. Watson added that he also looked at what the hazard was and what the risk was. Mr. Watson then indicated that the risk at that point in time was the stopped traffic, the people out of their vehicles, and the performing of three-point turns (U-turns). He said there was risky behaviour being taken by the public.
 When asked by Mr. Landry to explain his understanding of Rule 103(d), Mr. Watson responded that when any train that is stopped or switching on a crossing in excess of five minutes, the railway must clear the crossing to allow the safe passage of traffic.
 Mr. Landry asked Mr. Watson to read the answer to the following question found on Transport Canada's website (Exhibit A-1). Mr. Watson read the following:
What regulations do railway companies have to follow when trains are operating at a public grade crossing?
- Railway companies cannot conduct regular railway operations or leave railway equipment blocking a public grade crossing for more than five minutes when drivers and pedestrians are waiting to cross, unless the railway equipment is continually moving in one direction.
- When emergency vehicles need to pass through, railway companies must take all measures to immediately clear the crossing.
 Mr. Watson read the following excerpt from Rule 103(d) of the CROR (Exhibit A-2):
Except at those public crossings indicated in special instruction, no part of a movement may be allowed to stand on any part of a public crossing at grade, for a longer period than 5 minutes, when vehicular or pedestrian traffic requires passage.
 Following the reading of this excerpt from the CROR, Mr. Landry asked Mr. Watson the following question: “Let's take the example of a train that stands on a crossing for 13 seconds and then continues onwards for 20 minutes. In your view, that would be a breach of 103(d) and the five-minute rule?” Mr. Watson replied: “That is the generally accepted interpretation in the industry”.
 Mr. Landry referred to a statement that Mr. Watson made earlier in the proceedings: “Train CN 2812, January 5, 2016. Train stopped at 9:42, started pulling at 9:45. That is three minutes. That is less than the five-minute rule, correct?” Mr. Watson answered “Yes Sir”.
 Mr. Watson agreed in cross-examination that on January 5th and 6th, train 2912 blocked the crossing for 22 minutes, and train 2812 for 21 minutes; the first train stopped four minutes and the second train stopped for three minutes.
 Mr. Landry asked: “when looking at January 5th and January 6th, do you agree with me that on these days, none of the trains you inspected were in violation of Rule 103(d)?” Mr. Watson replied: “as per the rule as it is written in front of me, you are correct”.
 Mr. Landry continued: “so according to the interpretation of the rule, none of those trains were non-compliant with the rule”, Mr. Watson replied: “I was applying generally accepted practices as opposed to the literal interpretation of the rule”.
 Mr. Landry further asked: “so … in this particular instance, rather than looking at the rule and trying to apply the rule to a situation, you have taken it upon yourself to take the generally accepted interpretation, knowledge and opinion, and you found CN in breach of what?” Mr. Watson replied: “failing to clear the crossing within five minutes from the time that they first stopped their train on the crossing”.
 Mr. Watson confirmed that correspondence between Mr. Michael McNeely of Transport Canada's Ontario regional office and himself revealed that the situation at this crossing was unacceptable and something had to be done (Exhibits A-3 and A-4). To the best of his knowledge, discussions were being held between Transport Canada (Ottawa) and CN's Law Department regarding the situation.
 Mr. Watson confirmed that primarily three situations led him to issue a section 31 Notice and Order: unsafe actions by drivers on Goreway Road while stuck in traffic; the ambulance that performed an unsafe turn with emergency lights on due to the traffic situation; and pedestrians in the area. Mr. Watson quoted the following sentence under “Hazard(s) or Condition(s)” of the Notice and Order that he issued: “This situation is resulting in dangerous driver behaviour being taken at the crossing and could also delay the passage of emergency vehicles through the crossing in an emergency situation which could reasonably be expected to lead to a person being injured or made to be ill”.
 Mr. Watson confirmed that he had follow-up with the ambulance services but was unsuccessful getting confirmation from them if there was a patient at risk in the ambulance.
 Mr. Watson confirmed that he was aware of a long-term solution at Goreway Drive that should begin in 2017 and be completed by 2018.
 Mr. Watson confirmed that he was aware of discussions regarding alternative routes for emergency vehicles, with the priority route being a grade-separated crossing at Airport Road and Finch Road. Mr. Watson then confirmed he was made aware on February 15th that a communication protocol existed for direct communication with emergency responders when Goreway Drive is occupied.
 Mr. Landry commented: “even if the train is going continuously straight into the yard, instead of taking 21 minutes it will take 17 minutes as it is being done under the Notice and Order”. Mr. Watson confirmed that in a subsequent inspection since the issuance of the Notice, it is his opinion that dangerous driver behaviour is remarkably down as trains move continuously into the yard.
 Mr. Watson provided an explanation regarding an item on the Railway Safety Inspector Decision-Making Checklist. As an example of risk scenarios he had evaluated and recorded on the form, he indicated that public transit and school buses were inconvenienced due to the delays at the crossing but not considered high risk, as individuals inside the vehicles could not get out and potentially perform dangerous behaviour.
 Regarding the profile of the pedestrians in the area, Mr. Watson explained that he could not confirm with certainty if they were high school students or simply youth in the area, but the age profile did match the ages of high school students.
 Mr. Watson explained that Rule 105 is applicable in most, if not all, railway yards in Canada. He said that it is a speed rule for the most part; trains must be prepared to stop in half the range of vision, and must be prepared to stop short of man or machinery on the track, or defective tracks and switches lined against them. Mr. Watson continued to explain that past switch No. 9, the train is “into 105 territory”, and that trains must be prepared to stop on short notice.
 Mr. Watson confirmed that he sent an e-mail dated February 9, 2016, to Greg Curtis and Mardy Lee Speers of CN (Exhibit A-6), asking if CN has a written protocol for advising local emergency services when the Goreway Drive crossing is blocked or expected to be blocked, and to provide him a copy of the protocol along with any records of phone calls advising the emergency services, from November 1, 2015 onward.
 Mr. Landry read the response from Ms. Speers, who confirmed that CN has a protocol in place for communicating with local emergency responders when there are unexpected prolonged blockages of crossings due to situations such as derailments and equipment failures. The e-mail response also stated that CN Police meets with their counterparts in communities regularly to discuss various local issues, including emergency response and protocol.
 Mr. Watson confirmed that CN has a protocol as indicated in the e-mail from Ms. Speers, but that they did not provide a copy, nor did they provide the information/records as to how many calls were made to emergency services, which was a contributing factor in issuing the Notice and Order.
 In response to a question raised by Mr. Landry as to how the situation and behaviour at the Goreway crossing can lead to a person being injured or made ill, Mr. Watson cited uncertainty about the wait times and an increased amount of irregular driver activity such as U-turns and people getting out of their vehicles. He added that it was unknown if the ambulance was transporting a patient during the incident in question or if it was responding to a call. Also, he observed pedestrians at the crossing and commented that he is aware of incidents elsewhere in Canada where people have climbed over or under railway cars to get to the other side of a blocked crossing.
Re-Direct by Mr. Villemure
 Mr. Villemure requested that Mr. Watson read the last question/ answer from the Transport Canada web site (Exhibit A-1): “A safety concern is created when railway equipment blocks a crossing on a regular basis and has the potential to cause physical harm, property loss, and/or have environmental impacts regardless of the length of time that it blocks the passage. For example, when a public grade crossing is on the primary access route of an emergency vehicle”.
 In reference to Exhibit A-5, Mr. Watson confirmed that trains exiting BIT are not a safety concern, as the trains assemble well within the terminal and typically come out travelling eastward with no reason for them to stop. The exiting trains travel across the Goreway crossing with a continuous pull.
(1) Mr. Fraser Gauthier
 Mr. Fraser Gauthier introduced himself as the current operating practices officer for CN in the Toronto area. He covers the Great Lakes district. He prints up bulletins and is available for rule interpretations, is the contact for many functions and draft manuals, and is “jack of all trades”. He added that in this role, he was involved in training development and provided training, recertification, new hires, mostly transportation. He was specialized in rail traffic controllers, in particular those of Edmonton, Toronto and Sault Ste. Marie.
 Mr. Gauthier added that he had 20 years of experience with CN, prior to which he worked for CP as a traffic controller. He explained the role of a traffic controller as the person who routes trains, and that they are considered the proper authority on the CROR. He mentioned that he started his career as a yardmaster and had a total of almost 30 years of experience in the rail industry.
 Mr. Gauthier confirmed that he was familiar with the Goreway Drive crossing. He also confirmed he was aware of most of the correspondence between Mr. Watson and Mr. Madigan, and of the Notice and Order issued by Mr. Watson.
 Mr. Gauthier provided that the CROR are “the rules and regulations for railways operating in Canada. It is the core document. A lot of documents spin off of that document to fill out the rules. It is the core document. The Bible you might say”.
 When asked if the Goreway crossing had “special instruction”, Mr. Gauthier confirmed that it did not. Regarding Rule 103(d), he stated that the clock will start when they (vehicles or pedestrian traffic) arrive. Trains could sit on the crossing for 20 minutes but when somebody arrives, the train must start moving within five minutes.
 Mr. Laundry provided a scenario to Mr. Gauthier: “If a train goes over the crossing, stops for one minute, then pulls, stops for another minute and then takes 10 minutes to clear the crossing, in this example would that train be in breach of 103(d)? Mr. Gauthier replied that no, they would be compliant.
 Mr. Gauthier continued to explain that when an emergency vehicle is noticed, all possible efforts are put in place to clear the crossing. He said that in his experience, employees are keen on complying with such a situation. As an example, when he was a rail traffic controller, he would occasionally get a call saying there was an ambulance approaching, and Rail Traffic Control (RTC) would get the train moving so that they could clear the crossing as quickly as possible. He stated that CN police do have a protocol with local authorities to alert them of a crossing situation and provide an alternative route, or to advise them to call another ambulance to respond to the emergency.
 Mr. Gauthier read part of an e-mail from Mr. David Durant, Inspector, Great Lakes Division North, CN Rail (Exhibit A-7) who had contacted all of his counterparts at Peel Regional Police, Peel EMS (Emergency Management Services), and the Mississauga and Brampton fire departments. According to the e-mail, all services reported that they were entirely unaware of any internal concerns or complaints with respect to the Goreway Drive crossing being occupied and negatively impacting on their emergency response history. All services have efficient means by which responding units are alerted to the Goreway Drive crossing, or any grade crossing for that matter, being occupied by a train, and alternative response strategies are quickly put into place. The e-mail closes with Mr. Durant reporting that all his conversations were very cordial and the various emergency service supervisors that he spoke with seemed pleased to have the discussion and that CNPS (the CN Police Service) was interested in their opinions.
 Mr. Gauthier read the first paragraph of Exhibit A-9, an e-mail from Mr. William Albritton of CN, dated February 24, 2016, concerning a download from the Grade Crossing Warning System. The download showed that CN locomotive 8830 had stopped for 13 seconds at the Goreway Drive crossing on February 23, 2016. In response to Mr. Landry's question if this 13-second stop was, in his opinion, a breach of Rule 103(d), Mr. Gauthier replied that no, CN was compliant.
 Mr. Gauthier provided information pertaining to track speed when approaching a rail yard and within the terminal. He indicated that the speed limit of trains entering BIT was 15 miles per hour, but reduced speed could be applied when considering other factors such as the curve leading into BIT. He said that the train must stop within half a range of vision of other equipment, that you need good sight lines, and that some other factors include weather, for example.
 Mr. Gauthier confirmed that longer trains of 10,000 to 12,000 feet, moving continuously at 15 miles per hour, would occupy the crossing for a considerable amount of time.
Cross-Examination – Mr. Villemure
 Mr. Gauthier described once again his duties as an operating practices officer. He explained that he has various duties that are changing continuously. Nevertheless, he is responsible for all the bulletins that get issued in the Great Lakes district. If someone wants to print a bulletin, Mr. Gauthier will see it prior to publication. Mr. Gauthier added that for any control changes that occur in the district, or anything that requires rule interpretation, he is the point of contact for employees and managers.
 Mr. Gauthier confirmed that the protocol in place (Exhibit A-6) is meant to address issues pertaining to unexpected prolonged blockages of crossings as a result of incidents such as derailments, and locomotive and equipment failures etc.
 When asked if the protocols were aimed at addressing operational issues such as switches not aligned, Mr. Gauthier confirmed that the protocol would not apply to operational issues.
Re-Direct – Mr. Landry
 When asked what the protocol would be if an emergency responder were to come to a crossing with their vehicle's emergency lights on, Mr. Gauthier confirmed once again that every situation would be unique. From his personal experience, RTC would instruct the train conductor and train master to cut the train and clear the crossing immediately. He stated that from the RTC centre, the information would filter down to the emergency responders and their vehicles who would be sent on other routes until the RTC/CN reported that the situation had been resolved at the crossing.
 Mr. Villemure stated that the objective of the RSA is to promote and provide for the safety and security of the public and personnel, and to protect property and the environment in railway operations. He cited the following paragraph of the Act:
3.1 The Minister is responsible for the development and regulation of matters to which this Act applies, including safety and security … in the discharge of those responsibilities, the Minister may, among other things,
(a) promote railway safety and security by means that the Minister considers appropriate.
 Mr. Villemure continued by quoting subsection 4(4.1) of the RSA pertaining to “threat” which reads:
For the purposes of this Act, a threat is a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property, and a threat is immediate if such a situation already exists.
 Mr. Villemure spoke to the hazard of a train stopped on a track as having the potential to lead to a situation where some pedestrians could make a silly decision such as “crossing over the train” to get to their destination.
 Mr. Villemure cited a Supreme Court of Canada decision, Maple Lodge Farms v. Government of Canada,  2 S.C.R. 2, and quoted page 7 of the decision:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
 Mr. Villemure commented on the debate in the interpretation of Rule 103(d). He argued that the issue is not what “standing” means, or when the “five minutes” starts and ends, or how it is counted, as these questions are all irrelevant. The issue is safety. The specific safety issue that Transport Canada was aiming to address was the operation of trains entering the terminal, the repeated stopping and starting, which had an effect on some people at the crossing.
 Further to the interpretation of Rule 103(d), Mr. Villemure submitted that whether CN was compliant or not, Transport Canada concluded that at the end of the day, there was a safety issue.
 Mr. Villemure submitted that a safety concern is created when railway equipment blocks a crossing on a regular basis and when it has the potential to develop into a situation that causes physical harm and property loss, regardless of the length of time that it blocks passage. He confirmed this as Transport Canada's position as presented in the exhibits.
 Mr. Villemure agreed with the long-term solution proposed by CN to have a grade separation built at this location. Nevertheless, he expressed great concerns regarding the short-term solution.
 Mr. Villemure made reference to Exhibit A-7, the e-mail from Mr. Durant of CN which states: “… the Platoon Chief advised that they have many railway level crossings in Brampton. When they are responding to an emergency and they discover a crossing occupied, they will report the issue to their Communications Centre and other fire trucks that are responding will be diverted to another route or a different fire station will be alerted to respond”. Mr. Villemure expressed concerns that a blocked crossing is causing delays in emergency situations and safety is compromised.
 Mr. Villemure continued by quoting another section of Exhibit A-7 which indicated that the only real impact of an occupied crossing on Goreway Drive might be Mississauga Fire's ability to respond northbound to assist Brampton Fire with a mutual aid call in that part of the city. Mr. Villemure indicated that this has the potential of developing into a situation that could either make someone become more ill or cause damage to property.
 Mr. Villemure stated that the only element that is required for a Notice and Order to be issued is a threat to safety. There is no statutory requirement to be in breach of a rule for a section 31 Notice and Order to be issued; the inspector does not need that. In this case the threat was immediate, the threat being a hazard of trains starting and stopping repeatedly which presented the potential for someone to get frustrated and make a silly decision.
 Mr. Villemure stated that Mr. Watson tackled the issue with CN. He was provided with answers; one being that they would do everything they could, and another being “we will do that when it suits us, when we have enough staff”.
 Mr. Villemure stated that some evidence was introduced, although not extensive, such as negotiations that parties had about the safety issue and how it could be dealt with. At the end of the day, those discussions did not lead to any satisfactory outcome for Transport Canada, according to Mr. Villemure.
 Mr. Villemure, stressing the importance of field sensitivity, quoted Mr. David Mullan, a professor and administrative law expert, who said that: “In many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.
 Mr. Villemure continued by saying that Mr. Watson is an experienced railway safety inspector who has been with Transport Canada for four years, and has 37 years in the railway industry. He stated that Mr. Watson is “sensible to those field sensitivities” and came to the conclusion that the trains repeatedly stopping and starting before entering the terminal created a hazard that had the potential to lead to someone being injured.
 Mr. Villemure repeated a question and answer that was asked during the examination-in-chief of Mr. Watson: if trains were stopped before the crossing in order for the switches to be lined up appropriately to have a 12,000-foot train enter the terminal continuously, would that train, if it was to stop before the crossing, block any other crossings? The answer was no.
 Mr. Villemure also underlined that Mr. Madigan was very cooperative when he candidly mentioned in a meeting with Transport Canada on January 7th that he would find a way to “pull those trains continuously” into the terminal to address the safety issue.
 Mr. Landry submitted that Mr. Villemure, as per his closing arguments, wants the Tribunal to disregard the notion of compliance and non-compliance by suggesting that the non-compliance with Rule 103(d) is irrelevant. Mr. Landry stressed that in fact it is pivotal and central to the matter. Had it not been for the letter of non-compliance with Rule 103(d), CN would have never offered or volunteered to line the switches.
 Mr. Landry submitted that in the letter of non-compliance issued to CN on January 6th, it was clear to Mr. Watson that there was non-compliance with Rule 103(d), and that therefore, compliance is at the heart of this matter.
 Mr. Landry quoted the definition of a threat from the RSA as: “a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property and a threat is immediate if such a situation already exists”. Mr. Landry stressed that the threat needs to exist in order for it to be considered an immediate threat, saying “the situation needs to exist now and not tomorrow, the following week, or in two years”.
 Mr. Landry stressed that the 43-minute blockage at the crossing was due to exceptional circumstances that rarely occur. The ambulance was there for 28 minutes before making a U-turn and there was no evidence of any complaints or concern with the fact that the crossing was blocked at that particular time.
 Mr. Landry submitted that CN was compliant with Rule 103. He referred to Mr. Gauthier's testimony about his 30 years of experience in the rail industry, and to evidence that the applicant got the Railway Association of Canada's (RAC) confirmation that CN had the correct interpretation of the Rule and that CN was compliant.
 Mr. Landry mentioned that Mr. Watson, during his testimony, acknowledged that from the examples on record in his inspection, there was no non-compliance according to the existing rule.
 Mr. Landry submitted that Mr. Watson, as per his testimony, based his decision on generally accepted principles in the industry. Mr. Landry stressed the importance of rejecting this argument as a basis for a finding of non-compliance. He said that you either make a finding of non-compliance because the rule is clear and you contravened the rule, or you don't. He referred to Exhibit A-1 concerning blocked crossings, and that the prohibition is on leaving railway equipment blocking a public grade crossing for more than five minutes. Mr. Landry further submitted there was no violation of Rule 103. There was a domino effect resulting in a section 31 Notice and Order because it started with a letter of non-compliance, when in fact there was no breach of that specific rule.
 Mr. Landry also stated that if there are uncertainties for drivers and pedestrians, it is because a train that occupies a crossing for 10, 15, or 20 minutes has the potential to cause physical harm, and that any and every crossing in Canada where there is a train that occupies a crossing and is moving in one direction, with cars waiting at that location, could be subject to a section 31 Notice and Order.
 Mr. Landry drew attention to the responses Mr. Durant received when he contacted the various emergency service responders (Exhibit A-7). The Platoon Chief from Brampton Fire indicated that occupied crossings are not really an issue for them, as different fire stations can be alerted to respond to a call. Likewise, the Peel Regional Police indicated that their responding officers can be diverted to avoid a crossing or alternatively, additional officers can be dispatched from a different sector to respond. Mr. Landry added that the emergency responders, firefighters, police, and ambulance service providers in Peel, Brampton and Mississauga did not have any issues with crossings being occupied.
 Mr. Landry brought to our attention the Supreme Court decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3,  1 S.C.R. 23 when they interpreted the language of paragraph 20(1)(b) in the Access to Information Act. He referred to paragraph 194 of the decision as a tool to use in the interpretation of section 4(4.1) of the RSA. Mr. Landry made the point that something cannot reasonably be expected to occur if it is a mere possibility.
Reply by Minister
 Mr. Villemure brought to our attention the definition of “threat” in the RSA as “a hazard or condition that could reasonably be expected to develop into a situation”.
 By issuing a Notice and Order under subsection 31(2) of the RSA, the Minister alleges that there is the existence of an immediate threat to railway safety. There is a difference between “threat” and “immediate threat” in subsection 4(4.1) of the Act. A threat is: “a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property”. However, in the case of an immediate threat, the situation (hazard or condition) in which a person could be injured or made ill already exists. As per the Minister's submissions, the situation and safety issue that prompted the Notice and Order was based on the observations made by the inspector on January 28th, 2016, at Goreway Drive in Brampton. It is the Minister's position that the hazard or condition, as per the Notice and Order, is that the applicant's trains occupied the Goreway crossing for an extended period of time resulting in dangerous driver behaviour being taken at the crossing, and that it could also delay the passage of emergency vehicles. However, the Minister has to prove that this situation (dangerous driving and delays to emergency vehicles) already exists and that it could cause a person to be injured or made ill.
 Although a condition does exist that trains are occupying the crossing for an extended period of time, CN provided evidence that it has developed a protocol to ensure that all emergency services (ambulance, police, fire) are alerted and redirected to crossings that are not occupied by a train, or towards a grade separation. The applicant entered uncontested testimonial and documentary evidence (Exhibit A-7) that emergency services had been contacted to verify that the crossing at Goreway Drive was not a concern and that alternatives existed in cases where the trains take too long to cross.
 The observed behaviour resulting from CN occupying the crossing does not indicate “immediate threat”. The inspector did demonstrate that the crossing was occupied for a long period of time, and that this was likely to continue to cause public inconvenience; potentially this could eventually cause drivers and pedestrians to try to “beat the train”, however there was no concrete evidence of such behaviour and a situation that is likely to happen is not an immediate threat as per the Act. There was evidence of drivers performing U-Turns, however, and there was no evidence that this situation is an immediate threat as per the definition of in section 4(4.1) of the RSA.
 Two senior CN officials stated in letters to Transport Canada that CN would either align switches or make reasonable efforts to minimize the delays at the crossing, and ensure clear passage for motorists and pedestrians.
 Furthermore, the Minister submitted in argument that the application of Rule 103(d) was irrelevant and that this was not a matter of compliance with the Rule. However, section 28 of the Act lays out the powers of a railway inspector; more precisely, paragraph 28(1)(a) states that the inspector carries out an inspection for the purpose of ensuring compliance with the Act and the Rules. The operations inspections on the 5th, 6th, 28th and 29th of January 2016 were done to identify non-compliances with Rule 103(d) of the CROR, as per the letter of non-compliance (Exhibit M-3) and the Operations Inspection Report (Exhibit A-8), and as per the testimonial evidence of Mr. Watson: He testified that he was asked to go out to Goreway Drive to confirm that trains were not blocking the crossing as per and CROR 103(d), and that he conducted a follow-up inspection on January 28th and 29th to ensure compliance with Mr. Madigan's instructions (and letter), as well as safety and, again, compliance with the CROR.
 The Notice and Order was issued under an alleged contravention of Rule 103(d) of the CROR, and this rule is relevant to the case. At the time of the inspections, the rule was applicable and was the basis for the Notice and Order issued to the applicant.
 The Tribunal, however, takes judicial notice that the Minister issued, under section 19 of the RSA, a Ministerial Order M16-02 on June 1st, 2016. This Ministerial Order instructs railway companies that Rule 103(d) of the CROR needs to be removed as it is a duplication of section 97 of the Grade Crossing Regulations (GCRs) for which the enforcement tool is now a monetary penalty. This Ministerial Order (M16-02) was later replaced by Ministerial Order M16-02.1, the latter having the objective to amend the time allowed to repeal Rule 103(d). As per the wording of Rule 103(d) of the CROR at the time the Notice and Order was issued, the trains should not be standing for more than five minutes.
 As per the documentary evidence and testimonies, most notably that of Transport Canada's inspector Mr. Watson on cross-examination, the trains were not stopped for more than five continuous minutes at a time on the grade crossing, therefore there was no contravention of Rule 103(d) of the CROR.
 Therefore, the Tribunal finds that the hazard or condition under which the Notice and Order was issued does not represent an immediate threat as per the Act.
 The Minister has not proven on a balance of probabilities that he was justified in issuing a Notice and Order to the applicant under subsection 31(2) of the Railway Safety Act. The matter is referred back to the Minister for reconsideration.
November 30, 2016
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