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Railway case sent back to agency

Federal Court of Appeal determines dispute must go back to Canadian Transportation Agency

The Canadian Transportation Agency may have lost a recent case to the Federal Court of Appeal, but its battle to address train noise hasn't been entirely derailed.

The agency, supported by the Quayside Community Board, recently appeared before the Federal Court of Appeal.

In a decision released Sept. 28, Justice J.A. Dawson said the issue to be determined on this appeal is whether the Canadian Transportation Agency erred in law in determining that it could adjudicate a complaint concerns noise and vibration arising from operations at the New Westminster rail yard, in spite of the fact that the parties had previously entered into a settlement agreement regarding the same complaint.

According to the court document, the Quayside Community Board filed a complaint with the agency in July 2008 about the noise and vibration caused by rail company operations at the New Westminster rail yard and sought nighttime restrictions for the rail yard.

The complaint was forwarded to mediation, which resulted in a settlement agreement signed by the community board and representatives of each railway company and the City of New Westminster - but the Quayside Community Board filed a second complaint in April 2010, indicating that the mediated settlement had failed to solve the concerns.

"The agency characterized the complaint to be one that 'the mediation process in this complaint has failed.' The railway companies responded that there was a valid and binding settlement agreement in place so the matter could not be adjudicated by the agency," stated the court document. "Any disagreement in respect of the implementation of the settlement could only be referred back to a reconvened mediation session."

In its submission to the court, the BNSF Railway company wrote that its position is that the Canadian Transportation Agency doesn't have the jurisdiction to deal with this noise and vibration complaint, under the circumstances that have occurred.

"The agency failed to consider and decide the central issue raised by the parties: what was the effect of the settlement agreement," stated Dawson in a written statement that was supported by all three members of the Court of Appeal who heard the case. "Was it a final and binding settlement which barred the community board from litigating issues it had previously compromised? By failing to decide the central issue raised by the parties, the agency's decision was unreasonable and so should be set aside."

The Federal Appeal Court concluded that the appeal would be set aside and returned to the Canadian Transportation Agency to determine whether the settlement agreement was intended to finally resolve the issues raised in the first complaint.

"If so, given the finding of the agency that the two complaints are virtually identical, the community board will be precluded from relitigating those issues before the agency," stated the judgment. "In the present case, the submission of the agency went beyond the scope of its jurisdiction. Counsel for the agency argued the merits of the appeal and asserted the reasonableness of the agency's decision. For that reason, it is appropriate that costs follow the event. I would order that the agency pay one set of the costs of this appeal to the railway companies."

James Crosty, president of the Quayside Community Board, told The Record that the board is awaiting instructions from the Canadian Transportation Authority.

The Canadian Transportation Agency informed Quayside residents that it will be providing direction to the parties involved shortly, possibly by the end of the week. In the meantime, the agency stated that there is nothing for the parties to do before they get their instructions.

"We are awaiting direction from the agency," Crosty said. "The case is still open. They closed the appeal, they didn't close the case. They sent it back."

tmcmanus@royalcityrecord.com

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