[2017] 2 F.C.R. D-9
Transportation
Judicial review of decision by arbitrator concluding that applicant obligated to meet respondent’s request to provide undisclosed number of rail cars at respondent’s facilities — Applicant providing rail transportation to respondent — Parties failing to agree on contractual terms for 2015-2016 crop year — Arbitrator noting statutory obligations in Canada Transportation Act, S.C. 1996, c. 10 (Act), s. 169.37 which require arbitrator to take into account several factors — Accepting that respondent captive to applicant’s services — Concluding, inter alia, that applicant’s unwillingness to supply sufficient cars should not impair respondent’s growth — Of view that respondent having sufficient capacity to move amount of grain justifying number of cars requested — Concluding that applicant would not fail to meet service obligations to other shippers in order to satisfy respondent’s needs — Arbitrator’s decision unreasonable — Respondent relying on Canadian Transportation Agency (Agency) Letter Decision No. 2014-10-03 (Louis Dreyfus Commodities Canada Ltd v. Canadian National Railway Company) wherein Agency set out broad principles relating to a railway company’s obligation to provide adequate level of service under Act — However, Letter Decision No. 2014-10-03 not going as far as respondent maintaining — Overarching principle being that railway company must act reasonably: not expected to do impossible, but must show that it could not reasonably comply with shipper’s request — Agency recognizing permissibility of applicant’s car allocation policy — In Louis Dreyfus Commodities Canada Ltd v. Canadian National Railway Company, Letter Decision No. 2015-03-12, Agency not interpreting its decision in Letter Decision No. 2014-10-03 as prohibition on rationing; rather, Agency concluding that applicant’s car allocation policy must not be inconsistent with its service obligations — Agency decisions reflecting principles stated by Supreme Court in Patchett & Sons Ltd. v Pacific Great Eastern Railway Co., [1959] S.C.R. 271, i.e. a railway “is not bound to furnish cars at all times sufficient to meet all demands”; rather, reasonableness is a factual inquiry and “how each situation is to be met depends upon its total circumstances” — Arbitrator ignoring applicant’s obligations to other shippers, operational restrictions — No justification for arbitrator’s conclusion that applicant’s service obligation to respondent should not take account of possibility of rationing — Arbitrator having to contemplate, accommodate various factors that may affect delivery of cars — Application allowed.
Canadian National Railway Company v. Louis Dreyfus Commodities Canada Ltd (T-1599-15, 2016 FC 1190, O’Reilly J., public judgment dated October 25, 2016, 19 pp.)