Report for the Transportation Policy Innovation Centre (TPIC), School of Public Policy and Administration
Cameron Roberts, PhD
Contract Researcher, Carleton University
Research Associate, University of Wisconsin Madison
30 September 2022
Executive summary
During the winter of 2018-2019, the Canadian Transportation Agency launched a first-of-its-kind own-motion investigation into service issues with freight rail at the Port of Vancouver. This was prompted by allegations of congestion, as well as several embargoes (temporary restrictions on traffic) that CN and CP had imposed on freight rail traffic in the area. The own-motion investigation was meant to allow the Agency to get to grips with systemic issues that cannot be resolved within a single service complaint filed by a shipper. The investigation covered a wide range of topics, including congestion, embargoes, allegations of preferential treatment, communication issues, and a variety of shippers’ concerns about quality of service.
In the end, the Agency determined that some embargoes imposed to deal with congestion (such as the ones applied by CP) were appropriate, while at the same time saying that CN’s embargoes were not appropriate, based on the incidental detail of CN having communicated the embargo three months in advance. The Agency argued that such forward communication that embargoes may be coming, was evidence they were not an emergency measure and instead were a routine traffic control measure, which, it said, is not permissible. It concluded that CN breached its level-of-service obligations and by way of remedy or penalty CN was required to submit congestion plans for the winter peak season for three years going forward. This outcome and the process that led up to it did not satisfy many participants on any side of the case. There were persistent complaints from both shippers and railways that the investigation was rushed and confused, was too broad, and did not grapple with any of the difficult questions raised by stakeholders.
Our review of the investigation, using both publicly-accessible documents and interviews with key stakeholders, indicates that many of these complaints are well-founded. The research underpinning this report evaluated four types of debates: Diagnostic debates (about problems), prognostic debates (about solutions), motivational debates (about the desirability of solutions and justifications for their costs), and procedural debates (about the investigation process itself). In most of these categories, we find that the Agency’s decision did not meaningfully address the crux of the issues that arose. Several key tensions were left unresolved:
• The investigation’s focus was unclear, and its timelines simultaneously were too slow to have a meaningful impact on the congestion and embargoes, and too fast to carefully
consider the evidence brought forward.
• There was no clear consensus or guidelines on what constituted sufficient evidence in a process like this.
• There was no clear articulation of how to distinguish an emergency or unexpected event from routine operations.
• Key questions about responsibility for infrastructure investment were left unanswered.
• Ultimately, the Agency failed to consider the subject of the investigation in the detailed, systematic way that these investigations are supposed to permit.
It is not the purpose of this report to express an opinion on any of the legal or technical issues discussed in the investigation or in the Agency’s decision. However, a careful review of the investigation shows that there are serious problems with how the own-motion process is framed and structured, which will impede future own-motion investigations until they are meaningfully addressed. This research poses serious and challenging questions about the Agency’s ability in its current form to tackle some of the complex technical issues it faces.