Impasse continues between CN, Lambton municipalities over drainage fee non-payment

Plympton-Wyoming and Warwick Township are considering options after talks with Canadian National Railway Co. about $240,000 in outstanding drainage bills have reached an impasse, municipal leaders say.

“At this moment they are not paying,” Plympton-Wyoming Mayor Gary Atkinson said about the $80,000 he said CN owes his municipality, as per the Ontario Drainage Act.

CN, the municipalities have said, has refused to pay for about three years on drain maintenance and new construction charges on rural properties where it has lines.

Warwick Township officials say they’re owed $160,000.

During a phone call with a CN official after March Break, Atkinson said he was told “they’re still working on it (and) they want to do some further review.

“And we said ‘Look, give us the money you owe us’ … and nothing has been done,” he said.

The phone call was a followup after the municipalities met jointly with CN representatives in February, he said.

There’s been little communication since, Warwick Township Mayor Todd Case said

“We expect them to pay their bills … just like anybody else who’s assessed on a drain,” he said, adding CN not paying is not fair to municipal taxpayers, nor to others who have to pay under the Act.

CN officially advised municipalities in 2022 it would no longer be paying for drainage assessments for the installation and maintenance of municipal drain infrastructure in rural Ontario, a joint news release from Plympton-Wyoming and Warwick Township says.

CN’s refusal to pay is affecting other municipalities too, Atkinson said.

The Associations of Municipalities of Ontario indicated at least 60 mostly rural municipalities, all affected by railways, responded to a recent survey. Results from the survey indicate the amount for unpaid maintenance from CN and other railways is nearing $500,000, the amount for unpaid capital construction projects is about $1 million, and about $2.7 million of critical capital construction projects have been delayed due to lack of cooperation by the railroad, AMO officials said.

Ontario Agriculture Minister Lisa Thomson said in 2021 federally regulated railways are subject to the Drainage Act and CN is expected to pay its share of costs assessed under the legislation.

The subject has been discussed for years at Association of Municipalities of Ontario conferences, officials said.

“We have to look at our options,” Case said. “We’re not counting out legal action at this point in time (and) we’re still hopeful there’s still a chance that CN will come back to the table and pay what they owe us.”

Asked to comment on Warwick and Plympton-Wyoming’s claims, CN’s position is the Ontario Drainage Act no longer applies to the rail corporation and it has said “the outstanding balance owed to both municipalities, totaling $240,000, will not be paid,” the news release said.

CN spokesperson Julien Bédard says there’s no change to a CN statement issued last month.

“CN maintains that the cost contribution of work required on, over or under its right of way ought to be determined by existing federal processes found in the Canada Transportation Act,” the statement reads. “CN has always stated that it is willing to pay its fair share based on the determinations of those federal processes. CN agrees that the current situation requires resolution and is exploring options to address this impasse.”

The statement also notes safety is important, as is water flow in proximity to tracks, and “the applicability of the Ontario Drainage Act on federally regulated railways is an issue between all Class 1 railways in Ontario and the provincial government.”