CN Rail federal seeking hearing in drainage fees dispute with Sarnia

Canadian National Railway Co. wants a federal tribunal to settle a dispute it has with Sarnia over money owed for drainage work on Crown corporation property.

But the Canadian Transportation Agency (CTA) isn’t the proper venue for that, said Robin Jones, chairperson of the Rural Ontario Municipal Association (ROMA).

ROMA is seeking legal intervener status for the pending hearing, where CN has asked the CTA to rule on the amount it’s required to pay Sarnia, she said.

“This is a constitutional issue,” she said, adding Ontario Superior Court would be the proper venue

“So, that’s why ROMA is involved,” as well as to advocate on behalf of about 40 municipalities affected by CN refusing to pay its share for drainage maintenance and new construction on properties where it has rail lines, Jones said.

“Everybody affected by that drainage needs to pay,” she said, under the Ontario Drainage Act that dates back to 1859, with which CN and other railways have complied and paid their fair share, until about three years ago.

“After a year or two (of not paying, CN) started saying ‘We don’t think the Drainage Act applies to us,’ Drainage Superintendents Association of Ontario president Elizabeth Cummings told The Observer in February.

Plympton-Wyoming, where Cummings is drainage and engineering coordinator, and Warwick Township have both gone public with the amounts — $80,000 and $160,000 respectively — they say CN owes and is refusing to pay for drainage work and maintenance.

Warwick has started offsetting CN’s account, instead of paying the corporation fees owed for crossings and other things, a township official has said, and municipal leaders met earlier this year with company officials to try to figure things out, but came up empty.

Those dead ends continues, Warwick Township Mayor Todd Case said this week.

“We continue to try to find solutions internally to present when we have the appropriate opportunity to do so.”

The particulars of the CN-Sarnia dispute aren’t clear.

Sarnia spokesperson Steve Henschel said in an email city council has directed city staff to respond to CN’s application to the CTA.

“Given that this direction came out of an in-camera session and pertains to an ongoing legal matter, the city cannot provide any further information at this time,” he said.

“If Sarnia makes a submission to the CTA, that submission will be in the public record and Sarnia can provide further comment at that time.”

No date has been set for the CTA hearing, said Jones.

In general, CN withholding dollars from municipalities means projects get backlogged, Cumming said earlier this year, noting a joint Sarnia and Plympton-Wyoming project to install larger culverts on the Mandaumin Drain was one of the projects stalled because “CN is refusing to work with us under the Drainage Act.”

ROMA, in a news release, said unpaid maintenance from CN and other railways was nearing $500,000 among affected municipalities, the amount for unpaid capital construction projects was about $1 million, and about $1.7 million in critical capital construction projects were delayed due to lack of cooperation by CN and other railways.

CN has said it’s share ought to be determined by existing federal processes in the Canada Transportation Act and it will pay what’s determined by those.

“CN agrees that the current situation requires resolution and is exploring options to address this impasse,” spokesperson Julien Bédard emailed earlier this year.

His 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.”

Most other communities affected by the dispute besides Sarnia are rural, Jones said, noting it would be difficult for railways to operate without proper and effective drainage.

Case noted there are a significant number of rural properties in Sarnia, and a large number of CN tracks leading to the tunnel crossing to Port Huron, Mich.

“ROMA asking for intervention status is definitely a positive for us and our community, he said.

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