The Canadian Wheat Board decision to file a complaint of inadequate service against the railways throws into the lap of a relatively new regulatory agency one of the most politically charged and long-running controversies in prairie agriculture.
How the Canadian Transportation Agency deals with the complaint and judges the performance of the railways will say almost as much about the CTA as it does about the railways.
“This certainly is a complex matter, a highly complicated file,” said CTA investigator Wayne Kay.
“We have not faced anything quite this extensive before.”
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In fact, the authors of the Canada Transportation Act approved by Parliament last year likely imagined that section 116, which allows complaints “that a railway company is not fulfilling any of its service obligations,” would bring focused complaints about a particular rail line or elevator point.
Instead, the wheat board is using the section to make a broad charge against the railways.
It will force the CTA to decide the somewhat political issues of what level of service railways are expected to meet, what factors can influence performance and how much responsibility for the smooth functioning of the system other players in the industry have.
The CTA by law must publish its decision no later than Aug. 12.
Kay said the railways have been asked to file a response within 30 days and the wheat board will have a chance to write a rebuttal.
He said there are many ways for the agency to tackle the project. It could call for more evidence from the parties, hold public hearings or send fact-finders to the Prairies.
“None of those decisions have been made yet,” he said last week.
In fact, the railways could challenge the wheat board’s right to use the CTA to launch its complaint.
When he announced the challenge to the railways, CWB chief commissioner Lorne Hehn said the board was acting “on behalf of farmers in Western Canada who want CN and CP Rail to be accountable for their performance.”
Last week, wheat board advisory committee chair Art Macklin said the board has a right to go to the CTA because it is a shipper, on behalf of farmers.
However, the legislation refers to complaints filed by “any person.”
One of the first issues the CTA may have to decide is whether the Canadian Wheat Board qualifies as a “person” for the purposes of the legislation.
Like most of the decisions and judgments the agency will make during this process, its decision on whether agencies or associations can file applications on behalf of others will set a precedent on how the new regulatory regime governing the railways will work.
