Availability of remedy

Federal railway companies, such as CN and CP, publish tariffs setting out the rates and charges for the various services they provide, together with rules governing the application of such rates and charges. Recent amendments to the Canada Transportation Act empower the Canadian Transportation Agency (the “Agency”) to review and assess the reasonableness of ancillary charges and associated terms and conditions set out in a railway tariff that applies to more than one shipper. If the Agency finds that the charges or conditions are unreasonable, it can establish new charges and conditions, and the railway company must then vary its tariff to reflect the Agency’s Order. The charges and conditions established by the Agency remain in effect for up to one year.

In determining whether a charge, term or condition is unreasonable, the Agency must take into account the following factors:

• the objective of the charges or associated terms and conditions, e.g. discouraging shippers from overloading railway cars
• the industry practice in setting the charges or associated terms and conditions, i.e. whether other railways have the same charges, terms and conditions
• in the case of a complaint relating to the provision of any incidental service, the existence of an effective, adequate and competitive alternative to the provision of that service, e.g., warehousing or weighing
• any other factors the Agency considers relevant

The new charges and conditions established by the Agency must be commercially fair and reasonable to the shippers who are subject to them as well as to the railway company.