In reaching a decision, the Agency is likely to consider the following questions:

• What triggers the charge complained of?
• Is this something within the control of the shipper, the railway company, a third party?
• What is the objective of the charge or condition complained of?
• Does the charge or condition advance this objective?
• How do the charges or conditions compare with those of other railway companies?
• Does the charge or condition relate to an incidental service?
• If so, what alternatives does the person making the complaint have to obtain the incidental services to which the charges or conditions relate?
• How is the shipper making the complaint affected by the charge or condition?
• How are other shippers affected by it?
• What costs does the railway incur in providing the service to which the charge or condition applies?

In order to address these questions, a complaint should include or be supported by the following:

1. an explanation or illustration of how the charge or condition applies to the shipper’s traffic
   
   This would include a discussion of how the charge is most often triggered and what if any steps the shipper can take to avoid the imposition of the charge. If the complaint is occasioned by a change in the railway’s rules or charges, the application of the new tariff provision should be contrasted with that of the previous version.


2. a discussion of the objective of the charge or condition and whether this objective is advanced by the tariff
   
   In some instances it may be difficult for shippers to obtain reliable information concerning the objective of the charge or condition. In others, a railway company may have included an explanation of their rationale for imposing or changing the charge or condition on their websites or in other informational material sent to shippers. In some instances, for example, charges imposed for weighing at a shipper’s request, the main objective of a charge may be to compensate the railway company for work that is being performed. In other cases, for example failure to use a railway company’s on-line communications platform to submit bills of lading or release cars, the main objective may be to alter shipper behaviour.


3. information regarding how other railway companies handle the charge or condition at issue
   
   Most railway companies now make their tariffs available via the internet. This will enable shippers to compare the tariff provision that is the subject of a complaint with those of other railway companies.


4. information regarding competitive alternatives
   
   If the complaint relates to an incidental service rather than a charge for the movement of traffic, evidence demonstrating that there are no effective, adequate and competitive alternatives will be required.


5. effect of the charge or condition on shippers
   
   The CTA does not require a shipper to demonstrate that the ancillary charge or condition at issue is damaging to its business. A more general description which illustrates the unfairness or unreasonableness of how the charge or condition applies to the shipper or to other shippers should nevertheless be included. The railway company, in its written answer, may question the extent to which the shipper’s business interests are harmed, but the shipper should resist any attempts to have this factor treated as a criterion in the Agency’s determination of the matter.

Depending on the circumstances of the case, evidence in the following areas may also be relevant:

1. railway costs
   
   Where compensation for services rendered is the main objective of a charge, the cost which the railway company actually incurs to provide the service will be relevant. This type of evidence is not readily available to shippers, but there are consultants with expertise in railway costing who can provide an analysis of the costs involved. Costs may also be a relevant consideration in connection with charges designed to alter shipper behaviour. For example, do demurrage charges bear any relation to additional costs incurred by a railway company when the allotted free time for loading or unloading is exceeded or do charges imposed for faxed railcar releases correspond to additional costs incurred by the railway company in connection with this communication?


2. discrimination
   
   If the ancillary charge or condition discriminates unfairly between different shippers or commodities, this should be brought to the Agency’s attention. An example of this would be a demurrage rule that provides for less free time at loading or unloading for some commodities than for others.


3. other forms of unfairness
   
   If the specific shipper conduct that a charge or condition is intended to discourage is limited to a certain industry or commodity group, this may support an argument that the ancillary charge or rule is overly broad, by punishing or imposing onerous conditions on all shippers in order to address problems created by only a few.