Photo: CN Rail
The Ontario Superior Court of Justice has made a decision on the proposed CN Intermodal.
On Wednesday, August 10th, the Ontario Court released its decision in a case between the Halton Municipalities/Conservation Halton and CN related to CN’s proposed Intermodal facility in Milton.
An application was made by the Halton Municipalities to reject the proposal on the basis that the project was unsafe for thousands of residents who live in the planned area.
The 20-page document breaks down the history of the case so far, as well as how the case is viewed by all parties involved. The Ontario Court says in the document, “Despite their opposition to CN’s intermodal hub, as the Province of Ontario agrees, the applicants lack constitutional competency to require CN to submit to their discretionary approval processes before it builds its facility. CN has obtained all the federal approvals it needs to construct and operate its intermodal hub at the proposed location.”
There is a bit of back-and-forth, with the document noting, “CN is entitled to build its intermodal hub in the location approved by federal authorities under applicable federal law.”
With the follow-up point regarding an issue with curb-cutting and grading: “But that does not mean that CN is immune to any or all local or provincial laws. If there is a curb cut issue or a grading issue, those can be discussed between the relevant officials of the relevant bodies. If CN violates a local law that applies to its intermodal hub, the local authority may seek enforcement proceedings. Those proceedings may involve constitutional issues or perhaps not.”
The document goes on to say that while the Halton Municipalities brought forth 50 potential laws that CN may break with its Intermodal, “simply listing 50 or more laws that might apply one day is not a sufficient basis to raise a constitutional issue in a justiciable manner… there is no factual dispute before the court on which CN shoulders a burden of proof.” The document calls the application against the intermodal ‘immature’.
It seems that while the Ontario Court agrees with there being potential issues facing the Halton Municipalities through this proposed intermodal, it does not agree with the arguments used in the application, as well as the lack of communication from officials.
“What is constitutionally offensive in this proceeding is the applicants’ effort to preclude CN from constructing the 18 approved intermodal hub at its approved location. Halton has refused to discuss its curb cut issues. It does not seek to enforce a specific concern about access to Britannia Road. Milton is not here discussing topsoil or its roadway issues. The applicants want to force CN to apply for their permission to build the intermodal hub at the proposed location. I do not need to rule that curb cut and grading bylaws are constitutionally invalid to find that the request for an injunction to prohibit a breach pending a permit being sought under the bylaws as written is overbroad and would significantly impair the core aspect of the federal power and undertaking.”
The document adds that more can be done to assert that CN is breaking a law, but for now, the application is dismissed.
Halton is still keeping a positive view, saying in a release that “While the decision did not grant the Halton Municipalities request for an immediate injunction, it did leave [an open door] for future activity by the Halton Municipalities to continue to enforce their laws in the public interest.”
Halton says its four municipalities, along with Conservation Halton, will continue to review the Ontario Superior Court decision and consider its options. They are also continuing its litigation in the Federal Courts to review decisions by the Canadian Transportation Agency, the Federal Minister and Cabinet to approve federal aspects of the CN Project. The Halton Municipalities oppose CN proceeding with the truck-rail hub in Milton because “it does not comply with applicable provincial and municipal laws and will cause significant harm to air quality and human health.”
To view the Ontario Court’s decision, click here. To learn more about the Halton Municipalities’ position on the project, click here.
