CN takes a stand

Thursday, July 17, 2014

CN has finally been prodded to speak publicly about the fate of its James Street bridge in Thunder Bay. Repeated inflammatory statements by Mayor Keith Hobbs and a sudden trespass notice from Fort William First Nation Chief Georgann Morriseau appear to have prompted CN to reveal its position on the bridge, closed to traffic since a fire last fall.
While CN does not take kindly to what it sees as Hobbs’ intimidation it has given the city two options short of settling the matter in court. Given widely differing interpretations of the bridge agreement, the courts may be the only recourse. Otherwise, the city would have to pay half the cost of repairs whereas the 1906 agreement says, “The company will maintain the bridge in perpetuity without cost to the town . . . .”
At the heart of CN’s contention is how long a bridge can be expected to last. In criticizing Hobbs for suggesting the railway has failed to adequately maintain it, CN vice-president Olivier Chouc suggests the structure was designed to last 75 years. That it has continued to carry trains and traffic for a further 30 years disproves the mayor’s claim, Chouc writes in a letter to Hobbs and released publicly.
That leads Chouc to his central argument, that the old agreement cannot be held to apply to the bridge “in perpetuity” which is what the agreement says. It does not refer to “a bridge,” but to “the bridge” that CN’s predecessor company was paid by the former city of Fort William to build to accommodate vehicle traffic on roadways alongside the train tracks.
Apparently, CN believes the agreement ends with the useful life of the bridge. The city could argue that repairs could be conducted indefinitely. CN could counter that eventually, a new structure will have been built in successive repairs using new material.
It will be up to city council to decide at its Monday meeting who’s got the stronger case. CN has given it until Tuesday to respond to its proposal to either share the cost of short-term repairs equally, to a maximum of $1.5 million, or it will pay the full cost and let the courts decide whose interpretation of the agreement stands. If CN wins, it would seek to recover the full repair cost from the city. This would punch another large hole in the strained city budget that already has council asking administration to find savings. Or it could result in a restored bridge between the city and the Fort William First Nation now served by a lengthy detour.
CN is firm in its letter to Morriseau, saying it originally paid for right of way onto the reserve and that any doubt was removed when it transferred land to the First Nation Development Corp., in 1999 in return for release of any claim to the 1,600 acres transferred in 1906.
There seems little doubt about CN’s position with respect to the First Nation. The city case is more complicated since it involves interpretation of century-old wording and the nature of structural longevity.