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Producer car loader’s CN complaint dismissed by CTA

CN isn’t bound by law to keep or operate a producer car site wherever one exists or a farmer wants one, Canada’s transport regulator has ruled.

The Canadian Transportation Agency (CTA) on Wednesday dismissed a level-of-service complaint filed late last year by Cam Goff, a central Saskatchewan farmer and farmer-elected Canadian Wheat Board director.

Goff’s December 2009 complaint followed Canadian National Railway’s (CN) decision last summer to delist 53 Prairie sites where farmers can load their own grain cars.

Although Goff’s initial filing referred to “the loss of rail access by thousands of farmers at 53 sites,” the CTA said, the agency could only concern itself with CN’s decision to delist a site at Allan, Sask., about 50 km southeast of Saskatoon.

The CTA, in its release Wednesday, cited evdience that Goff had only used the producer car site at Allan three times since 2005-06 and “future traffic offered by (Goff) at the Allan site is not certain.”

And Goff’s requests for producer car loading at Allan are also “not likely to be in sufficient volume for the agency to reasonably require CN to maintain service at that location,” the CTA said.

Plus, the CTA said, Goff will still have access to CN’s producer car loading site at nearby Hanley, Sask. The agency quoted Goff as saying he uses the Hanley site near his farm “out of personal preference while business decisions dictate the use of the Allan site.”

Specifically, the CTA said, Goff is concerned that delisting the Allan site “will cut him off from the CWB Churchill Storage Program for grain,” but the agency ruled that access to that program would still be available to him at Saskatoon.

And that, the CTA said, “would be a reasonable alternative to the Allan site, particularly in light of the limited historical use the complainant has made of it.”

Furthermore, the CTA said it doesn’t view Goff’s eligibility for the Churchill program as a “key consideration” in whether CN has fulfilled its level-of-service obligations to him, as the administration of that program is the CWB’s jurisdiction.

Not obliged

The Canada Transportation Act’s “level of service” provisions do not oblige railway companies such as CN to maintain and operate all existing or requested producer car loading sites, the CTA ruled.

“Requiring railway companies to do so would render meaningless another provision of the Act under which sidings may be delisted, a process which CN followed for the 53 sites.”

In its ruling, the agency quoted Goff and his supporting interveners, which included the CWB, National Farmers Union, Hudson Bay Route Association and Producer Car Shippers of Canada, as referring to “the right to load a producer car.”

Goff and the interveners cited King v. Benoit, a landmark early-1900s-era court case on producer car availability, and the current Canada Grain Act as supporting their claim.

However, the CTA said, neither the Grain Act nor the Benoit case “appear to impose a positive duty on railway companies to provide specific sites at which producer cars may be loaded.”

Goff last year had asked that the CTA to refuse to allow the delisting of any more sites, and to deny the removal of infrastructure from any sites already delisted.

“Such action by the CTA would allow the opportunity to establish a process which would allow all parties affected by site closures to have input into the decision,” Goff said at that time. “As it now stands, the railways have the ability to unilaterally decide which sites to close.”

Also, he said, such a delay in dismantling rail sidings would allow a federal rail service review panel to examine the issue of public producer car loading sites and “become involved in resolving this matter.”

Faced with criticism of its decision to delist the producer car sites, CN said last September that of the 53 sites to be delisted, three-quarters of the sidings in question had not been used at all in the previous three years and the remainder had seen less than five cars.

CN granted at the time that it had seen a 20 per cent increase in producer car traffic in 2008-09 compared to 2007-08, but the “vast majority” of that increase had come from a relatively small number of sites.

The sidings had been slated for closure Sept. 6 last year, but the federal government in September got a promise from CN to keep them all listed until at least the end of 2009.

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