Court File and Parties

COURT FILE NO.: CV-15-0085 DATE: 2017-06-09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CORPORATION OF THE CITY OF THUNDER BAY Applicant – and – CANADIAN NATIONAL RAILWAY COMPANY and FORT WILLIAM FIRST NATION Respondents

COUNSEL: Christopher Matthews and Sanj Sood, for the Applicant, The Corporation of the City of Thunder Bay Guy Pratte and Duncan Ault, for the Respondent, Canadian National Railway Company Chantal Brochu, for the Respondent Fort William First Nation

HEARD: March 1 & 2, 2017

Justice Patrick Smith

DECISION ON APPLICATION

Overview

[1] In the early 1900s, the economy of Canada was beginning to boom. Railways were being rapidly built uniting portions of the vast geography of the country. The Town of Fort William, (the “Town”) located at the head of Lake Superior was well positioned to become a successful shipping port and railway hub.

[2] The Lake Superior Branch of the Grand Trunk Pacific Railway (the “GTP”) was constructed between 1905 and 1908 “to provide a link to the National Transcontinental Railway, which was being constructed by the Dominion Government from Moncton, New Brunswick, to Quebec City and across northern Quebec and Ontario to Winnipeg, Manitoba. The Lake Superior Branch enabled the Grand Truck Pacific Railway, which had constructed a line from Winnipeg across the Prairies to Prince Rupert, British Columbia, to carry Prairie grain to the Lakehead, for shipment by vessel to southern Ontario and points across the Great Lakes.” (Report of Dr. Ernest Epp, Tab 4 of Compendium filed by the Respondent, CNR)

[3] The presence of the railroad was important to the Town’s economic growth and was important to GTP’s operations and profitability.

[4] In 1905 and 1906, the GTP entered into agreements with the Town (the “Agreements”). The details of both agreements will be reviewed in detail later in these reasons.

[5] In 1905, the Town agreed to pay to the GTP the sum of $50,000 if, within one year the GTP “obligates itself to construct within two and a half years from the date of this agreement, a bridge, at a location to be agreed upon by the Company and [the Town], and give [the Town] the perpetual right to cross same for street, railway, vehicle and foot traffic…it being understood that the Company reserves all right for railway traffic. The [$50,000] will be payable on completion of the bridge” (the “1905 Agreement”).

[6] The Town and the GTP decided to proceed with the building of a bridge and, in 1906 entered into a second contract (the “1906 Agreement”). The terms of the 1906 Agreement required that the GTP, for the sum of $50,000, build and maintain in perpetuity a combined railway and roadway bridge traversing the Kaministiquia River (the “Kam River”). The construction of the railway and roadway bridge was completed in 1909.

[7] Known as the James Street Swing Bridge, the railway and roadway bridge traverses the Kam River and links its north and south shores (the “Bridge”). Most of the City of Thunder Bay lies north of the Bridge.

[8] The design of the Bridge is relevant to these proceedings and will be described in more detail later in these reasons. Completed in 1909, it was a combined railway and roadway bridge consisting of timber approach spans and steel truss spans for the railway. Railroad tracks run along the centre of the Bridge. The roadway sections are cantilevered on the outside of the steel trusses. The roadway sections include one northbound lane with a sidewalk on the east side of the Bridge and one southbound lane with a sidewalk on the west side of the Bridge.

[9] The Canadian National Railway (“CN”) is the successor to the GTP. The Town was incorporated as a city on April 20, 1907 and has now become the Corporation of the City of Thunder Bay (the “City”). As a result of a fire on or about October 29, 2013, the CN immediately closed the Bridge but re-opened it to rail and pedestrian traffic three days later. To date, the Bridge remains closed to vehicular traffic.

[10] The City relies on the Agreements signed by the Town and the GTP in 1905 and 1906 and seeks an order that the CN take all necessary steps to reopen the Bridge to vehicular traffic. The position of the City is that the CN is contractually bound to perpetually maintain the Bridge to provide vehicular access and that the Bridge can be re-opened safely within the scope of what constitutes proper maintenance without requiring a significant structural reconfiguration of the Bridge design. (Factum of the City at paras. 6 and 7)

[11] In the alternative, the City argues that the scope of the 1906 Agreement is broad enough to require the CN to structurally alter the Bridge if necessary to conform to modern safety codes. (Factum of the City at para. 81)

[12] The CN opposes the City’s request on the basis that the passage of time has rendered the Bridge unsafe to vehicular traffic and that this safety concern can only be addressed by significantly reconfiguring the structure of the Bridge, something that is far beyond its contractual obligation of perpetual maintenance. (Factum of CN, paras. 1 – 3)

Issues

[13] The issues before the court may be summarized as follows:

1. What did the parties intend when they agreed that GTP would maintain the Bridge in perpetuity?
2. What is the scope of the CN’s contractual obligation to maintain the Bridge in perpetuity? Does the CN’s obligation to maintain the Bridge include maintaining the Bridge to current standards and guidelines?
3. Do the pleadings of the City provide sufficient clarity and specificity for this court to make an order for declaratory relief and/or for specific performance and order the CN to bring the Bridge up to current standards to allow it to be re-opened for vehicular traffic?

The Parties

[14] The Applicant City is a municipal corporation and successor to the Town.

[15] The Respondent CN is a corporation that operates railways in Canada and the United States. The CN is the successor of the GTP.

[16] The reserve of the Respondent, Fort William First Nation (the “FWFN”), is located south of the Kam River. The FWFN was added by the City as a Respondent because they are an interested party given the community’s use of the Bridge to gain access to the City and because the Bridge is located on appropriated reserve lands.

Legislative and Regulatory Framework

[17] The City makes this application pursuant to Rule 14.05(1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194 for the determination of rights dependent on the interpretation of a contract.

[18] In support of its position, the City makes reference to the CN’s Bridge Management Program (the “BMP”) which is mandated and regulated by the Railway Safety Act, R.S.C. 1985, c. 32; the Railway Safety Management Systems Regulations 2015, S.O.R. 2015-26; and the Transport Canada Guideline for Bridge Safety Management, February 2012.

The Position of the Parties

The City of Thunder Bay

[19] The City takes the position that repairs can be made to the Bridge which are clearly maintenance and which would improve safety without requiring changes to the configuration of the Bridge.

[20] In the alternative, the City submits that the Agreements obligate the CN to open the Bridge to provide safe vehicular access and to do whatever is required to reopen the Bridge, even if it involves rebuilding or reconstruction.

[21] The City takes the position that, since 1909, the CN has made numerous changes, repairs, and upgrades to the Bridge, including a “major overhaul” in the mid-1980s. Accordingly, the City argues that the CN’s argument that the repairs required to open the Bridge safely to vehicular traffic are beyond the scope of its obligation to “maintain” the Bridge in perpetuity must fail.

[22] The City argues that the CN’s BMP applies to the Bridge and obligates it to ensure that all bridges within its system are safe for operations and for the general public.

[23] With respect to the interpretation of the Agreements, the City submits that the agreements should be read as a whole, giving the words their ordinary meaning, consistent with the surrounding circumstances at the time of execution. The clear intent of the parties is that the agreements were executed with the expectation of economic growth in the long term and that the CN’s obligations were intended to be perpetual. The City notes that the CN continues to receive the benefit of operating trains over the Bridge while the City is deprived of vehicular access.

The CN

[24] The CN asserts that structurally the Bridge is made up of two bridges—a roadway bridge and a railway bridge—and that because the roadway bridge is unsafe for motorists, cyclists, and pedestrians, it was properly closed to vehicular traffic following the fire.

[25] The position of CN is that despite its efforts to diligently maintain the Bridge from the time of construction until the fire, the roadway portion of the Bridge has a 75 year design life and cannot be made compliant with modern safety standards and regulations without a major or total reconstruction of the roadway bridge which is beyond the scope of its contractual obligation of maintenance.

[26] The intent of the parties when executing the 1906 Agreement was to facilitate streetcar and horse traffic and did not reasonably contemplate or foresee modern safety standards and usage including modern car and truck traffic.

[27] With respect to the relief pleaded by the City, the CN argues that the pleadings are deficient in that the relief sought is vague and lacks the requisite specificity to allow this court to make a declaratory order or an order for specific performance. As well, the CN argues that the City has not taken a position or provided evidence on what specifically is required to make the Bridge safe thereby failing to provide the Court with a sufficient evidentiary basis necessary for the granting of any order.

The FWFN

[28] The FWFN adopts and relies upon the law and argument set out in the City’s factum and although it does not seek relief in its own right it supports and does not oppose the relief sought by the City.

[29] The Bridge is important to the City and the FWFN. The Bridge is used to gain access to the FWFN Reserve as well as numerous businesses, restaurants, residences and recreational facilities. The Bridge is also the primary route to Chippewa Park, Mount McKay and the FWFN Arena.

An Overview of the 1905 and 1906 Agreements

[30] In the early 1900s, the federal government encouraged the GTP to build a transcontinental line across Canada. The GTP agreed to build a rail line running from Moncton, New Brunswick to Prince Rupert, British Columbia.

[31] For the stretch of railway running from Winnipeg, Manitoba to the Pacific Ocean, the GTP established a subsidiary, the Grand Trunk line, which would run to Lake Superior. The GTP selected the Town as the port for the Grand Trunk line.

[32] The GTP and the Town entered into the 1905 Agreement for the construction and operation of the Grand Trunk line to Lake Superior via Fort William. The 1905 Agreement also provided that the Town would pay the GTP a $50,000.00 bonus if, in the GTP’s discretion, it would include components on the bridge crossing for streetcar, vehicle, and pedestrian traffic.

[33] The rail line provided several benefits to both the GTP and to the Town. The rail line would be an important source of revenue for the GTP by allowing the company to move large quantities of wheat by rail from the prairies to water transport by using the Great Lakes. Around the time of construction, the Town was already in a period of growth with population more than doubling between 1902 and 1906. The rail line would further the Town’s economic growth and industrial development.

[34] The Town paid the sum of $50,000 as contemplated by the Agreements. The Bridge was completed in 1909 at a cost of $229,999.02.

[35] The 1905 Agreement granted the GTP land and a tax exemption, among other benefits. Under the 1905 Agreement, the GTP also acquired 1600 acres of the FWFN “Indian Reservation” granted to the GTP by way of appropriation by the federal government. Consequently, the FWFN settlement on those lands was relocated. The FWFN has since received 1100 of the 1600 acres back from the CN.

[36] The Bridge was built to accommodate streetcar, vehicle, and pedestrian traffic. Over time, the use of the Bridge changed. Until approximately 1950, street cars primarily used the Bridge however, since that time motor vehicles have been the predominant form of traffic. The most recent traffic count, carried out in 2007, showed that 8,871motor vehicles traversed the Bridge daily.

The Specifics of the 1905 and 1906 Agreements

[37] The 1905 Agreement included the following terms relevant to this application:

1. In consideration of the promises and in consideration of the covenants and agreements hereinafter expressed and contained, which are conditions precedent to the obligations of the Company [GTP] hereunder, the Company within one year from the date of its acquisition of sixteen hundred acres of what is commonly known as the Indian Reservation…will commence to erect and maintain thereon its principal Lake Superior terminals, works, and head offices of the engineering, construction, and operating staffs in connection to said Lake Superior Branch.
2. The Municipal Corporation [the Town] will assist the Company in every way possible in acquiring the sixteen hundred acres above mentioned.
3. …
4. The Municipal Corporation will grant and convey to the Company by a good and sufficient deed, in fee simple, free from all encumbrances, without cost to the Company, thirteen hundred feet, more or less, of water front and road allowance…It is further agreed that the Municipal Corporation will grant and convey to the Company, by a good and sufficient deed, in fee simple, free from all encumbrances, without cost to the Company, all of James Street, and a right of way fifty feet on either side of James Street…
5. The Municipal Corporation will pay to the Company a bonus of three hundred thousand dollars ($300,000.00) in cash, payable as follows, namely, in three equal instalments of one hundred thousand dollars ($100,000.00) each…for land, docks, yards, buildings, or any improvements, in connection with the purposes of the Company…
6. The Municipal Corporation will pay to the Company an additional bonus of fifty thousand dollars if within one year from the signing of this agreement it obligates itself to construct within two and a half years from date of this agreement, a bridge, at a location to be agreed upon by the Company and the Municipal Corporation, and give the Municipal Corporation the perpetual right to cross same for street railway, vehicle and foot traffic, also street approach on the South side of the Kaministiquia River, over lands owned by the Company, it being understood that the Company reserves all right for railway traffic. The bonus will be payable on completion of the bridge.
7. The Municipal Corporation will, and it does hereby grant to the Company exemption from all municipal rates, taxes and assessments…on all lands, buildings, structures and property acquired and held for railway purposes, for a term of fifteen years…
8. The Municipal Corporation hereby grants to the Company, free of cost and of all liability, the right to build on the level and operate in perpetuity, a double track line of railway…The Municipal Corporation hereby further grants to the Company free of cost and of all liability, the right to build on the level and operate spurs and sidings…
9. …Municipal Corporation hereby undertakes and agrees to pay to the said Company the cost, including land damages, which the said Company may incur by reason of separating said grades and will annually…pay to the said Company the cost of maintaining the works and structures occasioned by reason of the separation of grades as aforesaid.

[38] The 1906 Agreement provided that the bridge built by the GTP would include streetcar, vehicle, and pedestrian components. The 1906 Agreement incorporated clause six of the 1905 Agreement as well as the following relevant terms:

1. In consideration of the promises and in consideration of the covenants and agreements hereinafter expressed and contained, which are conditions precedent to the obligations of the Company hereunder, the Company will construct a combined railway and highway bridge on or before September the twenty-ninth, one thousand nine hundred and seven.
2. The Company will locate said bridge in the position shown on the plan attached hereto and marked “C”.
3. The Company will give the Municipal Corporation the perpetual right to cross said bridge for street railway, vehicle and foot traffic on roadways supported by brackets on each side of the railway bridge substantially as shown on Plate “C” and this portion of the bridge shall be for the Town and any person or corporation authorized by the Town.
4. The Company will give the Municipal Corporation the perpetual right to cross the Company’s Land on the South side of the Kaministiquia River as shown on Plate “C” and the perpetual right to cross the Company’s land from the river to Montreal Street on the North side of the said river.
5. The Company will maintain the bridge in perpetuity without cost to the Town except the cost and maintenance of street car rails and trolley wires which will be furnished by the Town or Electric Railway Company using the bridge; and that the space allowed for Town traffic on each side of the bridge, be sufficient to accommodate street car, vehicular traffic and separate passage for foot passengers.
6. The Municipal Corporation will pay to the Company the sum of Fifty Thousand Dollars when the bridge is completed

[39] Plate “C,” referenced in clause two of the 1906 Agreement, shows the approximate shape, design, and dimensions of the streetcar, vehicle, and pedestrian components of the Bridge.

Principles of Contractual Interpretation

[40] The principles of contractual interpretation have evolved over time towards a practical, common-sense approach as opposed to the use of a strict, technical method of analysis. The overriding concern is to determine the intent and expectations of the parties and the scope of their understanding at the time that the contract was entered into. (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47)

[41] To determine the intent and expectations of the Town and the GTP when the Agreements were entered into, an examination of the words used forms an important part of the analysis.

[42] The Supreme Court in the Sattva decision stated that, to interpret an agreement, the Court must read the words used as a whole, giving the words their ordinary and grammatical meaning, consistent with the surrounding circumstances at the time of their execution. The surrounding circumstances include, among other things, the purpose of the agreements and the nature of the relationship that they created. Only objective evidence of the background facts may be considered. (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, supra, at paras. 47 and 57-59; Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129, at paras. 54, 55 and 58; Simex Inc. v. Imax Corporation, [2005] O.J. No. 5389 (C.A.), at para. 23)

[43] The surrounding circumstances present at the time that the agreement was made includes a consideration of facts that were known or reasonably capable of being known by the parties and can include contemporaneous assumptions of the reasonable expectations of participants in the railway industry. (Dumbrell v. The Regional Group of Companies, 2007 ONCA 59 at para. 53; Canadian Pacific Railway Co. v. Grand Trunk Railway Co., [1914] 49 S.C.R. 525 at para. 3)

[44] If, after examining the agreements as a whole, and in light of the surrounding circumstances prevalent at the time, the Court is able to determine that the words of the agreements have one meaning, then the Court must give effect to that meaning. (Onex Corporation v. American Home Assurance Company, 2013 ONCA 117, at paras. 103-104)

[45] If the Court determines that the words of the agreements are reasonably capable of more than one meaning, then the Court may examine the parties’ expectations and subsequent behaviour to assist in the determination of which alternative reflects the intentions of the parties. (Canadian National Railway v. Canadian Pacific Ltd. (1979), 95 D.L.R. (3d) 242, at para. 48, aff’d in , [1979] 2 S.C.R. 668 (S.C.C.); Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, at paras. 48-54)

The Words Used

What Does the Word “Perpetual” Mean?

[46] The word “perpetual” is used in the both the 1905 and 1906 Agreements in reference to the benefits conferred and obligations assumed by both parties.

[47] The 1905 Agreement gives the GTP the perpetual right to operate a railway on the streets of Fort William.

[48] Clause 3 of the 1906 Agreement provides that the GTP would maintain the street railway, vehicular and sidewalk component of the Bridge in perpetuity.

[49] Clause 5 of the 1906 Agreement contains a description of the GTP’s perpetual maintenance obligations:

The company will maintain the Bridge in perpetuity without cost to the Town except the cost of and maintenance of street car rails and trolley wires which will be furnished by the Town or Electric Railway Company using the bridge; and that the space allowed for Town traffic on each side of the bridge, be sufficient to accommodate street car, vehicular traffic and separate passage for foot passengers.

[50] Neither agreement contained an expiry date for any of the obligations nor did they provide that either party had a right to terminate their obligations.

[51] Perpetual obligations in agreements were a known concept at the turn of the 19th century, including in the railway industry. (Canadian Pacific Railway Co. v. Grand Trunk Railway Co., [1914] 49 S.C.R. 525, supra, at para. 3)

[52] The law is also clear that a contract which imposes a perpetual obligation will be enforced and cannot be terminated unilaterally. (Fort Frances v. Boise Cascade Canada Ltd., [1983] 1 S.C.R. 171, at para. 33)

What Does the Word “Maintain” Mean?

[53] The CN takes the position that its obligation to “maintain” the Bridge is limited and does not require it to take any measures that would involve structurally modifying any part of the Bridge from what was originally contemplated in 1906 and as described in Plate “C” in the 1906 Agreement. The roadways supported by brackets on each side of the Bridge are not, according to the CN, “capable of being maintained such that they can be safely traversed by modern vehicles.” (Factum of CN, at para. 51)

[54] The City argues that the scope of the CN’s obligation to maintain the Bridge is broad and requires it to take all measures necessary to open the Bridge and provide safe operation for vehicular and pedestrian traffic including making any structural changes necessary to do so.

[55] The parties disagree that it was within the reasonable anticipation of the GTP and the Town in 1906 that streetcars would be replaced by modern-day trucks and cars and that road safety codes would evolve accordingly.

[56] Case law has determined that the term “maintain” imposes an obligation on a party to take the measures necessary to cause a thing to remain in existence; to keep vigorous, effective or unimpaired; to guard from loss or derogation; to cause to continue in a specified state; to care for property for purposes of operational productivity. (Sevenoaks, Maidstone & Tunbridge Railway Co. v. London Chatham & Dover Railway Co., [1879] 11 Ch. D. 625, at page 7; Township of Red Lake v. Drawson, [1964] 1 O.R. 324 (H.C.J.) at para. 13, aff’d in , [1964] 2 O.R. 248 (C.A.); Canadian National Railway Company v. Volker Stevin Contracting Ltd., 1991 ABCA 287, at page 6)

[57] In 1914, the Supreme Court of Canada specifically considered the interpretation of the term “maintained” in a dispute between Canadian Pacific Railway and Grand Trunk. At issue was a contractual provision in a contract entered into in 1883 that provided that a certain crossing was to be maintained in perpetuity. (Canadian Pacific Railway Co. v. Grand Trunk Railway Co., [1914] 49 S.C.R. 525, supra, at para. 3)

[58] The Supreme Court held that to interpret the word “maintained,” the Court must “look at the scope and purpose of the whole agreement, and bear in mind the relationship of the parties to each other, and why and how that came about.” (Canadian Pacific Railway Co. v. Grand Trunk Railway Co., [1914] 49 S.C.R. 525, supra, at para. 2)

The Contextual Framework in 1906

[59] The analysis of the scope and content of the CN’s maintenance obligation requires the Court to use a contextual analytical framework. What were the expectations of the parties in 1906 when the contract was signed? What were the financial considerations given and received? What has been the conduct of the parties with respect to the Bridge since 1909? (Canadian Pacific Railway Co. v. Grand Trunk Railway Co., [1914] 49 S.C.R. 525, supra; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, supra)

[60] There is no serious dispute about the historical context within which the Agreements were negotiated. The preamble of the 1905 Agreement makes it clear that it was not just anticipated, but expected, that the building of the railroad would fuel growth and economic prosperity in the long term. The parties to the Agreements contemplated that such growth would include a larger population and expanding industry, particularly given that a central purpose of the Agreements was to expand industrial activity of the Town.

[61] Clearly, both parties contemplated using the Bridge for many years in the future—the City for “street railway, vehicle and foot traffic” and the CN for rail traffic.

[62] Much has changed in Canada and in the world since 1906.

[63] In 1909, the population of the City was 10,032; there were 1,176 vehicles registered in Ontario and few, if any, were located in Fort William. The definition of the word “vehicle” in the 1910 edition of Webster’s Dictionary did not include motorized vehicles. In 1909, a “vehicle” was defined as “That which anything is or may be carried, as a coach, wagon, cart, carriage, etc.” (Webster’s Practical Dictionary (Chicago: Reilly & Britton Co., 1910))

[64] Since 1909, James Street and the Bridge have become a minor vehicular artery; safety codes for bridges and roads have evolved many times; the population of the City has grown to exceed 100,000 and, prior to its closure, in excess of approximately 8,870 motor vehicles used the Bridge on a daily basis. Since 1950, the Bridge has not been used for street railway traffic.

[65] The 1905 and 1906 Agreements are separate and distinct. The 1905 Agreement as it pertains to the construction of a bridge is an agreement to agree, giving no rights or obligations to either party.

[66] Pursuant to the 1906 Agreement, the Town paid the GTP the sum of $50,000 and received the use of the Bridge from 1909 until it was closed to other than rail traffic in 2013. The CN maintained the entire Bridge at no cost to the City. The cost to the GTP to build the Bridge was $229,999.02. The CN continues to use the Bridge today for rail traffic.

The Conduct of the Parties Subsequent to 1906

[67] The parties differ on the scope and characterization of the work that the CN performed on the Bridge since 1909.

[68] The City argues that by its conduct, the CN has acknowledged its responsibility to maintain the Bridge in such a way to ensure safe operation for vehicles and pedestrians, including structural changes if necessary.

[69] The CN takes the position that all of the work performed by it has been strictly maintenance work and not structural since the latter would be beyond the scope of its obligations set out in the 1906 Agreement.

[70] There is no doubt that over the life of the Bridge, the CN has made numerous changes, repairs and upgrades to the Bridge including:

• The addition of timber approach spans to the original drawings issued in 1907 (found at plate “C” to the 1906 Agreement);
• The removal of timber struts at either end of the Bridge;
• The renewal of timber approaches in 1925 along with the upgrading of the system for connecting the rail and the swing span;
• In 1936, steel repairs were performed with replacements installed to the end stringer brackets on the swing span. Change-outs to stringers, floor beams, bracing, end channels and fencing were also carried out;
• In 1938, timber stringers on the roadway approaches were reinforced;
• In 1955 and 1957, the roadways were completely re-decked with the placement of new timber ties sitting on steel stringers;
• In 1984 and 1985 a major overhaul of the Bridge was undertaken. All of the roadway stringers, floor beams, splice plates, gussets and bracing were replaced with members of the same depth but stronger in size and material. Repairs under the tracks were also carried out, as well as repairs to the trusses. The City states that this work involved structural reconfiguration;
• In 1991, there was a re-decking of all of the rail ties;
• In 1994, the CN carried out repairs by using narrow steel plates on the roadways.

[71] The parties have made unsuccessful attempts over the course of time to discuss the sharing of the costs of maintaining the Bridge and/or reconfiguring its structure. Both parties have refused to depart from their respective interpretation of the wording of the 1906 Agreement.

[72] For example, during the extensive work performed on the Bridge in 1984 and 1985, the CN proposed that the City agree to a 50-50 cost sharing of the $300,000 estimated for roadway repairs. Alternatively, the CN asked that the City “assume full responsibility for future maintenance and liability for the road portion of this structure.” On April 2, 1984, City Council resolved that the Bridge “be maintained under the terms of the existing agreement.”

[73] CN points to the correspondence exchanged with the City at that time confirming its position that it could not be required by the 1906 Agreement to undertake structural revisions to the Bridge and further, that a structural change to the Bridge would require the re-opening of the Agreement to have the City cover the costs of reconstruction and maintenance of any revisions.

[74] As mentioned above, CN views any structural revisions or redesigns to be beyond the scope of its obligations enshrined in the 1906 Agreement to maintain the Bridge.

[75] The CN argues that “[w]hen the condition of the 1909 Street Bridge required it, CN undertook maintenance…. However, the maintenance work undertaken…was purely remedial as it sustained the original structure of the 1909 Street Bridge as contemplated in the 1906 Agreement.” (Factum of CN at para. 29)

[76] In his report and during his cross-examination, Darrel Gagnon, the structural engineer retained by the CN, stated that it is clear that the CN has not altered or revised the structure of the Bridge at any time since 1909. Specifically, his evidence was:

• the configuration of the structural components of the Bridge “are in conformance” with the original reference drawings (at page 234);
• the “number, size and location of timber components has generally been maintained from the original design” (at page 241); and
• “[t]he existing structure appears to be in general conformance with the available drawings from the original design, in regard to span lengths and number, size and location of supporting structural members” (at page 240).

[77] With respect to the maintenance work in 1984 and 1985, the CN submits that it has always been clear that it could not be required by the 1906 Agreement to undertake revisions to the structure of the Bridge and that a structural change to the Bridge would require a re-opening of the 1906 Agreement to have the City cover costs of construction and maintenance of revisions to the Bridge.

[78] Conversely, the City suggests that the removal of “timber struts” from underneath the Bridge’s approach spans is evidence that the CN accepted structural reconfiguration as part of its obligation to maintain the Bridge.

[79] The CN disagrees stating that the timber struts have no bearing on the 1909 Street Bridge and further that the evidence does not suggest that the timber struts were ever in place for the 1909 Street Bridge; that they may not have been removed; and that the evidence is clear that the timber struts would have had no impact on the sidewalk load capacity.

The Specifics of the Design of the Bridge

[80] The parties agree that the Bridge is unique and structurally unlike other bridges throughout the CN network. For that reason, to understand the issues before the Court and the evidence of the experts a detailed description of the design and anatomy of the Bridge is required.

[81] Prior to closure, the Bridge was designed to carry rail, vehicle (including bicycle), and pedestrian traffic. The Bridge includes a single line of CN rail traffic with northbound and southbound traffic lanes for vehicles on either side of the rail line. The roadway sections were originally designed for streetcar traffic, but were used solely by motor vehicle traffic before the closure. Pedestrian walkways are located on the outside of each motor roadway.

[82] The Bridge was originally designed to be a swing bridge to facilitate shipping traffic on the Kam River. However, for several years the Bridge has ceased this function.

[83] The Bridge is approximately 150 metres in length and consists of four timber approach spans on the north end (approximately 4.5 metres each), a 78.6 metre steel through truss swing span, a 38.1 metre steel through truss span, and five timber approach spans on the south end (approximately 4.5 metres each). Rail traffic runs through the steel trusses in the centre of the Bridge.

[84] The roadway sections, serving motor vehicle and pedestrian traffic, are dependent on the railway structure for support. The roadway sections of the main spans consist of timber deck which is supported by longitudinal steel stringers. In turn, the steel stringers are supported by transverse structural steel floor beam outriggers. The steel stringers were originally positioned for supporting streetcar traffic and are located below each wheel track of the roadway sections.

[85] The deck of the roadway sections of the Bridge consists of timber planks, which are covered by steel plates, commonly called diamond plates. The plates do not cover the entire roadway, but are located along the wheel tracks of each lane.

[86] Wooden timbers are mounted on the wood deck on each side of the northbound and southbound roadways, forming roughly six inch curbs. The driving lanes between the curbs are 2.85 metres wide. A steel latticed handrail is located between the railway line and the roadway sections on the main spans. A timber plank handrail is located between the railway line and the roadway sections on the approach spans.

[87] The pedestrian walkways are raised from the roadways by the height of the wooden curbs. The width of the walkways ranges from 1 metre to 1.7 metres, which includes the width of the wooden curbs. There are railings on the outside of the walkways, ranging in height from 1.07 metres to 1.2 metres. The handrails on the main spans are steel latticed. The handrails on the approach spans are made of timber planks.

[88] The Bridge has a posted load limit of 15 tonnes (16.5 tons). Traffic has been restricted to 20 km/hr and there are three speed bumps located on the Bridge and/or the approaches. The most recent annual daily traffic was estimated at 8,871 motor vehicles per day.

[89] After the fire, at the CN’s direction, the roadways were and remain closed to vehicular traffic but are open to pedestrian traffic on the roadway sections of the Bridge. Fencing has been installed along each edge of the roadways to prevent pedestrians from travelling on the walkways or on the rail line.

The CN Bridge Maintenance Program

[90] The latest revision of the CN’s BMP is dated February 15, 2016. The purpose and scope of the BMP is to set out the policies in place to ensure the safety of operations over the CN bridges and to ensure “compliance with regulatory requirements, so as to avoid events resulting in death, injury, environmental damage, property damage or other loss” (BMP, at page 1). The Bridge is one of 7,000 bridges managed and maintained by the CN under the BMP which is its governing document for bridge maintenance and which is mandated by the Railway Safety Act and by Transport Canada. The BMP takes precedence where it conflicts with other existing documents or policies. The Transport Canada Guideline for Bridge Safety Management states that a railway authority such as the CN is responsible for the condition of bridges over which it or other railway companies operates trains regardless of any agreements, divisions of ownership or maintenance expense.

[91] Section 2 of the BMP contains the following definitions:

• Railroad bridge means any structure with a deck, regardless of length, which supports one or more railway tracks, or any other under grade structure with an individual span length of 10 feet or more located at such a depth that it is affected by live loads;
• Bridge modification means a change to the configuration of a railroad bridge that affects the safe load capacity of the bridge;
• Bridge repair means remediation of damage or deterioration which has affected the structural integrity of a railroad bridge.

[92] Section 4 of the BMP describes the various positions and associated responsibilities regarding bridge inspection and bridge management:

4.1 Chief Engineer Structures, Design and Construction

The Chief Engineer Structures, Design and Construction is responsible for the Bridge Management Program and all policies associated herein.

4.3 Senior Manager Bridges and Structures

The Senior Manager is responsible that “the overall bridge plant on their Region is safe for operations and the general public.”

4.5 Bridges and Structures Supervisor

The Bridges and Structures Supervisors report directly to the Manager Bridges and Structures and at a minimum are responsible for: the construction, modification or repair of a railroad bridge

[93] The City submits that, notwithstanding the CN’s interpretation of the 1906 Agreement, the BMP imposes a clear and positive duty for it to perform whatever repairs are required to open the Bridge safely.

[94] The CN argues that the BMP is irrelevant: it does not provide any clarity or specifics of how to repair the Bridge; it was not in existence nor in the contemplation of the parties in 1906 when the Agreement was made; and it is not helpful nor germane to the issue of the interpretation of the content and scope of the CN’s duties to “maintain” the Bridge.

The Reports of the Experts and the Nature of the Safety Concerns

[95] The following individuals provided expert evidence to the Court:

For the City:

Darrell Matson, Management employee with the City Darrel Gagnon, Senior Bridge Specialist with COWI (structural engineer and expert in bridge engineering including the reliability and load rating of highway bridges) Russell Brownlee, Principal at Safety Group, Forensic Engineering (performed road assessment)

For the CN:

James N. McLeod, Employee of the CN (Chief Engineer) Brian Malone, Partner, Vice President Transportation with CIMA (authored engineering and traffic safety report) Dennis Baxter, Senior Manager Bridges, GHD Limited (authored report on structural condition of the Bridge)

[96] Immediately following the fire in 2013, the CN closed the Bridge to all traffic and commissioned AECOM Canada Ltd. (“AECOM”) to conduct an inspection of the Bridge. Until the fire, the CN did not take the position that the Bridge was unsafe for vehicles.

[97] AECOM found that the damage caused by the fire was minor, but reported the following deficiencies in the design of the Bridge:

There are many components of the roadway portions of the bridge which do not meet current code, and pose a serious safety risk to vehicles, cyclists, and pedestrians. The narrow roadway lane and sidewalk widths, absence of traffic barriers, inadequate pedestrian/cyclist handrail, and several other deficiencies contribute to the risk. It is possible that vehicles could travel over the timber curb and off of the bridge into the river below.

[98] Dennis Baxter and Darrel Gagnon, the expert structural engineers, retained by the CN and the City respectively, agree that the Bridge is structurally sound and requires only minor repairs because of the damage caused by the fire. However, like AECOM, they both have concerns about the design of the Bridge and whether the Bridge can be used safely by motor vehicles given the type and volume of vehicle traffic currently using the Bridge.

[99] The key safety issue identified was the possibility of an errant vehicle leaving the roadway, mounting the pedestrian walkway, breaking through the existing barriers and falling several metres into the Kam River.

[100] Both structural engineers, Mr. Baxter and Mr. Gagnon, agreed that the pedestrian walkways cannot support the weight of an errant vehicle due to the design of the Bridge. They also agree that the existing railings and curbs cannot prevent an errant vehicle from leaving the roadway and falling into the Kam River.

[101] In order to protect an errant vehicle from leaving the Bridge and falling into the river, the experts agree that a crash-worthy barrier is required by current safety codes. The issue in dispute is whether the Bridge, as currently configured, can support the weight of a crash-worthy barrier and, if not, what structural changes are required.

[102] CN takes the position that the pedestrian walkways cannot support the weight of an errant vehicle and the railings and curbs are not sufficient to stop a vehicle from falling into the Kam River. Further, CN maintains that this safety concern cannot be redressed without significant structural revision or reconstruction of the Bridge, which it states are beyond its maintenance obligations.

[103] The City argues that the likelihood of a vehicle leaving the roadway is very low. The City’s traffic engineering expert, Russell Brownlee, notes that the collision history on the Bridge is “unremarkable.” The City submits that the CN could simply take measures to make the Bridge safer, including installing a barrier, adding lighting, or adding more speed bumps.

Brian Malone

[104] Mr. Malone a professional engineer retained by the CN has expertise in transportation safety, traffic engineering, traffic, operations, road maintenance, and roadway design standards. Mr. Malone was asked to provide an expert opinion on the safe operation of the Bridge as it relates to vehicle and pedestrian traffic. Mr. Malone undertook a “road safety audit:” “an in-depth engineering study of an existing road using safety principles with the purpose of identifying cost-effective countermeasures that would improve road safety and operations for all road users.”

[105] Mr. Malone visited the site of the Bridge for a single day on May 3, 2016. In his report, he referenced:

• The Ontario Municipal Act Regulation 239/02, the Minimum Maintenance Standards (MMS) for Municipal Highways
• The Geometric Design Guide for Canadian Roads
• The Roadside Safety Manual
• Ontario Highway Bridge Design Code and/or the Canadian Highway Bridge Design Code

[106] Mr. Malone found that the roadways are narrow at 2.85 metres which is below the current standard of 3 metres. He noted that the narrow roadway is somewhat mitigated by separate north and southbound lanes; however, he stated that there is very little to prevent a car from leaving the roadway and impacting the pedestrian walkway or the steel trusses of the railway structure. Mr. Malone concluded that the narrow roadway lane widths constitute a significant safety hazard.

[107] Further, Mr. Malone stated that there are safety issues with the pedestrian walkways, including weak railings and narrow pedestrian lane widths which put users in close proximity to vehicles.

[108] A considerable portion of Mr. Malone’s report dealt with the errant vehicle issue. His evidence was that the narrow lanes increase the likelihood that a vehicle will leave the roadway. The current industry standard is designed to provide protections from such an incident in the form of roadside protection—a concept called “the forgiving roadside” which is intended to mitigate the outcome of car/barrier collisions.

[109] Mr. Malone explained that barriers are employed as a common protective measure to reduce the severity of a collision where an errant vehicle leaves the roadway. Barriers are placed between the traffic and the potential hazard off the roadway.

[110] His conclusions were as follows:

Multiple safety deficiencies were identified during the review of the James Street Bridge. The bridge is a unique structure and a number of elements combine to increase the potential for roadway departures and collisions.

The primary concern is the absence of a suitable barrier that would provide roadside protection should vehicles leave the road as they traverse the approach spans and the main structure. Hazards exist on both the river-side and the rail-side of the bridge for vehicles. Existing railings that are in place do not appear to be capable of meeting the basic requirements for roadside safety.

As noted the problem is compounded by multiple elements. These include the narrow lane configuration which is below prevailing guidance for lane widths. The overall length of the narrow road section, more than 160 m cross the bridge and approach spans, accentuates the challenges with the narrow lanes. The road running surface, which utilizes steel plates may also increase the chances of collisions as the surface friction is likely well below that normally expected by motorists.

Other safety hazards exist including narrow pedestrian walkways and lower than required railing heights for cycling traffic that is expected to use the walkways.

It does not appear feasible that sufficient mitigating treatments can be under taken through the maintenance, retrofit or repair of the current systems provided on the bridge that would adequately address the identified safety deficiencies to a degree that would provide adequate safety for vehicular traffic users of the bridge.

Having completed a review of the material made available to me and undertaken a site visit of the subject location in May of 2016, it is my professional opinion that the deficiencies present on the James Street Bridge represent a hazard to vehicular and pedestrian safety at a level sufficient to warrant closure of the bridge to vehicular traffic. It is my recommendation that the bridge remain closed to vehicular traffic until such time that improvements or modifications can be made which will address the identified vehicle safety concerns.

[111] In cross-examination, Mr. Malone stated that he did not have the collision history of the Bridge when writing his report, although counsel pointed out that this is a “typical” practice and Mr. Malone did not disagree. He also stated that he did not ask the CN to see its BMP.

[112] Mr. Malone was cross-examined on Mr. Gagnon’s report and the possibility of installing a barrier on the sidewalk. He stated that he was unsure if the proposed barrier would “provide sufficient structural support to contain a vehicle that would leave the road.” He went on to say, “…in the brief information I was presented, nothing indicates that the system has been tested with the protocols that are normally utilized to validate the integrity of roadside safety devices.”

[113] In response to counsel’s question regarding a lack of countermeasures proposed in his report, Mr. Malone responded:

…I felt that the critical element of roadway departure was not, is not addressed on the facility, and until that element is, I don’t think any of the other proposed countermeasures that have been talked about serve any value towards reduction of risk.

[114] Mr. Malone also stated during questioning:

I was not able to identify a solution to the problem of roadway departure based on the review that I undertook. I have to agree that I haven’t been asked to participate in a more fulsome discussion with CN about what possible alternatives could be implemented.

Dennis Baxter

[115] Mr. Baxter is a professional engineer retained by the CN with expertise in transportation structures, particularly bridges, including bridge inspection, assessment, rehabilitation, and design. Mr. Baxter was asked to provide an assessment of the structural components of the roadway portion of the Bridge prior to consideration of re-opening the structure to vehicle traffic. His opinion is based on standards and best practices.

[116] Mr. Baxter completed a site inspection of the roadway portions of the Bridge, reviewed reference materials, and completed a structural evaluation of the roadway portions of the Bridge. His structural evaluation examined the load ratings for the roadway portions of the Bridge for both errant and non-errant vehicles with reference to the Canadian Highway Bridge Design Code:

For the purposes of assessing load capacity of the roadway structure components, the Canadian Highway Bridge Design Code provides that the Live Load Capacity Factor must be a minimum of 0.3 or the bridge ought to be considered for closure to vehicular traffic. Live Load Capacity Factors between 0.3 and 1.0 indicate a structure that can support limited vehicular traffic and specifies posting limits to prevent loads on the bridge in excess of it’s [sic] capacity.

[117] Mr. Baxter stated that several components of the Bridge were inadequate for the load they were carrying:

North Roadway Approach Spans

Roadway girder spans 1 – 3 (non-errant vehicle)

Sidewalk girder spans 1 – 4 (errant vehicle)

Sidewalk deck (errant vehicle)

South Roadway Approach Spans

Sidewalk girders spans 8 – 12 (errant vehicle)

Sidewalk deck (errant vehicle)

Main Truss Spans

Sidewalk stringers (errant vehicle)

Sidewalk deck (errant vehicle)

Sidewalks: Inadequate for vehicle loading and inadequate for vehicle impact

Barriers (railings): Inadequate for pedestrians on approach spans, inadequate for vehicle impact on approach spans, inadequate for vehicle impact on main spans

[118] Like Mr. Malone, Mr. Baxter focused on the issue of an errant vehicle leaving the roadway:

If vehicular traffic varies from the driving lanes onto the sidewalks, the sidewalk is inadequate to support vehicle wheel loads. If vehicular traffic impacts the existing barrier systems, they are inadequate for horizontal impact loads. Further, the barriers are inadequate for pedestrian and cyclist horizontal loadings.

[119] Mr. Baxter agreed with Mr. Malone that although barriers placed on the sidewalks may prevent traffic from leaving the roadway and falling into the river, the weight of a barrier prevented it from being a viable option:

The most common barrier used of this kind is a precast barrier, sometimes referred to as a New Jersey barrier. The typical weight of a New Jersey barrier is 6.56 KN/m. However, the sidewalks are inadequate to support a vehicle impact on such a barrier placed on the sidewalks due to the weaker construction of the sidewalk section and it’s [sic] weaker load capacity.

[120] Mr. Baxter stated that while other types of barriers are sometimes used in similar circumstances, including a thrie beam guide rail and/or a steel box beam guide he ruled this out as a possibility:

These barriers are required to be affixed to the structure of the bridge itself. In my opinion it would not be possible to configure these railings such that they could transmit these impact loads into the structure due to the weaker construction of the sidewalk section…Without major reconstruction that would involve structural revisions of the roadway portion of the bridge, including the sidewalk component, it is not considered practical to provide a safe crossing.

[121] Mr. Baxter agreed that his primary concern was errant vehicles leaving the roadway and going off the Bridge. When asked during questioning about the Gagnon proposal to add a torsionally strong steel box beam for support between the floor beams beneath the line of the desired traffic barrier, he responded:

I would agree that it may be a structural solution. There is not a lot of detail provided for me to say 100 percent sure that it would provide the required protection without overstressing something else. There are also some concerns with that presentation, as shown in that figure, with regard to having a barrier alongside a three-metre wide lane, and certainly the perception from the motoring public that that is going to be very narrow…

I would have to look at it structurally as well, to confirm whether the design in putting the torsional beam in will require further changes to the bridge itself, to cantilevered floor beams, to support impact loads on that railing…

Darrel Gagnon

[122] Mr. Gagnon was hired by the City to provide expert evidence in his capacity as a professional engineer with expertise in bridge engineering and, in particular, the reliability and load rating of highway bridges.

[123] He was asked to provide an opinion on “whether and how the roadway portions (including the sidewalks) of the Bridge may be safely used by vehicular and pedestrian traffic on a structural basis, bearing in mind the laws, codes, standards and guidelines applicable to a bridge of the age and past use of the Bridge.” He was also asked to comment on Mr. Baxter’s conclusions and whether CN adequately maintained the Bridge up to 2013. Mr. Gagnon visited the site on July 7, 2016.

[124] Mr. Gagnon provided an evaluation of the live load carrying capacity (“LLCF”) for the roadway components of the Bridge: “A LLCF represents the portion of the evaluation loading that can be carried with the required level of safety. LLCFs of 1.0 or greater indicate that the level of safety is met while values below 1.0 indicate reduced safety unless the permissible loading is reduced in a corresponding fashion.”

[125] For the approach spans, Mr. Gagnon indicated that the approach span girders are deficient for the required CL-625 loading for non-errant vehicles. For errant vehicles, “the LLCF values for the sidewalk components are very low, regardless of the type of timber considered. Consideration of vehicles mounting the sidewalk does not appear to have been a requirement of the original design specification.”

[126] On the main truss spans, all roadway components provide more than adequate capacity for the CL-625 loading for non-errant vehicles. “For errant vehicles, the LLCF values for the sidewalk components of the main truss spans are low.” Mr. Gagnon also states that “…the sidewalks provide insufficient capacity for errant vehicles mounting the sidewalk.”

[127] Mr. Gagnon found that the existing bridge barriers do not meet the TL-2 barrier requirements which are required for designs today. While the regulations do not require the barriers to be upgraded, “bridge owners commonly give strong consideration to upgrading barriers when conducting major bridge deck rehabilitation work.”

[128] Mr. Gagnon provided the following conclusions:

While adequate for pedestrian loadings, the bridge sidewalks are substantially deficient for loadings from vehicles mounting the sidewalk…If the threat of vehicles mounting the sidewalk is significant, consideration should be given to strengthening the sidewalk or installing an appropriate traffic barrier.

The existing bridge barriers do not meet the current S6-14 requirements for traffic barriers on all spans or the pedestrian barrier requirements on the approach spans…One possible method for installing an appropriate traffic barrier to the main truss spans is to add a torsionally strong steel box beam support, dimensions 350 mm by 350 mm, between the floorbeams located beneath the line of the desired traffic barrier… In addition to supporting the traffic barrier between the floorbeam locations, the box beam could be used to support longer cross ties which in turn could provide a slightly wider lane width, 3.0 m, and support a somewhat wider sidewalk, 1.5 m, with a pedestrian barrier. On the approach spans, a similar result can be achieved by adding additional timber girders or a similar steel box beam beneath the barrier location. Adding the traffic barriers would mitigate the risk of errant vehicles mounting the sidewalks.

[129] During questioning, Mr. Gagnon agreed with counsel that you cannot build a bridge today without barriers on both sides. Mr. Gagnon also agreed that he was not aware of any provision in the Canadian Highway Bridge Design Code today that would exempt a new bridge from the requirement of having a barrier.

[130] Counsel asked Mr. Gagnon if it would be impractical or ineffective to install a thrie beam guide rail or a steel box beam guide tail as a barrier on the Bridge. Mr. Gagnon responded: “Without other supporting mechanisms, yes.” He went on to state: “…they have certain requirements that they need to function as barriers that do not exist right now on the bridge.”

[131] When asked about the proposal to add a torsionally strong beam support, Mr. Gagnon confirmed that it would add support not just for the barrier but also for the impact load on the barrier. He also agreed that the addition of a torsionally strong box beam would be adding a structural component to the Bridge.

Russell Brownlee

[132] Mr. Brownlee is the professional engineer retained by the City with expertise in road user safety, rail safety, and transportation engineering. Mr. Brownlee was asked to provide an opinion on whether the roadway components of the Bridge can be safely reopened; whether and how the roadway portions (including the sidewalks) can be safely used, bearing in mind the laws, codes, standards, and guidelines applicable to a bridge of the age and past use of the bridge; the conclusions reached by Mr. Malone; and whether CN adequately maintained the Bridge up to 2013.

[133] Mr. Brownlee visited the site in September of 2016 for approximately an hour. In researching the safety history of the Bridge, he found that there were three recorded incidents/collisions between the period from 1970 to 2013 and found that this is “unremarkable and demonstrates an extremely low collision risk.”

[134] He stated that the narrow lane widths appear to provide a low collision risk but allowed for the following low-cost measures to further mitigate potential lane departures: delineate the barrier curb with retroreflective paint or marking tape, install a crashworthy barrier at the barrier curb between the road and sidewalk, install additional speed bumps, and/or establish a Community Safety Zone.

[135] With respect to the errant vehicle issue, he acknowledged the possibility of an errant vehicle leaving the roadway and stated: “…the physical barrier curb is not sufficient to stop an intentional lane departure by a larger vehicle. In addition, the current entry treatments on the approaches to the bridge are ramped for pedestrians and would facilitate vehicular access onto the sidewalk area.”

[136] Mr. Brownlee recommended traffic control devices to enhance delineation, provide definition and guidance for bicycles, identify hazards, promote reduced speeds, and support the enforcement of vehicle speeds and weights on the Bridge.

[137] Further, he noted that the width of the sidewalks is less than current design guidelines. He also found that the existing railing height and sidewalk width is not suitable for bicycle traffic on the pedestrian walkways.

[138] In his review of Mr. Baxter’s report, Mr. Brownlee stated that “the probability of lane departure scenarios presented have not been substantiated or quantified…Based on the records, no reported incidents or collisions related to lane departures have been documented on the bridge in the past 25 years.”

[139] He agreed with Mr. Baxter that, because of the narrow pedestrian walkways, there is no margin of error to prevent an impact with a pedestrian if a vehicle leaves the roadway; however, in his opinion this problem is effectively managed by the “constrained bridge environment and low-speed operations.”

[140] Mr. Brownlee made the following conclusions, among others:

A number of remedial actions and mitigating measures have been identified and could be implemented to address concerns related to lane width, sidewalk widths, bicycle operations, roadside safety, and operating speeds in advance of reopening the bridge to vehicular traffic.

CN has not maintained the subject bridge in the years up to 2013, to be in substantial compliance with current roadway design, operations and maintenance standards, or guidelines.

[141] During questioning, Mr. Brownlee agreed that the existing railing is not strong enough to hold a vehicle at some speeds, that a vehicle could potentially leave the roadway and fall into the river, and that the Bridge is “not substantially compliant” with today’s safety codes. He was not able to identify a bridge in Ontario whose only barrier is a six inch curb between the roadway and a significant hazard.

The Pleadings and Relief Sought by the City

[142] In addition to the argument that the content and scope of the 1906 Agreement does not obligate it to structurally re-configure the Bridge, the CN argues that the relief requested by the City as set out in its pleadings lacks specificity and its application should be dismissed on this basis alone.

[143] In its Notice of Application the City seeks the following declaratory orders:

1. CN is obliged to maintain in perpetuity a combined railway and highway bridge in the City of Thunder Bay known as James Street Bridge pursuant to contractual agreements entered into by the predecessors of CN and the City in 1905 and 1906 and that such obligation includes maintaining the Bridge to current standards and regulations and to those standards and regulations as they evolve over time.
2. CN is obliged to fulfill its maintenance obligations with respect to the Bridge and CN is required to take forthwith all necessary steps to re-open the Bridge to vehicular and pedestrian traffic.

[144] In its factum, the City requests:

• a declaration requiring CN to take forthwith all necessary steps to reopen Bridge;
• an order requiring CN to take all necessary steps to reopen the Bridge to vehicular and pedestrian traffic so that it may be operated safely; and
• a declaration that CN is obliged to maintain the Bridge in perpetuity pursuant to the 1906 agreement.

[145] The City’s application is brought pursuant to Rule 14.05(1) which states:

Notice of Application

14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 14E.1, 68A or 73A) or an application for a certificate of appointment of an estate trustee.

[146] Subrules 14.05(3)(d), (g), and (h) of Rule 14.05 provide:

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.

[147] The City does not cite s. 97 of the Courts of Justice Act, R.S.O. 1990, c C.43, in its pleadings or factum. The Court’s jurisdiction to grant declaratory orders is found in that section:

97. The Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right, whether or not any consequential relief is or could be claimed.

The Principles of an Order for Declaratory Relief

[148] The Court’s jurisdiction to grant declaratory relief found in s. 97 of the Courts of Justice Act, R.S.O. 1990, c C.43 is discretionary.

[149] In The Law of Declaratory Judgments, 2d ed (Toronto: Carswell, 1988), Lazar Sarna defines declaratory judgments as follows at page 1:

The declaratory judgment is a judicial statement confirming or denying a legal right of the applicant. Unlike most rulings, the declaratory judgment merely declares and goes no further in providing relief to the applicant than stating his rights. While consequential relief may be joined or appended, the court has the power to issue a pure declaration without coercive direction for its enforcement.

[150] In some circumstances, “[a] declaratory judgment may be sought in lieu of specific performance” (Sarna at page 166). The courts, however, are reluctant to declare the existence of future or contingent rights. A declaration generally will not be made where the remedy is difficult to obtain (at 166).

[151] In Solosky v. Canada, [1980] 1 S.C.R. 821, the Supreme Court discussed the nature of the remedy of declaratory relief:

Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a “real issue” concerning the relative interests of each has been raised and falls to be determined.

[152] The Supreme Court in Solosky went on to state that a declaration may resolve a substantial question where a person has a real interest to raise that question; however, the court has the discretion to refuse relief in the circumstances of the case.

[153] The Supreme Court stated that two factors influence the court in the exercise of discretion: (1) the utility of the remedy if granted and (2) whether the remedy will settle the questions at issue between the parties.

The Principles of an Order for Specific Performance

[154] As a general proposition, the availability of specific performance is determined by reference to two issues: (1) the adequacy of damages and (2) the degree of supervision required (see Robert J. Sharpe, Injunctions and Specific Performance, looseleaf (consulted on May 24, 2017), (Toronto: Thomson Reuters, 2016) ch. 7 at 2).

[155] The following are general principles which apply to the availability of specific performance:

• Specific performance in a contractual breach arises where damages will not adequately compensate the plaintiff. Courts will entertain a claim for specific performance, or other equitable relief, in the alternative. (G.H.L. Fridman, The Law of Contract in Canada, 3rd ed (Scarborough: Carswell, 1994) at p. 786)
• The law of damages aims to protect the expectation interests of the plaintiff, but also to avoid a remedy that is unduly burdensome to the defendant. The availability of specific performance reflects the same concerns. The burden on the defendant deserves careful consideration and, often, damages are awarded to avoid a disproportionate burden. (See Sharpe at 7-6)
• Specific performance is typically refused when the breach involves contracts for personal services, contracts to deliver chattels, vague and ambiguous contracts, contracts induced by misrepresentation, contracts entered into by mistake, where the plaintiff is at default, or if to do so is against public interest (Fridman at p. 790-792).
• Specific performance will normally be refused “[w]here performance of the defendant’s obligation would require a complex series of acts or the maintenance of an ongoing relationship” (Sharpe at 7-18). The basis of the refusal is the court’s reluctance to supervise performance. However, the principle is flexible and specific performance may be awarded in some circumstances where supervision is required. (Sharpe at 7-19)

[156] An award of specific performance will not be made where the required performance is not well-defined. “First, if the plaintiff complains that the defendant has failed to comply with the decree, it may be a difficult matter to assess the adequacy of the performance which has been rendered. Secondly, it is sometimes said that the decree for performance of such an obligation may operate harshly on the defendant who would not know what has to be done to avoid a finding of contempt” (Sharpe at 7-27, see also 10-31).

Discussion

[157] There is no argument that having the Bridge open to vehicular traffic is important to the City and the FWFN. There is also no dispute that, although the Bridge continues to be structurally safe for railway traffic, it does not conform in many ways with modern roadway safety standards.

[158] With respect to the first issue, while it is difficult to ascertain the intention of the parties at the time they signed the 1906 Agreement, I find that by the words used in the agreement, the subsequent conduct of the parties and the context in which the agreement was signed, it was the intention of the parties that the CN would maintain the Bridge for the type of bridge traffic that existed at the time, namely streetcar and horse and cart traffic. Use of motor vehicle and truck traffic was just beginning to take place with very few if any cars or trucks owned in the towns of Fort William and Port Arthur. As noted above, in 1909 when the Bridge was completed, there were only 1,176 motorized vehicles in all of the Province of Ontario.

[159] While there is evidence that the GTP and CN continued to maintain the roadway bridge for motorized vehicles until it was closed following the fire, the record does not support the City’s position that the CN maintained the Bridge to the extent that it made structural changes necessary to comply with modern safety codes. There is considerable evidence that the CN took a consistent view that structural changes to the Bridge were beyond the scope of its contractual obligations and that it resisted any suggestion by the City that it was bound to make whatever changes were necessary to keep vehicular traffic flowing.

[160] The evidence provided by all of the experts suggests that for many years until it was closed after the fire, the Bridge did not meet vehicular safety codes and yet car and truck traffic continued to use the Bridge without CN modifying or substantially altering the roadway and approaches to meet evolving standards.

[161] The City asks that declaratory orders be made based upon three proposals it has made to the Court:

1. That the CN immediately open the Bridge with perhaps minimal safety changes (speed bumps, reflectorized tape, signage, etc.). I find that this proposal is vague, lacks specificity and is not reasonable from a safety perspective. Such an order would put CN in the position of ignoring several identifiable safety concerns and modern safety standards and possibly subject itself and/or the City to an action for negligence should an accident occur;
2. That the CN make whatever undefined and unknown structural changes are needed including building a safety barrier to address the errant vehicle concern. No details or structural drawings were presented to the court and the City failed to produce evidence of what this work would consist of;
3. That the CN construct a sufficiently strong torsional steel box to hold the weight of safety barriers in order to meet current safety requirements. Essentially, an “idea” presented by Darrel Gagnon, the City’s expert in bridge engineering; no details, drawings, structural assessments or cost estimates were provided to the court or to the CN. Whether the City’s torsional steel box idea will work or whether it involves structural re-configuration of the Bridge and is within the scope of the CN’s obligation of perpetual maintenance is impossible to say without further and sufficient detail.

[162] This is an application commenced by the City and the City has the onus of clearly defining the relief it is seeking and of providing cogent evidence of what changes are required to make the Bridge safe for motorized traffic. It has failed to do so despite having its experts examine the Bridge. These reasons have set out in detail the expert evidence that has been provided to illustrate that the court has not been provided with a clear and detailed proposal.

[163] Without a specific and detailed proposal from the City – one that has been tested and approved as structurally safe for public traffic, this Court is left without reliable evidence upon which to formulate the orders that the City is seeking. This Court cannot make an order based upon conjecture, speculation or the possibility that an “idea” may be workable. This is all the more critical when the safety of the public is at risk. Without evidence, it is not possible to determine whether the work required to open the Bridge safely is within the scope of what was intended by the parties signing the 1906 Agreement.

[164] Finally, I also find that the pleadings of the City are deficient because they lack detail and specificity and cannot support a declaratory order or an order for specific performance given the principles set out above.

Decision

[165] For the reasons set out above, I find that the application brought by the City is dismissed.

[166] Should the parties not be able to reach an agreement with respect to the issue of costs, they may file written submissions no longer than five pages in length within 30 days of the release of these reasons.

The Honourable Justice P. Smith

Released: June 9, 2017