Deal signed in horse and cart era cannot be applied to today, CN argues in Thunder Bay case

The City of Thunder Bay's attempt to hold CN Rail to a century-old agreement for bridge maintenance is unreasonable in both a historic and commercial context, according to the railway's lawyers, who made their case in Ontario Superior Court on Thursday.

• CN and Thunder Bay head to court over James St. bridge

The construction of a combined rail and street bridge flowed from a deal struck in 1906 between the then-Grand Trunk Pacific Railway and what was then the town of Fort William. CN closed the bridge to vehicular traffic after a fire in 2013 because of safety concerns.

• Cause of James St. bridge fire undetermined: fire marshall

• Fire closes James Street bridge in Thunder Bay

The city argues the 1906 agreement creates a legal obligation for CN to maintain the bridge "in perpetuity" but CN disagrees. 

The agreement "uses vehicular and horse traffic as synonymous. There is no talk of motor cars," lawyer Guy Pratte told the court. "It's virtually impossible to put our present [circumstances] into their past."

Here are three reasons why CN argues it's not legally obliged to restore vehicular traffic on the James Street bridge:

1. Two separate deals created the combined bridge

A 1905 agreement set out the benefits the Town of Fort William would receive from the railway, according to Pratte. A 1906 agreement to build a bridge that could be used by trains and vehicles is a distinct legal document.

It's the second agreement that resulted in the city providing a one-time payment of $50,000 for maintenance of the combined bridge, Pratte said.

It would be "a legal error" to look at the 1905 agreement allowing Grand Trunk to operate a railway in perpetuity and apply it to the 1906 deal to create a combined bridge, he said.

2. The historical context of the agreement

There were only 1,100 cars in all of Ontario in 1906 and there's no evidence there were any in Fort William at the time, Pratte said. In recent years, 8,000 cars crossed the bridge everyday.

"The growth of vehicular traffic could not have been anticipated," he said. "You can't put present circumstances into the minds of people in 1906."

3. The commercial context of the agreement

Pratte asked Justice Patrick Smith, who is hearing the case, to consider the analogy of a person in 1906 who owned one of the first motorized vehicles in the province, and struck a deal with another person to "maintain it in perpetuity."

To meet the modern idea of a car and modern safety standards, that vehicle would now require a roof, bumpers, seat belts and other equipment not foreseen at the turn of the 20th century.

"The car would simply not be the same at that point," Pratte said. "No one thinks that maintenance of a car gives you the right to a totally new car."

Pratte said the court cannot impose a similarly unreasonable bargain on CN regarding the bridge.

Safety concerns

CN's lawyer also challenged the city's position on what is now needed to make the James Street bridge safe for cars and trucks.

In its submission, the city did not spell out what it believes is required to make the bridge safe, Pratte said.

The city "floated a buffet of options," such as adding speed bumps and more lighting to the existing bridge but did not go so far as to say the bridge would need restructuring.

"They won't commit to reconstruction — which is the safe option — nor do they want to commit to a less safe option because they'd be on the hook [for legal liability if there's an accident]," he said.

"They're saying do whatever is required to make it safe," he added. "We've done what is required. We closed the bridge because it doesn't meet the standard."

Hearings are scheduled to continue Friday.