CN Bridge dispute: Thunder Bay to have its day in court

A Superior Court judge has ruled that the City of Thunder Bay's legal proceedings over the James St. swing bridge — and not CN Rail's — will be heard.

The swing bridge, which is the most direct route between Thunder Bay and the Fort William First Nation, is owned by CN. It's been closed to vehicle traffic since an Oct., 2013 fire; rail traffic resumed using the bridge three days later.

After a series of offers between the city and the railway failed to produce an agreement to re-open the bridge, the two sides filed legal proceedings against each other within days in Feb., 2015.

In his ruling on Wednesday, Justice J.S. Fregeau said that the city's request for a hearing in front a judge will proceed, rather than the trial that the railway was seeking.

The city has argued that a century-old agreement binds CN to fix, and re-open the road portion. The railway has said that it's beyond repair and that its not responsible for replacing that part of the structure.

In seeking an application, the city argued that it's seeking the interpretation of a contract, and that the hearing will provide a faster and less expensive resolution. In its submissions, CN argued that there are more complex issues involved that would require expert testimony — such as the historical context of the original agreement.

The judge stayed CN's action, and allowed the City of Thunder Bay's proceedings to go ahead.

CN must allow city's engineers to inspect the bridge

The judge's ruling also ordered the railway to allow the City of Thunder Bay access to the bridge to examine its condition — something that, up until now, the railway has refused to do.

The decision makes reference to an engineering report prepared for the railway by AECOM Engineering, in which it states that "fire damage was limited," but many components of the roadway portion of the bridge don't meet current standards.  The judge's ruling noted that AECOM recommended "consideration .... be given to maintaining the current closure of the bridge to vehicle traffic."

The city argued it hasn't been able to produce its own engineering report due to a lack of access to the bridge. Justice Fregeau's decision stated that it's difficult to know how complex the engineering evidence will be at this point, and if or how the two parties' evidence could conflict.

He stated that if there is enough of a discrepancy to affect a judge's ability to interpret the existing agreement, that a judge could order a trial on those issues.

Fort William First Nation Chief Peter Collins said that proceeding with the city's application, rather than the action that CN was seeking, should be a quicker process.

"We hope it's a much cleaner process and get the answers that we need to resolve the issue," he said, noting that it could have taken five to 10 years, if the case were to proceed as an action.

The First Nation is an interested party to the litigation, with its own legal team involved, despite the dispute being between the City of Thunder Bay and CN Rail.

Collins said he hopes the case will be heard sometime this summer or fall. And, despite what the First Nation is calling a "preliminary victory," he said he'd still rather see the issue resolved outside of the courts.

Shortly after being elected in 2015, Collins pledged to sit down with CN Rail, but said on Thursday that those talks never happened.  "It never transpired because of the litigation process," he said.