Court of Appeal denies CN's application for a stay in swing bridge case

An Ontario Court of Appeal decision will not allow CN Rail to obtain a stay in its case with the City of Thunder Bay, involving the James St. swing bridge.

• CN seeks appeal of James Street swing bridge agreement, must reopen structure, court rules
• Thunder Bay says it soon expects timeline to reopen James Street bridge

In June 2018, the Court of Appeal ordered CN Rail to reopen the bridge to vehicular traffic. The bridge has been closed since October 2013, when a fire broke out on the north side of the bridge that spans the Kaministiquia River.

CN filed the notice for a stay with the Court of Appeal in August 2018, but the application was not substantially completed until October.

"Overall, I am not satisfied that the interests of justice favour granting a stay," wrote Justice Janet Simmons in her decision.

"I am not satisfied CN's leave application has sufficient merit to warrant granting a stay."

A stay is granted when the moving party demonstrates, "that it will suffer irreparable harm if a stay is not granted."

Simmons noted CN could suffer some harm, based on the fact it could put repair work out to tender before any decision is received from the Supreme Court, however it didn't meet the legal test to grant a stay. The estimate for work on the bridge is between $4 million and $6 million.

CN asked for the stay until December 15 so it could receive construction drawings for reconstruction work it proposes to undertake on the bridge. 

• CN seeks appeal of James Street bridge decision, city 'outraged'

Appeal Court decision

The ruling from June of this year said the railway must repair and reopen the bridge, which stems from a number of other court decisions which have flip-flopped on whether the railway needs to legally repair and reopen the structure.

The City of Thunder Bay said an agreement signed in 1906 between the former Town of Fort William and Grand Trunk Railway, which became CN Rail, binds the railway to maintaining the structure.

The agreement states the railway would maintain the bridge, "in perpetuity" for vehicular traffic.

"The court is clear that CN must fix its bridge now," Thunder Bay Mayor Keith Hobbs said in a statement.

"Over the past four years the City has sought to have CN Railway honour its commitments under the 1906 agreement to repair and reopen its bridge. Council remains resolved in its expectations, which have been confirmed by the court again."

CN signaled in July 2018 that it would apply for leave to the Supreme Court of Canada — a move which, at that time, "outraged" the city. That decision by the Supreme Court is expected in early 2019.

Justice Simmons noted, "it is unlikely that CN will succeed in its application for leave to appeal to the Supreme Court of Canada."

Simmons also said she did not believe CN would be able to have its legal ducks in a row within two months, leading to another reason to deny the stay.

The railway, according to the November 2018 decision, has already started the process for construction drawings to have the bridge repaired. 

CN indicated it would have drawings for construction and repair of the bridge ready by mid-December.