Joint application of the Canadian Pacific and Canadian National Railways for an Order—

Granting leave to abandon the operation of that portion of Canadian Pacific Railway Listowel Subdivision, between Linwood (Mile 0.3) and Listowel (Mile 16.5);
Granting leave to construct and operate branch line from Mile 26.54 of Canadian National Newton Subdivision to Mile 16.5 of Canadian Pacific Listowel Subdivision.

Judgment

Stoneman, Commissioner:

This is a joint application, made August 16, 1938, under Section 165-A of the Railway Act and Section 2, subsection 3, of the Canadian National-Canadian Pacific Act, 1933, and all other appropriate statutory provisions (Dominion Acts 1932-33, Chapter 33), and heard by the Board at Listowel on November 22, 1938.

The mileage involved in this application is a portion of the Guelph and Groderich Railway Company incorporated by Act of Federal Parliament in the fourth year of the reign of Edward VII, Chapter 8, 1904. The stock of the railway is held by the Canadian Pacific Railway Company and the railway is operated by the latter company under a nine-hundred and ninety-nine year lease. Order No. 5000 issued on the 9th day of July, 1908, opening for the carriage of traffic that portion of the line from Linwood Junction to Listowel, a distance of 16.1 miles, and has continued in operation since that time.

The Operating and Engineering Departments made an inspection of the mileage on September 1, 1938, and the report, as the result of the inspection is dated September 6, 1938. At the time the inspection was made there were representatives of the railways, the various municipalities, and the Town of Listowel; and, a meeting was held in the station at Linwood at which the various representatives expressed their views of the proposed abandonment and other changes, and are reported to have offered very little objection to the proposal, although several of the municipal officials expressed the view that the notice had been rather short and that as a result it had been difficult to get a very general opinion of the farmers and landowners adjacent to the line. They were assured that they would be given an opportunity at a later date to appear before the Board and offer any objections they might have.

When the matter was heard, Mr. A. S. Hayden, K.C., of the firm of McCarthy & McCarthy, Toronto, represented the Town of Listowel, and Mr. A. Hamilton, Reeve, appeared for Mornington Township, Mr. C. M. Laidlaw for Elma Township, and Mr. A. L. Fleming for various municipalities. The case for the applicants was presented by Mr. Spence of the Canadian Pacific Railway, assisted by Mr. McDonald for the Canadian National Railways.

Mr. Spence, on page 2123, Vol. 655, part 2, states:—

We have two railways serving a town and one of these railways could do the business and could do it without serious inconvenience to the public. It is uneconomic to continue operating two railways where one can do the business, providing there is no undue disturbance of the public interest or the interests of the railways themselves. This is one of the cases which the railways decided was precisely of the kind contemplated by the C.N.R.—C.P.R. Act, and as a result we have decided to apply for abandonment under that Act.

While the application is made under Section 165-A of the Railway Act and Section 2, subsection 3, of the Canadian National-Canadian Pacific Act, 1933, and all other appropriate statutory provisions, in so far as the Board is concerned it comes under Section 165-A of the Railway Act, and will be dealt with as if the application had been made under that section.

Figures were filed with the Board to accompany agreement in regard to the abandonment of Canadian Pacific Railway between Linwood and Listowel and certified by the Joint Co-operative Committee—copy of which had not been furnished to Counsel for the Town of Listowel. These figures show a net operating deficit of $4,722.58, and a joint saving, if the application was granted, of $29,078.54 per year. Mr. Hayden requested, and the railways were directed to furnish him with figures showing what their earnings and out-of-pocket expenses were; also, the names of the Joint Co-operative Committee and what positions they occupied in the two railway companies.

Figures were filed, copies sent to Mr. Hayden, and his written submissions were received by the Board February 8, 1939. The figures indicate, very clearly, that the line is being operated at a loss and I think the estimated joint saving in operation of $29,078.54 per year can be taken as approximately correct.

The question before the Board is whether granting this application would seriously inconvenience the public. Plan C. 8690 shows trackage by both the C.N.R. and C.P.R. at Listowel. This plan shows that the C.N.R. Industrial spur runs in a general easterly and westerly direction south of Elma street, approximately at right angles to the C.P.R. trackage which runs, roughly, north and south between Mill and Wellington streets. The tracks of the two railways are not connected and there are no interswitching facilities. The industries shown on the C.N.R. track are the Maitland Spinning Mills, Ltd., A. Malcolm Furniture Company, and several others not mentioned in the evidence. On the C.P.R. trackage the industries are enumerated as follows: Listowel Casket Co.; A. Shackelton Co.; Blackmore, Hamilton Furniture Co.; J. A. Maclntyre-Gasoline; Pfeffer Milling Co.; Robt. Oliver (Builders Supplies & Fuel); Mrs. K. Kemp (Coal); Cities Service Oil Co. (Ideal Supply Co.); Dri-Milk Co. (City Dairy, Toronto); Maitland Spinning Mills Ltd. (Lease portion of freight shed). It will be noted from the evidence that the Maitland Spinning Mills Ltd. leased a portion of the freight shed on the C.P.R.

The largest shipper is the Malcolm Furniture Company and the second largest is the Maitland Spinning Mills Ltd., both of which factories are now located on the C.N.R. and any carload shipments now made over the C.P.R. would involve trucking charges to the C.P.R. trackage, which, it is repeatedly stated in the evidence, would involve a cost of about $15 per car. The same would be true of incoming carload freight, but L.C.L. freight would be delivered at the railways' expense. Both of the above companies were represented at the hearing by their Managers. The third important shipper mentioned is the Dri-Milk Company, who are now located on the C.P.R. trackage. The Manager of this Company was not present at the morning sittings of the Board, and it was suggested by Mr. Hayden, K.C., prior to adjournment, at noon, that he would endeavour to have the Manager of the Dri-Milk Company present at the afternoon sittings, and suggested that in the event of the Manager not being available he would like the Board to allow a statement to be filed—indicating they are dependent upon the Canadian Pacific Railway Company's facilities, as we have them at the present time, for the shipment of sweet cream.

The Dri-Milk Company, in a letter addressed to Mr. L. A. Fleming, dated December 9th, which has since been filed with the Board, objects to the application being granted, on the ground that the train service on the C.P.R. allows them to deliver their product, in Toronto, at a time that is very desirable, and it would not be possible to deliver the same product, in good condition, if the C.N.R. service was the only railway service available.

The Maitland Spinning Mills, Limited, object to the abandonment on the same ground, that the C.P. railway time tables serve their purpose, but that the C.N.R. time tables would not provide satisfactory service. Mr. Bennett, representative of the Malcolm Furniture Company, when cross-examined by Mr. Spence, admitted that only one carload of their products had been shipped over the C.P.R. in the past three years. The following are the time tables for the two railways:—

Passenger Service:
C.P.R.				C.N.R.
Leave Listowel	No.	Arrive Toronto	No.	Leave Listowel	No.	Arrive Toronto	No.
2.00 p.m.		9.45 p.m.		7.20 a.m.	176	11.10 a.m.	28
				8.30 a.m.	169	3.25 p.m.	6
				9.25 a.m.	168	7.40 p.m.	36
				4.52 p.m.	171	10.35 p.m.	20
Leave Listowel	No.	Arrive Hamilton	No.	Leave Listowel	No.	Arrive Hamilton/td>	No.
2.00 p.m.		8.55 p.m.		8.30 a.m.	169	2.20 p.m.	6
				9.25 a.m.	168	7.55 p.m.	174
				4.52 p.m.	171	9.20 p.m.	16
Leave Toronto	No.	Arrive Listowel	No.	Leave Toronto	No.	Arrive Listowel	No.
8.30 a.m.		12.20 p.m.		7.30 a.m.	29	11.35 a.m.	331
				2.30 p.m.	11	8.17 p.m.	170
				5.40 p.m.	37	9.33 p.m.	177
				11.45 p.m.	9	9.25 a.m.	168
Leave Hamilton	No.	Arrive Listowel	No.	Leave Hamilton	No.	Arrive Listowel	No.
8.55 a.m.		12.20 p.m.		1.00 a.m.	9	9.25 a.m.	168
				6.35 a.m.	173	11.35 a.m.	331
				2.55 p.m.	83	8.17 p.m.	170

Freight Service:
	C.P.R.	C.N.R.	No.
Leave Listowel	2.00 p.m.	8.00 p.m.	WF
Arrive Toronto	3.30 a.m.	6.00 a.m.	458
Arrive Hamilton	4.30 a.m.	6.00 a.m.	544
Leave Toronto	10.35 p.m.	9.15 p.m.	457
Leave Hamilton	11.30 p.m.	8.15 p.m.	543
Arrive Listowel	12.20 p.m.	8.00 a.m.	WF

I think the above time table showing the passenger and freight service indicates, very clearly that, while it might be necessary to readjust their time of shipping goods somewhat, a very satisfactory service is, and will continue to be, rendered by the C.N.R.

The question of interswitching charges was mentioned, on behalf of the Town of Listowel, as one objection to the application being granted. Part (b) of the application makes provision so that all industries will be served by the C.N.R. that are presently served by both companies, and the cost of loading by an industry located on the C.P.R. to a C.N.R. ca.r at present, is such, and the same is true if an industry located on the C.N.R. loaded a car on the C.P.R. trackage, that interswitching charges are certainly a minor charge in comparison with the cost of loading cars, other than on the railway where the industry is located.

I am convinced that very little, if any, inconvenience, will be caused to the Town of Listowel if this application is granted and the connection approved as applied for under Part (6) of the application.

Between Linwood, Mile 0.3 and Listowel, Mile 16.5, a distance of 16.1 miles, the line is to be abandoned, eliminating two stations—Dorking and Tralee. There is at each point a station, a passing track, a stock pen, and privately owned stock scales. The small village at each of these points is situated not on the railway but on the highway a short distance to the north, as can be seen on map of the district on file. The earnings for the two stations are on file and are shown in Exhibit No. 4. The statement covers a period from 1935 to September 1938, and indicates that earnings at the two stations make a grand total of $4,373.06 forwarded, and $2,268.67 received. Exhibit 3 is a statement of the Public Commercial Vehicle Operators in Linwood—Listowel area from figures supplied by the Ontario Department of Highways, September, 1938, and shows within a 15 mile radius of Linwood-Listowel line 209 commercial vehicle operators licensed, and shows within a 20 mile radius of Linwood—Listowel line 346 commercial vehicle operators licensed. These figures do not include operators stationed outside the area with rights of operation within it, and do not include privately operated trucks.

Both in the report of the Operating and Engineering Departments of the Board, dated September 6, 1938, and in the evidence, it is clear that good roads are available in the whole territory and trucks have become keen competitors for traffic.

I find that, viewed from the standpoint of whether the public, in this territory, would be seriously inconvenienced, if the application were granted, that little or no serious inconvenience will result. In my opinion, the railways should be granted leave to abandon operation of the line under Part (a) of the application, and granted leave to construct and operate the branch line, as applied for, in Part (b) of the application. Order should go accordingly.

Ottawa, February 17, 1939.

The Assistant Chief Commissioner and Commissioner Stone concurred.