September 1, 1935, Vol. 25, No. 12 Judgments, orders, regulations and rulings (Ottawa) Page 197

Application of the Canadian National Railways for an Order granting leave to abandon the operation of its Locksley Subdivision, in the Province of Ontario, between Golden Lake (mile 0.0) and National Junction (mile 20.2), a distance of 20.2 miles.

39310.14

Heard at Pembroke, Ontario, April 24, 1935.

Judgment

The Canadian National Railway Company applies, under chapter 47 of the Statutes of Canada for the year 1932-33, for the approval of the Board to the abandonment of the operation of its Locksley Subdivision, in the province of Ontario, between Golden Lake (mile 0.0) and National Junction (mile 20.2), a distance of 20.2 miles.

Before the year 1933, unless there was a statutory or contractual provision requiring a railway company to operate its road, it was at liberty to abandon the whole or any portion of its line. The statute above referred to, which amends the Railway Act by adding section 165-A, provides that:—

The company may abandon the operation of any line of railway with the approval of the Board, and no company shall abandon the operation of any line of railway without such approval.

In the application of the Canadian Pacific Railway Company for approval of the abandonment of operation of its line between Kirkella and McAuley, in the province of Manitoba, heard by Hon. C. P. Fullerton, the then Chief Commissioner of the Board, and reported in C.R.C. Vol. 41, p. 388, he says:—

Unlike the corresponding provision in the Interstate Commerce Act, Parliament has laid down no principle upon which the Board should act in granting or withholding approval. Section 1 (18) of that Act provides that:—

No carrier by railroad subject to this Act shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.

In a majority of the cases in which the Interstate Commerce Commission issued certificates authorizing abandonment, referred to and summarized in the index to Vol. 131, I.C.C.R., p. 805 et seq., it will be noted that either the industries served had ceased to operate, or that other adequate transportation facilities, either by rail or truck, were available, and that serious public inconvenience would not result from the abandonment.

The American decisions lay down that the mere fact that a branch line of railroad does not yield a profit from operation will not in every case justify its abandonment.

The point at which abandonment shall be considered justifiable is a matter of sound judgment, and must be determined by the circumstances of each case.' Abandonment of line by Southern Railway, 105, I.C.C.R. 228, at p. 233.

The issue as laid down by the Interstate Commerce Commission is whether or not the inconvenience occasioned by abandonment and the consequent losses to the public outweigh the burden that continued operation of the branch would impose upon the railway and upon interstate commerce. See Detroit, Toledo and Ironton R. Co., Abandonment, 187, I.C.C.R. 443, at p. 438.

In Chicago, Milwaukee, St. Paul and Pacific R. Co., Abandonment, 184, I.C.C.R. 687, at p. 692, the Commission said:—

A community unable to support a railroad cannot justly demand its continued operation at a loss in order to maintain the value of private property within that community. On the other hand, mere showing of unprofitable operation of a portion of a railroad system does not necessarily justify abandonment of that portion; but there is a point at which lack of earning power of part of a system justifies its abandonment without regard to the system operations as a whole. The transportation needs of a community or section must be weighed against the burden that the cost of rehabilitation, maintenance, and operation would impose upon commerce. The point at which abandonment shall be considered justifiable is a matter of sound judgment, and must be determined by the circumstances of each case.

The railway, from Pembroke to Golden Lake, is a line authorized under the name of The Pembroke Southern Railway Company, the objective being Pembroke-Golden Lake.

The Ottawa, Arnprior and Parry Sound, which was afterwards absorbed by the Canada Atlantic, began operations approximately in 1898, and the Pembroke Southern Railway was constructed to Golden Lake and was there connected with the Ottawa, Arnprior and Parry Sound, which is the present Canadian National, Ottawa-Madawaska-Parry Sound line, the Locksley Subdivision being the connection into Pembroke.

The present train service on the Locksley Subdivision, Golden Lake to Pembroke, a distance of 21.1 miles, is:—

Northbound Leave Arrive
Psgr. train #89, daily ex. Sun Golden Lake 11.00 a.m. Pembroke 11.45 a.m.
Mixed train #259, daily ex. Sun Golden Lake 6.50 p.m. Pembroke 7.50 p.m.
Southbound Leave Arrive
Psgr. train #90, daily ex. Sun Pembroke 2.05 p.m. Golden Lake 2.49 p.m.
Mixed train #258, daily ex. Sat. and Sun Pembroke 6.55 a.m. Golden Lake 7.55 a.m.
Mixed train #260, Sat. only Pembroke 8.30 a.m. Golden Lake 9.30 a.m.

The railway operating revenues for the year ending September 30, 1931, were $50,544; for the year ending December 31, 1933, they were $13,434, and for the year ending December 31, 1934, they were $18,918. The railway company's operating expenses (out-of-pocket only) for the same period were as follows: for the year ending September 30, 1931, $61,616; for the year ending December 31, 1933, $43,166; and for the year ending December 31, 1934, $41,009. The loss for this three-year period amounted to $11,072 in 1931, $29,732 in 1933, and $22,091 in 1934.

On June 22, 1935, Mr. Rand, Commission Counsel of the Canadian National Railways, wrote the Board with regard to the above figures set out for the year ending September 30, 1931, wherein he shows there is included in the sum shown of $23,897 an amount of $1,680 representing divisional supervision, and for the year 1934, his figures show the sum of $17,053, which includes an amount of $1,200 for supervision. Both these items should be deducted in order to make the losses shown as out-of-pocket expenses only. This would change the figures represented, so the loss for the year 1931 would be shown as $9,392, and for the year 1934, $20,891.

At the request of counsel for the town of Pembroke, the Canadian National Railways filed a statement showing inward and outward tonnage and system revenue for the years 1924-25-26-27. The figures filed for the years previous to 1931 have no bearing on this case. Consideration only is given to the figures dealing with the years 1931 to 1934.

Because of the contradictory statements made with regard to the population as well as the location and type of roads in the locality that would be affected in case of abandonment, the interested parties were asked to agree upon a plan showing details as to roads and the number of people living in territory adjacent to Locksley Subdivision. This plan was filed with the Board June 19 and shows the population adjacent to the Locksley Subdivision to be approximately 1,950. The plan above referred to divides the territory tributary to the Locksley Subdivision into blocks. It sets out the number of residents in each block, and shows in detail the location and type of roads leading to the present shipping centres on the Locksley Subdivision. The plan shows dirt roads in all parts of the territory affected, except the extreme east and south, which is served by either gravel or macadam roads. The distance people in this territory would be from shipping facilities, in the event of the abandonment of this subdivision, would be, in some cases, about 23 miles. The most northerly of these blocks, said to have a population of 600, shows the distance that now has to be travelled by road to get to Woito Station from the extreme end of the road in the southwest corner of the block to be 10.8 miles and 12.2 miles to Locksley Station. Locksley Station to Pembroke is about 8 miles—so that the distance from the extreme southwest corner road would be about 20 miles to Pembroke.

West of the southwest portion of the above-mentioned block there is a small block 3 1/2 miles by 2 miles, said to contain 50 people. By round-about roads, the distance to Pembroke would be about 22 miles, although apparently there are no roads on this block; the nearest being; the southwest corner road on the 600 block. The round-about roads would make the distance to Golden Lake from this point 23 miles.

The block said to contain 700 people in the north and east part of the township of Wilberforce has a macadam road in the eastern portion and the balance has dirt roads, except the extreme west portion, which apparently has none. The centre of this block is about 10 miles from Golden Lake and about 14 miles from Pembroke.

Under existing conditions, by existing roads and best connections, from the extreme southeast corner of the above block to Locksley Station, the distance is 10.2 miles; to Woito Station 11.2 miles, and to Dore Bay Station 9.6 miles; and from the centre of the block to Locksley Station is about 8.6 miles; Dore Bay Station 6.4 miles, and to Woito Station 5.4 miles.

South of the above-mentioned block is an irregular shaped block said to contain 600 people. The settlement of Germanicus is about the centre of the block. The distance to Dore Bay and Golden Lake is about the same. Dore Bay is 6.4 miles from Golden Lake by road. No part is more than 10 miles from Golden Lake.

While the statement filed by the applicant showing operating revenues and out-of-pocket operating expenses only show that the loss for the period which the figures cover is substantial, against those figures must be weighed the public inconvenience which would result from the abandonment. The evidence shows that a substantial number of persons would be affected. The distance which they would have to travel is shown on the plan filed; in some cases it would be necessary to travel 23 miles to reach shipping facilities, over roads which, at certain seasons of the year, are almost impassable.

While the applicant states that some trucking has been done, the evidence is clear as to the fact that whatever trucking was carried on was by a private individual hauling his own goods. There are no transportation facilities available to the public in the territory, except the railway.

I feel sure that, in spite of the substantial loss shown by the applicant, the inconvenience to the public would be of such a serious nature that, for the present at least, the application should be refused. Order to issue dismissing the application.

Ottawa, August 14, 1935.

Concurred in by the Assistant Chief Commissioner and Commissioner Norris.

Railways: C.A.Ry., C.N.Rys., O.A. & P.S.Ry., P.S.Ry.

Stations: Golden Lake, Locksley, National Jct., Woito

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