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Swing Bridge appeal decision expected in coming months

Case was heard by Ontario Court of Appeal in Toronto on Wednesday.
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Swing Bridge
The James Street Swing Bridge has been closed to vehicular traffic since Oct. 29, 2013. (tbnewswatch file photograph)

THUNDER BAY – The city expects to learn within the next six months whether its appeal to force the Canadian National Railway to reopen the James Street Swing Bridge to vehicular traffic has been successful.

The case, seeking to overturn a June 2017 court ruling, was heard by the Ontario Court of Appeal in a Toronto courtroom on Wednesday.

City manager Norm Gale would not speculate on the outcome of the appeal but said the judges hearing the case were “inquisitive.”

“They asked several questions of counsel for both the City of Thunder Bay and CN,” Gale said on Friday. “The hearing lasted all day and a decision was reserved.”

The city filed an appeal in July, arguing Superior Court Justice Patrick Smith “failed to understand what he was being asked to do, and failed to understand that his role was to interpret the 1906 agreement” when he ruled CN was not obligated to make repairs to bring the bridge up to current code.

The city has maintained the century-old contract, signed by then-owner Grand Trunk Railway and the former town of Fort William, in the present day calls for CN to continue maintaining the bridge "in perpetuity." The bridge has been closed to vehicular traffic since a fire broke out on the northern approach spans on Oct. 29, 2013, though trains resumed crossing later that week.

“In particular, this appeal will decide whether CN can deprive the city of its perpetual contractual right to have the bridge open for the use of its residents and the respondent Fort William First Nation, while CN continues to enjoy the perpetual contractual rights granted to Grand Trunk in 1905, including the right to run trains over the city’s streets, which CN continues to do to this day,” the notice of appeal reads.

In his decision, Smith ruled the legal responsibility was on the city to define exactly what CN would have to do to make the bridge safe for motorized traffic, a legal standard he said the city did not meet.

“Without a specific and detailed proposal from the city – one that has been tested and approved as structurally safe for public traffic, this court is left without reliable evidence upon which to formulate the orders that the city is seeking,” Smith wrote in his decision.

“This court cannot make an order based upon conjecture, speculation or the possibility that an ‘idea’ may be workable. This is all the more critical when the safety of the public is at risk. Without evidence, it is not possible to determine whether the work required to open the bridge safely is within the scope of what was intended by the parties signing the 1906 agreement.”

While city solicitor Patty Robinet was in attendance at the hearing, Gale confirmed external counsel is involved in the case. Gale said he could not provide a specific answer about the costs to the city of pursuing the appeal, other than to say “we have spent money on it.”

Gale said the decision is expected within the next two to six months.