



COURT OF APPEAL FOR ONTARIO

CITATION: Thunder Bay (City) v. Canadian National Railway
    Company, 2018 ONCA 919

DATE: 20181116

DOCKET: M49452 (C64026)

Simmons J.A. (Motion Judge)

BETWEEN

The Corporation of the City of Thunder Bay

Applicant (Appellant/ Responding Party)

and

Canadian National Railway Company
and
Fort
    William First Nation

Respondents (
Respondent
/
Moving Party and Responding
    Party
)

Guy J. Pratte and Duncan A.W. Ault, for the moving party,
    Canadian National Railway Company

Christopher J. Matthews and Sanj Sood, for the
    responding party, The Corporation of the City of Thunder Bay

Samuel W. Crowe, for the responding party, Fort William
    First Nation

Heard: November 2, 2018

REASONS FOR DECISION

A.

Introduction

[1]

The Canadian National Railway Company moves for a stay of this courts
    order made in June 2018, which required CN to reopen the James Street Bridge in
    Thunder Bay for vehicle traffic and maintain the Bridge in accordance with a
    1906 agreement.

[2]

CN owns the Bridge, which traverses the Kaministiquia River in Thunder
    Bay. Most of Thunder Bay lies to the north of the Bridge; the Fort William
    First Nation lies to the south.

[3]

The Bridge was built under the terms of a 1906 agreement between the
    Grand Trunk Pacific Railway Company, a predecessor of CN, and the Town of Fort
    William, which was later amalgamated into the City of Thunder Bay.

[4]

Under s. 3 of the 1906 agreement, Grand Trunk gave Fort William the
    perpetual right to cross said bridge for street railway, vehicle and foot
    traffic. Under s. 5, Grand Trunk agreed to maintain the bridge in
    perpetuity.

[5]

The Bridge is unique in CNs railway network, in that it is a combined
    railway, vehicle and pedestrian bridge. Single vehicle lanes straddle both
    sides of the centre railway line and a pedestrian sidewalk flanks the outside
    of each vehicle lane.

[6]

Following a fire in 2013, CN closed the Bridge to vehicle traffic,
    claiming it was unsafe and could only be made safe through structural repairs
    that were beyond the scope of its maintenance obligation under the 1906
    agreement. As matters developed, the key safety concern was that an errant
    vehicle could leave the roadway, cross the sidewalk  which could not bear its
    weight  and fall into the river.

[7]

In 2017, Smith J. dismissed Thunder Bays application for a declaration
    that CN is obliged to maintain the Bridge in perpetuity and required to reopen
    the Bridge for vehicle traffic. He concluded that it was the intention of the
    parties to the 1906 agreement that the Bridge be maintained for the type of
    bridge traffic that existed when the agreement was made, namely streetcar and
    horse and cart traffic. Further, he found that CN had consistently taken the
    position that it was not obliged to make structural changes to the Bridge that
    would permit modern motor vehicle traffic. Finally, he concluded that Thunder
    Bay, as the applicant, had the onus to clearly define the relief it was seeking
    and the changes necessary to make the Bridge safe for motor vehicles and that
    it had failed to do so.

[8]

On June 11, 2018, this court set aside the application judges order and
    made the order CN seeks to stay. Among other things, this court found that the
    application judges conclusion concerning the parties intentions was
    unreasonable and tainted by extricable errors of law. On its application of the
    principles of contractual interpretation, this court concluded that vehicle
    traffic in the 1906 agreement means any kind of vehicle traffic, including car
    and truck traffic. Further, CN was obliged to maintain the Bridge in perpetuity
    for any kind of vehicle that used it. Finally, this court held that the
    application judge erred by placing an onus on Thunder Bay to provide a proposal
    to make the Bridge safe for motor vehicles as it is up to CN to determine what
    maintenance is needed to alleviate any safety concerns.

[9]

In reaching its conclusions, this court found that CNs attempt to
    distinguish structural repairs from its maintenance obligation was both of
    little practical consequence and legally irrelevant  the latter because an
    action in which CN claimed a declaration that its contractual maintenance
    obligation was extinguished had been stayed.

[10]

CN
    filed a notice of application for leave to appeal this courts order to the
    Supreme Court of Canada on August 20, 2018. The application was subsequently
    completed in mid October. In its leave application, CN submits that this courts
    decision raises two issues of public importance that warrant granting leave to
    appeal:

1.

Whether an appellate court can impose a perpetual maintenance obligation
    that it refuses to define without affording basic procedural fairness.

2.

Whether a minimal level of specificity is required for a mandatory
    order.

[11]

On
    this motion, CN seeks a stay for an estimated period of about two months. It asserts
    that it has taken reasonable steps to comply with this courts order and that
    it will continue to do so up until December 15, 2018  the date on which it
    anticipates delivery of issued for construction drawings for reconstruction
    work it proposes to undertake. It estimates that a decision from the Supreme
    Court of Canada on its leave application would likely be forthcoming within
    about two months after December 15, 2018.

[12]

Thunder
    Bay and the Fort William First Nation oppose the granting of a stay.

[13]

For
    the reasons that follow, I decline to grant a stay.

B.

Background

(1)

The 1906 Agreement

[14]

The
    1906 agreement was preceded by an agreement made in 1905 in which Grand Trunk
    and Fort William agreed to the construction of a branch line that would connect
    the Town to a transcontinental railroad. Section 6 of the 1905 agreement
    provided that Fort William would pay Grand Trunk a $50,000 bonus if Grand Trunk
    agreed to construct a bridge over the river and give the Town the perpetual
    right to cross the bridge for street railway, vehicle and foot traffic.

[15]

Under
    the 1906 agreement, Grand Trunk agreed to build the Bridge. As noted above, s.
    3 of the 1906 agreement gave Fort William the perpetual right to cross the
    Bridge for street railway, vehicle and foot traffic:

The Company will give the
    Municipal Corporation the perpetual right to cross said bridge for street
    railway, vehicle and foot traffic on roadways supported by brackets on each
    side of the railway bridge substantially as shown on Plate C, and this
    portion of the bridge shall be for the Town and any person or corporation
    authorized by the Town.

[16]

Section
    5 of the 1906 agreement set out Grand Trunks obligation to maintain the Bridge
    in perpetuity:

The Company will maintain the
    bridge in perpetuity without costs to the Town except the cost and maintenance
    of street car rails and trolley wires which will be furnished by the Town or
    Electric Railway Company using the bridge; and that the space allowed for Town
    traffic on each side of the bridge, be sufficient to accommodate street car,
    vehicular traffic and separate passage for foot passengers.

(2)

The Bridge

[17]

Construction of the Bridge was completed in 1909.
Between
    1909 and 2013 the Bridge operated for rail, vehicle and pedestrian traffic.

After 1950, the vehicle lanes were no longer
    used for street railway; instead, they were used exclusively for vehicle
    traffic, including both car and truck traffic. Prior to closure, the speed
    limit on the Bridge was reduced to 20 km/h and three speed bumps were
    installed. As of 2007 (the most recent statistics available), annual daily
    traffic was estimated at 8,871 motor vehicles per day.

(3)

CN closes the Bridge to vehicle traffic

[18]

CN
    closed the Bridge on October 29, 2013 because of a fire. However, when it
    reopened the Bridge three days later, it reopened it only for trains and
    pedestrians, claiming it was not safe for motor vehicles. CN asserted that the
    Bridge could not be made safe for motor vehicles without structural changes 
    and it claimed it was not required to make structural changes under its
    obligation to maintain the Bridge in the 1906 agreement.

(4)

The 2015 Litigation

[19]

In
    February 2015, CN issued a statement of claim in which it claimed, among other
    things, declarations that it was not contractually obligated to reopen, rebuild
    or replace the roadway bridge and that any obligation to maintain the roadway
    bridge had been extinguished. Three days later, Thunder Bay issued an
    application, naming both CN and Fort William First Nation as respondents, in
    which it sought, among other things, a declaration that CN is obliged to
    maintain in perpetuity a combined railway and highway bridge and that such
    obligation includes maintaining the bridge to current standards and
    regulations. Thunder Bay also sought an order staying CNs action or, in the
    alternative, consolidating the two proceedings.

(5)

CNs action is stayed

[20]

On
    January 20, 2016, Fregeau J. stayed CNs action, holding that it was
    appropriate that the matter proceed by way of Thunder Bays application.

(6)

Thunder Bays application is dismissed

[21]

On
    June 9, 2017, the application judge dismissed Thunder Bays application based
    on his interpretation of the 1906 agreement. He concluded, based on the words
    used, the subsequent conduct of the parties and the context in which the
    agreement was made, that it was the intention of the parties that CN would
    maintain the Bridge for the type of bridge traffic that existed at the time of
    the 1906 agreement, namely streetcar and horse and cart traffic.

[22]

Further,
    the application judge found that the record did not support Thunder Bays
    position that CN had maintained the Bridge to the extent of making structural
    changes necessary to comply with modern safety codes.

[23]

Finally,
    the application judge concluded that Thunder Bay had the onus of clearly
    defining the relief it was seeking and of providing cogent evidence of the
    changes necessary to make the Bridge safe for motor vehicles and that it had
    failed to do so. He said that without such evidence, it was not possible to
    determine whether the work required to open the Bridge safely was within the
    scope of what was intended by the parties when they signed the 1906 agreement.

(7)

This court orders CN to reopen the Bridge

[24]

In
    its June 11, 2018 judgment, this court set aside the application judges
    decision. This court held that, under the 1906 agreement, vehicle traffic means
    any kind of vehicle traffic, including car and truck traffic. Accordingly, at
    para. 69 of its reasons, this court stated:

Under the Agreement cars and
    trucks have a perpetual right to cross the Bridge, and to ensure that right is
    preserved, CN has a corresponding obligation to keep open and maintain the
    Bridge in perpetuity. To terminate its obligation CN would have to seek a court
    order that its obligation to maintain is incapable of being performed.

[25]

This
    court held that CN breached the 1906 agreement by failing to reopen the Bridge
    for motor vehicle traffic. Further, it found that CN is obliged to reopen the
    Bridge for vehicle traffic and to determine what maintenance is needed to
    alleviate any safety concerns.

[26]

In
    reaching these conclusions, this court held that the application judges
    finding concerning the parties intentions regarding the use of the Bridge was
    unreasonable and tainted by extricable legal error.

[27]

In
    particular, the application judges finding was unreasonable because it failed
    to take account of the full context in which the 1906 agreement was made, was
    contrary to the parties reasonable expectations, and was at odds with the
    express words of the 1906 agreement.

[28]

Further,
    the finding was tainted by two extricable legal errors.

[29]

First,
    the application judge failed to give any effect to the words perpetual and
    in perpetuity. Second, the application judge erred in taking into account the
    parties subsequent conduct when the meaning of the 1906 agreement was not
    ambiguous. Alternatively, even if the meaning was ambiguous, the application
    judge failed to consider the parties relevant subsequent conduct.

[30]

Finally,
    this court concluded that the application judge erred by placing an onus on
    Thunder Bay to provide a proposal to make the Bridge safe for motor vehicles.

[31]

In
    the context of discussing these errors, this court found the distinction CN
    sought to draw between maintenance obligations and structural repairs of little
    practical consequence and legally irrelevant.

[32]

The
    distinction was of little practical consequence because the maintenance CN had
    performed until 2013 had been sufficient to allow cars and trucks to safely
    cross the Bridge prior to its closure. It was undisputed that the fire caused
    minimal damage to the Bridge. Instead, the key safety issue that CN had
    identified was the risk of an errant vehicle leaving the roadway, crossing the
    sidewalk and falling into the river. However, that risk had never manifested
    itself in over 100 years of operation and was minimized by the speed limit and
    speed bumps on the Bridge.

[33]

The
    distinction was legally irrelevant because it was, in substance, an argument
    that CN should be relieved of its obligation to maintain the Bridge  relief CN
    had claimed in its action  and its action had been stayed.

C.

THE TEST FOR GRANTING A STAY

[34]

The
    basic test for granting a stay pending leave to appeal is the same as the test
    for granting an interlocutory injunction. The moving party must demonstrate: i)
    a serious issue to be adjudicated on appeal; ii) that it will suffer
    irreparable harm if a stay is not granted; and iii) that the balance of
    convenience favours granting a stay: see
Yaiguaje v. Chevron Corporation
,
    2014 ONCA 40, 315 O.A.C. 109, at para. 3;
RJR-MacDonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311, at p. 314.

[35]

However,
    these factors are not watertight compartments; the strength of one factor may
    compensate for the weakness of another. Overall, the court must decide whether,
    taking all relevant considerations into account, the interests of justice
    warrant granting a stay:
Circuit World Corp. v. Lesperance
(1997), 33
    O.R. (3d) 674 (C.A.), at p. 677.

[36]

Although
    ordinarily the threshold for establishing a serious issue to be adjudicated is
    low, the criteria for granting leave to the Supreme Court of Canada add another
    layer to the test:
BTR Global Opportunity Trading Ltd. v. RBC Dexia
    Investor Services Trust
, 2011 ONCA 620, 283 O.A.C. 321, at para. 16.

[37]

Under
    s. 40(1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26 leave may be
    granted where any question involved is one that ought to be decided by the
    Supreme Court by reason of its public importance or the importance of any issue
    of law or any issue of mixed fact and law or for any other reason of such a
    nature and significance as to warrant a decision by the Supreme Court.

[38]

The
    stay test requires that a judge hearing a stay motion consider not only whether
    the proposed appeal raises a serious issue to be adjudicated under
RJR-Macdonald
.
    The judge must also consider the factors in s. 40(1) and assess whether there
    is some merit in the leave application:
Yaiguaje
,
at para. 4.

D.

Discussion

(1)

Serious issue to be adjudicated and s. 40(1) criteria

[39]

I
    conclude it is unlikely that CN will succeed in its application for leave to
    appeal to the Supreme Court of Canada.

[40]

As
    noted above, CN submits this courts decision gives rise to two issues of
    public importance that warrant granting leave:

1. Whether an appellate court can
    impose a perpetual maintenance obligation that it refuses to define without
    affording basic procedural fairness.

2. Whether a minimal level of
    specificity is required for mandatory order.

(a)

The maintenance obligation

[41]

Concerning
    the first issue, CN submits that the imposition of a maintenance obligation
    unbounded in scope and duration is a departure from established jurisprudence
    holding that maintenance obligations should be constrained. It contends that this
    courts decision thus creates uncertainty in contracts and statutory provisions
    under which parties are obliged to provide (or enjoy the benefit of)
    maintenance. Further, CN submits that this court imposed this maintenance
    obligation by erroneously finding that its scope was irrelevant to the
    proceeding because of a stay imposed in relation to CNs original action against
    Thunder Bay. CN says this finding was contrary to both parties position that
    determining the scope and content of the maintenance obligation was a key issue
    to be decided. Moreover, the finding of irrelevance based on the prior order
    for a stay deprived CN of procedural fairness because the issue was never
    raised in argument nor did the court afford CN an opportunity to address it.

[42]

As
    a starting point, I see little merit in CNs submissions about the scope of
    maintenance obligations and the impact of this courts decision on other
    contracts or statutory provisions imposing maintenance obligations.

[43]

It
    was the 1906 agreement, not this court, that created a perpetual right to cross
    the Bridge and that imposed a maintenance obligation in perpetuity.

[44]

This
    courts interpretation of the 1906 agreement was driven by established
    principles of contractual interpretation, including: (1) an analysis of the
    contextual factors relating to the formation of the contract (the purpose of
    both the 1905 and 1906 agreements, the reasonable expectations of the parties
    in entering into the 1906 agreement and the coming of the automobile era), (2)
    the language of the 1906 agreement (including the use of the terms perpetual
    and in perpetuity) and, (3) the fact that, if subsequent conduct was
    relevant, which this court concluded it was not, CN had been able to make
    repairs and upgrades falling within its acknowledged maintenance obligation
    sufficient to allow cars and trucks to safely cross the Bridge for many years.

[45]

As
    noted by CN in its appeal factum in this court, the Supreme Court of Canada has
    held that a contractual maintenance obligation varies according to the
    specific terms of each contract:
T
hunder Bay (City) v. Canadian
    National Railway Company
, 2018 ONCA 517, 424 D.L.R. (4th) 588 (Factum
    of the Respondent at para. 65).

[46]

Thus,
    rather than being a departure from existing jurisprudence, this courts
    interpretation is consistent with it. Moreover, I fail to see how this courts
    interpretation of the specific provisions of this rather unique contract is
    likely to have an impact on the interpretation of other contracts or statutes.

[47]

Similarly,
    I see little merit in CNs arguments that this court erred in finding that the
    distinction CN draws between its maintenance obligation and making structural
    changes to the Bridge was irrelevant in the context of the within proceeding.

[48]

As
    I have said, CN makes two points in this regard. First, CN argues this finding
    was contrary to both parties position that determining the scope and content
    of the maintenance obligation was a key issue to be determined. I reject this
    submission. In its factum filed on the appeal to this court, Thunder Bay took
    the position that CNs stance in this litigation is akin to a party seeking to
    rely on the doctrine of frustration to excuse its breach of contract:
Thunder
    Bay (City) v. Canadian National Railway Company

(Factum of the
    Appellant at para. 86).

[49]

That
    is the precise basis on which this court concluded that the distinction CN
    sought to draw between maintenance and structural changes is irrelevant in this
    proceeding. This court also noted that the application judge did not make a
    finding that the 1906 agreement was at an end and stated at para. 59, nor
    could he. Further, this court stated the application judge did not even make a
    finding that CN was incapable of performing its contractual obligation. In adopting
    Thunder Bays submission, this court concluded that CN was seeking to be relieved
    from its contractual obligation based on a claim (frustration) it had not
    formally advanced.

[50]

CNs second point is that
this courts finding concerning the effect of the 2016 stay of its action
    deprived it of procedural fairness because the effect of the 2016 stay order
    was never raised during argument of the appeal. Nor did the court afford CN an
    opportunity to address the effect of the 2016 stay order.

[51]

Even
    assuming the specific argument about the effect of the 2016 stay order on which
    this court relied was never raised, the fact remains, as Thunder Bay pointed
    out during this motion, that CN did not advance a claim to be discharged from
    its contractual obligations in this proceeding by way of counter-application. In
    addition to pointing to the 2016 stay order, this court was clear in stating,
    at para. 69 of its reasons, that, to be discharged from its contractual
    obligation, CN would require a court order that its obligation to maintain is
    incapable of being performed  in other words, that this aspect of the 1906
    agreement is frustrated. I see nothing procedurally unfair about CN being
    precluded from advancing arguments relevant to a claim it did not advance.

[52]

In
    the circumstances, if this ground of appeal surpasses the serious issue
    threshold, it does so barely.

[53]

In
    any event, this is not the type of case in which the Supreme Court of Canada is
    likely to grant leave to appeal. As I have said, this case involves the
    interpretation of a private contract in which established legal principles were
    applied. It is therefore not the type of case in which the Supreme Court
    typically grants leave to appeal. For the reasons I have explained, I do not
    accept CNs argument that this courts interpretation of CNs maintenance
    obligation in the 1906 agreement is likely to have far-reaching implications on
    the interpretation of other contracts or statutory provisions.

(b)

The Mandatory Order

[54]

Concerning
    the second issue, CN asserts that this court erred by ordering CN to reopen and
    maintain the Bridge without giving any direction as to when the Bridge is to be
    reopened, how the Bridge is to be maintained or what the duty to maintain
    consists of. CN submits this is inconsistent with existing jurisprudence on
    both maintenance obligations and mandatory orders. It says guidance from the
    Supreme Court is required where this court has refused to interpret the content
    or scope of the key obligation a party is ordered to perform, thus leaving the
    content and scope of the maintenance obligation unlimited and potentially
    exposing CN to contempt proceedings.

[55]

As
    I see it, the flaw in this argument is that this courts order does no more
    than order CN to continue performing a contract that it had been performing,
    without apparent difficulty, for more than 100 years. This court interpreted
    the 1906 agreement as creating a perpetual right for cars and trucks to cross
    the Bridge and as creating a corresponding obligation on CN to open and
    maintain the Bridge in perpetuity to allow that to happen. This court stated
    that to terminate that obligation, CN would have to seek a court order that its
    obligation to maintain is incapable of being performed  which CN did not do.
    Accordingly, this court did no more than order CN to continue doing what it
    knew how to do and had successfully done for more than 100 years.

[56]

Even
    assuming this issue gives rise to a serious question to be adjudicated, I
    conclude this is not the type of case in which the Supreme Court is likely to
    grant leave to appeal for the same reasons I reached that conclusion in
    relation to the first issue.

(2)

Irreparable Harm

[57]

I
    am satisfied that CN would suffer irreparable harm in the following
    circumstances: i) a stay is not granted; ii) the Supreme Court does not deliver
    its decision on the leave motion before the date on which CN is in a position
    to undertake the tendering process in relation to proposed reconstruction work;
    and iii) CN is ultimately successful in its appeal.

[58]

As
    noted above, since this courts decision was delivered, CN has undertaken
    certain steps towards doing the work it considers necessary to enable it to
    reopen the Bridge. More specifically, CN sought proposals from three
    engineering firms and entered into an agreement with one of those firms.   Under
    that agreement, the selected engineering firm has provided a report on
    alternatives and will deliver issued for tender drawings by November 15, 2018
    and issued for construction drawings by December 15, 2018.

[59]

After
    December 15, 2018, presumably CN will have to arrange for tender documents to
    be prepared and thereafter undertake the tendering process. CN submits the
    latter step could lead to irreparable harm because CN would become
    contractually committed to paying for the reconstruction work for which it
    invites bids. CN has an estimate for this cost at between four and six million
    dollars. I accept CNs submission that if its leave application and appeal are
    ultimately successful, it is doubtful that CN would have any recourse against
    Thunder Bay for this amount.

[60]

Thunder
    Bay responds that it would be open to CN to make its tender and any contract
    conditional on denial of the request for leave to appeal. However, Thunder Bay
    provided no support for its submission that such a conditional tender would be
    practically feasible.

[61]

As
    a matter of common sense, bidders are unlikely to expend the time and money to
    submit a serious bid where a condition means the project may never proceed.

[62]

A
    review of a number of cases relating to tenders provides no support for the
    proposition that making a contract conditional on denial of a request for leave
    to appeal is likely to be practically feasible:
Surespan Construction Ltd.
    v. Saskatchewan
, 2013 SKQB 23, 10 B.L.R. (5th) 117;
Trevor Nicholas
    Construction Co. v. Canada
(2000), 2 C.L.R. (3d) 176 (F.C.T.D.)
;
Foundation
    Building West Inc. v. Vancouver (City)

(1995), 22 C.L.R. (2d) 94
    (B.C.S.C.);
Admiral Roofing Ltd. v. Prince George School District No. 57
,
    2010 BCSC 1394, 85 B.L.R. (4th) 87;
G.J. Cahill & Co. (1979) v.
    Newfoundland & Labrador
, 2005 NLTD 129, 250 Nfld. & P.E.I.R. 145;
St.
    Lawrence Cement Inc. v. Ontario (Minister of Transportation)

(1991),
    3 O.R. (3d) 30, 50 B.L.R. 319 (Ct. J. (Gen. Div.). Unlike Thunder Bays proposal,
    the conditions found in these cases do not negate the possibility the project
    will proceed.

[63]

Thunder
    Bay also argued that it was up to CN to show that a conditional tender is not
    feasible. I reject that submission. In my view, Thunder Bays proposal lacks an
    air of reality; I see nothing for CN to negate.

(3)

The Balance of Convenience

[64]

As
    I have said, I am satisfied CN may suffer irreparable harm in the form of incurring
    financial commitments for which it will not be compensated if a stay is not
    granted and CN ultimately succeeds on its appeal.

[65]

On
    the other hand, Thunder Bay and the Fort William First Nation have filed
    evidence that the 10-kilometre detour vehicular traffic must make because of
    the Bridge closure causes more than inconvenience. They contend it creates higher
    risks to motorists using the detour route because of significantly increased
    traffic, increased response times for emergency personnel coming to the First
    Nation from Thunder Bay, and negative financial consequences for the First
    Nation economy. Further, in the event of a road closure on the alternate route,
    the First Nation becomes temporarily inaccessible by road. Thunder Bay also
    raises the spectre that even a two-month interruption in CNs planned
    reconstruction effort could have the impact of delaying reopening of the Bridge
    from the current schedule of sometime in 2019 to the spring of 2020 or later,
    because construction cannot occur during winter weather.

[66]

While
    I have no doubt that the Bridge closure has had negative impacts beyond
    inconvenience during the more than five years it has been closed, I find the
    evidence of specific financial impacts unreliable. Further, I observe that
    there is no evidence before me concerning the cause of the accidents on the
    detour route on which Thunder Bay and the First Nation rely. I observe as well
    that Thunder Bay waited almost a year and five months before bringing its
    application to obtain a remedy for the Bridge closure. Although it appears
    Thunder Bay was attempting to negotiate a resolution with CN, the fact of this
    lengthy delay diminishes the force of the arguments about harm. Moreover, the
    expected delay between December 15, 2018 and the anticipated date of a decision
    on the leave application is relatively short  likely no more than two months. I
    do however acknowledge that, in any particular case, delay in emergency
    response times could lead to catastrophic results.

[67]

To
    these considerations, I add the observation that had CN filed its leave
    application more expeditiously, the requirement for a stay may not have arisen.
    This courts decision was released on June 11, 2018; CN took until August 20,
    2018 to file its leave application.  Although I cannot characterize such a
    delay as unreasonable in the abstract, in my view, it does not reflect the
    conduct of a litigant concerned about irreparable harm and for whom time is of
    the essence. To that extent, I consider that CN has contributed to the
    situation it is in.

[68]

Finally,
    the evidence relevant to the impact of an estimated two-month delay in
    tendering on the timing of the eventual reopening of the Bridge does not make
    it clear that the delay in reopening the Bridge will be restricted to two
    months. Based on evidence that the reconstruction CN proposes could take four
    to eight months and the uncontested fact that winter weather can impact
    construction, I cannot be satisfied that granting the stay would not have the
    effect of delaying the reopening of the Bridge until 2020 if leave is not
    granted. As CN is seeking a stay, it had the onus of demonstrating the extent
    to which granting the stay would delay the reopening of the Bridge.

[69]

Overall,
    I conclude that the balance of convenience favours CN, but only modestly. The
    potential harm to CN is quantified at four to six million dollars if leave is
    granted and its appeal is ultimately successful. Balanced against that are the
    facts that CN contributed to the possibility of irreparable harm by failing to
    move more expeditiously for leave and that the potential for serious impacts on
    Thunder Bay and the First Nation increases the longer the reopening of the
    Bridge is delayed.

(4)

The Interests of Justice Do Not Favour Granting a Stay

[70]

Overall,
    I am not satisfied that the interests of justice favour granting a stay. The
    second and third factors favour CN. Nonetheless, I am not satisfied CNs leave
    application has sufficient merit to warrant granting a stay. In my view, CN has
    not identified a serious issue to be adjudicated that meets the criteria for
    granting leave under s. 40 of the
Supreme Court Act
. I conclude it is
    not reasonably arguable that CN will obtain leave.

E.

disposition

[71]

CNs motion for a stay is dismissed. If the parties are unable to
    agree on costs, Thunder Bay and the First Nation may make brief submissions,
    not to exceed three pages, within 10 days from the release of these reasons; CN
    may respond within 10 days thereafter.

Janet Simmons J.A.


