CN Rail breached James Street swing bridge agreement, must reopen structure, court rules

An Ontario court has ruled that CN Rail must repair and reopen the James Street swing bridge between Thunder Bay, Ont., and Fort William First Nation after the panel of judges found the railway breached an agreement spanning more than 100 years.

City of Thunder Bay appealed court ruling that found railway not responsible for repairing fire-damaged bridge

The bridge over the Kaministiquia River is still closed to vehicle and foot traffic following a 2013 blaze. On Monday, the Ontario Court of Appeal ruled CN must reopen the bridge. (Matt Prokopchuk/CBC)

An Ontario court has ruled that CN Rail must repair and reopen the James Street swing bridge between Thunder Bay and Fort William First Nation after the panel of judges found the railway breached an agreement spanning more than 100 years.

In 2017, the city appealed an Ontario Superior Court of Justice ruling which found CN not responsible for repairing the bridge to again allow vehicle traffic across the structure. In his ruling, G. P. Smith said that the city failed to clearly define the work required to make the bridge safe for motorized traffic.

Additionally, the judge said that the agreement signed between the former town of Fort William and the railway in 1906 bound the railway to maintain the structure for the type of traffic that existed at the time, namely streetcars and horses and buggies.

The three judges from the court of appeal who heard the case rejected those rulings, stating that the city "had no onus to show the court how the bridge could be reopened safely for motor vehicles."

"If the onus lay anywhere, it lay with CN, which maintains over 7,000 bridges across Canada, and which under its Bridge Maintenance Program, is required to ensure the safe operation of all of its bridges, including this bridge," the judges wrote.

In addition, the ruling stated that the type of vehicles that were using the bridge when the deal was signed was irrelevant as the agreement called for CN to maintain the structure in perpetuity, meaning that "the right to cross the bridge perpetually, and the obligation to maintain the bridge in perpetuity, can only mean that the parties intended the bridge to be open for any kind of vehicle, not just horses and carts."

"This signals [city] council's intent and their unwavering resolve to see this process through, to see CN held to account to its lawful obligations," city manager Norm Gale told reporters Monday afternoon.

The appeal court's ruling declared that CN breached the 1906 agreement, ordered the railway to reopen the bridge for vehicle traffic and maintain it in accordance with the agreement. The decision also awarded Thunder Bay the court costs for the appeal and its initial application, totalling $290,000.

A spokesperson for CN declined an interview with CBC News but said the railway is reviewing the decision and potential next steps.

"Regardless of the outcome, CN wishes to continue to work with the city and Fort William First Nation to try and find a solution to the issue of the James Street swing bridge," Patrick Waldron said in an emailed statement.

The James Street bridge over the Kaministiquia River is the most direct route between Thunder Bay and neighbouring Fort William First Nation. The bridge, which CN owns, was closed to vehicle traffic following a 2013 fire. Trains resumed using the structure days later.

'A great day for the City of Thunder Bay'

City officials announced the ruling at a media briefing at city hall Monday afternoon.

"This is a great day for the City of Thunder Bay," mayor Keith Hobbs said. "I want to thank council — we unanimously voted on this course of action, we thought it was best for our community [and] for the community of Fort William First Nation."

While the court has issued its ruling, it will now be up to the railway to abide by the decision.

"The court of appeal has made their decision, the direction is clear: CN must reopen their bridge now and that's what we'll be watching for," Gale said, adding that the city has to also further review the document before commenting on expected timelines.

"That bridge is functional, with maintenance it can be reopened."

'Excited about the opportunity'

For the leadership of Fort William First Nation, Monday's ruling means a chance to improve safety for those who commute between the community and Thunder Bay.

"We have close to a thousand members that come from ... the city to work in Fort William and that [will] cut down their travel time and [better] their safety," Chief Peter Collins said.

"Look at the accidents that happened on [Highway] 61 since the closing of that bridge."

Collins said while it's possible the bridge may not be reopened immediately, depending on CN's response to the ruling, the leadership in his community "is excited about the opportunity to help get this bridge open."

"We put many solutions on the table over the last couple of years and we're still willing to help on that front."