Ontario Construction News staff writer
Ottawa City Council’s decided last week to spend $540,000 on an environmental assessment, design and permits for to convert its unused Prince of Wales rail bridge linking Ottawa and Gatineau into a pedestrian cycling path.
The goal: To have things ready for the estimated $10 million project when the federal government introduces a post-COVID-19 stimulus program in 2021.
“It’s a very exciting project to have that kind of a multi-use pathway with pedestrians and cyclists and non-vehicle use of the bridge and it would connect our two great cities very nicely,” Ottawa mayor Jim Watson told reporters after the Dec. 9 council approval.
But there is a potential snag in the background that could, like a ghost from the past, entangle the city in a legal battle with a private sector business that wants to use the bridge as part of an inter-provincial rail link connecting western Quebec and eastern Ontario communities.
The MOOSE Consortium entangled the city in regulatory and legal complexities in the last decade when it filed objections with the Canadian Transportation Agency (CTA), opposing the dismantling of tracks at the Bayview Station during construction of the city’s Confederation Light Rail Transit (LRT) line.
The CTA ultimately ruled in favour of MOOSE – only to have its decision overturned in April 2019 by a federal cabinet Order in Council.
Later in the year, Watson and Gatineau Mayor Maxime Pedneaud-Jobin announced that they believed that the bridge would not be suitable for the final stages of the city’s LRT plans – a link between Ottawa’s transit system and West Quebec. Instead, the two municipalities agreed that connections should be downtown through a loop including the more centrally-located Portage and Alexandria Bridges.
Watson said in July 2019, after the cabinet decision, that the city would instead turn the 140-year-old bridge into a pedestrian/cycling pathway.
There is one problem with this idea, says MOOSE director general Joseph Potvin. Federal law requires an interprovincial railway owner, if it wishes to decommission a railway line, to make the line available to other rail operators at salvage cost value before the line can be taken out of service.
And, Potvin says, the city has not yet formally engaged in the decommissioning process. It hasn’t officially “abandoned” the railway. In other words, under the rules, Potvin says the city will ultimately need to formally request the CTA to decommission the bridge – and then his consortium should be granted the opportunity to purchase it – allowing its interprovincial commuter rail system to become a reality.
The City of Ottawa has owned the bridge since 2005 after it acquired the old CP Rail corridor that ultimately became the Trillium LRT line, which has a northern terminus at the Bayview station.
The city indicates its model for the new use of the Prince of Wales Bridge would be a 607-m. bridge over the St John River in Fredricton, NB, which has had a cycling/walking path on the deck since 1997.
The problem with that comparison, Potvin says, is “the official legal record shows that the particular segment of federal railway containing the Fredericton Railway Bridge (renamed the Bill Thorpe Walking Bridge) was legally ‘abandoned’ in 1995.”
There wasn’t then a legally minded interprovincial rail company in New Brunswick waiting in the wings to develop the line, Potvin indicated.
MOOSE has been working on its vision for a commuter rail system linking places such as Smiths Falls in eastern Ontario and Chelsea in West Quebec for several years. The company believes it can make a profit by collecting fees from property owners who benefit financially, based on increased property income near its rail stations.
Under federal railway laws, interprovincial railroads can negotiate “running rights” on rail lines owned by other companies. MOOSE, for example, could expect CP and the City of Ottawa to grant access to its rail lines for its commuter trains in exchange for a fee.
There are other laws that require railroad owners to give notice if they plan to dismantle or close their rail lines. This led MOOSE to file complaints with the CTA when the tracks were dug up to construct the Bayview Station.
The CTA ultimately ruled that the city would have to repair and rebuild the rail link to comply with the law.
The city managed to overcome the problem when the federal cabinet through an Order in Council ruled that its railroad rules applied to goods and services rather than public transit, and that the city could, if needed, provide alternative means of transport such as trucking to solve the problem of a dis-used rail line.
Watson and some City of Ottawa officials have considered the MOOSE project to be a fringe initiative that isn’t properly backed by financial resources. The city also believes that the federal Order in Council effectively means it can do what it wants with the rail line.
However, Potvin says the Order in Council “rescinded only the 2018 (CTA) determination.” He said MOOSE has investors lined up for its planned $50 million Prince of Wales Bridge rehabilitation, which would include bicycling and pedestrian lanes along with the rebuilt rail line.
“The directors of Moose Consortium Inc., in consultation with our advisors, consider our initiative to be market-viable, conforming with the public interest as clearly expressed in the NCC’s Plan for Canada’s Capital 2017-2067, and legally ‘rock solid,’” Potvin said last Friday.
But what about the fact that the federal cabinet has made it clear that the city can effectively dismantle the rail line without adverse consequences?
“We have a plan for this, which includes filing a Writ of Mandamus against the failure of the Canadian Transportation Agency to fulfill its statutory duties. Some additional legal steps will be disclosed at the appropriate times.”
“We knew from the beginning a decade ago what we were up against,” Potvin said. “It was only in 2016 with the direct physical destruction of sections of the main line Ellwood Subdivision (also known as the Chaudiere Extension) that it became tangibly demonstrable that the CTA was failing its statutory mandate,” Potvin said.
“That’s why we stated our ‘escalation sequence’ outright in our formal 2016 letter. Our timeline changed on that, while the agency undertook enforcement steps, albeit flaccidly. The extra-judicial Order in Council, relying as it did upon Crown prerogative instead of statutory or case law, requiring the Governor General’s authorization, did surprise us certainly. Calendar dates notwithstanding, we remain consistent regarding our ‘critical path’.”
Potvin said MOOSE has no objection to the city spending money on its environmental assessments and design studies to make the bridge useful for cyclists and pedestrians.
“The reason we will not oppose this is because there is a straightforward way, already costed at about $50 million, to implement such a pathway without destroying the railway suitability of the Prince of Wales Bridge. All that has to be done is to cantilever a pedestrian deck and cycling deck off of each side. It will be instructive to learn if this option (is) precluded from or included in the $540,000 study’s term of reference,” he said.
“Will they (the City of Ottawa) confirm clearly in writing that the Prince of Wales Bridge has been discontinued in conformance with Division V of the Canada Transportation Act,” Potvin said. “My bet is you cannot get them to say clearly they are meeting the Division V requirements of the CTA.”
“We are in discussion with our lawyer about the optimal legal pathway, and will let you know when appropriate,” he said.