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rail
McMillan's Transportation lawyers are called upon by other law firms, shippers, shortline railways, governments, and carriers, primarily in Canada but also in the United States to consult, advise, give expert testimony, devise solutions to competitive issues, provide competition and antitrust counsel, and to provide economic, business and legal counsel in a variety of circumstances. We are regularly engaged in connection with matters relating to rates, level of service, rail abandonments, regulatory compliance, safety, environmental review and assessment, transportation of dangerous goods, logistics advisory consultations and project management. Our relations with industry participants, third party service providers and consultants in the fields of economics, costing, safety and environmental regulation and other fields, uniquely qualify us to provide a broad spectrum of services to the transportation and distribution sector. We frequently work with other counsel to provide broad-based and discrete solutions to businesses that are involved or interact with the various modes of transportation. The rail practice includes the following services:
Dispute Resolution and Negotiations: We represent rail shippers operating in all Canadian provinces in their negotiations with federal (Class I) and provincial railway carriers over rates and conditions of service, and in the resolution of disputes before the Canadian Transportation Agency, and provincial and other federal regulatory bodies and superior and federal courts. We have represented many of Canada's large bulk resource and grain shippers in final offer arbitration, commercial arbitration, regulated and private mediation, and negotiations with Canadian Pacific Railway, Canadian National Railway, The Burlington Northern Santa Fe Railway and Union Pacific Railroad, as well as shortline, regional, commuter, terminal and industrial railways in Canada and the United States. We also represent terminal handling facilities and advise on multi-modal distribution arrangements.
Representations before Public and Private Bodies: We represent rail shippers in matters before parliamentary committees, the Competition Bureau, the Canadian Transportation Agency, Transport Canada, and in the course of legislative reviews such as the Canada Transportation Act Review Panel (2000), the Competition Policy Review Panel (2008), the Federal Rail Freight Service Review (2010) and the Cost of Capital Review (2010), among others. We have been instrumental in seeking legislative reform and are frequently consulted by shippers, trade associations and government bodies in substantive and procedural reviews of regulatory schemes involving transportation and competition.
Regulatory Compliance: We represent a variety of parties in connection with safety matters, environmental review and assessment, transportation of dangerous goods, and other forms of transportation and distribution regulation, at the federal and provincial level. We assist parties in a variety of capacities, including:
- preparing, reviewing, drafting and submitting Safety Management Systems documentation
- retaining experts to review and perform on-site and off-site safety audit functions, compliance with workers compensation schemes
- reviewing and assessing facilities-related environmental projects and compliance
- complying with transportation of dangerous goods schemes
- representing parties in safety-related claims, environmental review proceedings and other regulatory proceedings under federal and provincial statutes, before regulatory bodies and in the court system
Supply Chain Analysis: We advise on the commercial distribution and logistics aspects of businesses, including risk, competitive and strategic analyses, such as:
- identifying and pursuing competitive or otherwise superior alternatives for industry participants, including captive shippers
- seeking commercial and regulatory competitive access remedies
- overcoming bottleneck facilities and other arrangements that are designed to obtain or maintain market power
- advising bulk commodity, break-bulk and other merchandise shippers in establishing short and long term strategies to help drive down costs, increase performance and achieve operational and economic efficiencies
Project Management: We have been involved in some of the largest rail, port and distribution chain projects in Canada, as well as on cross-border projects. These projects range from small or short run outsourced matters to large, long-term and multi-disciplinary engagements to create railways and port or other terminal facilities, obtain rail charters, and conduct investment analysis and due diligence projects. For example, we have led small and large projects involving shipments of coal, forest products, pulp and paper, grain, gypsum, containers, vehicles, clay and other goods. We have also advised carriers and shippers on abandonments, asset and facilities valuations, rail and port costing exercises and investment analysis.
Corporate and Commercial Transactions: The rail sector is also an important aspect of the Transportation Group's leadership in variety of corporate and commercial transactions, including corporate finance, mergers and acquisitions, project finance, equipment leasing and finance, public-private partnerships, third party logistics, joint ventures and other transactions. We also assist parties in insurance and risk reviews in the rail and surface distribution sectors. Our Transportation Group members have acted in a variety of capacities, including the following:
- purchase and sale of railway and port undertakings and related businesses
- privatization of government-owned or operated facilities and rolling stock enterprises
- on-site (internal) and export terminal handling facilities and arrangements such as arrangements relating to bulk commodity handling facilities
- reload, receiving and other trans-shipment facilities
- reviewing and advising on contracts of affreightment, charter party arrangements, supply and distribution arrangements
Related External Links
Representative Transactions/Cases
- Teck Coal Limited, before the Cost of Capital Review , Canadian Transportation Agency (2010)
- Teck Resources Limited and affiliates, before the Federal Rail Freight Service Review , Transport Canada (2010)
- Teck Resources Limited, terminal services agreement with Westshore Terminals Limited (2010)
- Teck Resources Limited, historic ten year rail freight agreement with Canadian Pacific Railway Company (2010)
- Canadian Pacific Railway Company v. Teck Coal Limited (defence of CP's application for leave to appeal decision of Canadian Transportation Agency to refer matter to final offer arbitration; application denied, 2009)
- Teck Coal Limited v. Canadian Pacific Railway Company , final offer arbitration (May 2009)
- Teck Coal Limited v. Canadian Pacific Railway Company , final offer arbitration (June 2009)
- Elk Valley Coal Corporation (before the Competition Policy Review Panel, 2008)
- Canadian National Railway Company and The Burlington Northern Santa Fe Railway Company v. Normerica Inc. (Federal Court, demurrage claims and service counterclaims, 2006)
- Normerica Inc. v. Canadian National Railway Company and The Burlington Northern Santa Fe Railway Company (Canadian Transportation Agency, level of service complaint, 2006)
- TransLink (Greater Vancouver Transportation Authority) re application in support of City of Port Coquitlam's Coast Meridian Overpass over Canadian Pacific Railway Company's Coquitlam Yard (2006)
- Seaspan International v. The Burlington Northern Santa Fe Railway Company (Canadian Transportation Agency, abandonment opposition, 2005)
- West Coast Express (commuter rail) dispute and negotiations with Canadian Pacific Railway Company (2005)
- Canadian National Railway Company v. Western Canadian Coal Corp . (Final offer arbitration and application for judicial review, contesting operability of final offer arbitration provisions of Canada Transportation Act, 2004-2005)
- Elk Valley Coal Partnership et al. v. Canadian Pacific Railway Company (final offer arbitration and related proceedings, 2004)
- Canfor Corporation, Slocan Forest Products, Weldwood of Canada and West Fraser Timber (sale of the operations of British Columbia Railway to Canadian National Railway Company, 2003-2004)
- Teck Corporation, Weldwood of Canada, West Fraser Timber (before the Canada Transportation Act Review Panel, Transport Canada, 2000)
- Weldwood of Canada, West Fraser Timber and Weyerhaeuser (Canada Transportation Act – legislative review of the Canada Transportation Act, 1999)
Publications / Presentations
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May 2011
Investment in Canada's Asia-Pacific Gateway Infrastructure for Bulk v. Container Traffic
Transportation and Innovation: the Roles of Governments, Industry and Academia, Proceedings of the 46th Annual Conference of the Canadian Transportation Research Forum, Gatineau, Québec
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May 2011
Shipper Incentives To Invest In Infrastructure And Operations
Transportation and Innovation: the Roles of Governments, Industry and Academia, Proceedings of the 46th Annual Conference of the Canadian Transportation Research Forum, Gatineau, Québec
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May 2011
Transportation Policy, Competition And Economic Growth
Transportation and Innovation: the Roles of Governments, Industry and Academia, Proceedings of the 46th Annual Conference of the Canadian Transportation Research Forum, Gatineau, Québec
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Winter 2008
Balancing Interests: Amendments to the Canada Transportation Act
In Brief, Winter 2007/2008, p.8
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September 10, 2008
Railroad Industry - Is railroad pricing at risk?
RBC Capital Markets Investor Conference on Transportation (Passport 2008), Toronto, Ontario
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September 08, 2008 to September 10, 2008
Overcoming Regulatory Inefficiency in Rail Transportation Markets
34th Annual Meeting and Conference of the National Coal Transportation Association, Denver, Colorado
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June 24, 2008
Abolish the Canadian Rail Monopoly
Op/Ed, FP Comments section of the National Post
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June 2008
Abolish The Monopoly: Make Rail Services More Like Other Network Industries
National Post
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June 2008
Efficiency and Equity in the Provision of Freight Railway Service
Shaking Up Canada's Transportation Systems to Meet Future Needs, Proceedings of the 43rd Annual Conference of the Canadian Transportation Research Forum
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July 2007
CP Rail at Play in a Sea of Policy Changes (amendments to merger clearance provisions of Competition Act and Canada Transportation Act)
Lang Michener Alert
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June 01, 2007
A Critique of CCR and CDR
North American Networks: Gaps and Opportunities, Proceedings of the 42nd Annual Conference of the Canadian Transportation Research Forum
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June 2006
Shippers and Railroads: A Canadian Perspective (reproducing "Qualitative Aspects of Price and Output Regulation of Federal Freight Railways in Canada")
A revised version of this paper was published in the, Journal of Transportation Law, Logistics and Policy Vol. 73, No. 2, p. 220
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May 2006
Responding To The Market Power of Federal Freight Railways
in Competition as a driver of change: Proceedings of the 41st Annual Conference of the Canadian Transportation Research Forum, p. 344, presented at Québec City, Québec, May 30, 2006
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2005 to 2008
Principles of Deregulation and the Federal Freight Railways
Master's Class in Business Performance & Public Policy, Department of Economics, University of British Columbia
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June 18, 2004
Final Offer Arbitration in Rail Shipper-Carrier Disputes
Canadian Industrial Traffic Association, Toronto, Ontario
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Summer 2003
Mergers of Transportation Undertakings
Lang Michener In Brief Summer (2003)
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November 02, 2000
Final Offer Arbitration and Competition
Report to the Canada Transportation Act Review Panel, October 13 and November 2, 2000, Toronto, Ontario
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François Tougas
604.691.7425
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