For nearly five years, drivers travelling between Thunder Bay and Fort William First Nation have had to make a 10-kilometre detour along Highway 61, rather than crossing the 150-metre James Street swing bridge.
The bridge, which spans the Kaministiquia River, was damaged by a fire in 2013 and has been closed to vehicular traffic ever since. But after years of court battles between CN Rail, which owns the bridge, and the City of Thunder Bay, the Ontario Court of Appeal ruled last week that the railway must allow cars to cross again — because it agreed more than a century ago to keep the bridge open to traffic.
Peter Collins, chief of Fort William First Nation, says the bridge can’t reopen soon enough. He notes that the closure has been inconvenient: traffic volume on the highway has increased, and summer construction season compounds drivers’ frustration.
Forcing motorists to make a detour along the highway also poses safety concerns. “Look at the incidents on the bridge — from the 100-plus years it’s been in operation, there hasn’t been any loss of life,” Collins said. Meanwhile, he adds, “in the short time that we’ve been on the highway, there’s probably been a hundred accidents.”
A member of Fort William First Nation was killed in a collision on Highway 61 last year.
Collins — who explored the option of building an entirely new bridge earlier this year — said that reopening the current bridge will have a positive impact on “both sides of the river.” Collins hopes that the legal battles over the swing bridge are finished, although CN could launch a last-chance appeal.
What’s behind the dispute?
The James Street swing bridge saga started on the evening of October 29, 2013, after a fire was discovered on the north side of the bridge. The provincial Office of the Fire Marshal could not determine the how the blaze had started. It caused only minor damage. CN reopened the bridge to rail and pedestrian traffic three days later, but it refused to reopen the bridge for vehicles following the fire because, according to court documents, an “‘errant’ or wayward vehicle” could have left the bridge’s roadway, crossed the sidewalk, gone through the barriers in place, and plunged into the river.
The bridge has been in operation more than 100 years, and no vehicle has ever gone into the river, but experts agreed that the pedestrian walkway could not support the weight of a car. And as the appellant judge noted, CN had never claimed the bridge posed a safety hazard before the fire took place.
For more than a year and a half, CN and the City of Thunder Bay tried to reach a resolution that would allow vehicles to cross the bridge. When they were unable to do so, both parties filed legal proceedings.
The City argued that CN was breaching its obligation to maintain the bridge — an obligation laid out in a 112-year old agreement. CN said it could not safely reopen the bridge without making “significant” structural changes, which, the company argued, would go beyond its obligations.
In June 2017, Justice Patrick Smith reasoned that the agreement signed in 1906 meant that CN was obliged to maintain the bridge only for the types of traffic that were common at the time — namely, streetcars and horse-and-cart traffic, not motor vehicles.
When the city appealed the decision, the appellate court judges found that CN had in fact breached the terms of the century-old deal. In 1906, the Town of Fort William (now part of Thunder Bay) agreed to pay Grand Trunk Pacific Railway Company (a predecessor to CN Rail) $50,000 to build and maintain a combined railway and roadway bridge “in perpetuity.”
The Court of Appeal ruled that CN must reopen the bridge and pay the city $290,000 in legal costs.
The legal battle has reportedly cost Thunder Bay more than $1.3 million. At a press conference following the ruling, Mayor Keith Hobbs acknowledged that “there was some angst from citizens about cost, but that’s the price of doing business.”
The closure of the James Street swing bridge has also created tension between local communities and has had a negative impact on businesses on the reserve. As the CBC reported in 2014, businesses at the First Nation were losing $50,000 a day due to reduced car traffic. Business owners and residents discussed their options to resolve the bridge closure, including the possibility of a blockade.
In response to that news, a local Progressive Conservative candidate in the 2014 election, Tamara Johnson, took to Facebook to react to the blockade threat. She wrote that First Nations businesses already have an advantage because they sell discounted gas and cigarettes.
Will CN Rail appeal the appeal?
The saga may not be over yet. Trevor Farrow, an associate dean at Osgoode Hall Law School, in Toronto, said CN could try to appeal the appellate court’s decision. “It’s always open to parties to try to use the appellate process if they disagree with the decision,” he said. The company would have to take the case to the Supreme Court of Canada, and Farrow said it’s “unlikely” that the highest court in the country would agree to hear the case, but that “anything is possible.”
CN Rail did not respond to TVO.org’s requests for comment. In a statement sent to the CBC, the company said it was reviewing the ruling, and that “regardless of the outcome, CN wishes to continue working with the city and Fort William First Nation to try and find a solution to the issue of the James Street swing bridge.”
Meanwhile, Farrow noted that CN maintains some 7,000 bridges across Canada, and the recent court ruling could have implications for how the company looks after those bridges, too.
While Farrow couldn’t comment on why CN has been pursuing litigation instead of fixing the bridge, Hobbs was willing to speculate. In 2016, another bridge owned by CN, in Mayerthrope, Alberta, was destroyed by fire, and the company rebuilt that bridge in less than a month. Hobbs reportedly said the speed at which CN Rail fixed that bridge speaks to the company’s priorities. “The line through Mayerthorpe is much more profitable for CN as opposed to a line going into a reserve.”
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