Memorandum of Understanding

Memorandum of Understanding
on coordination of efforts related to A) Noise and Vibration Complaints, B) Road, Utility and Private Crossings, C) Jurisdictional Status of a Railway, D) Railway Operating Certificates, Certificates of Fitness and Railway Line Construction,
Between:
The Canadian Transportation Agency (“Agency”)
and
Transport Canada
(Hereinafter referred to collectively as the “Participants”)

A) Noise and Vibration:

WHEREAS, sections 95.2 through 95.4 of the Canada Transportation Act (CTA) provides the Canadian Transportation Agency (Agency) with the authority to issue guidelines and resolve complaints related to noise and vibration in the construction and operation of federally-regulated railways and public passenger service providers and the Agency has developed such guidelines;

WHEREAS, Transport Canada has developed guidelines for eliminating whistling at public crossings;

B) Road, Utility and Private Crossings:

WHEREAS, by virtue of subsection 101(3) of the CTA a person may apply to the Agency for an authorization to construct a suitable road crossing, utility crossing or related work or for specification on who shall maintain the crossing, where that person was unsuccessful in negotiating an agreement or amendment to an agreement relating to the construction, maintenance or apportionment of the costs of a road or utility crossing;

WHEREAS, section 102 of the CTA provides that if an owner’s land is divided as a result of the construction of a railway line, the railway company shall, at the owner’s request, construct a suitable private crossing for the owner’s enjoyment of the land;

WHEREAS, under subsection 103(1) of the CTA the Agency may order a railway company to construct a suitable private crossing where the Agency considers it necessary for the enjoyment of the land by an owner of land adjoining a railway;

WHEREAS, Transport Canada has the authority under section 7.1 of the RSA to make regulations prohibiting the construction of road crossings;

WHEREAS, Transport Canada administers the Grade Crossing Closure Program under the authority in section 12 of the RSA;

WHEREAS, section 12.1 of the RSA enables the Minister to enter into an agreement with a person who has rights under Part III of the Canada Transportation Act, or otherwise, relating to a road crossing, to close the crossing in the interest of safe railway operations;

WHEREAS, the CTA does not provide the Agency with the authorization to require the closure of a crossing;

C) Jurisdictional Status of a Railway:

WHEREAS, section 6 of the Railway Safety Act (RSA) provides for Agreements between the Minister of Transport and the Agency in relation to the coordination of activities related to determining whether a person is constructing, operating or maintaining a railway and procedures to be followed in the event of conflicting interests with respect to this matter;

WHEREAS, Part III of the CTA, administered by the Agency, applies to railways within the legislative authority of Parliament;

WHEREAS, the RSA, administered by Transport Canada, applies to railways within the legislative authority of Parliament;

WHEREAS, the Agency has expertise and experience in determining the jurisdictional status of a railway;

WHEREAS, the Agency and Transport Canada have a mutual interest in the consistent determination of the jurisdictional status of a railway;

D) Railway Operating Certificates, Certificates of Fitness, and Railway Line Construction:

WHEREAS, sections 90 through 94 of the CTA provide the Agency with the authority to issue a certificate of fitness (COF) if the Agency is satisfied that a company proposing to construct or operate a railway is within the legislative authority of Parliament and that there will be adequate liability insurance coverage for the proposed construction or operation;

WHEREAS, pursuant to section 98 of the CTA, the Agency approves specific railway line construction projects;

AND WHEREAS, section 17.4(1) of the RSA, which comes into force on January 1, 2015, requires the Minister of Transport (Transport Canada) to issue a railway operating certificate (ROC) authorizing a person to operate and maintain a railway if the Minister is satisfied that the prescribed conditions for obtaining one have been met;

NOW THEREFORE THIS MEMORANDUM OF UNDERSTANDING sets out the intentions of the Participants as follows:

1. Objectives and Scope

1.1. The purpose of this memorandum of understanding (MOU) is to set out the responsibilities and understandings between the Participants with respect to:

railway noise and vibration complaints;
the opening and closing of road, utility and private crossings;
the determination of whether a railway is a railway within the legislative authority of Parliament; and
certificates (COFs and ROCs) and railway line construction.

The arrangements set out below outline the intention of each Participant with respect to the legislated responsibility of the other Participant.

1.2. This MOU is in keeping with the coordination agreements between the Agency and Transport Canada described in section 6 of the RSA.

2. Arrangements

A) Noise and Vibration

2.1. At the request of the Agency, Transport Canada will provide railway safety advice and information to the Agency for its use as part of its regulatory noise and vibration processes in cases where railway safety may be an issue.

B) Road, Utility and Private Crossings

2.2. Upon receiving an application by a landowner for the construction of a road, utility or private crossing under subsections 101(3), 102 or 103(1), the Agency will provide a copy of the application to Transport Canada.

2.3. Within 30 days of receiving an application or upon request of the Agency, Transport Canada will provide any railway safety advice and information it may have to the Agency for its use as part of its crossing regulatory processes.

2.4. As it may be relevant to any application under sections 101, 102 or 103 of the CTA, Transport Canada will maintain and make available to the Agency a list of crossings that have been the subject of an agreement made under the Grade Crossing Closure Program.

C) Jurisdictional Status of a Railway

2.5. The Agency will notify Transport Canada when it receives an application for a determination as to whether or not the proposed construction or operation is a “railway” “within the legislative authority of Parliament”.

2.6. The Agency will also notify Transport Canada when a determination is made on these issues.

D) Railway Operating Certificates, Certificates of Fitness and Railway Line Construction

2.7. The Agency will notify Transport Canada when a COF is applied for, issued, varied, suspended or cancelled. Where the Agency has issued a COF with preconditions to operation, the Agency will inform TC when those preconditions have been met.

2.8. Transport Canada will notify the Agency when a ROC is applied for, issued, varied, suspended or cancelled for a federal railway.

2.9 At the request of the Agency, Transport Canada will share with the Agency information pertaining to the safety record of companies within the legislative authority of Parliament for consideration of the certificates of fitness applications, issuance, variance, suspension or cancellation.

2.10 The Agency will notify Transport Canada when it receives an application for the construction of a railway line and when approval is granted for such construction.

3. Financial Arrangements

3.1. Each Participant will assume the costs it incurs in the fulfilment of its duties in accordance with this MOU.

4. Confidentiality

4.1. Subject to any of the Participants’ obligation under any Act of Parliament or other legal obligation, the Participants will maintain the confidentiality of the information received through the collaborative activities described under this MOU.

4.2. If any Participant is required by law to disclose any information received through the collaborative activities described under this MOU, the Participant so required will, as a courtesy, notify the other Participant to inform them that they will be doing so.

5. Settlement of Disputes

5.1. Any disputes regarding the interpretation or implementation of this MOU will be resolved only by consultation among the Participants and will not be referred to a tribunal or third party.

6. Amendment

6.1. The Participants may only modify this MOU by mutual agreement.

7. Duration, Withdrawal and Termination

7.1. This MOU takes effect upon the date of the last Participant signing.

7.2. This MOU remains in effect until modified or terminated. This MOU may be reviewed as needed and may be withdrawn by either Participant by giving not less than 30 days notice.

8. Not Legally Binding

8.1 The Participants acknowledge that this MOU does not create any legal rights or obligations, nor does it affect the legislated responsibilities of each Participant, but merely serves to outline the parameters that have been set for their collaboration and the areas for which discussions have been held and understandings in principle have been reached.

9. Notification

9.1 Notices and communications required or desired to be given under this Memorandum of Understanding may be given to:

Director General, Rail Safety
Transport Canada, Rail Safety
427 Laurier Avenue West, 14^th Floor
Ottawa, Ontario
K1A 0N5

9.2 Notices and communications required or desired to be given under this Memorandum of Understanding may be given to:

Director General, Dispute Resolution Branch
Canada Transportation Agency
60 Laval Street, Unit 01
Gatineau, Quebec
J8X 3G9

Original signed by

Geoffrey C. Hare
Chair and Chief Executive Officer
Canadian Transportation Agency

Date: December 1, 2014