Decision No. 110-R-2004

March 10, 2004

File No. R 8050/611-153.36

APPLICATION

On November 24, 2003, Malachi Campers' Association Inc. (hereinafter the Association) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On January 8, 2004, the Canadian National Railway Company (hereinafter CN) filed its answer to the application and on January 19, 2004, the Association filed its reply to CN's answer.

ISSUE

The issue to be addressed is whether the Agency considers that a suitable crossing is necessary for the enjoyment by the members of the Association of their land pursuant to section 103 of the Canada Transportation Act (hereinafter the CTA).

POSITIONS OF THE PARTIES

The Association states that there was formerly a crossing and that a station building existed at Malachi. Cottagers used to cross the three-track railway line using the wooden platform in place. However, in the 1990's, the platform was removed when CN reconfigured the tracks in the area.

The Association submits that in 2003, CN suggested that the Association enter into a private crossing agreement to cover the installation and the annual rental fee for a wooden plank crossing at mileage 153.36 of the Redditt Subdivision. In reply to this private crossing agreement offer, the Association stated that it could not afford the annual fee.

The Association maintains that the proposed crossing is required by some 17 property owners to provide access between their cottages located on one side of the CN tracks and the lake on the other side. Food, water, building supplies must be carried over the railway line using wheelbarrows or all terrain vehicles and trailers. The radio/toll phone is located on the south side of the tracks near the station.

CN submits that according to its records, a public crossing never existed at this location. However, CN does not object to the construction of a private crossing for the Association at this location pursuant to section 103 of the CTA, which provides that the costs of construction and maintenance are to be borne by the landowner, in this case, the Association. CN adds that the granting of a crossing by the Agency does not relieve the beneficiary from the duties and obligations related to the use of the crossing. For example, if any safety requirements warrant the installation of warning devices, the Association would be responsible for their costs.

In its reply to CN's answer, the Association states that it is a small organization with very limited funds and cannot afford a state-of-the-art crossing nor can it pay a yearly lease. It carries liability insurance and is willing to have a whistle post installed west of the station to enhance safety. It also indicates that it cannot prevent unauthorized persons from using the proposed crossing.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

Section 103 of the CTA provides that if a railway company and an owner of land adjoining the company's railway do not agree on the construction of a crossing across the railway, the Agency may order the railway company to construct a suitable crossing if the Agency considers it necessary for the owner's enjoyment of the land. Although the costs of construction and maintenance of such crossings are, by statute, the responsibility of the landowner, the Agency may set the terms and conditions governing the construction and maintenance of the crossing.

The fact that the Association's cottagers are property owners on the north side of CN's tracks is not in dispute. The Agency notes that the properties are adjacent to the railway company's right of way and tracks and that the proposed crossing is the only practical access to the cottage properties. Therefore, the Agency is of the opinion that the proposed crossing is necessary for the owners' enjoyment of their land.

The Agency further notes that CN does not object to the construction of a private crossing as long as it is at the Association's expense and that the Association agrees that it should bear such costs of construction and maintenance as long as they are reasonable.

With respect to railway safety, any requirements such as the installation of additional warning devices are governed by the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) [hereinafter the RSA] and are under the jurisdiction of Transport Canada. Any Agency decision does not relieve the parties from their obligations under the RSA and the requirements of Transport Canada. Should either party disagree on the costs of installation and maintenance of safety railway works, either party may refer the matter to the Agency for a determination under section 16 of the RSA.

CONCLUSION

Based on the above findings, the Agency determines that a crossing at the subject location is necessary for the enjoyment by the members of the Association of their land pursuant to section 103 of the CTA.

Accordingly, the Agency hereby orders CN to construct a suitable crossing at mileage 153.36 of the Redditt Subdivision that is adequate to the Association's needs.

Pursuant to subsection 103(3) of the CTA, the costs of construction and maintenance of the crossing shall be borne by the Association. CN shall provide the Association with an estimate of the costs of construction and maintenance of the crossing prior to undertaking any related work. Should the parties be unable to agree on the costs of construction and maintenance, either party may apply to the Agency to resolve the issue.

The authority granted herein does not relieve the Association and CN from their obligations under the RSA.