Decision No. 110-R-2009

March 24, 2009

File No. R8050/291-S03.05

Application

On November 12, 2008, the Canadian Transportation Agency (Agency) received an application from 4297261 Canada Inc. for a private crossing across the railway of the Canadian Pacific Railway Company (CP) on land owned by the Grand River Railway Company, a wholly-owned subsidiary of CP. The crossing is located at 498 Eagle Street North and approximately mileage 3.05 of the Hespeler Spur Line, with headblock at mileage 4.30 of the Waterloo Subdivision, in the city of Cambridge, in the province of Ontario.

Preliminary matter

On February 20, 2009, the Agency was advised that 4297261 Canada Inc. had sold the land located at 498 Eagle Street North to 2191158 Ontario Inc. (applicant). Legal counsel for 4297261 Canada Inc., who also represents 2191158 Ontario Inc., requested that the application be amended to reflect the applicant as 2191158 Ontario Inc. instead of 4297261 Canada Inc.

Issue

Should the Agency order the construction of a private crossing pursuant to section 103 of the CTA?

Submissions

The applicant states that it is the registered owner of the land and premises at 498 Eagle Street North, in Cambridge (property). The land owned by the Grand River Railway Company extends along the entire southerly limit of the property. The Speed River forms the northern boundary of the property. As such, the property is landlocked and a crossing is required as there is no other practical alternate access.

The applicant also states that:

1. there has been a crossing at the current location since at least 1921;
2. the crossing is in reasonable condition and there appears to be no safety concerns;
3. there has been no through rail traffic in recent years;
4. the applicant is the only customer on the line; and,
5. portions of the rails beyond the property appear to have been removed. The applicant is unaware of any application to discontinue the line that runs along the property. The crossing has always been maintained by the applicant which agrees to continue to be responsible for maintenance costs.

The applicant submits that there is no private crossing agreement between the applicant and CP. The applicant adds that it has attempted to negotiate terms for the use of the existing crossing with CP, but no agreement has been reached. The applicant also maintains that the terms in CP's standard crossing agreement were unacceptable.

CP confirms that the parties have not been successful in negotiating and reaching an agreement with respect to the terms and conditions for the construction and maintenance of the crossing. However, CP states that it has no objection to the application or to the Agency granting an order for a crossing pursuant to section 103 of the CTA at the current point of access to the property.

The applicant requests that an order for the crossing at the current point of access to the property remain in effect until such time as the order is rescinded or amended by the Agency or its successors. CP also acknowledges that the order granted by the Agency would remain in effect until rescinded or amended by the Agency or its successors.

Analysis and findings

Subsection 103(1) of the CTA states 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, on the application of the owner, may order the company to construct a suitable crossing if the Agency considers it necessary for the owner's enjoyment of the land."

In this case, the applicant attempted to negotiate with CP terms and conditions for the construction and maintenance of the crossing, but no agreement was reached.

As the property is landlocked, the Agency finds that a crossing is necessary for the owner's enjoyment of this land. The Agency also finds that a crossing at the existing location is suitable as it is the only practical access to the property. Subsection 103(3) of the CTA requires that the owner of the land who is granted a crossing under subsection 103(1) shall pay the costs of constructing and maintaining the crossing. In this case, the crossing is already in place and therefore the cost of constructing the crossing should only consist of those costs required to ensure the crossing is suitable.

Conclusion

The Agency orders CP to construct a suitable crossing at the existing location of the point of access at approximately mileage 3.05 of the Hespeler Spur Line, with headblock at mileage 4.30 of the Waterloo Subdivision. The costs of constructing and maintaining the crossing shall be borne by the applicant.

CP shall provide the applicant, for its review and acceptance, an estimate of the costs of constructing and maintaining the crossing before performing any related work. In the event that the parties cannot agree on the actual construction or maintenance costs of the crossing, either party may apply to the Agency to resolve that issue.

This Decision shall remain in effect until such time as the decision is amended or rescinded by the Agency or its successor.

This Decision does not relieve the parties from their obligations under the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.).

Members

• John Scott
• Jean-Denis Pelletier, ing./P. Eng.