Decision No. 119-R-2023

Summary

[1] The applicants filed applications with the Canadian Transportation Agency (Agency) under section 103 of the Canada Transportation Act (CTA) for private crossings located on the ICF’s Victoria Subdivision in British Columbia: Moira and Peter Nash at approximately mileage 27.53, Heather Plumb at approximately mileage 27.58, Laura and Thomas Buss at approximately mileage 27.64, and Dean Tomlinson at approximately mileage 27.71.

[2] For the reasons set out below, the Agency orders the respondent to construct a suitable crossing at each of the specified mileage points. The applicants shall bear the costs of construction and maintenance of their respective crossings.

Background

[3] The respondent is a registered charity formed by five Regional Districts and 11 First Nations along the railway corridor situated on Vancouver Island. The respondent’s mandate includes preserving and developing the Island Corridor, including the infrastructure and other assets that constitute the Esquimalt and Nanaimo Railway. The respondent’s railway line is operated by Southern Railway of Vancouver Island, which is a railway undertaking subject to the legislative jurisdiction of the Province of British Columbia (Province). Pursuant to the Railway Safety Act, the Province adopted sections 99 to 103 of the CTA, with the exception of subsection 101(4), by the Railway Safety Adopted Provisions Regulation. The Province then delegated the administration of those provisions to the Agency, pursuant to the CTA, in an administrative agreement dated September 11, 2006. As a result, disputes involving crossings of railways under the jurisdiction of the Province are adjudicated by the Agency.

[4] Passenger rail traffic on the railway line ceased in 2011 and freight traffic has been restricted to the area around Nanaimo, British Columbia, since 2014. The respondent performs maintenance and rehabilitation work along the full length of the Island Corridor to enable the restoration of services.

[5] A portion of the railway line bisects the Snaw-Naw-As First Nation reserve. On March 14, 2023, Transport Canada and the Province announced the reversion of that land to the Snaw-Naw-As First Nation and the allocation of CAD 18,000,000 for consultations on short- and long-term planning for the Island Corridor.

The law

[6] 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, on the application of the owner, may order the railway company to construct a suitable crossing if the Agency considers it necessary for the owner’s enjoyment of the land.

[7] Subsection 103(3) of the CTA requires the costs of construction and maintenance of a crossing to be borne by the landowner.

Positions of the parties

The applicants

[8] The applicants live in Shawnigan Lake, British Columbia, on parallel parcels of waterfront land divided by the respondent’s railway line, whose construction was completed in 1886. Each parcel of land was originally purchased in 1890 or 1891. As proof of current ownership, the applicants provide title certificates variously dated from December 2015 to May 2022 and refer to publicly available property records attesting that their parcels of land have not been sold in the past 3 years.

[9] The residences of Moira and Peter Nash, Heather Plumb, and Laura and Thomas Buss are on the inland portions east of the railway line, while Dean Tomlinson’s is on the lakefront portion west of the railway line. The applicants argue that there are no public crossings that allow them to cross the railway line to access the lakefront portions of their property and, therefore, that they require private crossings to enjoy their land.

[10] The applicants reject the respondent’s proposal for them to use shared crossings on the grounds that they do not own property in common or in association, their properties adjoin both sides of the railway line, and there is currently no rail traffic in the area. The applicants dispute the respondent’s position that recent media reports indicate any increased likelihood of the restoration of rail services.

The respondent

[11] The respondent argues that the applications should be dismissed because the applicants have not established ownership and because the proposed crossings would not be suitable, as they are unnecessary and would not be safe.

[12] With respect to land ownership, the respondent submits that the applicants’ documentation is out of date and that Heather Plumb’s application does not confirm the registration of the land transfer from the joint owner mentioned on her title certificate.

[13] With respect to necessity, the respondent argues that the applicants have alternative access to the lakefront portions of their land. With respect to safety, the respondent relies on the report it commissioned from GRE Consulting, entitled Lot 2664 (Plan 218) – 2664 Heald Road, Shawnigan Lake BC Southern Railway of Vancouver Island mile 27.59 (approx.) Victoria Subdivision (GRE Report), as evidence that the proposed crossings could not meet the sightline and approach standards set by Transport Canada, resulting in dangerous conditions for both pedestrians and the rail traffic. The respondent further submits that those issues would be exacerbated by having the four proposed crossings, and potentially 13 others, in close proximity.

[14] Alleging that recent media reports indicate that the government intends to restore rail service, the respondent submits that the Agency should factor into its assessment estimates, from the engineering firm WSP, of 4 to 12 average annual daily railway movements and 34 to 68 average annual daily pedestrian crossings. Because of these safety concerns and anticipated impact on railway operations, the respondent submits that the proposed crossings would not be suitable for it or the applicants.

[15] Should the Agency find the applicants entitled to a private crossing despite these arguments, the respondent proposes mitigating the adverse effects by having the applicants share a smaller number of crossings, as ordered by the Agency in Decision 110-R-2004 (Malachi Campers’ Association Inc. v Canadian National Railway Company).

Analysis and determinations

[16] As long established by the Agency, evidence of the ownership of the land on both sides of a railway line is required for a current owner to be entitled to a private crossing. In this case, the respondent disputes that the applicants have demonstrated current ownership of the land.

[17] Between the title certificates provided by the applicants, the availability of property sale records, and the lack of rebuttal evidence from the respondent, the Agency is satisfied that Moira and Peter Nash, Laura and Thomas Buss, and Dean Tomlinson are the current owners of the parcels of land on which they live. In addition to such information, the Agency relies on the land transfer consent form signed on March 10, 2016, in finding that Heather Plumb is the current owner of the parcel of land on which she lives.

[18] Therefore, the Agency will proceed to assess whether the proposed crossings would be suitable. As the Federal Court of Appeal stated in Fafard v Canadian National Railway Company, a suitable private crossing must be adequate and appropriate for the purposes for which it is intended and installed, meeting the needs of those using the crossing and those of the railway operations. The suitability of a crossing includes an element of safety.

[19] The applicants submit that the crossings are required for them to access the lakefront portions of their properties, which is fundamental for their enjoyment of their land for reasons including access to water and fire pumps, to a primary residence, and to recreational activities like swimming and boating. Although the respondent submits that the applicants may access their lakefront land by alternative means, or via a shared crossing, the Agency finds that it would neither be convenient nor practical for the applicants to detour from their properties in order to do so. Contrary to Malachi Campers’ Association Inc. v Canadian National Railway Company, each of the properties in this case feature immediate access to the lake and are divided by the rail line. Moreover, the owners have not agreed upon a location for a shared crossing.

[20] Therefore, the Agency considers that the alternate means of access proposed by the respondent do not constitute suitable crossings.

[21] Considering that there are no other suitable crossings that would allow the applicants to access the waterfront portions of their land, and in the case of Dean Tomlinson, the house itself, the Agency finds that the proposed crossings located on the applicants’ respective properties are necessary for the applicants’ enjoyment of their land.

[22] With respect to safety and railway operations, the respondent’s arguments about suitability depend on the existence of rail traffic on the railway line. As set out in Decision 80-R-2022 (Lyon v ICF), the GRE Report does not meaningfully address the line in its current state of non-use and the minimal cross product in the area in such circumstances is unlikely to significantly affect railway operations. As noted in Lyon v ICF, no trains currently operate on this portion of the line and, other than occasional maintenance vehicles on the tracks, the cross product on the line is near zero at the applicants’ proposed crossings.

[23] The respondent has not demonstrated that the proposed crossings in this case will have a different impact on the safety of persons and property as compared to the crossing considered in that case.

[24] While the respondent argues that the governmental announcements from March 2023 indicate the government’s intention to restore services, the Agency finds that the respondent has not substantiated its contention that rail traffic is likely to resume, nor provided a timeline for its resumption. The Agency notes that the funding is allocated for consultations with First Nations and other groups rather than rehabilitation work. Further, the respondent admits that it still does not know whether or when passenger and/or freight services will be returning to the railway line. Any increase of cross product at the proposed crossings beyond the current negligible level therefore remains highly speculative.

[25] Having found that crossings at the identified mileages are required for the applicants’ enjoyment of their land and that the safety of persons and property do not appear to be impacted by the crossings as there are no railway operations on the line, the Agency finds that the respondent must provide suitable crossings to the applicants, at the applicants’ expense.

[26] The proposed crossings will have to comply with applicable safety requirements under British Columbia’s Railway Safety Act, the Grade Crossings Regulations and any other applicable statutes or regulations, taking into consideration its current state of non‑use and that a change in the operational status of the railway line might require changes at a future date to the crossings to ensure that they are safe. As noted in Lyon v ICF, this could be addressed depending on whether, and to what extent, operations on the line resume in the future.

Conclusion

[27] The Agency orders the respondent to construct a suitable crossing, that is adequate and appropriate for the purpose for which it is intended and installed:

• at mileage 27.53 of ICF’s Victoria Subdivision, for Moira and Peter Nash;
• at mileage 27.58 of ICF’s Victoria Subdivision, for Heather Plumb;
• at mileage 27.64 of ICF’s Victoria Subdivision, for Laura and Thomas Buss; and
• at mileage 27.71 of ICF’s Victoria Subdivision, for Dean Tomlinson.

[28] The applicants must bear the costs for constructing and maintaining their respective crossings. The respondent shall provide the applicants with an estimate of the construction costs of their respective crossing prior to performing any work.

Legislation or Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	103; 157.1
Grade Crossings Regulations, SOR/2014‑275	All relevant
Railway Safety Act, SBC 2004, c 8	9
Railway Safety Adopted Provisions Regulation, BC Reg 210/2004	7
Fafard v Canadian National Railway Company, 2003 FCA 243	All relevant