Decision No. 127-R-2022

Summary

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) under the Canada Transportation Act (CTA) against CP concerning noise and vibration arising out of its operations located north of CP’s Lambton Yard at approximately mileage point 5.5 of CP’s Galt Subdivision.

[2] The applicants seek an order from the Agency for the installation of a noise barrier along CP’s tracks and around Lambton Yard, for loud operations being conducted between the hours of 9:00 pm and 9:00 am, for a 15-minute time limit on idling engines to be imposed, and for CP to couple trains slowly.

[3] The Agency will address the following issues:

• Does the noise and vibration caused by CP’s operations in Lambton Yard, in Toronto, Ontario, constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person?
• If so, is CP meeting its obligation to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the local area?

[4] For the reasons set out below, the Agency finds that, while the noise and vibration caused by CP’s operations in Lambton Yard constitutes substantial inference, the noise and vibration produced is reasonable given the features of the area, as well as CP’s level of service obligations and operational requirements. The Agency, therefore, dismisses the application.

Background

[5] The applicants’ residences are located north of CP’s Lambton Yard at approximately mileage point 5.5 of CP’s Galt Subdivision. Their neighbourhood is located between 40 metres and 150 metres from the first of ten yard tracks and three mainline tracks. Runnymede Park, which is near the applicants’ residences, is located between Lambton Yard and Ryding Avenue.

[6] Lambton Yard, which is in the Galt Subdivision, has been in operation since 1913 and consists of three main tracks and a multitude of spurs and other tracks.

Preliminary matters

[7] The applicants argue that CP’s operations are a significant source of air pollution and in order for it to decrease, they request that CP switch to a more environmentally friendly fuel source. They also seek clarity from CP on certain regulations and protocols as well as CP providing a more responsive and effective complaints process. However, the Agency’s authority is limited to determining whether CP is meeting its obligations to cause only such noise and vibration as is reasonable. The Agency therefore cannot address the issues concerning air pollution or public outreach in the context of this application.

The law

[8] The CTA imposes an obligation on a railway company to only cause such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the rail operation takes place.

[9] The CTA also provides that the Agency may, on receipt of a complaint and on finding that a railway company is not complying with noise and vibration obligations under the CTA, order the railway company to undertake any changes to its railway construction or operations that the Agency considers reasonable.

[10] It is clear from the legislative framework and the National Transportation Policy set out in the CTA that, in exercising its mandate regarding complaints and investigations relating to noise and vibration, the Agency must balance the interests of the parties. On the one hand, railway companies are involved in activities that necessarily cause noise and vibration. These activities are required to fulfill their various legislated level of service obligations and operational requirements, and to maintain the “competitive, economic and efficient national transportation system … to serve the needs of its users, advance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada”. On the other hand, the interests of affected communities must also be considered by the railway companies in determining how best to perform their activities to meet their obligation under the CTA to only cause such noise and vibration as is reasonable.

Analytical framework

[11] In Decision 35-R-2012 (Normandeau and Tymchuk v CP), the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligations. The Agency determined that the first step consists of determining whether railway companies have caused noise and vibration that constitutes substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference).

[12] To make a determination on the existence of noise and vibration that may constitute substantial interference for applicants, the Agency will consider several elements, as outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines) and in Decision 35-R-2012, including:

• the presence of ambient noise other than that of railway operations, such as highway noise;
• railway operations in the affected area, including any relevant changes;
• the characteristics and magnitude of the noise and vibration (such as the level and type of noise [impulse or constant], the time of day, duration, and frequency of occurrence);
• relevant standards to assess the significance of the effects of noise and vibration levels;
• the impact of the noise and vibration disturbance on the persons affected (and available mitigation methods); and
• efforts made by the parties to mitigate the impact of the noise or vibration.

[13] The onus is on the applicants to demonstrate to the Agency that the noise or vibration caused by a railway company’s current operations constitutes substantial interference.

[14] If the Agency finds that the noise or vibration is not causing substantial interference, it will dismiss the application. Alternatively, if the Agency finds that the noise or vibration is causing substantial interference, it will proceed to the next level of analysis: balancing of the noise or vibration against the criteria set out in the CTA—the railway company’s level of service obligations; their operational requirements; and the area where the rail operation takes place—to determine whether the noise or vibration is reasonable in the circumstances.                                                

Positions of the parties

The applicants

[15] The applicants allege disturbances and excessive noise from idling locomotives, passing trains, as well as the switching and shunting of railcars at CP’s Lambton Yard.

[16] They claim that shunting incidents occur five to ten times per day lasting 30 minutes to an hour, with each incident consisting of “multiple smashes”. According to the applicants, the shunting operations are performed at high speeds which create extremely loud noises that are similar to explosions.

[17] The noises shake homes in the neighbourhood early in the morning and late into the night, making it difficult for households to get adequate sleep.

[18] The applicants claim that there are two to three incidences per day of trains idling near their residences, which last for hours on end and often at night. They submit that the constant vibration caused by the idling trains rattles items in their houses, which also causes family members to awaken.

[19] In support of their application, the applicants provided a log of disturbances over a period of approximately 6 months which lists shunting activities between the hours of 9:00 pm and 9:00 am. They also provided a 35-second video of a train idling next to Runnymede Park.

[20] In addition, the applicants provided testimonials from other residents in the neighbourhood who argue that the noise is unnecessary and excessive. Many claim that the noise has had a negative impact on their community.

[21] The applicants disagree with CP’s claim that these testimonials do not provide substantiated qualitative data. They point out that the Agency itself has acknowledged in its Railway Noise Measurement and Reporting Methodology (Methodology) that it is difficult to produce the empirical evidence required. The applicants maintain that a log of incidents is an accepted data source for noise and vibration complaints, even though CP is attempting to discredit theirs. They assert that their colloquial reference to “trains” to describe a series of engines and cars coupled together should not disqualify their report of a train engine idling for hours.

[22] The applicants also contest CP’s argument that locations were not specified in the log. The applicants point out that they, along with the residents that filed testimonies, live on one city block. Because the noise and vibrations impact the entire neighbourhood, it is irrelevant whether the log cites the east end or west end of the neighbourhood.

[23] The applicants argue that the fact that CP has been operating in the area for over a century does not justify the excessive noise and vibration. They point out that there have been significant changes to labour, environmental and social responsibilities and regulations in the past one hundred years. They hope that CP cares for the communities in which it operates and is invested in positive relations and ethical operations.

[24] Finally, the applicants disagree with CP’s assertion that their proposed remedy of a sound barrier is not appropriate, but they acknowledge that any sound barrier would require significant assessment and planning.

CP

[25] CP submits that the applicants have failed to demonstrate that the noise and vibration from its operations causes substantial interference and that they have not provided supporting evidence on the alleged harm and impact. It argues that the volume of freight and passenger operations in the yard did not increase during the timeframe covered in the application, and actually decreased during a portion of that timeframe. CP claims that the applicants perceive an increase in noise and vibration because they spent more time working and parenting from home during the COVID-19 pandemic.

[26] CP claims that the log that the applicants provided is not accompanied by noise and vibration reports or measurement recordings. It submits that the log entries sometimes refer to two events in which two time ranges are provided. CP argues that it is not clear which event corresponds to which time period.

[27] In addition, CP asserts that some of the log entries just refer to “trains” rather than specific locomotives, giving the impression that multiple trains are idling, when, in fact, they may be engaged in different activities in the yard during the timeframe noted. CP also points out that the log does not specify the location of the alleged incidents.

[28] CP also argues that the applicants’ video does not establish substantial interference. According to CP, the video shows only that a train idled near Runnymede Park for 35 seconds, rather than for hours as alleged by the applicants. It maintains that the video does not depict noise levels, and even if it did, it would only depict noise levels in Runnymede Park, rather than noise levels at any of the applicants’ residences. CP submits that noise and vibration in public spaces has no bearing on whether applicants experience substantial interference at their residences.

[29] Furthermore, CP submits that the testimonials provided by the applicants are not only hearsay repeating what was explained in the application, but that they also lack supporting evidence and are therefore only “bare assertions”.

[30] CP also opposes the suggestion that it build a noise barrier on its property either along the tracks or surrounding Lambton Yard. However, it states that if the municipality wishes to construct one on its property, it is free to do so.

CP’s common carrier obligations under the CTA

[31] According to CP, its common carrier obligations under sections 113 and 114 of the CTA to transport goods offered for carriage is directly driven by customers and their needs to ship and receive goods. It maintains that the volume, frequency and timing of shipments are driven by shippers, and their demands have a direct impact on a railway company’s operational requirements.

[32] CP argues that its activities in Lambton Yard are strictly a function of the amount of traffic that is tendered by its customers, and because of its obligations under the CTA, it cannot delay or cease the movement of goods for shippers anywhere on its network, including Lambton Yard.

Operational requirements

[33] CP states that it and its subsidiaries operate a transcontinental railway in Canada and the United States which provides rail and intermodal transportation services over a network of approximately 13,700 miles. CP claims that in order to ensure that its traffic is moved efficiently and cost-effectively, it operates, with exceptions, year round, 24 hours a day and 7 days a week.

[34] CP also submits that idling activity near mileage point 5.5 of the Galt Subdivision is infrequent and would occur when trains are pulling out of Lambton Yard and awaiting clearance to enter the mainline. CP asserts that any train idling does not involve long wait periods. CP submits that it has implemented measures to prevent unnecessary idling in Lambton Yard, including the requirement that trains lifting or setting off at Lambton Yard must confirm with the Rail Traffic Controller in advance that Lambton Yard will accept the train, as well as posting no parking signs at mileage points 5.0 and 7.6 of the Galt Subdivision.

[35] CP claims that when its trains idle at permitted locations in Lambton Yard, they do so for various necessary operational reasons in accordance with all relevant rules and regulations. CP submits that trains may idle in Lambton Yard in excess of 30 minutes from time to time, but only in accordance with the exceptions established by the Locomotive Emissions Regulations (LER).

The area where the operations take place

[36] CP claims that much of the traffic passing through Lambton Yard and the Galt Subdivision is high-priority export traffic.

[37] According to CP, Lambton Yard is a busy yard that operates continually, serving four main purposes. First, traffic from local customers is processed in the yard for local delivery or picked up from customers and loaded onto trains for delivery elsewhere. This includes regularly scheduled activities and service.

[38] Second, it is a junction yard for trains travelling on the Canadian mainline and trains travelling south to areas in the United States. Third, it is an interchange where interswitching activities with CN account for a significant amount of daily traffic.

[39] Finally, the tracks hosts the GO Train commuter passenger service where Metrolinx operates ten eastbound and ten westbound trains from Monday to Friday (with exceptions on holidays).

Analysis and Determinations

Does noise and vibration caused by CP’s operations in Lambton Yard constitute substantial interference?

[40] The onus is on the applicants to demonstrate that it is more likely than not that the noise or vibration caused by a railway’s current operations constitutes substantial interference.

[41] The applicants submitted a log that is not extensive, but that does provide a list of disturbances between the hours of 9:00 pm and 9:00 am, over approximately 6 months. The video that they submitted demonstrates that a train idled near Runnymede Park.

[42] The applicants did not provide any sound measurements to support their position. In order to estimate the impact of noise when no specific noise data is available, the Agency relies on the Methodology, referenced in the Agency’s letter to open pleadings.

[43] Those living in the residences closest to the railway tracks reside in a “very noisy urban residential” community, as defined by the Methodology. Based on this guidance, the Agency estimates a baseline sound level of 60 dBA during the night, when people are sleeping.

[44] Using “Appendix A – Simplified Estimation Procedure” of the Methodology, assuming a distance of roughly 40 metres, the Agency notes the following.

Idling engines

[45] As explained in the Agency’s Noise and Vibration from Idling Locomotives, an idling locomotive creates noise at low frequencies which can travel long distances with little attenuation or reduction in strength.

[46] An idling period of 60 minutes, as noted in the application and log, would result in sound levels of approximately 69 dBA for one idling locomotive, which is higher than the baseline sound level. There is little effect on the noise level whether it is a single locomotive or multiple locomotives idling consecutively for a 60-minute period. In accordance with the Methodology, this calculation includes an adjustment factor to account for the unique characteristics of low-frequency noise, which can travel over longer distances and cause building elements to rattle.

Other working trains

[47] CP states that there are other activities being performed at Lambton Yard, including the operation of local switcher trains to handle traffic and movement of intermodal and freight trains. All of these activities would contribute to the overall noise of CP’s operations.

Shunting of railcars

[48] The applicants’ log lists shunting incidents that occurred between 9:00 pm and 9:00 am. The Agency anticipates the noise from shunting activities to be very high. Secondary effects, such as rattling of houses, would further increase the annoyance caused by the noise. The applicants described these activities as creating a “sound similar to an explosion”. Due to the unique characteristics of the shunting noise, which can be described as impulsive, of a short duration and of high intensity, in contrast to the surrounding background environment, the Agency expects these sounds to be well above the baseline sound level.

[49] The Agency estimates that the combination of these railway activities during the night, when people are sleeping, would lead to noise levels exceeding 5 dBA above the baseline sound level.

[50] In Decision LET-R-148-2012 (Bysterveld v CP) and Decision LET-R-21-2017 (Scott et al. v CN), the Agency found that sound levels in excess of 5 dBA above background sound may increase annoyance and impact sleep and communications and may have negative effects on health as outlined in the Methodology.

[51] Therefore, based on the proximity of the residences to CP’s Lambton Yard, the different rail yard operations taking place in the yard, including idling, coupling, and other switching activities, and the fact that such operations also occur at night when people are sleeping, the Agency finds, on a balance of probabilities, that the noise from CP’s operations causes substantial interference to the applicants.

Is CP meeting its obligation to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the local area?

[52] In the next step of the analysis, the Agency considers whether the noise and vibration are reasonable in light of the criteria set out in the CTA: the railway company’s level of service obligations; their operational requirements; and the area where the rail operation takes place.

Level of service obligations

[53] Lambton Yard is a busy hub in CP’s network and the activity associated with the yard is a product of CP’s level of service obligations under the CTA to accept traffic it is offered and carry it without delay.

Operational requirements

[54] The Agency accepts that CP must operate 24 hours per day, seven days per week in Lambton Yard to meet the varying needs of its customers. The Agency finds that these operations are directly related to CP’s level of service obligations under the CTA. There is no evidence that CP’s operations exceed what is needed to meet these obligations.

[55] Regarding the specific issue of train idling, it is unclear from the log of incidents whether the events reported by the applicants involve one train idling excessively or multiple trains idling at different times or locations over the specified timeframe. This makes it difficult to determine that the substantial interference caused by idling is unreasonable in the circumstances. Train idling is a necessary part of rail operations and is regulated by the LER. CP claims that trains generally do not idle in excess of 30 minutes, except when they are permitted to do so under the LER. The Agency accepts that CP has implemented mitigation measures to reduce train idling in proximity of mileage point 5.5 of the Galt Subdivision. The evidence suggests that there may be confusion between idling and working train noise in the applicant’s log. As a result, the Agency cannot find that the idling is unreasonable in light of CP’s operational requirements.

Area where rail operation takes place

[56] CP’s operations in the area predate residential settlements. It appears that neither the city nor the residential developer appropriately contemplated appropriate mitigation measures when the residences were built, as there is very little separating CP’s yard from houses in that area that, in some cases, are within meters of CP’s operations. The applicants were aware or should have been aware that the residences they purchased were in close proximity to railway operations with nothing separating the two properties.

[57] In Decision 69-R-2014, the Agency explained that municipalities take risks when they approve residential development next to railway operations. In that case, as here, neither the city nor the developer appeared to have contemplated appropriate mitigation measures between the busy rail corridor and the applicant’s house. The Agency found that, while the applicant was disturbed by the railway’s operations, “… more weight must be given to CP’s level of service obligations on a key component of its main east‑west corridor of long standing and on CP’s operational requirements…”, such that the noise and vibration from these operations was reasonable. The Agency adopts the same reasoning in this case.

[58] In light of the above, the Agency finds that CP’s operations in Lambton Yard are reasonable in light of the criteria under the CTA.

Conclusion

[59] The Agency finds that CP’s operations in Lambton Yard constitute substantial interference to the applicants’ residences but that the noise and vibration from CP’s operation are reasonable in the circumstances.

[60] The Agency therefore dismisses the application.

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Legislation or Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	5; 95.1; 95.3(1); 113; 114;
Locomotive Emissions Regulations, SOR/2017-121	10(1); 10(2)