Decision No. 131-R-2023

[1] Ms. Simeckova filed an application with the Canadian Transportation Agency (Agency) under subsection 95.3(1) of the Canada Transportation Act (CTA) regarding noise caused by track-level blowers (blowers) located on CPKC’s tracks behind her residence. The blowers are at mile point (MP) 4.9 of CPKC’s Galt Subdivision.

[2] Ms. Simeckova seeks the elimination of the noise by replacing the blowers with quieter types suitable for a residential area and implementing noise control measures.

[3] The Agency will consider the following issues:

(1) Does the noise caused by CPKC’s operations constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference)?

(2) If so, is CPKC 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 caused by CPKC’s operations constitutes substantial interference, the noise produced is reasonable given the lack of technically feasible mitigation measures and their related impact on safe railway operations. The Agency, therefore, dismisses the application.

Background

[5] Ms. Simeckova’s residence is a unit in a condominium (condo) building located at 60 Heintzman Street in Toronto, Ontario. Her unit is on the 19th floor and includes three bedrooms: two south-facing and one east-facing. The building is immediately to the south of CPKC’s Galt Subdivision where rail traffic enters and exits Lambton Yard.

[6] The blowers are at track level and are comprised of five cold-air blowers to clear the track of debris and one hot-air blower to melt ice and snow on the tracks. The hot-air blower and one cold-air blower are located on the south side of the tracks, adjacent to Ms. Simeckova’s condo building. Two cold-air blowers are located on the north side of the tracks opposite the condo building. The two remaining cold-air blowers are located on the north side of the tracks on the nearby Keele Street rail bridge. The condo building sits on a large retaining wall, and there is a row of buildings on the north side of the tracks, opposite the condo building.

[7] The parties attempted to resolve their dispute through mediation but were unsuccessful.

Preliminary matters

[8] The Agency notes Ms. Simeckova’s confirmation that the complaint will proceed in her name only with the support of the individuals and organizations listed in her application. CPKC argues that Ms. Simeckova was not properly authorized to represent other individuals in her application in accordance with the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings). Since no other parties are named as applicants and Ms. Simeckova has not been authorized to represent any other party in the application, the Agency limits this decision to Ms. Simeckova and her residence.

The law

[9] 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.

[10] The CTA also provides that the Agency may, on receipt of a complaint that a railway company is not complying with its 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 to ensure compliance.

[11] It is clear from the legislative framework and the National Transportation Policy set out in the CTA that, in exercising its mandate regarding complaints 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

[12] In Decision 35-R-2012 (Normandeau and Tymchuk v CP), the Agency established the analytical framework for determining whether a railway company is complying with its noise and vibration obligations: whether a railway company has caused noise and vibration that constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person; and if there is substantial interference, balancing the noise or vibration against the criteria set out in the CTA.

[13] In determining the existence of noise and vibration that may constitute substantial interference for applicants, the Agency considers several elements, as outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines) and in Normandeau and Tymchuk v CP, 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 or 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 or vibration disturbance on the persons affected; and
• mitigation methods and mitigation efforts made by the parties.

[14] The onus is on the applicant to demonstrate that the noise or vibration caused by a railway company’s current operations constitute substantial interference.

[15] If the Agency finds that the noise or vibration is causing substantial interference, it determines whether the noise or vibration is reasonable in the circumstances by balancing the noise or vibration against the criteria set out in the CTA — the railway company’s level of service obligations, its operational requirements and the area where the railway operation takes place.

Positions of the parties

Ms. Simeckova

[16] Ms. Simeckova states that she bought her condo unit in 2011, the same year construction on the building was completed, and that she noticed the noise from the blowers in the early spring of 2021. She claims that between November and April, the cold-air blowers run constantly at all hours and that the hot-air blower runs only during colder periods and snowfalls. Ms. Simeckova describes the noise from the cold-air blowers as a loud, industrial din; periodically a wailing, high-pitched noise at varying, punctuated frequencies; and a loud rattling when the fan is at its highest speed. The noise from the hot-air blower is described as a loud roaring and hissing.

[17] To support her application, Ms. Simeckova filed a log of noise measurements taken with her smartphone inside that bedroom where the loudest noise measurement was 69 dB at 10:45 pm on January 17, 2022. These measurements were taken using two smartphone applications, namely Yalintech Noise Detector and Decibel Meter and Sound Meter – Decibel. She explains that the east-facing bedroom is the room affected by the noise from the blowers, and the noise measurements taken there indicate sound levels ranging from 65 to 69 dB, from 9:30 pm to 2:15 am.

[18] Ms. Simeckova claims that the noise from the blowers causes a constant disturbance in her residence, and that it is most disturbing at night. Ms. Simeckova asserts that the noise causes her to have chronic sleep problems, headaches and stress; and that it interferes with the use and enjoyment of her residence, including her ability to sleep in the east-facing bedroom. She states that CPKC has made no attempts to mitigate the noise. Ms. Simeckova claims that ambient noise in the area does not contribute to noise disturbances and that the area is fairly quiet at night.

[19] Ms. Simeckova requests the following measures to mitigate the noise and vibration:

• replacement of the current blowers with safer, quieter types, suitable for a residential area, with adequate sound proofing to eliminate any potential noise pollution;
• implementation of adequate noise control measures / sound proofing to the existing blowers (for example, protective enclosures), as various types of noise control solutions are routinely applied to industrial equipment;
• implementation of any noise control solutions deemed by the Agency as adequate to eliminate the noise pollution generated by the blowers; and
• application of the noise control measures to any other blowers on CPKC tracks that may cause a disturbance to the community in the future.

[20] In addition to her noise complaint, Ms. Simeckova raises safety concerns regarding the blowers, which are gas-fired and operate unsupervised a few metres from her condo building, and propane tanks located next to the retaining wall adjacent to her condo building. She alleges that the location of these tanks does not comply with the Railway Safety Act (RSA).

CPKC

[21] CPKC argues that Ms. Simeckova has not met her burden to prove that the blowers cause substantial interference.

[22] While Ms. Simeckova asserts that the noise from the cold-air blowers is continuous, CPKC contends that they only operate when needed to ensure the track switch points remain clear of leaves, dirt and other debris. CPKC states that the hot-air blower operates when triggered by a snow sensor for periods of one hour followed by a 20-minute cool-down period, or as required by the Rail Traffic Controller (RTC) for periods normally lasting 30 minutes to two hours, to ensure the mainline track switch points remain clear of ice and snow buildup at all times.

[23] Citing Decision 48-R-2014 (DiNardo v CN), CPKC argues that the log submitted by Ms. Simeckova lacks sufficient detail and contextual information and, as a result, is unreliable. CPKC states that weather conditions were not taken into consideration and that ambient noise was not measured. CPKC argues that the ambient noise around Ms. Simeckova’s residence is likely high considering its proximity to a railway line and Lambton Yard, and its location in a dense, urban environment.

[24] CPKC also states that no evidence was submitted to establish that the noise measurement device used by Ms. Simeckova meets national or international standards, or that it was calibrated by an accredited laboratory. CPKC further argues that Ms. Simeckova’s noise measurement methods do not conform to the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology) for a Field Measurement Assessment.

[25] CPKC cites Decision 276-R-2011 (McLeod v CN) in which the Agency states that railway operations, by their nature, cause noise and vibration, and that individuals living close to railway tracks can expect train operation noise to be heard.

[26] CPKC argues that much of the traffic passing through Lambton Yard and the Galt Subdivision is high priority export traffic. It submits that shippers’ requirements for reliable and rapid delivery of goods, as well as the high volumes of traffic, require CPKC to operate its trains 24 hours per day, 7 days per week, 365 days per year to meet its level of service obligations. To meet these needs, CPKC argues that it must take all available steps to ensure that the Galt Subdivision is free and clear of debris, ice and snow. CPKC claims that the blowers constitute an operational requirement.

[27] CPKC asserts that the blowers are inspected and maintained, and that there is no evidence on the record that they are in disrepair or not operating optimally. CPKC submits that, therefore, the noise produced by the blowers is reasonable.

[28] CPKC contends that space limitations and safety concerns prevent the enclosure of the blowers, as suggested by Ms. Simeckova. CPKC claims that there is insufficient space to safely construct an enclosure around the blowers, and that to do so would create a fire hazard. Moving the blowers to create more space would, according to CPKC, render them ineffective. CPKC submits that it contacted the blowers’ manufacturer and was informed that there are no sound shields designed for these blowers, nor are other noise mitigation measures available for them.

[29] CPKC asserts that Ms. Simeckova has not submitted any evidence to substantiate her allegations of harm to her physical and mental health.

Analysis

Issue 1: Does the noise caused by CPKC’s operations constitute substantial interference?

[30] Although CPKC objects to the quality of Ms. Simeckova’s evidence on the grounds that it does not conform to the Methodology, this Methodology was developed as a guide for parties; it sets out standards to measure sound. Evidence that does not conform to the Methodology may also be considered by the Agency. In her submissions, the applicant provides sufficient context and details regarding the time, duration and location accompanying the noise measurements taken with her smartphone. The Agency finds that the noise measurements from the smartphone applications are reliable, even though they do not strictly conform to the Methodology.

[31] The Agency notes that, in the application, Ms. Simeckova provides descriptions of the ambient noise but no measurements. In order to assess the impact of Ms. Simeckova’s claims when no ambient noise data is available, the Agency finds it appropriate to use the Methodology, as it did in Decision 63-R-2019 (Young v CP), to estimate the impact of the noise.

[32] According to the Methodology, the background ambient noise is the combined noise level of all sources present, excluding the additional noise events of interest which, in this case, is the noise from the blowers. The Methodology contains an estimation of baseline noise levels for various situations, like urban and residential areas. Considering that Ms. Simeckova’s residence is next to the Galt Subdivision, a busy rail corridor, the entrance to Lambton Yard, and that the residence is located in a densely populated urban area of Toronto zoned Commercial-Residential, it is reasonable to qualify the area as “noisy urban residential”, as described in the Methodology. On this basis, the Agency finds it is reasonable to estimate that the night-time background noise is approximately 55 dBA. For the purposes of this analysis, the Agency considers the night-time period to last from 10:00 pm to 7:00 am.

[33] While Ms. Simeckova asserts that the sound of the cold-air blowers is continuous, CPKC contends that the cold-air blowers operate from mid-November until the first week of April, and that they do not run constantly. CPKC explains that the cold-air blowers must operate before it begins to snow or freezing rain to ensure that switches are not affected. CPKC indicates that the hot-air blowers operate for one hour with a 20-minute cool-down period. In light of the evidence, the Agency finds it reasonable to conclude that the hot- and cold-air blowers operate for at least an hour at a time.

[34] In determining whether noise from railway operations constitutes substantial interference, the Agency assesses the noise generated by those operations by calculating the average weighted sound level over a period of time. Both in Young v CP and in Decision LET-R-21-2017 (Scott v CN), the Agency assessed the noise of train movements over a one-hour timeframe. The Agency has applied the same timeframe in this case.

[35] In Decision LET-R-148-2012 (Bysterveld v CP) and Scott v CN, the Agency found that sound levels in excess of 5 dBA above background sound may increase annoyance, impact sleep and communications, and have negative impacts on health as outlined in the Methodology. Furthermore, in Normandeau and Tymchuk v CP, the Agency found that noise during the night can be much more disturbing than noise during the day.

[36] Based on the measurements submitted by Ms. Simeckova, the average noise in the applicant’s east-facing bedroom caused by the blowers is calculated to be approximately 67 dBA. Based on an ambient noise level of 55 dBA, the incremental increase in noise level caused by the blowers is estimated to be 12 dBA.

[37] In light of the above, the Agency finds that, on a balance of probabilities, the noise from CPKC’s blowers causes substantial interference at Ms. Simeckova’s residence.

Issue 2: Is CPKC 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?

[38] Having determined that CPKC’s operations are causing substantial interference at Ms. Simeckova’s residence, the Agency must now determine whether the noise is reasonable in light of the criteria set out in the CTA.

[39] The CTA sets out a railway company’s level of service obligations, or what is generally referred to as “common carrier obligations”. Under these sections, a railway company must furnish, according to its powers, adequate and suitable accommodation for the receiving, loading, carrying, unloading and delivering of all traffic offered for carriage on its railway.

[40] The Agency acknowledges that Lambton Yard is a busy hub in CPKC’s network, and that the activity associated with the yard is a product of CPKC’s level of service obligations under the CTA to accept the traffic it is offered and carry it without delay. Given that CPKC must operate 24 hours per day, 7 days per week at Lambton Yard to meet the varying needs of its customers, the Agency agrees that CPKC operates under considerable time constraints at this location.

[41] The Agency acknowledges CPKC’s submissions that in order to meet the various and often competing needs of all stakeholders, all tracks must be kept accessible and ready to receive train traffic at all times; and that this accessibility is achieved, in part, through the operation of the hot- and cold-air blowers.

[42] Ms. Simeckova’s residence is located adjacent to a busy CPKC rail yard and subdivision, and CPKC’s operations in the area predate the construction of Ms. Simeckova’s condo building in 2011. It appears that neither the city nor the residential developer contemplated noise mitigation measures when the residences were built, as there is very little separating CPKC’s tracks from the condo building.

[43] Ms. Simeckova seeks the replacement of the blowers with safer, quieter types with adequate sound proofing, and the implementation of noise control and sound proofing measures for the existing blowers. However, CPKC submits that it has selected what is, in its view, the best industrial railway equipment available to keep its tracks clear of debris, and free of ice and snow. The blowers are located in a congested rail corridor where there is not enough space to construct an enclosure for the blowers so as to mitigate the noise, as doing so would increase the risk of fire. Because the blowers must be near the tracks to be effective, moving them away from the tracks to create more space for enclosures would run counter to their purpose. In addition, CPKC indicates that effective sound enclosures do not exist for these blowers. In light of these requirements and constraints, the Agency finds that the noise produced by CPKC’s operations is reasonable.

[44] In response to Ms. Simeckova’s concerns about CPKC’s compliance with the RSA, CPKC indicates that the blowers are inspected and maintained, and that there is no evidence that they are being operated in an unsafe manner. The Agency has forwarded a copy of Ms. Simeckova’s complaint to Transport Canada, the administrator of the RSA, for its consideration.

Conclusion

[45] The Agency finds that, while the noise caused by CPKC’s operations constitutes substantial interference with Ms. Simeckova’s enjoyment of her property, the noise produced is reasonable given the necessity of CPKC’s operations in the area, the importance of the blowers to those operations, the lack of technically feasible mitigation measures and their related impact on safe railway operations. The Agency, therefore, dismisses the application.

Legislation or Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	5; 95.1; 95.3(1); 113(1); 114(1)
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (SOR/2014-104)	16