Decision No. 133-R-2000

With Order No. 2000-R-71

February 29, 2000

File No. R8080/904

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COMPLAINT

On June 7, 1996, Wellington Ykema (hereinafter the complainant) filed a complaint with the National Transportation Agency (hereinafter the NTA) as the ditches along both sides of the track of CSX Transportation Inc. (hereinafter the railway company), formerly Consolidated Rail Corporation, required cleaning in order to properly drain his farmland.

The complainant states that poorly maintained ditches are causing a drainage problem on his farm resulting in a loss of crops. The same letter contained a complaint about fencing on his property, as well as an application for a farm crossing. The last two matters have been dealt with and this Decision deals with drainage only.

FACTS

Following receipt of the complaint and in order to assess the extent of the corrective work required at this location, a site meeting attended by the complainant, personnel of the railway company and Canadian Transportation Agency (hereinafter the Agency) staff was held on November 19, 1996.

The inspection revealed that drainage along the railway was partly deficient, that certain culverts had collapsed and that the ditches should be cleaned to ensure free flow of water to the east from Lot 186-187 to Branch 17, just east of Lot 90.

The railway company did not reply to Agency staff letters dated December 10, 1996 and January 21, 1997. On February 14, 1997, the railway company advised Agency staff verbally that the ditch cleaning would be performed as required.

By letters dated July 22, 1997 and February 18, 1998, the railway company was asked to confirm when the proposed work would be completed. No response was received.

An additional site meeting was held on August 3, 1998 at which time parties agreed that the work previously performed by the railway company did not improve the drainage situation. The parties decided that an estimate for the necessary work would be obtained from J.R. Caza, a local railway-approved contractor. By letter dated September 25, 1998, the railway company was asked to confirm its acceptance of the cost estimate for the proposed work. The Agency's follow-up letter of November 4, 1998 went unanswered. On November 30, 1998, an unsigned facsimile was received from the railway company wherein it stated, among other things, that the railway company representative at the last meeting was not authorized to agree on any work to be performed.

POSITIONS OF THE PARTIES

The complainant maintains that the poor condition of the railway ditches renders a portion of his farmland swampy resulting in a loss of crops and that the work performed by the railway company in the past did little to improve the problem.

The complainant also states that digging the railway ditches to a level sufficient to drain his farm would not represent a danger to the railway company as the work consists only of restoring the drainage capacity of the ditches which are clogged by the accumulation of sediment and grass growth.

The railway company submits that it has cleaned its ditches and is of the opinion that the reason it did not improve the complainant's drainage situation was because he lowered his ditches up to four feet in some locations.

The railway company states that the longitudinal slopes of both ditches are sufficient to properly drain water coming from the track and that a cross-section clearly shows that the railway ditch at the right of way limit is higher than the complainant's ditch by about 2 feet.

The railway company is of the opinion that lowering the railway ditches by 4 feet would be detrimental to the railway bed's existing embankment and that the complainant should install a new ditch, at his expense, to facilitate the drainage of existing water on his property caused by the lowering of his own ditches.

ANALYSIS AND FINDINGS

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

Subsection 212(1) of the Railway Act states in part that:

Whenever

(a) any lands are injuriously affected by reason of the drainage on, along, across or under the railway being insufficient to drain or carry off water from the lands,

(b) any municipality or landowner desires to obtain means of drainage, or the right to lay water pipes or other pipes, temporarily or permanently, through, along, on, across or under the railway or any works or land of the company, or

(c) The railway company desires to obtain means of drainage, or the right to lay water pipes or other pipes, temporarily or permanently, through, along, on, across or under any lands adjoining or near the railway,

the Commission may, on the application or complaint of the municipality or landowner, or of the company, order or permit the company to construct that drainage or lay the pipes, and may require the applicant to submit to the Commission a plan and profile of the portion of the railway or lands to be affected, or may direct an inspecting engineer, or such other person as it deems advisable to appoint, to inspect the locality in question, and, if expedient, there hold an inquiry as to the necessity or requirements for that drainage or those pipes, and to make a full report thereon to the Commission.

The "Commission" referred to in these provisions is the Canadian Transport Commission, which was replaced by the National Transportation Agency by virtue of the passage of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.). The NTA was, in turn, replaced by the Agency on July 1, 1996 with the passage of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA). The CTA repealed the above-cited section 212 of the Railway Act.

The subject complaint was filed with the NTA, the Agency's predecessor. Pursuant to subsection 195(1) of the CTA, proceedings relating to any matter before the NTA at the coming into force of section 195 of the CTA were to be continued by the Agency. Subsection 195(3) of the CTA provides, however, that the Governor in Council may, by order, direct that proceedings in respect of matters referred to in subsection 195(1) of the CTA be continued by the Agency on the terms and conditions specified in the order. Pursuant to the Discontinuance and Continuance of Proceedings Order, 1996, SOR/96-383, the Governor in Council ordered that proceedings under section 212 of the Railway Act in respect of drainage be continued in accordance with the provisions of the Railway Act as it read immediately before July 1, 1996.

The Agency notes that the complaint was received in June 1996 and the railway company tried to correct the situation in 1997 by using railway-owned work equipment, but with no success.

The railway company alleged that farm ditches were lowered by 4 feet. However, at the site visit on November 19, 1996, Agency staff found no evidence that the complainant had lowered his ditches by 4 feet. The Agency staff report of the site visit was copied to the interested parties and no comments were received.

None of the sketches supplied by the railway company showed any farm ditches lowered by 4 feet. One sketch indicates that the farm ditch is lower than the railway ditch by approximately 2 feet at the location where the railway ditch is farther away from the centerline of the track.

The Agency finds that the railway company submitted an incomplete profile of both ditches by showing only the theoretical slopes but not the actual bottom profile of both ditches.

The Agency provided copies of the railway company's sketches to the complainant for comments. The complainant indicated on the sketches an approximate profile of both ditches and submitted them with the Agency. The Agency accepts the sketches as amended by the complainant as a good description of the site.

These documents show that the water could accumulate at some low points and could be held up at other points. They also indicate that in order to restore the theoretical slope in the ditches excavation of up to 2 to 2.5 feet thick of material would be required. This is corroborated by the work plan and cost estimate submitted to the Agency, and copied to the parties in the summer of 1998 by a contractor specialized in that type of work. The work plan mentioned that an average of one foot to one foot and a half of material needs to be excavated.

Therefore, the Agency is of the opinion that the clearing of the railway company's ditches by about 2 feet of material would improve the drainage situation at that location without jeopardizing the stability of the railway embankment.

CONCLUSION

The Agency allows the applicant's complaint. The Agency will order the railway company to do the ditch work on both sides of the railway, from mileage 190.4 to mileage 191.0 of the Montréal Branch, to reprofile its ditches to drain the complainant's ditches to the Beaver Creek Branch, at the railway company's cost, no later than May 15, 2000.

An Order to this effect will be issued.