Decision No. 143-R-2022

Summary

[1] Colin Schopfer applied to the Canadian Transportation Agency (Agency) for authorization to construct a crossing, specifically a grade-separated cattle pass (a passageway under CN’s line), at an agreed location near mileage 100.62 of CN’s Wainwright Subdivision (railway line) in the Rural Municipality of Manitou Lake 442 (RM 442), Saskatchewan.

[2] In its answer, CN submits that the Agency should dismiss the application because of Mr. Schopfer’s lack of standing to bring the application. The Agency will consider this issue in this decision.

[3] For the reasons set out below, the Agency finds that Mr. Schopfer does not have standing to bring an application for authorization under the Canada Transportation Act, SC 1996, c 10 (CTA), to construct a private crossing under the divided land section or to construct a road crossing. Accordingly, the Agency dismisses the application.

Background

[4] Mr. Schopfer and his family, as part of their farming operation, have grazed cattle on the land since the 1920s. Until 2018, they walked cattle across the railway line at three locations: mileages 101.04, 100.62 and 99.32. In 2018, CN double-tracked that part of its network and at the same time closed two road crossings that were located at mileage 101.04 and mileage 99.32, while adding a warning system consisting of bells, gates and lights to the remaining crossing at mileage 100.62.

[5] Pursuant to the Memorandum of Understanding entered into between the Agency and Transport Canada (TC), which allows for a coordination of efforts related to road, utility, and private crossings within federal jurisdiction between the Agency and TC, a copy of the application was sent to TC for comments on safety-related matters.

The law

[6] Section 101 of the CTA states, in part:

(1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

....

(3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

(4) Section 16 of the Railway Safety Act applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing.

....

Section 102 of the CTA states:

if an owner’s land is divided as a result of the construction of a railway line, the railway company shall, at the owner’s request, construct a suitable crossing for the owner’s enjoyment of the land.

Positions of the parties

Mr. Schopfer

[7] Mr. Schopfer argues that the Agency should use its authority under section 32 and paragraph 33(4) of the CTA to vary or enforce two Board of Railway Commissioners (BRC) orders to require CN to provide a cattle pass in conjunction with the new upgraded crossing located at mileage 100.62. The orders in question are Order 4023 dated November 16, 1907 (1907 Order), which Mr. Schopfer alleges established the three crossings, and Order 41613, dated January 22, 1931 (1931 Order), which relocated the crossing at mileage 100.62.

[8] Mr. Schopfer submits that the three crossings at mileages 101.04, 100.62 and 99.32 fall within the meaning of section 101 of the CTA and that they are located at municipal road allowances dating from the Dominion Land Survey.

[9] Alternatively, Mr. Schopfer seeks an Agency order authorizing the construction of a private crossing, in the form of a grade-separated cattle pass, under section 102 of the CTA.

[10] The land adjacent to mileage 101.04 and mileage 100.62, North-West Quarter Section 10-43-28-3 (NW Quarter A), is owned by August C. Schopfer Farming Ltd. The land adjacent to mileage 99.32, North-West Quarter Section 11-43-28-3 (NW Quarter B), is leased from the Crown in Right of Saskatchewan (Crown) to Neil and Candis Schopfer. Mr. Schopfer filed signed documents indicating that Neil and Candis Schopfer and August C. Schopfer Farming Ltd. are aware of and consent to this application.

CN

[11] CN asserts that as the 1907 Order does not contemplate any of the three crossings, the only authority available to the Agency to decide this matter is found in sections 101, 102 or 103 of the CTA. As a result, there is no basis to make an order under sections 32 or 33 of the CTA.

[12] Regarding Mr. Schopfer’s argument that section 101 of the CTA should apply to his application, CN cites Fafard v Canadian National Railway Company, 2003 FCA 243 (Fafard), in which the Federal Court of Appeal specified that a public crossing governed by the road crossings section of the CTA is a crossing that is accessible to the public, which a grade-separated cattle pass would not be. CN states that RM 442 is not a party to the proceedings, nor has it indicated that it will declare any road public once the crossing is approved. Moreover, RM 442 consented to the closing of the crossings at mileages 101.04 and 99.32.

[13] CN argues that, based on past Agency decisions under section 102 of the CTA, Mr. Schopfer’s application does not meet the requirements for a private crossing. CN highlights that Mr. Schopfer is not the owner of the land relevant to this application and thus has no standing. The land adjacent to the three crossings is owned either by August. C. Schopfer Farming Ltd., or by the Crown and leased by Neil and Candis Schopfer.

Analysis and determinations

[14] Mr. Schopfer argues that section 101 of the CTA applies to his request which he bases, in part, on the 1907 Order and the 1931 Order. The 1907 Order allowed the construction of a railway from mileages 84.146 to 100.658 and authorized 17 crossings across certain highways along the railway line, including a crossing at mileage 99.1. It is reasonable to assume that it refers to the crossing currently located at mileage 99.32. This excludes the crossing located at mileage 101.04.

[15] RM 442 agreed to the closure of the crossings at mileages 101.04 and 99.32 in 2018. Consequently, with regard to these crossings, there is nothing for the Agency to enforce.

[16] The remaining crossing, located at mileage 100.62, appears to be the crossing authorized by the 1907 Order and relocated by the 1931 Order. This crossing is operational. CN installed in 2018 a warning system there in accordance with the Grade Crossing Regulations, SORS/2014-275. While the 1907 Order is still in force, there is nothing for the Agency to enforce because this crossing is still being operated and maintained as required.

[17] Mr. Schopfer requests that the cattle pass be authorized at a location to be agreed to by the parties. It can reasonably be assumed that the cattle pass would not be constructed within the municipal road allowances at mileages 99.32 and 101.04 as the crossings at these locations were closed. Also, Mr. Schopfer has not obtained municipal agreement for a crossing to be constructed at any other road allowance and RM 442 is not a party to these proceedings. In these circumstances the cattle pass would necessarily have to be constructed elsewhere on the privately owned land around the railway.

[18] As argued by CN, Fafard sets out that section 101 of the CTA deals with crossings used by the general public. The intended use of the crossing, to allow cattle to graze on land as part of a private farming operation, is not, in itself, a public use.

[19] RM 442 has not indicated that it would declare any road crossing public after its approval, a necessary condition for a private party to bring an application for a road crossing under section 101(3) of the CTA as set out in Decision 65-R-2008.

[20] In light of the above, the Agency finds that Mr. Schopfer has no standing to apply for authorization to construct a crossing under subsection 101(3) of the CTA.

[21] Regarding the application of section 102 of the CTA to Mr. Schopfer’s application, as indicated by CN, he does not own the land served by the three crossings in question. Proof of the history of ownership of the land is a key component in establishing a right to a private crossing under section 102 of the CTA. That includes current ownership.

[22] Regarding NW Quarter B, while Mr. Schopfer filed a document indicating that Neil and Candis Schopfer are aware of and consent to this application, they are not a party to these proceedings and Mr. Schopfer is not the owner of the land. The Agency finds that Mr. Schopfer does not have standing to apply for authorization to construct a private crossing located at mileage 99.32 in NW Quarter B under section 102 of the CTA.

[23] While Mr. Schopfer filed a document from the president of August C. Schopfer Farming Ltd. indicating that he is aware of and consents to this application, the current owner of NW Quarter A is August C. Schopfer Farming Ltd., not Mr. Schopfer. The mere granting of a consent to the application by August C. Schopfer Farming Ltd. does not raise Mr. Schopfer’s interest in the land to that of an owner. The Agency therefore finds that Mr. Schopfer has no standing to apply for authorization to construct a private crossing at mileage 101.04 or mileage 100.62 located in NW Quarter A under section 102 of the CTA.

Conclusion

[24] The Agency dismisses the application.