Decision No. 154-R-2015

INTRODUCTION

[1] In 80-R-2013%20">Decision No. 80-R-2013 dated March 7, 2013 (2013 Decision), the Canadian Transportation Agency (Agency) ordered the Canadian Pacific Railway Company (CP) to provide a single suitable crossing at or near mileage 7.40 of the Waterloo Subdivision, with costs of construction and maintenance to be paid by CP. The Agency also stated that the parties could seek a determination from the Agency if the parties could not come to an agreement on what constitutes a suitable crossing.

[2] On September 6, 2014, CP constructed a private crossing consisting of hardwood planks and gravel approaches.

[3] On December 17, 2014, the applicants submitted an application to the Agency for a determination on the suitability of the private crossing.

[4] Upon receipt of the application, the Agency provided a copy of the application to Transport Canada (TC) pursuant to a Memorandum of Understanding between TC and the Agency. TC’s comments were received by the Agency on February 12, 2015. The parties were provided with an opportunity to address TC’s comments in their pleadings.

ISSUE

[5] What constitutes a suitable private crossing at mileage 7.40 of CP’s Waterloo Subdivision?

POSITIONS OF THE PARTIES

575482 Ontario Limited and Benninger Holdings Inc. (applicants)

[6] The applicants submit that the intended purpose of the crossing granted by the 2013 Decision is to access the lands on the far side of the railway line in order to develop those lands into a commercial business park. They submit that the crossing put in place by CP does not meet their requirements and is in violation of the Agency’s ruling that CP was to install a safe, convenient and suitable crossing “appropriate for the intended purposes of the applicants.” The applicants add that while the commercial business park is to be constructed in the summer of 2015, they have had ongoing problems with the owners, consultants, contractors, end-users and investors being able to access the property.

[7] The applicants request that the Agency determine that a suitable and convenient crossing for the intended business park and its development must have a safe and permanent 2-lane cross-section of hard surface asphalt that spans the entire 100-foot width of the CP right of way. They have filed plans and a modified photo with the application to illustrate the type of crossing that CP should construct in order to serve the development of the land and to accommodate all types of cars, trucks and other vehicles. The applicants maintain that the burden is on CP to ensure safety.

[8] According to the applicants, there was a previous agreement with CP that included a covenant where CP would not unreasonably object to an application to change the use of the lands to “general industrial and commercial use.” They assert that development is not hypothetical by virtue of having received approvals from the City of Cambridge and the Region of Waterloo for various applications relating to the future development of the land. The applicants add that they are not requesting a public road crossing (pursuant to section 101 of the CTA) but rather a suitable crossing for their intended use. They state, however, that in the future a road authority may submit an application for a road crossing pursuant to section 101 of the CTA upon assuming responsibility for the road.

CP

[9] CP submits that it installed a 24-foot timber and hardwood-plank crossing with gravel approaches on September 6, 2014 that it contends is suitable and in compliance with TC’s Grade Crossing Standards (GCS) – specifically, articles 3 and 5 – which indicate the minimum width of a crossing surface and the maximum grades for the approaches and other elements to consider for private and public crossings. CP argues that the crossing is 4 feet wider than what was ordered by the 2013 Decision. CP filed a memorandum dated March 5, 2015, prepared by a public works engineer employed by CP who, according to CP, is an expert with respect to railway line crossings. The engineer concludes that the crossing is consistent with other section 102 crossings installed across Canada that can accommodate all vehicle types up to and including heavy industrial construction equipment.

[10] CP submits that the application before the Agency, in its present form, exceeds the direction made by the Agency in the 2013 Decision and that the applicants have used the direction regarding a private crossing as an avenue to reargue their case to obtain a premium public crossing. In their view, the application ignores the foundation for the 20-foot single crossing right granted by the Agency in the 2013 Decision in an attempt to distort the Agency’s original ruling and, in effect, request a re-hearing for a public crossing.

[11] CP is also of the opinion that the Agency is functus officio concerning the existing crossing as no new facts and circumstances have been brought forward by the applicants in their application. CP also argues that the applicants’ development continues to be hypothetical and because the Agency did not contemplate public access in the 2013 Decision, access should be limited to the applicants and their invitees only. CP asserts that comments from TC confirm that the existing crossing is compliant with the minimum safety requirements for an existing private crossing.

ANALYSIS AND DETERMINATION

[12] The applicants request a suitable private crossing that would include a safe and permanent, two-lane cross-section of hard surface asphalt that spans the entire 100-foot width of the CP right of way at mileage 7.40 of CP’s Waterloo Subdivision.

[13] The Federal Court of Appeal, in Fafard v. Canadian National Railway Co., [2003] FCA 243 (Fafard), determined that a “…suitable crossing is a crossing that is adequate and appropriate for the purposes for which it was intended and installed.”

[14] Issues related to the safety of the crossing, such as minimum safety standards, are within the jurisdiction of TC. This includes geometry, signage road geometry and warning signals. Consequently, the Agency need not review these issues, nor rule on them. Nevertheless, before deciding on the suitability of a private crossing, the Agency must consider safety, as the Federal Court of Appeal also determined, in Fafard, that the “…concept of a ‘suitable crossing’ shall include an element of safety.”

[15] Comments were received from TC regarding the existing private crossing with respect to sightlines, surface, road geometry and signage. With respect to sightlines and surface, TC states that the crossing surface was observed to meet the current minimum regulatory safety standards. With respect to road geometry and signage for the existing crossing, TC states that there are no minimum safety standards under the GCS. However, private crossing signage was observed at both approaches to the crossing. While no safety concerns are raised by TC regarding the existing crossing, TC submits that the existing crossing’s current geometry, signage and warning signals would not suffice to meet the minimum safety standards if the existing private crossing was to be converted to a road crossing (i.e., a public crossing).

[16] In CP’s March 5, 2015 memorandum, the engineer explains the reasons why, in her opinion, the existing crossing complies with the GCS for private crossings with respect to crossing surface, sightlines, road geometry and signage. The engineer states that the existing crossing is consistent with private crossings installed throughout Canada for many different purposes and can handle a range of vehicle types – from passenger vehicles to heavy industrial construction equipment. According to CP, the safety and suitability requirements for the existing private crossing (surface, sightline, road geometry and signage) are the same factors considered by TC.

[17] The Agency notes that the applicants have filed plans and a modified photo to illustrate the type of suitable road crossing that the applicants assert CP should construct in order to accommodate the traffic for the development of a business park on the applicants’ land. The applicants claim to have had ongoing problems with the owners, consultants, contractors, end-users and investors not being able to access the property.

[18] When determining whether a crossing is appropriate for the purposes for which it was intended and installed, the Agency must consider whether the crossing is a road crossing referred to in section 101 of the CTA, or a private crossing referred to in sections 102 and 103 of the CTA. In the 2013 Decision, the Agency ordered the construction of a suitable private crossing by CP pursuant to section 102 of the CTA, on the 20-foot shared lane where the construction of the railway line divided the applicants’ lands. The Agency did not order the construction of a “suitable road crossing.”

[19] In the 2013 Decision, the Agency noted that, while the CTA does not include a definition of either “private” or “public” crossing, sections 102 and 103 are prefaced by the heading “Private Crossings” and generally govern cases in which a landowner seeks access to their property, while section 101 and deals with “road crossings” that are to be used by the general public.

[20] According to the applicants, the existing crossing cannot accommodate all types of cars, trucks and other vehicles. However, the Agency must rely on what the evidence shows, not what is alleged by one of the parties. While the applicants refer to problems in accessing the property, no evidence has been filed to corroborate those allegations. On the other hand, the evidence filed by CP and the comments filed by TC support CP’s contention that the existing private crossing, which is meant to provide access to the applicants and their invitees to the applicant’s property, is adequate based on the purposes for which it was intended and installed.

[21] The Agency has considered the safety aspect and the adequacy of the crossing and, based on TC’s comments and the material submitted by the parties, the Agency determines that the existing crossing meets the standards of a suitable private crossing.

COSTS

[22] The applicants seek their costs with respect to the application in accordance with section 25.1 of the CTA.

[23] As a general rule, costs are not awarded and the Agency's practice has been to award costs only in special or exceptional circumstances. In making such a determination, the Agency considers a combination of factors such as the nature of the application, the length and complexity of the proceeding, whether the Agency held an oral hearing, whether parties have acted efficiently and in good faith or if a party has incurred extraordinary costs to prepare and defend its application. The Agency finds that special or exceptional circumstances do not exist to warrant awarding of costs.

OTHER MATTERS

[24] The applicants filed a letter to Agency staff dated July 22, 2014 which states: “it would now make sense for Intermarket to submit an application for a “public road crossing” at Mileage 7.4 under subsection 101(3) of the Act”, which would reflect the results of the Municipal and Regional road authorities’ decisions to approve the Master Environmental Servicing Plan.

[25] In 65-R-2008">Decision No. 65-R-2008, the Agency found that a road does not have to be declared a “public road” for the Agency to authorize the construction of a road crossing. However, the Agency expects that an application filed pursuant to subsection 101(3) of the CTA will include a confirmation from a road authority that the road be declared public once a road crossing is approved.

CONCLUSION

[26] In light of the above, the Agency finds that the existing private crossing at mileage 7.40 of CP’s Waterloo Subdivision is suitable.