Decision No. 16-R-2024

Summary

[1] Mr. Drake filed two applications with the Canadian Transportation Agency (Agency) under the Canada Transportation Act (CTA) regarding noise caused by work crews and equipment located near his residence on the Tregarva backtrack, which is located approximately between mile points 12.05 and 12.45 of CPKC’s Lanigan Subdivision (Tregarva tracks) in Saskatchewan.

[2] Mr. Drake seeks multiple remedies, including that CPKC use other locations to stage work crews and equipment; that it use the north end of the tracks furthest from his residence if staging must occur at the Tregarva tracks; that it refrain from idling locomotives at the Tregarva tracks; and that he be notified of rail construction or maintenance work at the Tregarva tracks in advance. CPKC argues that its activities on the Tregarva tracks, including those associated with the tie replacement program (TRP), as described below, are not causing substantial interference and that if they are, the activities are reasonable. CPKC submits that the applications should be dismissed.

[3] For the reasons set out below, the Agency finds that, while the noise caused by CPKC’s operations constituted substantial interference, the noise was reasonable given the necessity of the TRP and its importance to safe railway operations, as it relates to CPKC’s level of service obligations and operational requirements.

[4] The Agency also finds that while the noise caused by an idling locomotive unrelated to the TRP constituted substantial interference, given the infrequent nature of such events, the noise produced was reasonable.

[5] The Agency, therefore, dismisses the applications.

Background

[6] Mr. Drake resides in Tregarva, a rural hamlet of two houses. The residence is located approximately 90 metres to the northeast of the Tregarva tracks, which consist of two parallel component tracks: QQ213A, located immediately northeast of the mainline and connected to it at both the north and south ends, and Q43, located northeast of QQ213A and connected to it at the south end only.

[7] Mr. Drake purchased his residence in 1997. Two years later, the grain elevators and annex that were in close proximity to the residence were torn down. Since then, the Tregarva tracks have been primarily used for storing rail cars, accompanied by brief periods of equipment and crew staging activities.

[8] The TRP involves the replacement of worn-out ties and the cleaning of the ballast or shoulder. Depending on the condition of the railway line, the program is conducted every seven to ten years to ensure the safety of persons and property transported by rail and the safety of persons and property near the railway. The two applications filed were joined by the Agency into a single dispute proceeding, as they both raise similar issues, refer to the same sections of the railway line, seek the same results and are against the same respondent.

[9] After CPKC filed its answer to the applications and Mr. Drake filed his reply, the parties filed several procedural requests. As a result, the Agency allowed the parties to file supplemental submissions, namely a supplemental answer and reply.

Preliminary matters

Requests to strike are dismissed

[10] On November 24, 2023, Mr. Drake filed a request under the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) [Rules] to strike portions of CPKC’s supplemental answer from the record of this proceeding. He argues that those portions concern allegations of trespassing that are not related to this proceeding and were inappropriately raised by CPKC.

[11] On January 12, 2024, CPKC filed a request to strike portions of Mr. Drake’s supplemental reply from the record of this proceeding. It argues that Mr. Drake introduced new arguments and evidence and went beyond replying to the matters raised in CPKC’s supplemental answer.

[12] In light of the principle of proportionality stated in the Rules guiding the Agency in achieving just, expeditious, and resource-effective proceedings, the Agency finds it appropriate to maintain the record as it stands given the numerous procedural requests and voluminous submissions filed by the parties, the length of time that has elapsed since the beginning of this proceeding in July 2021, and the fact that the pleadings process is closed. However, the Agency finds that the elements forming the subjects of the parties’ requests to strike will have no bearing on the Agency’s analysis.

[13] Regarding CPKC’s allegations of trespassing, the Agency notes that individuals must be mindful of the Railway Safety Act and its prohibition against persons entering, without lawful excuse, the land on which a railway line is situated.

No jurisdiction on issues other than railway noise and vibration

[14] Mr. Drake raises a variety of issues other than noise or vibration, including pollution and environmental concerns, stockpiling of spent ties and other waste, reduction in property values, disruption and damage to roads and property by CPKC maintenance crews, and road traffic and parking concerns. The Agency’s jurisdiction is limited to determining whether CPKC is meeting its obligations to cause only such noise and vibration as is reasonable. The Agency therefore cannot address these issues in the context of these applications.

[15] In addition, Mr. Drake seeks monetary compensation for alternative accommodation during nights of active construction. However, the Agency does not have the authority to award compensation in noise and vibration complaints.

The law

[16] 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.

[17] The CTA also provides that the Agency may, on receipt of a complaint and on a 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.

[18] 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 a:

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.

[19] 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

[20] In Decision 35-R-2012 (Normandeau v CP), the Agency established steps for deciding cases such as this one:

1. The Agency determines whether the railway company has caused noise or vibration that constitutes a substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person; and
2. If so, the Agency then has to assess the reasonableness of the noise or vibration against the criteria set out in the CTA.
3. Corrective measures may only be ordered if the Agency finds that the noise or vibration is not reasonable.

[21] 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 v CP, including the following:

• 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 or vibration levels;
• the impact of the noise or vibration disturbance on the persons affected; and
• mitigation methods and mitigation efforts made by the parties.

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

[23] 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 rail operation takes place.

Positions of the parties

Mr. Drake

[24] Mr. Drake states that after the grain elevators were decommissioned, maintenance crew work shifts at the Tregarva tracks began in the early morning, there was no active construction work at night, and locomotives did not idle for prolonged periods adjacent to the residence. However, Mr. Drake contends that in the years leading up to his applications, rail activities have drastically increased, especially at night. He argues that the scale, magnitude, and duration of rail maintenance activities at the Tregarva tracks have escalated in concert with the disruption they have caused him such that CPKC’s activities now constitute unreasonable substantial interference.

[25] Mr. Drake describes six periods of noise between May 29, 2021, and October 26, 2022, produced by the operation of rail maintenance equipment, crew staging and engine idling at the Tregarva tracks. He argues that these events demonstrate an escalation in rail activities. He provides detailed descriptions of each period accompanied by noise estimates based on the Simplified Estimation Procedure outlined in the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology) and a prediction model from the United States Federal Transit Administration’s Transit Noise and Vibration Impact Assessment Manual (FTA Manual).

[26] Using the Methodology, Mr. Drake characterizes the area surrounding his residence as a quiet rural area and estimates that the night-time ambient noise is approximately 35 dBA and day-time ambient noise is approximately 45 dBA.

[27] The noise periods claimed by Mr. Drake (noise periods) are described as follows:

1. From May 29 to June 12, 2021, noise from a rail maintenance work crew and equipment began at 1:30 am each night and continued into the mid-morning. He calculates that the equivalent noise level produced was approximately 56.3 to 72.5 dBA, or 21.3 to 37.5 dBA over night-time ambient noise and approximately 11.3 to 27.5 dBA over day-time ambient noise. Mr. Drake also indicates that the staging of the maintenance vehicles and crew for an hour each night beginning at 1:30 am caused the equivalent noise levels estimated to be approximately 68.4 to 71.5 dBA, or 33.4 to 36.5 dBA over night-time ambient noise.
2. Between August 13 and September 2, 2021, noise was caused by the work and staging of a maintenance crew and equipment including a shoulder ballast cleaner and impact wrenches. He indicates that noise from maintenance work or engine idling occurred during the day and night, sometimes beginning at 3:00 am. Mr. Drake calculates that the equivalent noise level produced was approximately 71 dBA, or 36 dBA over the night-time ambient noise level and approximately 26 dBA over day-time ambient noise. He also states that for all but four nights during this period, the shoulder cleaner idled, which he calculates produced an equivalent noise level of 53 dBA, or 18 dBA over night‑time ambient noise.
3. From November 20 to December 15, 2021, a locomotive pulling flatbed cars holding spent ties idled on Q43 during the night-time for 22 of 25 nights. Mr. Drake calculates it produced an equivalent noise level ranging from 46 to 54 dBA, or 11 to 19 dBA over the night-time ambient noise level.
4. From April 8 to 10, 2022, a locomotive on Q43 idled constantly day and night. Mr. Drake was told that the locomotive was malfunctioning and would be hauled away for repairs. Mr. Drake calculates that it produced an equivalent noise level of 55 dBA, or 20 dBA over the night-time ambient noise level and 10 dBA over the day-time ambient noise level.
5. From June 2 to 13, 2022, a locomotive hauling rail cars was placed on the Tregarva tracks to remove some of the spent ties stored there. He claims it idled intermittently for four days and nights which he calculates produced an equivalent noise level of 54 dBA, or 19 dBA over the night-time ambient noise level and 9 dBA over the day-time ambient noise level.

[28] From October 13 to 26, 2022, a locomotive hauling rail cars was placed on the Tregarva tracks to remove more of the spent ties. Mr. Drake claims that it idled, either constantly or intermittently, throughout this period during the day and night. He calculates it produced an equivalent noise level ranging from 53 to 55 dBA, or 18 to 20 dBA over the night-time ambient noise level and 8 to 10 dBA over the day-time ambient noise level.

[29] Mr. Drake describes the rail maintenance noise as pounding, clanging and grinding, coupled with low-frequency engine idling and intermittent revving. He describes the staging of maintenance vehicles and crew as a steady low-frequency noise from the operation of machinery as well as loud, intermittent, and impulsive high-frequency noises like walkie-talkies hissing and tonal noises from machinery, sirens and voices. Equipment idling is described by Mr. Drake as rumbling emanating from the interior walls of the residence punctuated by air pressure relief hisses.

[30] He describes the effect of the noise as highly distressing, irritating and anxiety-inducing, and argues that it was disruptive to his sleep and the enjoyment of his property.

CPKC

[31] CPKC defers to the Agency on the accuracy and correctness of Mr. Drake’s assumptions and calculations of noise levels in determining substantial interference.

[32] CPKC submits that given the periodic nature of the noise covered by Mr. Drake’s applications, substantial interference has not been established for the noise periods during which the difference between the noise experienced by Mr. Drake and the ambient noise level was 20 dBA or less.

[33] CPKC states that five of the six noise periods consist of rail maintenance activities which form part of the TRP. CPKC explains that the TRP is a periodic and necessary maintenance program performed to ensure the integrity of its network, allowing it to safely meet its common carrier obligations. The program involves the replacement of worn-out ties, and ballast or shoulder cleaning and occurs every 7 to 10 or more years, depending on the condition of the subdivision. CPKC states that the TRP’s activities are critical for safety.

[34] CPKC indicates that the scheduling of TRP work is limited by several factors including crew availability and network traffic. During the work, CPKC states that maintenance crews are given approximate times to enter and exit track subject to the program because they must clear the track to allow trains to pass, and they must accommodate occasional traffic delays. CPKC contends that, as a result, maintenance crews must be staged as close as possible to the location of the work, which in this case was near Tregarva. In addition, temperature variations in the weather dictate when work can be done. High temperatures can cause steel expansion and ballast instability and low temperatures can cause steel to contract, all of which must be avoided for TRP work. Consequently, CPKC explains that during the spring and summer, work must often be conducted at night to avoid the heat of the day.

[35] CPKC asserts that the idling of equipment is often required. Idling may occur so maintenance crews may begin work as soon as possible once the necessary personnel arrive, as well as at times when maintenance is conducted on equipment.

[36] For the period of April 8 to 10, 2022, CPKC claims that the reason the locomotive was parked at the Tregarva tracks was not that it required repairs, but that the locomotive crew was required to cease operating the locomotive because they approached the limits of work-rest rules. CPKC indicates that the engine idled to maintain cooling water temperature, lubricating oil and fuel temperature, air brake pressure, ambient temperature, and battery charge within specific parameters.

[37] CPKC disagrees with Mr. Drake’s assertion of a general escalation of rail maintenance activities at the Tregarva tracks. CPKC argues that except for the TRP, its activities have remained constant for at least the past 10 years and that Mr. Drake has experienced an overall reduction in rail activities following the closure of the grain elevators at Tregarva. According to CPKC, the TRP began in 2021 and is due to finish in the summer of 2024. CPKC states that TRP work is not expected to reoccur at this location for 7 to 10 years, if not longer.

[38] CPKC acknowledges that it could provide Mr. Drake with advance notice of the next TRP that will be staged at the Tregarva tracks if he still resides at the same residence at that time.

Analysis

Issue 1: Did the noise caused by CPKC’s operations cause substantial interference?

[39] The Agency notes that Mr. Drake provides no measurements of noise for the six noise periods which he argues amount to substantial interference. According to the Methodology, the ambient noise is the combined noise level of all sources present, excluding the additional noise events of interest which, in this case, constitute railway maintenance activities and equipment idling. The Methodology contains an estimation of baseline noise levels for various situations, like rural or urban areas. As Mr. Drake’s residence is in a rural area and is more than 500 metres from heavily travelled roads or rail lines and not subject to frequent aircraft flyovers, it is reasonable to qualify it as a quiet rural area as per the Methodology. On this basis, the Agency finds that Mr. Drake’s assumptions that the night-time ambient noise is approximately 35 dBA and the day-time ambient noise is approximately 45 dBA are reasonable.

[40] Mr. Drake argues that over the past few years, the scale, magnitude, and duration of rail maintenance activities at the Tregarva tracks have escalated, especially activities that produce disruptive night-time noise. CPKC explains that five of the six noise periods form part of the TRP. While insufficient evidence was submitted to establish an escalation of rail maintenance activities at the Tregarva tracks, the Agency recognizes that the TRP, while infrequent, represents a change in railway operations. Moreover, this change is apparent considering that the last such program took place before Mr. Drake moved into his residence in 1997, and that before the start of the TRP in 2021, the Tregarva tracks were used for rail car storage and for brief periods of equipment and crew staging.

[41] To produce noise level estimates, Mr. Drake relies upon noise prediction models and the typical noise levels produced by equipment from the FTA Manual. The Agency finds that Mr. Drake’s calculations using this model and these typical noise levels are reasonable.

[42] The duration of noise during each of the six periods described ranges from lasting all night to at least four hours during the night and, for most of the six periods, from all day to at least several hours during the day. The noise is often constant but sometimes intermittent in nature over many hours.

[43] The six noise periods, based on Mr. Drake’s assumptions under the Methodology as to noise levels, include night-time equivalent noise levels ranging from 46 to 72.5 dBA at his residence and day-time equivalent noise levels ranging from 53 to 72.5 dBA. This results in increases over the ambient noise level ranging from 11 to 37.5 dBA at night and of 8 to 27.5 dBA during the day.

[44] CPKC does not contest the accuracy of Mr. Drake’s noise level calculations. However, it submits that, given the periodic nature of the noise, where the estimated noise level is 20 dBA or less above ambient, substantial interference cannot be made out.

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

[46] Mr. Drake describes the effect of the noise during the six noise periods as highly distressing and disruptive to his sleep and the enjoyment of his property.

[47] The Agency notes that the periodic or temporary nature of a noise or vibration does not prevent that noise or vibration from causing substantial interference. Whether noise or vibration constitutes substantial interference is assessed based on the factors outlined above derived from Normandeau v CP and the Guidelines.

[48] While there is no evidence that Mr. Drake is currently experiencing substantial interference, in light of the above, the Agency finds that, on a balance of probabilities, the noise from CPKC’s railway maintenance activities and equipment idling caused substantial interference at Mr. Drake’s residence during all six noise periods covered by his applications.

Issue 2: Did CPKC meet 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?

[49] Having determined that CPKC’s maintenance activities caused substantial interference at Mr. Drake’s residence during the six noise periods, the Agency must now determine whether the noise was reasonable in light of the criteria set out in the CTA.

[50] 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, and it must carry traffic that is offered without delay.

[51] The Agency acknowledges the necessity of the TRP for both the maintenance of track infrastructure and for the provision of safe and reliable service to CPKC’s customers in accordance with its common carrier obligations. Failure to perform regular track maintenance activities, including the TRP’s tie replacement and shoulder cleaning, threatens safe railway operations by increasing track instability and the risk of a derailment. This, in turn, would likely have a negative impact on network fluidity, thus also decreasing the efficiency of CPKC’s network.

[52] CPKC’s common carrier obligations limit its scheduling flexibility. To enable the continued operation of the Lanigan Subdivision during the TRP, work must be scheduled around the passage of trains, the availability of maintenance crews and the proximity of staging areas to work locations. As the Tregarva tracks were the closest staging area for recent TRP work, they were used for that purpose and hosted night-time work as required. Due to the physical properties of steel and ballast, tie replacement and ballast cleaning must take place in specific temperature ranges, at times necessitating night-time work. In addition, while much of Mr. Drake’s complaint relates to equipment idling noise, idling may be required to ensure that maintenance crews are prepared to enter the mainline and to start work on short notice. Some equipment maintenance may also require equipment idling.

[53] In addition, as a necessary but time-limited program lasting from 2021 to the summer of 2024, the TRP will not be repeated for at least another seven years.

[54] In light of these requirements and constraints, the Agency finds that the noise produced by CPKC’s operations during the five noise periods caused by the TRP was reasonable.

[55] The noise experienced during the period lasting from April 8 to 10, 2022, during which a continuously idling locomotive was stationed on Q43, was not produced by activities relating to the TRP. Regardless of why the locomotive was stationed on the Tregarva tracks, the Agency acknowledges that, depending on the temperature, locomotives may idle to maintain normal operations. Considering CPKC’s infrequent use of the Tregarva tracks for this purpose, and that the event in question has concluded, the Agency finds that the noise produced by this locomotive at the Tregarva tracks between April 8 and 10, 2022, was reasonable.

Conclusion

[56] The Agency finds that, while the noise caused by CPKC’s operations constituted substantial interference with Mr. Drake’s enjoyment of his property, the noise produced was reasonable given the necessity of the TRP and its importance to safe railway operations, as it relates to CPKC’s level of service obligations and operational requirements.

[57] The Agency also finds that while the noise caused by an idling locomotive unrelated to the TRP constituted substantial interference, given the infrequent nature of such events, the noise produced was reasonable.

[58] The Agency, therefore, dismisses the applications.

[59] The Agency notes that Mr. Drake seeks advance notice of future work at the Tregarva tracks to prepare for the associated disturbance and that CPKC has indicated that providing Mr. Drake with advance notice of the next TRP would not unduly interfere with CPKC’s operations. Consequently, the Agency encourages CPKC to provide this notice.

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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(1); 114(1)
Railway Safety Act, RSC 1985, c 32 (4th Supp)	26.1
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104	4; 5; 27; 39