Decision No. 18-R-2001

January 12, 2001

File No. R 8050/639-058.84

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APPLICATION

On April 13, 2000, Réal Fafard and Jacques Borduas (hereinafter the applicants) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until January 12, 2001.

BACKGROUND

The applicants, who operate a private farm recycling and composting business, wish to obtain access across the right of way of the Canadian National Railway Company (hereinafter CN). Mr. Fafard owns the undivided two-thirds of lot 451, and Mr. Borduas owns one undivided third of lot 451. Ferme R. & B. Fafard Inc., owned by the applicants, owns lots 14, 407, 408, 411 and 450, and leases lots 451, 452 and 453 on the cadastre of the parish of St-Bruno and St-Joseph de Chambly. Lots 407, 408 and 411 lie along the north side of the CN track, and lots 14, 450, 451, 452 and 453 are on the south side of the same track.

The applicants formerly used a level crossing at mileage 58.84 of the St-Hyacinthe Subdivision, which is located at the north lot line of the applicants' property and at the lot line of lots 451 and 449. The crossing served as an access road to Route 116, a public highway running along the north side of the railway. The applicants have been operating a farm recycling and composting business on lot 14 since 1996. Raw material is trucked to the composting site by semi-trailer, representing 10 round trips per day.

CN's St-Hyacinthe Subdivision is part of CN's main line between Montréal and Halifax, and handles approximately 30 freight trains a day. The track also carries about 11 VIA Rail Canada Inc. passenger trains daily. The Agence métropolitaine de transport also operates a commuter train service on this railway line. At mileage 58.84, the track is doubled and the average speed is 60 miles per hour for freight trains and 95 miles per hour for passenger trains.

Route 116 runs east-west through the town of Saint-Basile-le-Grand. The railway tracks are on the south side of, and parallel to, Route 116. Property owners on the south side of the railway must cross the two tracks to get to Route 116.

In addition to the crossing at mileage 58.84, there is another crossing at mileage 58.75 of the St. Hyacinthe Subdivision. Since 1986, traffic at mileage 58.75 has been governed by an agreement between CN and the Ville de Saint-Basile-le-Grand (hereinafter Saint-Basile). Saint-Basile agreed to allow the level crossing to be used only by persons travelling to and from the municipal garage located nearby.

In October 1988, CN reached an agreement with the Ministère de l'Environnement of the Province of Quebec (hereinafter Environnement Québec) regarding the use of the level crossing at mileage 58.84. The level crossing was to be used for decontamination operations at a nearby PCB site, and only the employees and agents of Environnement Québec were authorized to use it. The agreement, which allowed restricted access to the level crossing, provided that Environnement Québec, at its own expense, would erect crossing gates and post a CN signalman 24-hours-a-day for the duration of the agreement. The agreement expired in February 2000 when Environnement Québec completed the decontamination. There is no agreement between CN and the applicants regarding the use of the level crossing at mileage 58.84.

On July 9 and December 13, 1999, Transport Canada advised CN that a considerable number of trucks were using the level crossings at mileages 58.75 and 57.47 of the St-Hyacinthe Subdivision. Due to safety concerns, Transport Canada asked CN to limit vehicular access at these points. CN subsequently advised all parties with which it had railway right of way crossing agreements of its intention to terminate the agreements. CN wanted to address the safety concerns by reinstating the use of locomotive whistling when approaching level crossings. When residents of the town complained and asked CN to stop the whistling, CN placed concrete blocks to bar access to the crossing at mileage 58.75. The public crossing on Rang des Trente at mileage 57.47 was not closed. However, there are restrictions on the use of trucks at this crossing.

In February 2000, CN placed concrete blocks at the crossing at mileage 58.84, effectively barring access to Route 116. In subsequent correspondence, Transport Canada informed CN that the action taken to prevent access to the level crossings was inappropriate, as people had moved the concrete blocks to cross the tracks.

Another crossing exists at mileage 59.40 of the St. Hyacinthe Subdivision. This crossing provides access from the applicants' facility to Route 116 via Robert Street. Trucks to and from the applicants' land are temporarily using this crossing, but this use results in trucks utilizing city streets.

On October 6, 2000, the parties to the dispute and representatives of Transport Canada, the Agency and Saint-Basile convened at the site to familiarize themselves with it and gather additional information.

ISSUE

The issue is whether, or not, under subsection 103(1), a suitable crossing is necessary for the applicants' enjoyment of their property, and if so, to order the railway company to construct it.

POSITIONS OF THE PARTIES

Applicants

The applicants argue that the level crossing formerly used at mileage 58.84 contributed to the enjoyment they derive from lot 451 by serving as an indispensable link between the composting site on lot 14 and Route 116. Moreover, they submit that their composting business is dependent upon this crossing to survive.

The applicants argue that they have used the level crossing at mileage 58.84 since 1986, and that the crossing was there long before the agreement of October 11, 1988 between CN and Environnement Québec. Later, they laid their own gravel road on lot 451 to provide access to the crossing. When the CN/Environnement Québec agreement expired and the crossing gates were removed, the applicants started using it again. In February 2000, CN closed the crossing without the applicants' consent.

The applicants maintain that they must abide by their 1997 agreement with Saint-Basile. One provision of that agreement requires them to ensure that their trucks use the level crossing at mileage 58.84 of the St-Hyacinthe Subdivision. The agreement also provides for an alternate route to be used by the trucks to travel to the site while the level crossing is closed.

The applicants are of the opinion that they are being denied access to the crossing at mileage 58.84. The applicants are prepared to bear part of the cost of upgrading the signals at mileage 58.84 and installing automatic crossing gates on either side of CN's right of way which would be controlled only by the applicants' employees and the five authorized composting contractors. The applicants expect that the volume of raw material haulage will be unchanged for the next five years.

The applicants acknowledge that the Ministère des Transports of the Province of Quebec (hereinafter Transports Québec) and Saint-Basile are carrying out road maintenance on Route 116, but state that this work will not hinder farmers from getting to and from their fields. They indicate that they received this information from Transports Québec, which held information sessions for that purpose.

The applicants expressed the view that Saint-Basile will benefit indirectly from the level crossing because the applicants' trucks will stop using the town's streets.

The applicants consider that the apportionment of the cost of the work is conditional upon the Agency's approval of the level crossing at mileage 58.84. The applicants are not asking Saint-Basile to contribute, except in a case where section 16 of the Railway Safety Act, R.S.C, 1985, c. 32 (4th Supp.) (hereinafter the RSA) would apply.

The applicants argue that an adequate level of safety can be provided at the crossing by use of locomotive whistling alone, and that the cost of any system of flashing lights, crossing gates or alarm must be borne in whole or in part by Saint-Basile or CN or both.

In response to a letter from Transport Canada to CN dated July 9, 1999 indicating that trucks were using the level crossings at mileages 58.75 and 57.47, the applicants state that those crossings are not germane to this application.

In reply to claims by CN, the applicants argue that they provide snow-removal service only for individuals, and occasionally snow is picked up and carried to the dump site. According to the applicants, this activity does not require access to the level crossing at mileage 58.84. The applicants state that the number of snow trucks may amount to 50 a year.

CN

CN submits that the crossing is not necessary to the enjoyment of the applicants' property because the composting site is served by a public road, namely Rang des Trente.

CN adds that the applicants are not entitled to a right of way because the composting site does not directly adjoin the CN track. CN submits that the applicants want direct access to Route 116 to reduce the distance their trucks are required to travel in the built-up area.

CN argues that the level crossing at mileage 58.84 was constructed and maintained in accordance with the agreement between Environnement Québec and CN and that agreement is in no way binding on the applicants. According to CN, the applicants used the level crossing in contravention of the Environnement Québec/CN agreement.

CN submits that in addition to their farm and composting business, the applicants also operate a snow-removal and snow dump business for Saint-Basile.

CN states it was not consulted when Saint-Basile and the applicants entered into the 1997 agreement. According to CN, the agreement makes no reference to the use of a level crossing. If the applicants arrived at the conclusion that it was necessary to use the level crossing at mileage 58.84, their conclusion has no basis in law. The main purpose of the agreement was to ensure that the applicants' trucks would not use the town's streets. CN maintains that Transports Québec is reconstructing and closing some median crossover lanes on Route 116 which might have an impact, as the location of the crossings and their cost depend on the configuration of the road.

CN submits that it is premature at this point to provide a cost estimate for a protection system at the crossing at mileage 58.84.

CN argues that, contrary to the applicants' claim, section 103 of the CTA does not provide for a right of reference to section 16 of the RSA. Therefore, it is not necessary to refer to section 16 of the RSA, as section 103 of the CTA expressly states that all construction and maintenance costs related to the crossing will be at the property owner's expense.

Saint-Basile

Saint-Basile does not agree that it should bear a portion of the costs associated with the application. Saint-Basile is of the view that the level crossing at mileage 58.84 will serve only the interests of the applicants, and that consequently, the applicants or CN or both must bear the costs.

Saint-Basile also indicates that it does not concur with respect to the benefits it is said to derive from a level crossing at mileage 58.84. Saint-Basile submits that neither it nor its residents will benefit in any way from the level crossing.

Saint-Basile argues that the applicants could use the public level crossing at mileage 57.47, and in that event, Transport Canada and CN should determine what safety measures are required.

ANALYSIS AND FINDINGS

Applicability of section 16 of the RSA

The applicants cite subsection 103(1) of the CTA and request the Agency to order CN to build a suitable level crossing to allow them to enjoy their property adjoining the railway.

The applicants further cite section 16 of the RSA to apportion the cost of a protection system consisting of signals, crossing gates and alarms.

Subsection 101(4) of the CTA reads as follows:

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 103 of the CTA reads as follows:

1. If a railway company and an owner of land adjoining the company's railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the company to construct a suitable crossing if the Agency considers it necessary for the owner's enjoyment of the land.
2. The Agency may include in its order terms and conditions governing the construction and maintenance of the crossing.
3. The owner of the land shall pay the costs of constructing and maintaining the crossing.

The reference to section 16 of the RSA applies to the road crossing defined as being the crossing of a railway by a public road or other road. The application before the Agency was filed pursuant to section 103 to request an order requiring the construction of a private crossing. Subsection 101(5) of the CTA provides that section 101 does not apply where section 103 of the CTA applies. The applicants cited section 103 of the CTA in their application, and therefore, they cannot also avail themselves of the provisions of section 16 of the RSA.

Analysis under section 103 of the CTA

The Agency is of the opinion that the applicants are owners of land, a portion of which adjoins the subject railway line. Based on the evidence on file in this matter, the Agency finds that a crossing is necessary for the applicants to enjoy truck access to Route 116 from their lands. However, the Agency notes that there are several crossings in the area in close proximity, some of which are public, and some of which are equipped with automatic protection systems. At present, trucks travelling to or from the applicants' land are utilizing some of these crossings.

The level crossing at mileage 58.84 of the St-Hyacinthe Subdivision provided access to the applicants' farm properties and to a warehouse containing used oil drums contaminated with PCBs. The warehouse caught fire in 1987, and Environnement Québec subsequently initiated an operation to decontaminate the site. To facilitate the operation, Environnement Québec entered into a private level crossing agreement with CN in 1988.

Before 1988, the level crossing at mileage 58.84 was used for farming purposes and was uncontrolled. There are no dwellings on the property at issue. The Agency notes that, according to CN, the crossing is private, although it was unable to find any agreements with the applicants relating to the crossing.

Since 1988, access to the crossing has been controlled and governed by an agreement between Environnement Québec and CN. Use of the crossing was limited to the permit holder, namely Environnement Québec, and to its employees and agents, and to the contractor and its employees and subcontractors under contract to the permit holder for decontamination, cleaning and restoration of the warehouse and surrounding area. Trucks using the crossing were controlled by a railway signalman and the crossing was also protected by manually operated crossing gates on either side of the tracks. The agreement has since expired and the crossing gates have been removed.

The Agency also notes that there is another level crossing at mileage 58.75, approximately 475 feet east of the crossing at mileage 58.84. This crossing is covered by an agreement between Saint-Basile and CN which provides access to the applicant's property, and is not fenced off.

It is noted that the trucks going to the applicants' composting site are temporarily using the level crossing at mileage 59.40 from Robert Street to gain access to Route 116. The Agency also notes that the trucks could use Rang des Trente, for which Saint-Basile has responsibility, as well as the public level crossing at mileage 57.47 to gain access to Route 116. However, Rang des Trente was not designed to carry heavy traffic and trucks are not permitted to use the level crossing on Rang des Trente.

The Agency notes that the applicants entered into an agreement with Saint-Basile which provided that all trucks transporting organic waste to its composting site must use the direct access road to Route 116 as soon as it is available after Environnement Québec finishes its PCB clean-up operation. The agreement makes no reference to an authorization to be granted by CN in order to allow the trucks to cross the tracks.

At present, there are two crossings that enable traffic to access the subject property to or from Route 116, one at mileage 57.47 of the St-Hyacinthe Subdivision and the other at mileage 59.40. However, trucks travelling to or from the applicants' facility are unable to use the crossing at mileage 57.47 as Saint-Basile prohibits trucks from using the crossing. The crossing at mileage 59.40, that is, the crossing at Robert Street, presently provides truck access between Route 116 and the applicants' land; indeed, trucks are currently utilizing this crossing. As long as this access is available to the applicants, the Agency will not order the construction of an additional crossing.

However, at such time as trucks travelling to or from the applicants' land are denied access to the crossing at Robert Street or Robert Street itself in order to access Route 116 and cannot use the crossing at mileage 57.47 (Rang des Trente), the Agency finds that CN should be required to construct, at the applicants' request, a suitable level crossing at mileage 58.84 of the St-Hyacinthe Subdivision. The said crossing should be protected by a crossing warning system as determined by Transport Canada.

CONCLUSION

In light of the foregoing, in the event that truck traffic is unable to access the applicants' land via Robert Street or Rang des Trente, the Agency, pursuant to paragraph 28(1)(b) and section 103 of the CTA, hereby orders CN to construct, at the applicants' request, a suitable level crossing at mileage 58.84 of the St-Hyacinthe Subdivision.

The crossing shall include a protection system that complies with the requirements of the RSA.

CN shall provide, at the applicants' request, an estimate of the cost of constructing the level crossing and protection system and, pursuant to subsection 103(3) of the CTA, the full cost of constructing and maintaining the level crossing and protection system shall be borne by the applicants.