Order No. 1989-R-296
September 26, 1989
IN THE MATTER OF the application of Interprovincial Pipe Line Company (hereinafter the applicant) for authority to
a) construct a farm crossing at grade, pursuant to section 216 of the Railway Act, R.S.C. 1985, c. R-3 (hereinafter the Railway Act), across the right-of-way and track of the Canadian National Railway Company (hereinafter the railway company), in the northwest quarter and northeast quarter Section 32, Township 19, Range 19, west of the Second Meridian, at mileage 91.4 of the Qu'Appelle Subdivision, in the City of Regina, in the Province of Saskatchewan;
b) construct nine pipeline crossings, pursuant to paragraph 212(1)(b) of the Railway Act, under the right-of-way and track of the railway company, in the northwest quarter and northeast quarter Section 32, Township 19, Range 19, west of the Second Meridian, between mileages 91.4 and 91.6 of the Qu'Appelle Subdivision, in the City of Regina, in the Province of Saskatchewan;
as shown on Plan View Drawing No. E-12-19-50, revised June 1, 1989, and Drawing Nos.:
B-5.82-15011-0-50, dated
April 28, 1989,
B-5.82-8199-2-50, revised
August 31, 1988,
B-5.82-7943-4-50, revised
May 1, 1989
(hereinafter the Plans), on file with the Agency.
File Nos. RI-18
48867.7.117
UPON reading the submissions filed,
IT IS ORDERED THAT:
- The applicant is authorized to construct and maintain, at its own expense, the farm crossing and the underground pipeline crossings, as shown on the Plans.
- The farm crossing shall be constructed in compliance with the requirements of the Agency respecting farm crossings.
- The pipeline crossings shall be constructed in compliance with the requirements of the Agency prescribed by the Pipe Crossings Under Railways (No. E-10) Regulations, C.R.C. 1978, c. 1187.
- The railway company shall cooperate with the applicant in effecting the crossings.
REASONS FOR ORDER NO. 1989-R-296 File No. 48867.7.117
September 26, 1989
This dispute arose as a result of a request made by Interprovincial Pipe Line Company (hereinafter Interprovincial) to the Canadian National Railway Company (hereinafter CN) for permission to cross the line of CN's Qu'Appelle Subdivision in Regina with an at-grade private crossing and nine underground pipelines. The purpose of Interprovincial in making this request was to provide road and pipeline access, within its own terminal at Regina, between its operational facilities and its tank farm. The tanks situated within Interprovincial's terminal provide storage for hydrocarbon products, which are a dangerous commodity.
CN offered to provide access to Interprovincial under the terms of a Licence for Temporary Crossing for a road crossing and a pipe crossing agreement for the underground pipeline crossings. The grant of private rights of access by CN is a common practice amongst railway companies subject to the jurisdiction of Parliament and is permitted under the power contained in subsection 158(2) of the Railway Act, R.S.C. 1985, c. R-3 (hereinafter the Railway Act).
The agreement prepared by CN and forwarded to Interprovincial contained a number of provisions which the latter found objectionable. In particular, Interprovincial objected to the requirement that it should indemnify CN for any loss suffered by anyone as a result of actionable negligence at the private crossings, whether the negligence was that of Interprovincial and its agents and servants or CN and its agents and servants. Interprovincial was prepared to bear the consequences of its own negligence but was not prepared to accept responsibility for the negligence of CN or its employees and agents. In addition, Interprovincial objects to the payment of annual or administrative fees under either agreement. Finally, there were a number of other minor objections to the proposed agreements.
Consequently, Interprovincial has applied to the National Transportation Agency (hereinafter the Agency) pursuant to section 216 of theRailway Act for a road access and pursuant to paragraph 212(1)(b) of theRailway Act for authority to cross the railway line by means of underground pipelines.
CN contested the application, particularly in reference to the jurisdiction of the Agency to authorize a road access pursuant to section 216 of theRailway Act and suggested that automatic protection should be installed if the crossing was permitted.
A site inspection was conducted by officers of the Agency in the company of officers of both parties.
Analysis
1) Safety
Considerations of safety, including the issue of automatic protection at any surface crossing are the responsibility of Transport Canada pursuant to theRailway Safety Act, S.C. 1988, c. 40 and have not been addressed in these Reasons for Order.
2) Surface Access
The objection of CN to the jurisdiction of the Agency requires an analysis of section 216 of the Railway Act. That section states:
"216(1) The Commission may, on the application of any landowner, order the company to provide and construct a suitable farm crossing across the railway, wherever the Commission deems it necessary for the proper enjoyment of the landowner's land.
(2) The Commission may order and direct how, when, where, by whom and on what terms and conditions the farm crossing shall be constructed and maintained.
(3) The Commission shall ensure that any order or direction made under subsection (2) is consistent with any requirements imposed by or under the Railway Safety Act.".
The term farm crossing is not defined in the Railway Act. However, in the case of Toronto, Hamilton & Buffalo R.W. Co. v. Simpson Brick Co. (1909), 8, C.R.C. 464 at 470 (S.C. Ont.), Justice Anglin stated:
"Farm crossings" appears to be a term used in the statute in contradistinction to "highway crossings", and intended to cover all private rights of crossing to be enjoyed by "persons across whose lands the railway is carried", whatever may be the character of such lands or the use to which they are put.".
The practice of the predecessors of the Agency has been to grant farm crossings where a private right of access across a railway line is mandated by the circumstances. Commonly, this occurs in situations involving an agricultural use but other circumstances have been considered to be within the scope of this section of theRailway Act. Accordingly, the Agency has concluded that it has jurisdiction to grant a farm crossing in this case pursuant to section 216 of the Railway Act. Furthermore, on the facts of this case, the Agency has concluded that a crossing pursuant to section 216 is required for the proper enjoyment of the landowner's land.
Parliament has enjoined the Agency in subsection 216(3) to ensure that the exercise of its discretion is consistent with the requirements of the Railway Safety Act. Accordingly, notice of this application was given to Transport Canada, which did not express any objection to the application submitted by Interprovincial.
3) Pipeline Crossings
The normal practice in the case of underground pipeline crossings is for an applicant and a railway company to agree upon the terms and conditions for the crossing after which it is merely necessary to adhere to the general regulations, plans or specifications adopted or approved by the Agency. Where, however, agreement between the parties proves elusive, provision has been made for an application to be filed with the Agency which may grant a right to cross subject to terms and conditions. In this instance, there has been no express objection by the railway company to the jurisdiction of the Agency. The facts of this matter have led the Agency to conclude that the pipelines proposed by Interprovincial are necessary for the conduct of its business and will not unduly inconvenience the railway company. Accordingly, the Agency has concluded that the application ought to be granted.
Parliament has enjoined the Agency in section 214.1 of theRailway Act to ensure that the exercise of its discretion is consistent with the requirements of the Railway Safety Act. Accordingly, notice of this application was given to Transport Canada which did not express any objections to the application submitted by Interprovincial.
4) Compensation and Liability
In situations where a private crossing agreement is entered into by a landowner and a railway company, provision is often made for the payment by the licensee of compensation to the railway company in the form of annual or administrative fees. However, if the right to cross is established by the exercise of a statutory discretion, the policy of the Agency and its predecessors has been not to provide for compensation where a mere easement is created without any real or appreciable injury or damage to the railway company or its property; Montreal Light, Heat and Power Co. v. Grand Trunk Ry. Co. (1914), 17, C.R.C. 330; Maritime Telegraph and Telephone Company v. Dominion Atlantic Ry. Co. and Baird v. Canadian Pacific Ry. Co. (1916), 20, C.R.C. 213; A. Demers, Laprairie v. Grand Trunk Railway Co. (1920), 31, C.R.C. 297.
In the Maritime Telegraph and Telephone Co. case, Commissioner McLean stated, in regards to statutory pipeline crossings:
"At best an easement is obtained, and the Board has refused to order any charge by way of compensation where a merely technical violation of property rights is involved.".
In the same case, Chief Commissioner Sir Henry L. Drayton stated:
"The practice of the Board has been to allow such crossings without compensation. ... In the case of any real or appreciable injury or damage to the railway or its property, the ordinary rule requiring compensation would of course apply.".
In the A. Demers case, the Deputy Chief Commissioner expanded the application of this policy by the following statement at page 299:
"It is true that the Railway Companies are the owners of their right-of-way; but if they have certain rights as proprietors, there are also certain duties incumbent upon them as such. For instance, they are bound to suffer all easements arising from the nature of things and the laying of the land such as arise from drainage, new road crossings, pipes for water or sewage, electrical installations, etc.".
Applying those principles to the facts of this case, the Agency has determined that compensation to the railway company is not warranted, there being no real or appreciable damage to the lands of the railway company in this instance.
Insofar as provision for liability is concerned, we subscribe to the view that liability for negligent acts which may possibly occur at the crossings in the future ought to be determined by the common law (or civil code in Quebec). We do not agree that a person for whose benefit a statutory right of crossing is established ought to be made responsible for the railway company's own negligence. In the case of the pipeline crossings, Interprovincial must comply with the Pipe Crossings Under Railways (No. E-10) Regulations, C.R.C. 1978, c. 1187, as amended. Those regulations do require in section 23 that the pipeline company indemnify the railway company against any loss or damage resulting from the negligence of the pipeline company, or its employees and agents. That provision is compatible with the earlier view we expressed concerning the assumption of liability for negligence by the party which is responsible.
The application of Interprovincial has been granted by the Agency for the reasons expressed herein.
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