Order No. 1991-R-466

August 29, 1991

August 29, 1991

IN THE MATTER OF an application by Carrel and Partners, on behalf of Mr. William Szwed (hereinafter the applicant), pursuant to section 215 of the Railway Act, R.S.C., 1985, c. R-3 for a farm crossing at grade across the right-of-way and track of Canadian Pacific Limited (hereinafter the railway company), at mileage 10.60 Kaministiquia Subdivision, in the Township of Paipoonge, in the Province of Ontario, as shown on Plan dated February 17, 1961 (hereinafter the Plan), on file with the National Transportation Agency (hereinafter the Agency).

File No. R 8050/102-010.60

WHEREAS the applicant has applied for an order pursuant to section 215 of the Railway Act for the construction of a farm crossing at the above-mentioned location;

AND WHEREAS the applicant has offered to pay the costs of construction and future maintenance of a farm crossing at the above-mentioned location;

AND WHEREAS the applicant is not entitled to a farm crossing by right under section 215 of the Railway Act because the railway bisected the subject lands prior to 1888 and no landowner may benefit from the rights granted pursuant to section 215 of the Railway Act where lands were crossed by railway prior to 1888;

AND WHEREAS the Agency may grant substitutional relief in lieu of that which has been applied for, pursuant to subsection 39(1) of the National Transportation Act, 1987;

AND WHEREAS the Agency may grant a discretionary farm crossing pursuant to section 216 of the Railway Act whenever the Agency deems it necessary for the proper enjoyment of the landowner's land;

AND WHEREAS the Agency has determined that the grant of a farm crossing is necessary for the proper enjoyment of the subject lands.

NOW THEREFORE, IT IS ORDERED THAT:

  1. The applicant and the railway company are authorized to carry out the work as shown on the Plan which shall be consistent with any requirements imposed by or under the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.).
  2. The cost of constructing and maintaining the farm crossing and the approaches to the crossing shall be paid by the applicant.
  3. The railway company shall prepare all accounts using rates not in excess of those stipulated in Schedule "A" entitled Directives, attached to Agency Order No. 1991-R-56 dated February 4, 1991, or its replacement, for all construction and maintenance work carried out by the railway company under this Order.
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