Order No. 2003-R-462

August 29, 2003

August 29, 2003

IN THE MATTER OF an application by Brendan and Maxine Rice for a private crossing at mileage 44.35 of the Canadian National Railway Company's Sangudo Subdivision, in the town of Glenevis, in the province of Alberta.

File No. R8050/649-044.35


On July 17, 2003, Brendan and Maxine Rice (hereinafter the applicants) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. The applicants state that the crossing is the only access they have to their property.

The Canadian National Railway Company (hereinafter the railway company) has informed the applicants that it has no further use for the crossing at that location and that it will remove the crossing and approaches on August 30, 2003.

The parties have been unable to reach an agreement with respect to the disposition of the crossing.

Pursuant to section 102 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), if an owner's land is divided as a result of the construction of a railway line, the railway company shall, at the owner's request, construct a suitable crossing for the owner's enjoyment of the land.

Furthermore, pursuant to subsection 103(1) of the CTA, 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.

Pursuant to subsection 28(2) of the CTA, the Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application.

The Agency has received the submissions filed by the parties but has not yet fully deliberated this matter and may require additional information. The Agency notes, however, that the railway company intends to remove the crossing on August 30, 2003. The Agency finds that the closure of the crossing at that time would prevent suitable access to the applicants' property and, therefore, pending final determination of this matter, the crossing is, at a minimum and for the time being, necessary for the applicants' enjoyment of their land.

Accordingly, the Agency, pursuant to subsection 28(2) of the CTA, hereby orders the railway company to maintain the subject crossing and approaches until further order of the Agency.

The cost, if any, of maintaining the said crossing as of the date of this interim order will be assessed in the Agency's final determination.

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