Decision No. 248-R-2010

June 11, 2010

COMPLAINT by Brian Bickley against the Canadian Pacific Railway Company.

File No. R8030/W6

Introduction and issue

Complaint

[1] Brian Bickley filed a complaint with the Canadian Transportation Agency (Agency) pursuant to section 95.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding the noise and vibration caused by the Canadian Pacific Railway Company (CP) operations at the Woodstock Yard (Yard) on the St. Thomas Subdivision, which lies between mileage 0.0 in Woodstock, Ontario and mileage 33.6 in St. Thomas, Ontario (St. Thomas Subdivision).

Jurisdiction

[2] Pleadings were exchanged between CP and Mr. Bickley regarding the merits of the complaint. Subsequently, by letter dated December 23, 2009, CP notified the Agency that as of December 14, 2009, it had transferred its operating interest in the St. Thomas Subdivision, by way of a lease transaction, to the Ontario Southland Railway (OSR), a provincial shortline railway company. CP requested that the complaint filed by Mr. Bickley be dismissed as CP has transferred its operating interest to OSR pursuant to subsection 141(3) of the CTA.

Issue

[3] Does the Agency have jurisdiction to determine this complaint considering CP's transfer, by lease transaction, of its operating interest in the St. Thomas Subdivision to OSR?

Preliminary matters

Representational authority

[4] Mr. Bickley filed the complaint on behalf of an undefined group of residents. As any decision by the Agency is binding upon the parties, Mr. Bickley was requested, in Decision No. LET-R-1-2009 dated January 8, 2009, to submit information about the residents' group. A list containing the names, contact information and signatures of ten homeowners was filed with the Agency on January 22, 2009 (List). Mr. Bickley has not provided any evidence of the existence of a community association or any other legal entity for which he is authorized to make representations beyond the ten homeowners. Accordingly, the Agency does not accept that Mr. Bickley has representative authority for an unlimited number of unnamed residents within the vicinity of CP's operations.

[5] The Agency finds, therefore, that the complainants in this case constitute Mr. Bickley and the residents set out in the List (Complainants), and Mr. Bickley is given standing as the Complainants' representative.

Claim for confidentiality

[6] As requested by the Agency in Decision No. LET-R-4-2010 dated January 13, 2010, CP, by letter dated January 26, 2010, provided the following information related to the transfer of its operating interest in the St. Thomas Subdivision to OSR: Lease Agreement, Master Agreement, Haulage and Traffic Agreement, later referred to as Amended and Restated Master Agreement, Amended and Restated Lease Agreement and Amended and Restated Haulage and Traffic Agreement (Documents), as well as a schematic of tracks in the Yard showing control of the various tracks by the railway companies. CP indicates that it is not operating on the St. Thomas Subdivision. CP also states that the Yard is no longer a CP switching yard, but an exchange location connecting CP's Galt Subdivision with the St. Thomas Subdivision leased to OSR. CP adds that it no longer has to stage trains in the Yard or conduct operations behind residential homes on the St. Thomas Subdivision.

[7] On January 27, 2010, CP claimed confidentiality, pursuant to subsection 23(4) of the Canadian Transportation Agency General Rules, SOR/2005-35, with respect to the Documents. OSR, which is a direct party to the Documents, filed a letter dated January 22, 2010 wherein it confirms that it is the sole operator on the St. Thomas Subdivision. OSR submits that the Documents should not be made accessible to Mr. Bickley.

[8] In its Decision No. LET-R-82-2010 dated May 12, 2010, the Agency determined that the Documents were relevant to this proceeding to the extent that they relate to the transfer of the St. Thomas Subdivision to a provincial shortline railway company. The Agency also determined that CP's claim for confidentiality was justified, save and except for pages one and six from the redacted version of the Amended and Restated Lease Agreement, which were provided to Mr. Bickley.

CP continued operations

[9] Mr. Bickley also raised with the Agency a concern that CP still has a presence in the Yard, namely locomotives in the holding area of the Yard. CP confirmed that two engines are stored at the locomotive track in the Yard. However, CP asserts that both are only used for switching operations at a customer plant east of another siding outside the Yard, and that neither engine is required to perform any other work or switching at the Yard. In addition, CP submits that, pursuant to environmental requirements, engines can only be stored and fuelled at designated tracks with spill containment facilities to avoid fuel spills and contamination, and CP adds that it does not have another closer designated locomotive track to store the engines.

Analysis and findings

[10] The amendments made to the CTA in 2007 included the addition of provisions relating to noise and vibration caused by railway companies when constructing and operating railways. Specifically, section 95.1 imposes an obligation on railway companies to only cause such noise as is reasonable in the circumstances, and section 95.3 provides the Agency with a complaint adjudication function.

[11] Based on a review and an analysis of the Documents, as well as CP's and OSR's representations, the Agency is satisfied that a lease has been entered into between CP and OSR, a provincial shortline railway company, with respect to railway operations on the St. Thomas Subdivision.

[12] Sections 95.1 and 95.3 of the CTA apply to railways as set out in section 87 of the CTA. The latter section states that "railway" means a railway within the legislative authority of Parliament.

[13] The Agency finds that the leasing of the St. Thomas Subdivision by CP to OSR removes the St. Thomas Subdivision from the definition of a railway under section 87 of the CTA and, therefore, the operations of OSR on the St. Thomas Subdivision are not subject to the jurisdiction of the Agency.

[14] In addition, the Agency finds that the incidental use of the Yard by CP for the limited purpose of storing two locomotives not used for any work or switching in the Yard is not, in and of itself, sufficient in this case to create jurisdiction for the Agency over the St. Thomas Subdivision.

[15] Accordingly, for such time as the lease between CP and OSR remains in full force and effect, the Agency has no mandate to proceed with Mr. Bickley's complaint.

Conclusion

[16] In light of the above, the Agency cannot proceed with the consideration of the complaint.

Members

• John Scott
• Geoffrey C. Hare