Decision No. 28-R-2019

May 21, 2019

APPLICATION by the Greater Vancouver Water District (GVWD) against the British Columbia Railway Company (BCRC), pursuant to subsection 101(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

Case number: 
18-01891

SUMMARY

[1] On April 9, 2018, GVWD filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 101(3) of the CTA for authorization to construct and maintain a utility crossing, specifically a watermain, at mileage 18.03 of the BCRC Port Subdivision (crossing location) in the City of Delta.

[2] BCRC consents to the crossing location as well as the design and method of construction for the watermain, subject to Transport Canada’s (TC) comments; however, the parties have been unsuccessful in negotiating terms and conditions for an agreement to construct the watermain at the crossing location.

[3] On March 22, 2019, the parties were advised that the work was authorized, with reasons to follow. This decision outlines those reasons.

BACKGROUND

[4] GVWD supplies potable water to the City of Delta, Tsawwassen First Nation and Point Roberts, Washington State, through two watermains: South Delta Main No. 1 and South Delta Main No. 2. The South Delta Main No. 1 currently crosses the railway lands at mileage 18 of the Port Subdivision and continues to South Delta, Tsawwassen Lands and across the American border to Point Roberts. GVWD is taking on a major regional water infrastructure project which includes replacing the South Delta Main No. 1, as the current watermain is undersized and aging. The replacement watermain will be located just west of the existing South Delta Main No. 1.

[5] BCRC has consented to the Agency authorizing the construction of the utility crossing, subject to TC’s comments on GVWD’s technical and design plans. However, the parties have been trying to negotiate a utility crossing agreement since 2015 but the following terms and conditions remain in contention:

  • Access
  • Duration
  • Decommissioning and relocation of works
  • Insurance
  • Environmental
  • Release, mutual indemnity and section 744 of the Local Government Act, RSBC 2015, c. 1

ISSUES

  1. Should the Agency authorize the construction of the proposed utility crossing?
  2. If the Agency authorizes the construction of the proposed utility crossing, what terms and conditions, if any, should be imposed?

THE LAW

[6] BCRC is a railway undertaking subject to the legislative jurisdiction of the Province of British Columbia (Province).

[7] Pursuant to section 9 of the British Columbia Railway Safety Act, S.B.C. 2004, c. 8, the Province has adopted sections 99 to 103 of the CTA, with the exception of subsection 101(4). Furthermore, pursuant to section 157.1 of the CTA, the Province entered into an administrative agreement whereby the Agency is designated to “administer the law respecting railway crossing disputes for railways within legislative authority of British Columbia pursuant to the terms of this Agreement.”

[8] The Agency, therefore, has jurisdiction to adjudicate this dispute pursuant to the terms of the Agreement.

[9] Subsection 101(3) of the CTA states:

If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

SHOULD THE AGENCY AUTHORIZE THE CONSTRUCTION OF THE UTILITY CROSSING?

[10] In support of the authorization of the utility crossing, GVWD explains that the watermain is required in order to supply potable water to South Delta, Tsawwassen First Nation and Point Roberts. GVWD has agreed to construct and maintain the watermain at its own cost.

[11] BCRC has consented to the Agency authorizing the construction of the utility crossing subject to TC’s comments on GVWD’s technical and design plans. However, railway safety advice is provided to the Agency by TC pursuant to a Memorandum of Understanding (MOU) which allows for a coordination of efforts related to utility and private crossings within federal jurisdiction between the Agency and TC. The MOU confirms that TC administers the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.)which applies to railways within the legislative authority of Parliament. Given that BCRC is not within the legislative authority of Parliament, TC did not assess or provide comments on the proposed crossing. BCRC has not raised any issues with respect to the technical and design plans.

[12] Subsection 101(3) of the CTA states that the Agency may authorize a suitable utility crossing where a person has been unsuccessful in negotiating an agreement. The Agency finds that the replacement watermain is suitable for the purpose for which it is intended, given the following factors:

  • the current South Delta Main No. 1 is undersized and aging;
  • the new watermain will replace this watermain;
  • according to the authority tasked with acquiring, supplying and distributing potable water in the area, the new watermain will address the needs of the residents it serves; and
  • BCRC has raised no issues with respect to its design and method of construction.

[13] The Agency, therefore, authorizes GVWD to construct and maintain the watermain.

[14] It follows that GVWD’s request dated March 6, 2019, for permission to file a request for an interim order authorizing the work pending this determination is now moot and is dismissed.

IF THE AGENCY AUTHORIZES THE CROSSING, WHAT TERMS AND CONDITIONS, IF ANY, SHOULD BE INCLUDED?

[15] The parties have been unsuccessful in negotiating terms and conditions for an agreement to construct the proposed utility crossing with the following terms being in contention:

  • Access: term relating to the parties’ access to the crossing location surface or subsurface for issues such as maintenance, inspection, and repairs.
  • Duration: term relating to the time span of the utility crossing and future obligations of the parties relating to events that may occur during the life of the crossing.
  • Decommissioning and relocation of works: term relating to the parties future obligation when the utility crossing is no longer in use or required.
  • Insurance: term relating to the parties’ ability to cover any losses that may be caused by the parties or that may occur at the crossing location.
  • Environmental: term relating to environment protection against issues such as contamination at the utility crossing.
  • Release, mutual indemnity and section 744 of the Local Government Act: terms relating to liability for negligent acts by either party at the railway or utility crossings.

PRELIMINARY MATTER

[16] Before considering the terms and conditions that are in dispute between the parties, the Agency must first determine whether it has jurisdiction, beyond simply authorizing the utility crossing, to attach terms and conditions to a crossing authorization under subsection 101(3) of the CTA.

[17] The Agency has, in the past, attached terms to an authorization:

  • In Decision No. 85-R-2016 (CP v. Saskatchewan Water Corporation), the Agency imposed a provision on indemnity as part of the decision. In that case, however, the Agency’s jurisdiction to impose this term was not challenged and neither party objected to the terms being included. In Decision No. 355-R-2016 (CP v. SaskEnergy Incorporated and TransGas Limited), the Agency imposed terms related to indemnity; however, again, the Agency’s jurisdiction was not challenged and the provision was included on consent.
  • In Decision No. 351-R-2004 (British Columbia Hydro and Power Authority v. BNSF), the Agency imposed terms regarding the inclusion of a “buffer zone” around the utility, supervision and inspection of work by the railway, and indemnification during construction. Again, neither party challenged the Agency’s jurisdiction to settle the dispute between them on these issues.
  • In Decision No. 364-R-2004 (Alberta Transportation v. CN), the Agency addressed the parties’ responsibilities related to future costs associated with the dismantling of the structure and whether the parties could require one another to indemnify the other respecting liabilities while constructing the structure. In particular, the Agency noted that:

… the crossing could require dismantling for reasons other than discontinuance, including relocation or reconstruction. In those types of matters, the Agency does have authority over future costs, such as maintenance, and any dismantling costs could be considered part of the reconstruction and maintenance costs, under section 101 of the CTA. The Agency, therefore, finds that it has the jurisdiction at this time and also has a responsibility to rule on this issue to facilitate an agreement between the parties so that the project can proceed.

However, with respect to the indemnification issue, the Agency again noted the importance of the agreement of the parties: “during the construction period, the Agency notes CN’s comments that liability is either governed by the terms that the parties have chosen or, in the absence of such a clause, by the application of common law.”

[18] In other instances, the Agency has declined to impose terms and conditions in relation to an authorization to construct a utility crossing, including terms similar to those sought by BCRC in this case:

  • In Decision No. 113-R-2016 (City of Surrey v. BC Hydro), the Agency addressed and did not impose terms related to:
  • decommissioning and relocation of works, stating that:

The Agency finds, consistent with its previous decisions (e.g. Decision No 151-R-2013 and Decision No. 51-R-2013), that a decision authorizing the construction of a utility crossing at a specific location is final and binding on the parties, unless it is reviewed or rescinded by the Agency. As such, the Agency will not impose any terms and conditions respecting the removal or alteration of the utility crossing.

  • duration of the utility crossing:

[T]he Agency finds that a decision authorizing a crossing remains in effect unless the decision is amended or rescinded by the Agency. As such, the Agency will not impose any terms and conditions respecting the duration of the utility crossing agreement.

  • release and mutual indemnity:

As stated in its most recent decisions authorizing utility crossings (e.g. Decision No. 275-R-2015 and Decision No. 274-R-2015), the Agency is of the opinion that liability for negligent acts by either party at railway or utility crossings ought to be determined by the civil courts in the province in which the crossing is situated. The Agency will therefore not impose any terms and conditions with respect to liability.

  • duration of the authorization, on the basis that the decision would remain in effect until it is amended or rescinded.
  • In Decision No. 474‑R-2001 (CN v. Penner), the Agency addressed and did not impose the term of insurance, stating that if there was an issue of liability at the crossing, it would be a matter determined by the civil courts in the province in which the crossing is located.

[19] In the past, the Agency has therefore settled disputes regarding the terms of an authorization in some cases, but, in others, has declined to do so because the terms and conditions were unnecessary or undesirable.

[20] However, the Federal Court of Appeal has stated that “the Agency is a creature of statute and the powers it exercises must be found in statutory law, either expressly or by necessary implication” (Canadian National Railway Co. v. Moffatt, 2001 FCA 327, at para. 10). The power to impose terms and conditions when authorizing a utility crossing is not conferred on the Agency expressly in subsection 101(3) of the CTA. A review of the legislation in its current and previous forms suggests that the Agency does not have jurisdiction to impose terms and conditions related to a crossing authorization.

[21] The CTA received royal assent in 1996, and repealed the Railway Act, R.S.C., 1985, c. R‑3 (RA). The RA contained provisions which dealt with railway crossings; most specifically, sections 197 to 216 and 326 of the RA. The sections that related to what are now called “utility crossings” are sections 212, 214 and 326 of the RA. Specifically, sections 211 to 214 addressed “drainage and power, mining and irrigation” and section 326 dealt with wires across a railway line. Sections 212, 214 and 326 of the RA can be found in Appendix A to this decision.

[22] These provisions set out the powers of the Agency’s predecessor, the Canadian Transport Commission (Commission), with respect to crossings, which included broad powers to order terms and conditions. For example, for drainage and water supply, the Commission had the power to set compensation and order “how, where, when, by whom, and on what terms and conditions” drainage may be affected, or pipes laid, constructed and maintained. For power, the Commission could order “terms and conditions as to protection and safety, payment of compensation or otherwise, as it deems just and proper.” For wires, the Commission could order “the extent to which, by whom, how, when, on what terms and conditions and under what supervision, the proposed works may be executed.”

[23] While the utility crossing provisions in the RA provided the Commission with the explicit authority to order terms and conditions in relation to a utility crossing, subsection 101(3) of the CTA includes no such express authority. The Agency’s current jurisdiction with respect to utility crossings is set out in subsections 101(1) and 101(3) of the CTA, which can be found in Appendix B to this decision and contain wording that empowers the Agency only to “authorize” the crossing and to specify who shall maintain it.

[24] The Federal Court of Appeal, in Fafard v. Canadian National Railway Company, [2003] FCA 243, concluded that “[a] suitable crossing is a crossing that is adequate and appropriate for the purposes for which it was intended and installed.” The terms and conditions which will govern the parties in the future with respect to the utility crossing are separate from the question of whether the utility crossing is suitable.

[25] Subsection 101(3) of the CTA can also be contrasted with subsection 103(2) which explicitly empowers the Agency to include in its order “terms and conditions governing the construction and maintenance” of a private crossing. As such, a comparison of subsections 101(3) and 103(2) of the CTA leads to the conclusion that Parliament did consider whether the Agency should have the authority to set terms and conditions when authorizing public crossings, and concluded that it should not. The maxim of statutory interpretation expressio unius est exclusio alterius establishes that the expression of one thing is to the exclusion of another. Therefore, when Parliament specified in subsection 103(2) of the CTA that the Agency had the power to set terms and conditions for private crossings, the absence of such wording in section 101 of the CTA indicates that Parliament implicitly expressed an intention to exclude this power when authorizing utility crossings.

[26] Further, subsection 101(1) of the CTA allows parties to reach an agreement relating to the construction of a utility crossing, which can contain any number of terms and conditions that the parties consider appropriate. The parties can then file the agreement with the Agency, as was the case with the previous agreement filed by the parties in 1997. However, the CTA does not explicitly empower the Agency to impose an agreement on the parties where they are unable to conclude one on their own. This is in contrast to subsections 169.31(1) and 169.37(1) of the CTA which provide that if a shipper and a railway company are unable to agree on certain terms related to the railway company’s level of service, a shipper may submit the matter to the Agency for arbitration and an arbitrator will render a decision establishing the terms and conditions between the parties.

[27] Under subsection 101(1) of the CTA, the Agency’s authority is limited to authorizing the crossing and specifying who shall maintain it. It follows that where the parties can come to an agreement, they may include whatever provisions they wish into a contract in an attempt to resolve by contract any future issues that may arise as best as they can. Where the Agency is asked to authorize the crossing, these future issues may have to resolved by some other means.

[28] Based on the above, the Agency finds that it does not have jurisdiction to order terms and conditions in relation to a utility crossing other than the terms and conditions directly related to the suitability of the crossing, those being related to construction and maintenance.

[29] Accordingly, the Agency will not consider the terms and conditions identified by the parties.

CONCLUSION

[30] Pursuant to subsection 101(3) of the CTA, the Agency authorizes GVWD to construct and maintain, at its own expense, the watermain under the railway line located at mileage 18.03 of the Port Subdivision in the City of Delta.

[31] However, the Agency does not have jurisdiction to impose terms and conditions in relation to the utility crossing. Accordingly, the Agency will not impose the terms and conditions sought by BCRC in this application or those contained in the 1997 Agreement.

[32] GVWD’s request for permission to file a request for an interim order authorizing the work is dismissed as moot.


APPENDIX A TO DECISION NO. 28-R-2019

Railway Act, R.S.C., 1985, c. R-3 (RA)

Section 212 (drainage and water supply) of the RA stated, in part:

  1. Whenever

….

b. any municipality or landowner desires to obtain means of drainage, or the right to lay water pipes or other pipes, temporarily or permanently, through, along, on, across or under the railway or any works or land of the company, or

c. the railway company desires to obtain means of drainage, or the right to lay water pipes or other pipes, temporarily or permanently, through, along, on, across or under any lands adjoining or near the railway,

the Commission may, on the application or complaint of the municipality or landowner, or of the company, order or permit the company to construct that drainage or lay the pipes, and may require the applicant to submit to the Commission a plan and profile of the portion of the railway or lands to be affected, or may direct an inspecting engineer, or such other person as it deems advisable to appoint, to inspect the locality in question, and, if expedient, there hold an inquiry as to the necessity or requirements for that drainage or those pipes, and to make full report thereon to the Commission.

  1. The Commission may on receipt of the report, or in its discretion, order, how, where, when, by whom, and on what terms and conditions the drainage may be effected, or the pipes laid, constructed and maintained, having due regard for all proper interests, and may fix the compensation, if any, that should be paid to any owner injuriously affected or may direct the compensation, if any, to be determined under the arbitration sections of this Act.

….

Section 214 (power works) of the RA stated, in part:

  1. When any person having authority to create, develop, enlarge or change any water-power or any electrical or power development by means of water, to develop and operate mineral claims or mines or the use water for irrigation purposes, desires for any such purpose to carry any canal, tunnel, flume pipe, ditch or wire across, over, or under any railway, and is unable to agree with the railway company as to the terms and conditions on which it may be so carried over, under or across the said railway, an application may be made to the Commission for leave to construct the necessary works.

….

      3. The Commission may

a. by order, grant the application on such terms and conditions as to protection and safety, payment of compensation or otherwise, as it deems just and proper;

….

c.  give directions as to the method in which the works are to be constructed and as to supervision of the construction of the works and the maintenance thereof; and

….

Section 326 of the RA dealt with wires across a railway line and stated, in part:

  1. Lines, wires, other conductors or other structures or appliances for telegraphic or telephonic purposes, or for the conveyance of power or electricity for other purposes, shall not, without leave of the Commission, except as provided in subsection (5), be constructed or maintained

     a. along or across a railway, by any company other than the railway company owning or controlling the railway; or

     b. across or near other such lines, wires, conductors, structures or appliances that are within the legislative authority of Parliament.

2. With any application for leave under subsection (1), the applicant shall submit to the Commission a plan and profile of the part of the railway or other work proposed to be affected, showing the proposed location and the proposed works.

3. The Commission may grant the application and may order the extent to which, by whom, how, when, on what terms and conditions, and under what supervision, the proposed works may be executed.

….


APPENDIX B TO DECISION NO. 28-R-2019

Canada Transportation Act, S.C. 1996, c. 10, as amended (CTA)

Subsection 101(1) of the CTA states:

An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

Subsection 101(3) of the CTA states:

If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

Member(s)

Elizabeth C. Barker
Date modified: