Decision No. 28-R-2023

Summary

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) under the Canada Transportation Act (CTA) against CN and the Region’s ION Rapid Transit, a light rail transit system (LRT), concerning noise and vibration arising from CN’s operations on the Waterloo Spur (Spur), which runs from the Guelph Subdivision/Lancaster Yard in Kitchener, Ontario to the Town of Elmira, Ontario.

[2] The applicants claim that the installation of a derail switch behind their residences, at approximately mileage 1.53 (Derail) on the Spur, causes CN trains to stop and idle while waiting for clearance to enter the Joint-Use Section, an approximate 4-kilometre portion of the Spur beginning at Waterloo Town Square and ending at Northfield Drive. The applicants are requesting that the Derail and signal be relocated to a location remote from their residences. They also request that CN operations be limited to daylight hours until the Derail is relocated.

[3] CN argues that it has fully met the requirements of the CTA and is only causing such noise and vibration as is reasonable in the circumstances. Therefore, CN submits that the application should be dismissed.

[4] As preliminary matters, the Agency will address the applicants’ late submission and determine whether it has the authority to order relief against CN and the Region.

[5] The Agency will also address the following issues:

• Does the noise and vibration caused by CN operations near the applicants’ residences constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person?
• If so, is CN meeting its obligation to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the local area?

[6] For the reasons set out below, the Agency finds that it has authority to order relief against CN and not the Region, and further finds that:

• the noise and vibration caused by CN’s operations constitute substantial interference; and
• CN is not meeting its obligation as the noise and vibration caused by CN idling trains at the Derail are not reasonable.

[7] Therefore, the Agency orders CN to cease arriving at the Derail before receiving clearance from the operator and thus causing idling on the Spur between mileages 0 and 1.53.

Background

[8] In 2001, CN conveyed its right, title and interest in the Spur to the Region which included a running rights agreement (Freight Rights Agreement) allowing it to continue freight operations over the line to provide service to facilities in Elmira.

[9] In 2014, the Region entered into a project agreement with a consortium for the design, construction and operation of the LRT.

[10] In June 2019, the LRT began operations with Keolis Grand River as its operator (operator). During this time, the Derail was installed behind the applicants’ residences where CN trains sometimes stop and idle while waiting for clearance to enter the Joint-Use Section. The closest applicant’s residence is located approximately 8 metres from the Spur.

Preliminary matters

October 14, 2022, submission from the applicants

[11] On October 14, 2022, the applicants filed an amendment to their reply, without filing a request under the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (Rules).

[12] CN and the Region did not object to the applicants’ submission.

[13] The Agency finds that the amendment made to the applicants’ reply does not cause prejudice to either CN or the Region and, therefore, the Agency will place the amendment made to the applicants’ reply on the record of the case.

Jurisdiction

Agency’s authority to order relief against CN

[14] CN claims that the sole relief asked by the applicants is against the Region as they are asking the Agency to order the Region to move the Derail. As such, CN states that the Region is the only valid respondent in this matter based on the scope of the application, subject to the issue of the Agency’s jurisdiction over the Region.

[15] However, the Agency finds that the substance of the applicants’ complaint pertains to the noise and vibration caused by CN’s idling trains at the Derail.

[16] Contrary to CN’s argument, the Agency’s power to grant relief is not limited by the relief sought by the applicant. The CTA provides the Agency with the authority to grant the whole or part of an application, or to make any order or grant any further or other relief that the Agency considers appropriate. Accordingly, the Agency has jurisdiction to hear this complaint against CN.

Agency’s authority to order relief against the Region

[17] The Region claims that the Agency has no jurisdiction over the Region or ION with respect to railway noise and vibration. It states that the provisions of the CTArelating to a public passenger service provider (PPSP) and an “urban transit authority” must be read down pursuant to the application provision of the CTA and the Constitution Act, 1867 as they only apply to an “urban transit authority”that is operating on a railway line that is in the exclusive jurisdiction of the Parliament of Canada.

[18] The CTA provides that the Agency has jurisdiction over PPSPs for noise and vibration issues. The CTA defines PPSP as including an urban transit authority which is also defined under the CTA as an entity owned or controlled by the federal government or a provincial, municipal or district government that provides commuter service.

[19] However, the definition of urban transit authority under the CTA must be read in accordance with the division of powers found under the Constitution Act, 1867, and in light of the jurisdiction granting provisions in the CTA.

[20] In The Queen v Board of Transport Commissioners, 1968 SCR 118, the Supreme Court of Canada held that the GO Train (a local work), which was to be operated only within Ontario, but to use the tracks of an interprovincial railway, fell under federal jurisdiction because the constitutional jurisdiction depends on the character of the railway line not on the character of a particular service provided on that railway line. It also states, “It is clearly established that the Parliament of Canada has jurisdiction over everything that physically forms part of a railway subject to its jurisdiction” (page 127). Conversely, this means that the Parliament of Canada does not have jurisdiction over a local railway that is not operating on a federal railway line.

[21] In Decision 69-R-2014, the Agency explained that municipalities take risks when they approve residential developments next to railway operations. In addition, municipalities have a responsibility to assess compatibility issues before approving and proceeding with transportation projects next to sensitive developments, including residential areas, to ensure that the necessary mitigation measures are proactively implemented to prevent or minimize future conflicts and adverse effects created by such projects on sensitive land uses.

[22] It is not clear from the evidence that the Region considered the impact of the Derail at this location before installing it. If it had done so, it could have anticipated a noise and vibration complaint when choosing to place the Derail within 10 metres of houses. However, given that the Region operates on a railway line that falls outside the authority of Parliament, the Agency has no authority to order corrective measures against the Region. Accordingly, the Agency must focus on the cause of the noise and vibration: the idling of CN trains at the Derail.

The law

[23] The CTA imposes an obligation on a railway company to only cause such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the rail operation takes place.

[24] The CTA also provides that the Agency may, on receipt of a complaint and on finding that a railway company is not complying with its noise and vibration obligation under the CTA, order the railway company to undertake any changes to its railway construction or operations that the Agency considers reasonable.

[25] It is clear from the legislative framework and the National Transportation Policy set out in the CTA that, in exercising its adjudicative mandate relating to rail noise and vibration, the Agency must balance the interests of the parties. On the one hand, railway companies are involved in activities that necessarily cause noise and vibration. These activities are required to fulfill their various legislated level of service obligations and operational requirements, and to maintain the “competitive, economic and efficient national transportation system that … serve[s] the needs of its users, advance[s] the well-being of Canadians and enable[s] competitiveness and economic growth in both urban and rural areas throughout Canada.” On the other hand, the interests of affected communities must also be considered by the railway companies in determining how best to perform their activities to meet their obligation under the CTA to only cause such noise and vibration as is reasonable.

Analytical framework

[26] In Decision 35-R-2012 (Normandeau and Tymchuk v CP), the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligation. The Agency’s first step consists of determining whether railway companies have caused noise and vibration that constitutes substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference).

[27] To make a determination on the existence of noise and vibration that may constitute substantial interference for applicants, the Agency will consider several elements, as outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines) and in Decision 35-R-2012, including:

• the presence of ambient noise other than that of railway operations, such as highway noise;
• railway operations in the affected area, including any relevant changes (such as volume of traffic, speed, length and frequency of trains, methods of operation, increase or concentration of operations);
• the characteristics and magnitude of the noise and vibration (such as the level and type of noise [impulse or constant], the time of day, duration, and frequency of occurrence);
• relevant standards to assess the significance of the effects of noise and vibration levels;
• the impact of the noise and vibration disturbance on the persons affected (and available mitigation methods); and
• efforts made by the parties to mitigate the impact of the noise or vibration.

[28] If the Agency finds that the noise and vibration is not causing substantial interference, it will dismiss the application. Alternatively, if the Agency finds that the noise and vibration is causing substantial interference, it will proceed to the next level of analysis: balancing of the noise and vibration against the criteria set out in the CTA—the railway company’s level of service obligations; their operational requirements; and the area where the rail operation takes place—to determine whether the noise and vibration is reasonable in the circumstances.

Positions of the parties

The applicants

[29] The applicants state that the Region’s implementation of the LRT in April 2019 has changed CN’s operations resulting in an unacceptable noise and vibration situation due to installation of the Derail behind their houses.

[30] According to the applicants, the Derail causes CN trains to stop and idle while waiting for clearance to enter the Joint-Use Section, on which both ION and CN operate. The applicants claim that two locomotives idle directly behind their residences on weeknights between 11:00 pm and 1:00 am and that all occupants of the adjacent residences are awakened. The applicants submit that the idling lasts between 5 to 30 minutes and the houses shake during the event and regular conversation at normal levels are not possible.

[31] In support of their application, the applicants submit video logs covering the period of April 2020 through to April 2022 and identifying 102 incidences over 285 train movements, which the applicants argue results in a 36% incident rate. Their evidence also included trains logs for 2019-2020 and 2020 to 2021, maps and pictures of the area.

[32] The applicants submit that there is no evidence that the Region conducted any studies to assess the impact of restricting CN train operations to the hours of 11:00 pm to 5:00 am and the impact that the location for the Derail would have on residents of the area. The applicants argue that two locomotives idling at night, adjacent to the applicants’ residences is not reasonable.

[33] The applicants are of the view that the efforts taken have not been effective in eliminating the idling issues. They want the Derail to be moved and have proposed alternative locations. The applicants request that CN’s operation be restricted to daylight hours and that this restriction should be in effect until such time as no more than one idling incident happens in a three-month period.

[34] In reply to the Region’s answer, the applicants state that they do not understand the reasoning for shifting CN train operations to night-time hours due to safety reasons. Prior to ION, CN trains operated on the Spur during both day and night-time hours. The applicants submit that the safety argument does not have merit as trains operate adjacent to the Spur Line Trail, which is used by pedestrians 24 hours a day, and there is no barrier between the trail and the rail line.

[35] The applicants submit that the Region did not properly assess the location of the Derail and now refuses to conduct a study and move the Derail to a different location. The applicants state that the cost of the study and the cost to relocate the Derail is not their concern given the cost of the overall ION project and the great personal costs to the occupants of the residences adjacent to the idling location.

CN

[36] CN argues that the applicants have not met the first step of the Agency’s noise and vibration framework as cited in Decision 63-R-2019. The applicants did not provide sufficient evidence to allow the Agency to conclude that any noise and/or vibration at the site of the Derail is causing substantial interference.

[37] CN submits that the applicants have not provided the type of empirical evidence usually received by the Agency in such matters, nor have they amended their application to include modelling results or sound studies. Accordingly, the Agency does not have sufficient information with respect to usual levels of sound or vibration in the area of the Derail, nor does the Agency have empirical evidence in respect of the sound or vibration directly caused by rail operations at the site of the Derail.

[38] CN states that it is a federally regulated railway company and is subject to the level of service obligations provided for in the CTA. Historically, CN states that it operated during the day; however, the Region elected to dedicate the Spur to the daytime operation of passenger trains thereby requiring CN to operate at night.

[39] CN states that it may have to idle at the Derail until it receives the signal to access the Joint-Use Section in order to ensure that it can safely operate on the Spur. This in turn, results in vibration at the site of the Derail. CN submits that if it were to wait at the Lancaster Yard instead of at the Derail, until it received clearance, additional time would be added to its already short timeframe to allow its trains to travel from the Lancaster Yard to the Derail in order to minimize idling. Furthermore, as per a communication protocol between the Region and CN, CN has to contact the operator before arriving at the Derail.

[40] CN points out that delays in operations of passenger trains and the possible intermittent use of the Joint-Use Section during CN’s operational window, require CN to contact the Region each time CN wants access to the Spur, rather than leaving the Derail open from 11:00 pm to 5:00 am, five days a week.

[41] CN states that the noise and vibration alleged by the applicants was not at issue in November 2018, despite CN having recommenced operations at that time. It was rather in April 2019, when the Region installed the Derail at its present location in order to accommodate the Region’s new LRT, that complaints began immediately, with a formal complaint being filed with the Agency as early as August 2019.

[42] CN claims that its current operational window is barely sufficient to conduct its operations over the Joint-Use Section. Given CN’s level of service obligations, of its operational requirements at the site of the Derail, and of the area where the rail operation takes place, CN claims that to the extent that applicants have demonstrated substantial interference, the noise and vibration created by CN at the Derail is reasonable within the meaning of the CTA.

[43] It is CN’s understanding that the Region is now refusing to move the Derail to a different location. CN has agreed to participate in a communications protocol in order to attempt to diminish the vibrations.

[44] CN argues that both technical and maintenance issues with the Region’s equipment and infrastructure restrict CN operations on the Spur.

[45] CN submits that when constructing the ION line, the Region appears not to have calculated the width of a freight locomotive including pilot (plow) such that the Region must line its switches away from passenger platforms before CN can begin operations each day, which can lead to further delays.

[46] CN also states that the Region owns both high and wide detectors on the Joint-Use Section, and the southbound detector malfunctions at times which leads to delays.

The Region

[47] The Region submits that ION’s operations are from 5:00 am to midnight each day and that during the period from 7:00 am to 7:00 pm, it operates at intervals of 10 minutes. ION operates at intervals of 15 to 30 minutes between the hours of 7:00 pm and midnight.

[48] The Region states that CN trains travel over the Joint-Use Section four times per week, usually on weekdays during the late evening or outside of ION hours. The Region claims that for operational and safety reasons, CN trains cannotoperate on the Joint-Use Section during the day time.

[49] The Region submits that it has worked with the operator and CN since 2019 to coordinate the operations of ION and CN over the Joint-Use Section. The Region provided CN with a set operating window for trains to move north on the Joint-Use Section during ION operations, at 30-minute intervals beginning after 10:00 pm (allotted times). The Region indicates that prior to the complaints from the applicants in 2019, the operator gave priority to ION for use of the Joint-Use Section and aimed to limit CN idling to 15 minutes.

[50] The Region submits that for safety reasons, the operator controls two derails to prevent CN trains from entering the Joint-Use Section in conflict with ION.

[51] The Region states that idling at the Derail is typically the result of four operational reasons:

1. CN trains arrive at the Derail prior to their allotted time and wait to receive clearance;
2. The operator delays the CN train from entering into the Joint-Use Section due to switch problems typically caused by ice;
3. The operator has to delay the CN trains from entering the Joint-Use Section due to having to manually switch off the northern derail signal; and
4. CN trains trip the high and wide detector as they approach the Derail, which locks it. This results in CN and the operator investigating any height/width issues, which results in idling occurring at the Derail.

[52] The Region states that it assessed the applicants’ data for 2021 and determined that there were 130 times that CN trains travelled north on the Joint-Use Section with 33 delays at the Derail which caused some idling. According to the Region, this amounted to approximately 25% of CN train movements on the Joint-Use Section that resulted in delays at the Derail.

[53] Further, the Region states that of the 33 events noted in 2021, 22 were the result of CN trains arriving at the Derail before their allotted time. The Region argues that these delays could have been eliminated had CN trains remained on the Guelph Subdivision/Lancaster Yard until their allotted time.

[54] The Region states that it has also determined that 11 of the delays at the Derail in 2021 were caused or aggravated by the operator. These delays amounted to a total of 123 minutes in 2021. However, two unique incidents in 2021 accounted for 73 minutes of this delay or 60%. The incidents on January 27, 2021, and November 22, 2021, were caused by ice on switches and ice on the Derail equipment at the north end of the Joint-Use Section. In the other 9 delays aggravated by the operator, the cause of the delay was the manual intervention required at the north end derail of the Joint-Use Section.

[55] The Region states that relocating the Derail is an unreasonable solution based on cost, time to completion, and the likelihood of simply moving the problem to another neighbourhood.

[56] The Region submits that it is concerned about the use and enjoyment of the applicants’ residences and emphasizes that the Region, the operator, and CN have taken significant steps to eliminate delays and idling at the Derail to ensure that there is no substantial interference to the applicants. If additional measures are required, the Region submits that CN can further modify its operations with little cost or operational impacts.

[57] The Region states that the majority of delays at the Derail are caused by CN not timing the train properly. The Region states that CN could implement operational changes to resolve this issue by: the use of technology; using the same CN crews who are familiar with the protocol; issue a daily operational bulletin reminding CN crews of the requirements and use equipment that will not infringe on the clearance envelope.

[58] The Region suggests that CN could use third party rail operators, specifically the Waterloo Central Railway to reduce its time of operations during the off hours of ION service.

[59] Further, the Region states that it has hired Hatch, a consultant familiar with railroad signalling and operations, to review the settings of the high and wide detector to ensure the settings are not overly conservative. The Region will implement any recommendations it receives.

Analysis and determinations

Does the noise and vibration caused by CN’s operations constitute substantial interference?

[60] The onus is on the applicants to demonstrate that it is more likely than not that the noise or vibration caused by a railway’s current operations constitutes substantial interference.

[61] Although the applicants did not file noise data or a noise and vibration study in support of their position, they provided video recordings and detailed logs to substantiate their description of the idling issue.

[62] In order to assess the noise and vibration claimed to be experienced by the applicants, the Agency finds it appropriate to use the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology).

[63] In this case, although the parties provided no information pertaining to background sound levels during the pleadings, the applicants reside in a suburban residential community and, as such, the Agency considers that the affected area can be classified as a “normal suburban residential” community as described in Table 3, “Estimation of Baseline Noise Levels”, in the Methodology. Using these baseline noise levels, the night-time background noise is estimated to be 45 dBA during the night.

[64] The Agency notes that based on the video and log evidence submitted by the applicants, idling periods typically last between 5 and 15 minutes while, in rare instances, it can last up to or exceed 60 minutes.

[65] In order to estimate equivalent sound level (Leq) over a one-hour period attributed to idling, as outlined in the Methodology, the Agency has considered the following factors:

• there is one train idling with a single locomotive during each idling event;
• the closest track is located approximately 8 metres away from one of the applicant’s residences;
• each idling event lasts for a median of 15 minutes within the 1-hour period, based on the logs and video evidence provided; and
• there are no obstacles between most of the applicants’ residences and the railway operations.

[66] Based on these factors, the Agency finds that the equivalent sound level due to idling over a 1-hour period, is estimated to be 72 dBA at the applicants’ residences.

[67] Given the Agency’s determination that the night-time background noise in this location is 45 dBA, the incremental increase in noise level caused by idling locomotives could be as high as 27 dBA.

[68] In Decision LET-R-148-2012 (Bysterveld v CP) and Decision LET-R-21-2017 (Scott et al v CN), the Agency indicated that sound levels in excess of 5 dBA may result in negative impacts for residents. Therefore, the Agency considers that noise levels substantially above the ambient noise (in this case, an increase of 27 dBA) may increase annoyance and impact sleep and communications, which may have negative effects on health as outlined in the Methodology.

[69] Locomotives contain engines capable of pulling and pushing heavy car loads. Unlike traffic noise from highways, idling engines produce loud events, even in the case of modern locomotives in good mechanical working order. The Agency concludes that the applicants are subject to high decibel levels during a time when people are sleeping and more sensitive to noise. The estimate does not reflect any adjustments for vibration, or low frequency noise effects, such as the shaking and rattling of the homes, which would cause even higher annoyance. The Agency therefore finds that the applicants’ submission of sleep disturbance, house shaking, and not being able to have regular conversation levels when the trains are idling is consistent with the estimated high decibel levels.

[70] Based on the above, the Agency finds that the noise and vibration caused by CN’s operations constitutes substantial interference. Therefore, the Agency will proceed to the second step, to assess whether the noise and vibration is reasonable pursuant to the CTA.

Is CN meeting its obligation to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the local area?

[71] In the next step of the analysis, the Agency considers whether the noise and vibration is reasonable taking into account the criteria set out in the CTA: the railway company’s level of service obligations; their operational requirements; and the area where the rail operation takes place.

Level of service obligations

[72] The Agency acknowledges that CN has level of service obligations to its customers in Elmira and that in order to meet these obligations, it operates over the Joint-Use Section via the Freight Rights Agreement with the Region. However, the Agency notes that there were no complaints about noise and vibration despite CN operating over the track behind the applicants’ houses until the Derail was installed and CN started idling at this location while waiting to enter the Joint-Use Section.

Operational requirements

[73] The evidence shows that CN’s operations changed significantly when the Region installed the Derail as CN’s operations moved from daytime to overnight hours. The applicant provided 2021 (January 1, 2021 – November 22, 2021) statistical data that the Region analyzed. According to the Region, out of the 130 times that CN trains travelled north over the Joint-Use Section, there were 33 delays at the Derail, approximately 25% of movements. The Region states that of the 33 delays, 22 (approximately 67%) were a result of CN trains arriving early at the Derail, 2 were a result of ice and snow on the switches or the northern derail, and the remaining 9 delays were due to the derail at the north end of the Joint-Use Section, which had to be cleared manually due to damage as a result of a flood. The Region states that the repair of the northern derail was scheduled for 2022 thus allowing the clearance to be completed remotely by the operator and eliminating this source of delay.

[74] Another reason for idling behind the applicants’ houses was due to CN trains setting off the high and wide detector, however, it is not clear how often this occurred. The Agency acknowledges that the Region has obtained the services of Hatch to address this issue. While the problems with the high and wide detector are the Region’s problems to resolve and the Agency has no jurisdiction over the Region in this instance, the Agency notes that the Region has retained the services of an expert to try to resolve the problems.

[75] The Agency recognizes the efforts made by CN and the Region to reduce idling, which includes CN notifying the operator when CN trains leave Lancaster Yard; creating and adhering to allotted times; modifying ION service in the evenings; installing a detection sensor near Lancaster Yard that sends automatic emails to advise the operator that CN is approaching the Derail; and allowing free movements when the Joint-Use Section is not in use by ION. However, despite these mitigation efforts, idling remains at the Derail and, according to the Region, amounts to approximately 25% of CN trains entering the Joint-Use Section.

[76] CN trains are staged at its Lancaster Yard before departing for the Derail, which is approximately three kilometres away. CN claims that its current operational window is barely sufficient to conduct its operations over the Joint-Use Section resulting in CN needing to idle at the Derail to proceed as soon as it is open. Based on the speed limit of 10 mph provided in the Freight Rights Agreement, CN should be able to reach the Derail from the Lancaster Yard in approximately 12 minutes. Additionally, CN could coordinate and time the trip, as the Region suggests, so that CN’s train arrives at the Derail just after it is open. In the Agency’s view, this would not substantially impact CN’s window of operation.

[77] The Agency notes that CN has not substantiated why it could not modify its operations so that its trains remain in the Lancaster Yard, rather than idle at the Derail, before receiving confirmation from the operator that the Derail is or will be open and/or the tracks are clear. In the Agency’s opinion, the reasons for idling at the Derail are a by-product of poor planning, lack of coordination, failure to adhere to protocols, and inadequate two-way communication between CN and the operator, resulting in unnecessary idling.

[78] Railway companies have an obligation to limit the noise and vibration to a reasonable level based on operational requirements. In light of the foregoing, the Agency finds that CN has not substantiated that the noise and vibration from idling at the Derail is justified by CN’s operational requirements.

Area

[79] Although the applicants live in close proximity to the Spur, there does not appear to be any other significant sources of noise and vibration in the area and there were no noise and vibration complaints about rail operations on the Spur prior to the installation of the Derail as part of the LRT. As outlined above, the Agency estimates that CN rail activities associated with idling locomotives increase sound levels by up to 27 dBA in a 1-hour period during the night, significantly higher than 5 dBA which is expected to negatively impact nearby residences.

[80] The Agency noted, in Decision 301-R-2013, that idling locomotives create low frequency noise and typical residential construction is not effective in reducing that noise and the resulting vibration. The Agency concludes that the applicants are subject to locomotive engine noise at high decibel levels, during a time when people are sleeping and more sensitive to the noise.

[81] The Guidelines indicate that the Agency will consider the “efforts made by the parties to reduce the noise or vibration at its source and/or at the point of reception, to prevent its propagation, and mitigate its impact on the persons affected”. In this case, no evidence was presented by CN showing that it took into consideration the impact its change in operations would have on the area or the applicants. Since the initial complaint by the applicants to the Region, CN and the Region state that they have made modifications to their operations to reduce the idling noise and vibration. However, the Agency notes that CN and the Region did not substantiate the effectiveness of the mitigation measures and in fact, the applicants state in a submission dated September 25, 2022, that their continuing experience with idling locomotives starting just before 11 pm remains intolerable.

[82] In light of the above, given the unnecessary idling of CN trains at the Derail, and the lack of evidence of mitigation measures to reduce the effect of the noise and vibration on the area, the Agency concludes that, when the three criteria set out in the noise and vibration provisions of the CTA are weighed, the increased noise and vibration caused by CN’s trains idling behind the applicants’ residences since the installation of the Derail is unreasonable.

[83] CN states that it is required to be at the Derail for 11 pm in order to maximize its time to meet its service obligations to its customers. However, the Agency finds no evidence that by CN waiting at Lancaster Yard, instead of the Derail, until it receives clearance, it would make it impossible for CN to serve its customers. CN trains should remain in Lancaster Yard until the operator clears the trains to proceed.

Conclusion

[84] The Agency finds that the noise and vibration levels caused by CN’s trains idling on the Spur behind the applicants’ residences constitutes substantial interference. Although CN operating over the Spur is necessary for CN to meet its level of service obligations, the Agency finds that the trains idling at the Derail are not necessary when caused by their early arrival and when the operator is having technical and maintenance issues (e.g., snow and ice problems). The Agency, therefore, finds that CN has failed to comply with its obligation to only cause such noise and vibration as is reasonable within the meaning of the CTA. Further, the Agency expects CN to continue to work with the Region to resolve the issue with the high and wide detectors.

Order

[85] Accordingly, the Agency orders CN to cease arriving at the Derail before receiving clearance from the operator and thus causing idling on the Spur between mileages 0 and 1.53, as early as possible and no later than April 27, 2023.

Legislation or Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Constitution Act, 1867	92(10)
Canada Transportation Act, SC 1996, c 10	27(1); 87; 88, 95.1; 95.3(1); 95.4; 113; 114;
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104	34