Decision No. 341-R-2015

APPLICATION

[1] The Canadian Pacific Railway Company (CP) filed an application with the Canadian Transportation Agency (Agency) for authority to construct a railway line which, together with a new tunnel, is known as the Continental Rail Gateway (CRG). The CRG will supplement CP’s existing tunnel (Existing Tunnel) and form part of CP’s Windsor Subdivision, in the city of Windsor, in the province of Ontario, as shown on Plans 271658-SK-701, 271658-SK-702, 271658-SK-703, 271658-SK-704, 271658-SK-705 and 271658-SK-706 dated February 7, 2013 (Plans). Pursuant to subsection 98(2) of the Canada Transportation Act (CTA), CP requires the Agency’s approval for the construction of the CRG. The Agency may approve the construction if it considers the location of the railway line to be reasonable, taking into consideration the requirements for railway operations and services and the interests of the localities that will be affected by the line.

ISSUE

[2] Is the location of the proposed railway line reasonable, taking into consideration the requirements for railway operations and services and the interests of the localities that will be affected by the line?

PROJECT OVERVIEW

[3] CP, on behalf of its Detroit River Tunnel Partnership with Borealis Infrastructure (proponent), proposes a new railway line that is 3.529 kilometres in length and will start at mileage 111.5 of the Windsor Subdivision and end at the Canada-United States of America border (Border). The site for the proposed railway line will be principally within either the existing railway right of way or within the proponent’s properties.

[4] The Windsor Subdivision, between mileage 111.5 and the Border, consists of a dual-track railway line with two existing grade-separated road crossings at Tecumseh Road and College Avenue and an overhead rail bridge crossing of the Essex Terminal Railway Company.

[5] The CRG, as described by CP, will consist of:

• the construction of the Windsor Portal;
• the boring, lining and construction of a tunnel (New Tunnel) under the Detroit River;
• the construction of an approach track and railway line through the New Tunnel; and,
• ancillary components for drainage, ventilation and security.

New Windsor Portal

[6] CP defines the Windsor Portal as the entrance to the New Tunnel at mileage 112.2 of the Windsor Subdivision. CP points out that the Windsor Portal, a retaining wall and the open cut area for the approach will be primarily contained within the existing railway right of way and the proponent’s properties. CP also points out that the New Tunnel’s entrance will be 1.4 kilometres away from the Detroit River and approximately 150 metres south of the Existing Tunnel’s entrance.

New Tunnel

[7] CP states that the internal diameter of the New Tunnel will be approximately 8.4 metres and will be at a distance of approximately 37 metres to the south of, and five metres deeper than, the Existing Tunnel and will involve the boring, lining and construction of a single tube rail tunnel beneath the Detroit River. Construction will commence from the Windsor Portal on the existing railway right of way, continue under the Detroit River and emerge at mileage 113.8 on the Detroit side with all excavated material being removed via the Windsor Portal.

[8] CP points out that to minimize its footprint under the Detroit River, the New Tunnel will be constructed as close as possible to the Existing Tunnel, which has been in service since it was opened on July 26, 1910. However, the New Tunnel will be constructed at a sufficient distance to maintain the Existing Tunnel’s integrity. CP asserts that the New Tunnel will be constructed using a tunnel boring machine (TBM) and a minimum cover of five metres; the New Tunnel will have much deeper cover under the riverbed than the Existing Tunnel.

[9] CP states that the use of a TBM will avoid the potential for disturbance of the Detroit River and its riverbed as this method allows the TBM to proceed from the Windsor Portal on one side of the river, negotiate under developed properties and emerge from the Detroit Portal. CP claims that between these points, there will be no surface disturbance. CP estimates that approximately 286,000 m³ of material will be excavated by the TBM.

[10] CP claims that it is only the railway infrastructure, and not the operations, that are changing at this location.

CP’s construction staging area

[11] CP states that it will use its adjacent commercial properties and buildings to stage the construction activities within its construction staging area. CP adds that the construction staging area will be the site of the following activities:

• construction offices and parking;
• lunchrooms and washrooms for the construction crews;
• on-site staging of equipment/machinery;
• on-site temporary staging for pre-cast concrete tunnel liners;
• on-site temporary staging of other construction materials (including rail, track materials and ballast);
• temporary staging of soil material from excavation of approach and portal – to be tested and picked up by truck and taken to an off-site disposal facility;
• containment area for excavation material from the TBM – material to be tested and picked up by truck and taken to an off-site disposal facility; and,
• security containment area with security systems, site supervisors and construction fencing to ensure project site security and prevent trespassing.

[12] CP points out that activities at the construction staging area will occur over a maximum period of 24 months.

Road and rail crossings

[13] CP points out that the CRG will cross two existing grade-separated road crossings and one existing grade-separated rail crossing. In addition, the railway line will require some of the Canadian National Railway Company’s (CN) Van De Water Rail Yard tracks to be shortened and re-arranged to prevent any railway line crossings at that location. CP asserts that all crossings are currently grade separated and that there are no at-grade crossings to cause any safety concerns.

PRELIMINARY MATTERS

Canada Marine Act, S.C., 1998, c. 10

[14] The CRG beneath the Detroit River will require several subsurface leases, pursuant to subsection 71(1) of the Canada Marine Act (CMA), administered by the Port of Windsor. These subsurface leases are for the occupation of federal lands in support of the CRG. The negotiation of these leases is ongoing and will need to be concluded before CP can begin construction.

Canadian Environmental Assessment Act, 2012, S.C., 2012, c. 19, s. 52

[15] Section 6 of the Canadian Environmental Assessment Act, 2012 (CEAA 2012) does not apply to the CRG as it is not a designated project. However, section 67 of the CEAA 2012 requires that the Agency determine whether the CRG, which will be partially constructed on federal lands, is likely to cause significant adverse environmental effects before making any decision that would allow it to be constructed.

[16] In its review pursuant to section 67 of the CEAA 2012, the Agency considered the following information submitted by CP:

• CPʼs Transport Canada (TC) permit under subsections 5(1) and (3) of the Navigable Waters Protection Act, SOR/2009-202 (NWPA) and information the Agency requested as part of this application. CP required approval from TC pursuant to the NWPA for the construction of the CRG as the New Tunnel will cross the Detroit River which is determined to be a navigable waterway;
• TC’s letter determining that the portion of the CRG occurring on federal lands will not likely cause significant adverse environmental effects;
• CP’s Environmental Review of the CRG; and,
• CP’s River Crossing Contingency Measures Report which identifies the potential for a major ingress of material from the Detroit River.

[17] CP states that it is aware of two sinkhole collapses during tunnelling operations utilizing a TBM in the last 15 years, one in Canada and the other in the United States of America. The Agency considers that this is a matter for which no contingency plan has been provided and requires to be addressed, especially in light of the TBM incident that occurred during the railway construction of the St. Clair River Tunnel, which is similar to the CRG. The Agency requires CP to provide, prior to beginning construction, to the Agency’s satisfaction, a mitigation plan to address the risk of a major ingress of material from the Detroit River.

[18] The Agency finds that if such a mitigation plan is filed, the CRG will not likely cause significant adverse environmental effects.

LOCATION OF THE RAILWAY LINE

City of Windsor

[19] The city of Windsor is located along the shores of the Detroit River at a confluence of rail and road networks connecting Ontario to the Border. Situated across the Detroit River from the city of Windsor is the city of Detroit, Michigan, United States of America; an industrial and transportation center connected to the heartland of the United States of America.

[20] CP’s Windsor Subdivision runs through the center of metropolitan Windsor; currently a community of over 200,000 persons established as a city in 1892. In 1910, when the Existing Tunnel opened, the city of Windsor was the terminus point for several railway companies and the economy of the area was centered on it being the chief point of entry to the United States of America.

[21] The city of Windsor is a community whose economics are primarily based on manufacturing, tourism, education and government services and is home to one of Canada’s major automotive manufacturing centres.

[22] In the vicinity of the CRG, the Detroit River flows from the northeast to the southwest between Lake Simcoe and Lake Erie. The Existing Tunnel is paralleled by Cameron Avenue to the west and by Wellington Avenue to the east while passing beneath Wyandotte Street West, University Avenue West and Riverside Drive West before crossing under the Detroit River.

Rail infrastructure in the area surrounding the CRG

[23] The New Tunnel will be situated alongside a wide variety of existing railway infrastructure such as:

• CP’s Windsor Rail Yard and Windsor Subdivision;
• CN’s Van De Water Rail Yard;
• CN’s Pelton Spur;
• CN’s Chrysler Spur;
• the Essex Terminal Railway Company’s railway lines, serving a variety of industries and the Port of Windsor; and,
• VIA Rail Canada Inc.’s passenger railway lines.

REQUIREMENT FOR RAILWAY OPERATIONS AND SERVICES

[24] The Windsor Subdivision is a key part of CP’s rail network as it forms part of the Montréal-Central-United States of America corridor. According to CP, the Windsor-Detroit corridor:

is Canada’s busiest trade corridor. It handles approximately 30% of all Canada-U.S. trade, as well as transatlantic trade between the Port of Montreal and U.S. markets.

[…]

At least one-half of the Intermodal Container traffic unloaded at the Port of Montreal is destined for the highly populated markets in the U.S. including the states of Michigan, Illinois, Ohio, Minnesota, and Wisconsin.

[25] CP claims that the ongoing drive for the efficient movement of goods has led to increased sizes of marine intermodal containers. The first generation of containers were primarily 20’ and 40’ steel units with a height of 8’. Second generation containers were primarily units with a height of 8’ 6”. The newest generation of containers, often referred to as “High Cube Containers”, are 9’6” high. “High Cube Containers” now comprise the bulk of container traffic at the Port of Montreal.

[26] CP states that the Windsor-Detroit trade corridor is also key for the automotive industry as there are 37 high volume assembly plants within 500 kilometres of the Border. A new generation of rail cars called “Auto-Max rail cars” have been designed to accommodate three levels of vehicles instead of the standard two levels (Bi-levels). One Auto-Max rail car can hold approximately 22 high clearance vehicles, whereas a standard Bi-level rail car can only hold approximately 10 such vehicles. The Auto-Max rail cars create more than double the capacity of Bi-level rail cars, however, Auto-Max rail cars require higher clearance envelopes.

[27] CP points out that the Existing Tunnel is a key component of the Windsor-Detroit trade corridor. CP adds that it is the primary rail operator through the corridor, operating between 22 and 25 freight trains per day through the corridor, which equates to the movement of over 1,000,000 truckloads per year through the Windsor-Detroit gateway.

[28] CP asserts that since the Existing Tunnel went into operation in 1910, rail equipment has changed significantly to meet customer requirements for rail service, and further modifications to expand the height of the Existing Tunnel are not possible.

[29] Thus, CP submits that the New Tunnel with higher clearance is required to:

• accommodate the increased size of the new standard of intermodal containers;
• accommodate the increased size of Auto-Max rail cars; and,
• allow for growth of rail traffic through the Windsor-Detroit trade corridor by means of greater efficiency.

[30] CP states that the CRG will have the following features:

• it will be single tracked through the New Tunnel to minimize the footprint of the New Tunnel;
• the approach track will be double (i.e., allow for a siding) to allow alternating trains to efficiently clear the New Tunnel;
• it will be designed for a maximum track speed (55 mph) to maximize the number of trains that can efficiently move through the New Tunnel;
• it will be constructed with track materials used for high speed track such as continuous welded rail, premium fastening system, double shoulder tie plates, high quality ballast and other required track materials;
• the approach tracks will have power turnouts to accommodate 50 mph speed requirements and the quick movement of trains between tracks;
• the approach track will have a grade of approximately 1.5 - 1.75 percent on the Canadian side;
• all elements of the proposed new track will be built to CP’s current Track Standard Practice Circulars, Standard Plans and applicable American Railway Engineering and Maintenance of Way Association standard specifications; and,
• it will have a state-of-the-art signal system known as the Centralized Traffic Control System (CTC). The CTC will allow CP’s Rail Traffic Controllers in Montréal to remotely control and alternate trains safely and efficiently through the New Tunnel.

[31] CP is of the opinion that the New Tunnel will meet its and its customers’ requirements for railway operations on the Windsor-Detroit trade corridor. Additionally, the New Tunnel will incorporate modern features such as advanced security systems, communications and signal equipment.

INTERESTS OF THE LOCALITIES

[32] CP conducted public consultations, including a public information session on November 13, 2012, and published notices of its application to introduce the CRG to stakeholders.

Results of the public information session

[33] According to CP, approximately 65 individuals attended its public information session on November 13, 2012. CP characterizes the comments from the public as strongly supporting the CRG and its increased opportunities for economic development for the city of Windsor and the surrounding area. CP claims that the main issue of concern was noise and vibration during the construction activities.

Noise and vibration

[34] During the public consultations, noise and vibration due to construction activities was identified as a potential impact to the locality.

[35] CP, as part of its submissions, provided its Record of Attendance sign-in and comment sheets from its November 13, 2012 public information session. Two of the seven comment sheets, from Vera Colley of 335 Wellington Street and Marliese Kimmerle of 350 Cameron Street, specifically identified concerns with vibration related to existing and future railway operations. CP responded to these concerns as follows:

CP representatives spoke to these individuals at the PIS and committed to follow up as appropriate, recognizing that their concerns were related to existing operations and not new tunnel construction. CP described to all three individuals how the proposed replacement tunnel would have a deeper profile than the existing tunnel resulting in an increased distance from their properties and a resultant reduction in vibration.

[36] CP proposes to implement mitigation measures to minimize disruption in the project site area, and states that the noise and vibration impacts will be minimal. In support of its application, CP filed two technical memorandums from Dillon Consulting Limited; one concerns noise (Dillon Noise Memorandum) and the other concerns vibration (Dillon Vibration Memorandum).

[37] CP states that:

Construction noise levels are expected to be concentrated around the proposed construction service area north of College Avenue where the new Windsor Portal and approach will be constructed and where TBM support services will occur during the boring of the new tunnel alignment. Construction noise levels are considered to be temporary, however are expected to occur over a maximum period of 24 months.

[38] The Dillon Noise Memorandum states that the construction equipment and machines will consist of two cranes, one rotary drill rig, one front-end loader, six large trucks (three concrete trucks and three dump trucks), five air compressors, five portable generators, and one muck car unloading system. According to the Dillon Noise Memorandum, it is assumed that construction will occur continuously, 24 hours per day, seven days per week, for the entire 24-month construction period. Additionally, the Dillon Noise Memorandum clarifies that the noise impact of the truck route to and from the construction service site was not included in the noise assessment.

[39] The Dillon Noise Memorandum also states that noise levels associated with the operation of the CRG were not considered as existing rail traffic will be diverted from the Existing Tunnel to the CRG.

[40] The Dillon Noise Memorandum concludes that while the construction activities associated with the CRG are expected to generate noise levels that exceed the background sound environment, those predicted noise levels do not exceed the Health Canada Guideline for Maximum Overall Level of 75 dBA at any receptor. The Dillon Noise Memorandum recommends that the following noise-related mitigation measures be implemented:

• a five-metre high temporary barrier be installed between the construction services site and the off-site noise receptors;
• equipment selected for the construction activities be appropriate for the task;
• construction equipment fitted with standard noise-damping devices, mufflers or enclosures be used;
• unnecessary idling of construction equipment be discouraged;
• noise generating activities and equipment be moved away from the west side of the construction service site where receptors are closest;
• speed limit for construction vehicle traffic be limited; and,
• employees be informed of noise control measures to be implemented at the site and receive appropriate training.

[41] In addition to the above measures, CP proposes the following mitigation measures:

• on-site truck speeds limited to 15 km/h;
• regular inspections and maintenance of equipment for noise emissions;
• no unnecessary idling of equipment or vehicles permitted; and,
• construction traffic restricted to designed haul routes approved by the City of Windsor (avoid sensitive receptors).

[42] Further, supplementary information received on May 13, 2015 indicates that a construction schedule is currently not available. CP’s approach to addressing potential public concerns about noise during the construction of the proposed project is to:

• undertake appropriate noise assessment by a qualified acoustical engineer;
• predict noise impacts;
• compare to Agency noise guidance;
• identify mitigation measures to minimize potential disturbance during construction; and,
• communicate regularly and effectively with the local community during construction and provide ongoing opportunity to contact CP.

[43] In that supplementary information, CP also indicates that:

• Construction of almost all above-ground project components (e.g. retaining walls, new grades, Windsor Portal) will occur during daylight hours. Once the TBM is launched, the underground construction of the tunnel-portion of the project will occur 24 hours per day when the TBM is in service. Construction activities that support tunneling may also occur 24 hours per day but will be limited, as much as possible, to activities that do not generate noise;
• A description of the project life cycle, the type of equipment used during construction, and descriptions of site construction activities will be posted on the existing project Web site (http://www.crgateway.com/). The Web site will be updated regularly with construction schedule information and other information of relevance to community members. CP contact information will be posted on the Web site;
• Area residents and community members with potential noise or other construction-related complaints will have 24/7 access to CP through CP’s Community Connect Line at 1-800-766-7912;
• All communications received will be responded to in a timely manner; and,
• Frequently asked questions and answers will be posted on the project Web site.

[44] CP states that:

The primary source of vibration during construction will originate from the TBM. Vibration levels are tied very closely to the site-specific conditions of the Project Footprint (i.e., soil conditions) and the highly specialized technical specifications and operating procedures of the TBM. Highest levels of vibration occur during the drilling of the excavation face, particularly when grinding hard surfaces such as stones or rock. Vibration levels from tunneling of the proposed High Clearance Replacement Tunnel are expected to be low due to the soft clay soils that dominate the subsurface of the proposed tunnel alignment.

[45] The Dillon Vibration Memorandum states that assessment of vibration is associated with the construction phase of the CRG and, in particular, potential vibration generated by the TBM during drilling at the excavation face. The Dillon Vibration Memorandum, also states that it is the drilling of the excavation face that creates vibration that may be perceived by receptors in the vicinity of the tunneling operation, and that other tunneling activities, such as the installation of the lining, grouting and forward pushing of the TBM, are expected to have minimal vibration effects. The Dillon Vibration Memorandum bases its conclusions on a ratio of 20 minutes of drilling during each hour of TBM operation and on the fact that the TBM is expected to advance at a rate of 10 metres per day.

[46] It is pointed out in the Dillon Vibration Memorandum that operational vibration impacts were not considered as CP railway operations will remain unchanged as a result of the CRG. Additionally, the Dillon Vibration Memorandum concludes that “worst case” vibration levels are expected to be less than 72 VdB, and vibration levels generated by the TBM are not expected to negatively affect receptors along the alignment.

Responses to the public notices

[47] Further, CP published a public notice in the March 7, 8 and 9, 2013 editions of the Windsor Star. The public had 30 days to file comments. In addition, CP placed copies of its application at the Bridgeview Branch of the city of Windsor’s Public Library.

Angela Warnock

[48] On March 26, 2013, Angela Warnock submitted a letter of opposition, in which she stated that she is the owner of the property at 670 Cameron Avenue, Windsor.

[49] Ms. Warnock stated that the parking lots at the rear or east end of her property directly abut the Existing Tunnel and, according to Ms. Warnock, she and her neighbour are concerned with the potential impacts of a new tunnel and railway line built and operated so close to their buildings. Ms. Warnock stated that she and her neighbour are of the opinion that there will likely be potential structural integrity impacts caused by the CRG’s construction as well as noise and vibration associated with its operation.

[50] Ms. Warnock asserted that she and her neighbour are concerned with the impact of the CRG on their businesses; specifically, that it will become more difficult for them to rent their apartments because the CRG will lower the value of their properties due to its close proximity to their buildings. Lastly, Ms. Warnock stated that they expected that a project of this magnitude would have been more clearly communicated to the impacted neighbours prior to the public notice.

[51] To address Ms. Warnock’s concerns that the CRG will impact her interests, CP filed with the Agency a response letter it sent to Ms. Warnock on April 17, 2013. Specifically, CP provided additional information concerning the:

• TBM;
• engineering analysis for buildings located adjacent to the proposed track alignment;
• location of the construction staging area;
• location of noise barriers around the construction staging area; and,
• routing of trucks.

Jacob Naim

[52] On March 26, 2013, Jacob Naim submitted a letter of opposition, in which he stated that he is the owner of 1223 – 1233 University Avenue West, Windsor.

[53] Mr. Naim indicated that he has significant concerns with respect to CP’s application, and he requested clarification on the amount of noise and vibration he could expect once the CRG is fully operational. According to him, the present noise and vibration from the operation of the Existing Tunnel are extensive and intrusive. He claimed that tenants living in the building can hear and feel the noise and vibration which can be quite excessive at times depending on the length of the trains.

[54] Mr. Naim wants to know how many trains are expected to be diverted to the New Tunnel and if the increase in train speed will continue to impact his building. He pointed out that neither CP’s noise technical memo nor the vibration technical memo made mention of this issue impacting his tenants and property. Mr. Naim is concerned about the long-term noise and vibration effects of the New Tunnel traffic which was not significantly addressed in CP’s application.

[55] To address Mr. Naim’s concerns that the CRG will impact his interests, CP filed with the Agency a response letter it sent to Mr. Naim on April 17, 2013. Specifically, CP provided additional information concerning the:

• diversion of all existing rail traffic to the CRG once it is in operation; and,
• location of the CRG relative to Mr. Naim’s property.

[56] In addition, CP indicated that its operations in the New Tunnel will not change from those conducted utilizing the Existing Tunnel.

1508989 Ontario Inc. and 1775835 Ontario Inc. – Initial filing

[57] On April 5, 2013, 1508989 Ontario Inc. and 1775835 Ontario Inc. (commercial owners) submitted a letter of opposition, in which they stated that they are the owners of 1100 – 1200 – 1220 University Avenue West, Windsor.

[58] The commercial owners are of the opinion that the construction and operation of the CRG would create unreasonable noise and vibration adversely impacting and causing damage to their properties. The commercial owners identified 15 issues of concern, including their use and enjoyment of their properties, vibration impacts, and changes to railway operations.

[59] The commercial owners requested that the Agency:

• grant them an extension to file additional information;
• take into account noise and vibration impacts on their properties; and,
• either deny the application or order CP to undertake changes to the operations of the railway line to mitigate noise and vibration to reasonable levels so that their properties are not adversely impacted and damaged.

[60] To respond to the commercial owners’ concerns that the CRG will impact their interests, CP filed with the Agency a letter on April 10, 2013, in which it claims that the commercial owners have omitted many important facts, such as:

• the time required for their requested extension;
• their buildings;
• their commercial operations;
• the history of their properties; and,
• maps identifying the location.

[61] CP asserts that it appears as though the commercial owners are not familiar with the application and the features of the CRG. CP claims that the deeper tunnel location of the CRG relative to the Existing Tunnel is expected to reduce vibration levels. CP goes on to state that an engineering analysis was completed for buildings located adjacent to the proposed CRG alignment, and risks to building structures due to the CRG construction activities are predicted to be low. CP responded to each issue raised by the commercial owners and concluded that the commercial owners have not raised any relevant issues.

1508989 Ontario Inc. and 1775835 Ontario Inc. – Additional filing

[62] On June 13, 2013, the commercial owners filed the Vibration Assessment Report (Akoustik Report) in support of their initial filing. The Akoustik Report determined that the vibration levels from existing railway operations measured at the commercial owners’ properties significantly exceeded the Ontario Ministry of Environment’s guideline of 0.14 mm/s RMS.

[63] On May 13, 2015, CP filed supplementary information that included a peer review of the Akoustik Report by Valcoustics Canada Limited which, according to CP, concluded the following:

• Vibration measurements and assessment provided by the commercial owners’ consultant relate only to railway operations in the Existing Tunnel which are irrelevant to this application. Some other important details of the measurements were also not provided. In addition, the Akoustik Report does not assess or address the potential impacts of vibration from the construction or operation of the New Tunnel;
• Vibration measurements are compared to a criterion used in the land use approvals process for sensitive land uses such as residential, and that criterion is not intended to apply to commercial land uses. The vibration criteria commonly used for commercial land uses, by various authorities, are higher;
• Part of the analysis is technically incorrect; and,
• The reported vibration magnitudes are well below the criteria generally used as the threshold for potential risk of damage to buildings.

Federal government consultations

[64] CP submits that from 2010 to 2012, it met and corresponded with representatives of TC, PPP Canada and the Canadian Consulate General to introduce and discuss the CRG.

[65] CP points out that the CRG requires CMA subsurface leases administered by the Windsor Port Authority. To that end, CP submitted a letter from David Cree, President and CEO of the Port of Windsor, in which Mr. Cree confirms that the Windsor Port Authority supports the CRG.

Municipal and provincial government consultations

[66] CP conducted municipal and provincial government consultations concerning the CRG and, according to CP, key subject items included:

• identification of economic and employment benefits of the CRG for the locality, Ontario and Canada;
• information updates regarding the CRG;
• discussion regarding the CRG, infrastructure issues, and regional planning;
• approvals required for the CRG;
• identification of concerns regarding the CRG; and,
• incorporation of any mitigation measures.

Results of the municipal and provincial government consultations

[67] CP asserts that the haul routes for the construction trucks that will be travelling between the construction service area and the off-site disposal facility were chosen after consultation with the City of Windsor. CP asserts that the haul routes were considered based on the following factors:

• number of residences;
• distance;
• presence of schools;
• road classification (including designation as a truck route);
• intersection accessibility to Highway 401; and,
• suitability to the Municipality.

[68] CP states that:

Of the five (5) alternatives considered, Alternative 2 (College Avenue – Huron Church Road) and Alternative 3 (Crawford Avenue – Techumseh Road – Huron Church Road) were selected as being best suited for the following reasons:

• Both are designated as truck routes by the City of Windsor’s Public Works Department;
• Truck traffic is already abundant on large sections of these routes; and
• Both routes provide direct access to EC ROW Expressway and Highway 401 (via Huron Church Road).

Support for the project

[69] CP provided letters of support from the following stakeholders:

• City of Windsor;
• Port of Montreal;
• Windsor Port Authority;
• Canadian Chamber of Commerce;
• American Honda Motor Company;
• Automotive Parts Manufacturers’ Association;
• Windsor-Essex Regional Chamber of Commerce;
• Ontario Chamber of Commerce;
• Windsor Essex Economic Development Corporation;
• Heavy Construction Association of Windsor; and,
• Ross Clarke of Lesperance Road in Tecumseh, Ontario.

Agency findings – section 98 of the CTA

[70] The Agency has considered CP’s submissions with respect to the location of the railway line, the requirements for railway operations and services, and the interests of the localities. Moreover, the Agency has considered the submissions from supporters of the CRG who state that its proposed construction will benefit the local community.

[71] The Agency has also considered the comments received through the public consultation process, as well as the municipal and provincial governments’ consultation process. The Agency has also considered both the Akoustik Report and the Valcoustics Canada Limited’s peer review, and finds that CP addressed and accommodated through various measures the concerns of the localities affected by the line. The Agency finds that the evidence submitted relating to the public consultations conducted by CP is sufficient for it to meet its obligations under section 98 of the CTA.

[72] Further, the Agency finds the specific noise and vibration mitigating measures proposed by CP during construction to be appropriate in the circumstances. CP indicated that no formal construction schedule and tendering of construction activities have been developed at this time. With noise and vibration measures implemented as outlined in the conditions that follow, the Agency considers that the noise and vibration impacts from the construction of the CRG on the interests of the localities will be addressed.

[73] Taking all of the submissions into account, the Agency finds that, with the successful implementation of the conditions that follow, the location of the proposed railway line is reasonable, taking into consideration the requirements for railway operations and services and the interests of the localities that will be affected by the line.

CONSULTATIONS WITH ABORIGINAL GROUPS

[74] Prior to issuing an authorization under subsection 98(2) of the CTA, the Agency must be satisfied that Aboriginal consultation and accommodation undertaken have been adequate by assessing how proposed activities within the Agency’s jurisdiction may adversely impact potential or established Aboriginal or Treaty rights. As part of this assessment, the Agency sought to identify the Aboriginal groups potentially impacted, the strength of claim of those Aboriginal groups, the consultation and accommodation activities that have been conducted with those Aboriginal groups and whether those consultation and accommodation activities were adequate.

[75] In cases where a strong duty to consult exists, the Agency seeks to address Aboriginal concerns, and avoid or minimize any adverse impact on potential or established Aboriginal or Treaty rights as a result of the proposed activities within its jurisdiction. In cases where the duty to consult is weak, the consultation and accommodation activities may be limited in nature. In addition, while doing its assessment, the Agency also works cooperatively with other federal government departments and agencies such that the consultation and accommodation activities are efficient and effective.

[76] In its application, CP states that:

The closest First Nation is the Walpole Island First Nation, approximately 50 kilometres away from the Project Site situated at the mouth of the St. Clair River. The Proponent sent a letter on November 2, 2012 by registered mail to inform the First Nation of the Proposed Facility and to invite them to attend the Public Information Session in Windsor. No response has been received.

[77] In addition, CP filed a copy of a letter sent by TC to the Walpole Island First Nation informing it that it had received an application from CP for a permit under the NWPA in relation to the CRG.

[78] The Agency notes that TC identified and contacted Aboriginal groups that the CRG had the potential to adversely impact.

[79] Notwithstanding TC’s efforts, Walpole Island First Nations did not submit a response to either CP or TC as a result of the solicitations.

Agency findings – Aboriginal consultations

[80] The Agency notes that the Crown’s duty to consult Aboriginal groups in respect of the Agency’s approval of the application was assumed by the Minister of Transport, Infrastructure and Communities at the time the permit was issued under the NWPA on March 19, 2013.

[81] In addition, as the construction of the CRG occurs either underground or within a highly disturbed railway corridor, the potential impact on Aboriginal rights and title is low. Despite this low potential for impact, the Agency notes the long history of habitation by various Aboriginal people stated in CP’s submission entitled Archaeological Background: Final Report (Fisher Report) and that within two kilometres of the CRG, CP has submitted that there are two Aboriginal sites noted in the Ontario Archaeological Sites Database with the closest site being 1.3 kilometres from the CRG.

[82] The Fisher Report states that:

Should previously undocumented archaeological resources be discovered, they may be a new archaeological site and therefore subject to Section 48(1) of the Ontario Heritage Act. The proponent or person discovering the archaeological resources must cease alteration of the site immediately and engage a licensed consultant archaeologist to carry out archaeological fieldwork, in compliance with sec. 48(1) of the Ontario Heritage Act.

[83] In addition, should such archaeological resources be discovered, they may represent resources of specific interest to Aboriginal groups within the vicinity of the CRG. The Agency finds that these local Aboriginal groups must be engaged in assessing the potential that these resources, should they be discovered, are Aboriginal in nature and the further course of action required to secure the preservation of said resources.

[84] The Agency, in its consideration of the consultations with Aboriginal groups, finds that the consultations concerning the CRG’s potential impacts on the rights of First Nations were adequate.

CONCLUSION

[85] In light of the above, the Agency, pursuant to subsection 98(2) of the CTA and subject to the following conditions, authorizes the construction of the railway line as shown on the Plans.

CONDITIONS

[86] CP shall file with the Agency, to its satisfaction, and prior to the commencement of construction:

1. A plan to address the risk of a major ingress of material from the Detroit River;
2. An analysis of baseline vibration conditions, as outlined in the vibration plan, that is currently being experienced by the localities for a period of no less than four weeks; and,
3. Upon the tendering of construction activities, a detailed noise study to assess construction activities in and around the construction service area, in proximity to the residential areas. The study should include general loading operations and the type of back-up alarms that will be used and truck routes and idling of trucks in the staging areas. The study must demonstrate that there will be no significant adverse impacts on the nearby residences.

[87] CP shall, during construction:

1. Implement the commitments, mitigation measures, best practices and procedures for the protection of the interests of the localities as set out in its application and supplementary information provided as part of its filings; and,
2. Cause no variation in those commitments, mitigation measures, best practices and procedures without prior approval from the Agency.

[88] CP shall file, once continuous operations have commenced, an analysis of the vibration conditions being experienced by identified localities in the vibration plan for a period of no less than three months after the commencement of operations. Should the said localities be experiencing greater vibration than the baseline vibration conditions, CP shall file a plan, to the satisfaction of the Agency, with the measures to be implemented to reduce vibration back to the baseline vibration conditions.

[89] On June 29, 2015, CP, on behalf of its Detroit River Tunnel Partnership with Borealis Infrastructure, issued the following statement:

The Continental Rail Gateway replacement tunnel is being idled pending review by the partners, Canadian Pacific and Borealis Infrastructure. At present, the business case and economics of the project are not sufficient to proceed with a majority privately funded development. We continue to focus our attention on the existing tunnel, which remains in full commercial operation and is a key component of Canadian-United States border infrastructure.

[90] Section 28 of the CTA states, in part, that:

The Agency may in any order direct that the order or a portion or provision of it […] shall have force for a limited time […]

[91] Given that the Agency’s consideration of the CRG, including the interests of the localities that will be affected by the line, is based on information provided by CP that is relevant at a specific point of time, the Agency finds it appropriate to order that the authorization be valid for a limited time. Accordingly, the Agency orders that the authorization remains valid for two years from the date of this Decision. If CP does not commence construction of the New Tunnel within two years from the date of this Decision, CP will be required to re-apply for approval pursuant to subsection 98(2) of the CTA.

OTHER MATTER

[92] The Agency notes that the CRG could impact existing crossings located within the CRG’s footprint. Pursuant to subsection 101(3) of the CTA, the Agency may, on application, authorize the reconstruction of crossings and related works and apportion the construction and maintenance costs if the parties cannot reach an agreement.