Decision No. 4-R-2024

Summary

[1] Mirine Cho filed an application with the Canadian Transportation Agency (Agency) under the Canada Transportation Act (CTA) concerning noise and vibration arising from CPKC’s operations, including alleged construction activities, near her residence, at approximately mile point 49 of CPKC’s Adirondack Subdivision in Mont‑Royal, Québec.

[2] Ms. Cho seeks an order from the Agency that would prevent CPKC from operating trains or performing construction in the area between the hours of 11:30 pm and 6:00 am.

[3] CPKC argues that it is causing only such noise and vibration as is reasonable considering its level of service obligations, operational requirements, and the characteristics of the area. CPKC submits that the application should be dismissed.

[4] For the reasons set out below, the Agency finds that, while the noise and vibration levels caused by CPKC’s operations constitute substantial interference at Ms. Cho’s residence, they are reasonable given the area, as well as CPKC’s level of service obligations and operational requirements. The Agency, therefore, dismisses the application.

Preliminary matter

[5] In her application, Ms. Cho refers to construction activities performed by CPKC near her residence between June 11 and June 22, 2023. CPKC clarified that it performed maintenance activities during that period, not construction. Ms. Cho did not dispute CPKC’s statement. Therefore, the Agency will refer to the activities as maintenance activities.

Background

[6] Ms. Cho’s residence is a unit in a condominium building located at 245 Chemin Bates and is approximately 100 metres from CPKC’s railway line.

[7] The Adirondack Subdivision was constructed in 1882. While other railway companies operate on CPKC’s tracks in this area, Ms. Cho’s complaint is focused on the movement of freight traffic overnight by CPKC and on maintenance activities performed between June 11 and June 22, 2023.

The law

[8] 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.

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

[10] It is clear from the legislative framework and the National Transportation Policy set out in section 5 of the CTA that, in exercising its mandate relating to 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 a “competitive, economic and efficient national transportation system … to serve the needs of its users, advance the well-being of Canadians and enable 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

[11] In Decision 35-R-2012 (Normandeau and Tymchuck v CP), the Agency established the analytical framework for determining whether a railway company is complying with its noise and vibration obligations:

1. The Agency must first determine whether a railway company has caused noise and vibration that constitutes substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person; and
2. If there is substantial interference, the Agency must balance the noise or vibration against the criteria set out in the CTA.

[12] In determining the existence of noise and vibration that may constitute substantial interference for applicants, the Agency considers several elements, as outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines) and in Normandeau and Tymchuck v CP, 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;
• the characteristics and magnitude of the noise or 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 or vibration disturbance on the persons affected; and
• mitigation methods and mitigation efforts made by the parties.

[13] The onus is on the applicant to demonstrate that the noise or vibration caused by a railway company’s current operations constitutes substantial interference.

[14] If the Agency finds that the noise or vibration is causing substantial interference, it determines whether the noise or vibration is reasonable in the circumstances by balancing the noise or vibration against the criteria set out in the CTA – the railway company’s level of service obligations, its operational requirements and the area where the railway operation takes place.

Positions of the parties

Ms. Cho

[15] Ms. Cho claims that two CPKC freight trains pass by her residence daily between 11:30 pm and midnight, and another CPKC freight train passes by 3 to 4 times per week between the hours of 1 am and 4 am. She submits that each occurrence lasts approximately 4 to 8 minutes.

[16] Ms. Cho also alleges that CPKC was performing work in the area between 1 am and 2 am, from June 11 to 14 and from June 19 to 22, 2023.

[17] Ms. Cho has provided the following in support of her claim:

• a log of dates and times that freight trains have passed by her residence between June 26, 2023, and September 2, 2023, during night hours;
• three screen captures showing noise measurements taken with her smartphone inside her residence with all windows closed, the loudest of which was 81 dB at 11:55 pm on July 26, 2023;
• six different videos of passing trains and one video of railway work being done; and
• an extract of a report prepared by the World Health Organization (WHO), regarding community noise and its impact on sleep.

[18] Ms. Cho submits that her sleep is disturbed every day by passing CPKC freight trains, and that this is affecting her health by causing migraines, fatigue and brain fog, and is preventing her from being able to concentrate while at work. She claims that, according to the WHO, continuous sound should not exceed 30 dBA.

[19] Ms. Cho seeks an order from the Agency that would prevent CPKC from operating its trains between 11:30 pm and 6:00 am.

CPKC

[20] CPKC states that its Adirondack Subdivision was constructed in 1882, well before Ms. Cho’s residence was built. CPKC states that according to a review of Google maps, the building was built in approximately 2017. It notes that her residence is close to a railway crossover switch, but states that both its railway and this switch were in place prior to 2017 and, therefore, its operations in this area predate the construction of Ms. Cho’s residence and her living there. CPKC’s estimates that the distance from its switch to Ms. Cho’s building is 22 metres.

[21] CPKC states that its Adirondack Subdivision is an integral part of the global supply chain through import and export via the Port of Montréal, serving domestic and international customers. The subdivision is host to a significant amount of EXO commuter train traffic, as well as freight train traffic by the Quebec Gatineau Railway, making it a very important and busy railway corridor.

[22] CPKC submits that, according to Statistics Canada, the Outremont federal electoral district where Ms. Cho resides has a population density of 8,677.6 people per square kilometre, and that the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology) indicates that an area with this population density would be classified as a “noisy urban residential area”.

[23] CPKC assessed the potential noise impacts inside Ms. Cho’s residence. Using the Methodology, CPKC estimates the one-hour average sound level outside Ms. Cho’s residence attributed to railway crossover to be 61 dBA. To factor in the noise reduction from the exterior to the interior of Ms. Cho’s residence, CPKC considered a reduction of 27 dBA when the window is closed, resulting in a one-hour average sound level of 34 dBA inside her residence attributed to railway crossover noise. For comparison purposes, CPKC submits that according to the Methodology, the ambient noise in the surrounding environment (including all sounds except those resulting from CPKC’s operations) outside Ms. Cho’s residence is estimated to be 65 dBA during the day and 55 dBA at night. CPKC also approximates the maximum sound level (Lmax) railway crossover noise outside Ms. Cho’s residence to be 87 dBA (maximum).

[24] CPKC submits that, while according to the WHO report that Ms. Cho has submitted, continuous sound level above 30 dBA can have a negative impact on sleep, CPKC’s passing trains do not cause a continuous sound as the duration of sound exposure is 4 to 6 minutes. Additionally, CPKC asserts that the railway crossover noise experienced by Ms. Cho is not significantly different from the background noise levels expected in a “noisy urban residential area”.

[25] CPKC claims that Ms. Cho has not met her burden of proof to establish that the noise causes substantial interference.

[26] CPKC also claims that, even if the Agency were to find that the noise level caused by its operations is a substantial interference, the noise is reasonable based on CPKC’s level of service obligations, operational requirements, and the local area.

[27] CPKC states that, as part of its level of service obligations, it delivers traffic to and collects traffic from the Port of Montréal via its Outremont Spur and Hochelaga Yard.

[28] CPKC states that the Port Authority, which operates and maintains the railway and controls track availability within the Port of Montréal, has assigned it a priority window daily from noon until midnight to deliver and collect railway cars. As a result, CPKC moves traffic through its Adirondack Subdivision based on this window. It submits that the disturbances Ms. Cho has claimed are due to these trains, or locomotives, returning from its Hochelaga Yard.

[29] In relation to the maintenance noise reported by Ms. Cho, CPKC claims that it was replacing railway switch ties within the Adirondack Subdivision near Ms. Cho’s residence. CPKC claims that its tracks in this area are used by EXO passenger commuter trains that operate between 6:06 am and 11:39 pm, and that the maintenance was scheduled for the overnight hours to avoid disruptions to EXO’s commuter train service.

Analysis and determination

Issue 1: Does the noise caused by CPKC’s operations constitute substantial interference?

[30] CPKC disputes the sufficiency of the evidence filed by Ms. Cho and argues that:

• the seven videos do not show sound level measurements;
• the screen captures from a smartphone application of noise measurements taken from inside her residence with the windows closed do not include ambient noise measurements from inside her residence for comparison.

[31] The Agency finds that Ms. Cho’s evidence is insufficient. As a result, it is not in a position to compare the railway-related noise to the ambient noise inside her residence. In absence of evidence on the actual level of noise at the location, the Agency recognizes CPKC’s calculations, which considered both the one-hour average sound level and the maximum sound level. CPKC’s calculations, which are based on the Methodology and are accepted by the Agency, indicate that 87 dBA is the maximum sound level outside Ms. Cho’s residence caused by the crossover switch. While background noise could potentially drown out, or reduce, the perceived intensity of specific sounds in certain situations, this crossover noise significantly exceeds CPKC’s estimated ambient noise levels (65 dBA during the day and 55 dBA during the night). Consequently, the Agency finds that ambient noise will not have any masking effect.

[32] Although CPKC did not provide calculations with respect to the maximum crossover noise inside Ms. Cho’s residence, a reduction of 27 dBA when the window is closed can be applied based on the Methodology. This adjustment (87 dBA - 27 dBA) would result in a maximum sound level of 60 dBA.

[33] According to the WHO report provided by Ms. Cho, when non-continuous noise events rise above 45 dBA, there is an increased likelihood of sleep disturbances. Therefore, based on these factors, the maximum crossover noise level inside Ms. Cho’s residence would be approximately 15 dBA higher than the WHO threshold level for sleep disturbance. As noted in the Methodology, railway crossover noise is a result of the interaction of steel wheels and rail crossovers generating a “ka-thunk” noise that can be distinct and audible over and above the tangential rail track noise. In the case at hand, this specific sound occurs during a time when people are sleeping and are more sensitive to noise. The Agency finds that Ms. Cho’s claim of sleep disturbance, causing fatigue and loss of concentration, is consistent with the estimated higher decibel levels.

[34] Based on the above, the Agency finds that the noise caused by CPKC’s trains passing over the switch near Ms. Cho’s residence constitutes substantial interference at Ms. Cho’s residence.

Issue 2: Is CPKC 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?

[35] Having determined that CPKC’s operations are causing substantial interference at Ms. Cho’s residence, the Agency must now determine whether the noise is reasonable in light of the criteria set out in the CTA.

[36] The CTA is economic regulatory legislation and, accordingly, in respect of railway noise, it balances the interests of applicants with the interests of railways and their customers in providing and receiving rail transportation services.

[37] Ms. Cho’s residence is located next to CPKC’s primary route for moving traffic to and from the Port of Montréal. The Agency accepts that CPKC’s operations in the area predate the existence of Ms. Cho’s residence by over one hundred years. Ms. Cho has not indicated whether a barrier exists between her property and the railway, or whether the building incorporates any noise abatement features respecting windows or other elements, but she was aware or should have been aware that the residence she purchased was in close proximity to railway operations.

[38] As the Agency stated in paragraphs 57 and 58 of Decision 69-R-2014 (Girard v CP) involving similar circumstances to the case at hand:

A Municipality takes a risk when deciding to allow housing development in close proximity to a railway right of way and the Agency is of the opinion that Municipalities have a responsibility to assess compatibility issues before approving a housing development along a railway right of way, and if they approve a development, to ensure that the necessary mitigation measures are implemented. The Agency notes that the Municipality apparently authorized the residential construction along CP’s main east-west rail transportation corridor. However, there was no evidence presented to the Agency of any mitigation measures having been implemented. In fact, CP draws attention to the fact that no berm or noise wall was constructed.

The Agency acknowledges that Mr. Girard is disturbed by the noise and vibration levels generated by the passing trains. However, Mr. Girard purchased a house next to a busy rail corridor and there is no evidence that mitigation measures were put in place by the developer or the Municipality.

[39] In the present case, there is no evidence before the Agency to suggest that the municipality or the developer gave any consideration to the impact that railway noise and vibration would have on residents when deciding to undertake a residential development in such close proximity to CPKC’s rail line.

[40] Sections 113 and 114 of the CTA sets out a railway company’s level of service obligations, or what are generally referred to as “common carrier obligations”. Under these sections, a railway company must furnish, according to its powers, adequate and suitable accommodation for the receiving, loading, carrying, unloading and delivering of all traffic offered for carriage on its railway, and that it must carry traffic that is offered without delay.

[41] The Agency acknowledges that, as part of these statutory obligations, CPKC is required to transport freight traffic to and from the Port of Montréal, and that such traffic must be scheduled based on the priority window assigned by the Port Authority. CPKC does not set the times of this operating window and it is not a matter of CPKC’s choice or convenience.

[42] In regard to its obligations to only make such noise and vibration as is reasonable, given its common carrier obligations, CPKC states that it has constructed and properly maintained its railway infrastructure in the area. There is no information before the Agency to suggest that there are additional mitigation measures that the Agency could order to address the substantial interference Ms. Cho experiences due to CPKC’s operations.

[43] By their nature, railway operations cause noise and vibration. In this case, the noise levels caused by trains passing over CPKC’s switch near Ms. Cho’s residence are causing substantial interference. However, in balancing the noise concerns identified by Ms. Cho against the factors identified in section 95.1 of the CTA, the Agency must give considerable weight to CPKC’s level of service obligations and operational requirements.

[44] In regard to the maintenance activities that have taken place after midnight, CPKC has indicated that this timeframe reflects the necessity of not interfering with the operation of the EXO commuter train, which operates scheduled services on the same tracks from 6:06 am to 11:39 pm. Again, the work is not scheduled for CPKC’s convenience. The relief requested by Ms. Cho, daytime maintenance work, would be during EXO’s operating hours, which would impair commuter rail services.

[45] The Agency has considered the importance of efficient public passenger rail services in balancing the interests of people complaining about railway noise against the interests of the railway company. As the Agency found in Decision 221-R-2010 (Groenestein and Wiltshire v Agence métropolitaine de transport) concerning a noise complaint, it is in the public interest that commuter rail services maintain their level of service to ensure that they continue to provide efficient public transportation services to the urban populations that they serve. A corrective measure that would impede the ability of a public passenger service provider to fulfill its mandate and would impact the freight rail service within the overall train corridor was found to not be reasonable in the circumstances of that case. The Agency finds that it would not be reasonable in this case as well.

[46] The Agency has found that the noise caused by CPKC’s operations results in substantial interference at Ms. Cho’s residence. However, when considering the frequency of the disturbances reported by Ms. Cho and the sound levels CPKC’s operations are causing, and that:

• CPKC has significant level of service obligations that must be fulfilled using the Adirondack Subdivision track;
• CPKC’s maintenance work was scheduled to accommodate EXO commuter rail operations;
• CPKC’s operations must be scheduled to align with the priority window assigned;
• Ms. Cho’s residence is located next to a primary route for CPKC to transport traffic to and from the Port of Montreal; and
• CPKC was operating in the area well before Ms. Cho began to reside there;

the Agency finds that such interference is reasonable in light of the criteria under the CTA.

Conclusion

[47] The Agency therefore dismisses the application.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	5; 95.1; 95.3; 113; 114