Decision No. 424-R-2012

Introduction

Complaint

[1] On February 21, 2012, Merg Kong (complainant) filed a complaint with the Canadian Transportation Agency (Agency) concerning railway operations near her residence on Viking Lane, in the city of Toronto, Ontario. This complaint is made pursuant to section 95.3 of the Canada Transportation Act (CTA) against the Canadian Pacific Railway Company (CP) regarding noise and vibration caused by its operations.

Issue

[2] Is CP, in conducting its railway operations, meeting its obligation under section 95.1 of the CTA by causing only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the operation takes place?

Background

[3] The complainant lives on the third floor of a 30-storey high-rise residential condominium (condo) building that was constructed in 2009. Her south-facing unit overlooks St. Alban’s Road (a four-lane arterial road), a Toronto Transit Commission (TTC) bus terminal, a TTC subway station, a GO Transit station and CP’s railway tracks.

[4] The CP tracks (Galt Subdivision) are located approximately 100 metres from the condo building and consist of two mainline tracks and a spur track. There are also a cross-over and two switches and frogs located approximately 250 metres away. This CP railway corridor has been in existence since 1885.

[5] CP’s railway operations through the area consist of 14 to 16 mainline trains passing daily. These trains are typically 7,000 to 8,000 feet long with three head diesels carrying general freight at 50 mph. CP also operates two local switcher trains daily that leave CP’s Lambton Yard at Runnymede Avenue, approximately 700 metres to the east, serving customers in the Toronto area. There is one additional train that departs and arrives daily, Monday to Friday, from CP’s Obico Intermodal Terminal, located off North Queen Street, approximately 1,000 metres from the condo building that carries container traffic between Montréal, Quebec and Chicago, Illinois, United States of America. CP shares this mainline track with GO Transit for its commuter trains.

Preliminary Issue

[6] CP requests that the complaint be dismissed as the complainant has not provided sufficient information to constitute a prima facie case. CP refers to Decision No. 273-R-2012 in which the Agency established that an applicant bears the burden to prove their allegations in order to succeed, and must present “sufficient evidence to make its arguments persuasive [...]”.

[7] CP claims that an applicant must present enough evidence to support their position by establishing the facts, and the respondent should not have to guess and respond on that basis. Further, CP submits that, in this case, the complainant has not provided sufficient evidence and has not disclosed a reasonable cause of action. According to CP, it is CP that is being asked to surmise when and where the noise and vibration takes place, who or what might be the cause and what solutions, if any, might be appropriate.

[8] The complainant argues that her complaint should not be dismissed as she and her neighbours do, in fact, live by mainline tracks with noise and vibration issues, and much of the evidence CP claims is insufficient is contained in her application, specifically the time frames, the location, and municipal contacts.

Agency finding on the preliminary issue

[9] Decision No. 273-R-2012 concerned an alleged violation of interline charges and CP’s unwillingness to obtain data from CN. In that Decision, the Agency stated:

At the outset, it must be repeated that there is an initial evidentiary burden upon the applicant to adduce sufficient evidence in support of its complaint. While authorities indicate that the threshold is low, an applicant must show, to a prima facie degree, that it has a viable claim against the responding party. In Phipson on Evidence 16th edition (the Common Law Library London Sweet & Maxwell 2005) the authors explained that, “the evidential burden is sometimes referred to as ‘the duty of passing the judge,’ or ‘the burden of adducing evidence.’ It obliges the party on whom the burden rests to adduce sufficient evidence for the issue to go before the tribunal of fact.”

[10] The burden of proof lies with the complainant to present enough evidence to justify consideration of the issues. The jurisprudence establishes that this threshold for the complainant is fairly low and that decision makers should be cautious before striking out a case at the initial stage. In Hunt v. Carey Canada, 1990 Can LII 90 (SCC), [1990] 2 S.C.R. 959 (Hunt), the Supreme Court of Canada makes it clear that a claim must be read generously with allowance for inadequacies due to drafting deficiencies. In Hunt, the Supreme Court of Canada emphasizes that a decision maker should only exercise its discretion to strike a claim when it is plain and obvious that, on the basis of the facts put forward in the application, the claim does not disclose a reasonable cause of action.

[11] It is well settled law that when considering the issues of disclosure of a reasonable cause of action, it is irrelevant to determine whether a case is weak and not likely to succeed. What is important is to examine if the particulars raise some question fit to be decided. The test would be considered satisfied if the application reveals that the applicant has a right at law or by statute and that such right has been affected. Wilson J., giving the reasons in Hunt, put it in this way:

[...] assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

[12] In this case, the Agency notes that the complainant alleges that she has been affected and predicated by CP’s acts. She has completed the Agency’s noise and vibration complaint form and answered additional questions posed by Agency staff to complete the application. In addition, the Agency determined that she has exhausted the collaborative measures, as outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines), which is required before the Agency can investigate a complaint.

[13] The Agency is of the opinion that the complainant has presented a prima facie case as she has outlined her complaint and did present a case for CP to answer.

[14] Therefore, CP’s motion is dismissed.

Positions of the parties

Complainant

[15] The complainant states that the noise and vibration from CP’s railway operational activities occur day and night, but mostly affect her sleep and the sleep of other building tenants. She has provided a list of the times that she has been affected by railway noise. The complainant maintains that the noise is from passing trains and wheel/rail interface, but adds that there is also noise from switching and shunting of cars and whistling. She claims that damage to her property due to vibration is unknown. The complainant adds that the only change to noise levels from CP’s railway operations since she purchased her unit was a reprieve during the recent CP strike. She refers to the World Health Organization findings on the serious effects of excessive noise on human health.

[16] The complainant points out that the track lies approximately 100 metres from her building. In this regard, she refers to a suggestion by the Railway Association of Canada and the Federation of Canadian Municipalities that a mainline rail corridor be 300 metres away from the building.

[17] The complainant indicates that the condo has caveat warnings of noise in purchase agreements, but she has been unable to obtain any documentation from the builder (Tridel) or the City of Toronto with respect to any noise studies or noise mitigation commitments that may have been placed on the condo building.

[18] The complainant requests that CP upgrade windows for the affected units as she was advised that her suggestions of slowing the trains could increase noise levels and a noise barrier can only mitigate noise up to a height of three stories.

CP

[19] CP states that this railway corridor has been in existence since 1885, and CP freight operations and train frequencies have not changed at this location for over 20 years.

[20] CP maintains that its mainline operations at this location are entirely compliant with the legislated standards of section 95.1 of the CTA.

[21] According to CP, the tracks are built with a mix of 115 lb. and 136 lb. continuously-welded rail with no bolted rail joints. All of the track infrastructure is in good condition and is routinely inspected. Also, CP claims that all equipment, including motive power and rolling stock, is operated and maintained according to industry standards which ensures, among other things, minimum pass‑by noise arising from transit power, wheel/rail interface and rail joint/switch/turnout impacts.

[22] CP adds that its train speeds, lengths, motive power and the size of its consists reflect typical mainline freight operations, and that all ancillary operations such as train idling, staging, parking, crew change operations, air-brake and diesel load testing and repair take place outside this location.

[23] CP contends that this complaint does not relate to noise and vibration from whistling or switching and shunting. CP claims that there is no car coupling or uncoupling, humping or other yard operations at or near this location. CP adds that switching operations at Lambton Yard are conducted with small consists at very slow train speeds. Also, CP is not aware of any vibration damage encountered by the complainant.

[24] As the complainant’s residence is located in a congested urban environment, CP is unsure whether the noise and vibration issues are attributable to CP, or exacerbated by the multiple sources of noise at this location.

[25] These include:

• St. Alban’s Road – a four-lane arterial road located between the complainant’s condo and CP’s mainline tracks;
• the TTC Kipling Subway Station – an above ground station with at-grade subway tracks that operates seven days a week, located 80 metres from the condo;
• a bus terminal – also located at the TTC Kipling Subway Station – that is in operation from 4:30 a.m. to 1:50 a.m. daily;
• an airport – located approximately four miles from the condo;
• a GO Train station – located on the far side of the TTC Kipling Station – that provides passenger train service on CP’s mainline tracks between Milton and downtown Toronto every two to three minutes during rush hours and every four to five minutes during off‑peak times;
• an above-ground public parking complex located 200 metres from the condo; and,
• the Kipling Avenue bridge – a major public roadway that spans CP’s mainline tracks and the subway line, located 110 metres from the condo.

Analysis and findings

[26] The initial step in the analysis of noise and vibration complaints is to determine the existence of noise and/or vibration and whether it constitutes substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.

[27] To make a determination on the existence of noise and/or vibration which may constitute substantial interference for the complainant, the Agency will consider the elements outlined below. These elements are outlined in the Agency’s Guidelines and in Decision No. 35‑R‑2012.

[28] These elements include the:

• characteristics and magnitude of the noise or vibration (such as the level and type of noise, the time of day, the duration, and the frequency of occurrence);
• relevant noise or vibration measurements or studies conducted in the area affected;
• presence of ambient noise other than that of railway operations, such as highway noise;
• impact of the noise or vibration disturbance on the persons affected; and,
• relevant standards to assess the significance of the effects of noise and vibration levels.

[29] If the Agency finds that the noise and vibration is not causing substantial interference, there is no need to pursue the analysis further.

[30] However, if the Agency finds that the noise and vibration is causing substantial interference, it proceeds to the next level of analysis, which is a balancing of the noise and vibration against the criteria set out in section 95.1 of the CTA to determine whether the noise and vibration is reasonable.

Substantial interference

Switching and shunting of cars

[31] The complainant claims that switching and shunting of cars contribute to the noise and vibration issues that she experiences. On the other hand, CP claims that there is no car coupling, humping or other yard operations at or near this location.

[32] CP indicates that the switching operations occur at Lambton Yard, approximately 700 metres from the condo, using small consists at slow train speeds.

[33] The Agency finds that sound levels from the switching operations from this distance are likely to be insignificant and not likely to cause sleep disturbances, particularly when compared to the nearby mainline activities. As the Agency finds that switching and shunting operations do not constitute substantial interference, no further analysis is required on this element.

Whistling

[34] Although the complainant claims that whistling is also a source of noise, she provides no information to support her claim. CP maintains that whistling is not a source of noise.

[35] Train whistles are blown for safety reasons to warn of a train’s passage, and are a legal requirement under the Canadian Rail Operating Rules, TC O-0-93 administrated by Transport Canada. The Agency can consider complaints when, for example, whistle blowing is determined to be excessive or abusive and not sounded for safety reasons. However, insufficient evidence has been provided in this case to support an Agency finding that CP’s whistling causes substantial interference. Therefore, no further analysis is required.

Pass-by and wheel/rail interface noise

[36] The complainant identifies noise and vibration from pass-by trains and wheel/rail interface as the main issue in her complaint. Wheel/rail interface noise caused by passing trains is an element of pass-by noise.

[37] The complainant has provided some data on the times of the noise and its impact on her sleep. CP does not dispute that noise exists at this location. Further evidence to confirm the presence of railway noise is the complainant’s observation that noise levels dropped during CP’s recent strike, which CP states occurred between May 23 and June 1, 2012.

[38] With respect to mitigation, neither party has obtained information or evidence of any mitigative measures incorporated into the construction of the condo building. Also, both parties agree that there are no physical mitigation measures such as berms or acoustical fences constructed between the condo building and the railway tracks.

[39] Another element affecting noise levels is proximity to the railway lines and, in this case, the complainant’s residence is located approximately 100 metres from CP’s mainline tracks.

[40] Although CP indicates that 14 to 16 mainline trains pass through this area on a daily basis, there is no information in the pleadings to indicate what percentage of these train movements occur during the night. However, both the complainant and CP acknowledge that railway operations occur 24 hours a day, 7 days a week. As the complainant’s concerns relate to sleep interruptions, it can be inferred that her noise issues relate to night-time hours.

[41] Noise levels from passing trains are much more perceptible at night when ambient sound levels are normally reduced, particularly in busy urban areas. Therefore, the Agency is of the opinion that it is CP’s pass-by train operations that are the most likely cause of the complainant’s night-time noise interferences.

[42] The Agency considers noise during the night to be generally less acceptable than in the daytime period and has recognized, as a principle, that noise at night can be more disturbing than noise during the day. This conclusion is consistent with Decision No. 220-R-2012 and Decision No. 35-R-2012.

[43] Considering the impacts of the noise on the complainant, the proximity of the condo to the railway lines, the lack of noise mitigation measures and the time that the noise occurs, the Agency finds that evidence provided is sufficient, in itself, to support a finding that the noise of passing trains causes substantial interference for the complainant.

[44] Furthermore, this finding is consistent with the results that would be obtained by an application of the Noise Measurement and Reporting Methodology (Methodology). The Methodology was developed by the Agency in consultation with key industry players, including representatives of CP, to guide railway companies, citizens and municipalities in determining noise levels for the purpose of Agency proceedings. The Methodology is publicly available on the Agency’s Web site at www.otc-cta.gc.ca/eng/railway_noise_measurement. Method A of the Methodology sets out basic principles to be used in producing a quick and easy calculation to estimate potential noise impacts.

[45] Using Appendix A of the Methodology, the table for a single pass-by train, which typically operates at a speed of 50 mph (80 km/h), has three head diesels and a length of 8,000 feet, the sound level during the night, at a receptor distance of 30 metres, is projected to be 62 dBA. Assuming approximately 0.8 trains per hour, and taking into consideration the noise reduction over a distance of 30 to 100 metres, as well as estimating, using the Methodology procedure, the outdoor-to-indoor noise transmission loss with windows closed, the estimated sound level would exceed the World Health Organization threshold for sleep disturbance.

[46] The estimated sound level does not include any special adjustments, as noted in the Methodology, to account for any potential low frequency effects or building resonances which may result in greater annoyance. Character adjustments, where appropriate and as indicated in the Methodology, may be added to the total sound level to account for greater annoyance of a unique sound.

Reasonableness

[47] Having determined that CP’s pass-by noise is, in fact, sufficient to cause substantial interference, the Agency must determine whether this noise is reasonable.

[48] Section 95.1 of the CTA imposes an obligation on railway companies to cause only such noise as is reasonable, taking into account their level of service obligations (as legislated under sections 113 and 114 of the CTA), their operational requirements and the area where the operation takes place.

[49] The Guidelines state: “Reasonableness is determined on a case-by-case basis and relates to an objective sense of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances. The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations. Overall, this balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.”

[50] Railway operations, by their nature, cause noise, and railway companies must operate night and day. The Agency agrees that this main line is an integral part of CP’s railway operations as it carries a high volume of both intercity freight traffic and local traffic and is also used by GO Transit for commuter passenger operations. Furthermore, the Agency acknowledges that mainline operations have taken place at this location for more than 100 years and that the operating characteristics and frequencies have changed little in the past 20 years.

[51] On the other hand, the condo building in which the complainant lives was completed in 2009 and the complainant has lived there for 2 1/2 years. The area in which it is located is relatively densely populated and surrounded by busy arterial roads and rail lines. In addition to road and highway traffic, TTC subway trains and buses and GO trains all operate in the area and contribute to the noise levels.

[52] The Agency must consider the fact that the railway tracks were at this location before the construction of the condo, and noise and vibration from railway pass-by operations existed before the condo construction and unit purchases. Also, the Agency must consider the fact that CP’s operations have not changed since the complainant purchased her condo unit.

[53] The Agency notes that the complainant refers to a suggestion by the Railway Association of Canada and the Federation of Canadian Municipalities that a mainline rail corridor be 300 metres away from the building. According to the Proximity Guidelines and Best Practices – Reprinted August 2007 (Proximity Guidelines), 300 metres is the recommended minimum noise influence area to be considered when undertaking noise studies for mainline rail corridors. Residential development within the influence area should include noise and vibration studies to assess the suitability of the proposed use and to recommend mitigation requirements. The Proximity Guidelines were developed to provide model development guidelines, policies and regulations and best management practices for when new construction is planned. In this case, although the condo was built 100 metres from the mainline tracks, there is no evidence that any mitigation was considered for this area or incorporated into the condo building construction.

[54] The Agency agrees with the complainant that the existing noise levels may cause substantial interference at night. However, the Agency, in balancing the noise concern in the context of section 95.1 of the CTA, finds, in this case, that weight must be given to CP’s level of service obligations and operational requirements. The Agency also finds, in this case, that considerable weight must be given to the fact that the mainline operations existed at this location before the construction of the condo, noise and vibration from railway pass-by operations existed before the condo construction and the operating characteristics and frequencies of the main line have changed little in the past 20 years.

[55] Taking all of the above factors into consideration, the Agency finds that the complainant has failed to demonstrate that CP is not meeting its obligation under section 95.1 of the CTA.

Conclusion

[56] As the Agency finds that the complainant has failed to show that CP has not met its obligation under section 95.1 of the CTA to cause only such noise and vibration as is reasonable with respect to CP’s railway operations located near the complainant’s condo unit at 25 Viking Lane, in Toronto, this complaint is dismissed.