Decision No. 448-R-2004

An erratum was issued on August 30, 2004

August 13, 2004

File No. R8050/495-295.20

---

APPLICATION

[1] On February 16, 2004, the Regional Municipality of Durham (hereinafter the applicant) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] By letter dated April 23, 2004, the Canadian National Railway Company (hereinafter CN) directed interrogatories to the applicant pursuant to section 19 of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the General Rules), and requested an extension of time to file its answer to the application pending receipt of the reply to the interrogatories.

[3] The Agency, by Decision No. LET-R-123-2004 dated April 29, 2004, established a deadline for the applicant's response to the interrogatories and extended the deadlines for CN's filing of its answer to the application and the applicant's reply to CN's answer.

[4] The applicant provided its response to the interrogatories on May 6, 2004. On May 20, 2004, CN filed its answer to the application. The applicant filed its reply on May 28, 2004.

[5] By Decision No. LET-R-164-2004 dated June 18, 2004, the Agency, pursuant to section 25 of the Canada Transportation Act (hereinafter the CTA) and subsection 18(1) of the General Rules, required CN to file further documents with the Agency and provided the applicant an opportunity to respond to CN's submission. CN's response was received on June 22, 2004 and the applicant's comments were received on June 25, 2004.

FACTS

[6] The applicant intends to construct and operate a large water pollution control plant on property that it has recently purchased in the municipality of Clarington (formerly the township of Darlington), near Oshawa, Ontario. The property in question is divided into two parcels by a railway line. The subject crossing at, or near, mileage 295.20 will provide access to a parcel of land located to the south of the railway line, on which parcel the plant is to be constructed. Subsequent to the applicant's purchase of the Subject Land, CN closed two private crossings on the property that provided access to the parcel located to the south of the railway line.

[7] In September 1854, the Grand Trunk Railway Company of Canada (hereinafter the GTR), a predecessor of CN, purchased a 1.16 acre parcel of land described as part of Lot 28 of the Broken Front Concession in the township of Darlington (hereinafter the 1854 Right of Way) from Richard Osborne for the purposes of building a railway line. The GTR constructed the railway line within the said parcel of land and thereby divided the relevant land into portions north and south of the line.

[8] In a transaction dated June 10, 1903, the GTR purchased portions of Lots 27 and 28 from Richard Edwin Osborne, a descendant and heir of Richard Osborne, in order to relocate the railway line for the purpose of double-tracking the line between Montréal, Quebec and Toronto, Ontario. This parcel of land (hereinafter the 1903 Right of Way) is located to the south of the 1854 Right of Way and the relocated railway line was constructed in or around 1903.

[9] The proposed location for the subject crossing is on the 1903 Right of Way and the applicant is the current title holder of the land on either side of proposed crossing location (hereinafter the Subject Land). The Subject Land has been held in continuous ownership since the conveyance of the 1903 Right of Way by Richard Edwin Osborne.

ISSUE

[10] The issue to be addressed is whether the applicant is entitled to a crossing at or near mileage 295.20 of CN's Kingston Subdivision pursuant to section 102 of the CTA.

POSITIONS OF THE PARTIES

The applicant

[11] The applicant states that its property is divided by the railway line that was constructed in 1903 when the property was conveyed to the GTR from the then owner. The applicant submits that the requested crossing is necessary to access its lands south of the 1903 Right of Way. At the time that the applicant purchased the Subject Land in 2003, access to the parcel of land south of the railway line existed by way of two private crossings that CN had granted to the applicant's predecessors in title. According to the applicant, however, in December 2003, CN advised the applicant that it had unilaterally decided to close both these crossings, thus restricting the applicant's use and enjoyment of its property, particularly the parcel to the south of the railway line. While there is an existing subway under Courtice Road, a public road to the west of the Subject Land, that does offer access to the applicant's properties south of the railway line, the subway is too small to accommodate the size of vehicles that will be necessary for the construction and operation of the plant and thus does not provide suitable access to the Subject Land.

CN

[12] CN submits that the Agency should dismiss the application as there are several reasons that demonstrate that the applicant does not have a statutory right to a private crossing at the requested location.

[13] To begin, CN states that the crossing is not private in nature, but is, in effect, a de facto public crossing. CN notes that the applicant intends to use the crossing to access a water pollution control plant, a facility exclusively for the public benefit. According to CN, the Agency's predecessors have established that if the land on either side of a crossing is privately owned, then the crossing is a private crossing. In the present case, however, the Subject Land on either side of the 1903 Right of Way is publicly owned. Further, CN states that the proposed routing for the crossing diverts from a road allowance across the railway line that was originally reserved when the line was first constructed. CN suggests that the applicant could have chosen to utilize the original road allowance routing and have the Agency determine the proper apportionment of costs between the parties under section 101 of the CTA, the section applicable to public crossings, thereby avoiding the present situation. CN submits that the applicant is instead attempting to achieve the same result (i.e., crossing the railway line), except that pursuant to section 102 of the CTA, the crossing would be constructed at the railway company's expense.

[14] In addition, CN submits that even if the crossing were to be deemed a private crossing, any such right to a crossing under section 102 of the CTA is not available to the applicant, as it is a public body. CN states that the predecessor legislation to section 102 of the CTA is section 215 of the Railway Act, R.S.C., 1985, c. R-2 (hereinafter the 1985 Act), which provides that railway companies shall make crossings for "persons across whose lands the railway is carried". Thus, CN claims that the intent of section 102 of the CTA, which is prefaced by the heading "Private Crossings", is for the granting of rights to persons and/or corporations. CN submits that to "... stretch that right to allow its application to public bodies ..." is beyond the intent of the CTA and to carry the applicant's argument to its logical conclusion would allow public bodies to simply purchase private lands on either side of a railway line, have a crossing constructed at the railway company's expense (as per section 102), and subsequently convert the private crossing into a public crossing.

[15] Moreover, CN claims that no right to a private crossing, whether statutory or not, has ever existed at this location. CN notes that the original line was constructed in 1856 and the owner of any land severed by the construction of a railway prior to the enactment of the original Railway Act, S.C., 1888, c. 29 (hereinafter the 1888 Act) has no statutory entitlement to a private crossing over the railway line. CN adds that although a landowner had no common law right to a private crossing at that time, a right to a crossing could be expressly reserved when the landowner and the railway company were negotiating the purchase and sale of the land and would be reflected in the valuation of the land.

[16] As such, CN claims that when Richard Osborne, a previous owner of the Subject Land, conveyed a portion of the Subject Land to the GTR in 1854, thus severing his property, he chose not to expressly reserve a right to a private crossing over the rail line. As a result, CN claims that no entitlement to a crossing existed in relation to the 1854 Right of Way and, therefore, no right to cross the railway line, whether it be the original railway line or the relocated line, could be transferred to subsequent owners of the Subject Land. CN submits that any compensation for the consequences of the crossing of the land by the railway line and the associated loss of access across the line was reflected in the purchase price that the GTR paid to Richard Osborne.

[17] CN submits that the absence of access across the railway line would be permanent and that the railway company's right to sever the property without providing access across the 1854 Right of Way, for which valuable compensation was paid, should accordingly remain intact and attach itself to the relocated railway line which was constructed along the 1903 Right of Way and also severed the Subject Land. According to CN, just as seniority rights may follow a crossing relocated to accommodate a road deviation, crossing rights should follow a relocated railway line on the same property.

[18] In the alternative, CN claims that even if a statutory right to a private crossing is deemed to have been acquired with the relocation of the railway line, any such right was expressly renounced in the deed by which Richard Edwin Osborne conveyed the 1903 Right of Way to the GTR for the relocation of the railway line. Again, CN submits, the GTR paid valuable compensation to the property owner, Richard Edwin Osborne, for any economic loss associated with the loss of access across the line. CN notes that the instrument dated June 10, 1903 states that the party of the first part (the applicant's predecessors in title) will execute any and every conveyance necessary at law to vest to GTR all title, rights and privileges held by the applicant's predecessors, or which they may acquire therein under the provisions of the 1888 Act. CN submits that as a right to a farm crossing was one of the few rights available to private property owners at that time, the vesting of future Railway Act rights by Richard Edwin Osborne to the GTR in the indenture clearly demonstrates that the applicant's predecessor in title expressly contracted out of its statutory rights to a private crossing.

Applicant's reply

[19] According to the applicant, there is "... nothing in s. 102 which would prevent a public body from exercising its right as an owner of land divided by a rail line ..." . Further, "Section 102 of the Act speaks of an 'owner' of land. It does not distinguish between an individual or corporate owner. ...". Section 215 of the 1985 Act speaks of railway companies making crossings "for persons across whose lands the railway is carried ...". According to the applicant, subsection 35(1) of the Federal Interpretation Act, R.S.C., 1985, c. I-21, defines the term "person" as being: "person", or any word or expression descriptive of a person, includes a corporation."

[20] With respect to CN's position that the crossing is public and not private, the applicant states that it is deemed at law to be a "body corporate". Such a body is capable of owning private property. Its intention is to build a facility that will be secured via gates and fencing, and to which the public will have restricted access. "...The public will have no greater right to have access to this property [the Subject Land] than it would to private property owned by any other corporation."

[21] The applicant agrees that precedents have held that a statutory right to a private crossing can be extinguished by agreement. However, the applicant suggests that the wording of such agreement must be clear and express, and absent such clear wording, an intention to release a statutory right cannot be implied. The applicant also agrees with CN that the ability to expressly contract out of the right to cross existed at the time of the 1903 conveyance; however, the applicant submits that had Richard Edwin Osborne intended to give up any statutory right of access across the 1903 Right of Way, the indenture dated June 10, 1903 would have contained language clearly evidencing this intention. The applicant refers to Harris v. Great Northern Ry. Co. (1917), 21 C.R.C. 193 as authority for its position that, in the context of the current application, "... In the absence of express terms by the applicant's predecessor waiving his right to a farm crossing, no such intention should be construed by implication."

[22] The applicant also claims that the particular clause in the deed dated June 10, 1903 which CN claims evidences the waiving of any statutory right of access by Richard Edwin Osborne, "is merely a granting clause ... that is ambiguous as to its purpose and the parties' intent ...", and as a result, does not evidence a clear and express waiver of the statutory right to a farm crossing. The applicant notes that there are no instruments registered on title to the Subject Land which indicate that any of the applicant's predecessors in title ever expressly extinguished any statutory right to a private crossing.

[23] The applicant also refers to the two private level crossings over the 1903 Right of Way that CN closed in December 2003 after the applicant purchased the lands, as farm crossings which had been in existence at these locations for some time. The applicant claims that the existence of these crossings is inconsistent with the applicant's predecessors having contracted out of any statutory rights under the Railway Act for a private crossing.

ANALYSIS AND FINDINGS

[24] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

Preliminary issue

[25] The Agency notes that by its submissions, CN has questioned whether the applicant can avail itself of section 102 of the CTA. CN submitted that the Agency should dismiss the present application, as filed by the applicant, for various reasons, including: i) the requested crossing is of a public rather than a private nature; and ii) the applicant, as a public body, is not entitled to the statutory rights granted under section 102 of the CTA.

[26] With respect to CN's submission that the crossing is not private, the Agency notes that the CTA does not include a definition of either private or public crossings. Sections 102 and 103 of the CTA, which are prefaced by the heading "Private Crossings," generally govern cases in which a land owner seeks access to its property, while section 101, which is included under the heading "Road and Utility Crossings," generally deals with crossings that are to be used by the general public. The Agency also notes that while the applicant in this matter is a public body that owns the Subject Land, the applicant advised that the crossing will be used to provide access to the Subject Land south of the 1903 Right of Way for the construction and operation of the plant, and that access to the crossing will be secured and therefore not open to use by the general public.

[27] The Agency further notes CN's suggestion that section 101 of the CTA, which deals with agreements respecting the construction, maintenance or apportionment of the costs of road and utility crossings, is the section that the applicant should have chosen to apply, as it relates to crossings involving public road authorities, such as the applicant. The Agency is of the opinion, however, that the CTA does not restrict the application of section 101 of the CTA to public crossings. In fact, section 101 of the CTA refers to road crossings where "road" is defined as "any way or course, whether public or not, available for vehicular or pedestrian use;...". Nonetheless, the Agency notes that section 101 of the CTA does contain a limitation; subsection 101(5) states that section 101 shall not apply in circumstances where section 102 or section 103 applies. Furthermore, the Agency is of the opinion that section 102 of the CTA applies to circumstances where an owner's land is divided by the construction of a railway line and the landowner requests that the railway construct a suitable crossing for the owner's enjoyment of the land. As such, the Agency finds that the distinction between public and private crossings offered by CN is not determinative of the application of section 102 of the CTA to the particular situation identified in this case.

[28] Secondly, the Agency notes CN's claim that the applicant, as a public body, cannot be entitled to rights granted by section 102 of the CTA. The Agency notes, however, that section 102 states, inter alia, "If an owner's land is divided as a result of the construction of a railway line,..." and the CTA does not define the term "owner". The Agency also notes that it has previously accepted applications pursuant to section 102 of the CTA submitted by public entities. For instance, by Order No. 1997-R-299 dated May 20, 1997, the Agency determined, inter alia, that section 102 of the CTA was the appropriate provision in that case. The Agency notes that Order No. 1997-R-299 related to a situation in which Her Majesty the Queen in right of the Province of Ontario, as represented by the Minister of Natural Resources (hereinafter the Crown), had granted a licence to a corporation for the wood harvesting of Crown timber resources on the Crown's subject land. The Crown and the corporation submitted a joint application pursuant to section 102 of the CTA, in which CN was identified as the respondent. In that situation, the Crown was the owner of the lands divided by the railway line and on which the proposed crossing was to be located, the road granting access to the crossing was not to be open to the general public, measures were to be implemented to limit the access to those associated with the operations of the above-noted corporation and the Agency determined that section 102 was the appropriate provision. In light of the above, the Agency finds that in the current matter, the applicant, as the owner of the Subject Land, has the necessary status to submit an application pursuant to section 102 of the CTA.

Analysis and findings

[29] The Agency notes that pursuant to section 102 of the CTA, when an owner's land is divided by the construction of a railway line, a statutory right to a crossing arises in favour of the landowner and the railway company in question then has a statutory obligation to, upon request by the owner, construct a suitable crossing for the owner's enjoyment of the land.

[30] Since the CTA was enacted in 1996, the Agency has consistently applied section 102 of the CTA as a continuation of section 215 of the 1985 Act and its predecessor sections of the Railway Act, including section 191 of the 1888 Act, taking into account legislative amendments such as the change from a crossing "for farm purposes" to a crossing "for the owner's enjoyment of the land". The Agency notes that prior to the 1888 Act, the laws of Canada did not provide for an entitlement to a statutory right to a crossing in favor of a land owner. Indeed, section 191 of the 1888 Act introduced a landowner's entitlement to a crossing "as of right" in situations where a railway line was carried across the landowner's property. Section 191 of the 1888 Act, provided as follows:

Every company shall make crossing for persons across whose lands the railway is carried, convenient and proper for the crossing of the railway by farmers' implements, carts and other vehicles.

[31] The Agency notes that since the introduction of the statutory right to such a crossing, certain precedent cases from various courts and tribunals have been accepted as establishing general principles relating to such crossings. For instance, it is now recognized that the right to such a crossing runs with the land itself, rather than being a personal right of a specific landowner and there is no limitation period within which the right must be claimed; it is not affected by a lapse of time prior to its claim (Crozier v. C.P.R., 28 C.R.C. 157). In addition, it is accepted that the preservation of the right is dependent upon the continuous ownership of the parcel of land on either side of the railway whether by the original or successor title holders (Hillhouse v. C.P.R., 17 C.R.C. 427). Furthermore, it is established that the statutory right to such a crossing may be extinguished by express agreement or surrender (McAuley v. C.P.R., 26 C.R.C. 316) or by a satisfactory agreement otherwise evidenced, and such rights are not to be discharged by implication (Harris v. Great Northern Ry. Co., 1917 21 C.R.C. 173).

[32] In its consideration of the merits of this application, the Agency shall examine the following specific questions:

1. Did a statutory entitlement to cross the 1903 Right of Way at this location ever arise in favor of a title holder of the Subject Land?
2. If such a statutory entitlement once existed, has it since been preserved in favor of subsequent title holders, up to and including the applicant?

1) Origin of statutory right

[33] The Agency notes the applicant's position that since the construction of the relocated rail line across the Subject Land occurred after 1888, it has a right to claim a crossing pursuant to section 102 of the CTA, as long as it successfully establishes that the other requirements of the section are also satisfied. The Agency also notes CN's claim that as no right to a crossing existed in relation to the "original" rail line that was constructed across the Subject Land in 1856, a relocation of the position of the "original" rail line, even one that occurred subsequent to 1888, cannot bring about a new right to a crossing. Additionally, in relation to the 1856 construction of the rail line specifically, CN suggested that as the deed dated September 1854 evidences that the GTR paid valuable consideration to Richard Osborne for a right to sever the Subject Land without providing access, the "right" to sever should remain intact and attach to the relocated rail line carried across the same property and built subsequent to 1888. In such a way, CN claims that section 102 of the CTA does not apply in this instance as no statutory right ever arose in favor of the title holder of the time as a result of the relocated rail line.

[34] As referenced above, the Agency notes that it has consistently applied section 102 of the CTA as a continuation of section 215 of the 1985 Act and its predecessor sections of the Railway Act, including section 191 of the 1888 Act. Further, the Agency is of the opinion that, in the context of the present application, the applicant's entitlement to a crossing pursuant to section 102 of the CTA is initially dependent on whether a statutory right is deemed to have arisen in favour of Richard Edwin Osborne, upon the relocation of the railway line in or around 1903.

[35] In this regard, the Agency notes that section 191 of the 1888 Act, which was the applicable law at the time of the relocation of the railway line, and introduced the statutory right to such crossings, simply includes reference to the statutory obligation of a railway company that arises when "the railway is carried" [emphasis added] across a person's lands. The provision does not contain a distinction between an 'original' railway line and a "relocated" line. Indeed, the Agency is of the opinion that in accordance with the well established ordinary meaning rule of statutory interpretation (R. v. Gladue, (1999), 171 D.L.R. (4th)), the literal meaning of section 191 of the 1888 Act is clear; it provides that every railway company has a statutory obligation to construct crossings when its railway is carried over a person's lands. The provision does not distinguish between an original construction of a railway line or a relocated construction and therefore applies equally to either railway line.

[36] As such, the Agency is of the opinion that the characterization of a railway line, as either an 'original' or a "relocated" line is an irrelevant consideration in the application of said section 191 to establish the origin of a landowner's statutory entitlement to a crossing. However, the Agency notes that in this particular case, the "original" railway line was constructed prior the enactment of the 1888 Act and only the 'relocated' railway line was constructed after the enactment of that Act. The application of section 191 of the 1888 Act, is, therefore, in this particular situation limited to the relocated railway line.

[37] In light of the above, the Agency finds that as a result of the relocated rail line being carried across the Subject Land in or around 1903, a statutory right to a crossing arose in favour of the landowner at the time, Richard Edwin Osborne, pursuant to section 191 of the 1888 Act.

2) Preservation of statutory right

[38] Having found that a statutory right to a crossing in relation to the relocated rail line arose in favour of Richard Edwin Osborne, the Agency must now consider whether the statutory right has since been preserved and is therefore included in the bundle of rights attached to the Subject Land, as now owned by the applicant.

[39] In this regard, the Agency notes that the parties have not disputed that the Subject land on either side of the relocated rail line has been held in continuous ownership since 1903. The Agency also notes, however, that the parties to this application disagree as to whether the statutory right in question has been extinguished by express agreement or surrender. The applicant claimed that the statutory right that arose in favour of Richard Edwin Osborne upon the relocation of the railway line across the Subject Land has never been extinguished, whether by the relevant deed dated June 10, 1903, as registered in the land registry office against the title to the Subject Land, or otherwise. The applicant also claimed that as the statutory right was not extinguished, it is still attached to the Subject Land and was included in the bundle of rights that the applicant received when it purchased the land. In contrast, CN claimed that if a right to a crossing is deemed to have existed in relation to the Subject Land, it was nonetheless expressly renounced by Richard Edwin Osborne in the deed dated June 10, 1903, by which he conveyed the right of way for the relocated railway line to GTR.

[40] The Agency notes that the parties have both relied on the same clause from the deed dated June 10, 1903, to support their respective positions as to whether or not the statutory right to a crossing was expressly extinguished. The clause provides, where Richard Edwin Osborne is the party of the first part and GTR is the party of the second part, as follows:

The said party hereto of the first part covenants with the parties of the second part that he will make, do and execute any and every conveyance necessary at law or in equity in order to vest in the said Company all the title, rights and privileges now held by them in the said lands or which they may acquire therein under the provisions of the Railway Act in that behalf, and if required to do so will make such further assurances as may be demanded.

[41] The Agency notes CN's claim that the wording of the clause, particularly the phrase which reads, "...or which they may acquire therein under the Railway Act" clearly establishes that Richard Edwin Osborne was expressly contracting out of any rights acquired under the Railway Act, including any statutory rights to a crossing. Further, CN maintained that the significant amount of money paid by GTR as consideration for the purchase of the right of way provides additional evidence that any existing statutory right to a crossing was to be thereby extinguished.

[42] The Agency notes that in reply the applicant submits various reasons why the said clause should not be deemed to constitute an express renouncement by Richard Edwin Osborne of his statutory right to a crossing. The applicant maintained that the clause only relates to the conveyance by Richard Edwin Osborne of all of his interest in the 1903 Right of Way to GTR, does not include clear and specific language evidencing the intention that a statutory right be thereby extinguished, reflects but a personal covenant between Richard Edwin Osborne and GTR rather than a restrictive covenant that attaches to the Subject Land, and as it is contained in a standard form deed used by GTR, the applicant asserted any ambiguity therein is to be interpreted against GTR.

[43] The Agency is of the opinion that in the context of such an application, once it has been established that an original entitlement to a statutory right to a crossing arose in relation to the land in question, and continuous ownership of the land has also been ascertained, the burden then shifts to the respondent to, if possible, rebut the applicant's claim to the said statutory right, and establish why it has not since been preserved. In this respect, the Agency notes, as indicated above, that it has previously been established that the statutory right to a crossing may be extinguished by express agreement or surrender or by a satisfactory agreement otherwise evidenced and that such rights are not to be discharged by implication. Furthermore, the Agency is of the opinion that the very nature of the right to a crossing, as one that has been granted by statute, is evidence that Parliament recognizes a landowner's right to a crossing in such situations to be of such a fundamental nature that it is to be afforded statutory protection.

[44] The Agency finds that CN has failed to demonstrate that the statutory right to a crossing that arose in favour of Richard Edwin Osborne was expressly extinguished. While the wording of the deed clearly provides that Richard Edwin Osborne will "do and execute any and every conveyance necessary ... ", there is no evidence that any such further conveyance was executed by the relevant parties. To rule that the language of the deed alone is sufficient to extinguish the statutory right would be tantamount to accepting that a statutory right can be extinguished by implication. As set out above, this is not consistent with the essence of Agency precedents on such matters. The Agency therefore finds that in this case, the statutory right has not been extinguished.

[45] Therefore, as the statutory right to a crossing that is deemed to have arisen in favour of Richard Edwin Osborne, pursuant to section 191 of the 1888 Act, has not been evidenced to have been extinguished, and the parcels of the Subject Land on either side of the rail line have since been maintained under continuous ownership, the applicant, as the current owner of the Subject Land is entitled to receive, upon request, a crossing "as of right" from the current railway company, CN.

[46] As a result, the Agency has determined, pursuant to section 102 of the CTA, that the applicant is entitled by statute to a suitable crossing at this location and, consequently, CN has a statutory obligation to construct, upon the applicant's request, a suitable crossing for the applicant's enjoyment of its land.

[47] The Agency notes that the applicant has submitted that the proposed crossing will be used for the construction and operation of a water pollution control plant on the parcel of the Subject Land south of the 1903 Right of Way. The plant will be a secure facility, fenced and gated, and to which access by the public will be restricted. The Agency further notes that while the suitability of a particular crossing is to be determined on a case by case basis, the Federal Court of Appeal has determined that the concept of a "suitable crossing" shall include an element of safety, be adequate and appropriate in light of its intended purpose and take into account the applicant's as well as the respondent's intended use of the crossing (Fafard v. Canadian National Railway Co., [2003] FCA 243).

[48] Having determined that the applicant is entitled by statute to a suitable crossing pursuant to section 102 of the CTA, the Agency notes that an examination of certain issues submitted by the parties, such as the closure by CN in 2003 of the two private crossings that provided access between the two parcels of the Subject Land, the economic impact of the severance of an owner's land by the railway company, the number of locations at which there was restricted access through the property prior to and subsequent to the relocation, and the possible existence of suitable access to the southern parcel of the Subject Land by highway, was not necessary for the purpose of making its determination in this matter.

CONCLUSION

[49] In light of the foregoing, the Agency has determined, pursuant to section 102 of the CTA, that the applicant is entitled to a suitable crossing at or near mileage 295.20 Kingston Subdivision. CN shall be responsible for the costs of construction and maintenance.

[50] Any authority granted by the Agency does not relieve the applicant and/or CN of their obligations under the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.).