Decision No. 448-R-2006

August 22, 2006

File No. R8050/437-048.85

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[1] On March 23, 2006, 667803 BC Ltd. (hereinafter the applicant) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] In its Decision Nos. LET-R-116-2006 and LET-R-169-2006, the Agency granted Canadian National Railway Company (hereinafter CN) and the applicant respectively, extensions of time to file their submissions in this matter.

[3] On May 23, 2006, CN filed its answer to the application, and on July 11, 2006, the applicant filed its reply to CN's answer.

[4] In its Decision No. LET-R-224-2006 dated August 14, 2006, the Agency granted CN leave to file an additional submission outside of pleadings.

[5] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until September 1, 2006.

PRELIMINARY MATTERS

Late filing of answer by CN

[6] Although CN filed its answer to the application after the prescribed deadline, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts it as relevant and necessary to its consideration of this matter.

Other matters

[7] Included with the application were requests by the applicant to:

1. have the Agency declare the "License For a Private Crossing" it had entered into with CN null and void;
2. have the Agency order CN to pay damages to the extent deemed appropriate by the Agency; and
3. have the Agency order CN to refund all the applicant's related costs to date.

[8] In this case, the Agency notes that regardless of the facts and circumstances surrounding the crossing or negotiations between the parties, the applicant and CN have entered into an agreement for a private crossing of CN's trackage. This agreement is not subject to the CTA and the Agency has no authority to amend, suspend or cancel or otherwise deal with such an agreement. Should the parties disagree on any aspect of said agreement, they have access to the civil courts to resolve such issues. Therefore, as the Agency has no jurisdiction in these matters, the request to declare the "License For a Private Crossing" null and void, the request for damages stemming from the licence and the request to refund the applicant's costs are hereby dismissed.

[9] The existence of the agreement, however, does not prevent the Agency from determining whether the applicant has a statutory right to a private crossing at this location pursuant to section 102 of the CTA.

ISSUE

[10] The issue to be addressed is whether the applicant is entitled to a private crossing at the subject location pursuant to section 102 of the CTA.

POSITIONS OF THE PARTIES

[11] The applicant states that in September 2003 it took title to 4 parcels of land with the intention of pursuing organic farming. According to the applicant, CN insisted that there had never been a railroad crossing at the subject location. The applicant, therefore, made a request to CN for a private crossing to be installed. On November 19, 2003, the applicant entered into a private crossing agreement with CN wherein the applicant would be responsible for, among other things, all costs pertaining to the construction and maintenance of the crossing. Subsequently, the applicant became aware of the provisions of the CTA and now argues that the right to a crossing has existed over time as the property in question was occupied as a single parcel of land prior to the railway's passage in 1913/1914 which divided the parcel of land in two.

[12] The applicant provided documentation, affidavits and Certificates supporting its position that the property in question was occupied prior to the railway's construction. With respect to the parcel of property originally owned by the Hale family, the applicant supplied a copy of a Certificate of Pre-Emption Record pursuant to the British Columbia Land Act, 1884 issued to Leslie Hale on August 12, 1925 for the Fraction S ½ Lot 7668 and a Certificate of Improvement for the same lot issued to Leslie Hale on October 22, 1938. The applicant also referred to other material that indicated that the property was substantially occupied prior to the railroad. As for the property formerly owned by the Jensens, the applicant makes reference to excerpts from books that mention that the Jensens occupied the property as far back as 1911.

[13] According to the applicant, occupancy and possession were the rules of the day in British Columbia circa 1910 - 1940 and squatter's rights were the only significant rights while meeting the requirements to obtain legal title. The applicant argues that the Jensens and the Hales occupied the property prior to the passing of the railroad and that occupancy was understood as ownership in British Columbia circa 1910.

[14] In addition, the applicant submits that a private crossing had existed at the subject location for many years and supplied affidavits in support of its contention. The applicant questions what agreements had been in place between the 1930's and the 1990's.

[15] CN submits that the section of railway where the crossing is located was established as part of the Grand Trunk Pacific Railway Company (hereinafter GTPR) pursuant to the Dominion Act, 3 Ed. VII Cap. 122, October 24, 1903 and was completed and opened for traffic on August 20, 1913. Furthermore, actual title to the railway lands in question was established through Certificate of Indefeasible Title No. 361M granting title to GTPR for lots 5268 and 8192 on May 10, 1921 and through Certificate of Title No. 2428M granting title to GTPR for lot 7240 on October 15, 1923.

[16] CN also submits that the first title from the Crown to the relevant lands of the applicant was established through the following Certificates of Indefeasible Title:

1. No. 7155M for Fraction NW Lot 7668 on September 2, 1930.
2. No. 9562M for Fraction 3284 on November 4, 1935.
3. No. 10425M for Fraction NE 1/4 Lot 7668 on August 12, 1937.
4. No. 12040M for Fraction S ½ Lot 7668 on November 20, 1939.

[17] According to CN, the railway company's authority to construct a railway line, the construction of the line and the legal title to the railway lands all predate the first title granted from the Crown for Lot 7668. With respect to the applicant's submissions concerning pre-emption, squatter's rights and occupancy of the land, CN argues that pre-emption still had to be followed by a Crown grant in order to obtain legal title to the land. CN submits that occupancy does not give legal entitlement to the land in question so that the existence of the railway in this case pre-dated the first legal ownership of the property.

[18] CN therefore argues that no right to a statutory crossing exists as the owner's land was not divided as a result of the construction of the railway as provided for in section 102 of the CTA.

ANALYSIS AND FINDINGS

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

[20] Section 102 of the CTA provides that if an owner's land is divided as a result of the construction of a railway line, the railway company shall, at the owner's request and at the expense of the railway company, construct a suitable crossing for the owner's enjoyment of the land.

[21] In a case such as this, therefore, the Agency must determine if an owner's land was divided as a result of the construction of a railway line. The issue that must be first determined in this case is whether legal ownership of the land in question as a single parcel of land was in place at the time of construction of the railway. With respect to the applicant's submissions on the history of an earlier crossing, the Agency is of the opinion that the physical existence of a crossing and the arrangements that may have been in place for such a crossing between the railway company and landowners can only be considered by the Agency if the right to a crossing was established by statute at the time of the construction of the railway line.

[22] The applicant has indicated that the land was occupied prior to the construction of the railway in 1913 and that occupancy, through squatter's rights, was understood as ownership at that time in the province of British Columbia. The Agency notes, however, that pursuant to the British Columbia Lands Act of 1884 and subsequent acts, a procedure was established that allowed an occupant of Crown land to apply for a Certificate of Pre-Emption Record, followed by a Certificate of Improvement which would then lead to legal ownership of the land through a Certificate of Indefeasible Title. Section 24 of the British Columbia Lands Act of 1884 states that "No transfer of any surveyed or unsurveyed land pre-empted under this Act shall be valid, until after the Crown grant of the same shall have been issued." The Agency is of the opinion, therefore, that occupancy of the land, although it may have preceded the construction of the railway line, did not constitute legal ownership of the land in the province of British Columbia in the years prior to the construction of the railway line.

[23] As the evidence provided demonstrates that legal ownership of the property in question was acquired in the 1930's, well after the construction of the railway line in 1913, the property on both sides of the railway was still vested with the Crown at the time of construction of the railway line. Therefore, no right to a crossing pursuant to section 102 of the CTA was established as no owner's land was divided by the construction of the railway line.

[24] Consequently, the application is hereby dismissed.

Members

• Guy Delisle
• Baljinder Gill