Decision No. 472-R-2006

August 31, 2006

31 août 2006

APPLICATION by Dorien Berteletti and Mary Harvey pursuant to section 103 of the Canada Transportation Act, S.C., 1996, c. 10, for a private crossing at mileage 100.4 of the Canadian National Railway Company's Bala Subdivision, near the town of Orillia, in the province of Ontario.

File No. R8050/326-100.40


BACKGROUND

Dorien Berteletti and Mary Harvey (hereinafter the applicants) own approximately 49 acres of property known as Lot 11 in the 11th Concession in Simcoe township, near Orillia, in the province of Ontario. The Bala Subdivision of the Canadian National Railway Company (hereinafter CN) bisects the property and in order to access their cottage in the section of their property to the west of the tracks, the applicants want to extend the existing road east of the railway line, by crossing under CN's railway bridge over the Severn River.

In January 2004, the applicants submitted an application to the Canadian Transportation Agency (hereinafter the Agency) for a private crossing, pursuant to section 102 of the Canada Transportation Act (hereinafter the CTA) whereby a railway company must construct a suitable crossing for an owner's enjoyment of the land if the owner's land was divided by the construction of the railway line. In its Decision No. 587-R-2004 dated October 29, 2004, the Agency determined that the applicants were not entitled to a crossing pursuant to section 102 of the CTA, and the application was denied.

The applicants contacted CN directly and discussions on a crossing under the bridge took place from mid-April to September 2005. On December 5, 2005, the parties met and signed an agreement to use the Agency's mediation services.

On March 30, 2006, the applicants filed with the Agency the application set out in the title. In reply to CN's answer that the subject crossing was under the Agency's mediation process, the applicants indicated that they wished to proceed with their application as the parties had not reached an agreement. On June 22, 2006, the applicants confirmed their withdrawal from the mediation process. In its Decision No. LET-R-166-2006 dated June 28, 2006, the Agency opened pleadings in order to make a determination in this matter. On July 14, 2006, CN filed its answer to the application, and on July 24, 2006, the applicants filed their reply to CN.

Pursuant to subsection 29(1) of 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 applicants have agreed to an extension of the deadline until September 11, 2006.

JURISDICTION

In this case, CN argued that there is no legal basis for the application, as an agreement was reached between CN and the applicants for a private crossing. On this issue, the applicants' position is that, despite substantial work by all parties, they have been unable to agree on the private crossing agreement proposed by CN.

Section 103 of the CTA states, in part:

If a railway company and an owner of land adjoining the company's railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the company to construct a suitable crossing if the Agency considers it necessary for the owner's enjoyment of the land.

The Agency's jurisdiction in such matters therefore arises only when there is no agreement between the parties on the construction of a crossing pursuant to section 103 of the CTA.

The Agency has carefully examined all of the evidence filed in the context of this application, including a hand written document dated December 5, 2005 signed by both parties. Upon review of this document, as well as of all the facts and circumstances of this case, the Agency finds that there is an agreement between the parties on the construction of a crossing across the railway within the meaning of section 103 of the CTA. Therefore, the Agency finds that it has no jurisdiction in this matter and hereby dismisses the application. Any outstanding issues concerning this crossing should therefore be dealt with either by further communication between the parties or before the courts of competent jurisdiction.

COSTS

CN submits that it should be entitled to recover its costs with respect to the application in accordance with section 25.1 of the CTA, as it has spent significant time and expense on mediation, and the applicants proceeded to file an application with the Agency while participating in the mediation process.

The Agency's practice for such requests is to award costs only in special or exceptional circumstances. The Agency finds that the present case does not meet those special or exceptional circumstances and therefore denies CN's request.

Members

  • Guy Delisle
  • Baljinder Gill
  • Beaton Tulk
Date modified: