Decision No. 473-R-2000

July 14, 2000

File No. R8030/L4

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COMPLAINT

On October 26, 1998, Yves Charest (hereinafter the complainant) filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

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 complaint is received, unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until July 14, 2000.

ISSUE

The issue to be addressed is whether the Canadian National Railway Company (hereinafter CN) has done as little damage as possible in the exercise of its powers, as provided for in subsection 95(2) of the CTA, and, if not, what action should be taken by the Agency, if any.

BACKGROUND AND POSITIONS OF THE PARTIES

The complainant, whose property is located within the limits of the CN rail yard at Les Côteaux and who has lived there since 1987, complains about the noise caused by passing trains. The complainant acknowledges that the yard tracks are particularly busy, but he feels that the situation has worsened since 1997, as a result of CN's decision to park locomotives near the station. The complainant submits that living conditions have become unbearable, both by day and by night, because of the noise and fumes emanating from the constantly idling diesel engines of the locomotives and the "visual pollution". The complainant adds that, since 1998, the noise caused by nighttime operations prevents him and his family from sleeping more than an hour a night.

The complainant indicates that after several meetings with CN, it had agreed to park its locomotives on the storage track designated as the "Shop Track" to reduce noise between shifts. The complainant points out, however, that despite the notice given to that effect by CN to its employees, locomotives were still frequently parked near residences. Consequently, the complainant feels that the only possible solutions to his problems are either the cessation of the railway operations or the expropriation of his residence by CN.

In a first letter of comments, CN submits that the property acquired by the complainant in 1987 is in fact located within a railway triangle, and that the solutions sought by the complainant are unacceptable. CN stresses the importance of the railway activities at Les Côteaux and adds that since 1998 there has been a growth in traffic and therefore in its railway operations and related activities. While acknowledging that this does not eliminate all of the problems raised by the complainant, CN indicated that it has offered and still offers to park its locomotives an adequate distance from the complainant's property.

At a site meeting attended by the parties and Agency staff, the complainant pointed out that the shunting operations conducted at night and on Sundays right behind his property cause him the most harm. CN therefore agreed to explore possible avenues, such as various shunting methods, the shunting schedule and the location of shunting, to try to minimize the noise caused by these operations.

In its report filed with the Agency in the form of a letter, CN concludes that it is impossible to alter its operating methods. CN indicates that the hours of use of the yard tracks are based on the arrival and departure times of freight and passenger trains. As the yard is used for both long-distance and local railway services, CN adds that any operational change at Les Côteaux will have impacts on its overall operation plan as well as on the railway network operations.

With respect to the various shunting methods considered (flat switching and push shunting), CN maintains that the complainant would suffer more inconvenience if locomotives had to be used to bring each car to the cars to which they were to be connected, because of the time required to do so.

CN also agreed to issue a bulletin during the course of the following summer reminding employees that they were to shut off the engines of locomotives while not in use whenever possible without adversely affecting railway operations and reiterating its instructions to employees that the storage track was to be used to park locomotives not in use.

Some eleven months later, as the parties had been unable to reach agreement, the complainant requested that the Agency render its decision on his complaint of October 28, 1998. He asserts that the storage track is used to repair car wheels, not to park locomotives. The complainant further points out that he still suffers inconvenience from the noise of the shunting operations performed at night.

A few weeks later, the complainant advised the Agency that he sold his property and would leave the premises on June 26, 2000.

Pursuant to section 19 of the National Transportation Agency General Rules, SOR/88-23, CN sent the complainant interrogatories dealing in particular with why the complainant bought a property within the limits of a rail yard, the price paid, the importance attached to the presence of the railway tracks in the acquisition of the property, and steps taken, if any, to sell it.

In its final response, CN submits that the Agency cannot rule on the complaint for lack of jurisdiction. In CN's opinion, the complaint falls with the purview of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.). CN argues that, for the Agency to be able to exercise jurisdiction pursuant to subsection 95(2) of the CTA, CN must exercise one of the powers enumerated in paragraph 95(1)a) et al. of the CTA. CN maintains that it is not exercising any of the powers enumerated in the relevant paragraphs. CN adds that the activities specified in paragraph 95(1)(e) of the CTA can only refer to the activities specified in the preceding paragraphs according to the ejusdem generis rule. As a result, it is CN's view that the Agency would not have jurisdiction in operational matters.

Subsidiarily, CN asserts that it operates its undertaking in an acceptable manner consistent with recognized railway practices. The railway operations are susceptible to fluctuations over time, and the complainant cannot claim a vested right to the scale of CN's railway operations at the time of purchase of his property in 1987. As the complainant chose to buy a property within a rail yard because of the relatively low price of that property, he cannot subsequently complain about the expansion of the railway operations. CN submits that it has demonstrated that it cannot alter its operating methods, although it has at times been able to reduce the impact of its operations on the complainant.

Lastly, CN submits that the complainant will no longer occupy his property as of June 26, 2000 and that any instruction, directive or recommendation of the Agency would therefore have no practical effect.

ANALYSIS AND FINDINGS

Legislative reference

Subsections 95(1) and (2) of the CTA provide as follows:

(1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

(a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

(b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

(c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

(d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

(e) do anything else necessary for the construction or operation of the railway.

(2) The railway company shall do as little damage as possible in the exercise of the powers.

Section 37 of the CTA provides as follows:

The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

Agency jurisdiction

The Agency's jurisdiction to consider complaints of this nature has already been addressed in the following previous cases: Brocklehurst et al. v. CN (Order No. 1999-R-123, Decision No. 87-R-1999); Taylor v. CN (Order No. 1999-R-308, Decision No. 391-R-1999); Taylor v. Norfolk Southern Railway Company (Order No. 1999-R-308, Decision No. 391-R-1999); and Robinson v. Algoma Central Railway Inc. (Order No. 2000-R-102, Decision No. 233-R-2000). For the reasons set forth in these Decisions, the Agency concludes that it has jurisdiction in this case to rule on the complaint filed by the complainant.

Remedy requested by the complainant

The complainant concluded that only the cessation of CN's shunting operations in the Les Côteaux rail yard or the expropriation of his property by CN would put an end to the inconvenience he suffers.

The Agency's role, following the inability of the parties to come to an agreement, is not to order the railway company to cease its operations or expropriate the properties affected by railway operations. The Agency's role is to ensure that the railway company limits any damage resulting from the operation of its undertaking, pursuant to subsection 95(2) of the CTA. It is therefore the reasonableness of the measures taken by the railway company to limit damage, if any, that the Agency examines. In this case, the remedy requested by the applicant is intended no more and no less than to force CN to cease all activities in the rail yard or expropriate the complainant's property. The Agency cannot conclude that the scope of such a remedy in this case is reasonable given the scale of CN's railway activities in the Les Côteaux rail yard.

The Agency notes, however, that, in reply to question 12 in the interrogatories filed by CN regarding the goal of the complainant in filing his complaint, the complainant responded that he wanted inter alia a reduction of the shunting operations near the residences. Again, the Agency is of the view that requiring CN to decrease its shunting activities in the rail yard would be unreasonable in this case. Were it not for the mootness of this case, which is examined below, the only remedy that the Agency could have granted the complainant in this case would have involved parking locomotives on the storage track designated as the "Shop Track", because the implementation of this measure, which was initially contemplated by CN, appeared to have had the effect of minimizing the noise emanating from the railway operations. Given the mootness of this case, however, the Agency finds that it need not make a determination in this case.

Mootness of the case

By letter dated May 15, 2000, the complainant advised the Agency that he had sold his property. In response to one of the questions asked by CN in it interrogatories, the complainant indicated that he would cease to be the owner of his residence on June 6, 2000, and that he would occupy the premises as a tenant until June 26, 2000, whereupon he would leave the premises.

In light of this new fact, and in keeping with the precedents developed concerning standing and the mootness of a case (Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; and Minister of Justice v. Borowski et al., [1981] 2 S.C.R. 575), the Agency finds that, as the complainant has left the premises, he has lost standing in this case, and that any determination by the Agency would have no practical effect.

CONCLUSION

Based on the above findings, the complaint is hereby dismissed.