Decision No. 48-R-2014

COMPLAINT

[1] Angelo DiNardo filed a complaint with the Canadian Transportation Agency (Agency) against the Canadian National Railway Company (CN) concerning noise and vibration arising from railway operations at the MacMillan Yard (Yard), near his residence on Greenock Drive, in the City of Vaughan, in the province of Ontario.

[2] Mr. DiNardo claims that idling, switching, shunting, squealing and wheel/rail interface noises emanating from the Yard are causing him to lose sleep, disturbing enjoyment of his residence and surroundings, and causing irritability, frustration and stress.

BACKGROUND

The Yard

[3] The Yard, located at the junction of CN’s York and Halton Subdivisions, is CN’s largest rail classification yard in Canada. The Yard operates on a 24-hour basis, 7 days a week and processes approximately 800,000 rail cars per year. Approximately 2,000 rail cars are processed daily. Activities at the Yard consist of classifying rail cars to different tracks which includes a pullback track that is not necessarily in use 24 hours per day.

[4] Classification operations involve locomotives pulling a string of cars along the pullback track in order to then push them to the crest of the “hump” where they are decoupled and rolled one at a time downhill in the Yard, then sorted by destination onto one of 77 destination tracks to build trains, which will then proceed to their respective destinations.

[5] Dedicated locomotive units operate on the pullback track that has been specifically designed for pullback track operations. Yard locomotives are mounted with blower type engines and have an exhaust manifold and exhaust stack. The power used on the pullback track consists of two locomotives with two boosters. A booster only has electric traction motors which are powered by the diesel engine of the locomotive to which it is connected.

[6] Computer-controlled mechanical retarders (metal brake shoes mounted to the rail applying friction) slow the cars to a suitable rolling speed for coupling. The weather conditions, the weight of the car and the distance that the car must travel are taken into consideration to determine the suitable speed of the rolling car. The hump and main retarders are located approximately 1.9 km south of Mr. DiNardo’s property.

[7] The pullback track is located in a cut below the general surface of the surrounding land, on CN’s property along with a 6-metre high earth berm immediately adjacent to and north of the cut. The combination of the cut and the earth berm is equivalent to approximately an 11-metre high deep cut. The berm is not on CN’s property.

Show Cause Decision

[8] In Decision No. LET-R-95-2013 dated August 2, 2013 (Show Cause Decision), the Agency directed Mr. DiNardo “to show cause why the Agency should not find that CN meets its obligations to cause only such noise and vibration as is reasonable, as it found in Decision No. 462-R-2010, and dismiss the complaint.”

[9] In the Show Cause Decision, the Agency noted that the complaint was made against the same railway company, CN, at the same location, the Yard, as the complaint which was dismissed in Decision No. 462-R-2010.

[10] Further, the parties were encouraged to submit sound studies and incorporate Method A Simplified Estimation Procedure (SEP) of the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology) into their pleadings.

[11] Mr. DiNardo responded to the Show Cause Decision on August 27, 2013. On September 13, 2013, CN submitted its comments on Mr. DiNardo’s response and on September 17, 2013, Mr. DiNardo responded to CN’s comments.

PRELIMINARY MATTERS

The doctrine of res judicata

Positions of the parties

[12] CN submits that the doctrine of res judicata requires the complaint to be dismissed ab initio.

[13] CN refers to the four-point test set out by the Supreme Court of Canada in the case Angle v. Minister of National Revenue, which precludes a subsequent litigation of a substantially similar cause of action.

[14] CN argues that railway operations at the Yard, which were fully reviewed by the Agency prior to Decision No. 462-R-2010, have not changed. CN maintains that, as a result, the Agency’s findings in Decision No. 462-R-2010 are equally applicable to the current complaint.

[15] CN therefore submits that the present complaint represents an abuse of process and should be dismissed accordingly.

[16] Mr. DiNardo did not address CN’s argument with respect to the applicability of doctrine of res judicata.

Analysis and findings

[17] The doctrine of res judicata provides that if a dispute has previously been litigated and decided by a court of competent jurisdiction, the issue should not be reargued by the same parties in a subsequent legal proceeding. The principle of res judicata is based on the premise that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties. The broad underlying principles are that: (a) it is in the best interests of the public to see an end to litigation; and, (b) it is unjust for a person to be vexed twice with litigation on the same subject matter.

[18] The leading Canadian cases in this area articulate three factors which determine whether res judicata ought to be applied in any given case: (1) the same question must have been previously decided; (2) the judicial decision which is said to create the estoppel must be final; and, (3) the parties to the judicial decision must be the same as the parties to the proceedings in which the estoppel is raised.

[19] In addition, the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 (Danyluk) indicates that even if the three requirements for the application of issue estoppel have been met, the rule should not be mechanically applied. Courts (and administrative tribunals) have discretion to accept the defence of res judicata, or to reject it when applying the defence would be unfair or unjust.

[20] The Agency notes that in Decision No. 462-R-2010, the parties were Eddy Aceti and CN. In this complaint before the Agency, the parties are Mr. DiNardo and CN.

[21] Therefore, the Agency finds that because the parties are different in the two proceedings, there is no need for the Agency to consider other factors of the doctrine. The Agency is of the opinion that the doctrine of res judicata does not apply to this case.

Section 32 of the Canada Transportation Act (CTA)

Positions of the parties

[22] CN submits that section 32 does not allow for the review of a decision based on new evidence that could have and should have been submitted in the context of Decision No. 462-R-2010. Instead, a decision may be reviewed only in the context of “a change in the facts or circumstances”.

[23] In his comments, Mr. DiNardo states that he is not relying on a review and variance of Decision No. 462-R-2010.

Analysis and findings

[24] The Agency notes that Mr. DiNardo does not refer to section 32 of the CTA in his complaint or in his response to the Show Cause Decision.

[25] As such, this part of CN’s comments is outside the scope of the current case and will not be considered by the Agency.

ISSUE

[26] Is CN meeting its obligations under section 95.1 of the CTA to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the operations take place?

POSITIONS OF THE PARTIES

Mr. DiNardo

[27] Mr. DiNardo asserts that many facts in this complaint are different from the case which resulted in Decision No. 462-R-2010 and refers to new evidence he filed before the Agency, including a log and numerous video and audio recordings. He further states that Decision No. 462-R-2010 only speaks to one particular point in time. He adds that the fact that one case was previously dismissed does not prevent all residents of Vaughan from accessing the complaint process pursuant to the CTA.

[28] Mr. DiNardo submitted calculations based on the approach outlined in the Methodology. Mr. DiNardo’s calculations produced a result of 0 dB, or no audible noise, at his residence when applied to various operational scenarios. Mr. DiNardo states that the calculations support his claim that “no noise should be detected by measuring devices or by the human ear under reasonable circumstances required for CN to perform their duties.” Mr. DiNardo contends that any decibel reading over zero would be more than is necessary.

CN

[29] CN asserts that Mr. DiNardo has not submitted any data showing actual noise levels as part of his show cause submission or in the underlying complaint.

[30] CN submits that the log does not identify the person, the location of the receptor, the type of noise heard or the duration, which, it feels, calls into question the value of such unattributed, unauthenticated, highly subjective and unverifiable evidence.

[31] CN states that the nature of the video evidence makes it impossible to ascertain its accuracy in portraying what is being asserted by Mr. DiNardo, due to the lack of any visual confirmation of the alleged sound source and the inability to establish the absolute or relative volume of the sounds recorded.

[32] CN argues that the video evidence offers no indication of any actual decibel levels of any alleged railway noises or even an independent sound source with known decibel levels and distance from the observer that would allow for a relative determination of the volume of any alleged railway noises. It is CN’s submission that there is no evidence that the sounds included in the recording derive from the Yard operations and not from other sound sources, such as automobile traffic on nearby roadways.

[33] CN asserts that the SEP is merely a preliminary first step in the analysis but in no way a complete substitute for actual noise measurements. CN claims that Mr. DiNardo has applied the SEP calculations in a “crude and rudimentary fashion, which ignores the Methodology’s clear accompanying instructions and recommendations.”

[34] In CN’s opinion, the resulting errors in its application make it impossible to draw any meaningful conclusions from Mr. DiNardo’s analysis. CN cites errors made in Mr. DiNardo’s analysis including the lack of supporting rationale for its use and the cumulative application of adjustment factors.

[35] CN included in its answer a letter from Jade Acoustics Inc. (Jade) supporting its comments. The Jade letter comments on Mr. DiNardo’s SEP application including its view that:

• the SEP “should be used in conjunction with on-site sound measurements and/or detailed acoustical modelling”;
• the Yard’s multiple noise sources are “complex in nature and difficult to assess using the SEP method”;
• the noise reduction factor for obstacles was incorrectly applied and there was not “a proper correction for distance and time factors. By not correctly accounting for these parameters results in sound levels that are not representative of the sound levels from the sources, thereby leading to the incorrect conclusion that sound from the railway activities should not be audible at the residences in question”; and
• had the SEP “been used with the correct parameters, the predicted sound levels would indicate that the rail activities would be, at times, audible at Greenock Drive and Tracie Court.”

Mr. DiNardo’s reply to CN’s answer

[36] Mr. DiNardo does not agree with CN’s arguments as the SEP calculations have been provided, and the complaint has been framed in a manner that relies on observations of the site visit referred to in Decision No. 462-R-2010 (the 2010 site visit), a comparison of further observations, and not necessarily a decibel measurement.

[37] Mr. DiNardo maintains that, as the complaint is about disturbances created by sound, sound recordings are relevant to the matter. Mr. DiNardo further asserts that the various videos provided include landmarks, street signs, and other points of reference thus showing where the recordings were taken.

[38] Mr. DiNardo submits that the Tracie Court recordings are relevant in that Greenock Drive is at a further distance from Tracie Court. Mr. DiNardo is of the opinion that if sound could not be heard at Tracie Court during the 2010 site visit, one can infer that there is no chance of hearing the same sound source at Greenock Drive due to its greater distance from the Yard.

[39] Mr. DiNardo submitted recordings at Creditstone Road to demonstrate how loud the sound can be at its source and the radius the sound can travel. Mr. DiNardo states that one can infer that the noise recorded at Tracie Court comes from the Creditstone Road source. Mr. DiNardo holds that no other rail yards are in the vicinity and coupled with multiple accounts from a variety of residents and witnesses, “so there is only one conclusion.”

[40] Mr. DiNardo disagrees with CN’s assertion that the Agency requires data showing actual noise levels in determining whether CN meets its obligations. Mr. DiNardo states that because Decision No. 462-R-2010 dismissed the complaint in the absence of a noise measuring device, the lack of a measuring device in this case should have no consequence in this case.

[41] Mr. DiNardo also states that the Agency has been provided with new evidence showing that CN is causing an audible disturbance. In Mr. DiNardo’s view, the CTA states that CN can only make as much noise as is reasonable and one can infer that, if it is not necessary for CN to make noise, then it would not be reasonable to expect it to do so.

[42] Mr. DiNardo also argues that page 45 of the Methodology for the SEP states that when more than one adjustment factor is present, the largest adjustment variable is to be used. However, Mr. DiNardo asserts that the number of times the variable is adjusted is a separate matter.

ANALYSIS AND FINDINGS

[43] 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.

[44] To make a determination on the existence of noise and/or vibration which may constitute substantial interference for Mr. DiNardo, the Agency will consider the elements outlined below. These elements are outlined in the Agency’s Guidelines for the resolution of complaints over Railway Noise and vibration (Guidelines) and in Decision No. 35-R-2012.

[45] These elements include the:

• characteristics and magnitude of the noise or vibration (such as the level and type of noise [impulse or constant], 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.

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

[47] However, if the Agency finds that the noise and vibration are 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 are reasonable.

[48] The Agency, in the Show Cause Decision, provided Mr. DiNardo with an opportunity to demonstrate that the railway company was not meeting is obligations under 95.1 of the CTA. When a complaint is filed with the Agency, the onus is on the complainant to prove, on a balance of probabilities, that the railway company has failed to meet its obligations under section 95.1 of the CTA.

Substantial interference

The log

[49] The Agency notes that the log submitted by Mr. DiNardo consists of approximately 253 entries, some of them on the same day (e.g. 3 occurrences on December 4). Of the 253 entries, Mr. DiNardo provided a description for 15 entries (idling, train whistling, and squealing noises). The Agency notes that an unsigned note at the bottom of the log indicates the following:

I have corroborated and confirmed having heard the train at initial dates and times with Angelo Dinardo and few other residents; upon confirming what is being heard I was put to the task to create the log [...]

[50] In the complaint, Mr. DiNardo claims that railway noise is causing impacts at his residence. However, the log does not indicate the duration, location, and year of the occurrences or by whom the occurrences were recorded. Furthermore, no description is provided for nearly all of the occurrences set out in the log. The Agency notes that the Methodology, at page 11, indicates that, in any rail noise assessment, the location of the receptor and description of the noise should be provided. Consequently, the Agency considers the log to be unreliable as it lacks the contextual information outlined above. For these reasons, it is impossible for the Agency to draw any useful conclusions concerning the log and it cannot give any weight to the log in making its findings.

Video evidence

[51] The Agency has reviewed Mr. DiNardo’s eighteen videos and notes the following:

• videos Gre-20120206-0354 and Gre-20120206-0605 contain on-camera verbal statements indicating the recordings were taken at the intersection of Greenock Drive and Cromwell Road. The videos were recorded during the night and the only visually distinguishable object is a streetlight.
• in video Locke_St_&_Creditstone_Rd., Mr. DiNardo did not specify, other than in the title of the video, whether it was recorded at the intersection of Locke Street and Creditstone Road. The Agency notes that the intersection of Locke Street and Creditstone Road which, according to a map submitted by Mr. DiNardo (Figure 1 in the HGC Engineering Report Industrial Noise Impact Assessment for a Residential Seniors Development at 2500 Rutherford Road, City of Vaughan, Ontario dated March 17, 1999) (map), is located more than a kilometre away from Mr. DiNardo’s residence;
• video 20130501_000110. confirms through street signs captured in the video that the recording took place at the intersection of Tracie Court and Springside Road. However, according to the map, this intersection is approximately a kilometre away from Mr. DiNardo’s residence; and
• in the remaining videos, Mr. DiNardo did not indicate where the recordings took place.

[52] The Agency notes that one important consideration for video evidence is the identification of the location where recordings take place. The Methodology specifies that in any rail noise assessment the location should be clearly described. Mr. DiNardo claims that railway noise is causing impacts at his residence. However, only two videos were identified as being recorded at or near his residence (Gre-20120206-0354 and Gre‑20120206‑0605).

[53] Furthermore, none of the videos indicate the absolute or relative volume of the recorded sounds. As such, it is impossible to draw any meaningful conclusions on the actual noise levels.

[54] If videos (with audio component) are submitted as evidence to substantiate railway noise levels, it is important to establish a reliable reference point to demonstrate the absolute or relative volume. The Agency should not have to guess where the information is being recorded or the volume of the actual noise levels. For this reason, the Agency does not give weight to the video evidence.

Simplified estimation procedure (SEP)

[55] SEP of the Methodology sets out the basic principles to be considered as part of a simplified analysis to estimate noise levels. The Methodology was developed by the Agency to guide railway companies, citizens and municipalities in determining noise levels for the purpose of Agency proceedings. Some basic factors of SEP include the base sound level and adjustment factors for multiple sources, time period, and obstacles.

[56] The Agency notes that Mr. DiNardo’s calculations include noise estimates from:

• an idling locomotive within the Yard;
• an idling locomotive at the pullback track;
• wheel squeal within the Yard; and
• wheel squeal at the pullback track.

[57] Mr. DiNardo argues that his SEP calculations demonstrate that the railway noise should not exist (i.e., be inaudible) and that any noise over 0 dB is “more than is necessary”:

All the aforementioned calculations support the claim that no noise should be detected by noise measuring devices or by the human ear under reasonable circumstances required for CN to perform their duties.

[58] Mr. DiNardo also argues that, because the log and videos demonstrate that noise actually exists (is audible), contrary to his SEP calculations, the noise is not reasonable and his complaint must succeed:

Furthermore, our complaint provides additional evidence that CN can operate without being heard at all; this would result in a reading at 0db. Any db over zero would therefore be more than is necessary. The video evidence provided in our complaint clearly evidences train noise is being picked up by audio recording equipment. The fact that this equipment was able to make a recording provides a db over zero is present.

[59] The Agency notes the cumulative application of adjustment factors in Mr. DiNardo’s SEP calculations. The Methodology, which has not been challenged by the parties, states at pages 45 and 54 that “[w]hen more than one adjustment factor applies, use only the largest adjustment.” As such, the Agency is of the opinion that the adjustment for obstacles should not be applied cumulatively for each obstacle. For this reason, the Agency agrees with Jade that the parameters used in Mr. DiNardo’s calculations were incorrectly applied. As a result, the Agency cannot rely on Mr. DiNardo’s SEP calculations.

[60] However, even assuming that Mr. DiNardo’s SEP calculations were correct and that the noise is not audible, the estimate would be of no assistance to Mr. DiNardo. In Decision No. 462‑R‑2010, the Agency noted that railway operations, by their nature, cause noise and vibration. However, this, alone, is not sufficient for the Agency to impose noise-related corrective measures on CN. The process of assessing railway noise upon complaint is an assessment of the reasonability of such noise. The Agency is of the opinion that the same principle applies in this case. As such, the Agency finds Mr. DiNardo’s arguments with respect to the existence of noise to be confusing.

[61] In this case, Mr. DiNardo did not file any reliable qualitative or quantitative data showing the extent of the railway operation noise that can be heard from his residence. The Agency notes the following comment from Mr. DiNardo:

Generally speaking the Agency ruled that the initial complaint be dismissed because they didn’t think CN was making noise, this was done without the aid of actual noise measurement and therefore the lack thereof now should be of no consequence to this case.

[62] The Agency finds Mr. DiNardo’s argument baffling as Decision No. 462-R-2010, to which Mr. DiNardo refers, dismissed the case due to a lack of evidentiary basis. The Agency fails to understand how this argument would be of any assistance to the applicant.

[63] The Agency recognizes a party’s ability to choose its own representative for proceedings before the Agency. However, the Agency notes that Mr. DiNardo is represented in this case by Mr. Aceti, who also represented himself and others in the proceeding leading to Decision No. 462-R-2010. The Agency clearly indicated in Decision No. 462-R-2010 that:

[...] the complainants did not file any log of incidents, readings, studies, expert evidence or recording to substantiate that the noise and noise level that can be heard from their respective properties are unreasonable. Further, no such evidence was filed despite the fact that in Decision No. LET-R-175-2009 the Agency indicated to parties that relevant noise measurements or updated studies conducted in the affected area would provide better factual information to complete information on file.

[64] As such, the Agency would have expected Mr. DiNardo to consider the Agency’s reasons in Decision No. 462-R-2010. However, instead of filing reliable evidence, such as a more detailed log, with the Agency in order to support his assertion that the noise that can be heard from his property is unreasonable, Mr. DiNardo chose to proceed by making hypothetical and unsubstantiated arguments in response to the Show Cause Decision. The Agency notes that, while Mr. DiNardo was encouraged by the Agency in the Show Cause Decision to file a sound study, he chose not to do so.

[65] In light of the evidence provided, the Agency finds that Mr. DiNardo has failed to demonstrate that the noise associated to railway activities is sufficient to cause substantial interference. If Mr. DiNardo had succeeded in demonstrating substantial interference, the analysis would then, by necessity, have moved on to a determination of the reasonability of such noise.

[66] Therefore, there is no need for the Agency to determine whether the level of noise is reasonable.

CONCLUSION

[67] In light of the above, the Agency finds that Mr. DiNardo has failed to demonstrate that CN is not meeting its obligations under section 95.1 of the CTA.

[68] Accordingly, the Agency dismisses the complaint.