Decision No. 485-R-2004

September 14, 2004

File No. R 8050/184-018.70

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APPLICATION

[1] On March 18, 2004, Earl T. Mufford and Roy H. Mufford (hereinafter the applicants) applied to the Canadian Transportation Agency (hereinafter the Agency) for a determination pursuant to section 102 of the Canada Transportation Act (hereinafter the CTA) for continued access to Glover Road from their property located at 6849 Glover Road across and over the Canadian Pacific Railway Company's (hereinafter CP) Page Subdivision, in the town of Milner, in the township of Langley. The application was filed after Transport Canada notified them that their private crossing at mileage 18.70 would be permanently closed on March 24, 2004 for safety reasons.

[2] On April 19, 2004, CP filed its answer with the Agency. On May 5, 2004, the applicants requested a six-week extension to reply to CP's answer. The applicants filed their replies on June 17 and 23, 2004.

[3] In its Decision No. LET-R-166-2004 dated June 25, 2004, the Agency, pursuant to subsection 18(1) of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the General Rules), requested CP to submit comments with respect to the applicants' reply. CP's comments were received on July 16, 2004.

[4] 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 parties have agreed to an extension of the deadline until September 17, 2004.

PRELIMINARY MATTERS

[5] With respect to the applicants' request for an extension to reply to CP's answer, the Agency, pursuant to section 6 of the General Rules hereby approves that request.

[6] In addition, the Agency notes that CP filed its comments in response to Decision No. LET-R-166-2004 after the deadline. The Agency has considered this matter and pursuant to section 8 of the General Rules hereby accepts CP's submission as being relevant and necessary for its consideration of this matter.

ISSUE

[7] The issue to be addressed is whether the applicants are entitled, pursuant to section 102 of the CTA, to a suitable crossing across CP's Page Subdivision.

FACTS

[8] The applicants' land consists of approximately 315 acres to the west of the track as well as 325 acres to the east of the track, at lot 16 of the District Subdivision of lot 22 in the township of Langley, where they operate the Hometown Feed and Pet Supply Company and the Milner Farm Market at 6849 Glover Road, in the town of Milner.

[9] The land was originally surveyed and subdivided by the Hudson's Bay Company in December of 1877. The lots on a parcel of land owned by the Hudson's Bay Company, known as the Langley Farm, were divided along the road to Langley, which was constructed circa 1874 and later called the Fort Langley Road, Langley Trunk Road and is currently known as Glover Road (hereinafter Glover Road).

[10] On October 6, 1906, the Township of Langley, now the Corporation of the Township of Langley (hereinafter the Township), enacted the Langley Tram Power and Light By-law granting certain rights, privileges, and obligations to the Vancouver Power Company Limited respecting the construction and operation of a tramway through the township. Article Number 2(c) of this by-law required, among other things, that the tramway not unnecessarily interfere with or impede the public right of travelling on public highways, streets, lands or bridges, or in any way obstruct the entrance to any door or gateway, or interfere with the free access to any buildings or premises. Article Number 14 stated that the by-law would be binding on all successors of both the Township and the Vancouver Power Company Limited.

[11] On December 29, 1908, a railway right of way which spanned the width of lot 16, approximately 50 feet deep and parallel to the adjacent Glover Road, was sold by the applicants' grandfather, Frank Marrington, to the Vancouver Power Company Limited for $528.50. All rights to the sold land were extinguished with this sale.

[12] On April 25, 1910, Mr. Marrington gifted a portion of land in the southeast corner of his property to the Vancouver Power Company Limited for the purpose of erecting a station, freight shed and trackage in connection with its tramway line running between Chilliwack and New Westminster. Upon ceasing to be used for this purpose, the land would be reconveyed to the grantor. The electrified railway operations known as the British Columbia Electric Route, or BCE Route, began railway operations on October 3, 1910.

[13] On August 30, 1988, the successor to the Vancouver Power Company Limited, British Columbia Hydro and Power Authority (hereinafter BC Hydro), sold the equipment, the statutory right of way and the tracks between Livingstone and Pratt, British Columbia, which includes the private crossing, to CP. The land beneath the tracks remains the property of BC Hydro.

[14] On March 10, 2004, a Transport Canada Safety Inspector issued a Notice and Order pursuant to section 31 of the Railway Safety Act, R.S.C, 1985, c. 32 (4th Supp.) [hereinafter the RSA] stating that, due to safety concerns, the applicants' crossing at mileage 18.70 would be permanently closed to vehicular traffic and that proper barricades and signage would be installed by March 24, 2004.

POSITIONS OF THE PARTIES

The applicants

[15] The applicants submit that their family has farmed the Milner Valley since 1885 and that they have enjoyed access to Glover Road by means of a private crossing at mileage 18.70 of the Page Subdivision since before the railway was constructed in 1910. The applicants submit that the use of the crossing has always remained the same and its maintenance has always been the total responsibility of the railway company.

[16] The applicants state that removal of the crossing will have and has had devastating effects on the whole farm enterprise and gives other similar businesses in the area an unfair economic advantage which could result in the failure of the business.

[17] The applicants submit that since Transport Canada closed this crossing on March 24, 2004, they have been using a shared single lane driveway at the rear of the property leading to Crush Crescent, which borders the applicants' property to the north. This driveway was constructed by the Township for the use of adjoining residences, and not for a farming operation.

[18] The applicants provided correspondence between the Township and Transport Canada, wherein the Township stated that there is no permit for the driveway, and if one was requested, access would be restricted to "right in, right out" only, due to the existing left turn bay on Crush Crescent. The Township further indicated that a raised traffic island for this left turn bay may be installed at some point in the future. The applicants submit that any truck entering the property via the access from Crush Crescent would not only impair the safety of the adjacent residents, but also would have to detour approximately 5.5 miles and through eight controlled intersections just to return to Milner. Furthermore, they state that the combination of the current traffic count on Crush Crescent, which averages over 8000 vehicles a day, and the large grain trucks entering and exiting the Otter Co-op elevators on the south side of Crush Crescent would impair anyone's ability to exit the applicants' property. As such, the applicants do not consider this to be an appropriate alternative access.

[19] The applicants submitted plans of the subject property which indicate that the land was originally subdivided along Glover Road by the Hudson's Bay Company in December of 1877, and that the railway right of way was sold by the individual landowners in 1910. They also submitted a copy of the 1906 Langley Tram Power and Light By-law granting certain privileges and rights to the Vancouver Power Company Limited to run its electric tramway through the Township, including the obligation to not impair access to any building or property along the right of way.

[20] The applicants have acknowledged past attempts by the railway company to alter or close their crossing, and attribute its continued existence to the fact that they are the senior party and have the right to access Glover Road. Furthermore, they submit that the railway company and emergency crews have, on more than one occasion, used the crossing as an alternate access for heavy equipment movements during derailments and accident situations at neighbouring crossings.

[21] The applicants submit that continued access to Glover Road is necessary for the survival of their farming business.

CP

[22] CP submits that the applicants have submitted an improper crossing application under section 102 of the CTA in an attempt to appeal the crossing closure ordered by Transport Canada under the RSA. CP notes that the subject crossing was a safety risk, with incidents dating back to 1963, all of which are outlined in Transport Canada Safety Inspection reports of the site leading up to its closure on March 24, 2004.

[23] CP states that the Agency does not have jurisdiction over such Transport Canada Inspectors or railway operational safety matters, nor can it reverse an Order of a Transport Canada Safety Inspector by reopening a crossing closed for safety reasons under the RSA.

[24] CP states that an adequate alternate access to the subject property exists via the rear driveway leading to Crush Crescent.

[25] Furthermore, CP states that the railway right of way at this location does not divide the applicants' property, but that the property lies to the side of the railway right of way. CP submits that an application under section 102 of the CTA can only be considered by the Agency where a railway line divides the land of the applicant. Where a railway line only separates the applicant's land from a public road, as here, the Agency has no jurisdiction to consider the application under section 102 of the CTA.

ANALYSIS AND FINDINGS

Jurisdiction

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

[27] Section 102 of the CTA states:

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, construct a suitable crossing for the owner's enjoyment of the land.

[28] CP claimed that the Agency has no jurisdiction to hear this case for two reasons. First, CP stated that the Agency cannot reverse an order of a Transport Canada Safety Inspector and, second, that section 102 of the CTA does not apply as the railway at the subject location does not divide the applicants' property.

[29] With respect to the first issue, the Agency agrees that it does not have jurisdiction over safety matters nor can it reverse an order of a Transport Canada Safety Inspector. Matters concerning railway safety are governed by the RSA and are under the jurisdiction of Transport Canada.

[30] The Agency notes, however, that the applicants are not requesting that the private level crossing be reopened at mileage 18.70 of the Page Subdivision, but are simply requesting that the Agency determine, pursuant to section 102 of the CTA, if the applicants have a statutory right to a crossing which would entitle them to keep their access to Glover Road. Therefore, the Agency accepts this application as an application for a suitable crossing pursuant to section 102 of the CTA, not as an application to reopen a level crossing closed by an order of a Transport Canada Safety Inspector. Nevertheless, any Agency decision rendered on a suitable crossing pursuant to section 102 of the CTA does not relieve the parties from their obligations under the RSA and the requirements of Transport Canada.

[31] 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).

[32] With respect to CP's second claim that an application under section 102 can only be considered by the Agency where the railway line divides the land of the applicant and not where the railway line only separates the applicant's land from a public road, the Agency disagrees.

[33] The Agency notes that the railway right of way is located between the property in question to the east and Glover Road to the west. Therefore, this application does differ from a typical application pursuant to section 102 of the CTA wherein a landowner's property borders both sides of a railway right of way. The Agency is of the opinion that the intent of section 102 of the CTA is to ensure that a landowner and all subsequent landowners maintain the access or rights that existed prior to the presence of the railway, and to ensure that the construction of a railway does not serve as a barrier to a landowner's enjoyment of his land.

[34] The Agency notes that the word "divided" is not defined in section 102 of the CTA and is of the opinion that the narrow definition of "divided", as is suggested by CP, could lead to situations where a landowner's rights or access could be denied by the construction of a railway.

[35] The word "divided", as found in the Concise Oxford English Dictionary, not only means, "to be separated into parts", but includes the definition "to be cut off, separated, or parted". Black's Law Dictionary also defines the word "divide" as "to cut into parts, disunite, separate, keep apart". Furthermore, the French version of section 102 of the CTA includes the words "passer une ligne à travers la terre". According to Le Petit Robert Dictionary, "à travers" means "... en passant d'un bout à l'autre; de part en part" ([translation] passing from one end to the other, or from one side to the other). This does not imply that the landowner's property must border both sides of a railway right of way. As such, the Agency is of the opinion that section 102 of the CTA can also apply in situations where the construction of a railway has cut off or separated a property from a public road.

[36] Furthermore, the Agency notes that previous decisions have been rendered pursuant to section 102 of the CTA where access from the land to a public road has been severed as a result of the presence of a railway. The Agency, in Decision No. 283-R-1997 dated May 15, 1997, stated that: "The Agency is of the opinion that the fact that [the applicant] does not own the land on both sides of the railway, because of the presence of a public road, does not remove his right to a crossing. In fact, the reason for having a crossing at that point is to provide access between the property, which is enclosed by the railway, and the public road. ..."

[37] In this case, the railway right of way does lie between the property in question and Glover Road and the applicants submitted that their property has been cut off from Glover Road. The Agency, therefore, is of the opinion that it has jurisdiction to review the applicants' request, pursuant to section 102 of the CTA, regarding their possible statutory right to access Glover Road from their property.

Statutory right to a crossing

[38] In reviewing all of the submitted plans, land titles and legal documents in this case, the Agency notes that the land was subdivided in 1877 along Glover Road. Accordingly, the Agency finds that prior to the construction of the railway line in 1910, the applicants' land abutted the public road. It was the construction of the railway line that severed the access to Glover Road, the only road in existence at the time, and a crossing was necessary to access the said public road from the barn erected in 1908 on the property.

[39] Therefore, the Agency finds that a statutory right to a crossing to access Glover Road, at the railway company's expense, exists.

[40] The Agency notes that although the right of way was sold by the applicants' grandfather in 1908, he was not left without protection. The Township's Langley Tram Power and Light By-law, 1906, protected residents along the right of way by prohibiting the tramway from obstructing any gateway or interfering with the free access to any buildings or premises.

[41] Furthermore, the Agency notes that the subject crossing was in existence, used for the same purpose, and maintained solely by the railway company from the time that the railway was constructed until Transport Canada's Notice and Order closed the crossing on March 24, 2004.

[42] Having determined that the applicants are entitled, pursuant to section 102 of the CTA, to a suitable crossing to access Glover Road, at the railway company's expense, the Agency is of the opinion that it need not consider the adequacy of any alternate access to the property via the rear single lane driveway leading to Crush Crescent.

CONCLUSION

[43] In light of the foregoing, the Agency has determined, pursuant to section 102 of the CTA, that the applicants have a statutory right to a suitable crossing from their property to Glover Road over and across CP's Page Subdivision for the enjoyment of their land, and that CP is required to provide such a suitable crossing. The costs of construction and maintenance of a suitable crossing shall be paid by CP.

[44] Any decision of the Agency does not relieve the applicants and/or CP of their obligations under the RSA.