Decision No. 53-R-2012

INTRODUCTION AND ISSUE

Application

[1] Charles Kallai Jr. (applicant) submitted an application with the Canadian Transportation Agency (Agency) pursuant to section 102 of the Canada Transportation Act (CTA) requesting the construction of a private crossing across the track of the Canadian Pacific Railway Company (CP) at mileage 62.71 of the Hamilton Subdivision in the northeast quarter of Lot 12, Concession II, township of Flamboro, county of Wentworth, now referred to as the city of Burlington in the province of Ontario.

Issue

[2]Is the applicant entitled by statute to a suitable crossing under section 102 of the CTA at the subject location?

Conclusion

[3]As indicated in the reasons that follow, the Agency has determined that the applicant has not provided sufficient evidence to support an entitlement to a private crossing at the subject location pursuant to section 102 of the CTA, and therefore denies the application.

POSITIONS OF THE PARTIES

[4]Mr. Kallai owns two lots of land, Lot 30 and Lot 28, which is a road (referred to as the Road/Lot 28). Mr. Kallai claims that the railway divided the Road/Lot 28 in 1912, and that CP’s predecessor divided the land in such a way as to make it virtually impossible to cross the track and develop his property. Mr. Kallai asserts that the railway company never obtained permission to construct its railway over the Road/Lot 28 and that, as a result, he claims a statutory right to a private crossing under section 102 of the CTA.

[5]Mr. Kallai submitted a number of deeds for the adjoining properties, Lots 27 and 29, that refer to a “road”. These deeds are dated from both before and after the railway company’s arrival at the location. Mr. Kallai asserts that the road referred to in these deeds as a recognized boundary is his Road/Lot 28, and that this proves that the Road/Lot 28 existed before the railway arrived.

[6]Mr. Kallai has also submitted plans of the lots, namely Plan No. 348 and later, Registered Compiled Plan 1333. These plans indicate the existence of the Road and that the Road was later changed on Plan 1333 to be called Lot 28. Mr. Kallai asserts that this once again indicates that the Road/Lot 28 predates the date that the railway arrived.

[7]Referring to a survey from 1911 that was filed by CP concerning the affected properties and which does not show the existence of a 40-foot road (Road), Mr. Kallai states that this is a sketch map that was, and is, incorrect. According to Mr. Kallai, this is proven by Instrument Nos. 7497 and 7919, which confirm that the Road existed between the Crane and Pereira properties before the railway arrived.

[8]Mr. Kallai states that in Instrument No. 208829, the metes and bounds description clearly shows Lot 28 as a long strip of land starting at Old York Road which runs continuously to the Hydro lines.

[9]Mr. Kallai contends that Instrument Nos. 7497, 7919 and 10888 show the existence of the Road/Lot 28 as situated between the Crane and Pereira properties and, therefore, CP could not have purchased land from Pereira or Crane as they did not own the Road. Mr. Kallai contends that the Road was never conveyed until the 1960’s because it had remained in the estate of James Bigelow.

[10]CP claims that it took title to the lands to which Mr. Kallai is claiming the right to a crossing pursuant to two deeds: Instrument No. FE8874, being a deed from Charles and Sarah Pereira registered November 2, 1911 and Instrument No. FE8909, being a deed from Michael Crane registered November 30, 1911.

[11]CP states that the best evidence remains a legal survey of the relevant properties in 1911 at the time of the railway purchase from Crane and Pereira. This survey, filed by CP, does not show a road, only two parcels of land. According to CP, “Lot 28”, the Road, was part of Portion 1 and/or Portion 2.

[12]CP states that Registered Compiled Plan 1333 is neither a plan of subdivision nor a survey. CP also claims that the divisions on Registered Compiled Plan 1333 do not align with those on Plan No. 348. CP contends that Plan No. 348 showing a road was created for the sole purpose of settling an estate dispute. It did not create any interest in land or subdivision for the alleged Road.

[13]CP states that neither Crane nor Pereira reserved a right-of-way over the Road or the railway lands in their deeds to the South Ontario Pacific Railway Company (now CP). To do so would have been unnecessary because Crane and Pereira were the only landowners whose lands were divided by the construction of the railway line and they each received crossings.

[14]CP states that there is no evidence or documentation of the conveyance of the Road prior to the 1960’s and states that Lot 28 was created well after the land was purchased by the railway company, removing Mr. Kallai’s right to a crossing under section 102 of the CTA.

ANALYSIS AND FINDINGS

[15]According to the documentation filed by the parties, the summary of events listed in Appendix A can be established with respect to the history of Lot 28 and adjoining properties. The Agency notes that the numbering of the affected lots has changed over time. For ease of reference, what is now called Lot 28 was formerly referred to as a “road”. Lot 30, the property to which Lot 28 leads, was formerly known as Portion 3. The properties on either side of Lot 28, currently known as Lots 27 and 29, were formerly known as Portion 1 and Portion 2 respectively.

[16] 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, construct a suitable crossing for the owner’s enjoyment of the land.

[17] In this case, with respect to section 102 of the CTA, the Agency must determine if an owner’s land was divided as a result of the construction of a railway line, including whether legal ownership of the land in question as a single parcel was in place at the time of construction of the railway. If an owner can prove a right under section 102 of the CTA, the railway company has no choice but to construct a suitable crossing.

[18] The Federal Court of Appeal in Fafard c. Canadian National Railway Company et al., 2003 FCA 243, has described section 102 of the CTA as mandatory in nature. The Court states as follows at paragraph 5:

Section 102 covers the detrimental situation where an owner’s land is divided in two by a railway line. The railway company has no choice: it must construct a suitable crossing for the owner of the land who otherwise would be deprived of the enjoyment of a part of his land, and it must bear the costs of doing so. Parliament has imposed this obligation on the company.

[19]The burden of proving that a statutory right to a private crossing exists remains with the applicant. In order to prove the right to a crossing under section 102 of the CTA, the applicant must provide sufficient evidence of historical ownership to date of the land on both sides of the railway. Proof of the history of ownership of the land is a key component in establishing a right under section 102 of the CTA.

[20]Further, Agency decisions on private crossings rely on deeds directly related to the lot in question, and not deeds referring indirectly to the lot as a boundary line. Accordingly, Mr. Kallai was given an opportunity to file direct evidence of ownership of the road itself. In response, Mr. Kallai did not provide any deeds related to the road, but rather a statement that the road had to have remained in the estate of James Bigelow until 1962.

[21]In 1911, Indenture Nos. 8909 and 8874 document the sale from Crane and Pereira of parts of Portions 1 and 2, Lots 27 and 29 to the South Ontario Pacific Railway Company required for the construction of the railway line.

[22]John Newton acquired Lot 27 in 1960. Two years later, on August 17, 1962, John Newton sold both Lots 28 and 30 to William Rooke. However, there is no record of John Newton’s separate acquisition of Lot 28.

[23]On the same date, John NewtonandWilliam Rooke together sold Lot 27 to Jeremy Rutty, thereby formalizing the separation of Lots 27 and 28.

[24]Mr. Kallai has failed to provide proof of a conveyance of the Road/Lot 28 before 1962. Also, there is no proof that it was ever formally registered as a road allowance or a road, or as any other separate parcel of land from Lots 27 and 29. As a result, evidence of historical ownership of Lot 28 dates back only to 1962, a half century after the railway company purchased the land and constructed its railway line in 1912.

[25]With insufficient historical evidence provided by Mr. Kallai in this case with respect to the Road/Lot 28, the Agency agrees with CP that the best evidence remains the legal survey of the relevant properties in 1911 at the time of the railway purchase from Crane and Pereira. It does not show a road, only two parcels of land, supporting CP’s conclusion that the Road/Lot 28 was, in fact, part of Portion 1 and/or Portion 2 at that time, being Lots 27 and 29 respectively.

[26]Based on the evidence before the Agency, Lot 28 was never formally registered prior to 1962, which implies that this unregistered land was part of Lot 27, which was conveyed from Horace Trimmins to John Newton. As the unassigned Road was never a separate Lot until 1962, there is no evidence of a right to a private crossing under section 102 of the CTA.

CONCLUSION

[27]The Agency finds that the applicant has not provided sufficient evidence to support an entitlement to a private crossing pursuant to section 102 of the CTA, and therefore denies the application.

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Appendix A to Decision No. 53-R-2012

[1]The Instruments included within Appendix A are a summary of the relevant conveyances of the lands in question.

[2] 1844 - Mr. Bigelow purchases 50 acres of land.

[3] December 12, 1874 - Map/Plan No. 348 prepared by Thomas C. Brownjohn for the settlement of Mr. Bigelow’s estate. The 50 acres of land on Plan No. 348 are assigned as follows:

Northeast quarter of Lot 12:

Portion 1 - Joab Bigelow

Portion 2 - Cynthia Garry

Portion 3 - John Jonathan Bigelow

40-foot road - unassigned

[4] April 6, 1893 (Indenture 5699) - James Crane sells Portion 2 (later referred to as Lot 29) to John Bolton.

[5] March 19, 1904 (Indenture 7497) - Portion 1 (later referred to as Lot 27) and Portion 3 (later referred to as Lot 30) are conveyed to Michael Crane by his mother Ann Pilgrim.

[6] May 1, 1906 (Indenture 7919) - Charles Felix Pereira purchases Portion 2 (Lot 29) as described in Indenture 5699 above from John and Ellen Bolton. The Indenture refers to the west boundary of Portion 2 as being the “side of an allowance for a road forty-foot wide”.

[7] October 4, 1911 (Indenture 8874) - The South Ontario Pacific Railway Company purchases from Charles Felix and Sarah Pereira that part of Portion 2 (Lot 29) for the CP right-of-way as shown on the Railway plan and as surveyed by the railway company at the time.

[8] November 8, 1911 (Indenture 8886) - Prior to registration of Indenture 8909, Charles Felix and Sarah Pereira purchase Portion 1 (Lot 27) and Portion 3 (Lot 30) from the Cranes - the Pereiras then owned Portions 1, 2 and 3 (or Lots 27, 29 and 30).

[9] November 30, 1911 (Indenture 8909) - The South Ontario Pacific Railway Company purchases from Michael and Priscilla Crane that part of Portion 1 (Lot 27) for the CP right-of-way as shown on the railway plan and as surveyed by the railway company at the time.

[10] December 2, 1911 - Charles Felix and Sarah Pereira quitclaim rights to the land previously sold to the South Ontario Pacific Company by the Cranes under Indenture 8909.

[11] January 20, 1922 (Indenture 10887) - Charles Felix Pereira sells to his wife Sarah Portions 1, 2 and 3 (Lots 27, 29 and 30) as described on Plan No. 348, excluding land previously sold to the Hydro Electric Power Commission of Ontario as Lot 32 and land sold to the South Ontario Pacific Railway Company by the Cranes in 1911.

[12] February 16, 1922 (Indenture 10890) - Correction to Indenture 8886 from November 8, 1911 by which Charles Felix and Sarah Pereira purchased Portions 1 and 3 (Lots 27 and 30) from the Cranes - This indenture indicates that the previous instrument incorrectly and insufficiently described the conveyance of Portion 1 and added that this conveyance excluded the land sold to the South Ontario Pacific Railway Company by Michael Crane in 1911.

[13] February 17, 1922 (Indenture 10888) - Charles Felix and Sarah Pereira sell Portions 1, 2 and 3 (Lots 27, 29 and 30) as described on Plan No. 348 to Sarah Pereira, Thomas Pereira, Jennie Cuthbertson, William Pereira and Frances Pereira, excluding land previously sold to the Hydro Electric Power Commission of Ontario as Lot 32 and land sold to the South Ontario Pacific Railway Company by the Cranes in 1911.

[14] February 17, 1922 (Indenture 10889) - Sarah Pereira, Thomas Pereira, Jennie Cuthbertson, William Pereira and Frances Pereira sell Portions 1 and 3 (Lots 27and 30) to Thomas Pereira, excluding land previously sold to the Hydro Electric Power Commission of Ontario as Lot 32 and land sold to the South Ontario Pacific Railway Company by the Cranes in 1911.

[15] May 15, 1952 (Indenture 22137) - Bessie Clara Campbell sells Portions 1 and 3 (Lots 27 and 30) to Horace Trimmins and Lillian H. Trimmins, excluding the land previously sold to the Hydro Electric Power Commission of Ontario and the South Ontario Pacific Railway Company.

[16] November 27, 1956 (Indenture 29663) - Albert Edward Thompson sells Portion 2 (Lot 29) to Edward and Biruta Mickunas, excluding land previously sold to the Hydro Electric Power Commission and the South Ontario Pacific Railway Company.

[17] April 13, 1960 (Indenture 133034 HL) - Horace Trimmins sells Portion 1 (Lot 27) to John R. Newton.

[18] July 13, 1960 (Indenture 135957 - Revised Indenture 133034 HL) - Horace Trimmins sells Portion 1 (Lot 27) to John R. Newton.

[19] August 17, 1962 (Indenture 208829) - John R. Newton sells Lots 28 and 30 to William George Rooke. The indenture refers to Lot 30 as being Parcel number 3 (Portion 3) as described on the said map or plan made by Thomas C. Brownjohn, bearing the date December 12, 1874.

[20] August 17, 1962 (Indenture 208631 HL) - John R. Newton and William George Rooke sell Lot 27 to Jeremy Richard Rutty.

[21] July 27, 1965 (Indenture 321781) - Jeremy Richard Rutty sells Lot 27 to Robert Cairns Crichton and Bertha Dicks Crichton.

[22] November 9, 1966 (Indenture 426990) - Charles Kallai, (Applicant’s father) purchases Lots 28 and 30 (Portion 3) from William G. Rooke excluding land previously sold to Hydro One as Lot 32.

[23] April 12, 2001 (Indenture 44725) – Lots 28 and 30 are conveyed to Charles Kallai Jr. by his parents.