Decision No. 75-R-2021

SUMMARY

[1] William Spat filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 95.3(1) of the CTA against CN concerning noise and vibration arising out of CN’s operations in Prince Rupert, British Columbia, from approximately mileage 92.96 of CN’s Skeena Subdivision to and including the Prince Rupert Yard.

[2] Mr. Spat seeks:

1. Compensation for damages to health and property resulting from CN’s failure to comply with the implementation of design elements, mitigation measures, monitoring, and follow-up as per the Comprehensive Study Review (CSR) of the Fairview Terminal Phase II Expansion Project in Prince Rupert (Project);
2. Return of traffic levels as they were before the Project until the requirements set out in the CSR are met; and
3. Implementation of mitigation measures and independent, ongoing monitoring follow-up programs specified in the Environmental Assessment Decision Statement (EAD Statement) related to the Project with focus on monitoring low‑frequency noise (dBC).

[3] CN submits that the application should be dismissed as Mr. Spat failed to demonstrate that CN’s operations have resulted in substantial interference with Mr. Spat’s ordinary comfort or convenience of living, according to the standards of the average person. CN further argues that the Agency lacks jurisdiction to grant enforcement of and relief contained in the CSR. Lastly and in the alternative, CN argues that it has complied with its obligations under the CSR and the CTA.

[4] The Agency will consider the following issues:

1. Do the noise and vibration caused by CN operations constitute substantial interference?
2. If so, is CN meeting its obligation 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 local area?

[5] For the reasons set out below, the Agency finds that Mr. Spat has not submitted sufficient evidence to establish substantial interference. The Agency, therefore, dismisses the application.

BACKGROUND

[6] The Prince Rupert Port Authority and CN proposed the Project, being the construction and operation of a wharf extension and expanded container and intermodal facilities at the existing Fairview Terminal; and the construction and operation of two sidings, a CN inspection road, a wye, and a Port-dedicated road between the terminal on Kaien Island and Ridley Island, British Columbia. 

[7] The Project would be built in two stages. Stage 1 includes construction of the northern terminal expansion, one CN siding, and the Port-dedicated road, and is almost completed. All remaining components (southern terminal expansion, yards, second CN siding, and wye) will be constructed as Stage 2, when market economies and traffic volumes require it.

[8] As part of the proposal process, there was an environmental assessment pursuant to the Canadian Environmental Assessment Act, SC 1992, c 37 (CEAA) that produced the CSR in September 2012. It states, among other things, that the effect of noise and vibrations would be limited to 300 to 500 m from the sound and vibration sources, and that the noise from the Project would overlap with that of the existing Fairview Stage I Terminal and rail line, resulting in potential cumulative effects for nearby receptors. The CSR also concluded that most of the environmental effects associated with the construction of the Project could be mitigated. The construction of the CN sidings would reduce the need for trains to use the Prince Rupert Yard and reduce the whistling noise. In consideration of the low magnitude for the potential Project-specific noise and vibration effects, the distance to most receptors, duration and frequency of the potential effects, and the mitigation measures that would be implemented, residual effects of the Project on noise and vibration were predicted to be not significant.

[9] The CSR was prepared by Fisheries and Oceans Canada, Environment Canada and the Agency (together, the Responsible Authorities), and concluded that upon taking into account the implementation of appropriate mitigation measures, the Project (Stages 1 and 2) was not predicted to cause significant adverse effects. On January 25, 2013, the Minister of the Environment, having taken into consideration the CSR, issued the EAD Statement, which found that the Project was not likely to cause significant adverse environmental effects, and that the mitigation measures and follow-up program described in the CSR were appropriate for the proposed project.

[10] Mr. Spat lives on Graham Avenue in a residential neighbourhood. His property does not back on to the CN railway line; there is a row of houses and trees between his property and the main line; and the distance between his property and the main line is at least 130 metres.

[11] On July 30, 2020, Mr. Spat filed his application. On September 24, 2020, Agency staff requested that Mr. Spat file additional information to complete his application, specifically: information regarding the description of the noise or vibrations; the description of the area affected and the background noise environment; the time of the day that the alleged noise or vibrations occur; and the information listed under Method A of the Railway Noise Measurement and Reporting Methodology (Methodology). The additional information was received on October 21, 2020.

[12] The Agency opened pleadings on December 17, 2020. CN filed its answer on January 29, 2021. On February 5, 2021, Mr. Spat filed a reply to the answer and the pleadings closed.

PRELIMINARY MATTERS

CSR and EAD Statement

[13] Mr. Spat asserts that CN has not carried out its commitments as per the Mitigation Strategy Report Information Request Document referenced in the CSR. Mr. Spat submits that rail traffic has and continues to increase near habitations, which causes excessive noise and vibration to the point of damaging his health and well-being. He adds that the noise and air quality impact modelling that was conducted for the CSR assumed that the construction of the wye, siding and road infrastructure would be completed.

[14] Mr. Spat states that the application relates to the air quality, noise and vibration exceedances as specified by Health Canada and others in the CSR. He adds that the CSR places an obligation on CN to implement and carry out the mitigation measures and refers to the decision from the Responsible Authorities that a follow-up program to verify the accuracy of the environmental assessment and/or determine the effectiveness of any measures taken to mitigate the adverse environmental effects is required for this project. Mr. Spat maintains that the Agency has the jurisdiction to compel CN to comply with the CSR as per the EAD Statement.

[15] CN argues that Mr. Spat’s application misconstrues and mischaracterizes the CSR, the EAD Statement as well as CN’s related obligations. CN adds that it has not breached its commitments nor its obligations set out in the CSR. CN adds that Mr. Spat’s application appears to be premised on the fact that the Stage 2 wye or siding have not been constructed and that their construction would serve as a mitigation measure on the effect of Stage 1 of the Project. CN adds that as Stage 2 of the Project is dependent on market conditions and the need for such construction, there are no guarantees that the construction will occur. CN asserts that the Agency has no jurisdiction to compel CN to complete the Project.

[16] The Fairview Terminal Phase II Expansion Project included expansion of the Port and the construction of a wye to allow trains to better access the Prince Rupert Port. An approval from the Agency pursuant to section 98 of the CTA was required for the construction of the wye and an environmental assessment of a project was required before the Agency could grant the approval. The CSR resulting from the environmental assessment included conditions that addressed potential noise and vibration that would result from the project.

[17] As the CEAA contained no stand-alone enforcement powers, the Agency would have to require conditions as part of the mitigation measures attached to the approval. However, the part of the project requiring an approval from the Agency under subsection 98(2) of the CTA never proceeded and, as a result, CN never applied to the Agency for and the Agency never issued the approval.

[18] This complaint was filed pursuant to subsection 95.3(1) of the CTA. Under the CTA, the Agency has the authority to order a railway company to undertake mitigation measures, including changes in its railway construction or operation, if the Agency finds that the railway is not causing only such noise and vibration as is reasonable. In order to impose mitigation measures in an order issued pursuant to subsection 95.3(1) of the CTA, the Agency needs current noise and vibration data. Although the Agency could order implementation of conditions stemming from an environmental assessment, such an order would, in this case, need to be tailored to address the current noise and vibration, as the conditions listed in the environmental assessment would not properly address the current noise and vibration issues, if any were found.

Compensation for damages

[19] In his application, Mr. Spat seeks compensation for damage to his health and property resulting from CN’s failure to implement design elements, mitigation measures, monitoring, and follow-up as per the CSR of the Project.

[20] The Agency is limited to the authority provided to it by statute. The CTA does not provide the Agency with the authority to award compensation in respect of a noise and vibration complaint. Therefore, the Agency will not consider the matter of compensation.

THE LAW

[21] Section 95.1 of the CTA imposes an obligation on a railway company to only cause such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the rail operation takes place.

[22] According to subsection 95.3(1) of the CTA, the Agency may, on receipt of a complaint and on finding that a railway company is not complying with section 95.1 of the CTA, order the railway company to undertake any changes to its railway construction or operations that the Agency considers reasonable.

[23] It is clear from the legislative framework and the national transportation policy contained in section 5 of the CTA that, in exercising its mandate under subsection 95.3(1), the Agency must balance the interests of the parties. On the one hand, railway companies are involved in activities that necessarily cause noise and vibration. These activities are required to fulfill their various legislated level of service obligations and operational requirements, and to maintain the “competitive, economic and efficient national transportation system that … serve[s] the needs of its users, advance[s] the well-being of Canadians and enable[s] competitiveness and economic growth in both urban and rural areas throughout Canada.” On the other hand, the interests of communities affected by this noise and vibration must also be considered by the railway companies in determining how best to perform their activities such that their obligation under section 95.1 to only cause such noise as is reasonable is met.

[24] The relevant sections of the CTA are set out in the Appendix.

Analytical Framework

[25] In Decision No. 35-R-2012 (Normandeau and Tymchuk v CP), the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligation. The framework was developed by the Agency in consultation with key industry players, including CN representatives, to guide railway companies, citizens, and municipalities and is used by the Agency in assessing and validating parties’ submissions in its proceedings. Drawing a parallel with the jurisprudence of courts of civil jurisdiction on nuisance law, the Agency determined that the first step consists of determining whether railway companies have caused noise and vibration which constitutes substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference).

[26] To make a determination on the existence of noise and vibration that may constitute substantial interference for applicants, the Agency will consider several elements, as outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines) and in Decision No. 35‑R‑2012 (Normandeau and Tymchuk v CP), including:

• the presence of ambient noise other than that of railway operations, such as highway noise;
• railway operations in the affected area, including any relevant changes;
• the characteristics and magnitude of the noise and vibration (such as the level and type of noise [impulse or constant], the time of day, duration, and frequency of occurrence);
• relevant standards to assess the significance of the effects of noise and vibration levels;
• the impact of the noise and vibration disturbance on the persons affected; and
• mitigation methods and mitigation efforts made by the parties.

[27] If the Agency finds that the noise and vibration are not causing substantial interference, it will dismiss the application. Alternatively, if the Agency finds that the noise and vibration are causing substantial interference, it will proceed 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—the railway company’s level of service obligations; their operational requirements; and the area where the rail operation takes place—to determine whether the noise and vibration are reasonable in the circumstances.

[28] Reasonableness is determined on a case-by-case basis through an objective assessment of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances. The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations. This balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.

[29] If the Agency determines that the noise and/or vibration from railway operations is reasonable, it will dismiss the application. Alternatively, if the Agency determines that the noise and/or vibration is not reasonable, it may order the railway company to undertake any change in its railway operations that the Agency considers reasonable to ensure compliance with section 95.1 of the CTA.

DO THE NOISE AND VIBRATION CAUSED BY CN’S OPERATIONS CONSTITUTE SUBSTANTIAL INTERFERENCE?

Positions of the parties

MR. SPAT

[30] Mr. Spat submits that rail traffic has and continues to increase near pre-existing habitations, and that this increase causes excessive noise and vibration to the point of damaging his health and well-being (cognitive impairment, hypertension, heart attack, stress and insomnia). Mr. Spat states that CN increased its traffic from its customers in the area of mileage 92.96 of CN’s Skeena Subdivision to, from and including the Prince Rupert Yard on portions of its infrastructure that were identified in the CSR to be of particular concern to the well-being of human health and property. He adds that CN knew from the CSR that any further increases in the levels of noise, vibrations and air emissions would pose a greater threat to human health and property.

[31] Mr. Spat provides noise readings in dBA from two noise monitoring stations owned and maintained by the Prince Rupert Port Authority, one located near mileage 92.70 and the other near the Prince Rupert Yard; both stations are near the affected residential area. Mr. Spat indicates that the noise monitoring stations are only monitoring dBA and not dBC; and that in order to observe the effect of train vibration on human health, both dBA and dBC have to be recorded.

[32] Mr. Spat requests that the traffic return to the levels prior to the Project in the areas close to the pre-existing human habitation and that monitoring of low frequency noise dBC, which he claims may not be adequately reflected in dBA monitoring, be implemented.

CN

[33] CN points out that Mr. Spat brings the application on his behalf and not of others who may be affected by the noise and vibration, as the application relates to the noise and vibration at his property and the related impacts on him. In addition, CN submits that Mr. Spat failed to substantiate and qualify which of CN’s operations are at the core of his application.

[34] CN states that the area of the complaint is from the public crossing at Ferry Crossing, at mileage 92.96, to and including the Prince Rupert Yard. Mr. Spat’s property, located in a residential area, is approximately 130 m away from CN’s railway line. The property is shielded by a row of houses and trees.

[35] CN states that the two noise monitoring stations are located nearer to the rail operations than to Mr. Spat’s property. The Fairview Bay station is located near mileage 92.70 close to Fairview Terminal, Prince Rupert Port and Alaska Ferries terminals and CN’s railway lines. The Westview station is located near the Prince Rupert Yard, along CN’s railway line and nearby residential areas.

[36] Furthermore, CN considers Mr. Spat’s evidence to be unreliable as the noise readings do not describe the noise experienced at his property. CN submits that both stations measure ambient noise and do not distinguish the noise caused by CN’s operations.

[37] CN describes its operations in the Prince Rupert area as follows:

• Three trains arrive to and depart from DP World’s Fairview Terminal on a daily basis. Trains arrive to and depart from the south end of the Fairview Terminal and do not travel along the railway line closest to Mr. Spat’s property.
• DP World is responsible for marshalling the cars in the Fairview Terminal once received from CN. As part of its marshalling activities, DP World uses CN’s railway line between the Fairview Terminal and the Prince Rupert Yard.
• One train arrives every second day to Pinnacle Pellets in the Prince Rupert Yard. The train passes along CN’s railway line closest to Mr. Spat’s residence. Pinnacle Pellets is responsible for marshalling cars in the Prince Rupert Yard.
• One other train, containing approximately 40 cars, arrives every two weeks at the Prince Rupert Yard, where it is marshalled and then moves to the Aquatrain barge, which is located near the Fairview Terminal.

[38] CN states that its obligation under section 95.1 of the CTA with regard to noise and vibration is one of reasonableness, which must be balanced with its operational requirements and obligations to its customers. CN argues that it is for the applicant to satisfy the Agency that they are experiencing substantial interference. CN refers to Decision No. 51-R-2017 (McComish v Metrolinx) in support of the test and Decision No. 462-R-2010 (Aceti et al v CN) in support of the evidentiary burden on the applicant.

ANALYSIS AND DETERMINATIONS

[39] The onus is on the applicant to demonstrate to the Agency that the noise and vibration caused by the railway company’s current operations constitute substantial interference.

[40] Mr. Spat filed noise readings from the two monitoring stations, which he claims show frequent and excessive noise that affect his health. These stations are located near mileage 92.70 close to the Fairview Terminal and the Westview station located near the Prince Rupert Yard. Both of these monitoring station locations are located much closer to the rail operations and are less sheltered than Mr. Spat’s property. Therefore, the noise readings cannot be relied upon as the stations are not in the same location as Mr. Spat’s residence and would, in the Agency’s view, have a different noise exposure profile and not be suitable to accurately identify the noise levels at Mr. Spat’s location.

[41] In addition, the noise readings from the two monitoring stations include both ambient noise, such as intermodal activities, planes, vessels, wildlife, vehicular traffic and other activities that are undescribed and likely unrelated to railway operations and distortions related to inclement weather conditions (e.g. rain, high humidity, and excess wind speeds). The Agency cannot, therefore, consider the noise readings to be reliable evidence as no differentiation can be made between the railway noise under dispute (i.e. CN’s activities) and the other noise sources in the area, including those resulting from Prince Rupert operations and other activities related to the Port. In accordance with the Agency’s Methodology, these measurements cannot be used for a proper determination of the level of noise and vibrations attributable to railway operations.

[42] Mr. Spat did not provide any subjective descriptions of the noise nor demonstrate whether the noise is caused by passing trains, idling locomotives, wheel squeal on curved tracks, whistling, shunting, or some other railway activity. He only refers to rail traffic as having increased and being in proximity to the pre-existing human habitations.

[43] Mr. Spat has also not established the impact of the noise disturbance. He listed a number of health and well-being conditions which he states that he is experiencing, and provided an article of an interview highlighting some key findings of the European Environment Agency report “Environmental noise in Europe – 2020” supporting his argument but did not provide sufficient evidence to establish a link between these conditions and any noise or vibration from CN's railway operations. Mr. Spat alleges that the noise and vibration are a danger to human health and may cause property damage as recognized in the CSR. However, Mr. Spat provides insufficient evidence to support his allegations that the noise that can be heard from his residence constitutes substantial interference with the ordinary comfort or convenience of living.

[44] The Agency notes that the CSR was based on projections made at the time when the environmental assessment of the Project was conducted. While Mr. Spat relies on the noise and vibration information and data contained in the CSR to present and support his argument, the Agency is of the opinion that the CSR data is not sufficiently relevant as it was conducted in accordance with the planned Project and, therefore, may not be reflective of the fact that Stage 2 has not been constructed.

[45] The CSR provided noise monitoring data dated from September 2012. The Agency notes that this data is over eight years old and does not represent the current noise environment; therefore, the Agency cannot rely on this data as evidence of existing conditions.

[46] In light of the above, the Agency finds that Mr. Spat has failed to discharge his burden of providing sufficient evidence to prove, on a balance of probabilities, that the noise and vibration from CN’s railway operations constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person. Therefore, there is no need to proceed to the second step, to assess whether the noise is reasonable pursuant to section 95.1 of the CTA.

CONCLUSION

[47] Accordingly, the Agency dismisses the application.

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APPENDIX TO DECISION NO. 75-R-2021

Canadian Transportation Act, SC 1996, c 10

95.1 When constructing or operating a railway, a railway company shall cause only such noise and vibration as is reasonable, taking into account

(a) its obligations under sections 113 and 114, if applicable;

(b) its operational requirements; and

(c) the area where the construction or operation takes place.

95.3(1) On receipt of a complaint made by any person that a railway company is not complying with section 95.1, the Agency may order the railway company to undertake any changes in its railway construction or operation that the Agency considers reasonable to ensure compliance with that section.