Decision No. 79-R-2023

Summary

[1] Leisa-Anne Tyler applied to the Canadian Transportation Agency (Agency) under section 102 of the Canada Transportation Act (CTA) for the reinstatement of suitable private crossings of two railway lines, located approximately at mileage 145.47 of CN’s Bala Subdivision and mileage 19.4 of CP’s Parry Sound Subdivision, in the province of Ontario.

[2] The two railway lines divide three parcels of land that Ms. Tyler owns. She is the sole owner of two parcels, and she owns the other parcel jointly with Mr. Connor Bryce Tyler, whom she represents in this proceeding. Thus, all the ownership interests relevant to these proceedings are represented. Ms. Tyler claims that the railway lines prevent her from accessing two of her parcels of property and that the reinstatement of crossings is necessary for her use and enjoyment of those properties.

[3] The Agency will address the following issue:

Should the Agency order the construction of suitable private crossings of the railway lines of CN and CP pursuant to section 102 of the CTA?

[4] For the reasons set out below, the Agency orders CN and CP to construct and maintain suitable crossings of their railway lines that divide Ms. Tyler’s land at their expense pursuant to section 102 of the CTA.

Background

[5] The land on either side of both railway lines was originally a single parcel identified as Lot 138, CONCESSION A, Township of Foley [Lot 138], which was granted to an ancestor of Ms. Tyler in 1874. The Township of Foley later became the Township of Seguin.

[6] George Smith was the owner of Lot 138 when portions of it were sold to railway companies. In 1905, he sold a portion of it to a predecessor railway company to CN for the purpose of constructing a railway line. In 1906, he sold a second portion of Lot 138 to CP for the same purpose. As a result of these transactions, the rest of Lot 138 was divided into three parcels, referred to as Parts A, B and C in the original Land Registry for Lot 138 and described as the “Front”, “Middle” and “Back” Parcels in this decision, all of which continued to be owned by George Smith. CN’s right-of-way is located between the Front and Middle Parcels, while CP’s is located between the Middle and Back Parcels.

[7] Between 1906 and 1988, ownership of all three parcels in Lot 138 transferred from one family member to another. In 1988, another George Smith — George N. Smith — subdivided the Front Parcel. He retained ownership of most of that parcel, including the land that abuts CN’s railway line.

[8] Following the death of George N. Smith, ownership of the Front, Middle and Back Parcels was transferred several times. Ms. Tyler became an owner of all three parcels in 2014 and the sole owner of these parcels in 2015. In 2020, Ms. Tyler made Mr. Tyler a joint owner of the Front Parcel.

[9] Pursuant to the Memorandum of Understanding entered into between the Agency and Transport Canada (TC), which allows for a coordination of efforts related to road, utility and private crossings within federal jurisdiction, a copy of the application was sent to TC for comments on safety-related matters. TC filed its comments on April 8, 2022.

The law

[10] Under section 102 of the CTA, a landowner has a right to a suitable rail crossing at the expense of the railway company where construction of a railway divides the lands of the owner in such a way as to leave that owner with land on either side of the railway line. This statutory right exists to give the owner enjoyment of their land on either side of the railway line. The Agency and its predecessors have stated in numerous cases that evidence of the history of the ownership of the land on both sides of the railway is key to establishing whether a current owner continues to have this statutory right.

[11] The statutory crossing right was first created by the Railway Act of 1888, and the classification of crossings has changed over time. The Railway Act used the term “farm crossing”. The CTA, which replaced that Act, refers to “private crossings” in sections 102 and 103. Although that term is not formally defined in the CTA, the statutory right to a private crossing described in section 102 of the CTA is similar to the statutory right to a “farm crossing” under the Railway Act.

[12] In Crozier v CP Railway (1923), 28 CRC 157, the Board of Railway Commissioners (the Agency’s predecessor) stated that the statutory right to a farm crossing is not a right related to the time of construction or to the individual owning the land when the railway was constructed, but it is a right which runs with the land and is not affected by a lapse of time. As long as common ownership of the land on either side of the railway line continues, the right to a crossing also continues.

[13] Conversely, if the parcels of land on either side of the railway are owned by different owners at any point since the railway was built, the common ownership of the title to the land on either side of the railway line is severed (Hillhouse v CPR, 20 DLR 907). The right to a private crossing under section 102 of the CTA is lost unless the owner of the land on both sides of the railway line reserves a right-of-way or grants a right-of-way over at least one parcel when they convey ownership of one of the parcels to a different owner (T.H & Ry v Simpson, 17 OLR 632). Once this crossing right has been lost, it cannot be revived even if a single owner subsequently acquires the parcels of land on both sides of the railway line (O’Brien v CPR, 21 CRC 197). See also Benninger v CP at paragraph 33.

[14] The Agency may authorize the construction and maintenance of a crossing if it finds it to be suitable. As the Federal Court of Appeal stated in Fafard v Canadian National Railway Company, a suitable private crossing must be adequate and appropriate for the purposes for which it is intended and installed, meeting the needs of those using the crossing and those of the railway operations. The suitability of a crossing includes an element of safety.

Should the Agency order the construction of suitable private crossings pursuant to section 102 of the CTA?

Position of the parties

Ms. Tyler

[15] Ms. Tyler seeks private crossings of both CN’s and CP’s railway lines that are designed for foot traffic and occasional use by small recreational vehicles such as ATVs or snowmobiles. She states that the land on either side of each railway line has been owned continuously by successive members of her family since Lot 138 was granted to her family in 1874 and that ownership of the land on either side of each railway line has never been severed. She states that she owns the Middle and Back Parcels and owns the Front Parcel jointly with Mr. Tyler.

[16] Ms. Tyler claims that numerous attempts have been made to contact CN and CP to discuss reinstatement of crossings for each railway line on Lot 138. Because construction of both railway lines occurred after the statutory right to a crossing for landowners was enacted in 1888, Ms. Tyler argues that each railway is responsible for installing and maintaining a private grade crossing of their railway line so that she can access her Middle and Back Parcels.

[17] Ms. Tyler provided a copy of a land sale agreement from 1905 whereby George Smith, the owner of Lot 138, sold a portion of his land to a predecessor railway company to CN to enable the construction of a railway line. She also provided a land sale agreement from 1906, whereby he sold a second portion of Lot 138 to CP for the same purpose. As a result of these transactions, Lot 138 was divided into three parcels, all of which continued to be owned by George Smith.

[18] Ms. Tyler filed Ontario Land Registry records for Lot 138. These records do not indicate any transfers of title for any part of Lot 138 between 1906 and 1972. In 1972, ownership of all three parcels of land was transferred from the Estate of John Conrad Smith to Gladys Smith. In 1987, the Estate of Gladys Smith transferred ownership of the three parcels to George N. Smith.

[19] The Ontario Land Registry records indicate that, in 1988, George N. Smith subdivided the Front Parcel of Lot 138 into four parcels. He transferred ownership of three of these parcels and retained ownership of the rest of the Front Parcel, including land which abuts CN’s railway line according to maps provided by Ms. Tyler.

[20] The Estate of George N. Smith transferred ownership of the Front, Middle and Back Parcels of land to Connie Smith. She made Ms. Tyler a co-owner of all three parcels in 2014. In 2015, Ms. Tyler became the sole owner of the three parcels. In 2020, Ms. Tyler made Mr. Tyler a joint owner of the Front Parcel. For a two-day period in 2020, they owned that parcel with a third person, who then transferred his ownership interest back to them.

[21] Ms. Tyler also submitted a letter dated March 25, 1980, (1980 letter) from CP’s Office of the Superintendent to George N. Smith regarding CP’s railway line, which divides the Middle and Back Parcels of Lot 138. The 1980 letter states that CP was satisfied that a valid farm crossing existed on the property at Lot 138, that CP’s roadmaster had been instructed to install a crossing for May 1, 1980, and that CP would remove the crossing in the winter to facilitate cleaning snow from the tracks.

CN

[22] CN recognizes that section 102 of the CTA establishes a simple rule: if someone owns land and a railway divides it, they must be able to cross the railway. Otherwise, the enjoyment of their land would be prejudiced.

[23] CN submits that the Agency has established three preconditions in past cases interpreting section 102 of the CTA:

1. At some time after 1888, a railway must have constructed a railway line that divided a piece of land.
2. The person seeking the crossing must be, at the time of the application, either a) the owner of the land on both sides of the railway or b) the owner of the land on one side, while having some right to occupy the land on the other side.
3. The person must also be able to demonstrate through the chain of ownership that they are the “successor in interest”, that is, that they have the same crossing rights that the owner of the land had at the time when the railway divided it.

[24] CN agrees that the first condition has been met because its railway line, which divided the lands in question, was constructed after 1888.

[25] CN argues that Ms. Tyler owns land on one side of CN’s railway line (the Middle Parcel) but she does not fully own the land on the other side (Front Parcel), as she owns it jointly with her son. Therefore, CN argues that the second condition has not been met.

[26] Lastly, CN argues that Ms. Tyler has not provided any information resembling a chain of title establishing continuous ownership of the land on both sides of CN’s railway line since the land was divided. CN is of the view that the third condition has not been met.

[27] CN contends that Ms. Tyler’s application should be dismissed.

CP’s position

[28] CP states the test for determining whether a landowner is entitled to a section 102 crossing slightly differently than CN. CP says that the Agency must determine if a landowner’s land was divided as a result of the construction of a railway line after 1888. If the land was divided after 1888, the Agency must determine whether the applicant can prove continuous ownership of the divided land and that “the land was not severed”. CP argues that, if the land was severed, the applicant must show that the landowners reserved the right to a crossing.

[29] CP submits that Ms. Tyler has failed to provide sufficient proof of continuous ownership demonstrating that she is entitled to a crossing under section 102 of the CTA. CP argues that due to the applicant’s piecemeal submission of documentation as well as confusing documentary evidence, it has not been able to confirm continuous ownership of the Middle Parcel and Back Parcel on either side of CP’s right-of-way.

[30] CP argues that the land was severed into three parcels in 1905 and 1906. It points out that there are three separate parcels, each with its own distinct Property Index Number (PIN) registered in Ontario’s land registration system. CP submits that the right to a crossing pursuant to section 102 of the CTA was lost upon this severance as there is no evidence that the landowner made specific provision to grant rights-of-way over the three parcels.

[31] CP submits that the 1980 letter does not establish an entitlement to a crossing under section 102 of the CTA. CP adds that, even if it recognized a farm crossing, the term “farm crossing” does not equate to a crossing under section 102 of the CTA. Rather, it could refer to a crossing under section 102 or 103 of the CTA. Furthermore, CP relies on Decision 71-R-2004 to support its argument that the existence of a crossing in the past is insufficient to establish a statutory right to a crossing.

[32] CP argues that it would not be suitable for the Agency to order a crossing across its railway line because there is no crossing across CN’s railway line and therefore no way to reach the Middle and Back Parcels.

[33] CP states that a crossing of its railway line would have to meet the requirements of the Grade Crossing Regulations (GCR) and Grade Crossing Standards (GCS). CP describes several technical challenges for designing a suitable crossing due to the location of CN’s and CP’s railway lines in relation to the Middle and Back Parcels. Due to their location and the fact that no CN crossing has been installed, CP argues that it would be unable to comply with the GCR and the GCS. CP also claims that Ms. Tyler has not provided information such as the road design details or what type of vehicle would use the proposed crossing that CP requires to assess compliance with the GCR and GCS. Therefore, CP submits that installing a crossing of its railway line without a crossing already installed across the CN railway line would create an unsuitable crossing.

Analysis and determinations

[34] Ms. Tyler has established that CN’s and CP’s railway lines prevent her from accessing two parcels of land that belong to her, thus interfering with the use and enjoyment of her land. Whether she is entitled to crossings at the railways’ expense pursuant to section 102 of the CTA depends upon the history of the ownership of the land on both sides of each railway line.

Common ownership of land divided by the construction of railways

[35] Each railway line at issue in this case was constructed after the Railway Act created the statutory crossing right in 1888. It is therefore clear that a statutory right to a crossing of both railway lines was created for the owner of Lot 138 when the land was divided by the construction of the railways.

[36] CP argues that Lot 138 was “severed” into three parcels in 1905 and 1906. In essence, CP claims that the statutory right was extinguished as soon as the land was sold to enable construction of the railway. This argument gives little or no meaning to the statutory right in section 102 of the CTA: a piece of land divided by a railway line is likely to result in separate parcels of land recorded in the land registry system. The Agency finds that “severing the land” is another way of saying “dividing the land” and does not describe the test for determining whether the statutory right to a crossing continues to exist.

[37] The statutory crossing right does not depend upon whether the land on either side of the railway line is registered as separate parcels of land. It is clear from the case law that it depends upon continuous common ownership [title] of the land on either side of the railway. George Smith continued to own the land on either side of each railway line, so the common ownership of these lands was not severed when Lot 138 was divided. There was no need to grant a right-of-way over any of the three parcels of land — the statutory crossing right ensured that he had access to all three parcels of land for his use and enjoyment.

[38] Ms. Tyler did not provide evidence of how the three parcels of land passed from George Smith to John Conrad Smith. No transfers of title are recorded in the Land Registry record for Lot 138 between 1906 and 1972, a period of 66 years.

[39] However, the Agency accepts Ms. Tyler’s statements that the Front, Middle and Back Parcels of Lot 138, with the exception of the three portions of the Front Parcel sold in the 1980s, have always been in her family since the original land grant in 1874. The Agency finds, on a balance of probabilities, that ownership of the land transferred between George Smith and John Conrad Smith through a will or another type of testamentary instrument, since no transfer is registered with the Land Registry Office. This is consistent with the evidence filed by Ms. Tyler.

[40] The Agency finds that the statutory crossing right that CP described in its 1980 letter to George N. Smith is the equivalent to the right under section 102 of the CTA. CP not only recognized the existence of the statutory right for its railway line, it also took responsibility for the installation and removal of the crossing. While the existence of a crossing in the past does not establish that the statutory right has persisted, the chain of ownership that Ms. Tyler provided for the Middle and Back Parcels demonstrates that the statutory crossing right that CP recognized in 1980 still exists in relation to the CP railway line.

[41] CN argues that the owner of the parcels on either side of its railway line is not the same because Ms. Tyler owns the Middle Parcel and co-owns the Front Parcel with her son. However, CN itself states that past Agency case law, such as Decision 642-R-2000, has found that the person seeking the crossing must be, at the time of the application, either the owner of the land on both sides of the railway, or the owner of the land on one side while having some right to occupy the land on the other side.

[42] Ms. Tyler has been an owner of the Front Parcel since she became a co-owner in 2014. She became the co-owner of the Middle and Back Parcels at the same time. The Agency finds that her title to the Front Parcel was not lost or severed when she added co‑owners to that parcel in 2020; she has owned that land continuously since 2014. As a co-owner, she has the right to occupy and enjoy that land. There is nothing in the case law that indicates that an owner must be the sole owner of the land on either side of the railway line to benefit from this statutory right. The Agency therefore finds that Ms. Tyler has common ownership of the land on either side of CN’s railway line and has the same right to a crossing that the owner of the land had at the time that the land was divided by the railway line.

[43] For these reasons, the Agency finds, on a balance of probabilities, that common ownership of the land on both sides of each railway line has continued since the construction of those railway lines and that the statutory right to a crossing under section 102 of the CTA has not been extinguished for Ms. Tyler. The Agency therefore finds that Ms. Tyler is entitled to a suitable crossing of each railway line at the expense of CN and CP.

Suitable crossing

[44] Ms. Tyler seeks crossings of both railway lines that are designed for foot traffic and occasional use by small recreational vehicles such as ATVs or snowmobiles. These crossings must be constructed and maintained in accordance with the Railway Safety Act and applicable rules, regulations and engineering standards.

[45] The Agency recognizes the safety concerns that CP has identified regarding the location of the crossings due to the location of the railway lines in relation to one another and the shape of the Middle Parcel. The Agency agrees that it would be unsafe to construct a crossing of one railway line without regard for the design and location of the other crossing. However, CP has not demonstrated that it is not possible for CN and CP to work cooperatively to design suitable crossings that meet Ms. Tyler’s needs and comply with regulatory requirements.

Conclusion

[46] The Agency orders CN and CP to each construct and maintain suitable crossings of their railways that divide Ms. Tyler’s land, located approximately at mileage 145.47 of CN’s Bala Subdivision and at mileage 19.4 of CP’s Parry Sound Subdivision, at their expense pursuant to section 102 of the CTA.

[47] This order does not relieve Ms. Tyler, CN or CP of their obligations under the Railway Safety Act.

Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	102; 103
Railway Act, 1888, SC 1888, c 29	191
Railway Act, 1985, RSC 1985, c R-3	215
Railway Safety Act, RSC 1985, c 32 (4th Supp.)	7.1