Decision No. 80-R-2005

February 14, 2005

File No. R8080/662

On October 4, 2004, Mr. Stark filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) pursuant to section 95 of the Canada Transportation Act (hereinafter the CTA) concerning recurrent flooding on his land bordering the Canadian National Railway Company's Sprague Subdivision near Middlebro, Manitoba.

Section 95 of the CTA states that:

95(1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

(a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

(b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

(c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

(d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

(e) do anything else necessary for the construction or operation of the railway.

Minimal damage

(2) The railway company shall do as little damage as possible in the exercise of the powers.

Restoration

(3) If the railway company diverts or alters anything mentioned in paragraph (1)(b) or (d), the company shall restore it as nearly as possible to its former condition, or shall put it in a condition that does not substantially impair its usefulness.

Compensation

(4) The railway company shall pay compensation to a person who sustains actual loss or damage from the exercise of the powers and the compensation must equal the amount of the loss or damage that the company would be liable to pay the person if the powers had not been conferred by statute.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter 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 indefinite extension of the deadline.

The Agency is of the opinion that the drainage/flooding problems raised in Mr. Stark's complaint are matters specifically addressed in section 95 of the CTA.

However, in response to an appeal of the Agency's jurisdiction to investigate a noise complaint pursuant to section 95 of the CTA, the Federal Court of Appeal, on December 7, 2000, in Canadian National Railway Company v. Brocklehurst, [2002] 2 F.C. 141, ruled that the Agency did not, under existing legislation, have the jurisdiction to investigate and determine complaints pursuant to section 95 of the CTA.

In light of that Decision, although the Agency is of the opinion that the matter raised in Mr. Stark's complaint falls under the authority of section 95 of the CTA, the Agency does not have the specific jurisdiction to determine liability or set compensation under subsection 95(4) of the CTA. Therefore, any matters that may fall under the purview of section 95 of the CTA, such as the one raised in Mr. Stark's complaint, should be dealt by further communication between the parties such as mediation or facilitation or, in the event of failure of such communication, through common law actions.

Accordingly, the Agency hereby dismisses Mr. Stark's complaint.