Decision No. 80-R-2022

SUMMARY

[1] On November 3, 2020, the applicants filed an application with the Canadian Transportation Agency (Agency) for a private crossing at mileage 27.59 of ICF’s Victoria Subdivision located on Vancouver Island, British Columbia.

[2] The respondents submit that the crossing is not suitable and, therefore, should not be authorized.

[3] The Agency will address the following issues:

1. Should the Agency order the construction of a suitable crossing pursuant to section 102 or section 103 of the CTA?
2. Should costs be awarded to the respondents?

[4] For the reasons set out below, the Agency orders the respondents to construct a suitable crossing pursuant to section 103 of the CTA. The applicants shall bear the costs of construction and maintenance of the crossing. The Agency dismisses the respondents’ request for costs.

BACKGROUND

[5] ICF is a registered charity formed by five Regional Districts, including CVRD, and 11 First Nations, along the railway corridor situated on Vancouver Island. ICF’s mandate includes preserving and developing the Island Corridor, including the infrastructure and other assets that constitute the Esquimaltand Nanaimo Railway. ICF’s railway line is operated by Southern Railway of Vancouver Island, which is a railway undertaking subject to the legislative jurisdiction of the Province of British Columbia.

[6] In September 2018, ICF entered into an agreement with CVRD to construct a multi-use trail alongside the railway line in and around Shawnigan Lake, British Columbia, known as the Shawnigan Village Rail Trail (Trail). The Trail, to be constructed in phases, will be built on ICF’s right-of-way and will allow walking or cycling along the railway corridor. ICF has stated that, for safety considerations, it will install a fence along the railway line to separate the Trail from the railway line, when necessary, as it plans to restore freight and passenger rail service. The railway line divides the applicants’ property.

PRELIMINARY MATTERS

[7] On September 15, 2021, and on April 29, May 2 and 3, 2022, parties filed unsolicited correspondence with the Agency. In its directive dated April 14, 2021, the Agency indicated that it will not accept further documents or arguments on the record, unless a request to do so demonstrates exceptional circumstances. This correspondence was submitted without proper requests under the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceeding), SOR/2014-104. Accordingly, it will not be placed on the record.

[8] The applicants request the Agency to: 1) declare that the railway has been discontinued and/or alienated; 2) take any action against ICF for not having a certificate of fitness; 3) grant an injunction prohibiting the respondents from constructing the Trail; or 4) conduct an environmental assessment of the Trail project. Specifically, these requests relate to Part III, Division V of the CTA, sections 90 to 93 of the CTA, section 26 and section 98 of the CTA.

[9] Pursuant to section 9 of the Railway Safety Act,SBC 2004, c 8 (RSA), the minister may, by regulation, adopt provisions of other named statutes, including the CTA, and once adopted, these provisions apply to railway companies. Pursuant to this authority, the Province, by the Railway Safety Adopted Provisions Regulation, BC Reg 210/2004, adopted sections 99 to 103 of the CTA, with the exception of subsection 101(4). Then, pursuant to section 157.1 of the CTA, the Province entered into an administrative agreement dated September 11, 2006, in which the administration of these provisions was delegated from the Province to the Agency. As a result, disputes involving crossings of railways under the jurisdiction of the Province are adjudicated by the Agency.

[10] The Agency’s authority to determine railway crossing disputes and order relief is found in sections 99 to 103 of the CTA. The other issues raised by the applicants that relate to other sections of the CTA are therefore not properly brought before the Agency.

[11] The respondents assert the applicants have made “spurious allegations of statutory noncompliance” in their application and request that the Agency order the applicants to file a new application expunged of these allegations. The applicants request that the Agency redact some of ICF’s allegations found in the answer with respect to Mr. Lyon’s occupation.

[12] Both the respondents’ and applicants’ allegations are irrelevant to the Agency’s consideration of the issues to be determined and neither party has demonstrated how they would suffer any prejudice if the impugned allegations were to remain on the record. The Agency, therefore, dismiss both parties’ requests.

THE LAW

[13] 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.

[14] Section 103 of the CTA states:

(1) If a railway company and an owner of land adjoining the company’s railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the company to construct a suitable crossing if the Agency considers it necessary for the owner’s enjoyment of the land.

(2) The Agency may include in its order terms and conditions governing the construction and maintenance of the crossing.

(3) The owner of the land shall pay the costs of constructing and maintaining the crossing.

ISSUE 1: SHOULD THE AGENCY ORDER THE CONSTRUCTION OF A SUITABLE CROSSING PURSUANT TO SECTION 102 OR SECTION 103 OF THE CTA?

Positions of the parties

THE APPLICANTS

[15] The applicants use a non-authorized crossing to access their property on the other side of the railway line. They have no information as to when this crossing was first installed. They submit that it has been in place since the time the property came into existence in 1890 and that the land has been continuously owned as a single parcel since then.

[16] The applicants state that the respondents’ plan to install a fence along the railway line will create a permanent barrier to their access to the lake shore located on the western portion of their property that is divided by the railway line. Absent a crossing, they state that they will not have access to the western parcel of their land. They are asking for a crossing either under section 102 or section 103 of the CTA for the enjoyment of their property.

[17] The applicants question the necessity of the installation of the future fence since no trains have operated on the railway line since March 2011. They submit that because the operation of the railway has been abandoned, the respondents would not have any railway safety obligations.

[18] The applicants’ state that enjoyment of their land is related to their access to the waterfront on the western parcel during the summer months. They state that their daily use of the crossing during those months amounts to approximately 16 passages.

[19] The applicants reject the respondents’ proposal of an alternative access on Thrush Road since it is neither convenient nor safe as there are no sidewalks. According to them, Thrush Road is busy with trucks that are frequently backing up boats on trailers.

THE RESPONDENTS

[20] The respondents request that the Agency dismiss the application for a crossing under section 102 of the CTA because the land was bisected prior to the enactment of the Railway Act of 1888.

[21] With regard to the application under section 103 of the CTA, the respondents consider that the proposed crossing is not suitable based on the safety concerns that the crossing would create and that an alternative access to the applicants’ property is available.

[22] The respondents submit that Thrush Road is an alternative to the proposed crossing and an appropriate alternate access. Thrush Road is at mileage 27.75 of the Victoria subdivision and is located 350 metres north of the applicants’ property. The respondents submit that Thrush Road can be used by the applicants to legally access their property once the Trail is completed. They can reach the western portion of their land, by walking or cycling on the Trail after having crossed the railway line at Thrush Road. In the interim, the respondents are offering to the applicants temporary
access to the western portion of their property across the west side of the right-of-way. The respondents provided a sample crossing order, including terms they are seeking to have imposed, in Schedule A of their answer.

[23] In the alternative, if the Agency authorizes the proposed crossing pursuant to section 103 of the CTA, the respondents request that the crossing be approved according to the terms set out in Schedule B of their answer, which would address safety and protect the right-of-way.

[24] The respondents refer to a report entitled Lot 2664 (Plan 218) – 2664 Heald Road, Shawnigan Lake BC Southern Railway of Vancouver Island mile 27.59 (approx.) Victoria Subdivision prepared by G.R.E. Consulting (GRE Report), which establishes that the proposed crossing does not meet the crossing standards established by Transport Canada.

[25] The respondents argue that even if there is no rail service on the railway line, they have to comply with all applicable laws and regulations. Maintenance work is performed at least twice per month. The current railway maintenance operations amounts to an annual average daily traffic (AADT) ranging from 4 to 18 per month.

[26] Any resumption of railway services in the future will depend on public funding.

[27] To support their argument that the crossing is unsafe, the respondents rely on assumptions that the railway services will resume. They claim that the number of AADT will be significant at the proposed crossing once operations resume.

Analysis and determination

SECTION 102 OF THE CTA

[28] Pursuant to section 102 of the CTA, a railway company is responsible for constructing a crossing at its own expense if an owner’s land was divided as a result of the construction of a railway line. In its consideration of an application under section 102 of the CTA, the Agency examines whether legal ownership of the land as a single parcel was in place at the time of construction of the railway.

[29] In this case, the parties do not dispute that applicants are the owner of the land nor of its continuous ownership as a single parcel.

[30] The Agency is of the opinion that, prior to the enactment of the Railway Act of 1888, there was no obligation on the part of the railway company to provide a landowner whose land it divided with a private crossing. However, section 191 of the Railway Act of 1888, and any of its subsequent replacements up to and including section 102 of the CTA, entitled a landowner to a crossing in cases where the railway line is carried across private property.

[31] As stated in Decision 417-R-2003, the Agency and its predecessors have held that such a landowner was not entitled to a crossing prior to 1888, as the law of that time intended that a landowner would be otherwise compensated in damages for the loss of land value arising from the severance. A railway company has no obligation to provide a crossing for any land it bisected prior to that time. Here, the evidence provided by the parties shows that the construction of the railway line that divided the land was completed in 1886 and that the property was not purchased until 1890. As the railway bisected the land before 1888, the applicants have no statutory right to a private crossing pursuant to section 102 of the CTA.

SECTION 103 OF THE CTA

[32] When section 102 of the CTA is not available to an owner of land, the landowner may rely on section 103 of the CTA, which provides that if a railway company and an owner of land adjoining the company’s railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the railway company to construct a suitable crossing if the Agency considers it necessary for the owner’s enjoyment of the land.

[33] As stated above, the applicants own land on both sides of the railway line. This case will therefore be considered under section 103 of the CTA.

[34] The applicants assert that a crossing is fundamental to the use and enjoyment of their property. They explain that much of their summer is spent on the water side of the property on the beach, and that access to the waterfront was the reason they purchased the property. They submit that the existing crossing is suitable for their needs to enter upon and enjoy their land.

[35] The respondents state that there is an alternative access on Thrush Road that constitutes an existing suitable crossing, thereby allowing the applicants the enjoyment of their land. In the respondent’s view, the Agency should not authorize the proposed crossing as the enjoyment of the land is preserved.

[36] In the case at hand, the alternate access via Thrush Road is not bordering the applicants’ property and the applicants’ ability to access their parcel is affected by the location of the railway line. If the applicants were to use the crossing at Thrush Road, they would need to make a long detour to access their land, having to walk back to their property once they passed the Thrush Road crossing. This is not a convenient or practical access point to their property given the intended use of the crossing, which is a seasonal access to the waterfront for at least four people. Moreover, based on the photos of Thrush Road provided by the applicants, not only does the alternative access constitute a large detour, but the absence of sidewalks and the presence of trucks on the road creates a serious safety concern. Accordingly, the Agency considers that the alternate access on Thrush Road does not constitute a suitable crossing.

[37] Considering that there is no other suitable crossing that would allow the applicants to access the waterfront portion of their land, the Agency finds that the proposed crossing located at the applicants’ property is necessary for the applicants’ enjoyment of their land.

[38] In Fafard v Canadian National Railway Company, 2003 FCA 243 (Fafard), the Federal Court of Appeal stated that a suitable crossing is a crossing that is adequate and appropriate for the purposes for which it is intended and installed, for both the users of the crossing and trains. The Federal Court of Appeal also stated that the concept of “suitable crossing” includes an element of safety. This principle has subsequently been applied by the Agency on several occasions.

[39] The respondents’ arguments regarding the suitability of the proposed crossing are focused on safety issues, namely sightlines and approaches. They submit that the proposed crossing falls below minimum safety standards; that it is located in an area where there are already 17 pedestrian crossings within 610 metres and that potentially some, if not all, are illegal and represent a multiplication of the hazards of at-grade crossings; and, finally, that the crossing would impede railway operations. The respondents rely on the GRE Report to support their arguments.

[40] As mentioned above, there are no railway operations on this portion of the railway line and there have not been any in over a decade. While ICF has stated that it intends to resume railway operations some time in the future, significant repairs are required and will depend on the availability of public funds. ICF’s contention is that there will be significant AADT at the crossing. The product of the average annual daily railway movements and the average daily number of trips over the crossing will determine the cross product. At the moment, maintenance is performed twice per month, assuming an AADT ranging from 4 to 18 per month. Taking the high end of the AADT estimate, this results in approximately 0.6 movements per day during a month. Considering the approximately up to 16 daily trips made by the applicants during the summer, this will result in a minimal cross product of 9.6 per day at the proposed crossing during the summer. It is reasonable to conclude that the proposed crossing in the current circumstances will not significantly affect railway operations.

[41] Should the necessary repairs be made and should railway operations resume, the respondents anticipate that there will be of a maximum of 8 trains, freight and passenger services, per day that could increase to 12 or more trains per day at some unqualified point in time. This possible increase in rail movements, combined with the approximately 16 daily trips by the applicants, though the cross product remains relatively low, could potentially have an impact on railway operations. However, no evidence was provided to the Agency with respect to any past impact of the informal crossings on the activities of the prior Esquimalt and Nanaimo Railway.

[42] There is currently no known commitment or timeline to resume railway operations on this segment of the railway line. Any increase of cross product at the crossing therefore remains speculative. As long as there are no railway operations on the line, the safety of persons and property do not appear to be impacted by the crossing.

[43] However, should operations resume, the respondents state that the expected posted speed will be 40 mph for passenger trains and 30 mph for freight movements. Combined with the increased movement of trains and daily passage of pedestrians, this may have an impact on the safety of persons and property transported and the safety of other persons and other property. This is because the proposed crossing is unprotected and, as argued by the respondents, the sightlines and the gradient approaches do not meet applicable safety requirements. This could be addressed should operations on the line resume in the future.

[44] According to the respondents and as indicated in the GRE Report commissioned by the respondents, the proposed crossing does not currently comply with Transport Canada’s Grade Crossing Standards and the Grade Crossings Regulations, SOR/2014‑275, that have been incorporated by reference into the RSA by the Railway Safety Adopted Provisions Regulations. This conclusion, however, is predicated on the existence of rail traffic on the line. Other than assertions regarding future traffic, no evidence has been presented of likely railway movements. The GRE Report does not address, to any meaningful extent, the line in its current state of non-use.

[45] The proposed crossing will have to comply with applicable safety requirements under British Columbia’sRSA, the Grade Crossing Regulations and any other applicable statutes or regulations, taking into consideration that a change in the operational status of the railway line might require changes at a future date to the crossing to ensure that it is safe.

[46] Subsection 103(3) of the CTA requires that the costs of construction and maintenance of a crossing shall be borne by the applicant. This principle has been confirmed by the Federal Court of Appeal. In Canadian Pacific Railway Company v Canadian Transportation Agency, 2005 FCA 400, the Federal Court of Appeal stated, “In all cases other than those covered by section 102, the land owner, and not the railway company, is responsible for the costs of constructing and maintaining a crossing.”

[47] Having found that a crossing at mileage 27.59 of ICF’s Victoria Subdivision is required for the applicants’ enjoyment of their land pursuant to section 103 of the CTA, the Agency finds that the respondents must provide a suitable crossing to the applicants, at the applicants’ expense.

ISSUE 2: SHOULD COSTS BE AWARDED TO THE RESPONDENTS?

Position of the parties

THE RESPONDENTS

[48] The respondents argue that they should be awarded costs in the amount of 50 percent of the actual legal fees they incurred. They claim that the applicants’ approach has significantly increased costs and that the applicants are not acting in good faith and are misusing the Agency’s process for an ulterior purpose. They submit that the applicants made wide-ranging legal arguments that exceed the Agency’s jurisdiction and raised issues known to have already been determined by another court.

THE APPLICANTS

[49] In response, the applicants claim that they have approached the respondents to negotiate a resolution to no avail and that the proceedings before the Agency were justified by the respondents’ refusal to engage in dialogue. The applicants submit that the costs related to this proceeding are directly attributable to the respondents and their refusal to communicate.

Analysis and determinations

[50] The Agency’s practice is to award costs only in special or exceptional circumstances. The Agency has broad discretion to award costs and, in determining whether to do so, considers factors such as the importance and complexity of issues raised by the application, public interest dimensions of the application, the conduct of the parties, and the results of the proceeding.

[51] In this case, both parties contributed to a better understanding of the issues, doing so through lengthy and detailed pleadings. The Agency finds that this case does not meet those special or exceptional circumstances that warrant an award of costs and, therefore, dismisses the respondents’ request for costs.

CONCLUSION

[52] The Agency orders the respondents to construct a suitable crossing, that is adequate and appropriate for the purpose for which it is intended and installed, at mileage 27.59 of ICF’s Victoria Subdivision. The costs of constructing and maintaining the crossing shall be borne by the applicants pursuant to subsection 103(3) of the CTA. The respondents shall provide the applicants with an estimate of the construction costs prior to performing any work.