Letter Decision No. LET-R-88-2017

SUMMARY

[1] On March 1, 2017, West Vancouver filed an application with the Canadian Transportation Agency (Agency) against CN, concerning the Seawalk located along the north shore of the Burrard Inlet, in West Vancouver, British Columbia.

[2] West Vancouver requests that the Agency order the following:

1. West Vancouver is authorized to continue its use of the Seawalk on CN’s right of way;
2. West Vancouver is to provide no compensation to CN for the use of the Seawalk;
3. West Vancouver is authorized to access the riprap areas and other shore protection works on CN’s right of way; and,
4. No terms, in respect of liability, indemnity and insurance, are imposed on West Vancouver.

[3] CN maintains that the Seawalk does not meet the definition of a “road crossing” under the CTA and that the application should therefore be dismissed. However, CN argues that if the application is granted, the Agency should order that West Vancouver pay compensation based on market value, that West Vancouver be responsible for liability, and that West Vancouver indemnify CN for the safety and liability risks that the use of the Seawalk creates and encourages.

[4] The issues to be addressed in this case are:

1. Does the Agency have jurisdiction over West Vancouver’s application?
2. If the Agency has jurisdiction, should the Agency authorize the Seawalk?
3. If the Seawalk is authorized, does the Agency’s power to decide on maintenance and cost apportionment, with regard to crossings, extend to questions of compensation, insurance and/or liability?
4. If the Agency’s power extends to compensation, insurance, and/or liability, what, if anything, should the Agency order in respect of these matters?

[5] For the reasons set out below, the Agency:

1. Finds that the Agency has jurisdiction to consider West Vancouver’s application, as the Seawalk may be deemed a road crossing within the meaning of section 100 of the CTA.
2. Stays the application until the Supreme Court of British Columbia (Supreme Court of BC) has ruled on the status of the lease agreements between West Vancouver and the railway company, as the Agency only has authority to authorize a road crossing under subsection 101(3) of the CTA if there is no agreement in place regarding the construction, maintenance, or apportionment of costs of that road crossing.

BACKGROUND

[6] West Vancouver was incorporated in 1912 under the Local Government Act of British Columbia and is located on the north shore of the Burrard Inlet; it forms part of Metro Vancouver. Among its other responsibilities, West Vancouver is the road authority for a network of pedestrian paths and walkways, including the Seawalk.

[7] CN is a federal railway company. It holds Certificate of Fitness No. 97001-8, which permits it to operate or construct railways in Canada.

[8] The Seawalk is a pedestrian walkway that follows along the shoreline of the Burrard Inlet for approximately 1.7 kilometres, from Dundarave Park in the west, to 18^th Street in the east. Approximately 1,100 metres of the Seawalk is located on CN’s right of way. It is located along a portion of CN’s Squamish Subdivision, approximately extending from mileage 4.17 to mileage 5.04.

[9] The Seawalk was constructed in stages between 1967 and 1970, pursuant to three separate leases (lease agreements) between West Vancouver and the Pacific Great Eastern Railway Company, the owners of the right of way at the time of construction. The lease agreements gave West Vancouver the right to use part of the right of way for the Seawalk. Each lease provided a one‑year term with automatic annual renewals at the expiration of each term, and contained provisions for termination upon 30 days’ notice by the Lessee.

[10] In 1972, the Pacific Great Eastern Railway Company became the British Columbia Railway, which, itself was restructured in 1984 to become BC Rail Ltd. BC Rail Ltd. was jointly owned by the British Columbia Railway Company (BCRC) and BCR Properties Ltd., a subsidiary of BCRC. The rail operations became known as BC Rail.

[11] In July 2004, BCRC completed agreements with CN under which CN took over the operation of BC Rail. Under the arrangements, CN acquired a sixty-year lease of the right of way owned by BCRC, which includes the portions on which the Seawalk is located.

[12] West Vancouver stopped making rent payments in 1994. In September 2015, CN initiated meetings with representatives of West Vancouver in order to “regularize” arrangements between the parties, and deal with compensation and risk allocation. Following several meetings between the parties, CN provided West Vancouver with a proposed “Encroachment Licence Agreement” in December 2016.

[13] The proposed agreement covered the Seawalk, access to the riprap areas on BC Rail land and other “encroachments”, and proposed an annual payment of $3,700,000, increasing at the end of the fifth year by the amount of inflation over the first five years, or 15%, whichever is greater. CN’s proposal also included terms regarding liability, indemnity and insurance.

[14] On February 10, 2017, West Vancouver provided CN with a counter-proposal. West Vancouver proposed that it would be prepared to absorb the cost of maintaining the riprap and other shore protection works and would pay annual compensation in the amount of $12,500 per year, adjusted for inflation, in exchange for a 25-year term with a renewal term of a further 25 years. West Vancouver included counter-proposals in respect of liability, indemnity, and insurance.

[15] On February 17, 2017, CN served West Vancouver with a Notice of Termination of the lease agreements and demanded that West Vancouver remove all buildings, machinery, erections and materials, and things not belonging to CN, and to restore the premises to the satisfaction of CN, leaving them in a clean and neat condition. On February 20, 2017, CN served a Notice of Civil Claim, bringing an action against West Vancouver in respect of the Seawalk and other alleged encroachments by West Vancouver.

[16] On March 1, 2017, West Vancouver filed its application with the Agency.

[17] The Agency convened a public hearing on the matter in Vancouver on October 25 and 26, 2017, which was preceded by a site visit to the Seawalk on October 24, 2017.

THE LAW

[18] Section 87 of the CTA defines a road as:

any way or course, whether public or not, available for vehicular or pedestrian use (route).

[19] Section 100 of the CTA provides, in part, that:

“road crossing” means the part of a road that passes across, over or under a railway line, and includes a structure supporting or protecting that part of the road or facilitating the crossing; (franchissement routier).

“utility crossing” means the part of a utility line that passes over or under a railway line, and includes a structure supporting or protecting that part of the utility line or facilitating the crossing; (franchissement par desserte).

[20] Subsection 101(3) of the CTA states:

If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

DOES THE AGENCY HAVE JURISDICTION OVER WEST VANCOUVER’S APPLICATION?

Positions of the parties

WEST VANCOUVER’S APPLICATION

[21] In support of its application, West Vancouver relies on Decision No. 709-R-2006 (ATCO Decision).

[22] West Vancouver submits that in the ATCO Decision, the Agency concluded that the definition of “utility crossing” pursuant to section 100 of the CTA is intended to include encroachments on the land of the railway company’s right of way by utility lines that run alongside the trackage and that the Agency therefore has jurisdiction where disputes regarding such encroachments arise. West Vancouver states that in Canadian Pacific Railway Company v. Canadian Transportation Agency, 2008 FCA 42, the Federal Court of Appeal (FCA), in considering the railway company’s appeal of the ATCO Decision, concluded that the Agency’s interpretation of the definition of “utility line” is reasonable.

[23] According to West Vancouver, the Agency’s reasoning in the ATCO Decision “that it had jurisdiction over a parallel utility crossing is equally applicable to a parallel road crossing: the need to read the Railway Safety Act (RSA) crossing provisions, which apply broadly, in harmony with the crossing provisions of the CTA and the finding that the term “railway line” includes the right-of-way”.

[24] Furthermore, West Vancouver states that the Agency, in reaching its conclusion in the ATCO Decision, noted that section 101 of the CTA is a continuation of section 326 of the Railway Act, R.S.C. 1985, c.28 (3rd Supp.) (Railway Act), which provided for regulatory authority to construct utility crossings “along or across a railway”. West Vancouver submits that section 101 is similarly a continuation of section 201 of the Railway Act, which provided for regulatory authority to construct a highway “along or across any railway.”

[25] West Vancouver submits that the Agency applied this same principle in Decision No. 33-R-2011, when it found that the Hollyburn Interceptor and the Hollyburn Relief Sewer sections of the pipeline along the CN Squamish Subdivision right of way are utility crossings under the CTA. West Vancouver states that these utility crossings occupy the same corridor within CN’s right of way as the Seawalk.

[26] West Vancouver asserts that Agency jurisprudence makes it clear that it has jurisdiction to authorize the construction of a pedestrian crossing, as well as determine the apportionment of costs for the construction and maintenance of the crossing.

[27] West Vancouver also argues that the Agency’s jurisdiction over parallel road crossings is consistent with another decision to which the Agency often refers: A. Demers, Laprairie v. Grand Trunk Railway Co., (1920), 31 C.R.C. 297. West Vancouver cites the following from that decision, on page 299:

“In going through the territory of any village, town or city railways should not be an obstacle to the expansion of the residential districts on either side of the track, because such an expansion is to everybody’s advantage, railway companies included. The crossing over and under railway tracks of wires and pipes needed for the ever-increasing forward movement, should be facilitated as far as possible.

It is true that the railway companies are the owners of their right-of-way; but if they have certain rights as proprietors, there are also certain duties incumbent upon them as such. For instance, they are bound to suffer all easements arising from the nature of things and the laying of the land such as arise from drainage, new road crossings, pipes for water or sewage, electrical installations, etc.”

[28] West Vancouver states that historically, Canadian towns and cities developed, with railway companies and other industries, along the shoreline of bodies of water as this land provided a flat, lowland route for the railway company and easy access to water for industries. According to West Vancouver, such access, as CN has in West Vancouver, “should not be exercised in a way that unreasonably impedes the legitimate desire in cities for better pedestrian access in general, and in this case, access to the shoreline of Burrard Inlet”.

CN’S ANSWER

[29] CN submits that West Vancouver’s application must be dismissed as the CTA does not provide the Agency with jurisdiction to authorize a road crossing that is entirely parallel to the railway line. CN contends that the facts in this case make it clear that the Seawalk does not meet the definition of a road crossing under the CTA as it does not run across, over, or under the railway line. CN makes a number of arguments to support this claim.

[30] First, CN states that the definition of “road crossing” in the CTA is in relation to a “railway line” and not a “right of way”, and argues that “railway line” and “right of way” should not be treated as synonymous. In support of this argument, it asserts that the fact that both terms are used in the same legislation suggests that Parliament intended for them to have different meanings, citing the principle of statutory interpretation, as articulated in the Supreme Court of Canada’s decision in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (Rizzo) quoting E.A. Driedger, Construction of Statutes:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[31] CN also refers to Justice Rothstein’s description of a “railway line” in Canadian National Railway Co. v. Canadian Transportation Agency (1999), 251 N.R. 245 (F.C.A.), A-46-99, November 29, 1999:

[7] The Canada Transportation Act does not define the term “railway line”. However, the definition of “railway” and the context of other specific provisions of the Act provide guidance as to what is intended. The words of subsection 98(1) indicate that it is something that is to be constructed. The words of subsection 98(3) envisage the construction of two or perhaps more railway lines within the right of way of an existing railway line and railway lines outside the right-of-way but within a 100 m. of the centre line of an existing railway line.

[8] Although references to other provisions of the Act could be made, these are sufficient to indicate what Parliament had in mind. A railway line is the structure upon which locomotives and rolling stock of railway companies move and the communications or signalling system and related facilities and equipment. Colloquially one might refer to “railway tracks”, but, of course much more is involved, as C.N.’s counsel indicated, including the provision of grade and subgrade, including the construction of embankments and cuts, the installation of facilities for drainage, bridges, tunnels, and the track structure itself consisting of ballast, ties, rails, spikes, switches, and the like. All these components together, located on the right of way occupied by the railway company are what permit and facilitate the movement of locomotives and rolling stock, namely, a railway line.

[emphasis added by CN]

[32] CN states that Justice Rothstein’s description of a “railway line” could be interpreted, in some instances, as including portions of the right of way, but only where those portions have elements that “facilitate the movement of locomotives and rolling stock”.

[33] According to CN, in many instances, a right of way will be far broader than a railway line, notably where portions of the right of way are clearly not used to facilitate the movement of railway equipment. CN argues that the circumstances of this case, and the fact that the Seawalk is already built, demonstrate the sharp distinction between the railway line portion of the right of way – which includes the track structure upon which locomotives and rolling stock move, the communications and signaling system, and other components listed by Justice Rothstein - and the public walkway portion of the right of way. CN submits that the rail bed is elevated and asserts that the separation of the railway line and Seawalk are demonstrated by the presence of a retaining wall, a fence, shrubbery, and bush. CN adds that this separation is meant to create two distinct areas: one for the public’s use of the waterfront by way of the Seawalk, and the other to facilitate the railway operations by way of the railway line.

[34] Second, CN submits that the ATCO Decision and subsequent FCA ruling can be distinguished from the present case as the factual circumstances in ATCO relate to a 20-mile long pipeline that crossed the railway line in three locations, whereas in this matter, the Seawalk does not cross the railway line in any location.

[35] CN argues that although the decisions in ATCO specify circumstances where the location of a crossing is on the railway line while also being on the right of way, this does not allow for the interpretation that any railway land within the proximity of a railway track forms part of the “railway line”.

[36] CN contends that such an interpretation would lead to applications filed by persons seeking to use the railway land, not for the purpose of crossing the railway line, but rather, for the purpose of enjoying the benefits of the railway property. CN suggests that, in this regard, a road authority could apply for a road crossing in order to run a laneway along the right of way for 100 miles without the road physically crossing the railway line. Furthermore, CN states that right of ways are different sizes and configurations, and according to West Vancouver’s logic, if a right of way (or land on which the railway line sits) is a kilometer wide, the entire land would be a railway line, and for anyone who wishes to cross the land, it becomes a road crossing.

[37] Third, CN argues that the plain meaning of “across, over or under a railway line” in the definition of “road crossing” is that a road must cross the line at grade, above it, or beneath it, given that “along” was purposely removed from the crossing provisions when the Railway Act was repealed and the provisions were moved to the CTA.

[38] In this respect, CN cites Pierre-André Côté, The Interpretation of Legislation in Canada, Fourth Edition, (Carswell), 2011, which argues against reading in words that are not present in the legislation:

Since the judge’s task is to interpret the statute, not to create it, as a general rule interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislature wanted to say: “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”.

[39] CN contends that in its ruling on the ATCO Decision, the FCA relied in part on the Agency’s statement that the application of section 101 of the CTA to a parallel utility line was justified, in part, by the Discontinuance and Continuance of Proceedings Order, 1996, SOR/96-383³⁸ (Continuance Order). CN asserts that this interpretation is inconsistent with the actual requirements of the Continuance Order, stating that when the CTA replaced the National Transportation Act and the Railway Act, the Continuance Order provided a framework to identify which proceedings should be continued under the new legislation, and which should remain under the previous legislation. According to CN, the Governor in Council, through the Continuance Order, recognized that there was a change in policy regarding crossing applications and determined that the new provisions of the CTA should apply, even if an application was originally filed under the Railway Act.

[40] CN states that “the evolution of the crossing provisions between the Railway Act and the CTA supports the notion that the concept of parallel crossings “along” a railway was removed. This is further supported, CN argues, by the presumption that change is purposeful, which presumes that “amendments to the wording of a legislative provision are made for some intelligible purpose: to clarify meaning, to correct a mistake, to change the law.”

[41] CN argues that when Parliament removed the language “along” from the crossing provisions, it did not intend for parallel occupation to be read back in to the definition of road crossings. CN states that doing so is unjustified, and this case provides the Agency with the opportunity to re-evaluate its interpretation of the crossing provisions and to respect the will of Parliament in removing the concept of parallel crossings from the CTA.

[42] Additionally, CN submits that the definitions of “utility crossing” and “road crossing” in the CTA differ in that a utility crossing can only be “over or under” a railway line and a road crossing can be “across, over or under” a railway line, and contends that this is because, unlike a road, a utility cannot be situated across a railway line at grade. CN submits that Parliament did not use the term “over” to mean “anywhere over the area of the property” but rather to mean “elevated”, or in French “par passage supérieur”. CN submits that if the terms “over” and “under” were sufficient to cover any location on a right of way, then it would be unnecessary to include the term “across” under the definition of road crossing.

[43] Finally, CN argues that support for the conclusion that a road crossing must intersect with a railway line can be found in the Grade Crossing Regulations (Regulations), which define a “grade crossing” as “a road crossing at grade, or two or more road crossings at grade where the lines of railway are not separated by more than 30 m.” CN asserts that throughout the Regulations, grade crossings require the intersection of the road with the railway line. CN states that certain sections of the Regulations require railway companies and road authorities to share safety information on all public grade crossings, including, among others, the number of tracks that cross a grade crossing, the number of traffic lanes that intersect a crossing surface, stopping sight distances and crossing angles. CN submits that all of this required information is nonsensical in the context of a parallel crossing. Moreover, CN indicates that the information required by the Regulations was never exchanged between the parties, further demonstrating that neither itself nor West Vancouver believe that the Seawalk is a road crossing.

WEST VANCOUVER’S REPLY

[44] West Vancouver submits that, regardless of the configuration of the of various infrastructure within CN’s right of way, the Agency’s jurisprudence and that of the FCA establish that the Agency has jurisdiction over CN’s entire right of way - not only those portions where trains operate.

[45] West Vancouver contends that there is no material difference between the definitions of a utility crossing and a road crossing that would lead to a different conclusion respecting road crossings. West Vancouver states that the presence of the additional word “across” in the definition of a road crossing makes it even clearer that the Agency is meant to have jurisdiction over any road crossing on the right of way, whether it crosses the tracks perpendicularly or not.

[46] West Vancouver also submits that CN’s argument on the Continuance Order obscures the fact that its only effect was to require that existing crossing applications be continued under the new CTA. West Vancouver states that contrary to CN’s suggestion, the Continuance Order cannot be taken to imply anything about the interpretation of the definition of a “utility crossing”. According to West Vancouver, CN’s argument is essentially that the Agency decided incorrectly in the ATCO Decision, and every subsequent case that has relied on ATCO. West Vancouver argues the opposite, that there was no error in the Agency’s decisions.

[47] Finally, West Vancouver replies to CN’s argument that the Regulations support the view that the Agency has no jurisdiction in this matter by arguing that the definition of a “road crossing” in the RSA encompasses all types of crossings of the right of way, not just crossings that intersect with the tracks.

ANALYSIS AND DETERMINATIONS

[48] The question of whether the Agency has jurisdiction to make a determination in this case comes down to an interpretation and application of the definition of a “road crossing” contained in section 100 of the CTA; specifically, whether the portion of CN’s right of way on which the Seawalk is located is part of the “railway line” and whether the Seawalk, as infrastructure that does not itself intersect with the tracks, is captured by the definition.

[49] West Vancouver answers both questions in the affirmative, replying primarily on the Agency’s and the FCA’s ATCO decisions. CN answers both in the negative, arguing that the reasoning in ATCO should not apply because the portion of the right of way on which the Seawalk sits is distinct from the railway line, the definitions of a road crossing and a utility crossing are distinguishable, and Parliament did not intend for the definition of a road crossing to cover infrastructure that is entirely parallel to railway tracks. CN also suggests that if ATCO is found to apply, it should be reconsidered.

[50] The ATCO Decision concerned an application for authority to construct and maintain utility lines within CP’s right of way. In that dispute, CP argued that the proposed above-ground valves were not utility crossings, but rather, mere encroachments on its right of way and therefore, not within the jurisdiction of the Agency. The Agency, however, found that:

While the term “railway line” is not defined in the CTA, section 87 of the CTA states that a “railway” includes “branches, extensions, sidings, railway bridges, tunnels, stations, depots, wharfs, rolling stock, equipment, stores, or other things connected with the railway”, all of which imply the inclusion of land that comprises the right of way, and not just steel rails, ties and the bed or ballast upon which it stands. The Agency finds guidance in the case Canadian National Railway Company vs. Canada (Canadian Transportation Agency), [1999] F.C.J. No. 1961. There, the Federal Court of Appeal ruled that a “railway line” includes the physical components which permit and facilitate the movement of locomotives and rolling stock and is not restricted to the railway track portion only.

Bound by that Decision, the Agency finds that a “railway line” includes the railway right of way. Therefore, by definition, a utility crossing under section 100 of the CTA is intended to include encroachments on the land of the railway company’s right of way by utility lines that run alongside the trackage. In other words, “railway line” is the tracks and supporting infrastructure which includes the contiguous land that fall within the railway right of way.

[51] The ATCO Decision was appealed. The FCA dismissed the appeal and agreed with the Agency, stating:

Given the statutory context, the Agency’s interpretation gives the language of the definition of “utility line” a meaning that it can reasonably bear, and that is consistent with its purpose. In my view, the Agency’s interpretation of the definition of “utility line” is reasonable. I see no basis for the intervention of this Court.

I would add that I would have proposed the same result if the standard of review had been correctness. I do not accept that Parliament, in the course of enacting the current interrelated statutory schemes for the regulation of railways and railway safety, intended to adopt legislation that would preclude those schemes from applying to the construction of above ground safety valves on a natural gas pipeline located on a railway right of way.

[52] In light of the above, the Agency finds that the ATCO Decision and the FCA’s ruling on the matter have already established the principle that the term “railway line” in section 100 includes land on the railway company’s right of way that is contiguous to its tracks, which accurately describes the location of the Seawalk. The Agency notes that the hypothetical scenario raised by CN in its pleadings whereby a crossing application could be made in respect of a portion of a right of way that was far removed from the tracks applies to neither this application nor ATCO, as in both cases, the infrastructure in dispute was situated on a part of the right of way adjacent to the tracks.

[53] Given that the land on which the Seawalk sits is part of the railway line, the next question to be answered is whether the Seawalk is a road crossing.

[54] There are key similarities in the nature of the infrastructure in dispute in the ATCO case and this application. The FCA described the infrastructure in ATCO as:

A portion of the pipeline, approximately 20 miles long, is located on the CPR railway right of way between Kananaskis and Banff, […] runs mostly beside the CPR railway right of way, and it crosses under the railway track at three locations.

[55] Similarly, the Seawalk is located on CN’s right of way beside the railway tracks, and is integrally connected to pedestrian crossings that physically intersect the railway tracks in five locations. As long ago as 1915, the Agency’s predecessor, the Board of Railway Commissioners, recognized in Essex Terminal Rwy Co. v. Town of Sandwich, (1915) 19 C.R.C. 304 that while the location of a railway line and road alongside one another was “objectionable”, it might be acceptable “under special circumstances.” Such circumstances obtain in respect of the Seawalk, which was constructed within the railway right of way some 50 years ago with the consent of the railway company that owned the railway right of way at the time, and has, since then, been in continuous operation as a pedestrian walkway. Moreover, both ATCO and this case involve fairly unusual situations in which the infrastructure in dispute is situated adjacent to the railway tracks and, notably, is integrated with other infrastructure that intersects the tracks. Thus, if the Agency’s and the FCA’s reasoning in ATCO with respect to a utility crossing applies to a road crossing, the Seawalk is captured.

[56] The definitions of the two types of crossings, cited in the Law section above, are virtually identical, with the only difference being the inclusion of the word “across” in the former. This difference is logical, as utility crossings – described by section 100 as “a wire, cable, pipeline or other like means of enabling the transmission of goods or energy or the provision of services” – cannot, by definition, intersect a railway track at grade, while road crossings can. Thus, the one-word difference between the definitions does not support a conclusion that the definitions are sufficiently distinguishable to justify the non-application of the ATCO Decision in this matter. Further, the Rizzo injunction to read the legislation “harmoniously with the scheme of the Act” militates strongly against different interpretations for two almost-identical definitions that appear alongside one another in the same section of the CTA.

[57] With respect to the question of whether the removal of the word “along” from the definition when the Railway Act was replaced by the CTA, the Agency notes that the same issue was raised by CP in the ATCO Decision, and the Agency found that “the alteration in wording has not changed its mandate to authorize construction of utility lines where the utility runs along and under the railway line.” CN suggests that the Continuance Order signaled a policy intent to change the substantive meaning of the definitions, but has produced no evidence that the Order was anything more than an administrative tool used by the executive branch to facilitate the efficient resolution of cases that straddled the old and new legislation. As such, the Continuance Order cannot be relied upon for guidance regarding Parliament’s intentions. In the absence of such guidance, subsection 45(2) of the Interpretation Act, R.S.C., 1985, c. I-21 states that “The amendment of an enactment shall not be deemed to be or to involve a declaration that the law under that enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended.”

[58] With respect to CN’s argument that the interpretation of the definition of road crossing under section 100 of the CTA should be consistent with the concept of grade crossing in the Grade Crossing Regulations – a concept that only includes crossings that physically intersect tracks – the Agency agrees with West Vancouver that grade crossings are most reasonably understood to be a sub-set of road crossings, rather than the synonymous with them.

[59] For these reasons, the Agency finds that the reasoning of ATCO in respect of the utility crossing in dispute in that case – namely, that it was captured by the section 100 definition – is applicable in this case and captures the Seawalk as a road crossing.

[60] CN’s proposal that if ATCO is found to apply to this application – which has been determined in the affirmative – it should be reconsidered does not withstand scrutiny. While CN correctly submits that the Agency is not obligated to follow its own previous decisions – though there is an expectation of consistency – it is bound by FCA jurisprudence. Moreover, the FCA not only upheld the Agency’s ATCO Decision on a standard of reasonableness; it also stated that it would have done so even on a standard of correctness.

[61] In light of the above, the Agency finds that it has jurisdiction in respect of the current application.

SHOULD THE AGENCY AUTHORIZE THE CENTENNIAL SEAWALK?

Positions of the parties

WEST VANCOUVER’S POSITION

[62] West Vancouver requests that the Agency authorize the Seawalk as a suitable crossing in its current configuration. West Vancouver states that the Seawalk forms an integral part of the system of pedestrian walkways in West Vancouver and it provides a vital connection to allow residents and visitors to access the waterfront.

[63] West Vancouver states that the Seawalk connects to north-south streets in West Vancouver via authorized pedestrian grade crossings, and provides for convenient pedestrian routes as well as safe, regulated access to the shoreline. Furthermore, West Vancouver states that the Seawalk protects the railway from what would otherwise likely be a trespassing problem.

CN’S POSITION

[64] CN submits that the application has nothing to do with the construction of a suitable road crossing or who shall maintain it. CN contends that the actual dispute between itself and West Vancouver relates to the determination of rent for use of the Seawalk, located on CN’s property. CN claims that West Vancouver is seeking to circumvent its legal obligations, and the court proceeding that will determine those obligations, by asking that the Agency effectively rewrite the lease on more favourable terms for West Vancouver – specifically, no rent, no liability, no insurance and no obligations. CN argues that, in reality, West Vancouver is seeking an expropriation order from the Agency without compensation.

ANALYSIS AND DETERMINATIONS

[65] The Agency found above that in law, the Seawalk constitutes a road crossing. There is, however, a condition precedent attached to the Agency’s power to find that a road crossing is “suitable” and authorize it: under subsection 101(3) of the CTA, the Agency may only exercise that power “If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1)”, which speaks of “An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing [...]”

[66] In Decision No. 33-R-2011, the Agency considered its jurisdiction under section 101 of the CTA over an application involving a utility crossing when agreements were in force and binding on the parties. It further noted that it had addressed similar issues in Decision No. 310-R-2003 and Decision No. 65-R-2005, also involving utility crossings. In each of those decisions, the Agency consistently held:

[...] In general, the Agency does not interfere in a contractual agreement entered freely by the parties. The Agency is of the opinion that an agreement binds the parties to the terms of an agreement they freely negotiated and entered into.

In Decision No. 310-R-2003, the Agency found that the subject agreements had expired and did not, therefore, prevent it from assuming jurisdiction over the application. In Decision No. 33‑R‑2011, the Agency found that the subject agreements continued to be in effect between the parties and therefore the Agency was required to dismiss the application for lack of jurisdiction.

[67] The parties acknowledge that they were engaged in negotiations between September 2015 and February 2017, in relation to the terms and conditions of West Vancouver’s continued use of the Seawalk. When the parties could not settle on an agreement, CN served a Notice of Civil Claim bringing action against West Vancouver. According to West Vancouver, among the relief sought by CN is a declaration that the lease agreements are terminated, contrary to CN’s earlier position that there was no agreement between the parties.

[68] West Vancouver admitted in oral pleadings that the lease agreements, which have existed between the parties for the better part of five decades, were, in fact, agreements within the meaning of subsection 101(3) of the CTA. On the question of whether those agreements are still in force, each party provided different arguments before the Agency and the Supreme Court of BC.

[69] West Vancouver argued before the Agency that, as a result of CN’s February 2017 Notice of Termination, the agreements are no longer in force. However, in its response to CN’s civil claim before the Supreme Court of BC, West Vancouver has essentially argued the opposite; namely, that reasonable notice was not provided by CN for withdrawal of its consent for West Vancouver to continue using the Seawalk.

[70] CN states that it served West Vancouver with a Notice of Termination of the lease agreements and has asked the Supreme Court of BC to confirm that the leases no longer have effect. However, CN stated before the Agency at the oral hearing that if the Seawalk was to be deemed a road crossing, the lease agreements’ continued force would remove the Agency’s power to authorize it.

[71] Given that the question of whether the lease agreements are still in effect is before the Supreme Court of BC, the Agency finds it appropriate to stay the outstanding issues in this application until such time as a ruling is made on that question, in recognition of the court’s competence in matters of contract law and in the interests of judicial efficiency.

[72] If the Supreme Court of BC finds that the lease agreements are in force, the Agency will dismiss West Vancouver’s application, as the condition precedent in subsection 101(3) of the CTA will not have been satisfied. If the Supreme Court of BC finds that the leases have been terminated, such that the Agency has jurisdiction in this matter, the Agency will lift its stay, give the parties an opportunity to negotiate a new agreement, and if agreement is not reached, deal with the second, third, and fourth issues listed in the Summary section of this Decision.