Letter Decision No. LET-R-21-2017

SUMMARY

[1] Robert Scott and residents of the Mission Gardens neighbourhood in Winnipeg, Manitoba (applicants) filed an application with the Canadian Transportation Agency (Agency) against CN concerning noise and vibration arising from CN’s operations on the Redditt Subdivision, west of the Transcona Rail Yard (Transcona Yard) in the City of Winnipeg.

[2] The applicants allege that CN changed its operations to include marshalling and staging of trains outside of Transcona Yard, from Plessis Road to Bournais Drive. The applicants claim they have been adversely affected by the noise and vibration caused by CN’s changed operations. The applicants are requesting the Agency order CN to return the marshalling and staging of its trains to within the Transcona Yard, east of the Plessis Road underpass.

[3] CN argues that it has fully met the requirements of section 95.1 of the CTA and is only causing such noise and vibration as is reasonable. Therefore, CN submits that the application should be dismissed.

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

1. Do the noise and vibration caused by CN’s 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:

1. The noise and vibration caused by CN’s operations constitute substantial interference.
2. CN is not meeting its obligation under section 95.1 of the CTA, as the noise and vibration caused by CN’s railway operations on the Redditt Subdivision, west of Transcona Yard, are not reasonable.

BACKGROUND

[6] The applicants are residents of Mission Gardens, a residential area in the Transcona neighbourhood of Winnipeg, which is located immediately north of CN’s Redditt Subdivision railway line.

[7] The Reddit Subdivision was opened for traffic on June 1, 1915, and runs from Sioux Lookout, Ontario to Winnipeg. It is CN’s main railway line through Northern Ontario and eastern Manitoba, forming a critical part of CN’s transcontinental network.

[8] CN’s Transcona Yard is a flat switching yard located on the Redditt Subdivision and was constructed in approximately 1910. It is comprised of 17 classification tracks and operates 24 hours a day, 7 days a week - handling approximately 1,500 train cars per day. Transcona Yard is located in proximity to Symington Yard, CN’s major marshalling yard in Manitoba, and one of only two hump yards in Canada. Transcona Yard and Symington Yard are CN’s two main train yards in Winnipeg and form part of CN’s Greater Winnipeg Terminal, representing the railway company’s hub between Eastern and Western Canada and the United States of America.

[9] Most of the houses in Mission Gardens were built in the 1980s. The closest residences to CN are approximately 40 metres from the railway line and approximately 150 metres to the west of Transcona Yard.

[10] In 2012, Federal and Provincial governments and Municipal officials announced approval for the joint funding of the Plessis Road Underpass. The project included the construction of a new subway, where the road crosses underneath the railway line, in order to eliminate the public level crossing at Plessis Road, at mileage 246.63 of the Redditt Subdivision. CN and the City of Winnipeg entered into a confidential agreement for the project covering all aspects of the construction and maintenance of the grade separation, including cost apportionment.

[11] The construction project resulted in the closure of Plessis Road for more than three years. All four lanes of the grade separation were completed and opened for service in September 2016.

THE LAW

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

[13] According to section 95.3 of the CTA, the Agency, on receipt of a complaint that a railway company is not complying with section 95.1 of the CTA, may order the railway company to undertake any changes to its railway construction or operations that the Agency considers reasonable to ensure compliance with the noise and vibration obligation imposed under that section.

[14] 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 section 95.3, the Agency must balance the interests of the parties. Railway companies and urban transit authorities, on the one hand, are involved in activities that necessarily cause noise and vibration, and these activities are also required to fulfill their various 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.” However, on the other hand, the interests of communities affected by this noise and vibration must also be considered by the railway companies and urban transit authorities in determining how best to perform their respective activities such that their obligations under section 95.1 are met.

Analytical Framework

[15] In Decision No. 35-R-2012, the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligations. 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/or vibration which constitutes substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference).

[16] If answered in the affirmative, the Agency must then balance the noise and/or vibration against the criteria set out in section 95.1 of the CTA to determine whether, in that context, the noise and/or vibration is reasonable. Corrective measures may only be ordered if, after this balancing exercise, the Agency concludes that the noise and/or vibration is not reasonable.

[17] In examining whether substantial interference was caused in Decision No. 35-R-2012, the Agency considered the nature, the duration, and the frequency of the noise/vibration. In that Decision, the Agency also recognized that noise and vibration during the night can cause a higher degree of disturbance to persons than during the day.

POSITIONS OF PARTIES

Applicants

[18] Mr. Scott, the applicant who filed the complaint, contends that CN changed its operations when the Plessis Road underpass was opened in April 2015 to include marshalling and staging of trains from Plessis Road to Bournais Drive. Mr. Scott argues that impacts on the applicants include sleep deprivation, high blood pressure, depression, anxiety, and headaches. Mr. Scott further submits the impact on the physical environment caused by vibration includes the cracking of home foundations, ceilings, drywall, windows, stucco, concrete driveways and garage doors, as well as window seals failing and doors not closing.

[19] Mr. Scott further argues that CN does not have the right to impose its economic conditions over the rights of Mission Gardens residents.

[20] In support of their application, the applicants submitted two signed petitions. The first petition authorizes Mr. Scott and Mr. Richard Moreton to act on the signatories’ behalf in this procedure, and the second petition listed the impacts CN’s operations have had on the applicants. Also filed in support of the application are two logs of train events; one was maintained by Mr. Scott and the other maintained by Mr. Jim McEwan, a Mission Gardens resident who is also part of this complaint. In addition, letters from several applicants were submitted as supporting evidence.

[21] In their letter dated March 27, 2016, Mr. and Mrs. Graham and Augustina Harker (also part of this complaint) acknowledge that when they moved into their house in July 2012, they were fully aware of the train activity behind their residence and never had a problem with the trains passing through the neighbourhood. However, the Harkers state that since the closure of Plessis Road for the undertaking of work on the underpass, they noticed trains stopping behind their house with increased frequency. The Harkers believe that once CN no longer had to worry about blocking Plessis Road, there was nothing to prevent it from stopping its trains behind the applicants’ homes. The Harkers further indicate that CN’s train engines can be heard idling for up to 20 minutes at a time and that this sound interferes with the enjoyment of their property.

[22] Ms. Libuse Banot and Mr. Richard Wait, also part of the group of applicants, state in their letter that they have lived in their home since 2007. They also acknowledge that when building a house in such close proximity to a major railway line, they realized and accepted what would come with this choice. Nevertheless, the applicants state that the constant staging of trains directly behind their house is unacceptable. They argue that unlike a passing train, when CN stages its trains, it creates many long, drawn out noise disturbances that disrupt their lives, both day and night. The applicants indicate that they are constantly subjected to the sounds of pressure relief valves going off, elongated idling, and continuous change in idle speeds while the engines change positions back and forth along the tracks. Additionally, the applicants state CN’s trains will also perform linking behind their houses and the resulting extreme noise levels are completely disruptive. The applicants state this noise is akin to an explosion going off behind the houses and it occurs at all hours, waking them up many times throughout the night.

[23] By letter dated March 27, 2016, Mr. Henry Bon and Ms. Grace Page (part of this complaint) state that there is a very regular practice of trains sitting behind their homes, throttling their engines up and down for long periods of time and at all hours of the day and night. The applicants provided an example of one incident which occurred on March 14, 2016 at 2:30 a.m., where a train idled with its engine revving up and down for over an hour before departing. The applicants state that when idle trains start to move, there are successive banging noises resembling explosions, as the box cars slam into one another. The applicants state these noises also occur both day and night.

[24] A letter from Mr. Dean Hodgin, another applicant, indicates that there has been constant engine idling and braking causing extreme levels of noise behind his property at all hours of the day. Mr. Hodgin states that originally he believed that this might be occurring because of the Plessis Road underpass construction; however, he has noticed that this problem is persistent and for no evident reason. Mr. Hodgin questions why the trains cannot be stopped east of the Plessis Road underpass, in a non-residential area, before it passes through Transcona Yard.

[25] Bev F., forming part of the group of applicants, and who has been residing in the area since 1976, states that it was previously peaceful and quiet, even with the trains. The applicant submits that since the summer of 2014, the noise level and smells have gotten progressively worse and as a result, they cannot enjoy their backyard.

[26] Finally, the applicants filed letters of support from Elmwood Transcona Member of Parliament Daniel Blaikie and from Member of the Legislative Assembly of Manitoba for the electoral district of Radisson, James Teitsma.

[27] Mr. Blaikie states that since the opening of the underpass, CN has apparently begun using its mainline west of Plessis Road and south of Missions Gardens as a building and staging area for its trains. Mr. Blaikie indicates that since CN began this practice, a significant number of Mission Gardens residents have been experiencing sleep deprivation and reduced enjoyment of their property from the higher volume and frequency of noise. Mr. Blaikie submits that he believes the appropriate authority must intervene to limit CN’s use of the relevant section of tracks for building and staging trains.

[28] Mr. Teitsma submits that the recent and apparent change in the use of CN’s mainline track is unwarranted and alternatives should be pursued. Mr. Teitsma’s follow-up letter urges CN to change its marshalling plan and minimize or eliminate the use of the mainline running behind Mission Gardens.

CN

[29] CN argues the application should be dismissed as it has fully met the requirements of section 95.1 of the CTA. CN states that it is only causing noise and vibration that is reasonable, taking into account its obligations under the CTA, its operational requirements, and its obligations to the area where the operation takes place.

[30] CN argues that, in noise and vibration applications, the burden of proof rests on the applicants and the law does not support any presumption that railway operations necessarily cause unreasonable noise. CN contends the applicants filed subjective and anecdotal evidence regarding CN’s operational activities, and that such submissions cannot form sufficient and adequate grounds for the Agency to order mitigating measures. CN indicates that simply stating that it is making unreasonable noise at any given time falls short of the kind and quality of evidence required in this type of proceeding. CN argues that the applicants have presented no objective evidence that the noise resulting from the CN operations at Transcona Yard is unreasonable, and such a lack of evidence should be fatal to the application.

Level of Service Obligations

[31] CN contends the level of service provisions under the CTA are a critical consideration for the Agency’s assessment of the reasonableness of the noise and vibration generated by the operation of a railway company. CN points out that this is the first element of consideration in the Agency’s Guidelines for the Resolution of Complaints concerning Railway Noise and Vibration (Agency’s Guidelines).

[32] CN states that railway operations are driven by, and dependent on, customer needs as well as changes in customers’ business cycles, pointing out that railway companies cannot control the traffic being offered for carriage. CN submits that railway yards are designed to coordinate schedules that often involve time-sensitive traffic to be delivered to customers; CN asserts this is particularly important in the case of the Redditt Subdivision and Transcona Yard, which are critical elements in CN’s transcontinental railway system.

[33] CN submits its operations at Transcona Yard are critical to CN’s efficient operations in its role as a support yard to Symington Yard during extreme weather conditions, which can effect humping operations, and during operational disruptions, which may affect yard capacity while staging trains. CN states that any change to operations in Transcona Yard would have an impact on Symington Yard. Furthermore, CN indicates that operations at Transcona Yard are carefully coordinated with that of Symington Yard in order to permit the most efficient flow of intermodal and grain traffic across Canada and the United States.

[34] CN states that in order to meet the demands of CN’s complex network of customers, industries, and other transportation connections, it needs to operate Transcona Yard on a 24-hour basis, 7 days a week, thereby effectively and efficiently processing approximately 600,000 rail cars per year.

CN’s Operations

[35] CN contends that, contrary to what is asserted in the application, CN did not change its operations in 2016 as a result of the opening of the Plessis Road underpass. Rather, CN states it modified its operating plan in 2014 in order to meet growing customers’ demands.

[36] CN submits that in order to utilize its hump system at Symington Yard to full capacity, intermodal traffic is handled at Transcona Yard in the summer. CN states that the intermodal traffic from Symington Yard is brought to Transcona Yard and placed on yard tracks. Departing trains can then be built in Transcona Yard, allowing Symington Yard’s entrance to function more fluidly for other traffic.

[37] CN states that in the winter, the hump yard operations at Symington Yard become more challenging and fewer railcars are processed on a daily basis. CN indicates that in order to alleviate the pressure on the hump operations, some trains, including grain trains, bypass Symington Yard and go directly to Transcona Yard where they can be flat switched. CN submits that a flat switching yard, such as Transcona Yard, requires back and forth movements to classify the cars to the proper tracks and to make up a complete train upon departure. CN argues that bypassing these trains reduces the congestion at the entrance to Symington Yard and allows the intermodal traffic to return to Symington Yard.

[38] CN contends this operational change was necessary in order to keep Symington Yard fluid and again, to meet growing customer demands.

[39] In addition, CN submits that in March 2014, the federal government introduced mandatory minimum weekly grain traffic quotas through an Order in Council, imposed on the railway companies as a result of a record crop year and service challenges that arose due to harsh winter conditions and capacity issues. CN contends that, although it did not share the federal government’s view at the time of the issuance of this Order in Council, it had to comply and remains fully committed to moving more farmers’ grain. CN states that it continues to work on increasing its yearly grain export capacity, in order to enable Canada’s export grain supply chain to be stronger and more competitive year over year.

The Area Where the Operation Takes Place

[40] CN states the Mission Gardens neighbourhood is located between CN’s two main rail yards in Winnipeg, with Symington Yard to the south and Transcona Yard to the east. CN indicates this railway corridor was opened for operations at the turn of the 20^th century and CN has been operating along this corridor since that time. CN points out that most of the Mission Gardens houses were built in the 1980s, in an area where pre-existing industrial lands and activities were already located. CN asserts that all of the residents living along this corridor have moved there in full awareness of the existence of the railway line and their homes’ proximity to CN’s rail yards.

Specific Allegations by the Applicants

[41] Regarding idling trains, CN denies the allegations that it changed its operations to include marshalling and staging of trains from Plessis Road to Bournais Drive. CN maintains that it has always marshalled and staged its trains at this location, albeit less frequently and with shorter trains. CN states that trains departing from Transcona Yard must build air on the lead track prior to departure, and there is no option available to perform this function other than at the current location. CN submits that, although it has extended some of the tracks in its yard to accommodate longer trains, these yard tracks are still not long enough to contain a full train waiting for departure.

[42] CN states that in order to carry out its summer and winter work plans, and to meet its level of service obligations at the same time, it must stage its trains at this location prior to departure while waiting to build air into the brake system, in accordance with specific rules under the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA). CN contends that given the area where the operations take place, the configuration of the yard, the operational requirements imposed on CN, as well as safety obligations pursuant to the RSA, the noise produced by train idling at this location is reasonable.

[43] In respect of switching and shunting, CN contends that all classification of cars, and the required switching, occur strictly within the confines of Transcona Yard. CN believes the applicants are referring to the stopping and reversing movements which occur when the departing trains pick up blocks of cars from the shorter tracks within the yard, resulting in the stretching and compression of the trains. CN argues the actual coupling of the cars has always taken place, and will continue to do so, within Transcona Yard. CN further submits the noise associated with the passing, stopping, reversing, and accelerating trains, is part of normal railway activities, especially so from a yard as critical to the movement of goods west-east and south such as Transcona Yard.

[44] CN refutes the applicants’ claims of physical property damage caused by CN’s operations. CN submits that not only do the allegations lack specific details, they are also not supported by any objective evidence. CN states the allegations fail to show how the vibration levels are higher than what would be experienced during main line train activities, and as such, the applicants have not discharged their burden of proof. Moreover, CN submits the alleged damages are likely the result of normal wear and tear of houses that were built in the 1980s, more than three decades ago.

Mitigation Measures

[45] CN submits it continues to be mindful of its obligations under the CTA and its responsibility to be a good corporate neighbour; it has implemented mitigating measures since the change to its operating plan in order to reduce any noise and vibration at this location.

[46] CN states it is in the process of installing an air charging system that will have the effect of reducing the time required to build air in the trains waiting for departure. In addition, CN states that for westbound trains, it has issued instructions to change the green signal at Plessis Road to coordinate with a green signal at Beach Junction, resulting in trains waiting for shorter periods of time prior to departure.

[47] CN advises that it has moved two trains per day back to Symington Yard, in order to reduce the number of locomotives that may be waiting for departure in proximity to the Mission Gardens residences. CN also had applied to Transport Canada for an exemption to the rule for building air pressure in trains, but this request was denied.

[48] CN further states that there is no train whistling at this location unless people are trespassing on CN’s right of way. CN points out that it is statutorily required by the RSAto whistle in case of emergency.

[49] CN states it has introduced regular staff meetings in order to remind its employees of proper train handling procedures and to increase staff awareness of the residences’ proximity to its operations. CN submits that efficiency tests are also conducted to ensure that crews are properly handling the trains at this location.

[50] Finally, CN states that it builds trains at this location with mid-train distributive power instead of end of train power, which means less headroom is required on the track. CN contends that this results in trains not extending as far west towards the residences.

Impact of Remedy Sought

[51] CN states the remedy sought by the applicants, that of limiting CN’s operations to strictly within the confines of the Transcona Yard, is a critical restriction that would result in significant congestion in its yard operations and, as a result, would harm CN’s ability to efficiently move grain and intermodal traffic. CN contends such a remedy would also restrict the train lengths that can be handled at Transcona Yard, which, as stated above, is very important for efficient intermodal operations. In addition, CN submits that Transcona Yard would not be able to perform effectively as a support yard for Symington Yard, thereby preventing CN from implementing its seasonal operating plans.

[52] CN submits that any restrictions placed on the operation or use of Transcona Yard and the Redditt Subdivision would negatively impact the flow of operations across the transcontinental rail network and ultimately harm CN’s ability to meet its service obligations. CN states that it could seriously impact shippers’ ability to compete in the domestic and international markets, and the Agency must therefore acknowledge the importance of the role played by CN’s operations at this location in meeting its level of service obligations.

FINDINGS OF FACTS

Railway Operations

[53] In the present case, the evidence shows the City of Winnipeg closed Plessis Road in 2013 to commence construction of the underpass. The closure of Plessis Road enabled CN rail traffic to flow without blocking the intersection. CN’s operations subsequently changed, and its train marshalling and staging activities became more frequent and with longer trains.

Distance between the Residences Impacted and the Source of Noise/Vibration

[54] In the application, Mr. Scott states that the approximate distance between the residences and the source of noise and vibration is between 25 metres and 150 metres. According to CN, the closest residences are approximately 40 metres north of the railway line and approximately 150 metres to the west of Transcona Yard. The Agency notes that CN’s statement was not challenged by the applicants in their reply. Therefore, given that CN’s statement on the distance of the residences to the railway line was not contested, the Agency accepts that, for the purposes of its analysis, the closest residences are approximately 40 metres north of the railway line and approximately 150 metres to the west of Transcona Yard.

ANALYSIS AND DETERMINATIONS

Issue 1 - Do the noise and vibration caused by CN’s operations constitute substantial interference?

[55] The initial step in the analysis of noise and vibration complaints is to determine the existence of noise and/or vibration and whether it constitutes substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.

[56] To make a determination on the existence of noise and/or vibration that may constitute substantial interference for the applicants, the Agency will consider the elements listed below. These elements are outlined in the Agency’s Guidelines and in Decision No. 35-R-2012, and include

• 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 or vibration (such as the level and type of noise [impulse or constant], the time of day, the duration, and the frequency of occurrence);
• relevant standards to assess the significance of the effects of noise and vibration levels; and,
• the impact of the noise or vibration disturbance on the persons affected.

[57] If the Agency finds that the noise and vibration are not causing substantial interference, there is no need to pursue the analysis further.

[58] However, 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 to determine whether the noise and vibration are reasonable.

[59] 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.

Analysis

[60] In this case, the applicants’ issues are primarily with the noise and vibration caused by the marshalling and staging of trains, which consist of idling engines and the stretching and compression of trains. No evidence has been presented with respect to noise and vibration from other potential sources or activities taking place on the Redditt Subdivision, from Plessis Road to Bournais Drive.

[61] The applicants note that closing their windows and wearing ear plugs do not eliminate the noise caused by CN’s operations. The applicants describe the sounds from the stretching and compression of the trains as resembling explosions and can be startling when people are asleep at night. The noise from the idling engines can be “obnoxious” as it travels through the walls and causes the houses to rattle.

[62] The applicants also claim that the rail activities are causing damage to their homes, such as cracks in their foundations, ceilings, drywall, windows, stucco, concrete driveways, and garage floors. In addition, they allege that window seals are failing and doors are not closing. However, there was no documentary evidence filed to substantiate the claimed damages.

[63] The applicants did not specify whether the vibration at cause was ground-borne related vibration or vibration due to low frequency airborne noise. As there is little to no evidence concerning ground-borne vibration, the Agency will assume that the vibration is from low frequency airborne noise. Therefore, concerns in respect of this type of vibration will be dealt with in the context of the noise analysis.

[64] The evidence from CN shows that the number of trains at Transcona Yard has significantly increased. From January 2010 to December 2013, the night train counts were consistent, at around 120-130 per month. Commencing in 2014, after the closure of Plessis Road and into 2015, the night train counts increased to approximately 300 per month, which is more than a doubling of trains. This correlation implies causality between train counts and complaints as the local residents started to have issues with the noise following the closure of Plessis Road.

[65] CN also provided the monthly number of trains moving through Transcona Yard over the last 5 years. The Agency converted these numbers into percentage changes year over year. The Agency notes that from 2012 to 2013, the percentage change in trains was a decline of 3%. However, there was a 28% increase in the number of trains from 2013 to 2014, after the closure of the Plessis Road, which the Agency considers to be significant.

[66] The Agency’s Railway Noise Measurement and Reporting Methodology (Methodology), referenced in the Agency’s open pleadings letter dated December 7, 2016, was prepared and developed by the Agency in consultation with key industry players, including CN representatives, to guide railway companies, citizens, or municipalities in assessing and validating parties’ submissions in Agency proceedings. In order to assess the impact of idling locomotives, when no specific noise data is available, the Agency finds it appropriate that the Methodology be used to estimate the impact of this specific activity. Further, the Agency agrees with the applicants that noise at night can be more disturbing than noise experienced during the day.

[67] In this case, no information pertaining to background sound levels was provided in the pleadings. The Agency considers that the affected area can be classified as somewhere between a “Noisy urban residential” and “Very noisy urban residential”, as described in Table 3, estimation of baseline noise levels, in the Agency Methodology. Using the baseline noise levels from the Methodology, the nighttime background noise (Leq_night), before the closure of Plessis Road, is estimated to be in the range of 55-60 dBA. The Agency finds that background noises in these ranges are reasonable as the subject dwellings are next to a mainline railway corridor, busy roads, and industrial noise sources where, according to the applicants, there was minimal marshalling and staging activities before the construction of the Plessis Road underpass.

[68] In addition, the Agency finds it reasonable for the purposes of its simplified assessment to use this sound level range as a basis to assess impacts from idling locomotives over a 1-hour period. The Agency notes that this approach does not take into consideration the worst-case (i.e. lowest) 1-hour night sound level that would be experienced by the residences, whereby the 1-hour noise level in the middle of the night/early morning hours is expected to be distinctly lower than the average levels. Background noise has a tendency to lower in the middle of the night/early morning hours, as a result of reduced human activity.

[69] The Idling Locomotive Noise section of the Methodology, Appendix A, outlines some basic factors to consider as part of a simplified analysis to estimate noise levels. Some of the basic factors include the addition of noise due to multiple sources, the locomotive sound level, and its reduction over distance and adjustment factors for time and obstacles. A description of these basic factors and how they were used by the Agency in estimating the noise level is outlined below.

[70] Following the closure of Plessis Road, the applicants claim that trains now idle for extended periods of time directly behind their homes. In the Methodology, the base sound level for a single idling locomotive at a distance of 40 metres is 64 dBA. When taking into consideration the adjustment factors for two locomotives, as noted in Mr. McEwen’s train log, the sound level increases from 64 dBA to 67 dBA at 40 metres.

[71] As the idling events can last for 60-minutes, no adjustment factor for time was applied. In addition, an adjustment for obstacles was not included because the evidence indicates that many of the residences back directly onto the Reddit Subdivision and have a clear line-of-sight to the railway tracks. The background noise during the night (prior to CN’s change in operations) was added logarithmically to the estimated impact from two locomotives to predict the sound levels at the residences after CN’s change in operations.

[72] The night-time noise environment due to CN trains idling over a 1-hour period has the potential to increase from 55-60 dBA (the sound levels prior to CN’s change in operations) to 67-68 dBA with two idling locomotives. Therefore, the difference in sound levels could be as high as 12 dBA. These predictions do not include impacts from the stretching and compression of trains, special character adjustments to account for any potential low frequency effects or building resonances at the residences, and the worst-case 1-hour middle of the night/early morning sound level, all of which would result in an even higher difference in sound levels.

[73] In Decision No. LET-R-148-2012, the Agency indicated that sound levels in excess of 5 dBA above the background may result in negative impacts for residents, and thus mitigation should be considered. The Agency also indicated that noise levels substantially above the ambient noise may increase annoyance and impact sleep and communications, which may have negative effects on health as outlined in the Agency’s Methodology.

Finding on Substantial Interference

[74] Based on the above, the Agency finds that there is a correlation between train counts at Transcona Yard and complaints from the applicants, thereby implying causality. In light of this, and based on the calculations outlined above, the Agency finds on a balance of probabilities that the noise from CN’s operations, especially at night, causes substantial interference to the applicants.

Finding on Damage

[75] Regarding the allegations of damage to the applicants’ homes, the Agency notes that no data or evidence was provided to substantiate these claims. As such, the Agency could not make a finding on whether the alleged damage actually occurred, and if so, whether it was causally related to the train activity.

Issue 2 - 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?

[76] Having determined that CN’s operations cause substantial interference, the Agency must determine whether these noises are reasonable in light of the criteria set out under section 95.1 of the CTA.

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

[78] Reasonableness is determined on a case-by-case basis and relates to an objective sense 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. Overall, this balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.

CN’s Level of Service Obligations and Operational Requirements

[79] The Agency has recognised in past decisions that, by their nature, railway operations cause noise and vibration. The Redditt Subdivision, which runs behind the applicants’ residences, is CN’s main line through Northern Ontario and eastern Manitoba. There is no dispute that this line is a critical part of CN’s transcontinental network and that Transcona Yard plays a vital role as a support yard to CN’s major marshalling yard in Manitoba.

[80] Although CN indicated that the federal government has imposed minimum weekly grain traffic quotas, it did not directly link this argument to its operations at Transcona Yard. Rather, it merely stated that it continues to work on increasing its yearly grain capacity by being more efficient in the way it handles its portion of the entire supply chain.

[81] Irrespective of whether there is a direct link between the government imposed quotas and a change in CN’s operations at the impugned area, the Agency finds the activities performed at the Transcona Yard are necessary for CN to meet its level of service obligations.

[82] Regarding operational requirements, CN states that, in accordance with specific rules under the RSA, it must stage trains prior to departure in order to build air into the brake system. The Agency notes that CN had applied unsuccessfully for an exemption under the Railway Freight and Passenger Train Brake Inspection and Safety Rules in order to limit its staging times at this location. In light of the fact that CN must remain in compliance with the rules under the RSA, the Agency determines that the building of air into the air brake system forms part of CN’s operational requirements.

Area

[83] According to CN’s submissions and evidence, the decision to modify its operating plan in order to meet growing customer demand was based on its level of service obligations and operational requirements only. In fact, no evidence was filed to indicate that CN gave any consideration, at that time, to the impact that such a change in operations would have on the area, including the Mission Gardens residents.

[84] However, level of service obligations and operational requirements are only two of the three factors listed in section 95.1 that the Agency must consider. The Agency must also give due weight to the area where the operation takes place.

[85] Indeed, in Decision No. 220-R-2012, the Agency found that, although CN’s decision to undertake crew changes was due to operational necessities, the Agency must “[…] also take into account the area – the effects of these activities on the local residents – to maintain a balance”.

[86] A similar finding was made in Agency Decision No. LET-R-148-2012 where the Panel found that the railway company failed to give any consideration to the impact the operational changes would have on the community, contrary to the requirements of section 95.1.

[87] As outlined in the section describing substantial interference, the Agency estimates CN’s rail activities associated with idling locomotives will increase sound levels by up to 12 dBA in a 1-hour period during the night, exceeding the allowable increase in the cumulative noise exposure of 5 dBA. As noted in Agency Decision No. 301-R-2013, idling locomotives create low frequency noise (LFN) and such noise penetrates into typical residential buildings with ease and causes elements of a building to vibrate. As a result, residents cannot escape the noise even within the confines of their own homes.

[88] The Agency also notes that its simplified assessment did not take into consideration the additional impacts from compression and stretching of trains, which would increase the negative impacts already caused by the idling engines. The stretching and compression causes chain-reaction-like impacts throughout the rail car consist due to the stretching or compression of the couplers resulting in sharp and successive banging noises (impulsive sounds), which can be highly intrusive and startling, especially at night.

[89] In light of these facts, the Agency finds that the elevated noise levels during the night, coupled with the presence of LFN and impulsive sounds, result in a high degree of annoyance and sleep disturbance to the applicants. The annoying characteristics of the LFN and impulsive sounds are consistent with the descriptions provided by the Canadian Standards Association, International Standards Organization, United States Environmental Protection Agency, American National Standards Institute, and World Health Organization as referenced in the Agency’s Methodology.

[90] Based on the nature and magnitude of the effect on the area and its residents, the Agency would expect CN to have undertaken mitigation measures to reduce the impact on the area: one of the three factors to be considered under section 95.1. Indeed, in determining the reasonableness of the noise and vibration, the Agency’s Guidelines expressly indicate that the Agency will consider the “efforts made by the parties to reduce the noise or vibration at its source and/or at the point of reception, to prevent its propagation, and mitigate its impact on the persons affected”.

[91] Since the change to its operating plan took place, CN claims it has taken measures to mitigate the noise from its railway activities. However, the Agency notes that CN did not substantiate the effectiveness of its mitigation measures and therefore, it is not possible for the Agency to draw any definitive conclusions on the success of these measures in mitigating the impact on the area and its residents.

[92] In light of all this, namely the nature and magnitude of the impact on the area and its residents and the lack of evidence of mitigation measures to reduce the effect of the noise and vibration on the area, the Agency concludes that, when the three criteria set out in section 95.1 of the CTA are balanced, the increased noise caused by the escalation in marshalling and staging of trains at Transcona Yard, since the closure of Plessis Road, is unreasonable.

CONCLUSION

[93] The Agency finds that the noise levels caused by CN’s operations constitute substantial interference and although the activities performed at the Transcona Yard are necessary for CN to meet its level of service obligations and satisfy its operational requirements, the noise levels caused by the change in CN’s operations in proximity to the Mission Gardens residential area are not reasonable, as they cause an excessive impact on the residents. The Agency, therefore, finds that CN has failed to comply with its obligation to only cause such noise as is reasonable within the meaning of section 95.1 of the CTA.

ORDER

[94] Having determined that the noise levels caused by the change in CN’s operations are not reasonable, pursuant to section 95.3, the Agency 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. In light of the parties’ positions, the Agency is of the preliminary view that CN could modify its infrastructure in Transcona Yard to reduce the marshalling and staging activities west of Plessis Road, while maintaining its level of service obligations and meeting its operational requirements.

[95] The Agency considers that, in this case, the most effective way to reduce the noise is by increasing the distance between the source and residences, as this would result in the greatest noise reduction. However, if reducing the noise by increasing the distance between the source and residences is not possible, then reducing the noise along the pathway to receptors, in this case, the Mission Gardens residences, could be considered.

[96] In light of this, and before making a determination on mitigation measures, the Agency directs CN to show cause why the Agency should not order CN to incorporate infrastructure modifications to accommodate departing trains within the confines of the yard, including but not limited to,

1. extending the yard tracks adjacent to the mainline; and
2. installing a small L-shaped noise barrier along the south-east boundary of Mission Gardens (one side parallel with Plessis Road and the other side parallel with the mainline) to shield residences located west of Transcona Yard from the noise of idling locomotives in the event that longer trains have to wait beyond the extended yard tracks.

[97] Given that CN may be able to show cause in its submissions why the Agency should not make the above order, the Agency also directs CN to show cause in its submission why the Agency should not order CN to implement the following alternative mitigation measure: install a long L‑shaped noise barrier north of the mainline and extending along the west side of Plessis Road to shield residences located west of the yard and north of the mainline from the noise of the staging and marshalling activities.

[98] Finally, the Agency directs CN to confirm if the air charging stations have been installed and where they will be/are located.

[99] CN is required to respond to the above-noted direction by 5:00 p.m. Gatineau local time on June 12, 2017, with a copy to the applicants.

[100] The Agency provides the applicants until 5:00 p.m. Gatineau local time on the fifth business day after the date of receipt of CN’s response, to submit any final comments, with a copy to CN. The applicants should restrict their final comments to the issues and arguments contained in CN’s submission on mitigation, unless the applicants have made a request and that request has been granted by the Agency.

[101] Once the pleadings are complete, the Agency will then assess the information and make a determination on mitigation measures pursuant to section 95.3 of the CTA.