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Guide to Private (Farm) Crossings of Railways

INTRODUCTION

Effective July 1, 1996, the Railway Act was abolished, and provisions relating to rail transportation were included in the Canada Transportation Act (hereinafter, the CTA). The new legislation created the Canadian Transportation Agency (hereinafter, the Agency) to replace the National Transportation Agency. Among other duties, this quasi-judicial body is responsible for resolving issues arising between railway companies under its jurisdiction and other interested parties such as utility companies, road authorities or landowners.

A series of guides has been prepared to highlight the changes brought about by the new legislation. This particular guide is designed to help landowners who need to cross the track of a railway company to access their property.

All previous farm crossing orders and decisions issued by the National Transportation Agency or its predecessors remain in effect unless they are inconsistent with the CTA.

LEGISLATION

Under section 102 of the CTA (Part III), if the construction of a railway line crosses a landowner's land, the landowner can ask the railway company to construct and maintain a suitable crossing that allows the landowner to enjoy the land. If the landowner and the railway company cannot agree, the Agency may determine whether such a right exists and what constitutes a suitable crossing.

Under section 103 of the CTA (Part III), if the construction of a railway line does not divide a landowner's land, but the railway company and the landowner adjoining the railway disagree on some aspect of a railway crossing, the landowner can apply to the Agency. The Agency may order the railway company to construct a suitable crossing, if the Agency considers such a crossing necessary to the landowner's enjoyment of the land. It may also determine what constitutes a suitable crossing, and what terms and conditions should govern the crossing, such as liability, compensation, duration and the use of the crossing. In these cases, the landowner pays the costs of constructing and maintaining the crossing.

DISPUTES

If the parties are unable to agree on a private crossing, the party proposing to install the crossing may apply to the Agency for an order authorizing the crossing, including a ruling on the disputed issues.

If you wish to apply to the Agency, please submit your written, signed application to the following address:

Secretary
Canadian Transportation Agency
Ottawa, Ontario
K1A 0N9

If you wish to deliver your application by hand or by courier, please use the following address:

Secretary
Canadian Transportation Agency
15 Eddy Street
17th Floor, Mailroom
Gatineau, Quebec
J8X 4B3
Fax: (819) 997-6727

In addition, you should send a copy of the application to each of the parties involved. If you require assistance in reaching the parties involved, let us know and we will provide you with a contact name and address.

To help the Agency fully appreciate the situation, you should include the following information in your application:

• the location of the crossing (railway mileage and subdivision are essential, while town and/or land title coordinates are also helpful but less critical);
• sufficient evidence of historical ownership to date of the land on both sides of the railway, if applying under section 102;
• a description of the project, such as a description of the approaches to the crossing, to the level of detail that would normally be part of an agreement;
• the purpose and necessity of the project, when it is not clear;
• two copies of a plan, drawing, sketch or other map that helps describe the location of the crossing;
• a list or description of the issues to which both parties have agreed;
• a list or description of the contentious issues to be resolved by the Agency, on which the other party will be given an opportunity to comment.

Legal representation is not required. However, any agent or solicitor acting on your behalf should include authorization from you in the application.

PROCESS

After receiving an application, the Agency, according to its General Rules, ensures that each interested party has the opportunity to comment on the application and any disputed issues. In general, the Agency reviews the application, invites the other interested party to comment on the application within a 30-day time frame, and then allows the applicant 10 days to respond to the other party's submission. The Members of the Agency review all the material and submissions, make the final decision or determination, and issue the necessary orders. Agency staff process all applications and provide support to the Members.

The Agency will process each application as quickly as possible. It must process all applications within 120 days after receiving the originating documents, unless the parties to the application agree to an extension.

Please note that an application to the Agency does not prevent the parties from continuing their negotiations.

ORDERS, DECISIONS AND APPEALS

Any Agency order or decision is binding upon the parties and remains in effect until it is amended or rescinded. Any such order or decision may be:

• reviewed by the Agency, if there are new facts or circumstances;
• appealed to the Federal Court on a matter of law or jurisdiction, within 30 days of the order or decision;
• appealed to the Governor in Council at any time.

CONFIDENTIALITY

All documents filed with the Agency become part of the public record and may be made available for public viewing. Upon request, certain aspects of your agreement or application may be considered confidential according to the Agency's General Rules.

SAFETY AND FUNDING

Authority to establish or modify a road crossing under the CTA does not relieve the parties of their obligations under the Railway Safety Act. Transport Canada is responsible for safety and funding matters under the Railway Safety Act. With regards to any requirement under the Railway Safety Act, contact a Transport Canada Surface Regional Office at one of the numbers listed below:

Atlantic Region: (506) 851-7040
Quebec Region: (514) 283-5722
Ontario Region: (416) 973-9820
Prairie and Northern Region: (204) 983-4214
Pacific Region (BC): (604) 666-0011

OTHER AVAILABLE DOCUMENTS

• Agency General Rules
• The Canada Transportation Act and The Rail and Marine Transportation Branch
• The Rail Infrastructure Directorate: A Guide
• Environmental Assessment Procedures
• Guidelines on Apportionment of Costs of Grade Separations
• Guide to Road Crossings of Railways
• Guide to Railway Crossings of Other Railways
• Guide to Railway Line Construction
• Guide to Railway Works Cost Apportionment
• Guide to Utility Crossings of Railways
• Railway Third Party Liability Insurance Coverage Regulations
• Guidelines on Railway Third Party Liability Insurance Coverage
• Schedule "A" Directives - Railway Rates for Maintenance and Construction

Available in alternative formats.

FOR MORE INFORMATION

For more information or copies of the above documents, please contact one of the following staff members of the Rail Infrastructure Directorate:

Fax: (819)953-8353

You can obtain copies of the relevant legislation from the following address:

Canadian Government Publishing Centre
Canada Communication Group
Gatineau, Quebec
K1A 0N9
Tel.: (819) 956-4800

Minister of Public Works and Government
Services Canada
Catalogue no. TW3-22/3-1997
ISBN 0-662-63044-0