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Guide to Utility 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 utility companies and railway companies who want to install or modify facilities where they cross each other. Utility companies include any company that transmits goods or energy, or provides services, through wires, cables, pipelines or similar means.

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

AGREEMENTS

The parties involved in constructing or maintaining a utility crossing may negotiate any aspect of a crossing. Under sections 100 and 101 of the CTA (Part III), they may file an agreement, or an amendment to an agreement, with the Agency. The filed agreement becomes an order of the Agency authorizing the parties to construct or maintain the crossing, or apportioning the costs, as provided in the agreement.

Any such order for a utility crossing establishes a statutory right to cross at a specific location, registers the agreement with the Agency, and provides historical data in the event of a future dispute.

When negotiating an agreement the parties may want to consider the following items:

• location of the crossing;
• a description of the project;
• the purpose of the project;
• plans or drawings prepared to scale, signed and dated;
• terms and conditions such as those governing alteration, notice, process and supervision;
• liability;
• design;
• material standards;
• duration (including removal provisions);
• costs, such as those related to construction, maintenance and restoration;
• safety requirements;
• environmental impact; and
• other project-specific issues.

The agreement, in whatever form it may take, must clearly demonstrate the consent of both parties. Please submit the agreement to the Agency, in writing, at the following address:

Secretary
Canadian Transportation Agency
Ottawa, Ontario
K1A 0N9

If you wish to deliver your agreement 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) 953-8353

DISPUTES

Under section 101 of the CTA (Part III), if the parties are unable to reach an agreement respecting a utility crossing, the party proposing to install the crossing may apply to the Agency. The Agency may authorize the construction of a suitable utility crossing or any related work, and may rule on any disputed issue within the Agency's jurisdiction.

If you wish to apply to the Agency, please submit your written, signed application to the appropriate address above.

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.

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

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

• the location of the crossing (including railway mileage and subdivision, the name of the adjacent road and town and/or land title coordinates);
• a description of the project, in the level of detail that would ordinarily be included in an agreement;
• the purpose of the project, when it is not clear;
• two copies of a suitable plan or drawing, prepared to scale and appropriately dated and signed;
• 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; and
• an environmental assessment of the project that must be conducted by the applicant and screened by the Agency. (This is a requirement of the Canadian Environmental Assessment Act and a standard questionnaire is available to help you.)

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. 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 Private (Farm) Crossings of Railways
• Guide to Railway Crossings of Other Railways
• Guide to Railway Line Construction
• Guide to Railway Works Cost Apportionment
• Guide to Road 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. TW3-22/2-1997
ISBN 0-662-63043-2