2004-09-09

LET-R-259-2004

GO Transit	Lebovic Enterprises Limited
Canadian National Railway Company

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Re:

Application by Lebovic Enterprises Limited pursuant to section 101 of the Canada Transportation Act (CTA), and section 16 of the Railway Safety Act for road crossings over Canadian National Railway Company's Uxbridge Subdivision, at Hoover Park Drive (mileage 41.31) and Park Drive (mileage 41.83) in the town of Whitchurch-Stouffville, Ontario.

This is in reference to a Notice of Motion filed with the Canadian Transportation Agency (the Agency) on August 5, 2004 by the Greater Toronto Transit Authority (GO Transit) in the context of the above-noted application.

GO Transit's Notice of Motion requests the Agency for a ruling on the suspension and deferral of the application for a road crossing at the proposed Park Drive and dismissal of the application for a crossing at the proposed Hoover Park Drive. In its letter of August 6, 2004, the Canadian National Railway Company (CN) endorsed and adopted GO Transit's arguments in support of GO Transit's motion.

On August 13, 2004, and revised August 16, 2004, Lebovic Enterprises Limited (the applicant), filed with the Agency its comments on GO Transit's motion. Replies to the applicant's answer were filed by CN on August 20, 2004, and by GO Transit on August 23, 2004.

In its Notice of Motion, GO Transit advised the Agency that in July 2003, it appealed the decision of the Town of Whitchurch-Stouffville's Zoning By-law 2003-104-Z0 and Draft Plan of Subdivision 19T(W)-98006 to the Ontario Municipal Board (OMB), as the plan of subdivision precludes the construction of a grade separation for either of the proposed road crossings over the Uxbridge Subdivision. According to GO Transit, a ruling by the OMB will decide whether the zoning by-law and plan of subdivision should be approved, amended and/or reviewed, thereby determining whether the road crossings should be grade separated or provisions should be made in the design for future grade separation(s). In its motion, GO Transit submits that it would be premature for the Agency to consider Lebovic Enterprises Limited's application in advance of the OMB's decision.

GO Transit argues that a municipal authority, in this case the OMB, has the sole jurisdiction to approve or create a municipal road in a plan of subdivision and the Agency does not and cannot deal with the land use planning issues required to make such a determination. GO Transit maintains that the OMB's obligations to exercise its broader jurisdiction under the policy direction of the Planning Act, the Provincial Policy Statement 1997, and the Region of York and Town of Whitchurch-Stouffville Official Plan are not overridden by the Agency's power pursuant to section 101 of the CTA.

In support of GO Transit's motion, CN also submits that the application is premature. CN maintains that the facts required for the Agency to exercise its jurisdiction pursuant to section 101 of the CTA will only be finalized with the issuance of the OMB's decision with respect to the proposed roads. CN adds that there is little reason for the Agency to proceed until the authority to establish these roads and their configuration is confirmed by the OMB, and that issuing a decision at this time could lead to an academic exercise with unnecessary costs and efforts.

In its answer to the Notice of Motion, the applicant maintains that GO Transit's motion should be either dismissed in its entirety or deferred and dealt with at the same time as the Agency's decision is rendered. The applicant notes that the parties have been unsuccessful in negotiating an agreement, which supports its application pursuant to section 101 of the CTA. It adds that the issue before the Agency is a constitutional and legal one which only the Agency should deal with. Any suggestion that the Agency defer to the OMB for a preliminary review is contrary to the exclusive jurisdiction given to the Agency.

In reply, GO Transit submits that the application before the CTA is moot. Should the Agency continue with the application, and possibly grant leave to construct the level road crossings, the OMB could still reject the road design and require grade separations for one or both of the crossings. This could require amended or additional applications to the Agency. Alternately, if the OMB were to approve the plan of subdivision but require grade separations for the road crossing(s), an agreement might be reached between the parties, making it unnecessary for an application to the Agency.

GO Transit argues that neither Park Drive nor Hoover Park Drive has a level of municipal approval sufficient for it to constitute a "road" under section 87 of the CTA. It states that Park Drive is not identified in the Official Land Use Schedules, and Hoover Park Drive is identified as a "possible" or "proposed" collector route on a "Concept" Plan and "Conceptual" Structure Plan. CN adds that the proposed roads must be clearly determined prior to an application being properly made to the Agency. In addition, GO Transit and CN note that the applicant does not own or control land on the west side of the proposed Hoover Park Drive crossing as is required for the establishment of a crossing.

Regarding the road issue, the applicant states that Hoover Park Drive and Park Drive are both clearly shown on the Official Plan, and are required to service the future new developments. Also, by suggesting that there is no guarantee of the creation of the road, GO Transit is ignoring the detailed planning process that has occurred. The applicant adds that it is the owner of land on both sides of the railway right of way at Park Drive and has the consent and support of the owner of lands west of the right of way at Hoover Park Drive.

The Agency has considered all of the evidence submitted by the parties.

Section 101 of the CTA states:

(1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

(2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct or maintain the crossing, or apportioning the costs, as provided in the agreement.

(3) 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.

(4) Section 16 of the Railway Safety Act applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing.

(5) This section does not apply in any circumstances where section 102 or 103 applies.

It is clear from the reading of section 101 of the CTA that the Agency is the body designated by the Parliament of Canada to resolve issues relating to the construction, maintenance or apportionment of costs for the crossing of a federal railway by any road. Where the parties to a road crossing are unsuccessful in negotiating an agreement, the Agency has the specific authority, inter alia, to authorize the construction of a suitable road crossing. In the absence of permission or authorization from a railway company, it is the authorization by order of the Agency that is required to allow non-railway parties to access or cross the right of way of a federal railway.

Furthermore, the Agency has the specific authority to determine what constitutes a suitable crossing, including, among other things, whether a crossing needs to be grade separated. The Agency does not have jurisdiction over railway safety, but in making such a determination on suitability, the Agency must consider safety, as the Federal Court of Appeal has determined that the concept of a "suitable crossing" shall include an element of safety, be adequate and appropriate in light of its intended purpose and take into account the applicant's as well as the respondent's intended use of the crossing (Fafard v. Canadian National Railway Co.), [2003] FCA 243). The Agency would consider any advice from Transport Canada who does have the authority over federal railway safety matters. Therefore, if the criteria or conditions of section 101 are met, the Agency is the appropriate body to resolve road crossing matters.

With respect to those conditions, the Agency first notes that the parties have been unsuccessful in negotiating an agreement. The respondents may argue that a future agreement would make an application to the Agency unnecessary, but it does not change the fact that negotiations have taken place and have been unsuccessful as is evidenced by the submissions of the applicant as well as the objection placed before the OMB.

The respondents further argued that the roads in question are not yet public as the plan of subdivision has not yet been approved by the OMB and thus any application to the Agency is premature. However, the CTA defines "road" as "any way or course, whether public or not, available for vehicular or pedestrian use". Therefore it is not necessary for a road to be public for section 101 to apply. The Agency notes the submission that the applicant is the owner of lands on both sides of the railway or that it has the consent and support of the owner of lands west of the right-of-way at Hoover Drive. The Agency further notes the extent of the planning process and the fact that the Official Plan has been approved by the municipal authority, the Town of Whitchurch-Stouffville. There is ample evidence to support the fact that there is an intention to cross the Uxbridge Subdivision with one or more roads. Final approval of a proposed road by a municipal or provincial body is not a prerequisite for an application pursuant to section 101 of the CTA.

The respondents also argued that an application to the Agency may be premature in that the decision of the OMB may alter certain facts with respect to the roads in question. Again, certainty in design, location or other matters respecting a road is not a requirement for an application to the Agency requesting that it authorize and determine what is a suitable road crossing. In fact, the final design and location of a road crossing may be affected by the Agency's determination of a suitable road crossing.

For all of the above reasons, the Agency hereby dismisses the motion of GO Transit, and will proceed with the application before it pursuant to section 101 of the CTA.

Therefore, the Agency, pursuant to section 6 of the National Transportation Agency General Rules (the General Rules) hereby abridges the time lines set out in the General Rules. GO Transit and CN are required to file their answers to the application on or before September 20, 2004 and to serve a copy on the applicant. Upon receipt of these answers, the applicant will have five days to file a reply with the Agency and to serve a copy on the other parties.