Memorandum of Understanding
Memorandum of Understanding on coordination of efforts related to Noise and Vibration Complaints and Road, Utility or Private Crossings Between: The Canadian Transportation Agency (“Agency”) and Transport Canada (Hereinafter referred to collectively as the “Participants”)
A) Noise and Vibration:
WHEREAS, sections 95.2 through 95.4 of the Canada Transportation Act (CTA) provides the Canadian Transportation Agency (the Agency) with the authority to issue guidelines and resolve complaints related to noise and vibration in the construction and operation of federally-regulated railways and public passenger service providers and the Agency has developed such guidelines;
WHEREAS, train whistling is a legal requirement of the Railway Safety Act (RSA) administered by Transport Canada and Transport Canada has developed Guideline no. 1 “Procedures for Eliminating Train Whistles at Public Crossings”;
B) Road, Utility and Private Crossings:
WHEREAS, by virtue of subsection 101(3) a person may apply to the Agency for an authorization to construct a suitable road crossing, utility crossing or related work or for specification on who shall maintain the crossing, where that person was unsuccessful in negotiating an agreement or amendment to an agreement relating to the construction, maintenance or apportionment of the costs of a road or utility crossing;
WHEREAS, section 102 of the CTA provides that if an owner’s land is divided as a result of the construction of a railway line, the railway company shall, at the owner’s request, construct a suitable private crossing for the owner’s enjoyment of the land;
WHEREAS, under subsection 103(1) of the CTA the Agency may order a railway company to construct a suitable private crossing where the Agency considers it necessary for the enjoyment of the land by an owner of land adjoining a railway;
WHEREAS, Transport Canada has the authority under section 7.1 of the RSA to make regulations prohibiting the construction of road crossings;
WHEREAS, Transport Canada administers the Grade Crossing Closure Program under the authority in section 12 of the RSA;
WHEREAS, section 12.1 of the RSA enables the Minister to enter into an agreement with a person who has rights under Part III of the Canada Transportation Act, or otherwise, relating to a road crossing, to close the crossing in the interest of safe railway operations;
AND WHEREAS, the CTA does not provide the Agency with the authorization to close a crossing;
NOW THEREFORE THIS MEMORANDUM OF UNDERSTANDING sets out the intentions of the Participants as follows:
1. Objectives and Scope
1.1. The purpose of this memorandum of understanding (MOU) is to set out the responsibilities and understandings between the Participants with respect to railway noise and vibration complaints and opening and closing of road, utility and private crossings. The arrangements set out below outline the intention of each Participant with respect to the legislated responsibility of the other Participant.
1.2. This MOU is in keeping with the coordination agreements between the Agency and Transport Canada described in section 6 of the RSA.
A) Noise and Vibration
2.1. At the request of the Agency, Transport Canada will provide railway safety input to the Agency for its use as part of its regulatory noise and vibration processes in cases where railway safety may be an issue.
B) Road, Utility and Private Crossings
2.2. Upon receiving an application by a landowner for the construction of a road, utility or private crossing under subsections 101(3), 102 or 103(1), the Agency will provide a copy of the application to Transport Canada.
2.3. Within 30 days of receiving an application or upon request of the Agency, Transport Canada will provide any railway safety input it may have to the Agency for its use as part of its crossing regulatory processes.
2.4. As it may be relevant to any application under sections 101, 102 or 103 of the CTA, Transport Canada will maintain and make available to the Agency a list of crossings that have been the subject of an agreement made under the Grade Crossing Closure Program.
3. Financial Arrangements
3.1. Each Participant will assume the costs it incurs in the fulfilment of its duties in accordance with this MOU.
4.1. Subject to any of the Participants’ obligation under any Act of Parliament or other legal obligation, the Participants will maintain the confidentiality of the information received through the collaborative activities described under this MOU.
4.2. If any Participant is required by law to disclose any information received through the collaborative activities described under this MOU, the Participant so required will, as a courtesy, notify the other Participant to inform them that they will be doing so.
5. Settlement of Disputes
5.1. Any disputes regarding the interpretation or implementation of this MOU will be resolved only by consultation among the Participants and will not be referred to a tribunal or third party.
6.1. The Participants may only modify this MOU by mutual agreement.
7. Duration, Withdrawal and Termination
7.1. This MOU takes effect upon the date of the last Participant signing.
7.2. This MOU remains in effect until modified or terminated. This MOU may be reviewed as needed and may be withdrawn by either Participant by giving not less than 30 days notice.
8. Not Legally Binding
The Participants acknowledge that this MOU does not create any legal rights or obligations, nor does it affect the legislated responsibilities of each Participant, but merely serves to outline the parameters that have been set for their collaboration and the areas for which discussions have been held and understandings in principle have been reached.
Original version signed by:
Geoffrey C. Hare
Chair and Chief Executive Officer
Canadian Transportation Agency
Date: September 21, 2011
Original version signed by:
Associate Deputy Minister of Transport,
Infrastructure and Communities
Date: September 21, 2010