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Proposed Guide on Applying for Approval to Construct a Railway Line for Federally-Regulated Railway Companies

Table of contents

1. Overview

The Canadian Transportation Agency (Agency) has the authority to approve the construction of federally-regulated railway lines under section 98 of the Canada Transportation Act (Act).

The Agency may approve an application to construct a railway line if it determines that the location of the railway line is reasonable taking into consideration the:

  • requirements for railway operations and services; and
  • interests of the localities that will be affected by the railway line.

Purpose of this application guide

This guide describes the process for obtaining approval from the Agency to construct a federally-regulated railway line. It outlines the applicant's requirement to consult with the localities and describes the information that needs to be filed with the Agency to support an efficient review process.

Disclaimer: In the event of a conflict between this guide and the Act, its regulations or any other act of Parliament, statutory requirements will prevail.

When is approval by the Agency required

Approval from the Agency is required when a federally-regulated railway proposes to construct a railway line.

Key terms
Federally-regulated railway A railway company that meets one of the following criteria:
  1. Operates across provincial, territorial, or international boundaries;
  2. Operates within Nunavut, the Northwest Territories, or the Yukon;
  3. Is owned, controlled, leased or operated by a federally regulated railway;
  4. Has been declared by Parliament to be for the general advantage of Canada; or,
  5. Is an integral part of an existing federal undertaking.
Railway line Includes a main line, branch line, yard tracks, sidings, spurs or other track auxiliary.

Agency approval is not required to construct a railway line if:

  • The proposed railway line is within the right of way of an existing railway line;
  • The proposed railway line is within 100 metres of the centre line of an existing railway line for a distance of no more than 3 kilometers; or,
  • A port authority, incorporated under the Canada Marine Act, constructs a railway line on lands that it manages, holds or occupies.

Additional approvals or requirements

Certificate of fitness

Railway companies proposing to construct a railway line must hold a certificate of fitness for the proposed activity. The certificate of fitness demonstrates that the railway company is a federally-regulated railway that holds the prescribed liability insurance coverage.

Railway companies may file an application for a new certificate of fitness or variance of an existing certificate of fitness together with an application for approval to construct a railway line. However, the Agency will not grant an approval to construct a railway line prior to the railway company holding the required certificate of fitness.

The Agency's Guide to Certificates of Fitness provides additional information on the requirement to obtain and maintain a certificate of fitness.

Environmental assessment or review

The construction of a railway line may trigger the requirement for an environmental assessment or an environmental review under the Canadian Environmental Assessment Act, 2012 (CEAA 2012).

Environmental assessments are required for projects described in the Regulations Designating Physical Activities and include, but are not limited to, the construction of:

  1. a railway line in a wildlife area or migratory bird sanctuary;
  2. a railway line that requires a total of 32 km or more of new right of way;
  3. a railway yard with seven or more yard tracks or a total of 20 km or more;
  4. a railway line designed for trains that have an average speed of 200 km/h; and,
  5. an international or interprovincial bridge or tunnel.

An environmental assessment is also required when the construction of a railway line is part of a third-party project that is subject to such an assessment. The Minister of the Environment and Climate Change may also designate a project as requiring an environmental assessment if there is the potential for environmental effects in areas of federal jurisdiction or public concerns about such environmental effects.

An environmental review, by the Agency, is required if the railway line is to be constructed on federal lands.

If an environmental assessment or review is required, the Agency can only proceed with the approval of an application once it has been determined that the project is not likely to cause significant adverse environmental effects after taking into account the implementation of any mitigation measures or the Governor in Council finds that those significant adverse environmental effects are justified in the circumstances.

For questions on whether an environmental assessment is required, please contact the Canadian Environmental Assessment Agency.

Other federal or territorial approvals

The construction of a railway line may require approvals from other federal authorities, including reviews and permits from Transport Canada, Environment and Climate Change Canada or Fisheries and Oceans Canada. The construction of a railway line in Nunavut, the Northwest Territories or the Yukon would also be subject to their respective northern regulatory regimes.

It is the applicant's responsibility to determine if any additional approvals are required and to obtain such approvals.

2. Consultations with localities

When determining whether to approve an application, the Agency considers the interests of the localities – including the interests of Indigenous communities – that will be affected by the railway line.

The Agency requires applicants to consult with the localities before submitting an application.

Key terms
Locality A locality includes neighbourhoods, communities, townships, and municipalities and encompasses its residents, land owners, business owners, and Indigenous peoples.
Interests of the localities Impacts on localities arising from the location of the railway line or activities related to its construction or operation.

The applicant's consultation process should include the following steps:

 

Step 1: Preparing to consult

The applicant is to identify the localities that will be affected by the location of the railway line and also take steps to identify potential impacts on those localities.

Identify localities affected by the railway line

The localities affected by the railway line will depend on the nature and scope of the proposed construction and operational activities and the location of the railway line. A locality's proximity to the proposed railway line is an important consideration in identifying those localities that may be affected by the railway line and who should be consulted.

In addition to municipalities and communities, the applicant should also identify landowners, businesses and other persons or organizations that will be affected by the railway line.

Applicants can use the Government of Canada's Aboriginal and Treaty Rights Information System, a web-based interactive map, to help identify Indigenous communities that may be impacted by its proposed railway line.

Additional information on requirements for Indigenous engagement

The Agency recognizes the importance of considering the effects its decisions may have on Indigenous communities and the need for Indigenous communities to be appropriately engaged and heard.

The Agency has adopted an Indigenous Engagement Framework for Railway Line Construction that applicants are expected to consult and adhere to when applying to the Agency.

Initiate discussions with municipalities and other government bodies

The applicant, prior to filing its application with the Agency, is expected to have discussed the impact of its railway line with municipalities and other government bodies. The purpose of these discussions is to help the applicant identify:

  • concerns to be taken into account and addressed as part of its consultations with the localities;
  • conflicts with planned development in the area; and,
  • measures to address identified concerns and conflicts.

Conduct technical studies

The applicant is expected to conduct technical studies to assess how the construction and operation of the railway line will affect the interests of the localities. The studies should be shared with the localities during the consultation process and provided to the Agency with its application.

The technical studies should predict the significance of the impacts associated with the construction and operation of the railway line; identify mitigation measures to avoid, reduce or manage the impacts; and measure the residual impacts after the application of mitigation measures.

The requirement for technical studies will depend on the proposed construction and operational activities, including whether it is a railway line or a railway yard to be constructed and its proximity to residential, wildlife, and environmentally sensitive areas.

Technical studies can include those assessing impacts on the localities with respect to:

  • surface, groundwater, and other environmental concerns;
  • safety;
  • traffic and emergency response services;
  • planned land use for the surrounding area; and,
  • noise and vibration.

Additional information on requirements for noise and vibration

The Agency has adopted the Railway Noise Measurement and Reporting Methodology that applicants are expected to consult and adhere to when applying to the Agency.

A noise assessment should consider any sensitive receptors within a 1 km radius of the proposed project. Receptors may include outdoor areas or indoor spaces in permanent residences, schools, hospitals, daycare centers, seniors' residences, and other buildings.

Step 2: Consulting the localities

Prepare a meaningful consultation plan

Applicants are to prepare a consultation plan outlining how they will inform the localities of their intention to construct a railway line and engage them in meaningful consultations.

Meaningful consultations
Timing

Plan the timing of the consultation activities to take into account holidays, summer vacations and other times when individuals and representatives of the localities may be unavailable. Indigenous communities' seasonal, cultural, hunting, fishing and gathering activities should also be taken into account.

Opportunity

Consider a variety of approaches to consulting with the localities to ensure broad input is received, including arranging individual meetings with key stakeholders, holding open houses, organizing community discussion tables and providing persons the opportunity to view the information online.

Everyone in communities who will be affected by the railway line should have an opportunity to review the consultation materials and participate in the consultation process.

Information

Inform the localities about the proposed railway line, its likely impacts and measures intended to minimize those impacts. The localities should be provided with the appropriate information and resources to enable them to understand the nature and extent of the railway line construction and operation and how it may affect them.

Duration

Provide the localities with sufficient time to:

  1. consider the information;
  2. seek, receive and consider any additional information;
  3. formulate their views; and,
  4. submit their comments and concerns.
Collaboration

Work collaboratively with the localities while being considerate of local community values. The applicant should be ready to meet with Indigenous communities and respect their cultural and political protocols.

Announce and promote consultations

Applicants are encouraged to use a variety of methods to promote their consultations to reach a broad range of local residents, businesses and associations. This approach will help ensure that people are aware and able to participate.

To promote the consultation process, applicants can:

  • request that the municipalities post a public notice on their websites;
  • inform local radio stations;
  • place a notice in local newspapers;
  • place a notice of the planned information sessions on the bulletin boards of public buildings, community halls, social organizations and service clubs;
  • advertise the information sessions within the newsletters and websites of local associations and service clubs;
  • use social media such as Twitter or Facebook;
  • include information in material distributed by municipal counselors to their constituents; and,
  • directly contact persons who are expected to be affected.

Promotional materials should identify how people will be consulted, consultation dates, filing deadlines and where people can find more information on the proposed railway line.

Remember: it is the applicant's responsibility to inform the localities of its intent to construct a railway line.

Provide consultation materials

Consultation materials, including any technical studies, should be made readily available to anyone interested in participating in the consultation process. The applicant should make available materials similar to the information that will be filed with its application to the Agency.

When consulting with the localities, the applicant is expected to provide materials that are easy to understand. The materials should use a non-technical, plain language approach and, as appropriate, incorporate visual aids. They must be written so that someone who has no prior knowledge of railway line construction and operations can understand what is being proposed.

The consultation materials should include:

  • a description of the proposed railway line construction and operations;
  • a map showing the location of the proposed railway line in relation to the surrounding environment;
  • a description of potential impacts (i.e., air quality, noise and vibration, local traffic, access to properties, safety and security, night lighting, etc.);
  • a description of the mitigation measures to be undertaken to address potential impacts; and,
  • the applicant's contact information specifying the applicant's name and its contact person, including the person's telephone number and email address.

Project information should be relevant, balanced and objective. It should provide sufficient detail to enable localities to understand the nature and extent of the railway line construction and operations and permit the localities to formulate their opinions on likely impacts to their interests.

The potential concerns will depend on the nature and scope of each railway line and may include:

  • traffic on municipal roads and emergency vehicle access;
  • pedestrian, cycling and vehicle safety;
  • noise, vibration and lighting effects on nearby residential areas;
  • safety and security, including at rail crossings, on rail lines, in rail yards and resulting from the transportation of dangerous goods;
  • changes to area drainage patterns and soil erosion;
  • impacts on surface, groundwater, and the environment;
  • impacts on local utilities and road infrastructure;
  • impacts on property values;
  • access to and continued use of residential, business and agricultural land; and,
  • the protection of wildlife and the natural environment.

When engaging Indigenous communities, the applicant should be prepared to tailor the information to each community's requirements. This could include, where appropriate, translating consultation materials into the language of that community.

Step 3: Documenting the consultation activities

Applicants are to document their consultation activities in sufficient detail to demonstrate the:

  • extent and nature of their consultation activities;
  • concerns raised; and,
  • commitments they made to address those concerns.

All comments should be sufficiently documented as part of a comprehensive summary of the consultation activities. For example, during meetings and other verbal consultations, the applicant should ensure that minutes are taken. Applicants should also keep copies of all written feedback, including comments on consultation materials or responses to questionnaires and surveys.

3. Application requirements

Applicants are responsible for submitting the information necessary to demonstrate that the location of the proposed railway line is reasonable, taking into consideration their operational and service requirements and the interests of the localities.

The onus is on the applicant to provide the information in sufficient detail, with supporting evidence, to permit the Agency to assess the application. The applicant is also responsible for ensuring that the application is submitted sufficiently in advance of the proposed construction activity for the Agency to complete its review.

The applicant must submit the following information and documentation in support of its application:

Note: The Agency has the discretion to request information it considers necessary to its determination, including information that is not specified within this guide. The Agency applies its discretion based on the specific facts of each case.

A. Application overview

Provide an introductory overview of the application that includes the:

  • applicant's name and primary contact information;
  • approval being sought from the Agency; and,
  • description of railway line construction and operations, planned timelines and services that will be operated.

B. Location of the railway line

Railway line description

Provide a description of the proposed railway line construction, in sufficient detail, identifying the location of the railway line and all proposed rail infrastructure in relation to their surroundings and proximity to the different localities.

Alternative locations

The applicant should indicate whether alternative locations were considered and provide the criteria and rationale for choosing its proposed location.

Maps and plans

The application should include maps and plans that are made to scale, labelled, include a north arrow and have a comprehensive legend that defines the symbols used.

  • Maps should depict the location of the proposed railway line and associated infrastructure in relation to their geographic surroundings.
  • Plans should capture all of the geometric features of the proposed railway line and other important project components and be signed by a qualified engineer.

The maps and plans should, where appropriate, contain the details listed in the charts below. The facility type, size, design capacity and other details will determine the information that should be provided within the maps and plans.

i. Railway lines, including main lines, branch lines, yard tracks, sidings, spurs, and other track auxiliary, showing:

Details Maps Plans

Location and alignment

Yes Yes

Right of way

Yes Yes

Mileage points, including beginning and end

Yes Yes

Profile in relation to the existing ground

Yes Yes

Topography

Yes No

Existing railway lines that the proposed railway line may cross

Yes Yes

Alternative locations that were considered

Yes No
 

ii. Roads, bridges, tunnels and private crossings, showing:

Details Maps Plans

Road allowances

No Yes

At grade or grade-separated crossings

Yes Yes

Crossing signage and signaling devices (i.e. arms, bells, lights)

No Yes
 

iii. Infrastructure, including pipelines, utility crossings, culverts, noise walls, embankments, open drains, ditches, and watercourses, showing:

Details Maps Plans

Whether above or below ground

Yes Yes

Utility support structures, blow-off valves, and other safety measures

No Yes
 

iv. Localities, including Indigenous communities, municipalities, residents, landowners, businesses and communities in proximity to the railway line, showing:

Details Maps Plans

Property lines and names of the owners of the land that the railway line will cross

Yes Yes

Existing and future land-use and zoning around the site of the proposed rail infrastructure

Yes No

Access points for adjacent landowners

Yes Yes

Sensitive receptors (i.e., homes, buildings, wildlife areas)

Yes No
 

C. Railway operations and services

Proposed railway operations and services should be described, including why the railway line is being built in that location, the types of services it will provide, customers it will serve, train frequency and required ancillary buildings and infrastructure. The Agency will consider the various construction and operational measures proposed by the applicant to assess the reasonableness of the location of the railway line.

Note: The Agency, as part of its review of the application, does not approve the applicant's plans or designs associated with the construction or operation of the proposed railway line.

The information should include a comprehensive description of the applicant's plans, including for:

Infrastructure and ground alterations

The application should provide a detailed description of the proposed infrastructure and ground alterations that will be required and include the following information:

1. Infrastructure in support of operations, including a description of:

  1. communication systems, signal systems and related facilities;
  2. bridges, tunnels and other infrastructure;
  3. compressors and testing equipment (e.g. brake testing, engine loading);
  4. storm water drainage systems;
  5. spill and drip collection systems for fueling and oiling stations;
  6. track configuration including curves, wyes and connections, branch lines, extensions, sidings, stations and other things connected with the railway;
  7. switches, frogs and other cross-overs;
  8. track materials, including ballast, ties, rail weight, continuous welded rail or jointed, fastening system, tie plates, high quality ballast and other required track materials;
  9. embankments, aqueducts, roads, conduits, drains, piers and arches;
  10. noise and vibration mitigation measures;
  11. infrastructure necessary to allow the construction of a railway line across another railway line;
  12. infrastructure necessary to allow the construction of a railway line across a road that passes across, over or under a railway line, and includes a structure supporting or protecting that part of the road or facilitating the crossing;
  13. infrastructure necessary to allow the construction of a railway line across a utility line that passes over or under a railway line, and includes a structure supporting or protecting that part of the utility line or facilitating the crossing; and,
  14. other infrastructure, not identified above, that is necessary for the operation of the railway.

2. Modifications to lands, waterbodies and existing utilities, including a description of:

  1. cuts, fills, berms, ponds, channels, channel realignments, watercourses, canals or roads that adjoin or intersect the railway;
  2. alterations to roads;
  3. drains or conduits into, through or under land adjoining the railway;
  4. alterations to the position of a water pipe, gas pipe, sewer, drain, telegraph, telephone, electric line, wire or pole across or along the railway; and,
  5. other relevant modifications to lands, waterbodies and utilities not identified above.

Operational activities

Provide a description of the railway operational activities that will be undertaken at the proposed facilities for (a) the first year of operations and (b) when operating at full capacity and include the following information:

1. Main/branch/spur line operations, including a description of:

  1. passenger rail service: stations, platforms, parking lots, passenger and vehicle traffic, and crossings;
  2. freight rail service: type of locomotives, cars, and whether dangerous goods are transported;
  3. spurs: location and number of trains per day that will idle and the length of idle time;
  4. daily train volumes by time of day, train lengths, and speed of operation;
  5. frequency and length of blocked public road crossings;
  6. lighting and noise emitters, including whistling and bells, and whether any retarders will be installed;
  7. access and other security measures (e.g fencing, etc); and,
  8. other relevant railway line operational activities not identified above.

2. Railway yard operations, including a description of:

  1. yard activities to be undertaken;
  2. type and volume of containers to be loaded and unloaded daily;
  3. how goods will be handled (e.g., transfers, loading/unloading, storage, refrigeration, etc.)
  4. equipment and rolling stock to be operated (e.g. yard locomotives, trucks, hostler trucks, etc.);
  5. inspections of equipment and rolling stock (e.g. brake testing, whistle testing, bells, etc.);
  6. idling, shunting, train building and marshalling;
  7. number of crew working at the yard and timing of crew changes;
  8. yard topography, grade and hump;
  9. noise retarders and anti-idling systems to be employed;
  10. classification of rail cars;
  11. oil and water separators;
  12. facilities such as depots, wharfs, stores, pads, loading and unloading facilities;
  13. buildings (e.g., warehousing, maintenance, office, etc.);
  14. truck traffic: type, volume, frequency, time of day, travel speeds, access and exit roads and routes to be used;
  15. lighting and noise emitters, including whistling and bells;
  16. service roads;
  17. access and other security measures (e.g. fencing, cameras, guards); and,
  18. other relevant railway yard operational activities not identified above.

3. Railway maintenance and repair yard operations, including a description of the:

  1. type, frequency, volume and duration of the maintenance activities;
  2. scheduling of maintenance operations;
  3. testing (e.g. brakes, locomotive engine load testing, etc.)
  4. facilities (e.g. buildings, locations, construction, noise abatement measures, etc.);
  5. specific tracks used for maintenance purposes; and,
  6. other relevant railway maintenance and repair yard operational activities not identified above.

Railway services

Provide a detailed description of the railway services to be provided and include the following:

1. Whether the requirement for the proposed railway line is to:

  1. increase volume capacity to meet expected growth in demand;
  2. provide new, increased or better rail access to existing or new customers;
  3. increase railway operating efficiencies and reduce operating costs;
  4. address community issues and improve rail safety; or,
  5. create a more efficient rail transportation network.

2. Whether the proposed railway line will result in existing customers or others being disadvantaged.

3. Any letters of support or other supporting documentation from stakeholders and customers demonstrating their interest in the services to be provided.

The information on the requirement for railway services should be complemented with the appropriate analytical data. Growth projections, customer demand, market research, and other studies and information would help to both quantify and explain the requirements for railway operations and services.

Construction activities

Provide a detailed description of the proposed construction activities and include the following:

1. Infrastructure staging and scheduling, including a description of:

  1. construction phases;
  2. preliminary works (e.g. clearing, grubbing, demolition, pre-loading, etc.);
  3. facilities for construction crews (e.g. offices, washrooms, lunchrooms and parking);
  4. on-site/off-site temporary staging for:
    1. equipment/machinery;
    2. bulk construction materials (e.g. concrete, fill, sand or wood, etc.) and forms;
    3. other track construction materials (e.g. rail, track materials, ballast); and,
    4. excavated material.
  5. off-site disposal facilities or containment areas for excavated materials;
  6. temporary works (e.g. dykes, berms, pumps, shoring, etc.); and,
  7. security facilities, including security systems, site supervisors and construction fencing required for site security and to prevent trespassing.

2. Construction methods, including a description of:

  1. audible warning devices;
  2. truck haul routes;
  3. pile driving; and,
  4. blasting activities.

3. Other construction activities, not identified above, that are necessary for the operation of the railway.

D. Consultation activities

Provide a copy of the consultation plan and a comprehensive summary of the consultation activities that also takes into account the Agency's Indigenous Engagement Framework for Railway Line Construction, including:

Summary of consultations

  1. A list of the localities, including municipalities, provincial and other federal government departments and Indigenous communities, who may be impacted by the project and a description of how they were identified;
  2. A description of when and how the localities were contacted and who the contact person was in each locality and Indigenous community;
  3. The manner in which the localities were notified of the consultation process and how they could participate, including a copy of the notification or advertisement;
  4. A copy of the consultation materials made available to the localities, how and when they were made available and the amount of time localities were provided to consider the material;
  5. A summary of meeting dates, attendees, topics discussed, concerns raised, plans for addressing concerns, and any outstanding unaddressed concerns;
  6. A copy of all written comments received in the course of the consultations, including meeting minutes;
  7. The applicant's response to the issues, the manner in which the responses were communicated to the localities and their feedback;
  8. An explanation of potential mitigation measures that would address the issues raised during consultations and any commitments the applicant is willing to make to implement them;
  9. Any mitigation measures proposed by either the Indigenous communities or the applicant to address negative impacts on any traditional Indigenous practices such as hunting, fishing, trapping and gathering;
  10. A description of any issues that remain unresolved, including the reasons why these issues remain unresolved; and,
  11. Any other information the applicant believes would be relevant to the Agency's review.

4. How the Agency will review the application

The Agency's review process has four stages:

Stage 1: Assessment of completeness

The Agency's Chair will assign a panel of one or more members to review the application and ensure all of the necessary information has been submitted.

If the panel determines the application is incomplete, it may either direct the applicant to file the necessary information or return the application.

If the panel determines that it has sufficient information to proceed, it will accept the application and inform the applicant. The Agency endeavors to process accepted applications within 120 calendar days.

Stage 2: Public comment process

After the application has been accepted, the Agency will inform Transport Canada of the proposed railway line construction, under its Memorandum of Understanding.

The panel will also establish the timelines for a public comment period, at minimum 30 business days, during which people can provide comments, identify their interests and express concerns they may have about the proposed location of the railway line. The Agency's process is intended to supplement (and not replace) the consultations undertaken by the applicant prior to submitting its application.

The Agency will post the application on its website. The applicant will be required to publish a notice in a local newspaper, at least 7 days in advance, in both official languages, about the upcoming public comment period indicating that the public can access the application from the Agency's website. A sample public notice is found in Appendix B.

During the public comment period, the applicant must also make a paper copy of its application available for viewing in a public forum such as a Band Council or Settlement office, city hall or library.

The Agency will also post any comments it receives from the public and other government departments and agencies on its website. The application, subsequent filings and any comments will remain on the Agency's website for the duration of the review process.

Stage 3: Panel deliberations

The panel will consider the information before it. To ensure an informed determination, the panel may request additional information, conduct a site visit or request that the applicant undertake, at its own expense, specific studies or examinations.

The Panel may, at its discretion, proceed by way of an oral hearing. Some reasons for deciding to proceed by way of an oral hearing may include the:

  • complexity of the issues and evidence;
  • volume of materials filed;
  • need to test evidence or decide credibility issues; or,
  • level of public interest.

Stage 4: Determination

At the end of the process, the Panel will issue a written determination that will contain an analysis of the application, along with the reasons for its determination. The determination is published on the Agency's website.

Determinations made by the Agency are binding, including any conditions that the panel may place on the applicant, and remain in effect until they are amended or rescinded.

Appeal of an Agency determination

Under section 40 of the Act, a party or an interested person can petition the Governor in Council to vary or rescind an Agency determination, including one made under section 98 of the Act.

Under section 41 of the Act, a party or an interested person can appeal the Agency's determination to the Federal Court of Appeal (FCA), with leave, on a question of law or jurisdiction. A motion for leave to appeal must be made to the FCA within one month of the issuance of the Agency's determination.

A list of certain key Agency and FCA determinations related to the approval of railway line construction can be found in Appendix C.

5. How to submit an application

The application, including all supporting documentation, can be submitted to the Agency as follows:

By mail:

Secretary
Canadian Transportation Agency
Ottawa, Ontario
K1A 0N9

By courier:

Secretary
Canadian Transportation Agency
15 Eddy Street
17th Floor, Mailroom
Gatineau, Quebec
J8X 4B3

By email:

secretariat@otc-cta.gc.ca

Confidential information

The Agency maintains a public record in its determination process. All documents provided, including the application, will be placed on the Agency's public record. A person filing a document or providing information to the Agency may make a claim for confidentiality.

Appendix A explains how to make a claim for confidentiality for the filing of information that, if disclosed to the public, can be expected to cause financial or other harm to the applicant.

Appendix A: Request for confidentiality

  • No person may refuse to file a document on the basis of a claim for confidentiality alone.
  • A person making a claim for confidentiality must file:
    • one version of the document from which the confidential information has been deleted; and,
    • one version of the document that contains the confidential information marked "contains confidential information" on the top of each page and that identifies the portions that have been deleted from the version of the document referred to in paragraph (a).
    • a person making a claim for confidentiality must indicate the reasons for the claim, including, a claim as to why specific direct harm would likely result to the person making the claim for confidentiality if the document were disclosed.
  • The Agency shall place a document on the public record, even if a claim for confidentiality has been made, if the Agency finds that the document is relevant to the proceeding and that no specific direct harm would likely result from its disclosure or that any demonstrated specific direct harm is not sufficient to outweigh the public interest in having it disclosed.
  • If the Agency determines that a document for which a claim for confidentiality has been made is not relevant to a proceeding, it will not form part of the record and the Agency will return the document.
  • If the Agency determines that a document for which a claim for confidentiality has been made is relevant to a proceeding and that the specific direct harm likely to result from its disclosure justifies a claim for confidentiality, the Agency may:
    • order that the document not be placed on the public record and that it be kept confidential;
    • order that a version or a part of the document from which the confidential information has been removed be placed on the public record;
    • make any other order that it considers appropriate.

Appendix B: Sample public notice

The sample notice below can be used by an applicant to inform interested persons within the localities that the Agency will be seeking comments from the public about the proposed location of the railway line.

[Railway Name]

Public Notice

The [Railway Name] hereby gives notice that it has filed its application with the Canadian Transportation Agency (Agency) for authorization to construct a railway line between mileage X.XX and mileage X.XX of its [Subdivision Name] subdivision, located in the city of X, in the province of X.

This construction is required to [reason for construction].

[Railway Name]'s application was filed with the Agency under section 98 of the Canada Transportation Act, which specifies that,

"The Agency may, on application by the railway company, grant the approval if it considers that the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line."

More information on the application can be obtained from [Railway Name] at the coordinates listed below. A copy of the application and relevant documentation is available for viewing at cta.gc.ca

[Railway Information Coordinates]

Persons who wish to present their views may provide comments, in writing, to the Agency. Comments must be received by the Secretary of the Agency no later than X (X) days from the date of this notice or, if sent by certified mail, postmarked no later than X (X) days from the date of this notice at the following address:

Secretary
Canadian Transportation Agency
Ottawa, Ontario, K1A 0N9

Comments may be submitted by email to secretariat@otc-cta.gc.ca. Persons who require additional information regarding the Agency's process may contact the Agency by telephone at 1-888-222-2592 or by email at info@otc-cta.gc.ca. All submissions, in their entirety, including names, will be posted on the Agency's website.

 

Appendix C: Agency and Federal Court of Appeal determinations

This appendix lists certain Agency determinations that address key principles that it considered when reviewing applications to construct a railway line.

These determinations are included for information and illustration purposes only. The list is not exhaustive and does not indicate a priority of one determination over another. The Agency is not bound by its previous decisions and makes its determinations on a case-by-case basis by considering the specific facts and evidence of each case.

The appendix also includes certain pertinent FCA decisions that also consider these key principles.

Railway yards

The following determinations highlight instances when Agency approval was required for the construction of railway lines located within a yard.

See determinations 199-R-438, 50-R-2011, 99-R-2015, 96-R-2012 and 304-R-2013.

The FCA, in Canadian National Railway Co. v. Canadian Transportation Agency A-46-99, affirmed that under section 98 the Agency has jurisdiction to approve or not approve the construction of railway lines within a rail yard.

Interests of localities

The following determinations highlight instances when the Agency identified interests of localities.  These interests include, among others, use of agricultural land, safety, noise and vibration, drainage, erosion, protection of wildlife and wetlands, traffic and effect on land values.

See determinations 178-R-1998 , 527-R-1999, 591-R-2006, 620-R-2008, 118-R-2015, 341-R-2015 and 379-R-2015.

Need for a railway line

The FCA, in Sharp v. Canada (Transportation Agency), [1999] 4 FCR 363, 1999 CanLII 9356 (FCA), found that the Agency did not have jurisdiction to consider whether the proposed railway line was “needed”.

Indigenous engagement

The following determinations highlight instances when the Agency identified that Aboriginal groups must be engaged in considering the interests of the localities.

See determinations 379-R-2015, 99-R-2015, 371-R-2011, 96-R-2012, 304-R-2013, 118-R-2015, 341-R-2015 and 248-R-2016.

Construction timeframe

The following determinations highlight instances when the Agency identified that under subsection 28(1) of the Act, that its determination granting approval to construct a railway line will be valid for a limited time. If the railway company does not begin the substantive construction of the railway line in the stipulated timeframe, it will have to reapply for approval.

See determinations 415-R-2011 and 341-R-2015.

Environmental assessment

The following determinations highlight instances when the Agency identified that information derived from the environmental assessment can inform the Panel's deliberations. The conditions set out in the environmental assessment decision can be enforced by an Agency decision.

See determinations 178-R-1998, 77-R-1999, 2008-R-456, 620-R-2008 and 85-R-2013.

Noise and vibration

The following determinations highlight instances when the Agency identified that it may specify, as part of its determinations, conditions intended to mitigate noise and vibration concerns.

See determinations 96-R-2012 and 85-R-2013.

Consultations with the localities

The following determinations highlight instances when the Agency identified that railway companies must provide information to the public to allow an adequate understanding of the project.

See determinations 178-R-1998, 99-R-2015, 118-R-2015, 379-R-2015 and 248-R-2016.

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