Decision No. 152-R-2013
COMPLAINT by Mary Reaume pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
 On November 1, 2012, Mary Reaume filed a complaint with the Canadian Transportation Agency (Agency) concerning railway operations along the Canadian Pacific Railway Company’s (CP) Windsor Subdivision, near her residence, in the city of Windsor, Ontario.
1. Who are the parties to the complaint?
 Mrs. Reaume submits that she is representing a number of affected residents in her neighbourhood, and she provided a petition containing 32 names and addresses.
 CP submits that it is unsure who the additional complainants are in this matter beyond Mrs.Reaume as it is unclear whether these individuals are parties with formal standing before the Agency. Further, CP is not clear whether Mrs. Reaume has been appointed as their agent for representation purposes.
 Mrs. Reaume contends that it would have been unfeasible to have all or most of the residents named on the petition attend the pre-mediation or mediation meetings. She therefore advised the Agency that she has decided to be the sole complainant to progress this complaint in a timely manner.
 The Agency has considered this matter and finds Mrs. Reaume to be the sole complainant.
2. Do the additional matters raised by Mrs. Reaume fall within section 95.3 of the Canada Transportation Act (CTA)?
 In her complaint, Mrs. Reaume raises a number of matters not related to noise and vibration, which include:
- weeds taking over since CP removed the greenery from the railway corridor to allow for visual surveillance;
- illegal dumping of garbage and household items and drainage issues along the railway corridor;
- safety of the pedestrian crossing to Optimist Park;
- diesel fumes causing health impacts; and,
- tank cars carrying dangerous liquids on the railway line.
 As these matters are not related to noise and vibration, the Agency finds that they fall outside the scope of section 95.3 of the CTA, and the Agency will not consider them in this Decision.
- Do the noise and vibration caused by CP’s operations constitute substantial interference?
- If so, is CP meeting its obligation under section 95.1 of the CTA to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the operations take place?
 Mrs. Reaume lives in a single storey house on a residential strip that backs on to CP’s Windsor Subdivision. The surrounding urban area includes residential neighbourhoods, industrial and commercial lands and municipal facilities.
 CP’s Lakeshore control junction (Lakeshore) is located approximately 0.33 mile west of Mrs.Reaume’s residence. The track continues from Lakeshore, approximately 2.5 miles west to the Windsor-Detroit railway tunnel, an international border crossing under the Detroit River. A 1.3 mile spur leads from Lakeshore to the Windsor Yard (Yard), and the Essex Terminal Railway Company’s tracks cross CP’s tracks at Lakeshore.
 According to the submissions, this railway line is part of the Windsor-Detroit trade corridor, Canada’s busiest international trade corridor. The railway conduit handles 30 percent of all Canada/United States of America (U.S.) trade, as well as international transatlantic trade between the Port of Montréal and the U.S. markets. CP’s Windsor Subdivision operates 24 hours per day, 7 days per week, and consists of a single mainline track, passing in an east-west direction, approximately 3feet above grade. The corridor is known as the cornerstone of Canada’s “Gateway Strategies” that rely upon fluid, open, safe, secure and efficient rail freight movements between Canada and the U.S. as well as international destinations.
 The infrastructure leading into the tunnel, owned by CP and its predecessor, has existed since the construction of the railway line and tunnel in 1906.
 In 2004, CP and the federal government announced a joint investment of over $8M to secure the 7.5 km (4 mile) railway corridor from Walker Road to the U.S. border with surveillance technology and fencing to secure the site and to prepare the site on the railway right-of-way east of Walker Road for the installation of a Vehicle and Cargo Inspection System (VACIS), to allow contents of freight cars and containers to be scanned by U.S. border officials as trains roll by slowly prior to crossing into the U.S.
 The VACIS is located 1.3 mile east of Mrs. Reaume’s residence and was installed around 2008. The VACIS is the only available method for non-invasive inspection of loaded and moving rail cars.
POSITIONS OF THE PARTIES
 Mrs. Reaume claims that CP operates within 100 feet of her back door, while CP estimates the distance from her residence to the centre of the track to be 122 feet.
 Mrs. Reaume states that the noise and vibration from CP’s railway activities are substantial and are impacting the health and welfare of residents and children in the area. She adds that residents are affected with headaches, nausea, sleep disturbance and deprivation, irritability, earaches and ringing ears, and they cannot enjoy their backyards. Mrs. Reaume argues that the vibration creates a constant hum as trains pass which can be felt on the floors and causes cracks in the walls of some units.
 To support her case, Mrs. Reaume also filed:
- a detailed log of noise and vibration events; and,
- an electronic video with audio demonstrating railway activities behind her residence.
 Mrs. Reaume also filed a letter that Brian Masse, M.P. for Windsor West sent to the Agency on October 17, 2012.
 Mrs. Reaume states that the sources of noise and vibration include idling locomotives, passing trains, switching/shunting of cars and wheel/rail interface. She adds that CP’s railway operations behind her residence include stopping, backing up, shunting, and reversal of rail cars and that the trains generate brake squeal and “banging” noises that cause extreme and excessive noise and vibration. Mrs. Reaume adds that CP staff had confirmed to her that this is due to a railway traffic light on the corridor at Lakeshore. She claims that the VACIS scanning procedure requires trains to slow, stop and back up.
 Although CP states that there is no staging, yard, switching, testing or parking of trains or units near Mrs. Reaume’s residence, Mrs. Reaume argues that on December 11, 2012, a train stopped behind her unit for over 17 minutes.
Mrs. Reaume’s log of noise and vibration events
 Mrs. Reaume’s detailed log consists of a list of events she recorded, including the date, time of day, locomotive number, decibel readings, and duration and nature of the railway operations for each event.
 The log captures passing, stopping, reversing and accelerating trains. Decibel readings were taken by Mrs. Reaume during and after the events (with and without the presence of trains) using a sound level meter set to “slow” response. Her series of entries began on January 30, 2012 and ended on February 14, 2012. During this period, the A-weighted sound levels recorded at her back door range from 49 to 93 dBA during train events and 30 to 43 dBA without train events. Mrs. Reaume states that during the CP “strike”, she did not measure sound levels over 50 dBA.
CP’s noise predictions
 CP provided sound level predictions based on the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology). CP’s estimations are based on simplified procedures available in Appendix A of the Methodology.
 CP estimates pass-by noise levels outside of Mrs. Reaume’s residence to be 67 dBA during the day-time and 67 dBA during the night-time. Indoor noise levels are estimated to range from 52dBA (with partially closed windows) to 40 dBA (with fully closed windows).
Train volumes and speed
 Mrs. Reaume estimates that traffic volumes range between 15 and 30 trains per day, but has observed instances of up to 45 trains of various lengths on a single day.
 CP states that traffic volume is a function of the traffic tendered by customers, so it can vary from time to time. CP claims that, based on recent data over a 30-day period, there is an average of 35.3 train movements per day at Lakeshore; therefore, it estimates 28.4 train movements per day at Mrs. Reaume’s location (7 movements/day: 3.5 in each direction and once adjustments for unobserved reverse movements are applied).
 CP states that the Yard is stub-ended, which requires trains exiting the Yard and going west towards Detroit to proceed east past Lakeshore until the train is clear, and then to stop and reverse direction. Conversely, trains arriving from the west and entering the Yard pull east past Lakeshore, stop and reverse into the Yard. CP maintains that given the distance from Lakeshore to Mrs. Reaume’s residence, not all trains making reverse manoeuvres would be observed by Mrs. Reaume. CP estimates that any trains less than 1,500 feet making reverse manoeuvres would not be observed at Mrs. Reaume’s location. With an average of 6.1 trains per day making reverse movements at Lakeshore, and assuming an average car length of 75 feet, CP estimates that only 2.6 trains per day making reverse movements at Lakeshore would be observed at Mrs.Reaume’s residence.
 CP states that 62 percent of movements occur during the day (from 6 a.m. to 8 p.m.) and 38percent during the night (from 8 p.m. to 6 a.m.).
 Mrs. Reaume submits that trains rarely pass by at the speed limit of 25 mph. She claims that every day a number of trains travel well above the 25 or 35 mph limit and are even faster at night. In support of this claim, Mrs. Reaume submitted a video and a record of events. In addition, she submits that excessive speeds increase noise levels.
 CP submits that the track speed at this location allows for speeds of up to 35 mph; however, in practice, the trains move at a speed of 25 mph because there is a permanent 25 mph speed restriction at Lakeshore, which is 0.33 mile west of Mrs. Reaume’s residence. CP adds that eastbound trains may be going slightly faster than 25 mph as the tail end of the train must clear the speed restriction before the train can accelerate. Westbound trains could possibly be going faster than 25 mph, but not much faster as the head end of the train must be at 25 mph before entering the speed restriction.
 CP argues that because trains moving through the VACIS must slow down to less than 7 mph to allow for car inspection, the train speeds are lower in proximity to Mrs. Reaume’s residence. CP states that trains moving through the VACIS do not stop or make reverse movements, and that slower trains cause less noise. CP adds that trains may clear the VACIS by the time they reach Mrs. Reaume’s residence, but can only accelerate to 25 mph due to the speed restriction at Lakeshore.
 Mrs. Reaume is concerned that overall rail traffic and train lengths will increase in the future. She refers to the recent announcement of the “Continental Rail Gateway Project”, and states that CP is planning to build another railway tunnel under the Detroit River to accommodate double stacker trains. Mrs. Reaume is concerned that noise and vibration conditions will become even more unbearable with the inevitable increase in shipping along this corridor and no preventive measures in place.
 Mrs. Reaume claims that trains can be up to 100 rail cars long. CP indicates that recent data over a 30-day period show that an average train consists of 51.7 rail cars, once all train movements with 4units and greater are included (e.g. 2 locomotives and 2 rail cars.) CP submits that the longest train was 157 cars plus four engines, but that 94.7 percent of the trains had less than 100 rail cars (including locomotives.) According to CP, traffic volumes and the number of rail cars in each train varies based on customer demand.
Change in operations
 Mrs. Reaume claims that there has been a significant change in railway operations since September 11, 2001, such as security measures with the implementation of the VACIS, the railway traffic light and the required shift changes. CP claims that based on recent data, there have been no appreciable changes in train numbers, lengths, or make up. CP also states that there are no crew change points near Mrs. Reaume’s residence.
Property damage due to vibrations
 Mrs. Reaume states that vibrations from CP’s railway activities are causing damages to the residential units. CP claims that no evidence has been filed with respect to railway-caused vibration or impact.
 CP maintains that it has examined a variety of mitigation measures. It claims that the track is straight, continuously-welded and in good order, with no switches or crossings in the immediate area. The track, locomotives and rail cars are all regularly maintained. In addition, according to recent industry standards, CP replaced cast iron brakes with composite brakes which cause less noise. Another mitigation measure adopted by CP is rail lubrication.
 Mrs. Reaume suggests that an appropriate sound barrier fence would mitigate the noise and vibration impacts, as it can be used in areas where a berm cannot be installed. She maintains that a sound barrier would protect the residents that live along this part of the track, and would also keep this international trade corridor safer, making it inaccessible to trespassers. Mrs. Reaume claims that residences at other locations close to the track have some type of sound barrier.
 CP argues that the barriers referenced by Mrs. Reaume are “shielding” barriers used to block gamma rays from the VACIS facility and not to mitigate the noise.
ANALYSIS AND FINDINGS
Issue 1 - Do the noise and vibration caused by CP’s operations constitute substantial interference?
 The initial step in the analysis of noise and vibration complaints is to determine the existence of noise and/or vibration and whether it constitutes substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.
 To make a determination on the existence of noise and vibration, which may constitute substantial interference for Mrs. Reaume, the Agency will consider the elements outlined below. These elements are outlined in the Agency’s Guidelines for the Resolution of Complaints Over Railway Noise and Vibration (Guidelines).
 These elements include:
- railway operations in the affected area, including any relevant changes;
- the characteristics and magnitude of the noise or vibration (such as the level and type of noise [impulse or constant], the time of day, duration, and frequency of occurrence);
- relevant noise or vibration measurements or studies;
- the presence of other ambient noise, such as highways;
- the impact of the noise or vibration disturbance on persons affected;
- relevant standards to assess the significance of the effects of the noise and vibration levels;
- available mitigation methods and technologies that are cost-effective and operationally feasible;
- mitigation efforts made by the parties; and,
- any other issues relevant to the complaint.
 If the Agency finds that the noise and vibration is not causing substantial interference, there is no need to pursue the analysis further.
 However, if the Agency finds that the noise and vibration is causing substantial interference, it proceeds to the next level of analysis, which is a balancing of the noise and vibration against the criteria set out in section 95.1 of the CTA to determine whether the noise and vibration is reasonable.
 Mrs. Reaume submits that the sources of noise and vibration include idling locomotives, passing trains, switching/shunting of cars and wheel/rail interface.
 Mrs. Reaume raised concerns with respect to potential increased noise and vibration as a result of the “Continental Rail Gateway Project”. She maintains that overall rail traffic and train lengths will increase in the future. However, this is speculative and, therefore, the Agency will only consider the current traffic volumes and train lengths in the assessment of this noise and vibration complaint.
 Although CP indicates in its answer that “[t]he only rail activity that takes place at Ms. Reaume’s location is the pass-by of trains along the Windsor Subdivision”, it also acknowledges that some of the trains making reverse movements at Lakeshore would be observed from Mrs. Reaume’s location.
 Based on the evidence on file, the Agency has determined that the sources of noise and vibration causing disturbance to Mrs. Reaume are due to:
- passing trains (including wheel/rail interface); and,
- stopping, reversing and accelerating trains which cause compression/stretching and braking noises.
 Several evidentiary elements were used to establish, on a balance of probabilities, that the noise and vibration associated with the railway activities causes substantial interference, as outlined in the Guidelines.
 Mrs. Reaume’s residence is only 100 to 120 feet away from the rail tracks; therefore, there is minimal reduction in noise and vibration levels over such a short distance.
Magnitude of the noise and vibration
 The Agency accepts the sound levels provided by Mrs. Reaume ranging from 49 to 93 dBA. The sound levels are the sum of the total energy during specific train events. She describes the vibrations being felt on the floors and items vibrating off the walls and tables. She also claims that vibrations are causing damages to her residence. Furthermore, Mrs. Reaume reports that she is experiencing sleep deprivation as a result of CP’s railway activities behind her residence.
 CP’s estimation of noise levels (67 dBA during day-time and night-time) accounted for passing trains only and did not include impulsive noise from the compression/stretching of trains and tonal sounds from brake noise. Further, although CP presented sound levels over an 8-hour period during the night (the sum of the total energy over 8 hours, which includes fluctuations with and without train events), the Methodology suggests causality between sleep and distinct events, where “repetitive noises of a significant level for brief periods of time can interfere with sleep [...]”. Distinct events, where the noise levels fluctuate for brief periods of time, were not considered in CP’s analysis of noise impacts and therefore, the Agency considers CP’s analysis to be non-conclusive.
Characteristics of the noise and vibration
 The low frequencies from the engines, tonal noise from braking, impulsive noise from the compression/stretching of trains, and wheel/rail interface may be annoying.
Impact of the noise and vibration on Mrs. Reaume
 Mrs. Reaume describes health, hearing and mental health impacts caused by the railway operations. She also reports that she is experiencing sleep deprivation.
Time of day and frequency of occurrence
 The traffic is frequent during the day and night. The Agency considers that people are more sensitive to railway noise at night. This conclusion is consistent with Decision No. 35-R-2012 (Normandeau and Tymchuk vs. CP), where the Agency recognized, as a principle, that noise at night can be more disturbing than noise during the day.
Presence of ambient noise other than that of railway operations
 Based on Mrs. Reaume’s log and video, there is no evidence demonstrating any other significant sources of noise in the area that makes the noise from railway activities more perceptible which then causes further annoyance. Mrs. Reaume claims that during the CP “strike”, the noise levels dropped and never registered over 50 dBA.
Agency finding on substantial interference
 Based on the above, the Agency finds that the noise and vibration from railway activities causes substantial interference for Mrs. Reaume.
Issue 2 - Is CP meeting its obligation under section 95.1 of the CTA to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the operations take place?
 Having determined that CP’s activities are, in fact, sufficient to cause substantial interference, the Agency must determine whether the noise and vibration is reasonable in light of the criteria set out under section 95.1 of the CTA.
 Section 95.1 of the CTA imposes an obligation on railway companies to cause only such noise and vibration as is reasonable, taking into account their level of service obligations (as legislated under sections113 and 114 of the CTA), their operational requirements and the area where the operation takes place.
 The Guidelines state that “[r]easonableness is determined on a case-by-case basis and relates to an objective sense of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances. The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations. Overall, this balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.”
CP’s level of service obligations
 Sections 113 and 114 of the CTA set out the railway company’s level of service obligations, or what is generally referred to as “common carrier obligations”. Under these sections, a railway company must furnish, according to its powers, adequate and suitable accommodation for the receiving, loading, carrying, unloading and delivering of all traffic offered for carriage on its railway. More specifically, paragraph 113(1)(c) of the CTA provides that a railway company shall, without delay, and with due care and diligence, receive, carry and deliver the traffic.
 Railway operations, by their nature, cause noise. To meet their level of service obligations, railway companies may have to operate day and night. The Agency acknowledges that this mainline is an integral part of CP’s railway operations as it is part of the Windsor-Detroit trade corridor, one of Canada’s busiest trade corridors to the U.S. markets. The Agency also acknowledges CP’s claim that the corridor is a cornerstone of Canada’s “Gateway Strategies”.
 Therefore, the Agency finds that the activities described above are necessary for CP to meet its level of service obligations.
The area and CP’s operational requirements
 The Agency has considered the immediate area surrounding Mrs. Reaume’s residence. The Agency must also consider the fact that the area where the operations take place is dictated by the close proximity to Lakeshore, the Yard and the tunnel. The Agency recognizes that the location of the Yard, the tunnel, the VACIS system, and the connecting Essex Terminal Railway Company line are all clustered next to one another and are constrained by the urban environment surrounding it. Given the location of CP’s existing infrastructure, the Agency is of the opinion that the passing, stopping, reversing and accelerating trains are part of normal railway operations at this location. The Agency also finds that it would be difficult for CP to change or vary its current operations in this area.
 Mrs. Reaume is concerned that the dramatic changes to the railway operations since September11, 2001 and the installation of the VACIS scanner have increased the noise and vibration levels. The evidence shows that without the VACIS, trains destined to the U.S. could pass by Mrs.Reaume’s residence at the permissible speed of 35 mph, and then slow down before reaching the 25 mph speed restriction at Lakeshore. After the VACIS installation, trains to the U.S. slowed down to below 7 mph before passing through the VACIS facility, located 1.3 mile east of Mrs.Reaume’s residence. Trains may be clear of the VACIS by the time they reach Mrs.Reaume’s residence, but they can only accelerate to 25 mph due to the speed restriction at Lakeshore. It follows then that without the VACIS, trains would travel at a higher speed and then brake due to the speed restriction at Lakeshore while passing Mrs. Reaume’s residence, resulting in higher noise and vibration levels. It is not evident, from the Agency’s perspective, that noise and vibration levels are higher with the VACIS in place. The Agency finds that there is no evidence demonstrating that the VACIS has caused a perceptible increase in the noise and vibration levels since it was installed.
 Both parties agree that railway operations with respect to Lakeshore and the Yard have not changed. These operations require trains to stop, reverse and accelerate, while trains operating through the VACIS do not stop or make reverse movements. The Agency concludes, based on the evidence on file, that the noise causing disturbance to Mrs. Reaume is due to the Lakeshore area and Yard operations and that the use of the VACIS has not caused a perceptible increase in the noise and vibration levels.
 Mrs. Reaume argues that trains exceed the speed limits behind her residence; however, CP maintains that the trains follow the required track speeds. Based on the information on file, there is no evidence demonstrating that CP’s trains are operating above permissible limits. There is also no evidence to indicate that any marginal increases in speed at this location would result in a perceptible increase in the noise and vibration levels.
 In light of the foregoing, the Agency finds that passing trains, as well as trains that stop, reverse and accelerate, are an essential part of CP’s operational requirements, and that there is no evidence that the changes in railway operations claimed by Mrs. Reaume has resulted in a perceptible increase in noise and vibration at her residence.
 In addition, Mrs. Reaume did not provide information demonstrating causality between CP’s operations and damage to the foundation of her residence. The Agency finds that there is no evidentiary basis to support Mrs. Reaume’s conclusion that vibration has caused damages to her property.
Agency finding on reasonableness
 Having determined that the activities causing substantial interference are an essential part of CP’s operational requirements, as well as necessary for CP to meet its level of service obligations, the Agency finds that the noise and vibration at this location is reasonable. As such, the Agency will not consider any mitigation measures requested by Mrs. Reaume.
 Taking all the above factors into consideration and putting the Agency’s analysis in the context of section 95.1 of the CTA and the Guidelines, the Agency concludes that the current noise and vibration from CP’s railway operations near Mrs. Reaume’s residence is reasonable.
 Accordingly, the Agency dismisses the complaint