Decision No. 21-R-2012
COMPLAINT by Marysville CN Expansion Community Group pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
 Shawn Milne, as representative for the Marysville CN Expansion Community Group (Group), filed a complaint against the Canadian National Railway Company (CN) and VIA Rail Canada Inc. (VIA) regarding ongoing noise and vibration arising from railway operations on the Marysville railway corridor, between Belleville and Napanee, Ontario (Marysville Corridor), as well as increased noise and vibration that may occur due to increased railway operations following completion of a significant expansion project.
 Following the filing of the complaint, CN submitted a motion on behalf of CN and VIA (the respondents) requesting that the Agency stay the proceedings. In its motion, CN maintained that the collaborative measures set out in the Agency’s Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration (Noise and Vibration Guidelines) had not yet been exhausted and that a stay of the proceedings would allow this condition to be met.
 The Agency determined in Decision No. LET-R-186-2010 that the criteria set out in the Noise and Vibration Guidelines had been met, and the Agency denied the motion for a stay.
 The Marysville Corridor forms part of CN’s Kingston Subdivision, which is a 539-kilometre double-tracked mainline railway running between Montréal, Quebec and Toronto, Ontario and which was first opened for traffic in 1856. Although the Kingston Subdivision is owned and operated by CN, VIA has running rights over the line for its passenger services. Current freight operations average 20 movements per day with maximum speeds of 65 mph and passenger services average 22 train movements daily, with speeds of 100 mph. This mainline corridor is a central component of CN’s network for railway freight traffic across Canada and into the United States of America.
 In July 2009, VIA announced the Corridor Improvement Program, part of a major federal government investment of over $300 million for railway infrastructure improvements. The program for the Kingston Subdivision includes projects at eight locations and is intended to boost railway capacity by eliminating bottlenecks and reducing conflicts between VIA passenger trains and CN freight trains. One of these projects, the Marysville Passing Track and Belleville Junction Expansion Project (Project) includes modifications to the existing Marysville Corridor (from mileage 199.50 to mileage 220.96 of the Kingston Subdivision) by adding and upgrading 4.82 km (3 miles) of mainline track in the Belleville Yard and adding 37 km (23 miles) of new mainline track (a third track) from Napanee west to Cannifton Road in Belleville. This work, in the city of Belleville, the county of Hastings and the town of Greater Napanee will allow VIA to add eight passenger trains per day, increasing the number of trains per day to a total of 30. CN indicates that it cannot forecast future freight traffic volumes as they are dependent on the economy, but freight train speeds will remain the same.
 The Group maintains that the noise and vibration levels within and outside of their homes resulting from railway operations on the Marysville Corridor are currently unacceptable and unreasonable, and that conditions will become worse following the completion of the Project. The Group submits that should the Project be put on hold, the current conditions would still need to be addressed.
Membership of the Group
 At the time of the original complaint, the Group consisted of 54 members, who had each filed a complaint claim form identifying their issues. During the pleadings process, one member was added and three members withdrew their complaints, reducing the Group to 52 members. Mr. Milne indicates that this represents households and not individuals. The Group maintains that the withdrawn complaints were from residents whose properties have been purchased by CN, thereby eliminating their issues. The respondents claim that they are continuing to meet with residents to discuss possible mitigation measures and, following the close of pleadings, advised that further members had withdrawn from the Group.
 The Agency finds that the complainants in this case constitute Mr. Milne and the remaining 51 members who have authorized Mr. Milne to act on their behalf, and Mr. Milne is given standing as the Group’s representative. The Agency also finds that the minor changes in the constituency of the Group between the date of the filing of the complaint and this determination do not materially affect the substance of the complaint.
Motion for interim stop work order
 On November 10, 2010, the Group filed an application pursuant to subsection 28(2) of the Canada Transportation Act (CTA), for an interim order to stop work on the Project until such time as the Agency made a decision on the noise and vibration complaint.
 The Agency considered the motion to be a request for interim injunctive relief and applied the three-part test established by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney-General),  1 S.C.R. 311. The Group was required to meet all three elements of the test in order for injunctive relief to be granted. The Agency found, in Decision No. LET-R-27-2011, that although there is a serious issue to be tried, no irreparable harm would be suffered by the Group if the stay was not granted. Accordingly, the Agency dismissed the motion.
 In its letter opening pleadings, the Agency advised the parties that it would only deal with issues pertaining to noise and vibration. The Agency also stated, in Decision No. LET-R-27-2011, that its jurisdiction in this instance is limited to issues relating to noise and vibration.
 In the pleadings, the parties raised a number of issues on the policies, procedures and legislative processes concerning the Project.
Notice of railway works
 The Group alleges that proper notices of proposed railway works (Notices), to allow work on the Project to proceed, have not been issued. The respondents maintain that over 150 Notices have been issued, and the three objections that were received have been withdrawn.
 The Notice of Railway Works Regulations, SOR/91-103, which are enabled by subsection 8(1) of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) [RSA], fall under the jurisdiction of Transport Canada. Accordingly, the Agency finds that this issue raised by the Group does not fall within section 95.1 of the CTA and is not properly brought before the Agency.
 The Group claims that if proper Environmental Assessments (EAs) had been conducted, mitigation measures would have been required for the Project. It argues that the EAs for the Project are inaccurate and incomplete, as the scope of the Project has changed, and that CN’s planned operational changes and new maintenance and access roads were not included, flooding issues were not addressed and no public consultation was held as part of the EAs.
 The respondents maintain that the acquisition of land does not change the scope of the Project under the EA process and the operational changes not included in the EA will actually improve safety and reduce noise and vibration. With respect to flooding issues, the respondents claim that a drainage study is being conducted by the City of Belleville for further discussions with CN and VIA.
 In Decision No. 382-R-2009, with respect to VIA’s application for its rail improvements, the Agency found that VIA’s proposed construction projects did not require the Agency’s approval pursuant to section 98 of the CTA, as all the projects fell within the exemptions provided for in subsection 98(3). Therefore, the Agency was not required to conduct an EA under paragraph 5(1)(d) of the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (CEAA) for the construction of the railway line. However, the Agency notes that as VIA is a crown corporation, separate EAs for the projects were required pursuant to the CEAA, with VIA as a lead responsible authority. The respondents acknowledge this requirement and submit that all necessary approvals have been obtained under the process set out in the CEAA.
 As the conducting of an EA does not fall within section 95.1 of the CTA and, in any event, as the EA process has been otherwise addressed, the Agency finds that the issues concerning EAs raised by the Group are not properly brought before the Agency in this case.
 The Group requested that the Agency obtain maps (plans) for the entire project, including acquired land and land that is to be acquired, as it maintains that the scope of the project has changed and the amount of land being acquired has grown dramatically. The Group was not clear as to what specific plans were to be obtained.
 In Decision No. LET-R-27-2011, the Agency determined that the plans might have some bearing on the Agency’s review of the noise and vibration complaint filed by the Group. However, the Agency also found that the only plans relevant to the complaint would be those for the Project referred to in paragraph 5 and, accordingly, required the respondents to provide the Agency with up-to-date plans being used for construction purposes for the Project, and provide a copy to the Group.
 The Agency has reviewed the plans as filed and finds that those plans do not indicate that the railway infrastructure will be constructed any closer to residences than originally planned.
 According to the Group, although some properties have been bought, all the required land for the Project has not been acquired. Correspondence from VIA concerning an expropriation request was provided by the Group as further evidence that the respondents have chosen to expropriate rather than address the serious health, safety, noise and vibration concerns. The Group maintains that expropriation is relevant to this complaint, as it will result in the removal of a natural berm and allow for the track to be built closer to residences, which will increase noise and vibration.
 The respondents maintain that they have always acknowledged that lands would need to be acquired for sloping and drainage along the right of way and that already, approximately 100 Notices have been issued to landowners from whom property was acquired as part of the Project. The respondents add that land acquisition by negotiation or expropriation does not cause noise, and therefore is not an issue to be dealt with in a noise and vibration complaint.
 In Decision No. LET-R-27-2011, the Agency determined that it has no mandate to address land acquisition and expropriation issues under section 95.1 of the CTA. Accordingly, this issue will also not be considered by the Agency in this Decision.
 Are the respondents complying with section 95.1 of the CTA in respect of their current railway operations in the Marysville Corridor between Napanee and Belleville to cause only such noise and vibration as is reasonable, taking into account their level of service obligations, where applicable, their operational requirements and the local area?
 Based on the information provided in these proceedings, once the Project is completed, will the respondents be complying with section 95.1 of the CTA in respect of their railway operations to cause only such noise and vibration as is reasonable, taking into account their level of service obligations, where applicable, their operational requirements and the local area?
Positions of the parties
 The Group claims that the noise and vibration in proximity to their properties are unreasonable and exceed accepted criteria. The Group maintains that residents are being exposed to damaging sound levels and the respondents are ignoring the serious health and safety issues in the area, focussing only on improving their profitability. In reply to the respondents’ submissions, the Group argues that many homes existed along the corridor before the railway, and that it is changes to railway operations that have increased the noise levels over the past years, negatively impacting the residents as trains are more frequent, longer and louder, with double-stacked container cars and more powerful engines, train whistles are louder and more frequent and, due to the increased length of the trains, crew changes can no longer occur within the Belleville Yard. The Group is also concerned that freight traffic levels and speeds will increase once the Project is completed, as the capacity being added far exceeds what is required to add eight passenger trains per day.
 The Group maintains that it has clearly shown that existing noise and vibration levels due to railway operations are not reasonable and will only become worse following completion of the Project, and measures must be taken to lower the noise at source and/or to protect the residents. The Group has proposed a number of measures to help alleviate their noise and vibration issues, including:
- eliminating train whistles;
- slowing train speeds;
- decreasing rail traffic;
- moving crossovers away from residential areas;
- shutting down or moving the rail corridor;
- cancelling the third track expansion;
- replacing poorly maintained locomotives;
- repairing flat spots on wheels;
- installing berms or sound barriers;
- moving or rebuilding homes; and,
- installing air conditioning and upgrading sound attenuation in homes.
 The respondents submit that the complaint should be dismissed as they have met the requirements of section 95.1 of the CTA to cause only such noise and vibration as is reasonable taking into account their obligations under sections 113 and 114 of the CTA, their operational requirements and the area where the operation is taking place.
 The respondents argue that sections 113 and 114 of the CTA impose common carrier obligations on federal railway companies to provide adequate and suitable accommodation to traffic. They add that the Kingston Subdivision is CN’s major mainline corridor between Montréal and Toronto, and that it is critical in allowing CN to provide economic and efficient transportation services to shippers. They claim that any restrictions placed on railway operations or use of this corridor would negatively affect the flow of operations across the international rail network, ultimately harming CN’s ability to meet its service obligations and negatively affecting VIA operations on one of Canada’s busiest passenger corridors. The respondents emphasize that CN has been operating along this corridor for over a century and assert that all of the residents moved there in full awareness of the railway line. The respondents further submit that an increase or decrease in train volumes is no test for unreasonable noise and vibration.
 The respondents acknowledge that railway operations do create noise and vibration. However, the respondents maintain that they have been sensitive to the effect of noise and vibration on residents, and mitigation measures have been included as part of the Project to decrease the noise levels and provide other positive impacts on the residents.
 Each member of the Group filed a form to identify their individual concerns from a list of 15 items and to include the distance between their residence and the railway line.
 Those concerns, as defined by the Group, are:
- idling locomotives;
- passing trains;
- switching and shunting cars;
- wheel/rail interface;
- poorly maintained locomotives;
- recommended set backs of 100 ft ( from railway line not met;
- creosote contamination from railway ties in ground and well water;
- pollution and smoke from diesel locomotives;
- visibility along adjacent roadways when approaching oncoming trains using high beams;
- private and public crossing blockages;
- private and public crossing safety;
- water drainage;
- negative implications on property values; and,
- miscellaneous other issues.
 The Agency has reviewed the list and has determined that, of the 15 items, the first six relate to noise and/or vibration which may fall within the mandate of the Agency under section 95.1 of the CTA.
 With respect to concern 7, the Agency acknowledges that the set-back distance from the railway line to a residence is relevant to a noise and vibration complaint and notes that distances were provided by certain members of the Group. Those distances have been reviewed by the Agency and, according to the forms, all of the Group’s residences are within 500 m of the railway line. Although specific, individual distances have not been verified by the Agency, eight members claim that their residences are within 30 m of the track, 15 are set back between 30 and 90 m and 21 are set back between 90 and 500 m. Seven members of the Group did not indicate a set-back distance and one property was farmland, with no residence.
 Concerns 8 to 14 inclusive do not relate to noise and vibration and raise issues which do not fall within the purview of section 95.1 of the CTA. Further, no new issues relating to noise and vibration were identified by the Group under concern 15 on the complaint forms. Accordingly, as these concerns are not properly the subject of the noise and vibration review mandate of the Agency, they will not be considered by the Agency in this Decision.
 With respect to the concerns specifically related to noise and vibration, information from each form has been tabulated by the Agency and the top three concerns for the Group are: (1) whistling; (2) passing trains and (3) idling locomotives. The next three concerns are: (4) wheel/rail interface; (5) poorly maintained locomotives; and (6) switching and shunting trains.
 The Group submits that whistling is excessive and unreasonable and can be avoided if proper safety measures are put in place. One member of the Group indicates that horns are sounded for longer than necessary. The Group further indicates that, in the past, residents attempted to have whistling ceased at three road crossings without success, and one member of the Group with a Deseronto address also has concerns regarding whistling noise at his location. To eliminate whistling, the Group suggests closing private crossings, constructing grade separations or installing sound barriers to protect residents from the noise.
 The respondents claim that the Agency cannot deal with whistling under section 95.1 of the CTA, as it is a safety issue that falls under the RSA, which is administered by Transport Canada. However, the Group maintains that whistling should not be considered a safety issue, as it has been proven to be an ineffective safety measure.
 The respondents state that train whistles that are blown along the Marysville Corridor are in no manner meant to be excessive or abusive, but are solely used for safety purposes as required under the Canadian Rail Operating Rules, TC O-0-93 (CROR), which also regulate the volume and whistle type. The respondents contend that section 23 of the RSA sets out the process which must be followed to implement whistle cessation in an area within a municipality.
 In response to Decision No. LET-R-96-2011, the respondents provided further clarification with respect to whistling. The respondents state that on the portion of the railway line along Airport Parkway between Shannonville and the Belleville Yard, there are five crossings where whistling is mandated. The respondents also state that the CROR currently require whistles to be sounded at the three public road crossings (at Elmwood Drive, Mitchell’s Road and Shannonville Road) and Transport Canada requires whistling at the two private crossings at mileages 217.21 and 217.72.
 The respondents state that, as part of the Project, major investments are being made to upgrade the crossing protection with enhanced warning systems at both public and private crossings throughout the Marysville Corridor. This includes the installation of constant warning time devices at public crossings which provide more consistent warning times by reducing the amount of time that signals are activated for slower trains. For the public crossings at Elmwood Drive and Mitchell’s Road, the City of Belleville has agreed to the installation of roadway traffic lights interconnected with railway crossing signals, and has agreed to pursue the elimination of whistling at these two crossings, provided the protection and safety is adequate. For the Shannonville Road public crossing, the respondents provided a letter in which the Township of Tyendinaga expressed its support for CN to advance whistle cessation.
 Although the respondents claim that the elimination of whistling at public crossings is a process that must be led by the municipalities, the respondents are of the opinion that the proposed upgrades will provide the conditions required to allow for future whistle cessation at the three public crossing locations.
 For the two private crossings on Airport Parkway where whistling occurs, Transport Canada has confirmed that the installation of the proposed new restricted crossing warning system will allow whistling to cease immediately at these crossings. Therefore, the respondents anticipate that noise from whistling could be totally eliminated between Shannonville Road and the Belleville Yard, except in emergency situations.
 The Group submits that CN and VIA have not implemented any mitigation measures in the past, which has resulted in excessive noise and vibration from passing trains causing structural damage to their properties and negative impacts on their physical and emotional health. It maintains that noise and vibration will be made worse as the new third track will be closer to residences and rail traffic will increase, yet no mitigation is proposed.
 The respondents state that there is no evidence to suggest that the noise and vibration levels from passing trains are unreasonable, as the Kingston Subdivision is equipped with the highest quality rail and turnouts which are maintained to a high standard. Also, the third track is being constructed to improve operational efficiencies to allow CN and VIA trains to pass each other faster and more safely and mitigative measures have been included as part of the Project. The respondents further assert that, as stated in Decision No. 221-R-2010, the Agency must balance the interests of the parties. The respondents also rely on Decision No. 454-R-2008 which held that the Agency’s role is to ensure that the railway company is limiting vibration and noise to a reasonable level.
 The Group indicates that locomotives stop and idle along the corridor, blocking crossings. Also, the Group states that CN crews change in non-designated areas, which results in excessive noise and vibration. The Group recommends that crew changes in residential areas be stopped. It adds that trains are too long (exceeding 12,000 ft) which prevents eastbound crews from changing in the existing Belleville Yard, and recommends that trains be shortened or prevented from advancing until there is a clear path to the next rail yard or passing track.
 The respondents state that every freight train that passes through the Marysville Corridor stops at Belleville, and that an average of 18 CN crew changes occur daily. Currently, crew changes for westbound trains occur at Belleville Yard, creating no noise issues. On eastbound trains, crews change at mileage 218.60 along Airport Parkway and at mileage 213.45, near Shannonville Road, as these are the only locations that allow trains to stop without blocking crossings. The respondents add that an extended siding being added adjacent to the Belleville Yard will allow for the relocation of the eastbound crew change locations to mileage 218.30 (near Elmwood Drive), which will reduce the number of crew change locations from three to two and reduce the number of residences in proximity to crew change locations.
 In response, the Group argues that the existing CN crew change location at mileage 218.60 blocks a private road and mileage 213.45 is in a heavily populated area. The Group adds that the proposed new location near Elmwood Drive is an even more densely populated residential area, and also expresses concern that CN may continue to change crews at random locations.
 The Group states that maintenance of railway equipment is getting worse – locomotives are in poor condition and there are flat spots on the wheels of every passing train – which causes excessive noise and vibration. Also, the Group argues that the proposed crossing upgrades will introduce new gaps or breaks in the continuously welded rail at each crossing, contributing to the noise as each wheel, eight per car, creates a bang as it passes over each gap. The Group estimates that, with 12 new breaks required for each road crossing upgrade, there will be 144 breaks or gaps over the 4.5-km stretch of track along Airport Parkway. Also, the Group asserts that several new crossovers, which require breaks in the track, are planned for areas near residences as part of the Project.
 The respondents argue that they have detectors in place to identify flat spots on train wheels and when a defect is detected, maintenance is carried out. With respect to the condition of the tracks, they state that the Kingston Subdivision is constructed with high-strength steel rails continuously welded into lengths of a quarter of a mile or more. The respondents indicate that the new third track will also be continuously welded to minimize noise from rail joints (where two tracks connect) and all rail switches (which enable trains to change tracks) will be welded. The respondents also assert that the new crossing protection technology to be used for the private road crossings along Airport Parkway will eliminate the need for insulated joints. The respondents estimate that nine new insulated joints will be added to the railway line adjacent to Airport Parkway, not the 144 estimated by the Group.
Poorly maintained locomotives
 The Group states that locomotives and rail cars are in poor condition, causing excessive noise. It requests that the Agency and/or Transport Canada implement locomotive and rail car inspection programs to ensure that the equipment is properly maintained.
 The respondents assert that their locomotives are regularly maintained, subject to the regulatory standards of the RSA, and are continually replaced.
Switching and shunting of trains
 Although the Group identified switching and shunting trains as a concern, the respondents claim that all switching and shunting activities take place in the Belleville Yard, west of the Marysville Corridor and not in proximity to the residences.
 As noted above, the Group states that “recommended” set-backs of 100 feet (30 m) have not been met. In that regard, the Group refers to, and relies on, the Railway Association of Canada Proximity Guidelines and Best Practices. The Group states that the Guidelines recommend a minimum set back of 30 m of railway lines from residences. The 30 m is to include an earth berm and sound barrier. According to the Group, the requirements were developed to meet safety standards if a derailment were to occur and to mitigate noise levels.
 The respondents do not address this concern directly, but refer to railway operations having been in existence on the corridor for over a century. The respondents also refer to Decision No. 462-R-2010 in which the Agency determined that the proximity of residences to a railway is not, alone, sufficient for the Agency to impose noise-related corrective measures.
Use of megaphones
 The Group also identifies noise from the railway company employees’ use of megaphones as an issue and suggests they be replaced with hip radios.
 The respondents claim that this use is required for safety reasons for workers on the right of way. However, the respondents confirm that they are aware of this concern and now require employees and contractors for the construction project to limit the use of radio loudspeakers at night, and they have provided a contact number to report any complaints.
Noise and vibration assessments
 Mr. Milne presented results of noise measurements that were taken in 2004 at his residence, on Mitchell’s Road. He indicates that maximum noise levels from trains were at 116 dBA (A-weighted measurements of decibels) at his outdoor living area and 113 dBA inside his living room with the window open. He indicates that the current noise levels greatly exceed guidelines and are at levels harmful to hearing over an extended period. He also claims that the railway line at his property is the busiest in Canada and that noise levels will increase with the addition of a third track.
 The respondents submit that no information on the methodology Mr. Milne used to support these noise measurements was provided.
 The Group refers to the World Health Organization’s Guidelines for Community Noise, edited by Birgitta Berglund and Thomas Lindval, April 1999 (WHO) and a number of other policies and guidelines which the Group indicates support its position that the existing noise and vibration levels are unreasonable. Also, the Group raised the issue that the peak sound level measured in the VIA Rail Service Expansion Screening-Level Sound and Vibration Assessment prepared by Stantec, dated February 12, 2010, (VIA Report) exceeds 124 dB. With respect to vibration, the Group maintains that, following the construction of the third track, some homes will be within 25 m of the railway track, which will provide vibration levels greater than the ISO criteria (ISO-2631, Evaluation of human exposure to whole-body vibration, Part 2: Continuous and shock-induced vibrations in buildings (1 to 80 Hz), 1989), with no isolation measures proposed.
The VIA Report
 As noted above, the Group refers to the VIA Report which was provided by the respondents. The VIA Report is a study that was conducted to assess the potential change in noise and vibration levels resulting from the construction of the third mainline track between Montréal and Toronto and VIA service expansion.
 With respect to noise, the VIA Report focuses on the impacts over different set-back distances from the railway tracks, rather than on specific receptors. Health Canada’s Draft Fact Sheet for Noise, 2005 (Health Canada) states that if day-night sound levels exceed 75 dBA or the percentage increase of “highly annoyed” (HA) receptors is greater than 6.5 percent, consideration of appropriate mitigation is required.
 The VIA Report indicates that, following construction of the third track, the estimated operational sound levels will mostly be below the 75 dBA criterion. The VIA Report also indicates that the anticipated levels are based on maximum train volumes – conditions not expected to occur often. The VIA Report concludes that the results of the noise monitoring suggest that, under actual operating conditions, the railway noise should not exceed the Health Canada noise criterion at any residence.
 In determining the effects of the Project, the VIA Report considered the current (baseline) and projected operations following Project completion and predicts that the increase in the level of noise will be imperceptible to humans and the increase in HA receptors will be below the Health Canada criterion of 6.5 percent.
 The Group alleges that there are flaws in the VIA Report, including the omission of whistling noise, the specific impact on certain homes, implications associated with gaps in the track, train volume/length and locomotive engine location and recommendations have not been followed. The respondents indicate that whistling was included in the raw data and the overall average, but it was not assessed independently due to its nature (irregular, short duration) and because horns are a mandated safety requirement. The respondents maintain that the VIA Report was not meant to provide a final, definitive statement on noise and vibration from the operation of the third track and that the issues raised by the Group, in conjunction with the VIA Report, have all been addressed in the respondents’ submissions.
 With respect to vibration, it is claimed in the VIA Report that the effects of vibration are very site-specific as they are affected by a number of factors which could, in some cases, result in perceptible vibration as far as 250 m from the railway track. For example, the VIA Report notes that, generally, vibrations from freight trains would be perceivable for residences up to 92 m from the track, whereas vibration from passenger trains would be perceivable up to 55 m from the track.
 It is further claimed in the VIA Report that although slight increases in vibration may be perceptible for residences in areas where the new passing track will be constructed closer to residences, the addition of eight passenger trains on existing track is not expected to result in a noticeable change in the vibration levels. Also, it is indicated in the VIA Report that the existing vibration levels were below the criteria used to assess building damage and the magnitude of the increases is not expected to warrant any additional mitigation.
Analysis and findings
 Section 95.1 of the CTA imposes an obligation on railway companies, when constructing or operating a railway, to cause only such noise and vibration as is reasonable, taking into account:
- its obligations under sections 113 and 114, if applicable;
- its operational requirements; and
- the area where the construction or operation takes place.
 Section 95.3 of the CTA provides that, on receipt of a complaint made by any person that a railway company is not complying with section 95.1, the Agency may order the railway company to undertake any changes in its railway construction or operation that the Agency considers reasonable to ensure compliance with that section.
 In accordance with the Noise and Vibration Guidelines, the Agency considers a number of elements when determining whether a railway company has caused only such noise or vibration as is reasonable. These elements, in addition to those set out in section 95.1 of the CTA, include:
- railway operations in the affected area, including any relevant changes;
- the characteristics and magnitude of the noise or vibration;
- 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 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.
Noise from train whistling
 Train whistling is the number one concern raised by the Group. Whistles from freight and passenger trains are sounded day and night at crossings along the Marysville Corridor. The Agency agrees that with an average of 42 trains daily, and a proposed addition of eight VIA trains per day, the noise from train whistling can be substantial, particularly along the railway line between Shannonville Road and the Belleville Yard where whistles currently sound at five different crossings.
 Train whistles that are blown for safety reasons to warn of a train’s passage are a legal requirement of the CROR, administered by Transport Canada. In this case, the Agency finds no evidence that there is any abuse in whistle blowing or that whistles are being sounded for anything other than safety reasons.
 Where municipal governments seek to eliminate train whistles, they must work with the railway company and follow Transport Canada’s guideline entitled Procedure and Conditions for Eliminating Whistling at Public Crossings. To that end, the Agency notes that, as part of the Project, the respondents plan to upgrade crossing protection to eliminate whistling at two of the private crossings, and are working with the City of Belleville and the Township of Tyendinaga to have whistles eliminated at three public crossings once safety enhancements have been completed.
 The Agency agrees with the respondents that there will be a noticeable improvement to the overall sound environment if train whistling is reduced or eliminated. The Agency has tabulated the locations for each member of the Group and found that over 75 percent reside on Airport Parkway, Elmwood Drive and Shannonville Road – all locations that would be positively affected by the proposed whistling cessation.
 Therefore, as the respondents have indicated that noise from whistling is to be totally eliminated for all road crossings between Shannonville Road and the Belleville Yard with the safety upgrades incorporated as part of the Project, and as the evidence on record indicates that the respondents are complying with their legal operations under the RSA, the Agency is satisfied that the respondents have done what they can to reduce noise from whistling. For these reasons, the Agency is satisfied that noise from whistling along the Marysville Corridor is reasonable taking into account the railway companies’ operational requirements in accordance with paragraph 95.1(b) of the CTA.
 Although the Group has expressed concern that whistling has recently become worse as a result of the Project, it should be noted that there are additional whistling requirements under the RSA when work is being performed along a railway right of way. The Agency is of the opinion that this whistling, which is related to construction, will diminish with the completion of the work.
Noise and vibration from passing trains
 Pass-by noise and vibration is caused by regular railway operations – from locomotives and wheel/rail interface, particularly when locomotives and railway cars pass over rail joints, cross-overs, breaks and turnouts. Therefore, the concerns identified by the Group relating to wheel/rail interface and poorly maintained locomotives will be considered as pass-by noise.
 The Agency accepts the respondents’ submission that the Kingston Subdivision is constructed of high strength steel rails welded into continuous lengths of a quarter of a mile or more, and that the new track will be constructed of this continuously welded rail with welded turnouts to keep the number of joints to a minimum, all of which help to reduce pass-by noise and vibration.
 The Agency also agrees that locomotives are subject to the regulatory standards of the RSA and accepts the respondents’ submission that the locomotives are regularly maintained and/or replaced and that hot box detectors are in place to identify defective wheels for repair or replacement.
 Concerning the noise measurements provided by Mr. Milne, notwithstanding the challenge made by the respondents as to a lack of information on methodology, the Agency is of the opinion that the measurements can be relied on as indicative that noise levels due to train pass-bys in certain areas of the Marysville Corridor are high.
 With respect to the VIA Report, the Agency notes that the study was conducted to assess the effect of railway operations from the addition of a third track, and subsequent VIA traffic increases on the entire Montréal to Toronto railway line. The Agency is of the opinion that the monitoring data in the VIA Report provides meaningful insight into existing noise and vibration conditions from train pass-bys. The Agency further notes that VIA’s noise monitoring data includes train whistling noise (although not included in the acoustical modelling), which is expected to be reduced.
 Before addressing the substantive issues of whether the respondents are causing and will cause only such noise in the Marysville Corridor as is reasonable taking into account the criteria set out in section 95.1 of the CTA, the Agency has noted and will address solutions proposed by the Group to mitigate railway noise and vibration. In particular, the Group has proposed the installation of noise barriers, reducing the length of trains, reducing train speeds, decreasing rail traffic and shutting down or moving the Marysville Corridor to a less populated area.
 With respect to the Group’s suggestion to install sound barriers or berms along the Marysville Corridor to mitigate the path of the noise from pass-by trains, the Agency notes that the residences are spread out along the Marysville Corridor and are located on both sides of the right of way, at varying distances from the tracks. Most members of the Group live in a semi-rural area in one and two-story homes and farm houses constructed on large lots, and some members of the Group have expressed concerns on visibility at crossings and on drainage. Taking this diverse mix of residential locations and proximity to the railway tracks, and considering the disparate difficulties associated with visibility and drainage, the Agency is not convinced that the installation of sound barriers or berms would be viable along the Marysville Corridor.
 The Agency does recognize that pass-by noise could be significant for the most affected homes that are within 30 m of the railway tracks. However, the Agency does not consider it feasible to construct an effective noise berm at these individual locations as there is not enough physical space between the houses and the tracks to do so. Alternatively, a noise wall could be considered as it takes less space but, for homes with a second floor, the Agency is of the opinion that an extremely high, specially-engineered wall would be required to reduce noise in the most sensitive areas of the homes. Also, a number of factors such as visibility, shadow effects and snow loading would contribute to making this option impractical.
 With respect to reducing train lengths, the Agency finds that there is no supporting evidence in the pleadings to suggest that this would result in a noticeable reduction in the total noise levels. Splitting a given number of rail cars into shorter consists necessarily involves increasing the number of train pass-bys in total. Each discrete train would have the same whistling requirements and would create an additional instance of pass-by noise. As the Group seeks a reduction in overall noise, it is not clear to the Agency why this would be preferable.
 With respect to reducing train speeds, it may well be that freight trains already travel with reduced speeds through the Marysville Corridor as the respondents have indicated that all freight trains movements stop in Belleville for crew changes. However, that is a matter which must be put in the context of the respondents’ passenger and freight activities along the Marysville Corridor and their level of service obligations, where applicable, and operational requirements which are specific criteria for consideration under section 95.1 of the CTA. That is dealt with below.
 With respect to reducing rail traffic, that is also a matter which must be put in the context of the respondents’ passenger and freight activities along the Marysville Corridor and their level of service obligations, where applicable, and operational requirements which are specific criteria for consideration under section 95.1 of the CTA. That too is dealt with below.
 With respect to the suggestion to shut down or move the railway corridor to a less populated area, the Agency, which notes this is a mainline corridor and a central component of CN’s cross-Canada network, considers proposed remedies of such scope not viable and therefore unreasonable. To propose another rail corridor or significant revisions to the Project may alleviate noise and vibration for the members of the Group but, considering the nature of this high-traffic, mainline railway line, would merely expose others who currently do not live, or may have chosen not to live, next to the track, to the same noise and vibration.
 The Group has also suggested that houses be moved or new houses built away from the tracks. The Agency understands that CN and VIA have on their own initiative been buying some properties along the right of way, thereby removing some receptors from the source of the noise. The Agency, however, has no jurisdiction to entertain such measures as, under subsection 95.3(1) of the CTA, the Agency is restricted to ordering the railway company to undertake changes in its railway construction or operation.
 From the other perspective, that of the respondents, the Agency acknowledges that they have identified a number of measures to be implemented as part of the Project which are expected to decrease noise levels in the area and make a noticeable improvement to the overall sound environment for the members of the Group.
 For example, the additional track will be constructed of continuously-welded steel, turnouts will be welded and new technology will be incorporated at road crossings to eliminate the need for insulated joints. Also, with the upgrading of crossing protection to incorporate the third track, conditions will be created to allow for a reduction in train whistling along the Marysville Corridor.
 The Agency also accepts that the primary operational objective of the Project is to eliminate bottlenecks and reduce conflicts between VIA and CN trains, by allowing trains to pass each other in a more efficient manner in this very busy corridor. The Agency is of the opinion that attaining such efficiency may contribute to reducing the duration of pass-by noise and vibration.
 The Agency is aware that railway operations by their nature cause noise and vibration and that freight operations have changed substantially in recent years. The Agency is also aware that although the Marysville Corridor is an established mainline rail corridor which has been used for over 150 years, many residences were established before the railway operations changed and before proximity guidelines for new residences and housing subdivisions existed.
 However, as acknowledged above, the Agency, pursuant to section 95.1 of the CTA, must also take into account the level of service obligations of railway companies, where applicable, as legislated under sections 113 and 114 of the CTA.
 In addition, with respect to the area in which the railway operations are taking place, the Agency concurs with both parties that the railway line in the area of the complaint, the Marysville Corridor, is a busy, high-traffic, mainline route that links major cities in one of the most densely populated areas of Canada. The Agency also acknowledges that the corridor has become an essential link for both passenger and freight traffic and finds that it is a critical part of both CN’s freight network and VIA’s passenger network.
 With such an established corridor, it is logical that an increase in infrastructure and traffic would take place along this mainline railway route and reasonable to conclude that members of the Group were aware that further development in the Marysville Corridor would be a possibility to accommodate the traffic.
 The Agency’s Noise and Vibration Guidelines state that: “Reasonableness 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.” All of this must be read in the context of taking into account the legislative criteria set out in section 95.1 of the CTA.
 The Agency agrees with the Group that the existing noise and vibration levels are high in certain areas of the Marysville Corridor, particularly for residents in closer proximity to the railway operations. However, the Agency, in balancing the noise and vibration concerns of the Group against the criteria set out in section 95.1 of the CTA, finds in this case that more weight must be given to the level of service obligations, where applicable, and operational requirements of the respondents.
 Taking all the above factors into consideration, including the mitigative measures already put in place by the respondents, and putting the Agency’s analysis in the context of section 95.1 of the CTA and the Noise and Vibration Guidelines, the Agency finds that the current noise and vibration from train pass-bys on the Marysville Corridor are reasonable.
 Although it is difficult to anticipate the levels of noise and vibration that will occur following the completion of the Project, in this instance the Agency has the benefit of the VIA Report and can take into account the mitigation measures being implemented by the respondents as part of the Project. The Agency also notes that current noise from the existing use of the Marysville Corridor is already high, although not unreasonable, and the Agency accepts the findings set out in the VIA Report that estimated increased noise levels related to the proposed passenger train increases are predicted to be imperceptible. Also, the Agency accepts that it is reasonable to determine from the VIA Report that the increases in vibration levels are not expected to be noticeable at most receptors.
 Accordingly, having already determined that the current noise and vibration from train pass-bys on the Marysville Corridor are reasonable, and based and relying on the information before the Agency that increased noise and vibration are not expected to be noticeable, the Agency also finds that the anticipated noise and vibration from train pass-bys on the Marysville Corridor following completion of the Project will be reasonable.
Noise and vibration related to crew change operations
 "Idling locomotives" was identified by the Group as the third most important issue, with switching and shunting trains the sixth. As the Group has provided no substantive comments on switching and shunting issues, and the respondents indicate that all switching or shunting activities take place in the Belleville Yard, the Agency concludes that the primary concern of the Group relates to the stopping and idling of trains due to CN crew change operations.
 The Agency considers it relevant that CN has indicated that it is planning to relocate current crew change operations towards Elmwood Drive which, it claims, will improve the sound environment for residences at the existing locations. However, a review of the complaint forms indicates that eight members of the Group live on Elmwood Drive. The Agency is concerned that the noise and vibration issues related to crew change operations at the current location will merely be transferred to the new location. Unfortunately, the Agency does not have before it sufficient information to make a determination with respect to that noise and vibration and the issues on that matter as raised by the Group.
 Pursuant to subsection 27(1) of the CTA, the Agency may make any order that to the Agency seems just and proper. In this instance, the Agency considers it appropriate to make no decision at this time with respect to noise and vibration related to crew change operations, and will continue with its consideration of that aspect of the complaint.
Noise and vibration from train operations other than from crew change operations
 With respect to current noise and vibration from train operations other than from crew change operations in the Marysville Corridor and, based on the information before the Agency, anticipated noise and vibration from train operations other than from crew change operations in the Marysville Corridor following completion of the Project, the Agency finds that the respondents have met and will meet their obligations to cause only such noise and vibration as is reasonable.
 Accordingly, these elements of the complaint are dismissed.
Noise and vibration related to crew change operations
This issue continues to be considered by the Agency and will be the subject of a further decision.