Decision No. 276-R-2011
July 19, 2011
COMPLAINT by Stuart MacLeod pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
File No. R8030/A1/10-1
Introduction and issue
 Stuart MacLeod filed a complaint with the Canadian Transportation Agency (Agency) pursuant to section 95.3 of the Canada Transportation Act (CTA) against the Canadian National Railway Company (CN) regarding noise and vibration caused by its operations located behind Mr. MacLeod's residence and at the crossing of Range Road 220 at mileage 247.45 of CN's Wainwright Subdivision, in the town of Ardrossan, in the province of Alberta.
 The issue to be determined by the Agency is whether CN is complying with 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 local area, with respect to its railway operations behind Mr. MacLeod's residence and at mileage 247.45 of CN's Wainwright Subdivision. If not, the Agency must determine what changes, if any, CN must make to its operations, that are reasonable, to ensure compliance with its noise and vibration obligations.
 The Agency finds that CN is complying with its obligations under section 95.1 of the CTA to cause only such noise and vibration as is reasonable in the circumstances. Therefore, no changes to CN's operations will be ordered.
 CN's Wainwright Subdivision runs through the town of Ardrossan and has been a part of its transcontinental rail network since 1909. It forms part of CN's main line corridor moving traffic between Saskatoon and Edmonton, across Canada to the port of Vancouver.
 CN's Wainwright Subdivision consists of track built with continuously welded rail. Currently, 25 freight train and two passenger train movements are operated over CN's Wainwright Subdivision per day.
 Mr. MacLeod has owned a property adjacent to the railway right of way for 30 years and his residence is located approximately 50 metres from the railway tracks. Mr. MacLeod is complaining about the noise and vibration caused by the passage of trains on CN's Wainwright Subdivision in the town of Ardrossan.
 In his application, Mr. MacLeod contends that CN removed trees which acted as a natural sound barrier and, therefore, has increased noise caused by passing trains in the form of train whistling, idling locomotives, pass-by trains, and wheel/rail interface. Furthermore, Mr. MacLeod contends that the vibration levels created by CN's passing trains have caused structural damage to the foundation of his residence and water well.
 The Agency, in its Decision No. LET-R-56-2011, determined that it required additional information from Mr. MacLeod for Agency staff to complete its analysis of the issues raised by Mr. MacLeod with respect to the foundation of his residence and water well.
 During the pleadings, the Agency solicited comments from Transport Canada with respect to anti-whistling initiatives at the crossing of Range Road 220 at mileage 247.45 of CN's Wainwright Subdivision in the town of Ardrossan, Alberta, but no comments were received.
Positions of the Parties
Removal of trees as a sound barrier
 Mr. MacLeod states that when CN removed trees from its property it killed approximately 80 to 100 trees on his property, thereby removing a natural sound barrier in the process. Furthermore, he states that CN's work caused damage to his fence.
 CN explains that it was required to remove trees from its property in 2009 to comply with government safety requirements. This was communicated by the CN Track Supervisor who met with Mr. MacLeod to explain why the trees were removed.
 CN states that, if CN's work has caused damage to trees and the fence on Mr. MacLeod's property, this matter should be taken up with CN's claims department which investigates such matters and, when warranted, will provide compensation. CN submits that a claim of damages cannot be rightly addressed through a noise and vibration complaint. CN confirms in its pleadings that a representative from its claims department will be in contact with Mr. MacLeod directly.
 With respect to Mr. MacLeod's statement that the loss of trees has resulted in the removal of a natural noise and vibration barrier, CN refers to page 38 of the Canada Mortgage and Housing Corporations (CMHC) guidelines entitled Road and Rail Noise: Effects on Housing, which state: "The noise from railways may be reduced by the presence of any obstruction that interrupts the line of sight between the noise source and the receiving point, except trees and shrubs, which provide very little shielding."
Noise from train whistling
 Mr. MacLeod states that whistling at the crossing of Range Road 220 is the greatest source of noise and that CN trains do not always follow the Canadian Rail Operating Rules () in blowing the whistle.
 Mr. MacLeod further states that the sound decibel reading at the back of his residence reads between 85 to 103 decibels at 150 feet, which is well over an acceptable hearing level and, according to the Canadian Centre for Occupational Health and Safety Act, R.S.C., 1985, c. C-13, constitutes a level which can cause hearing damage.
 CN explains that train whistling is a legal requirement under the developed pursuant to the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.), and is administered by Transport Canada to alert pedestrians and drivers of an approaching train.
 CN has submitted audits of the crossing at Range Road 220, and states that these audits verified that whistling at this crossing is being carried out strictly in compliance with Rule 14(l).
 CN also states that it is aware that whistling is an issue for the residents in proximity to the crossing and it has met with Strathcona County Mayor, Cathy Olesen, and County Commissioner, Robyn Singleton, to answer questions from the County on whistle cessation and CN's operations through the County. CN confirms that it is willing to work with the County in this regard.
 Mr. MacLeod points to idling locomotives as a source of noise.
 CN explains that to the west of Mr. MacLeod's residence is a siding to provide for train meets. Normally the only trains that enter this siding are westbound trains about to enter CN's Greater Edmonton Terminal. In such cases, the locomotives would be at the west end of this siding, the furthest distance from Mr. MacLeod's residence. CN also explains that there is a need, at times, for eastbound trains to wait in the siding for the passage of a westbound train; this, however, is not the preferred choice of operation and is avoided whenever possible. In either case, trains are stopped on the siding for periods of short durations when they are waiting for passing trains to clear the main track.
 CN submits that the idling that takes place at this location is part of normal railway operations.
Pass-by and wheel/rail interface noise
 Mr. MacLeod identifies passing trains as a source of noise and vibration in his complaint.
 CN submits that its Wainwright Subdivision consists of track built with high-strength steel rails welded into continuous lengths often referred to as continuously welded rail (CWR) – a quarter-mile or more in length. CWR reduces the number of rail joints and, therefore, helps minimize the noise associated with rail equipment operating over the joints.
 CN indicates that the equipment and infrastructure are of the highest quality and are maintained to a high level. There is no evidence submitted that would lead to the conclusions that pass-by trains and wheel/rail interface are causing an unreasonable level of noise.
 Mr. MacLeod states that, due to the vibrations caused by the frequency and speed of CN's passing trains, significant damage is occurring to the foundation of his residence and water well.
 Mr. MacLeod indicates that the flow of his water well has decreased from a 5.5 gal/min flow to a 4.2 gal/min flow and has attributed this to the vibration caused by CN's passing trains.
 CN states that Mr. MacLeod has provided no facts or information that could relate the cracks in the foundation of his residence or the alleged leaking of the water well to railway operations.
 CN submits that it would be impossible for rail vibration to cause a rupture to the well casing.
Analysis and Findings
 The CTA was amended in 2007, adding provisions relating to noise and vibration caused by railway companies when constructing and operating railways. Specifically, section 95.1 of the CTA imposes an obligation on railway companies to cause only such noise and vibration as is reasonable in the circumstances. Section 95.3 provides the Agency with the authority to determine whether or not a railway company is complying with this obligation and, if not, to order the railway company to undertake any changes to its railway construction or operations that are reasonable to ensure continued compliance with that company's noise and vibration obligations under section 95.1 of the CTA.
 Railway operations, by their nature, cause noise and vibration. The level of noise and vibration observed will vary based on a number of factors, one significant factor being the physical proximity of the residence to the railway.
 The evidence shows that Mr. MacLeod's residence is located approximately 50 metres from the railway tracks. As such, considering the proximity of his property from CN's tracks, one can expect train operation noise to be heard.
 However, this, alone, is not sufficient for the Agency to impose noise-related corrective measures on CN. Pursuant to section 95.3 of the CTA, the Agency may only order a railway carrier to make changes to its operations if it considers the noise and vibration levels to be not reasonable in the circumstances.
 With respect to the issue of removal of trees located on CN's property, the Agency notes that the trees were on CN's right of way and were the property of CN.
 CN was required to remove the trees for sight line safety compliance as set out in subparagraph 24(e)(i) of the Railway Safety Act.
 With respect to Mr. MacLeod's statement that the loss of trees has resulted in the removal of a natural noise and vibration barrier, the Agency accepts CN's response in referring to the CMHC guidelines entitled Road and Rail Noise: Effects on Housing, which state "The noise from railways may be reduced by the presence of any obstruction that interrupts the line of sight between the noise source and the receiving point, except trees and shrubs, which provide very little shielding."
 The Agency finds that any damages relating to the removal of trees located on Mr. MacLeod's property are outside the scope of this complaint and can be pursued with CN's claim department.
 Mr. MacLeod indicates that there is excessive train whistling at the crossing of Range Road 220. The Agency recognizes that requirements related to whistling are governed by the CROR, which fall under the responsibility of Transport Canada. The CROR provide that trains must whistle at public level crossings that are at grade and where cars and pedestrians cross. Transport Canada's guideline entitled Procedure & Conditions for Eliminating Whistling at Public Crossings sets out the circumstances under which a municipal government may request an exemption from whistling, and the procedure to be followed to obtain such an exemption.
 Mr. MacLeod has not provided the Agency with evidence substantiated by fact that CN is not in compliance with Rule 14(l) of the CROR. CN, on the other hand, has provided the Agency with an audit report carried out from November 20, 2010 to November 23, 2010 with respect to whistling at the crossing in question. This audit report indicates that whistling at this crossing is in compliance with Rule 14(l) of the CROR and that no excessive whistling occurred.
 The Agency notes CN's willingness to work with the County of Strathcona with respect to train whistles at the crossing of Range Road 220.
 With respect to the issues of idling noise, passing trains, and wheel/rail interface, no substantiated qualitative or quantitative data have been submitted by Mr. MacLeod showing the extent of the railway noise that can be heard from Mr. MacLeod's residence.
 The Agency, in its Decision No. LET-R-56-2011, requested further information from Mr. MacLeod with respect to the condition of the foundation of his residence and water well. In this case, the Agency is of the opinion that Mr. MacLeod did not provide information demonstrating causality between CN's operations and damage to the foundation of his residence and water well.
 For these reasons, the Agency finds that there is no evidentiary basis to support Mr. MacLeod's conclusion that the noise and vibration caused by CN's trains operating behind Mr. MacLeod's residence is unreasonable as set out in section 95.1 of the CTA.
 The Agency finds that Mr. MacLeod has failed to show that CN has not met its obligations under section 95.1 of the CTA to cause only such noise and vibration as is reasonable with respect to its operations located behind his residence and at mileage 247.45 of CN's Wainwright Subdivision in the town of Ardrossan, Alberta.
 Therefore, the Agency dismisses the complaint.
- Geoffrey C. Hare
- Raymon J. Kaduck