Decision No. 35-R-2012
COMPLAINT by André Normandeau and Tammy Tymchuk pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
 André Normandeau and Tammy Tymchuk, on behalf of the Noisy Neighbour Group (NNG), filed a noise and vibration complaint with the Canadian Transportation Agency (Agency) pursuant to section 95.3 of the Canada Transportation Act (CTA) against the Canadian Pacific Railway Company (CP), concerning CP’s operations in the Golden West Yard (Yard), in the town of Golden, in the province of British Columbia. The complaint is with respect to noise and vibration from whistling/horns, idling engines, brake testing, shunting/switching activities and squealing wheels.
 The issue to be determined by the Agency is whether CP is 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 operation takes place. If the noise and vibration is determined to be not reasonable, the Agency may order CP to undertake any changes to its operations to ensure compliance with section 95.1 of the CTA.
 The Agency finds that CP has met its obligation to cause only such noise and vibration as is reasonable. Therefore, no changes to CP’s operations at the Yard will be ordered.
1. Who are the parties to the complaint?
Positions of the parties
 CP submits that it is unsure who the complainants are in this matter beyond Mr. Normandeau and Ms. Tymchuk. The complaint refers to NNG and many more affected residents living in close proximity to the Yard, including Ms. Potter, Mr. Graham and Ms. Kriese.
 CP submits that there is no formal documentation to indicate that Mr. Normandeau and Ms. Tymchuk are the legal representatives of the other individuals or that NNG is a legal entity. CP submits that an unincorporated and voluntary association such as NNG has no legal standing to file a complaint. CP therefore submits that the only legal complainants in this proceeding are Mr. Normandeau and Ms. Tymchuk.
 Mr. Normandeau and Ms. Tymchuk state that NNG is composed of themselves, Ms. Potter, Ms. Kriese, Mr. Graham and other complainants. NNG does not specifically address CP’s argument as to NNG being a legal entity.
 NNG has filed petitions of residents in the town of Golden and CSRD Area A of 74 names and another petition of residents in municipal and rural Golden of 120 names. In these petitions, the names of Mr. Normandeau, Ms. Tymchuk, Ms. Potter, Mr. Graham and Ms. Kriese appear.
 Section 95.3 of the CTA provides that a complaint may be made by any person. The Agency’s Guidelines for the Resolution of Complaints over Railway Noise and Vibration (Guidelines) provide that complaints may be filed by individuals, institutions, local groups, or municipalities that consider their level of exposure to railway noise or vibration to be unreasonable.
 Courts and administrative tribunals, particularly municipal boards, have been dealing with issues of voluntary unincorporated associations made up of certain homeowners and formed for specific purposes. The Manitoba Court of Appeal dealt with this exact issue in Ladies of the Sacred Heart of Jesus (Convent of the Sacred Heart) v. Armstrong’s Point Association and Bulgin,  M.J. No. 50, a leading case concerning unincorporated associations of homeowners.
 In Ladies of the Sacred Heart of Jesus, the Court of Appeal stated that only persons known to the law have the necessary status to be parties before judicial bodies and to invoke its process. Unincorporated and unregistered entities are incapable of asserting any position which is maintainable only by a legal entity. At paragraph 25 of the judgment, the Court of Appeal went on and applied this basic principle to the homeowners’ association:
An association such as Armstrong’s Point Association is a mere collection of natural persons who have united or joined themselves together for a special purpose. Such an association has no corporate existence or legal status. It cannot be made a defendant in a Court of Queen’s Bench action if sued in its own name, it cannot be made liable for costs, and it is without status in the present action.
 The Court of Appeal recognized that the association served a useful purpose but when the purpose is to take part in judicial procedures, it has no status. Furthermore, the Court of Appeal stated that the association is not deprived of an opportunity to make its views known because it can appear in a representative capacity, with named individuals as representatives of the association, or it can become incorporated.
 The Agency is of the opinion that for an organization or association such as NNG to have standing before the Agency, its status must be clearly established. In particular, if the organization is incorporated, it must file the relevant corporate documents, including details as to its duly authorized officers. If the organization is not incorporated, it is considered an unincorporated association, where persons have joined together for the purpose of a noise and vibration complaint. In that case, the association must meet the Agency’s evidentiary requirements to demonstrate its representative capacity.
 The Agency has not previously extensively dealt with representational issues in its decisions.
 However, in Decision No. 248-R-2010, Bickley v. CP, the Agency gave standing to Mr. Bickley and ten residents set out in a list. Mr. Bickley did not provide any evidence of the existence of a community association or any other legal entity on behalf of which he was authorized to make representations beyond the ten homeowners. Accordingly, to make its determination, the Agency required information about the residents’ group. Names, contact information and signatures of homeowners confirming Mr. Bickley’s representational authority and acknowledging the binding nature of any Agency decision were provided to the Agency.
 It is indicated in the Agency’s Railway Noise and Vibration Complaint Form that the complainant must indicate the name of the institution, group, business, or municipality, and the authority to represent it as well as specify the nature of the institution, group or business.
 In the event that a complainant is not incorporated or does not provide evidence satisfactory to the Agency of some form of legal association or entity and representative authority for that association or entity, the Agency requires evidence such as:
- If the complaint is filed on behalf of a group, an authorization document from the individuals in the group clearly confirming that the complainant represents the group and stating that any decision with respect to the case applies to all those who are included in the group.
- If the complaint is on behalf of more than one individual complainant, the names, contact information and signatures of all the individual co-complainants or clear representational authority signed by all complainants naming the representative and stating that any decision with respect to the case applies to all those who have signed.
- If the complaint is by only one individual, full contact information.
 All complaints must also clearly identify the specific geographical location(s) of the complainants in relation to the source(s) of the noise and/or vibration.
 NNG, as an organization, has not met the evidentiary requirements listed above. There is no evidence of NNG’s distinct legal status nor any authorization document from the group or individuals in the group clearly confirming that Mr. Normandeau and Ms. Tymchuk represent the group. There is no indication that any decision with respect to the case would apply to all those who are included in the group.
 In addition, no substantive evidence was provided to show that Mr. Normandeau and Ms. Tymchuk represent any other individuals nor stating that any decision with respect to the case applies to such other individuals. Accordingly, Mr. Normandeau and Ms. Tymchuk have not met the test for representational authority with respect to Ms. Potter, Ms. Kriese, Mr. Graham or any other purported affected residents living in close proximity to the Yard.
 Further, Mr. Normandeau and Ms. Tymchuk have provided extensive evidence to support their own noise and vibration complaint, but little or no evidence supporting complaints from Ms. Potter, Ms. Kriese and Mr. Graham. This further supports the Agency’s finding that this complaint is, in effect, a complaint filed by Mr. Normandeau and Ms. Tymchuk on their own behalf.
 Mr. Graham has provided submissions supporting the complainants but states that "(...) it is reasonable to expect that the Graham’s residential location and its tourism business operation, have had their local noise concerns addressed." This clearly indicates that in providing his submissions, Mr. Graham is not filing a complaint.
 Mr. Normandeau and Ms. Tymchuk have also filed petitions. These petitions were prepared in view of asking Golden’s Town Council to ensure that CP engages in a more open public consultative and complaint process in the community. In the petitions, it is stated that it is preferable that CP, the Town and NNG form an advisory panel to deal with the issues rather than going towards a formal complaint process. The petitions were not created for a group of individuals to acquire standing before the Agency. The petitions are therefore not relevant to the noise and vibration complaint before the Agency and therefore will not be considered.
 Therefore, the Agency shall only consider the individual complaint filed by Mr. Normandeau and Ms. Tymchuk (complainants).
2. Have the collaborative measures been exhausted?
 The CTA specifies that before the Agency can investigate a complaint regarding railway noise or vibration, it must be satisfied that the collaborative measures set out in the Guidelines have been exhausted.
 The Guidelines provide that, prior to raising their concerns with a railway company, complainants should consult their municipal government with regard to the railway noise and vibration issues they have. The municipal government may have information and expertise that is pertinent to the resolution of the complaint and may wish to become involved in the discussion with the railway company. To satisfy the collaborative measures requirements of the Guidelines, the following measures must be undertaken: direct communication must be established among the parties, meaningful dialogue must take place, proposed solutions must be assessed and reasonable efforts must be made to resolve the complaint, including facilitation and mediation.
 In this case, there is extensive evidence of collaborative measures attempted by the parties, since 2003, in consultation with the Town of Golden, in the form of the community connect phone line and other e-mail and letter correspondence. In addition, on July 21, 2010, the parties along with the Town of Golden agreed to participate in an Agency mediation process. However, on December 12, 2010, the file was referred back to the Agency for formal adjudication as mediation was unsuccessful.
 The Agency accepts that the collaborative measures were exhausted in this case with an unsatisfactory resolution for the parties.
 The town of Golden has a population of approximately 4,400 people. It is located in the Columbia Valley of BC and has always been a railway hub for CP. Golden was used as a base camp during CP’s construction of its transcontinental railway and after its completion in 1885, Golden became a prominent stop on the line. The town of Golden is strategically located at the point at which the CP Windermere Subdivision joins with the Mountain Subdivision. The Windermere Subdivision is used to haul coal railcars north/south along the Columbia Valley from southern British Columbia. The CP Mountain Subdivision is part of the transcontinental mainline extending from eastern Canada to the Port of Vancouver. All coal shipments destined to the Port of Vancouver connect in Golden, from the Windermere Subdivision to CP’s Mountain Subdivision.
 CP’s Mountain Subdivision through the Rocky Mountains is the busiest point on CP’s network with a total of 32 to 34 trains travelling east/west along it each day. CP must manage its freight to and from the Port of Vancouver through this hub including grain trains, potash trains, intermodal trains and a variety of other freight. The Yard, which is located at the north end of the Windermere Subdivision directly south of the Mountain Subdivision, has a traffic pattern of approximately 10 to 15 trains moving through on a daily basis.
 During the 1970’s when CP made the decision that it required a yard to support the increased coal movements, CP considered a number of locations west of Golden. However, the Town of Golden asked that the Yard be located in Golden due to the many benefits it would bring, such as employment opportunities for the community. CP accepted this request.
 The construction of the Yard took place during the 1980’s on a portion of land adjacent to CP’s Windermere Subdivision located at the outer edge of Golden (southern end). The Yard opened in 1987. To the south and west, the Yard is bordered by low-lying marsh and scrub land, the Columbia River and the continuation of the Columbia River Valley. The major residential and commercial development in Golden lies to the north of the Yard. Approximately one half of the length of the Yard is separated from Golden by Highway 95 which is adjacent to the north boundary of the Yard and is a major 4-lane highway connecting Golden and its environs to Trans-Canada Highway #1. In addition, the Golden Municipal Airport is located adjacent to the Columbia River less than one kilometre north of the Yard.
 The Yard functions at Golden include:
- when the loaded coal trains reach the end of the Windermere Subdivision, CP must add another locomotive to the trains to provide sufficient power to climb over the Mountain and Shuswap Subdivisions. The additional locomotives are staged in the Yard, ready to be added to the incoming coal trains;
- inspection of empty coal cars;
- switch out from unit trains of empty rail cars requiring maintenance and repairs;
- repair of rail cars - the Yard has a car repair/maintenance shop; and,
- marshalling of local freight traffic.
 The complainants’ residence is located outside of the town of Golden city limits, due west of the north end of the Yard. The complainants purchased their property and built a small cabin in 1985 and have made it their permanent residence for the past 12 years. They are located in a rural setting surrounded by undeveloped land. Their property is on a slope at a higher elevation than the Yard. They live 325 meters from the edge of the railway property.
 The complaint is primarily about night-time disturbances from idling engines, whistling/horns, brake testing, excessive shunting activity, vibration and squealing wheel noise emanating from the Yard operations. The complainants state that the noise and vibration have disturbed their sleep, and have had long-term effects on their ability to work, lifestyle and health. They also state that there has been damage/loss of value to their home and property. The complainants report having made a considerable investment in their house in order to mitigate the noise they hear at their residence that results from CP’s rail operations, including the installation of triple glazed windows with an added air space and acoustical glass, sound board material under the stucco, and covering other windows.
 Section 95.1 of the CTA imposes an obligation on railway companies to only cause such noise and vibration as is reasonable taking into account their level of service obligations, their operational requirements and the area where the rail operation takes place.
 According to section 95.3 of the CTA, the Agency, on receipt of a complaint that a railway company is not complying with section 95.1 of the CTA, may order the railway company to undertake any changes to its railway construction or operations that the Agency considers reasonable to ensure compliance with that company’s noise and vibration obligation imposed under that section.
ANALYSIS ON WHETHER NOISE AND VIBRATION ARE REASONABLE
Test on reasonableness of noise and vibration
 The complainants acknowledge the importance of CP to the area. However, they state that excessive noise events that commenced with CP building the Windermere railway diversion and the new Yard adjacent to existing residential areas have negatively affected them. They submit that since the Yard opened in 1987, CP has been using more trains, more powerful locomotives, larger capacity coal cars, and longer trains which have improved CP’s and the coal shippers bottom lines, while Golden bears the increasing noisy burdens of a 24/7 yard operation. The ongoing complaint currently arises from an apparent change in CP’s activities where whistling increased in March 2008 and idling increased in 2009.
 CP submits that the Agency must be alert to the tenets of co-existence and the reality that railway noise is acceptable and legal when it reasonably accords with the prevailing requirements of railway service, operations, safety and locale. CP also submits that the Agency must balance the interests contemplated under the CTA – a balance that permits federal railway companies to operate with attendant noise and vibration at reasonable levels commensurate with service, operating, locale and other constraints.
 As indicated in the Guidelines, the challenge in this type of complaint 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.
 The Agency affirmed this principle in Decision No. 221-R-2010, Antoon Groenestein and Robyn Wiltshire v. Agence métropolitaine de transport:
It is clear from the legislative framework and the national transportation policy contained in section 5 of the CTA that, in exercising its mandate under section 95.3, the Agency must balance the interests of the parties. Railway companies and urban transit authorities, on the one hand, are involved in activities that necessarily cause noise and vibration, and these activities are also required to fulfill their various level of service obligations and operational requirements, and to maintain the "competitive, economic and efficient national transportation system that [...] serve[s] the needs of its users, advance[s] the well-being of Canadians and enable[s] competitiveness and economic growth in both urban and rural areas throughout Canada". However, on the other hand, the interests of communities affected by this noise and vibration must be considered, first, by the railway companies and urban transit authorities in determining how best to perform the activities in order to meet their obligation under section 95.1, and, then, by the Agency in the determination of whether the noise and vibration being caused is reasonable in the circumstances.
 The legal scheme contemplated by the CTA for noise and vibration complaints is similar to the one in nuisance law that is, balancing rights with conflicting claims of landowners. Although the Agency is not strictly bound by the principles in nuisance law, it is of the opinion that the case law generated from courts on such matters is helpful in its analysis of noise and vibration complaints. Moreover, prior to the enactment of the CTA’s noise and vibration provisions, courts were called upon to determine noise nuisances involving railway companies. In Canadian National Railway Co. v. Brocklehurst,  F.C.J. No. 2020, the Federal Court of Appeal recognized the rule to be, where no lands had been taken by a railway company, a person could only advance a complaint through common law actions of nuisance if they alleged that a railway company was making too much noise and vibrations in its day-to-day operations.
 In St. Pierre v. Ontario (Minister of Transportation and Communications),  1 S.C.R. 906, the Supreme Court of Canada at paragraphs 7 and 10 refers to and applies the following "test" and "comprehensive definition" of nuisance set out in John G. Fleming’s The Law of Torts, 4th ed. (Sydney: Law Book Co., 1971):
The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of landowners, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. Reconciliation has to be achieved by compromise, and the basis for adjustment is reasonable user. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two-sided affair. It is viewed not only from the standpoint of the defendant’s convenience, but must also take into account the interest of the surrounding occupiers. It is not enough to ask: Is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?
 In determining whether CP has caused only such noise or vibration as is reasonable, the Agency’s analysis will be helped by considering the principles of nuisance law before balancing the noise and vibration caused to the complainants against the criteria set out in the CTA.
Principle of reasonableness and factors to assess
 The Guidelines provide that the Agency determines what is "reasonable" noise or vibration taking into consideration all of the elements mentioned in the Guidelines and the jurisprudence regarding what is "reasonable". 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 meaning of the word "unreasonable" in relation to an actionable nuisance has been interpreted by the Supreme Court of Canada as "only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes" (see Tock v. St. John’s Metropolitan Area Board,  2 S.C.R. 1181, (Tock). The Supreme Court of Canada further affirms in Tock that interference with tranquility and amenity may be classified as "nuisance ... productive of sensible personal discomfort ... anything that discomposes or injuriously affects the senses or the nerves".
 In St. Lawrence Cement Inc. v. Barrette,  3 S.C.R. 392, at paragraph 77, a case of neighbourhood disturbances related to the operation of a cement plant, the Supreme Court of Canada stated that "(...) [t]he interference must be intolerable to an ordinary person (...)."
 A leading authority in British Columbia on nuisance law is Royal Anne Hotel Co. Ltd. v. Village of Ashcroft,  B.C.J. No. 2068, where a municipal sewer backed-up and caused damage. Justice McIntyre J.A., at paragraph 14, explained unreasonableness in this manner:
What is an unreasonable invasion of an interest in land? All circumstances must, of course, be considered in answering this question. What may be reasonable at one time or place may be completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. It has been said, see McLaren, "Nuisance in Canada", supra, that Canadian Judges have adopted the words of Knight Bruce, V.-C., in Walter v. Selfe (1851), 4 De G. & Sm. 315, [at p. 322], 64 E.R. 849, to the effect that actionability will result from an interference with "the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions". These words were approved by Middleton, J., in the Ontario High Court in Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 at pp. 535-6. (...)[Emphasis added]
 As for Ontario Courts, the judgment made in Walker et al. v. Pioneer Construction Co. (1967) Ltd.,  O.J. No. 2254 (High Court of Justice) stands as a leading authority. The High Court of Justice made the following statement at paragraph 41:
(...) An alleged nuisance of the type with which we are concerned, to be actionable:
... must be such as to be real interference with the comfort or convenience of living according to the standards of the average man ... Moreover, the discomfort must be substantial not merely with reference to the plaintiff; it must be of such a degree that it would be substantial to any person occupying the plaintiff’s premises, irrespective of his position in life, age, or state of health; it must be "an inconvenience materially interfering with the ordinary comfort physically of human existence (...)" (Walter v. Selfe (1851) 4 De G. & Sm. 315, 322).
 In order to assess whether noise and vibration are reasonable, there are factors to be assessed in nuisance law. Time and time again, these factors have been taken into account by many courts (See Tock, with the most recent cases originating from British Columbia (Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City),  B.C.J. No. 1046) and Ontario (Balmain Hotel Group L.P. v. 1547648 Ontario Ltd. (c.o.b. Ménage),  O.J. No. 2280 (QL). These factors are: the severity and nature of the interference, the utility of the defendant’s conduct, the character of the locale and the sensitivity of the plaintiff.
 There are clear similarities within the CTA’s legal scheme: the interference is the noise and vibration, the utility of the conduct can be linked to the railway company’s level of service obligations and operational requirements, and the character of the locale is the area where the operation takes place.
 Within the context of the CTA, but recognizing the value of, and applying, jurisprudence flowing from the law of nuisance, the Agency must first determine the existence of noise and/or vibration which constitute substantial interference with the ordinary comfort or convenience of living according to the standards of the average person (substantial interference). If the Agency finds that the noise and vibration is not causing substantial interference, there is no need to pursue the analysis further. If the Agency does find that the noise and vibration is causing substantial interference, that leads to another level of analysis by the Agency, namely a balancing of the noise and/or vibration against the criteria set out in section 95.1 of the CTA to determine whether, in that context, the noise and/or vibration is reasonable, failing which remedial mitigation measures can be ordered by the Agency.
 CP suggests that Ms. Tymchuk is hypersensitive to any railway noise emanating from the Yard. CP submits that the relevant noise and vibration standard is one that is based upon average reactions. According to CP, it is the average reaction that must guide the Agency in its assessment of the reasonableness or not of the incidence of any given railway operation. In the present case, CP submits that while there is ample evidence of individual reaction, there is very little or no direct evidence of what the average reaction is or was. CP states that the standard employed in determining whether its activity is an unreasonable interference is an objective one.
 CP adds that, based on legal doctrine, the interference caused must be substantial and that it must be beyond inconvenience or something that affects peace of mind.
 CP states that, of the hundreds of residents of Golden who live within a comparable distance to the Yard (approximately within 1000 m), no clear observable complaint has been filed. According to CP, in fact, the opposite is true. CP argues that the record before the Agency shows that officials from Golden and representatives who legally and practically represent the voice of the community all accept the noise and vibration levels as they are.
 Courts have had the opportunity to examine this issue of the relevance of other complaints, or lack of, within the vicinity where the complainants’ residences are located. In Woodman v. Capital (Regional District),  B.C.J. No. 2262 (BCSC), the British Columbia Supreme Court reviewed possible complaints from other citizens who lived or had lived in the immediate vicinity of a facility where noise was allegedly emanating. This was also the case in Walker et al. v. Pioneer Construction Co. (1967) Ltd., O.J. No. 2254, where the Ontario High Court of Justice reviewed "what other occupiers in the vicinity can be expected to bear."
 The Agency is of the opinion that for the assessment against the standards of the average person, comparable residences must be within the same area of exposure, i.e., where the noise and vibration potentially impacts the receptor area. Although Mr. Graham’s residence is in the vicinity of the complainants’ residence, it is at a higher elevation that is set back from sound exposure. As such, it cannot be considered to be an acceptable comparable. In addition, according to the aerial photography submitted by CP, other Golden residents who live within a comparable distance are shielded by nearby buildings and the natural topography, which is not the complainants’ case.
 The Agency therefore finds that the complainants are in a unique situation, due to proximity and topography that may affect their exposure to noise and vibration from CP’s operations which cannot be compared to other residences in the vicinity.
Whether CP has caused noise and vibration which constitutes a substantial interference ?
 In analyzing noise and vibration, the Agency has indicated in its Guidelines that it will consider the following elements:
- 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);
- the relevant noise or vibration measurements or studies conducted in the area affected;
- the presence of ambient noise other than that of railway operations, such as highway noise;
- the impact of the noise or vibration disturbance on the persons affected; and,
- the relevant standards to assess the significance of the effects of noise and vibration levels.
 The Agency is tasked with analyzing the noise and vibration, keeping in mind the elements of the Guidelines, where relevant.
Shunting/switching and squealing wheel noise
Positions of the parties
 The complainants state that shunting and switching operations take place at all times of the day and night and are very disturbing to them. Although they state that this is a big issue, they acknowledge that the switching is now being done on the south side of the Yard and not at night. Additionally, they state that due to the acoustic enhancements they have carried out in their house, shunting noises have been effectively managed.
 CP states that shunting and switching operations take place mainly to switch out from the unit coal trains rail cars requiring maintenance and repairs, as well as marshalling of other local traffic. In August 2008, CP moved its switching operations to the south end of the Yard, farther away from any residences which are located at the north end of the Yard.
 In October 2008, CP also abolished certain night-time operations, including one of its yard assignments, and increased its switching operations during other assigned shifts. Furthermore, CP submits that it limits the coupling speed in the Yard to no more than four miles per hour in an effort to minimize any noise created from slack action or couplings during switching operations.
 Lastly, CP repositioned its rail cars waiting further movement and is now placing them on the outside track on the north end of the Yard so that the rail cars could act as a sound barrier.
 The complainants also mention in their complaint that they are bothered by squealing wheel noise. CP did not comment on this allegation.
 CP has discontinued its night-time switching operations and moved the location so that most of the switching and shunting takes place to the south of the Yard where the noise creates less of an impact on the residents in the community. The Agency further notes that the complainants have also undertaken their own measures to reduce noise through the addition of soundproofing measures in their home, and they admit that shunting and switching noises have been effectively managed.
 The Agency concludes that the noise created by shunting or switching activities does not constitute a substantial interference for the complainants. Accordingly, the Agency finds that no further action need be taken with respect to the shunting and switching activities and it is not necessary to balance such noise against the criteria set out in the CTA.
 As for the squealing wheel noise alleged by the complainants, no evidence was filed by the complainants as to the specific nature, duration or impact of that noise. No assessment can be made by the Agency as to whether the noise exists or whether it constitutes a substantial interference for the complainants. Accordingly, the Agency finds that no further action need be taken with respect to that noise within the context of the CTA.
Whistling/horns, idling trains and brake testing in the Yard
a) Nature, frequency and duration of the noise and vibration and impact on complainants
Positions of the parties
 The complainants describe the nature of the idling noise and vibration and brake testing noise as a constant low rumble which disturbs their quality of life through loss of sleep, having a sense of place, mental distress and poor work performance. They also assert that there are adverse long-term effects on their ability to work, their lifestyle, their health and there has been damage and loss of value to their home and property. The disturbance becomes unreasonable overnight when CP parks the locomotive engines and performs brake tests adjacent to their home. These disturbances are nightly. The staging of coal trains is done directly in front of their house. In order to sleep at night, they have an electric fan running and wear earplugs.
 The complainants also submit that the whistle/horn noise generally comes in the form of single short blasts which appear to have different tones from the whistles blown on trains moving along CP’s main line.
 CP acknowledges that there is no question that its operations at the Yard create noise but that the impugned railway noise and vibration that arises out of these operations is predominantly, if not all, related to the staging of coal traffic which is destined for export and requires timely direct deliveries to vessels at Vancouver. CP submits that during the idling phase of staging for coal train operations through the Rocky Mountains, its locomotives cause low frequency noise and vibration.
 CP describes whistling as a short impulse noise. CP argues that although whistling can occur at any time, the frequency would not be significant, as the number of trains per day is only moderate.
 Both parties provide a similar description of the nature of the noise and vibration. However, the assessment of the impact of that noise and vibration is subjective. This is to be expected as recognized by the Ontario Court of Appeal case Mandrake Management Consultants Ltd. v. Toronto Transit Commission (Ont. C.A.),  O.J. No. 995, relating to subway lines causing noise and vibrations, in which the Court found that "[a]ny assessment of the degree of noise and vibrations must necessarily be a matter of personal impression and personal sensitivity."
 In this case, the complainants have provided evidence in the form of a daily diary covering the period of 2003 to 2010 and extensive e-mails to and from CP. The daily diary shows whistling noise issues from 2003 to 2010 and idling noise issues since 2009. The e-mails cover the period of 2008 to 2010 on the same issues.
 According to the evidence, the whistling is not particularly long but is very loud and awakens the complainants. As for idling, the complainants have provided evidence that the idling goes on for long durations.
 The Agency is satisfied that there was whistling and idling noise on the dates mentioned by the complainants, except where challenged in a few instances by CP.
b) Time the noise and vibration occurs
Positions of the parties
 The complainants have provided extensive subjective evidence that they are upset with idling and whistling noise emanating from the Yard during the night. This includes a log book of calls to CP’s Community Connect Line outlining the times and dates when whistle noise has woken them up during the night as well as extended periods of train idling and air compressor noise, also particularly at night. CP has not challenged this evidence.
 Aerial photography filed by CP identified other noise sources in the area including the local Golden Municipal Airport, Trans-Canada Highway, and Columbia River. CP contends that all of these contribute to the overall ambient background sound environment during the day and night.
 Noise during the night can cause much more disturbances to persons than during the day. In Walker et al. v. Pioneer Construction Co. (1967) Ltd.,  O.J. No. 2254, the High Court of Justice considered night-time activities and early-morning operations separately. The Court stated the following, at paragraph 43:
(...) In complaining of the noise at night and, with greater relevance on the evidence with respect to recent operations, in the early morning, I do not think that the plaintiffs are giving vent to any abnormal sensitivity or delicacy. I do not think that "the law of give and take" obliges them to absorb this interference without some form of redress. The character of the neighbourhood is not such that the defendant can reasonably expect to indulge itself during normal sleeping hours as it does during the balance of the day. Apart from the intermittent noises of a traffic flow, of reduced proportions, during the night and the odd train, the evidence does not indicate any other significant sources of sound or noise in the area during the night and early morning. This comparative stillness is substantially interrupted by the start-up of the asphalt plant, for the most part, at 6 a.m. While it may well be important to the defendant, if its interests alone are looked at, to get an early start, it is unreasonable to expect the plaintiffs to put up with the noise at that time or earlier. In this regard, to refer to the language of Fleming quoted earlier, the defendant is not using its property reasonably having regard to the fact that it has a neighbour.
 The Agency agrees that noise at night can be more disturbing than noise during the day. However, it is important, as noted above, to also consider ambient noise sources. In this case, any impact from ambient noise sources on the complainants is unknown. Although CP has referred to other noise sources, no evidence was filed relating to the levels of ambient noise caused by those sources which would demonstrate the actual impact of that ambient noise relative to the Yard. Accordingly, it is not possible for the Agency to factor in the impact of ambient noise.
c) Location of the complainants’ residence
Positions of the parties
 According to the submissions, the complainants’ residence is located on an elevated slope above the Columbia River in a rural setting surrounded by undeveloped land. CP believes that the noises at the Yard resonate, to some extent, in the Columbia River Valley and indicates that the scope or intensity of this resonance can be a function of weather, time of day and season.
 CP states that a major power line is under construction by B.C. Hydro near the complainants’ property. It will replace the existing line that provides electricity to Golden. A new substation will be constructed in proximity to the complainants’ residence. The construction of the power line is expected to include the removal of vegetation and trees along B.C. Hydro’s corridor which borders the complainants’ property. According to CP, the removal of vegetation noise barriers may further expose the complainants to noise from other sources, including the Yard.
 The Agency recognizes that the impact of noise on an elevated slope and in mountainous regions may cause different noise levels compared to flat terrain. The noise levels may vary due to reduced ground attenuation and metrological conditions specific to mountainous regions. In addition, multiple reflections in the valley may converge at the complainants’ residence. The Agency agrees that the complainants’ residence may be uniquely situated such that exposure to noise may have a greater impact on them than others in the general area.
 The effect on the level of noise emanating from the Yard due to the removal of the vegetation noise barriers in relation to the complainants’ residence has not been provided to the Agency.
d) Level of the noise and vibration
Positions of the parties
 The complainants submitted into evidence the C.P. Rail Special Projects, Golden B.C. Environmental Impact Assessment Wildlife & Acoustical Studies Report (Noise Report) completed by Talisman Land Resource Consultants in 1983. The study was completed prior to the opening of the Yard. This Noise Report provides general guidance on noise levels from individual railway activities and outlines some mitigation strategies.
 Although historic reports or studies can be of assistance in reviewing noise and vibration complaints, the Noise Report does not provide any predicted noise exposure levels due to operations over the day or night, nor does it quantify the attenuation of outdoor sound propagation to inside the complainants dwelling. There is also no information in the Noise Report regarding specific impacts at the complainants’ residence. Accordingly, the Noise Report is of little assistance to the Agency in its review of this complaint.
 The Agency also notes that there were no recent tests conducted by anyone as to the actual decibel levels of the sound of the whistling or idling. Therefore, the Agency has no objective evidence to rely on for the specific level of the noise from railway operations. The complainants are relying on their statements as to the impact of the noise and vibration on their actual living experience, for example lack of sleep, to assert that the level of noise from the CP operations is too high.
 Although complainants can submit any evidence they choose to provide to support their case, relying solely on subjective evidence is challenging for complainants. This difficulty has been noted by the courts. The British Columbia Supreme Court had difficulty in two instances on giving weight to subjective evidence, In Suzuki v. Munroe,  B.C.J. No. 2019, the complainant relied on the testimony of several persons concerning the noise level from an air conditioner. There was no evidence provided concerning the measured sound levels from this or any other air conditioning units in the neighbourhood. The Court gave little weight to the subjective descriptions of noise levels from any witness.
 Similarly, in Gichuru v. York,  B.C.J. No. 463, the case involved a café playing music which disturbed a tenant in the building where bass sounds were emanating from speakers near the common wall and interfered with the complainant’s sleep. The Court provided the following guidance at paragraphs 28 and 29:
Proof of "unreasonableness" must be assessed on a case-specific basis, having due regard to the circumstances. This objective aspect of proof may be met by various means, including the testimony of others who have experienced the same alleged nuisance. The experiences of others may have enhanced objectivity if they are disinterested third parties. Even if they are not, such evidence may serve to confirm the plaintiff’s experience and, thus, satisfy the court that the nature and severity of the noise is such that it would not be tolerated by the ordinary occupier.
While nothing precludes the court from being satisfied, in relation to the objective aspect of the alleged nuisance, on the plaintiff’s evidence alone, in most circumstances such proof will be very challenging for a plaintiff who has tendered no evidence other than his or her subjective experience and assessment. [Emphasis added]
 The Agency is in agreement with the statement made by the Court in Gichuru that for complainants to rely solely on their subjective evidence is very challenging to prove that a railway company has caused unreasonable noise and vibration. As opposed to previous Agency decisions where the noise levels were assessed, there is no evidence demonstrating sound exposure levels due to the rail yard operations during the night such as studies, assessments or surveys.
 Nevertheless, this is an exceptional situation and in this case, the Agency finds it unnecessary to make a determination based on objective sound levels. Both parties agree that CP’s railway operations cause noise in the area and there is a long record of correspondence and e-mails between the parties evidencing and confirming the impact of the noise on the complainants.
Agency’s finding on noise
 Based on the information submitted by the complainants on the nature, duration, frequency of noise at night time and impact on the complainants, as well as CP’s own admission that it creates noise from idling, brake testing and whistling, the Agency finds as a fact that CP’s operations at the Yard cause noise and that the noise emanating from the idling locomotives, brake testing prior to departure and whistling is causing substantial interference for the complainants.
Agency’s finding on vibration
 As for vibration, there is very little evidence submitted by the complainants. The complainants refer to some vibrations in a few e-mails (April 18, 2010 (constant rumbling/vibration); May 8, 2010 (awoken by this constant vibration/thumping ... rumble from old engine/airplant); May 31, 2010 (vibration from old engines) and CP admits that idling locomotives do create vibration. However, there is not enough evidence to find that any ground movements (ground-borne vibration) is of such a nature as to constitute substantial interference for the complainants. Alternatively, the Agency recognizes that low frequency noise can result in airborne noise induced vibration in lightweight elements of a building structure. Therefore, it may be reasonable for the Agency to conclude that the structural vibrations claimed by the complainants may be a result of the low frequency airborne noise, even if not due to ground-borne vibration generated from the Yard.
 Accordingly, no order will be issued with respect to the vibration component of the complaint and the low frequency airborne noise, which may be causing vibration, will be dealt with in this Decision in the context of the complainants’ noise complaint.
Complainants’ request for a noise assessment
Positions of the parties
 The complainants request that the Agency determine that noise testing and assessment be conducted, including determining if there are impacts of low frequency noise issues at the complainants’ residence. They state that acoustical studies should be revisited at this time due to the increased rail traffic. The complainants have also requested, for the same reason, that air pollution studies should be revisited.
 CP confirms that no acoustical studies have been undertaken and it does not challenge that its operations cause noise related to idling, brake testing and whistling. However, CP submits that the "actual noise metric" is not critical in this case as the facts show that CP is acting reasonably and it has undertaken all possible mitigation measures in the area.
 Under the CTA, the Agency may appoint experts or persons who have technical or special knowledge to assist the Agency in an advisory capacity in respect of any matter before the Agency. Accordingly, the Agency has discretion in ordering that a noise and vibration assessment be conducted.
 In R. v. Mohan,  S.C.J. No. 36, the Supreme Court of Canada determined that admission of expert evidence depends on the application of the following criteria: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert. For the purposes of the complainants’ request, only the first two criteria are applicable in this matter.
 Relevance is a matter to be decided by the Agency. As stated by the Supreme Court of Canada in R. v. Mohan, this inquiry may be described as a cost benefit analysis on whether the value of appointing an expert is worth what it costs. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the process. The Supreme Court of Canada states that evidence otherwise logically relevant may be excluded on the basis that its probative value is overborne by its prejudicial effect, that it involves an inordinate amount of time which is not commensurate with its value or it is misleading in the sense that its effect on the trier of fact is out of proportion to its reliability.
 Resorting to expert assistance will not always be needed because the additional expenses and delays will only be justified when such assistance is necessary, not when it is merely helpful. As the Supreme Court of Canada made clear in R. v. Mohan, helpfulness sets too strict a standard. What is required is that the opinion be necessary in the sense that it provides information which is likely to be outside the experience and knowledge of the Agency. The expert evidence must be necessary to enable the Agency to appreciate the matters in issue due to their technical nature. The input of one or more experts is only appropriate when the "subject-matter of the inquiry [is] such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge."
 By appointing an expert, the expert may be perceived as having more influence or credibility with the Agency than experts presented by the parties. The Agency accepts the British Columbia Supreme Court’s reasoning in Hiebert v. Hiebert,  B.C.J. No. 302, where the Court stated that litigation is an adversarial process and too early or too wide a use of Agency-appointed experts could direct the process toward an inquisitorial one. Parties should first exhaust reasonable and conventional approaches to the gathering of evidence, which was not done in this case.
 CP does not challenge that it is making noise related to idling, brake testing and whistling. The Agency finds that although a noise assessment could be relevant and helpful to determine the level of the noise from railway operations, such an assessment would not add any probative value for the Agency in this case, with respect to a determination that the complainants have experienced substantial interference.
 The Agency is also of the opinion that, in this case, a further determination within the context of the criteria set out in the CTA on the reasonableness of the noise at the complainants’ residence can be made without conducting a noise assessment study. Accordingly, the Agency will not require that a noise assessment be conducted.
 With respect to the revisiting of air pollution studies, air pollution does not fall within the noise and vibration criteria of the CTA and, in the context of this complaint, is not a matter that the Agency is empowered to address.
Reasonableness of the noise in the context of the CTA
 Having determined that the operations at the Yard do in fact create noise, the Agency must also determine whether that noise is reasonable. Paragraph 95.1(c) of the CTA provides that when operating a railway, a railway company shall 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 operation takes place.
 A railway company’s operational requirements include not only those operations necessary to effectively run a railway but also any statutory or legal obligations under other legislation such as the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.)(RSA).
 There is reference in the pleadings by the parties to the terms "whistling" and "horns". The parties make no distinction between the two terms. Accordingly, for the purposes of this Decision, the Agency deems the term "whistling" to include "horns" and vice versa.
Positions of the parties
 The complainants provided a daily diary and e-mails showing that complaints about whistling during the night time started sporadically in 2004 and continue to present day. This diary suggests that whistling has particularly increased since March 2008. The complainants request that whistling stop during the night.
 The complainants have also provided correspondence from CP which suggests that CP is not carrying out its whistling obligations in accordance with its internal operating policies. In response to the complainants query on whether CP could use bells that are not as intrusive as horns, CP responded that it had "(…) a tendency to agree and our updated policy requests that the bell be used first and if not successful then the use of the horn is required." CP also states that: "However the TC rules state that the horn must be used, we can champion the use of the bell first, which we will continue to do, however if a locomotive engineer feels that the horn must be for any situation where people or animals are on or near the right of way then TC [CROC Rules] gives him that right and the full protection of the law to do so. (…)"
 CP states that it must abide by the Canadian Rail Operating Rules (CROR) and whistle with respect to:
- Public crossings: CP noted that as a result of a fatal accident in 1997, Transport Canada reinstated the requirement for train crews to sound the whistle at a level crossing at mileage 35.00 of the Mountain Subdivision. Following a meeting with the Town of Golden, and a reduction of trespassing incidents near the crossing, CP worked with Transport Canada to ensure the safety requirements were in place to enable the removal of the Whistle Order and eliminate the whistling at this crossing. The Whistle Order was removed and train crews no longer sound the whistle at this crossing.
- Warnings: there is a significant amount of wildlife in the area and crews have to sound the whistle for wildlife. Furthermore, there are issues of trespassing and anytime someone is on or near the track, the crew must sound the whistle. For example, in December of 2008, CP personnel noted that there were a lot of animal (deer) and human tracks in the snow on the north end of the Yard. Whistles are required to be sounded to warn people and animals of the impending danger of an oncoming train.
- Safety tests: If an engine has been sitting for eight hours or more, the crew coming on board must make sure all safety appliances are in working order. Part of that is whistling. CP also stated that whistles are activated on the shop/diesel tracks for a safety inspection of locomotives which is required by Transport Canada. CP states that this requirement cannot be changed. In October 2008, in response to complaints, CP implemented a change to the location where whistles can be tested and CP still meets the CROR regulations. Such test now takes place at the far northern end of the Yard at mileage 144.00 Windermere Subdivision. When crews take charge of a train, they are required to pull forward to mileage 144.00 before testing the whistle.
 As noted above, CP has advised that there is a whistling exemption at the level crossing at mileage 35.00 of the Mountain Subdivision and, as such, there is no whistling at that crossing. Accordingly, there is no issue to be determined with respect to whistling on the public crossing in this case.
 Furthermore, the Agency recognizes that changing the location of the safety tests for whistling to the far northern end of the Yard at mileage 144.00 of the Windermere Subdivision has resulted in a greater distance between the noise source and the complainants’ residence. CP also has an internal policy that requests that bells be used as a first warning signal and if that is unsuccessful, the whistles are to be sounded. The Agency recognizes that bells are not as loud or intrusive as whistles. The Agency accepts that these two measures reduce the impact of whistle noise on the complainants.
 Apart from these mitigation measures, CP argues that whistling is an operational requirement for safety and warning purposes and that whistle tests are also required safety measures. This raises two related issues. First, a railway company’s "operational requirements" is one of the factors the Agency must consider when determining, pursuant to section 95.1 of the CTA, whether a railway company has only caused such noise as is reasonable. Second, if whistling noise is causing substantial interference to the complainants, to what extent is a railway company considered to have only caused such noise as is reasonable due to the whistling procedures being an "operational requirement"?
 This latter issue is essentially one similar to the statutory defence authority. Case law has been developed by courts in nuisance law on this defence. The Agency finds this case law to be helpful in this matter. The classic statement of the defence was provided by Viscount Dunedin in City of Manchester v. Farnworth,  A.C. 171 (H.L.) at 183:
When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.
 In Tock, the Supreme Court of Canada determined that courts must inquire whether a statute expressly or impliedly authorizes the interference complained of and whether the body concerned has established that the interference is inevitable. The Supreme Court of Canada explained that the body concerned must establish to the satisfaction of the court that "having regard both to the technical knowledge available to the public body concerned, and the limitations of cost, it was demonstrably impossible for it to provide the service without causing a nuisance."
 To do this, the Supreme Court of Canada stated in Ryan v. Victoria (City),  S.C.R. 201, that:
The defendant must negative that there are alternate methods of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. (...)
 Further, it is clear that statutory authority may be conferred by subordinate legislation. In In the Matter of a Reference as to the Validity of Regulations in Relation to Chemicals,  S.C.R. 1, Chief Justice Duff said:
One observation of a general character remains. It is possible that in what has been said above it has not been sufficiently emphasized that every order in council, every regulation, every rule, every order, whether emanating immediately from His Excellency the Governor General in Council or from some subordinate agency, derives its legal force solely from the War Measures Act, or some other Act of Parliament. All such instruments derive their validity from the statute which creates the power, and not from the executive body by which they are made. (The Zamora  2 A.C. 77 at 90 ...)
 This was reaffirmed in Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City),  B.C.J. No. 250.
 In this case, the basis for the defence of statutory authority arises from the RSA. Subsection 23.1(3) of the RSA provides that a whistle may be activated if there is an emergency, if any rules in force under section 19 or 20 require its use, or if a railway safety inspector orders its use where the standard of construction or maintenance of a line of work or railway equipment of a particular railway company poses a threat to safe railway operations.
 Section 19 of the RSA states that the Minister may require a railway company to formulate rules relating to the operation or maintenance of line works and the design construction, alteration, operation and maintenance of railway equipment. For these rules to be in effect, the Minister must be satisfied that the rules are conducive to safe railway operations. Such rules have been issued in the form of the CROR.
 The CROR apply to all railway companies in Canada. The CROR cover all aspects of railway operations for train crews, maintenance of way employees and railway traffic controllers.
 Section 14 of the CROR covers the use of the engine whistle signals and one of the signals is to alarm persons or animals on or near the track. In such a case, the signal to be used is a succession of short sounds.
 As for whistling for safety tests, paragraph 18(1)(a) of the RSA provides that the Governor in Council may make regulations respecting the operation and maintenance of railway equipment. The Minister of Transport, Infrastructure and Communities has made such regulations by enacting the Railway Locomotive Inspection and Safety Rules, TC O-112 (Safety Rules). Section 8.1 of the Safety Rules provides that at locations other than Safety Inspection Locations, where a locomotive is placed in service, or a locomotive layover of more than 8 hours has occurred, the locomotive shall, as a minimum requirement have a pre-departure inspection by either the locomotive operator or other qualified person for the conditions listed in Appendix I. This Appendix provides the following:
As per section 8.1, a pre-departure inspection of locomotive(s) shall be performed by the locomotive operator or other qualified person for the following:
- brake test including the operation of the safety control system;
- hand brake;
- headlights and ditch lights;
- trucks and running gear;
- any other apparent safety hazard likely to cause an accident or casualty.
 Whistle testing falls under paragraph 8.1(e) of the Safety Rules. The engine whistle is a safety-related component which must be tested to avoid accidents or casualties. Indeed, the whistle must be activated when required to ensure the safety of the train crew and the general public. If a whistle were to not function, the cause of an accident could be attributed to the fact that the engine whistle signals were not sounded to warn the roadway users of the arrival of the train.
 In the current case, CP carries out whistling in specific circumstances, including safety testing and warnings. The complainants have submitted evidence of many other incidents of whistling, as well as some responses from CP providing explanations for some of the incidents as to why the whistle signals were sounded. Albeit there have been isolated incidents on CP’s part, such as an engineer hitting the whistle button by error or the whistle signals being sounded on November 11 in remembrance of veterans, the overwhelming evidence provided by the complainants demonstrates that CP is in compliance with Rule 14 of the CROR whistling for persons or animals near the track. As for safety testing, CP is in compliance with section 8.1 of the Safety Rules.
 Although CP issued an internal policy of using a bell in an attempt to reduce the disturbance caused by whistling when used to alert persons and or animals near the track, especially during the night time, this policy does not supersede the CROR.
 The whistling noise is the inevitable result of CP being required under the CROR and the Safety Rules to sound whistles for safety purposes, such as in trespassing situations and for safety tests. Subject to Ministerial direction, CP has no discretion to do otherwise according to the CROR and the Safety Rules.
 Accordingly, the Agency finds that with respect to whistling, CP has met its obligation to cause only such noise as is reasonable taking into account its operational requirements.
Idling locomotives in the Yard used for consists
Positions of the parties
 The complainants submit that idling locomotives near their residence for periods of up to 24 hours a day have been the greatest source of noise disturbance since 2009. The complainants have documented incidents where train engines were left idling all night long, even in the summer months. They complain that locomotives with "smart-start" systems are not always used, or are left idling anyway and locomotives are left constantly idling in the vicinity of their residence.
 CP states that currently the Yard and its operations are state of the art and have been configured with intense and ongoing collaboration with the Town of Golden officials and elected representatives. CP submits that in 2009, as part of these collaborative efforts, it developed a process to have the locomotives in position for attachment to loaded coal trains in a more timely fashion which minimized the time a locomotive is staged on the shorter Z track at the north end of the Yard. Furthermore, CP states that in 2010 it issued a bulletin to park yard locomotives in another area of the Yard rather than at the north end of the Yard.
 Furthermore, CP explains that the Yard has a limited number of long tracks in the south end that constrain operations. Loaded coal unit trains, arriving northbound into the Yard, have an additional pusher locomotive unit added to the head end of the train behind the lead locomotive to provide extra power needed to climb the mountain passes between Golden and Vancouver. The main track leading into the Yard does not offer any options to perform this task other than at the north end of the Yard. The staging area on the north end is a short track where these pusher locomotives are staged close to train time and it is the most efficient process with the least amount of idling time.
 CP states that idling of locomotives is necessary as part of adding power to outbound trains which need this power to traverse the terrain between Golden and Vancouver. However, CP also states that its engine idling and concomitant noise or vibration at the Yard is being kept to an absolute minimum as a result of Yard structural or operational changes, state of the art technologies being used and ongoing internal vigilance.
 CP submits that it has invested heavily in equipping both its road and yard locomotive fleets with anti-idling technology, such as the "smart-start" system and, as of February 2011, 85 percent of its entire locomotive fleet across the CP Canadian network have been equipped with anti-idling technology and that all new locomotives are purchased with such devices already installed. CP also indicates that it has introduced the latest locomotive technology to service coal movements through this Yard. CP uses GE Tier 2 EVO fleet locomotives for its coal service and 100 percent of these locomotives are equipped with the "smart-start" system. However, CP does note that while this technology provides significant benefits, locomotives will not be shut down when the temperature falls below 5 degrees Celsius. CP adds that the use of this technology is based on specific parameters such as engine coolant temperature, air brake cylinder pressure, battery voltage and charging amperage, as well as ambient air temperature. CP explains that locomotives do not use anti-freeze and as such will not start in cold weather. More importantly, if the water that is used as a coolant freezes, the engine will crack. CP explains that although these locomotives shut down after ten minutes of constant idling they will restart themselves when the above noted parameters are not met.
 The complainants further state that the "smart-start" system only works three months of the year and that is only when CP uses it. They add that there were many occasions when locomotives were left idling all night long in the summer.
 CP states that it is inaccurate to say that the "smart-start" system only works for three months. These systems automatically shut down the locomotives during the months where temperatures are above 5 degrees Celsius. CP submits that the impact of the "smart-start" technology reduces idling times by 80 percent.
 In response to an Agency question on whether the idling locomotives positioned at the north end of the Yard can be moved to the south end of the Yard, CP states that it has worked closely with the mayor, town council and community in Golden and agreed in 2008 to move its switching operations to the south end of the Yard, farther away from residences which are located at the north end of the Yard. CP argues that considering the relocation of switching operations was implemented to address the larger community concerns, CP cannot not now reverse what has been done and move its locomotive activity to the south end of the Yard which would mean reinstating switching operations closer to the residential areas in the north.
 The Agency must determine whether idling noise from parked locomotives at the north end of the Yard for attachment to loaded coal trains is reasonable taking into account CP’s level of service obligations, its operational requirements and the area where the operations take place. The idling locomotives used for consists is primarily an issue of CP’s level of service obligations. There is also an issue in relation to CP’s operational requirements.
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 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.
 As stated in Decision No. 323-R-2002, Naber Seed and Grain Co. Ltd., v. The Canadian National Railway Company, the Agency found that it is not acceptable for a railway company to limit itself to providing basic transportation from point A to point B without having regular and systemic interaction with the other elements of an export and logistics chain in order to improve the efficiency of the entire handling system. Therefore, in this case, the Agency must consider the operating obligations at both the point of loading and the point of unloading of this coal traffic.
 Through documents submitted by CP in respect of the transportation of coal, the Agency has a clear understanding of the requirement for the Yard in support of the transportation of coal. CP submits that the development of new open-pit coal mines in Southern BC during the 1970’s led to the need for a yard to support the transportation of this coal to the Port of Vancouver. CP states that the Yard was constructed specifically for supporting in the transportation of Teck’s coal. Since that time, coal production in southern British Columbia has grown significantly.
 There is no doubt that CP’s operations are essential to Teck, even though they cause disruption to the complainants. Teck is the world’s second largest exporter of seaborne hard coking coal, a major exporter and contributor to the Canadian economy. The sale of metallurgical coal (used in the steel making process) is one of the most important exports in Canada. According to CP, Teck currently operates five mines in southern British Columbia: Fording River, Greenhills, Line Creek, Elkview and Coal Mountain. The coal is extracted from these open-pit mines 24 hours per day, seven days per week (24/7). Most of the coal then has to be shipped 1,100 kilometres to Westshore Terminals (Westshore) at Roberts Bank, south of Vancouver or to Neptune Terminals at Burrard Inlet, Vancouver where it is unloaded from CP and loaded onto ships for international export.
 Of the 28 million tonnes of coal exported by Canada annually, Westshore handles over 20 million tonnes at its two deep sea berths which operate 24/7. Recent capital project upgrades at Westshore will allow for increased handling capacity of up to 29 million tonnes annually. This has been achieved through long-term supplier relationships with major coal mining companies in western Canada, including Teck. It is further supported by dedicated rail service provided by CP, CN and BNSF.
 CP is the only rail service provider in the area of Teck’s mining operation, and as a result, Teck’s rail traffic is shipped by CP through the Golden Yard. CP states that Teck’s coal is currently loaded onto unit trains of approximately 124 rail cars. On average, CP operates 12 coal trains per day (six loaded and six empty). CP submits that at the Golden Yard, it must fit the coal trains into available slots on the Mountain Subdivision between approximately 20 other types of trains on the network which it states is challenging as CP’s Mountain Subdivision through the Rocky Mountains is the busiest point on CP’s network.
 As the coal trains are often targeted to specific ships waiting at port, specifically Westshore, CP submits that the operating commitments associated with this coal traffic demand that CP operates on a 24/7 schedule.
 CP further submits that as part of its contractual agreements at port, it must continually keep the coal trains moving from Teck’s mines to the terminals at the Port of Vancouver, and that any transportation delays enroute will jeopardize its ability to meet agreed upon commercial and logistical arrangements.
 CP states that, notwithstanding that pursuant to section 113 and 114 of the CTA, it is legally obliged to carry Teck’s freight, "the critical importance of this [the operations] cannot be overstated. Teck is CP’s single largest freight customer, accounting of upwards of 25% of CP’s gross operating revenues. To reinforce this operation and financial importance, CP and Teck have recently announced a 10-year agreement to transport Teck’s coal to Vancouver." Furthermore, the Agency notes that in the news release submitted by CP announcing the agreement, Teck states that, "this agreement gives Teck the certainty we need to realize our growth strategy in coal and to deliver our increased production on a timely basis to our key markets."
 As a result, the Agency is of the opinion that CP has an obligation to provide rail service to transport Teck’s coal and this obligation requires that the operations undertaken at the Yard are done so on a continuous 24/7 basis in order to coincide with operations of coal production as well as the loading at port terminals.
 The Agency considers it in the interest of the coal industry and the economic strength of the country that CP maintain its level of service to ensure that it continues to provide an efficient transportation service to Teck.
 In balancing the substantial interference caused to the complainants against the requirement for CP to fulfill its level of service obligations to Teck, the Agency finds that CP’s interest prevails. This finding takes into account the national transportation policy set out in section 5 of the CTA in which the Agency is mandated to maintain a competitive, economic and efficient national transportation system. Teck is a major contributor to the Canadian economy and CP’s level of service obligations justify the need for and the positioning of idling locomotives within the Yard on a 24/7 basis to be able to supplement consists to traverse the Mountain and Shuswap Subdivisions. In addition, the Agency acknowledges and accepts that CP has taken steps to mitigate the noise from the idling locomotives.
 Accordingly, taking into account and accepting the level of service obligations imposed on CP in this case, and applying the criteria set out in paragraph 95.1(a) of the CTA, the Agency finds that with respect to idling locomotives used for consists, CP has cause only such noise as is reasonable.
CP’s operational requirements
 The Agency recognizes that each loaded unit coal train requires an extra locomotive to be added in the Yard in order to traverse the mountainous terrain between Golden and Vancouver. The configuration of the Yard tracks and other Yard activities limit the possible locations for an extra locomotive to be added. The main track leading into the Yard and the limited number of long tracks at the south end of the Yard used for switching operations cannot be blocked by locomotives waiting to be staged. The short Z track at the north end of the Yard was designed for the efficient addition of an extra locomotive for consists with the least amount of overall idling time.
 The Agency therefore finds that staging and idling locomotives at the north end of the Yard to add additional locomotive power to consists is an operational requirement of CP.
 The Agency also recognizes that CP has minimized the time that locomotives are left idling by implementing Yard structural and operational changes, such as using a timely delivery of locomotives to the Z track, as well as the use of state of the art technologies, in particular the "smart-start" system.
 With respect to the latter, namely the use of the "smart-start" system, the parties have filed, to some extent, contradictory evidence.
 CP states that 100 percent of its locomotive fleet used in the export coal service is equipped with "smart-start" anti-idling technology. The complainants challenge CP by stating that the "smart-start" system only works three months of the year and that CP only uses it during that period. CP explains that locomotives cannot be shut down when certain conditions, including air temperature, coolant temperature, battery-charge and brake pressure, are not met. However, CP also explains that the locomotives are equipped with the "smart-start" sensors which allow the locomotives to be shut down and only restart the locomotives should the conditions not be met. CP argues that idling is reduced through the use of the "smart-start" system, but the complainants cannot expect it to be eliminated entirely.
 The Agency accepts CP’s explanation of the "smart-start" system and agrees that if CP is applying the "smart-start" system, idling locomotives for consists should be reduced significantly.
 The Agency also recognizes that CP is using technology and policies which should reduce the noise caused by idling locomotives. Consistent with a similar finding in Decision No. 454-R-2008, Chantal Roger v. CP, the Agency is satisfied that CP has committed itself to carrying out mitigation measures which might otherwise be considered necessary by the Agency.
 On a final note, in Decision No. 221-R-2010, Antoon Groenestein and Robyn Wiltshire v. Agence métropolitaine de transport, the Agency examined the railway companies’ interests and the complainants’ interests as well as the interests of the community. The Agency should therefore, in assessing the specific issues related to noise and vibration complains, also consider overall community concerns where appropriate. In this instance, with respect to the idling of locomotives used for consists, this involves balancing the interests of the complainants and the interests of the community of Golden.
 In balancing those interests, the Agency finds that the community’s interests prevail. CP has persuasively argued that it would be unreasonable to move the staging of locomotives for consists to another location to the south, which would be farther away from the complainants but result in reinstating switching operations closer to other residential areas of Golden to the north. This could cause increased noise for other residents of the broader community of Golden and revive concerns which had been resolved in 2008.
 Accordingly, considering and accepting the operational requirements imposed on CP in this case, including that the configuration of tracks in the Yard limits the location of locomotives used for consists, and considering the criterion set out in paragraph 95.1(b) of the CTA, the Agency finds that the noise caused in the Yard by idling locomotives used for consists is reasonable.
Idling locomotives in the Yard used for brake testing
Positions of the parties
 The complainants refer to the idling of engines used for brake line testing as one of the main factors of their noise complaint. The complainants state that idling engines parked in front of their home produce a low frequency noise for extended periods. They state that an underground air supply line previously used for brake testing broke in the first winter of operations and, instead of fixing it, CP now uses two older yard engines as their air plant to perform brake tests. The complainants assert that these old engines never shut down and they pollute and, being located right in front of their residence, are very loud. The complainants would like to see the air compressor supply line repaired and the idling engines moved from in front of their house. Pending that permanent solution, the complainants state that CP should move these engines further south so they are not directly in front of their house or that CP should get newer engines for yard work.
 CP states that there are two types of brake tests that occur in the Yard. One type is where locomotives are used to test the brake lines of a train prior to its departure. The second type occurs as part of CP’s repair shop activities, which is located in the south west corner of the Yard. CP confirms that the Yard plumbing for the repair shop test plant originally came from an air compressor. However, leakage throughout the Yard became chronic as the pipes shifted underground due to soil and moisture frost heave. CP ultimately discontinued use of the inground compression source and removed the compressor from the Yard years ago. CP also argues that this particular repair testing is standard industry practice and is only used on an ad hoc basis. CP views this repair testing as an insignificant part of what the complainants view as chronic unit idling.
 In correspondence between CP and the complainants related to the larger issue of brake line testing for departing trains, CP confirms that a yard engine is used as an air plant for a brake test on a cut of cars and then used to move that cut of cars to another location. CP states that this constitutes regular operations and it has not changed from when the Yard was opened. The complainants were told by CP that, where possible, the cut of cars would be pushed as far south as possible in order to increase the distance from their residence.
 CP states that as business increases so does the requirement for mechanical work, and with the intent of efficient operations, the locomotives are strategically placed in the north section of the Yard to allow for the use of the locomotive air compressor as an air plant. This allows for the efficient completion of the necessary mechanical inspections and brake line testing before trains are ordered to depart from the Yard.
 With respect to the reference to "old engines", CP maintains that this statement is misleading and not pertinent to noise mitigation issues as far as idling goes. Locomotives are built to have an operating life of 40 to 60 years and yard engines are completely overhauled every 10 years, rendering the age of the locomotive to have no correlation to its idling noise. CP adds that there can be up to four yard engines operating in the Yard at any given time.
 Furthermore, CP states that the SD40 locomotives that it uses for Yard operations are equipped with the same "smart-start" system as used on locomotive consists. The SD40 locomotives are programmed to shut down after 20 minutes of idling time. CP states that if the criteria, including air temperature, coolant temperature, battery charge and brake pressure, are not met, the locomotives will restart themselves.
 In addition, for any locomotives that are not equipped with "smart-start" technology, CP has a Manual Shut-Down Policy which requires that the locomotives be shut down when the same conditions are met. CP submits that this policy is internally audited and that it is at 90 percent conformity.
 CP submits that it researched some of the more recent submissions from the complainants asserting non use of the "smart-start" system and found that the ambient air temperature was, in all cases, below 5 degrees Celsius and, as such, the "smart-start" system could not be applied. CP submits that the complainants’ issue appears to be that the "smart-start" technology has not reached a point that it will operate in the extreme weather conditions found in the Rocky Mountains during the winter season.
 CP states that, not only has it invested in new technology, where possible, noise can be reduced through exploration of more efficient ways of meeting regulatory requirements. CP indicates that it recently began operating unit coal trains in between the coal mines in the Elk Valley and the West coast utilizing the Automated Train Brake Effectiveness (ATBE) test, rather than the traditional No.1 brake test, which takes approximately one hour to perform. The ATBE test uses data from the Hot Box Detector system to monitor wheel temperatures and confirm if the brakes on a car are providing effective retarding force and/or have released. The ATBE test is performed while the train is enroute to the Yard. Only cars that fail to meet set temperature requirements are flagged in the system and those are then removed for repair and testing.
 CP also submits that ATBE trains operating under the Transport Canada No. 1 Air Brake Test Exemption must have a minimum of 95 percent operative brakes. Train consists that meet the requirements of the exemption will not receive a No. 1 brake test. Effectively, CP argues that the use of the new ATBE procedures should result in more efficient determination of the need for brake testing resulting in less testing and less noise.
 In reviewing the submissions from the parties, it is useful for the Agency to provide an overview of regulatory requirements for brake testing. It is a Transport Canada safety-related requirement that brake line tests be performed on all freight trains prior to their departure from the Yard.
 The Railway Freight and Passenger Train Brake Inspection and Safety Rules, TC O-150 (Brake Inspection Rules) provide the following:
10.1 A train shall not depart from any location until a successful brake test(s), as outlined in this Part and in railway company procedures/work instructions has been performed and all appropriate documentation has been completed.
10.2 No.1 and No.1A brake tests shall be performed on every train as specified in these Rules and company procedures/work instructions by:
- the brake pipe leakage method; or
- the air flow method.
 The CROR further state in the definition of "transfer" that prior to transferring on to a main line: "[t]he locomotive engineer or remote control operator must verify that there are sufficient operative brakes to control the transfer, confirmed by a running test as soon as possible. Except where block signals provide protection, transfers must have air applied throughout the entire equipment consist. The last three cars, if applicable, must be verified to have operative brakes."
 CP is essentially relying on a statutory authority defence argument, more fully outlined above, for brake testing. As indicated, statutory authority may be conferred by subordinate legislation. Whether it is the ministerial exemption or the Brake Inspection Rules, both instruments qualify as subordinate legislation.
 The Minister of Transport, Infrastructure and Communities has granted CP a No. 1 Air Brake Test Exemption under the authority of subsection 22(4) of the RSA exempting CP from the application of sections 10.1, 10.2 and 11.1 of the Brake Inspection Rules for unit coal trains operating between the coal mines in the vicinity of Sparwood, British Columbia and west coast ports in the vicinity of Vancouver, British Columbia.
 Accordingly, for unit coal trains, the Agency is of the opinion that no brake testing should occur in front of the complainants’ residence as either the trains are meeting the requirements of the ATBE test while they are tested enroute to the Yard or cars are removed on entering the Yard to be repaired at the repair shop location.
 However, the Agency notes that according to the CP exemption, if cars are added to a train they must receive a No. 1 brake test prior to departure. Similarly, any unit coal train which fails to receive a successful ATBE scan must also receive a No. 1 brake test. In addition to the coal service, the Yard also handles one daily manifest train which is made up of local traffic. This train would also be subject to a No. 1 brake test.
 The Agency therefore accepts that CP has no discretion under the CROR and the Brake Inspection Rules which are designed for safety purposes, but to carry out brake testing procedures in certain situations.
 However, the manner in which air brake testing is carried out is not prescribed by the CROR and therefore, is a matter for consideration by the Agency.
 The Agency has reviewed the parties’ pleadings on the air compressor supply line, which is one method of carrying out the air brake testing. The complainants would like to see the air compressor supply line repaired. CP has responded that the length of the unit coal trains makes this fixed compressed air line obsolete because it would often be in the wrong location and it is unable to serve the function that it was originally designed to accomplish. According to CP, it is no longer a reasonable, safe and efficient brake recharge system for its current operations. Even if the system were functioning, the fixed infrastructure can no longer meet the performance and testing needs of the longer trains which require a flexible system and a mobile source to perform tests.
 In consideration of the above, the Agency finds that an underground fixed compressed air line cannot be used and that the manner in which CP is currently performing the testing of air brakes for unit coal trains and manifest trains is an appropriate method for the No. 1 brake tests. The idling noise from locomotives used for brake testing of these trains is therefore the inevitable result of CP being required under the CROR and the Brake Inspection Rules to do so.
 The Agency recognizes that CP is using technology and applying policies which should reduce the noise caused by idling locomotives. CP states that its SD40 yard locomotives are equipped with the same "smart-start" technology as its locomotive used for consists. CP also has a Manual Shut-Down Policy in effect for locomotives that are not equipped with the "smart-start" system. Although these anti-idling procedures have limitations with respect to temperature, brake pressure and battery charge, CP has made attempts to minimize yard locomotive idling times.
 Accordingly, taking into account and accepting the operational requirements imposed on CP in this case, and applying the criteria set out in paragraph 95.1(b) of the CTA, the Agency finds that with respect to idling locomotives used for brake testing, CP has caused only such noise as is reasonable.
 As for brake repairs, the Agency accepts that ad hoc brake repairs form an insignificant part of the reasons for idling. The Agency therefore concludes that the noise created by the repair activity does not constitute a substantial interference for the complainants. Accordingly, no order will be issued with respect to the brake repair activity.
ANALYSIS ON WHETHER CHANGES SHOULD BE UNDERTAKEN IN CP’S OPERATIONS
 Pursuant to section 95.3 of the CTA, the Agency may order a railway company to undertake changes to its operations if the Agency considers the noise and vibration caused by a railway company’s operations not reasonable taking into account the criteria set out in section 95.1 of the CTA.
 As the Agency has found in this case that CP has met its obligations to cause only such noise and vibration as is reasonable within the context of section 95.1 of the CTA, there are no changes to order.
 However, the Agency considers it appropriate to provide some direction on some of the remedies requested by the complainants.
 CP, through ongoing collaborative measures with Golden, has undertaken extensive changes to its Yard configuration, operations and equipment standards in attempts to mitigate the impact of noise on the community. Further, submissions made by the complainants indicate that CP employees have addressed many reported incidents of excessive idling with due diligence in attempts to both explain the cause of the noise and mitigate where possible. However, the Agency also recognizes that this has not fully resolved the complaint.
 The Agency therefore encourages CP to continue to seek ways to mitigate noise at the Yard and to provide effective communication with all concerned with CP’s operations in the Yard, including officials and elected representatives of Golden. This is consistent with CP’s policy of coexistence with the communities where it operates and reflects CP’s understanding of its ongoing legal, social, operational and economic commitments.
 In addition, considering the representations made by CP as to the effectiveness of anti-idling technology used in conjunction with CP’s Manual Shut Down Policy, the Agency expects that CP will continue to ensure that anti-idling technology, including the "smart-start" system, is fully employed in the Yard on locomotives used for both consist and Yard purposes and will continue to monitor adherence to all relevant CP anti-idling policies.
 The complainants also request a review of CP’s Community Connect Line dealing with railway noise complaint practices. The Agency is of the opinion that such a review is not warranted, but does encourage and expects CP to ensure its complaint practices for the Yard are no less responsive than for all other complaints it receives.
 The complainants have also claimed for certain damages. The complainants should note that the Agency has no express power to determine or fix compensation or require a railway company to pay compensation under section 95.3 of the CTA.
 In reviewing another provision of the CTA, the Federal Court of Appeal, in Brocklehurst, clearly stated that compensation for damages involving railways had to be expressly stated in the CTA for the Agency to have jurisdiction. Section 95.3 of the CTA does not contain any such express provision. Consequently, the Agency has no jurisdiction to consider any claims for compensation.
 The Agency concludes the following:
- With respect to squealing wheels, there is no evidence of noise causing substantial interference for the complainants.
- With respect to shunting/switching and brake repair activities, the noise does not cause substantial interference for the complainants.
- With respect to whistling, taking into account and accepting CP’s operational requirements under paragraph 95.1(b) of the CTA, the Agency finds that CP has caused only such noise as is reasonable.
- With respect to vibration, there is not enough evidence to find that any vibration experienced by the complainants due to ground borne vibration is of such a nature as to constitute substantial interference for the complainants. However, there may be vibration resulting from low frequency airborne noise due to idling locomotives in the Yard and this is addressed in the following findings with respect to idling noise.
- With respect to idling locomotives in the Yard used for consists, taking into account and accepting CP’s level of service obligations under paragraph 95.1(a) of the CTA and operational requirements under paragraph 95.1(b) of the CTA, the Agency finds that CP has caused only such noise as is reasonable.
- With respect to idling locomotives in the Yard used for brake testing, taking into account and accepting CP’s operational requirements under paragraph 95.1(b) of the CTA, the Agency finds that CP has caused only such noise as is reasonable.
 Therefore, the Agency dismisses the complaint.