Decision No. 83-R-2014
Complaint filed Mike Sullivan, MP pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
 On November 18, 2013, Mike Sullivan, MP, filed a complaint with the Canadian Transportation Agency (Agency), on behalf of himself, Anne Turjansky, Ray Styles, Pat Sauve, Suri Weinberg, Donald Rome, Wendy Whiteley, Janice DeYoung, Michael McDonald, Carlo Ammendolia, Leya Matalas, Sandy Sokolowk, Aldo DiClemente, Vesna Marin, Sylvia Roberts, Rafael Liland, Jennifer MacKay and Kevin Milburn (complainants). This complaint is against Metrolinx, operating as GO Transit (Metrolinx), regarding noise and vibration after 7:00 p.m., caused by the construction of the Weston Tunnel near their residences in the city of Toronto, Ontario.
 The complainants raised a number of matters not related to noise and vibration, which include:
- Dirt and dust from construction activities;
- Closed roads; and,
- Air quality from idling construction equipment engines.
 As these matters are not related to railway noise and vibration, they fall outside the scope of section 95.3 of the Canada Transportation Act (CTA), and the Agency will not consider them in this Decision.
- Do the noise and vibration caused by Metrolinx’s Weston Tunnel construction activities occurring after 7:00 p.m. constitute substantial interference?
- If so, is Metrolinx meeting its obligation under section 95.1 of the CTA to cause only such noise and vibration as is reasonable?
 The complainants are residents in the village of Weston (Weston) in Toronto. The complainants’ residences are all located adjacent to the Weston Tunnel construction within a mixed urban area of residential neighbourhoods, commercial lands and transit corridors.
 Metrolinx is an agency of the Government of Ontario that, in 2009, assumed responsibility for the GO Transit system, the regional transit system in the Greater Toronto and Hamilton Area (GTHA).
Metrolinx’s Georgetown South Corridor
 Metrolinx operates the Georgetown South GO Transit service, through the Georgetown South Corridor (the Corridor), linking commuters from the GTHA into the city of Toronto. The Corridor runs southeasterly from the town of Georgetown through Brampton, north of the Lester B. Pearson International Airport (Pearson Airport), through Weston and continues southeast and terminates at Union Station in the city’s downtown core.
 The Corridor accommodates GO Transit commuter rail service, the Canadian National Railway Company’s (CN) freight service, and VIA Rail Canada Inc. (VIA) passenger rail service on one alignment, while the Canadian Pacific Railway Company’s (CP) Mactier Subdivision shares the Corridor on a parallel alignment. CP’s Mactier Subdivision connects the West Toronto Diamond to CP’s North Toronto Subdivision crossing several of Weston’s roadways including Lawrence Avenue West, John Street, King Street and Church Street among others. Currently, 21 CP freight trains transit the Corridor per day .
 This is a busy Corridor. Metrolinx’s rail service between Union Station and Georgetown is limited to four peak period trains in the peak direction with some off-peak bi-directional service. Over the course of a normal weekday , ten trains travel towards Union Station and nine trains travel in the reverse direction.
Georgetown South Program
 The Georgetown South Program (GTS Program) is a transit infrastructure expansion project spanning 20 kilometres through the western part of the city.
 The GTS Program includes :
- the addition of two tracks by 2015, resulting in a total of three tracks in the north half of the Corridor and an additional track to the south, for a total of five tracks;
- the construction of a new bridge at Weston Road, and the widening and modification of 15 other bridges;
- the construction of seven new overpasses and underpasses to separate vehicle and train traffic; and
- a rail-to-rail grade separation at the West Toronto Diamond to separate freight and commuter rail traffic.
 Major track and grading construction, civil works, signal installations and utility relocations are required along the Corridor.
 The Program also calls for an air/rail link called the Union Pearson (UP) Express to connect Pearson Airport to Union Station.
Weston Tunnel Project
 The Weston Tunnel Project (Weston Tunnel) is a component of the overall GTS Program and is taking place within the Corridor in a construction site approximately 1500 metres long and 20 metres wide between Lawrence Avenue West and Weston Road in Weston. The tunnel will lower the Metrolinx-owned rail corridor’s grade between Lawrence Avenue West and Weston Road, with a covered portion between King Street and Church Street while CP’s track will remain at grade.
 The Weston Tunnel construction activities consist of three elements:
- installation of temporary shoring;
- excavation; and
- construction of the concrete floors, walls, and the covered section between Church Street and King Street
 Construction on the Weston Tunnel commenced in 2011 and was 72 percent completed as of the filing of the complaint.
Government of Ontario Priorities
 The Big Move is a 25-year plan for co-ordinated and integrated transportation. This plan identifies the GTS Program and Weston Tunnel as priorities. Further, in 2009, the City of Toronto successfully won through a bidding process the hosting of the Pan Am Games, an initiative supported by the municipal, provincial and federal governments. The successful bid, which is documented in the Pan Am Games’ Bid Book (Bid Book) provided by Metrolinx, includes a commitment that an air/rail link be in service by 2015.
POSITIONS OF THE PARTIES
 The complainants maintain that the noise and vibration caused by the activities after 7:00 p.m. related to the construction of the Weston Tunnel results in residents being unable to enjoy their properties and children losing sleep. In addition, the complainants allege that the noise and vibration from the construction project is uncomfortable, disruptive, and has caused damage to some properties in Weston.
 The complainants request that Metrolinx cease its construction work that causes noise and vibration after 7:00 p.m. They accept, however, the necessity of the concrete pours taking place after 7:00 p.m.
 The complainants assert that the surrounding community has endured significant noise, vibration and disruption from dust and debris on a continuing basis. The complainants state that at times when work was being performed after 7:00 p.m., trucks continued to move in and out of the construction site at 11:00 p.m., creating significant disturbance for those living nearest the Corridor.
 The complainants also claim that before the construction, Weston was a “no-whistle” zone. However, any time that the construction activity in question takes place, train engineers blow their whistles, often multiple times as they travel through the Corridor. According to the complainants, these train whistles start at 6:00 a.m. and continue until 7:00 p.m., and may be extended to 11:00 p.m. if Metrolinx continues construction that late.
 The complainants state that there is also a large volume of trucks which are equipped with noisy backup alarms travelling through local streets to the construction site throughout the day.. The complainants claim that excavation and chipping are very noisy and cause vibration in local dwellings and residents located 250 metres from the Corridor can clearly hear and feel the chipping in their basement.
 The complainants state : “Construction in Weston began in 2011, and will continue until 2015, a period of 4 years. Construction noise is an unfortunate by-product of this kind of project. Residents understand, and reluctantly accept, that they must withstand up to 80 db average noise for 12 hours a day and 10 hours on Saturday, for 4 years. To now suggest that for at least 6 months (and given their track record it will likely be much longer) residents must endure 16 hours a day, 6 days a week, is not acceptable. It is not ‘noise free’ or noise reducing construction as Metrolinx would suggest. It is different and substantial noise.”
 In response to the noise measurement evidence provided by Metrolinx, the complainants assert that Metrolinx has chosen to average the noise over one hour, rather than to show the actual peak noise. They state that sound levels averaged over an hour, or eight hours, show a long-term pattern of noisiness, rather than disturbance noise. To illustrate their point, the complainants state that a cannon going off every three or four minutes will wake everyone up but when that sound is measured as part of an average over an hour, the change will barely be noticed in the data.
 The complainants contend that without seeing actual peak levels, one cannot establish which of the raised levels are due to trains going by and which are caused by construction noise and loud banging, beeping, and the like, which are much more disturbing than the rumble of a freight train past one’s house. The complainants claim that to reflect construction noise using an average which includes the noise caused by the passing of trains is dishonest.
 The complainants submit that noise monitors record only averages and while this may be appropriate for daytime work, sudden loud noises which vastly exceed those averages are ignored by this system. These loud noises are quite damaging to sleep for young children and their parents. The complainants object to Metrolinx’s rationale that a maximum noise level of 70 db Leq for night-time work is acceptable.
 The complainants submit that the community understands the need for the construction, however, “when the project was first being planned, in 1993, it was to provide all-day two way GO service to Bramalea, and more frequent rush-hour service to points west. In 2004, when federal and provincial governments announced the infrastructure plan (GO TRIP funding), again it was to provide necessary infrastructure for all-day two way service. The Airport Rail Link was to use ‘surplus capacity’ on that newly built infrastructure. Fast forward to the EA in 2009, and we have advice that the plan is for over 60 trains per day at start up in 2015, and 120 per day by 2025. Immediately after the approval of the EA, GO reduces that to 29 trains per day at start up.”
 The complainants claim that at a meeting between residents and Metrolinx, “it was pointed out to Metrolinx that their request to interfere with local lives for six months worth of evenings amounted to eight weeks of work. Metrolinx’s construction foreman denied this, and when asked what Metrolinx would do if they could not work late, he stated that they would simply revert to an eight hour work day.”
 The complainants contend that the bulk of the pressure to work late and complete the construction project to a deadline comes from a 27 word statement made in the Pan Am Games’ Bid Book, a document that outlines how Toronto will organize the 2015 Pan Am Games, that there will be a rail link between Pearson Airport and downtown Toronto However, the complainants are of the opinion the failure to finish the air/rail link in time would have no effect on the ability of the Pan Am Games to go ahead, be reported on, or broadcast.
 The complainants maintain that: “Metrolinx has failed to provide compelling rationales for needing to extend their work into late evening hours. Construction delays due to unforeseen events would justify the province stepping back from one of many commitments in the ‘Bid Book’ for the Pan Am Games. It has already stepped back from several other such commitments related to GO Transit. Metrolinx has behaved with a ‘damn the torpedos, full speed ahead’ mentality, with little or no regard for the additional disruption being felt by the community. Scheduling the noisiest part of continuous pours when people are sleeping is but one example. Suggesting that ‘less noisy’ work would somehow be the rule during evening work, is not accurate…”
 The complainants concede that trains in the community are an accepted part of the fabric of noise but construction noise is different. often peaking louder. The complainants contend that averages should not be used to suggest that Metrolinx’s construction activities have reduced the noise in the community.
 The complainants refer to a mitigation plan developed by Metrolinx (Mitigation Plan). The complainants maintain that Metrolinx has failed to comply with the Mitigation Plan in a number of respects such as, for any work done after 7:00 p.m. a specific review of implications should be undertaken, specific work plans approved by Metrolinx, and Transport Canada should be notified. The complainants point out that the Mitigation Plan seeks to avoid the continuous use of generators and, if needed, to house them in an acoustic enclosure, However, Metrolinx never did this.
 The complainants point out that the Mitigation Plan also requires that construction hoarding or noise barriers be placed next to residences if excavation/grading work continues for more than four weeks but Metrolinx refused to install hoarding or noise barriers along the east side of the tracks because it would need to negotiate permission from CP and adjacent homeowners.
 Metrolinx states that through the GTS Program, it will expand train service capacity to meet existing GO Transit ridership demand, allow for future expansion to Kitchener, Milton, and Barrie and accommodate the new UP Express service. Completion of the GTS Program will also allow for the expansion of VIA passenger and CN freight train service.
 Metrolinx points out that ever since the completion of the Corridor in time for the Pan Am Games became a key strategic priority for the provincial government in 2009, the Government of Ontario has repeatedly reaffirmed this commitment, in statements by the Premier and the Ontario Minister of Transportation, in the provincial budget, and the approval of Metrolinx’s business plan.
 Metrolinx asserts that the UP Express, once it begins service in 2015, is expected to eliminate up to 1.2 million car trips in the first year of operation, and to accommodate at least 5,000 passengers per day within the first five years. Metrolinx claims that the GTS Program willenhance transit service for thousands of daily commuters and other transit usersand that the Weston Tunnel which was designed, based in part on feedback from the Weston community, is a key component of its Corridor expansion that will permit important improvements to rail transit service.
 Metrolinx advises that at the beginning, construction working hours were from 7:00 a.m. to 7:00 p.m. However, Metrolinx states that there were compounding issues and delays related to staging, discovery of abandoned infrastructure, and unusual inclement weather conditions. Metrolinx claims that this made it necessary to add a second shift and extend work hours from 7:00 p.m. to 11:00 p.m. to achieve its goal of having all track work in place by December 1, 2014. Some of the work done during the extended hours includes concrete work preparation. Metrolinx indicates that the extended hours would continue until the spring of 2014.
 Although it is an essential part of the construction process, Metrolinx makes a distinction between construction and concrete pours because concrete pours can occur after 11:00 p.m. as they are exempt from the City Of Toronto’s bylaw restrictions on night-time construction. According to Metrolinx, continuous concrete pours is a special process that once started cannot be stopped until an entire section is complete. During the winter months, additional steps are required to keep the water in the concrete from freezing before the concrete has cured. This requires heating the forms and steel before placing the concrete and insulation and heating the concrete after it has been placed. Metrolinx contends that if it is not able to conduct concrete pours beyond the standard work hours, it will be required to redesign the project which will result in a significant increase in the construction time, jeopardizing the start of the UP Express in time for the Pan Am Games.
 In Metrolinx’s opinion , the extended construction hours from 7:00 p.m. to 11:00 p.m. and the ability to conduct concrete pours beyond 11:00 p.m. will allow it to meet its December 1, 2014 deadline to have all track work in place and ensure completion of the GTS Program by April 2015 to permit the start of UP Express service from Union Station to Pearson Airport in time for the Pan Am Games.
 According to Metrolinx, the following would result if extended hours of work are not permitted:
- further delays to the construction schedule;
- a delay in the start of service on the UP Express;
- reputational risk to the Province, the City of Toronto and Metrolinx;
- increased cost, including paying for worker downtime (construction and operations);
- a requirement to redesign and restage the Project to allow for more numerous and smaller concrete pours, resulting in increased cost and traffic impacts;
- delay in the realization of the benefits of the Project to the Weston community;
- the longer closure of Church Street or the closure of more than one street at a time; and
- impacts on GO Transit service.
 Metrolinx provided in its submission a Metrolinx George South Rail Corridor Expansion - Weston Tunnel - Construction Noise and Vibration Impact Assessment Report prepared by AECOM dated December 2010 (2010 AECOM Report). The 2010 AECOM Report notes that the outdoor ambient/baseline daytime noise levels were measured in the vicinity of the Weston Tunnel in the range of 51-54 dBA. The Report also notes that the root-mean-square (RMS) vibration velocity levels to be below 0.02 mm/s.
 Metrolinx also provided a Metrolinx Georgetown South Rail Corridor Expansion – Weston Tunnel – Construction Noise and Vibration Mitigation and Monitoring Plan Report prepared by AECOM dated January 2011 (AECOM January 2011 Report) that included recommendations that, according to Metrolinx, were adopted and implemented in the Mitigation Plan.”
 The Mitigation Plan outlines construction noise and vibration limits, monitoring, mitigation measures, communication/complaints procedures. According to Metrolinx, the Mitigation Plan requires:
- that all construction equipment comply with the maximum noise levels set out in the Ontario Ministry of the Environment (MOE) Guideline; and
- that overall construction noise not exceed 80 dBA Leq, 8 hr at all noise sensitive receptors for construction activities taking place during standard hours (Monday to Friday 7:00 a.m. to 7:00 p.m. and Saturday 9:00 a.m. to 7:00 p.m.).
 Metrolinx submits that the United States Federal Transit Administration (FTA) Standard identifies a residential daytime noise criterion of 80 dBA Leq, 8 hr (that is, an average of 80 decibels over an eight-hour period), and a 70 dBA Leq, 8 hr criterion (that is, an average of 70 decibels over an eight-hour period )for evening work, for detailed assessment. Metrolinx indicates that the Mitigation Plan does not specifically reference the night-time 70 dBA Leq, 8 hr limit because at the time it was prepared, it was not contemplated that evening work would be carried out.
 Metrolinx states that the Mitigation Plan adopts the limits for construction vibration set out in the City of Toronto bylaws and even goes beyond that. It uses a 5 mm/s peak particle velocity (PPV) standard as a cautionary level to begin an investigation of the vibration where the City uses an 8 mm/s PPV vibration standard.
 Metrolinx submits that it has implemented the mitigation measures identified in the Mitigation Plan for the Weston Tunnel construction such as scheduling only the less noisy work for evening hours where possible, selecting the least noisy rock excavation method and using augering rather than pile driving to install the required piles.
 Metrolinx asserts that the Mitigation Plan calls for constant monitoring of noise and vibration at locations representative of the nearest sensitive receptors including five monitoring locations in proximity to the Weston Tunnel construction site. Metrolinx also confirms that the agreement between Metrolinx and its contractor requires that the contractor follow the Mitigation Plan.
 Metrolinx states that the noise levels it monitors are one-hour averages. In its view, this is more comprehensive than monitoring using eight-hour averages and the results provide a measurement of overall noise in the vicinity, rather than noise related to particular construction activities. Metrolinx points out, however, that where multiple construction activities are under way at the same time, it is difficult to attribute the noise to any one activity.
 According to Metrolinx, its data indicated that, between April 1and December 1, 2013, noise at or above 80 dBA was recorded during 5.2 percent of the total hours worked. Metrolinx claims that during the extended work hours that began on November 20, the work has been no louder, for the most part, than the existing ambient noise and that once work stops at 11:00 p.m., there is no drop off in recorded noise levels. Metrolinx states that during the extended work hours between November 20 and December 1, 2013, there have been recordings of noise at or above 70 dBA on only six occasions.
 Metrolinx maintains that, there was only one hour between April 1 and December 1, 2013 during which the vibration monitoring recorded an instance above the vibration threshold .
 Metrolinx states that its noise and vibration monitoring results show no significant noise or vibration. With only very limited exception, both are consistently below established thresholds and in this case do not reach the threshold of substantial interference.
 Metrolinx argues that the complaint does not contain any specific information about any construction noise or vibration experienced by any of the 17 individuals who gave Mr. Sullivan representational authority and no information about what, if any, impact the construction noise and vibration they experienced has had on any of them.
 Metrolinx maintains that the complaint does not contain or refer to a log of specific “significant noise and vibration” events, or any noise or vibration monitoring data. In addition, Metrolinx disagrees with the complainants’ assertion that the additional work that can be accomplished during six months of extended hours would amount only to eight weeks of work as this ignores construction staging methodology.
ANALYSIS AND FINDINGS
 Section 95.1 of the CTA imposes an obligation on railway companies to only cause such noise as is reasonable taking into account their level of service obligations pursuant to sections 113 and 114, if applicable, their operational requirements and the area where the rail operation takes place. Section 95.3 provides the Agency with a complaint adjudication function and section 95.4 clarifies that these provisions also apply to public passenger service providers, the definition of which includes urban transit authorities such as Metrolinx.
 While urban transit authorities are not subject to the level of service obligations under the CTA, they do have service obligations which the Agency will take into account. In this case, the obligations are in response to a specific direction from the Government of Ontario to Metrolinx, its agency.
 Pursuant to section 95.2 of the CTA, the Agency has issued Guidelines for the Resolution of Complains over Railway Noise and Vibration (Guidelines) that set out the elements that the Agency considers when determining whether a railway company has caused only such noise or vibration as is reasonable. These elements are:
- railway operations in the affected area, including any relevant changes;
- the characteristics and magnitude of the noise or vibration (such as the level and type of noise [impulse or constant,] the time of day, duration, and frequency of occurrence;)
- relevant noise or vibration measurements or studies;
- the presence of other ambient noise, such as highways;
- the impact of the noise or vibration disturbance on persons affected;
- relevant standards to assess the significance of the effects of noise and vibration levels;
- available mitigation methods and technologies that are cost-effective and operationally feasible;
- mitigation efforts made by the parties; and,
- any other issues relevant to the complaint.
 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. 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 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 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.
 In Decision No. 35-R-2012, the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligations. Making a parallel with jurisprudence of courts of civil jurisdiction on nuisance law, the Agency determined that the first step consists of determining whether railway companies have caused 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). In the affirmative, the Agency must then balance 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. Corrective measures may only be ordered if, after this balancing exercise, the Agency concludes that noise and/or vibration is not reasonable. In examining whether substantial interference was caused in that case, the Agency considered the nature, the duration and frequency of the noise/vibration. In that Decision, the Agency also recognized that noise and vibration during the night can cause a higher degree of disturbance to persons than during the day. The Agency determined that when assessing the ordinary comfort or convenience of living according to the standards of the average person, comparable residences within the same area of exposure must be used.
 The initial step in the analysis of noise and vibration complaints is to determine the existence of noise and/or vibration and whether it constitutes substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.
 To make a determination of the existence of noise and/or vibration which may constitute substantial interference for the complainants, the Agency will consider the elements outlined below. These elements are outlined in the Agency’s Guidelines and in Decision No. 35‑R‑2012.
 If the Agency finds that the noise and vibration is not causing substantial interference, there is no need to pursue the analysis further.
 However, if the Agency finds that the noise and vibration is causing substantial interference, it proceeds to the next level of analysis, which is a balancing of the noise and vibration against the urban transit authority’s operations and service requirements criteria set out in section 95.1 of the CTA to determine whether the noise and vibration is reasonable.
 Two sources of noise have been identified by the complainant. The first is construction noise and vibration from machines and vehicles required to supply material and build the Weston Tunnel (including concrete pours), and the other is whistling from CP freight trains. The complainants claim that CP trains whistle from 6:00 a.m. to 7:00 p.m. and that whistling may be extended to 11:00 p.m. if Metrolinx continues construction that late.
 The Agency recognizes that sound pressure levels and vibration levels varying as a function of distance from source to receiver. In its analysis, the Agency has taken into consideration the various distances from the complainants’ residences to the Corridor and focused on the residences closest to the Corridor .
 The Agency will take whistling into consideration in the determination of substantial interference as the noise from whistling is induced by or incidental to the construction taking place. However, the Agency will not consider whistling in its determination of whether the noise and vibration is reasonable because CP is not a party to this proceeding before the Agency.
 According to Metrolinx, it must extend its construction activities beyond 7:00 p.m. up to 11:00 p.m., Monday to Saturday until spring 2014 and must have the ability to conduct concrete pours beyond the standard working hours at any time of the day or night. Metrolinx states that it generally tries to limit the noisier work after 7 p.m.
Noise Monitoring Data
 Metrolinx submitted noise monitoring data from April 1to December 1, 2013. The Agency reviewed the data and analyzed the Leq 1-hour sound levels after 7:00 p.m.
 The 2010 AECOM report notes that outdoor ambient/baseline daytime noise levels were measured in the residential streets in the vicinity of the Weston Tunnel (Rosemount Avenue, Ralph Street and Lawrence Avenue West). The ambient noise is characterized primarily by local road traffic, particularly on Weston Road and Lawrence Avenue West, and operational railway noise including train horns. Daytime ambient noise levels were in the range of 51-54 dBA.
 Based on a review of the map provided by Metrolinx illustrating the location of the noise and vibration monitors, the Agency is of the opinion that the monitoring data can be used to approximate the noise and vibration levels at the complainants’ residences closest to the Corridor.
 Further, a review of the data indicates that the noise levels due to construction activities are below the FTA construction noise limit of 70 dBA Leq 8 hours. However, when taking into consideration the daytime ambient sound levels of 51-54 dBA, which are representative of sound levels pre-construction, it is noted that the monitored noise levels could be higher by as much as 26 dB or more over a one-hour period. Consequently, the Agency finds that the construction activities are causing the overall noise environment to be substantially louder than the baseline noise pre-construction.
 The construction activities being performed by Metrolinx contain different sound events depending on the equipment used. For example, noise from a compressor is steady, noise from a loader varies over time, and noise from an excavator with breaker causes loud and random banging noises. CP trains are also whistling during construction. The combination of the different activities associated with the construction results in fluctuating noise levels. As outlined in the Railway Noise Measurement and Reporting Methodology83-R-2014_DATED_MARCH_10__2014_-_SULLIVAN_V__METROLINX_.docx#_ftn1" title=""> (Methodology), individual loud noise events may increase annoyance and impact sleep and communications. For these reasons, the Agency supports the use of the L10 sound level metric, a statistical measure that represents sound levels exceeded 10 percent of the time, to correlate the peak sound levels from activities such as banging and train whistles to human annoyance. In addition, the AECOM January 2011 report, commissioned by Metrolinx, recommends that the L10 be recorded and reported. However, based on the evidence before the Agency, the L10 recommendation was never adopted and implemented in the Mitigation Plan for the Weston Tunnel , nor was it presented in the graphed monitoring results on the GTS Program Web site or within the noise monitoring data.
 The Agency is of the opinion that the use of the L10 metric would have taken into consideration individual loud noise events resulting in even greater sound level differences than what the Agency has already found using the one-hour Leq of 26 dB. The Agency therefore finds the sound levels caused by construction to be significant.
Vibration Monitoring Data
 Metrolinx submitted vibration monitoring data from April 1 to December 1, 2013. The Agency reviewed the data to determine the vibration levels after 7:00 p.m.The 2010 AECOM report notes the outdoor ambient/baseline vibration levels measured as RMS vibration velocity levels at the nearest monitoring locations to the Weston Tunnel to be below 0.02 mm/s at a 46 metre setback from the rail tracks. Based on a review of the monitoring data due to construction after 7:00 p.m., the Agency observed that the vibration levels are above the ambient vibration levels and significantly above the threshold of perceptibility.
 The complainants claim that vibrations from construction activities are causing structural damage to residences, but have not submitted evidence to substantiate this claim.
 Therefore, the Agency concludes that the vibration levels due to construction are perceptible to the complainants. However, there was no evidence provided that would allow the Agency to make any determination on structural damage to the complainants’ residences.
Agency finding on substantial interference
 The construction activities have resulted in a significantly louder night-time noise environment (up by 26 dB) when compared to the pre-construction ambient noise environment. There are peak/high intensity sound levels that are disturbing residents and vibrations that are perceptible inside homes. All of these impacts occur during the night when people are generally more sensitive to noise and vibration. The Agency therefore concludes that the combined effect of the noise and vibration resulting from the construction activities is causing substantial interference in the ordinary comfort and convenience of living of the complainants.
 Having determined that the noise and vibration from Metrolinx’s construction activities are sufficient to cause substantial interference, the Agency must determine whether this noise is reasonable.
 The Guidelines state that:
Reasonableness is determined on a case-by-case basis and relates to an objective sense of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances. The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations. Overall, this balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.
 In its determination as to whether an urban transit authority is causing only such noise and vibration as is reasonable, the Agency must first take into consideration the mitigation measures already implemented and whether additional mitigation measures could be implemented.
 The Agency has reviewed the noise and vibration mitigation measures incorporated by Metrolinx for the Weston Tunnel, which it claims are consistent with the Mitigation Plan. The measures include scheduling noisier work during the daytime, investigating different methods for rock excavation and selecting the process that will have the least impact, using augering rather than pile driving to install allpiles, source mitigation and other operational restrictions. In addition, Metrolinx conducts noise and vibration monitoring 24 hours per day, 7 days per week at multiple locations across the GTS Program, including five in close proximity to the Weston Tunnel. The results are posted on the GTS Program Web site in a graphical format. The Mitigation Plan specifies that there is to be additional investigation when specified vibration limits are exceeded. In addition, the Mitigation Plan includes the following noise and vibration source mitigation measures:
- Construction equipment must be operated in accordance with the MOE Guideline (construction equipment).
- Contractors must use vehicles and equipment with efficient muffling devices.
- Contractors must use alternative equipment that generates less noise where possible.
- Contractors must use rubber linings, in for example, chutes and dumpers to reduce impact noise, where practical.
- Minimization of vehicle back-ups is required whenever possible and contractors should ensure that vehicles employed continuously on site for extended periods of time (two days or more) are fitted with sound reducing back-up (reversing) alarms. Alarms shall continue to meet all applicable safety standards.
- Blasting is generally prohibited. Where a contractor wishes to use blasting as a method for excavation, a detailed impact assessment shall be provided and operations shall be in compliance with the applicable local by-laws and Ministry of Environment standards, including NPC-119.
- Electrical power is to be supplied directly where possible to avoid continuous use of generators.
- Impact pile driving is prohibited. If piling is required, alternative methods must be approved by Metrolinx.
- Construction hours are restricted to standard hours Monday to Friday 7:00 a.m. to 7:00 p.m. and Saturday 9:00 a.m. to 7:00 p.m. If construction needs to be done outside of these hours, the contractor is required to review the implications of the noise and vibration from the revised activities. Metrolinx is asked to make construction work plans available to Metrolinx for approval prior to these activities and Transport Canada is to be notified of such construction activities at least two weeks in advance.
- Contractors are required to coordinate “noisy” operations such that they will not be occurring simultaneously where possible.
- Route haulage/dump trucks on main roads where possible.
- Consider the use of alternative construction methods which may minimize vibration.
- Use lower vibration-generating equipment where practical.
- Blasting is generally prohibited, unless the contractor undertakes a detailed impact assessment to ensure compliance with local by-laws and by local laws and Ministry of Environment Standards.
 The Agency also recognizes that the extended work hours for construction activities will end in spring 2014 and the warmer weather will reduce the time required for the concrete pours. Therefore, with the progression of the construction schedule and upcoming warmer weather, the noise levels associated with the construction activities are expected to reduce.
 Further, Metrolinx has stated that it has tried to schedule the heavier construction work for the daytime where possible. In its review of the noise and vibration monitoring data, the Agency finds that the heavier activities causing elevated noise and vibration levels were generally found to occur during the daytime hours which confirms Metrolinx’s claim that noisier construction activities are being carried out during the daytime.
 The complainants’ assert that Metrolinx has failed to comply with its Mitigation Plan in a number of respects such as work plans, generators and construction hoarding, however, the complainants did not substantiate their assertion or explain to what extent Metrolinx allegedly failed to comply with its Mitigation Plan.
 The Agency recognizes that construction of this nature moves quickly and the sequential staging of these activities, including temporary shoring, excavation, and concrete work, results in changing noise levels as the construction progresses. Further, the Agency recognizes the linear nature of the job site and its constrained working area .
 Metrolinx has undertaken what are considered, in the Agency’s opinion, best practices for construction activities. The strategies implemented by Metrolinx closely mirror recommendations in the Agency’s Methodology. Further, submissions made by the complainants indicate that Metrolinx has addressed many reported incidents with due diligence in an attempt to both explain the cause of the noise and mitigate where possible. In light of the above, the Agency encourages Metrolinx to continue to seek ways to mitigate the noise and vibration, continue to implement all measures proposed and adopted in its Mitigation Plan where possible and provide effective communication with all those affected by the construction.
 The Agency acknowledges the complainants’ request that Metrolinx cease its construction activities after 7:00 p.m. that are causing noise and vibration while they accept the necessity of the concrete pours taking place between the hours of 1:00 a.m. and 7:00 p.m. The Agency also notes Metrolinx’s assertion that it must extend its construction activities beyond 7:00 p.m., Monday to Saturday until spring 2014 and must have the ability to conduct concrete pours at any time of the day or night.
Construction of the Weston Tunnel
 The Agency accepts that the GTS Program is a key strategic priority of the Government of Ontario and of the municipal governments involved. The Agency notes that the GTS Program and Weston Tunnel are projects that lay the fundamental groundwork needed to accomplish the strategic goals of the Big Move. Therefore, the Agency recognizes the need for the Corridor to be as complete as possible for the Pan Am Games.
 In light of the above, the Agency considers that:
- the Weston Tunnel is necessary;
- the construction activities must take place;
- Metrolinx has put in place mitigation measures to address construction related noise and vibration; and
- none of the evidence supports a conclusion that additional mitigation measures could be implemented to reduce the impacts on the complainants during the daytime and night-time.
 The Agency accepts that the less noisy activities are scheduled after 7:00 p.m. and that no other mitigation measures could be implemented to reduce the noise and vibration from construction activities during the night time.
 With respect to the construction activities taking place during the daytime, the Agency is satisfied that Metrolinx is causing only such noise as is reasonable under the circumstance.
Relief sought with respect to activities during the night time
 The Agency will now consider the relief sought by the complainants that Metrolinx be ordered to cease its construction activities after 7:00 p.m. except for activities associated with concrete pours.
 In determining whether to grant the relief sought, the Agency will consider whether the December 1, 2014 deadline for completion of construction activities is an essential part of Metrolinx’s service obligations.
 The complainants maintain that the bulk of the pressure to work late and complete the construction project by a certain deadline (December 1, 2014) comes from a statement made in the Pan Am Games’ Bid Book. In this regard, Metrolinx maintains that it must meet the December 1, 2014 deadline that all track work be in place to ensure completion of the GTS Program by April 2015 and to permit the start of UP Express service from Union Station to Pearson Airport in time for the Pan Am Games. The complainants, on the other hand, contend that if Metrolinx fails to complete the work in time, this will have no effect on the Pan Am Games.
 The Agency notes that the completion of the Corridor in time for the Pan Am Games is a key strategic priority for the provincial government and that the Government of Ontario reaffirmed this commitment in its recent provincial budgets. The Agency also accepts Metrolinx’s argument that without the ability to undertake construction activities outside of standard work hours, the start of the UP Express in time for the Pan Am Games would be in jeopardy.
 The Agency recognizes the service obligations and operational constraints imposed on Metrolinx to have all of the necessary track work in place by December 1, 2014. The Agency notes that Metrolinx then intends to subsequently, from December 2014 to April 2015, commission the new track by testing its new Diesel Multiple Units (DMUs) and station equipment, training new train crews, testing switching and signaling equipment, testing train tracking equipment, and testing the new service. This time period also includes dealing with any unforeseen contingencies in completing the construction should issues arise during the commissioning of the new track.
 Consequently, the Agency recognizes the importance of the GTS Program and the necessity to have the Weston Tunnel completed, to the extent possible, by December 1, 2014 in order for the Corridor to be operational for the Pan Am Games.
 The Agency accepts Metrolinx’s argument that the cumulative issues and delays related to staging, discovery of the abandoned infrastructure, and unusual inclement weather conditions require the addition of a second shift. Consequently, taking into consideration the December 1, 2014 deadline imposed on Metrolinx and the cumulative issues and delays, the Agency accepts the need for extended work hours in order to have the system up and running in time for the Pan Am Games and to account for any unforeseen circumstances that may arise before then.
 While recognizing that unexpected or unforeseen circumstances may prevent Metrolinx from meeting its required deadline, the Agency is of the opinion that Metrolinx’s service obligations impose upon it a duty to ensure that the construction is completed by the date established by the Government of Ontario. This may require Metrolinx to work beyond the standard work hours if there are no other reasonable options available.
 The Agency notes that Metrolinx has created a new Community and Stakeholder Relations Department, established a Community Relations team for the GTS Program and approved the organization of Community and Stakeholder Relations Framework. Metrolinx states that it has community offices open to the public, a monthly e-mail newsletter, monthly construction liaison meetings and site walking tours, opportunities for the community to meet with the construction contractor and project team, quarterly public meetings, a quarterly newsletter that is mailed out, door-to-door delivery of construction update flyers, regular updates to elected officials, newspaper advertisements of corridor-wide public consultations and meetings, a website, and social media. The Agency is satisfied that Metrolinx is using every reasonable means possible to ensure effective communication with community stakeholders.
 As outlined above, the Agency agrees with the complainant that the construction noise and vibration levels are causing substantial interference after 7:00 p.m. However, the Agency, in balancing these concerns in the context of section 95.1 of the CTA, finds in this case that weight must be given to Metrolinx’s service obligations and operational requirements to meet the deadline established by the Government of Ontario.
 Taking all of the above factors into consideration, the Agency finds that Metrolinx is meeting its obligations under section 95.1 of the CTA to cause only such noise as reasonable under the circumstance.
 The Agency takes note of Metrolinx’s efforts to have in place a noise and vibration Mitigation Plan including the planning, communications, monitoring, construction management, and available mechanisms to address concerns from construction impacts.
 In light of the above, the Agency dismisses the complaint.
83-R-2014_DATED_MARCH_10__2014_-_SULLIVAN_V__METROLINX_.docx#_ftnref1" title=""> The Methodology was developed by the Agency to guide railway companies, citizens and municipalities in determining noise levels for the purpose of Agency proceedings.