Lynda Stokes
Murdy & McAllister
Barristers & Solicitors
Driving the Last Spike November 7, 1885
The “Other Last Spike”: workers pose for their own
version of the last spike
1904 The Board of Railway Commissioners
1938 The Board of Transport Commissioners
1967 The Canadian Transport Commission
1988 The National Transportation Agency of
Canada
1996 The Canadian Transportation Agency
cross provincial or international borders;
declared by Parliament to be for the general
advantage of Canada;
owned, controlled, leased or operated by a
company who operates a railway within the
legislative authority of Parliament; or
are an integral part of an existing federal
railway.
Canada Transportation Act, SC 1996, c. 10
Canadian Transportation Agency General
Rules (SOR/2005-35)
Railway Safety Act, RSC, 1985, c. 32 (4th Supp.)
Railway Act, RSBC 1996 c. 395
Railway Safety Act, SBC 2004 c. 8
Administration Delegation Regulation, BC Reg.
154/2004
Railway Safety Adopted Provisions Regulation, BC.
Reg. 210/2004
In 2006 British Columbia and Canada negotiated
an Administrative Agreement pursuant to which
the Province delegated authority to the CTA to
adjudicate railway crossing disputes, including
disputes relating to safety.
Therefore, the CTA has authority to administer
the law respecting railway crossing disputes for
federal and provincial railways in BC.
Sections 100 to 101 of the Canadian
Transportation Act deal with Road and Utility
Crossings
Sections 102 to 103 of the Canadian
Transportation Act deal with Private Crossings
“road crossing” means the part of a road that
passes across, over or under a railway line, and
includes a structure supporting or protecting
that part of the road or facilitating the crossing.
“utility crossing” means the part of a utility line
that passes over or under a railway line, and
includes a structure supporting or protecting
that part of the utility line or facilitating the
crossing.
“utility line” means a wire, cable, pipeline or
other like means of enabling the transmission of
goods or energy or the provision of services.
Filing Agreements
101. (1) An agreement, or an amendment to an
agreement, relating to the construction,
maintenance or apportionment of the costs of a
road crossing or a utility crossing may be filed
with the Agency.
Effect of filing
101(2) When the agreement or amendment is
filed, it becomes an order of the Agency
authorizing the parties to construct or maintain
the crossing, or apportioning the costs, as
provided in the agreement.
No agreement on construction or maintenance
101 (3) If a person is unsuccessful in negotiating
an agreement or amendment mentioned in
subsection (1), the Agency may, on application,
authorize the construction of a suitable road
crossing, utility crossing or related work, or
specifying who shall maintain the crossing.
No agreement on apportionment of costs
101(4) Section 16 of the Railway Safety Act applies
if a person is unsuccessful in negotiating an
agreement relating to the apportionment of the
costs of constructing or maintaining the road
crossing or utility crossing.
Under section 16 of the federal Railway Safety
Act, the CTA may apportion the costs of
constructing, altering, maintaining or operating
a railway work when the parties who may
benefit from that work cannot agree.
Referral to the CTA may be made either before
or after construction or alteration of the work
begins.
Divided land
102. If an owner’s land is divided as a result of the
construction of a railway line, the railway
company shall, at the owner’s request,
construct a suitable crossing for the owner’s
enjoyment of the land.
Other crossings may be ordered
103.(1) If a railway company and an owner of land
adjoining the company’s railway do not agree
on the construction of a crossing across the
railway, the Agency, on the application of the
owner, may order the company to construct a
suitable crossing if the Agency considers it
necessary for the owner's enjoyment of the
land.
Terms and conditions
103 (2) The Agency may include in its order terms
and conditions governing the construction and
maintenance of the crossing.
Costs of construction and maintenance
103 (3) The owner of the land shall pay the costs
of constructing and maintaining the crossing.
location of the crossing;
a description of the project;
the purpose of the project;
design and material standards;
plans or drawings prepared to scale, signed and
dated;
duration (including removal provisions)
environmental impact and whether an
assessment is necessary
The CTA has specific authority to determine
what constitutes a suitable crossing, including,
among other things, whether a crossing needs
to be grade separated.
The concept of a "suitable crossing" must
include an element of safety, be adequate and
appropriate in light of its intended purpose and
take into account the intended use of the
crossing.
“[…] if the right to cross is established by the
exercise of a statutory discretion, the policy of
the Agency and its predecessors has been not to
provide for compensation where a mere
easement is created without any real or
appreciable injury or damage to the railway
company or its property.”
CTA must determine the proportion of the
liability for construction, alteration, operational
and maintenance costs to be borne by each
party having regard to the relative benefits that
each person stands to gain and any other factor
that it considers relevant.
Junior or senior status is not conclusive in
allocating responsibility.
“… liability for negligent acts by either party at
railway crossings out to be determined by the
civil courts in the province in which the crossing
is situated and that a part for whose benefit a
statutory right of crossing is established should
not be made responsible for the company’s own
negligence.”
CTA will not typically order insurance.
[Crossing party] shall at all times wholly
indemnify [railway] from and against all loss, cost,
damage, injury and expense to which [railway] may be
subjected by reason of any damage or injury to
persons or property caused by the construction,
maintenance or operating of the utility crossing as well
as against any damage or injury resulting from the
imprudence, neglect or want of skill of the employees
or agents of [crossing party] in connection with the
construction, maintenance or operation of the utility
crossing, unless the cause of such loss, cost, damage,
injury or expense can be traced elsewhere.
contain a clear and concise statement of the
facts, the grounds for the application, the
section(s) of legislation under which the
application is made and the nature of the relief
sought.
be endorsed with the full name, address and
telephone number of the applicant or the duly
authorized agent or solicitor acting for the
applicant.
A copy of the application to the CTA must be
served on the respondent at the time the
application is filed with the CTA.
the location of the crossing (including railway
mileage and subdivision, the name of the road
and town and/or land title co-ordinates);
a description of the project, in the level of detail
that would ordinarily be included in an
agreement;
the purpose of the project;
a list or description of the issues to which both
parties have agreed; and
a list or description of the contentious issues to
be resolved by the CTA, on which the other
party will be given an opportunity to comment.
From a legal perspective railway crossings are
unique from municipal dealings with private
land where expropriation is an option.
Railway crossings are also unique from
municipal dealings with other subject matters
that are under federal jurisdiction.
Negotiate road and utility and private crossings
of railway lines with a view to the Canadian
Transportation Agency's policies and authority.
Negotiate private crossings – and accept the
transfer of private crossings – with a view to the
legal consequences under the Canada
Transportation Act.