Many local governments negotiate agreements with railway companies for the construction, maintenance or apportionment of costs of a utility crossing a railway corridor. Pursuant to section 101 of the Canada Transportation Act S.C.1996, c.10 (the "Act"), these agreements, and amendments to them, may be filed with the Canadian Transportation Agency (the "CTA"). If a person is unsuccessful in negotiating an agreement, or amendment to an agreement, the CTA may, on application, authorize the construction of a suitable road crossing, utility crossing or related work and specify who will be responsible to maintain the crossing.
In a series of recent decisions rendered in response to applications filed by the City of Surrey with respect to storm sewers within railway corridors (the "Surrey Decisions")1, the CTA has confirmed that section 101 of the Act does not restrict an application for a utility crossing only to instances where no other legislative jurisdiction is available. Rather, section 101 is accessible to a person who is unsuccessful in negotiating an agreement relating to the construction, maintenance, or apportionment of costs of a utility crossing. With respect to compensation, the CTA confirmed its practice of not requiring compensation in cases where no damage to the railway company or its land has been demonstrated.
In past decisions, the issue of liability was unsettled and, in some cases, the CTA imposed very broad indemnification obligations on local governments and utility companies in favour of railways and, in other cases, held that the issue was best resolved by the courts. In the Surrey Decisions, the CTA clearly concluded that liability for negligent acts by either party at railway crossings ought to be determined by the civil courts in the province in which the crossing is situated and, therefore, the CTA did not impose any terms and conditions with respect to liability. This is good news for local governments and is indicative of a trend for the CTA not to decide the issue of liability or indemnification between the parties.
Footnote
[1] See CTA Decisions 213-R-2015, 274-R-2015 and 275-R-2015
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