In the vast majority of cases in Canada, railway company tracks and their stakeholder neighbours coexist seamlessly. However, disputes between railways and stakeholders can occasionally occur. These disputes provide insight into the issues that some stakeholders have experienced with noise, vibration, accidents, historical land use conflicts, and a variety of site-specific conditions that can result from railway operations. These disputes are often expressed through letters of complaint directed to railway, municipal and federal government officials, appeals to the Ontario Municipal Board, court cases, as well as complaints before the Canadian Transportation Agency (Agency).
Local Dispute Resolution Framework
In most disputes, complainants and railways can independently resolve matters by negotiating agreements amongst themselves. Stakeholders are encouraged to have regard for and utilize, where applicable, the Local Dispute Resolution Framework established by the RAC/FCM Dispute Resolution Subcommittee. This dispute resolution process should be considered prior to involving the Agency.
A. The following guiding principles should be considered through the local dispute resolution process:
1. Identify issues of concern to each party.
2. Ensure representatives within the dispute resolution process have negotiating authority. Decision making authority should also be declared.
3. Establish in-person dialogue and share all relevant information among parties.
B. Dispute Resolution Escalation Process
Municipal and railway representatives should attempt resolution in an escalating manner as prescribed below, recognizing that each of these steps would be time consuming for all parties.
1. Resolve locally between two parties using the Generic Local Dispute Resolution Process.
2. Proceed to third-party mediation/facilitation support if resolution not achieved.
3. Proceed to other available legal steps.
C. Generic Local Dispute Escalation Process
1. Face-to-face meeting to determine specific process steps to be used in resolution attempt. A Community Advisory Panel formation should be considered at this point.
2. Determination of which functions and individuals will represent the respective parties. Generally this would include the municipality, the railway, and other appropriate stakeholders.
3. Issue identification:
a) Raised through community to railway. This type of issues could be the result of an unresolved outstanding proximity issue, operational modifications, or changes in rail customer operation (misdirected to railway).
b) Planned railway development that may impact community in the future.
c) Raised through the railway to community. This type of issue could be the result of a municipal government action (rezoning, etc.).
4. Exploration of the elements of the issue. Ensure each party is made aware of the other’s view of the issue – a listing of the various aspects/impacts related to the issue.
5. Consult any existing relevant proximity guidelines or related best practices (e.g. this report).
6. Face-to-face meetings between parties representing the issue to initiate dialogue for dispute resolution process. Education, advocacy of respective positions.
7. Attempt compromise/jointly agreed solution. (If not, proceed to step B2 above).
8. For Jointly agreed solutions; determine necessary internal, external communication requirements and or requisite public involvement strategies for implementation of compromise.
The Canadian Transportation Agency's Mandate on Noise & Vibration
Agency Mandate under the Canadian Transportation Act CTA)
The Agency is a quasi-judicial administrative tribunal of the federal government that can assist individuals, municipalities, railways, and other parties in resolving disputes.
The Agency offers a number of dispute resolution services, ranging from facilitation to mediation, arbitration (rail), final offer arbitration, and adjudication. The parties involved in a transportation-related dispute can choose from among these services. It is the parties' responsibility to evaluate their dispute resolution options.
Figure X - Dispute Resolution Spectrum
The CTA authorizes the Agency to resolve complaints regarding noise and vibration caused by the construction and operation of railways under its jurisdiction.
Section 95.1 of the CTA states that a railway shall cause only such noise and vibration as is reasonable, taking into account:
• its obligations under sections 113 and 114 of the CTA, if applicable;
• its operational requirements; and
• the area where the construction or operation takes place.
If the Agency determines that the noise or vibration is not reasonable, it may order a railway to undertake any change in its railway construction or operation that the Agency considers reasonable to comply with the noise and vibration obligation set out in section 95.1 of the CTA. Agency decisions are legally binding on the parties involved, subject to the appeal rights.
The CTA also grants power to the Agency to mediate or arbitrate certain railway disputes with the agreement of all parties involved, and in some cases or certain other railway matters that fall outside of the Agency’s jurisdiction.
The Agency has developed Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration (Guidelines). They explain the process to be followed and include a complaint form, and can be found through the following link: www.otc-cta.gc.ca/eng/rail-noise-and-vibration-complaints.
Collaborative Resolution of Complaints
The CTA specifies that before the Agency can investigate a complaint regarding railway noise or vibrations, it must be satisfied that the collaborative measures set out in the Guidelines have been exhausted.
Collaboration allows both complainants and railways to have a say in resolving an issue. A solution in which both parties have had input is more likely to constitute a long-term solution and is one that can often be implemented more effectively and efficiently than a solution imposed in a decision rendered through an adjudicative process.
Under the Agency's Guidelines, collaborative measures are expected to be completed within 60 days of the railway receiving a written complaint - unless the parties agree to extend the process (The railway must respond to a written complaint within 30 days, and agree on a date within the following 30 days to meet and discuss the resolution of the complaint). To satisfy the collaborative measures requirements of the CTA, the following measures must be undertaken:
• Direct communication shall be established among the parties.
• A meaningful dialogue shall take place.
• Proposed solutions shall be constructive and feasible.
• Facilitation and mediation shall be considered.
Mediation is a collaborative approach to solving disputes in which a neutral third party helps to keep the discussion focused and assists the parties in finding a mutually beneficial solution. The parties jointly make decisions to resolve the disputed issues and ultimately determine the outcome. The mediation process is described below.
Agency mediation has successfully resolved disputes with major rail and air carriers, airport authorities, and private citizens. It provides an opportunity for the parties involved to understand each other's perspective, identify facts, check assumptions, recognize common ground, and test possible solutions.
Mediation is an informal alternative to the Agency's formal decision-making process. It can be faster and less expensive, with the opportunity to reach an agreement that benefits both sides. Mediation tends to work well in disputes involving several major transportation service providers. In fact, a number of carriers have mentioned in recent years that they consider mediation their first alternative for dispute resolution.
To initiate a mediation process, contact the Agency and it will contact the other parties to determine if they are willing to participate. If all parties agree to mediate, an Agency-appointed mediator will manage the process. Discussions will take place in an informal setting. Collectively, all of the conflicting issues are addressed in an attempt to negotiate a settlement.
Mediation must take place within a 30-day statutory deadline, which is much shorter than the 120-day deadline established in the CTA for the Agency's formal dispute adjudication process. The deadline can be extended if all parties agree. A settlement Agreement that is reached as a result of mediation may be filed with the Agency and, after filing, is enforceable as if it were an Order of the Agency. A complete description of the mediation process can be found on the Agency’s web site.
All mediation discussions remain confidential, unless both parties agree otherwise. If the dispute is not settled and requires formal adjudication, confidentiality will be maintained and the mediator will be excluded from the formal process.
The Agency currently does not charge the parties for its mediation services. The parties are responsible for their own costs, which may include, but are not limited to, travel expenses and fees for any resources that the parties wish to engage (i.e., parties' legal counsel and subject matter experts).
Filing a Complaint with the Agency
The Agency will only hear a complaint once it is satisfied that the parties have exhausted the collaborative measures set out above. Should one of the parties fail to collaborate, the Agency may accept the filing of a complaint before the expiry of the above-noted 60 day collaborative period.
In cases where the parties are not able to resolve the issues between themselves or by way of facilitation or mediation, a complaint may be filed with the Agency requesting a determination under the formal adjudication process. The complaint must include evidence showing that the parties have exhausted, or that one of the parties has failed to participate in, the collaborative measures set out above.
Formal complaints may be filed by individuals, institutions, local groups, or municipalities. When the Agency reviews a complaint, it will ensure that the municipal government is informed of the complaint and will seek its comments, if appropriate.
To avoid reviewing numerous complaints for the same concern(s), the Agency encourages complainants to consult others potentially affected before filing a complaint. This may save time and effort for all parties. For such group complaints, parties should confirm the list of complainant(s) and who is represented under the group; provide contact information and evidence of authorization to represent; provide a list of the members of the association and their contact information, where there is an organization/association; provide, in the case of an organization/association, the incorporation documents and the a description of the organization/association and its members' interest in the complaint.
The Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration are primarily meant to address noise and vibration disputes with regard to existing railway infrastructure or facilities. For railway construction projects that require Agency approval under subsection 98(1) of the CTA, railways must evaluate various issues, including noise and vibration.
Applications must include the Railway Noise and Vibration Application Form and all supporting information. Information brought before the Agency should be specific and substantiated.
In accordance with the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) [Rules], after receiving a complaint, the Agency ensures that the railway company has the opportunity to answer the complaint. Under the Rules, the railway company must file their answer within 15 days after receiving a notice that the application has been accepted by the Agency. The complainant is given five business days to reply.
Both complainants and railways are responsible for presenting evidence to support their position before the Agency. The Agency may pose its own questions, request further information, and conduct a site visit investigation where the Agency finds it necessary.
As an impartial body, the Agency cannot prepare or document a complaint nor can it provide funding to any party for the preparation of a complaint, answer, or reply. The Agency assesses complaints on a case by case basis, after careful consideration of the evidence and submissions in the record of the complaint
The Agency strives to process complaints within 120 days of receiving a complete application. However, given the complexities or the number of parties involved in some noise or vibration complaints, this goal may not always be met. In all cases, the acts as expeditiously as possible. Parties are encouraged to continue to work together to seek a resolution even though a complaint may be before the Agency.
When the Agency has reached a decision, the Agency provides it to all parties of the case and posts it on its public web site.
Dispute resolution framework
For more information on the CTA, the Agency and its responsibilities, or Agency Decisions, and Orders, you can access the Agency’s web site at www.cta.gc.ca.
Web site addresses and information on the Agency are subject to change without notice and were accurate at the time of publication. For the most up-to-date information, visit the Agency’s web site.