Authors: Drew Tyler, Ian MacKay
Canada’s railways extend for almost 50,000 km. Along these tracks are countless crossings—public roads, watermains, sewers, telecommunication lines and energy pipelines.
Ideally, when a new crossing is required or an old crossing needs alteration, the railway and the roadway authority or utility company will come to an agreement on the construction, maintenance, design and operation of the crossing. However, railways possess an inherent advantage in these negotiations. In most cases, a crossing provides the railway with no operational benefit and therefore little incentive to move negotiations forward. Meanwhile, municipalities and utility companies have construction budgets, schedules and direct economic interests tied to the timely, efficient construction of the crossing. This imbalance provides railways with an opportunity to extract particularly favourable terms and conditions from those seeking to install a crossing.
Fortunately, there is recourse for those stuck in unsuccessful crossing agreement negotiations. The Canadian Transportation Agency has authority over federally regulated railways, and some provincially regulated railways, to authorize road and utility crossings, but only once negotiations prove unsuccessful. The Agency has declared that its jurisdiction is limited to authorizing a suitable crossing and apportioning the costs for the crossing’s construction and maintenance. A suitable crossing is one that is adequate and appropriate for the purposes for which it was intended and installed. The Agency will not impose other terms and conditions, for example, those related to fees, liability, term or duration, alteration, access and decommissioning. Parties, if they choose to, may agree on such terms and conditions or leave them to be decided on the basis of common law or applicable legislation.
The Agency’s jurisdiction to authorize crossings offsets railways’ inherent advantage in crossing negotiations. A railway is in a much weaker position to negotiate favourable terms and conditions associated with the crossing once the Agency has authorized the crossing’s construction.
Those seeking to construct a crossing or amend an existing crossing agreement should consider the Agency’s crossing approval authority early in their planning and as part of their negotiation strategy. The chances of timely, successful crossing negotiations are increased when parties are aware of their rights.