Legal disputes often arise where construction or development projects are contemplated that affect a railway's right of way. Where parties involved are unable to reach an agreement on a proposed work, they may wish to bring an application under s. 101(3) of the Canada Transportation Act (the "Act") for an order from the Canada Transportation Agency (the "CTA").
Section 101(3) grants the CTA authority to make an order concerning a road crossing, utility crossing, or related work – but only where an agreement governing the work does not already exist.
Often at the heart of these disputes are historical agreements between the parties or their predecessors made decades – and sometimes more than a century – earlier. Determining whether and how these historical agreements apply to modern-day scenarios can pose a significant challenge to the parties involved.
On January 17, 2025, the Federal Court of Appeal released two companion decisions that illustrate how historical railway agreements may function in present-day contexts.
BNSF Railway Company v. Greater Vancouver Sewerage and Drainage District, 2025 FCA 12 ("BNSF 12")
In BNSF 12, the Federal Court of Appeal reviewed a decision of the CTA on an application under s. 101(3) by Greater Vancouver Sewerage and Drainage District. The CTA made an order authorizing the Drainage District to construct and maintain an overhead sewerage pipe on a bridge owned by BNSF Railway and crossing over BNSF's railway line.
The Drainage District sought to replace the existing 12-inch diameter pipe running over the bridge with a new, 24-inch diameter pipe which would be attached to the utility bridge.
BNSF took the position that the work was governed by an existing agreement from 1959, under which BNSF had granted the Drainage District "license and permission to attach, maintain and operate a 12-inch sanitary sewer pipe" over the line. BNSF claimed the proposed work fell within the meaning of "maintain" under the 1959 agreement, and thus the Agency did not have jurisdiction to make an order respecting the work.
The Drainage District argued that the proposed work was well beyond the meaning of "maintenance", and instead comprised a new and separate "reconstruction" not contemplated under the 1959 agreement.
The Federal Court of Appeal agreed with the CTA's conclusion that the 1959 agreement did not apply. The Court held that the proposed works were beyond the scope of the "maintenance" contemplated in the original agreement, noting that the old pipe would be completely removed and replaced, and the new pipe would be larger, made of different material, built to comply with newer standards of construction.
BNSF Railway Company v. Greater Vancouver Water District, 2025 FCA 13 ("BNSF 13")
In BNSF 13, the Court reviewed another decision of the CTA under s. 101(3) of the Act, in which the CTA authorized the Greater Vancouver Water District to reroute a watermain located on BNSF's right of way.
BNSF appealed, contending that:
– first, the CTA did not have jurisdiction under s. 101(3) because the proposed rerouting was covered under an agreement from 1979; and
– second, the CTA did not have jurisdiction under s. 101(3) because the proposed rerouting did not constitute a "railway work" within the meaning of s. 100 of the Act.
Like in BNSF 12, the Court found on the first point that the rerouting work fell outside the scope of work contemplated in the 1979 agreement.
On the second point, BNSF purported that the work also fell outside of the scope of s. 101(3) because the watermain did not fall within the Act's definition of a "utility crossing" as "the part of a utility line that passes over or under a railway line".
BNSF argued that the meaning of "railway line" was limited to only the railway tracks, not the right of way on which those tracks were located. Though the watermain certainly crossed over BNSF's right of way, neither its existing path nor the proposed rerouted path would cross over or under the actual railway tracks. Thus, BNSF argued, the CTA had no jurisdiction to make an order regarding the rerouting.
The Water District, on the other hand, advocated for a broader interpretation of "railway line" that would include not only the railway tracks, but also the railway's right of way on which those tracks are located. The Water District relied on previous CTA decisions and principles of statutory interpretation in support of its position.
The Federal Court of Appeal ultimately agreed with the Water District's broad interpretation of "railway line" and upheld the CTA's order.
The recent decisions in BNSF 12 and BNSF 13 provide some clarity on when and how historical railway agreements may apply to present-day disputes concerning land and railway rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
