Agency also determined that CP should be responsible for the costs of constructing and maintaining the crossing.
[2] CP appeals that decision on two grounds:
1. that on a proper interpretation, section 102 is not applicable to the facts of this case; and
2. that because an existing crossing had been closed by an order of Transport Canada under section 31 of the Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.), the Agency was without jurisdiction to make an order under section 102 of the CTA.
FACTS
[3] Frank Marrington, the Muffords' grandfather, owned land in the Township of Langley. The land was adjacent to a road now known as Glover Road. In 1908, Mr. Marrington sold a strip of land approximately fifty feet wide adjacent to and parallel to the road to the Vancouver Power Company Limited.
[4] A railway line was constructed on the fifty foot strip and an electrified railway operation commenced in 1910. A private crossing was constructed between the road and the Marrington property. Actually, the crossing had two lanes thirteen feet apart.
[5] In 1988, the British Columbia Hydro and Power Authority (BC Hydro) successor to the Vancouver Power Company Limited, sold to CP the equipment, the statutory right-of-way and the track structure between Livingston and Pratt, British Columbia, which included the track structure on the strip of land and on which the crossing is located. The land beneath the track structure remained owned by BC Hydro.
[6] The railway line serves the Roberts Bank Coal Terminal and at present, sixteen trains per day operate over the line.
[7] On March 10, 2004, a Transport Canada safety inspector, pursuant to section 31 of the Railway Safety Act, ordered the crossing from Glover Road to the Muffords' property permanently closed to vehicle traffic due to safety concerns. The order referred to complaints from train crews relative to near collisions between trains and motor vehicles. The order gave notice of the procedure to be followed should a person affected by the order wish to seek a review before the Transportation Appeal Tribunal of Canada.
[8] The Muffords did not pursue the review opportunity.
[9] Instead, they applied to the Agency under section 102 of the CTA for an order requiring CP to construct and pay for a crossing providing access between their land and Glover Road. The Agency granted the application and this appeal by CP is from that decision of the Agency.
ANALYSIS
Position of the Parties in respect of Section 102
[10] Section 102 of the CTA provides:
| 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.
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102. La compagnie de chemin de fer qui fait passer une ligne à travers la terre d'un propriétaire doit, sur demande de celui-ci, construire un passage convenable qui lui assure la jouissance de sa terre.
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[11] Section 102 is engaged only when an owner's land is divided as a result of the construction of a railway line. CP argues that section 102 applies only when the railway line bisects a parcel of an owner's land and is intended to ensure uninterrupted access to the land belonging to the owner on both sides of the railway line.
[12] The Muffords and the Agency submit that section 102 may apply when a railway line is constructed on land purchased or expropriated by the railway company at the perimeter of the owner's land where the land on one side of the line continues to belong to the owner and the land on the other side is not owned by the owner - in this case, the land on that side of the line being Glover Road
Standard of Review
[13] The standard of review analysis set forth in Canadian Pacific Railway Co. v. Canada (Transportation Agency) (C.A.), [2003] 4 F.C. 558 at paragraphs 15-21, which followed the analysis in Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476 at paragraphs 10-19, is applicable here. Once leave to appeal has been granted under section 41, the right of appeal suggests less deference. The Agency's expertise lies primarily in its determination of facts and its exercise of discretion. Where the question is one of law the Agency's expertise may be a factor favouring greater deference by the Court. But in cases of ordinary statutory interpretation such as the one at issue here, the Agency's expertise relative to that of the Court would not normally support deference. Here, the Agency's argument centres first on the standard of review and second on the merits. With respect to the merits, the Agency's argument is based on dictionary definitions, legislative history and the rules of bilingual statutory interpretation. These are all matters within the province of the judiciary, suggesting a less deferential review.
[14] The issue here involves a dispute between two parties. It does not involve a balancing of interest. Again, this points to less deference. Finally, the nature of the questions is legal.
[15] For all these reasons, I conclude that the standard of review is correctness.
The Interpretation of Section 102
[16] Words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament (see for example Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21).
[17] The issue involves the interpretation of the phrase "an owner's land is divided as a result of construction of a railway line" in section 102. The most obvious meaning of the phrase is the severing of the owner's land by the railway line. The Agency does not dispute this. At paragraph 33 of its decision it states:
Therefore this application does differ from a typical application pursuant to section 102 of the CTA wherein a landowner's property borders both sides of a railway right-of-way.
[18] However, the Agency says that an interpretation of the term "is divided" that is restricted to severing an owner's land by the line is too narrow and that the term is capable of a broader meaning. Having regard to The Concise Oxford English Dictionary in its decision, the Agency says "divided" includes "to be cut off, separated or parted". Also in its decision, the Agency refers to Black's Law Dictionary for the definition of "divide" as "to cut into parts, disunite, separate, keep apart". The Agency says these definitions do not imply that the landowner's property must border both sides of the railway line. Therefore, the section can apply when a railway line cuts off or separates a property from a public road.
[19] The Concise Oxford Dictionary, 1982, provided in the Joint Book of Authorities does not contain a definition of "divided" as such. The definition quoted by the Agency does not appear. The closest definition is for the word "divide" as "separate, part, cut off or off. (things, thing from)". The Joint Book of Authorities did not include a reference for Black's Law Dictionary. In the 7th edition, there is no definition of "divide" or "divided".
[20] In any event, a dictionary definition alone is of limited assistance without considering the context in which the term is used. The section says that the "owner's land is divided" by the railway line. The ordinary sense is the dividing of an owner's land leaving the owner with land on both sides of the railway line. If the term "is divided" was intended to cover the separation of an owner's land from some other land, it would be expected that the other land would have been referred to in section 102. Indeed, the Concise Oxford English Dictionary definition suggests that when "divided" is used in this context, it would normally be followed by a reference to the thing from which something is being separated. As section 102 reads, it does not refer to other land from which the owner's land is separated by the railway line. This is a strong indication that the natural interpretation is that it is the owner's land that is divided by the railway line.
[21] The Agency found that the French version of section 102, which incorporates the phrase "passer une ligne à travers la terre", is broader than the English version and does not imply that the landowner's property must border both sides of the railway line. It cited Le Petit Robert dictionary to define "à travers" as meaning "en passant d'un bout à l'autre; de part en part." The Agency translated this definition to mean "passing from one end to the other, or from one side to the other".
[22] With respect, the Agency cited the wrong definition from Le Petit Robert. Instead of citing the definition of "à travers" it cited the definition of "au travers". The definition of "à travers" in Le Petit Robert reads: "par un movement transversal d'un bout à l'autre d'une surface", which means "by a transverse movement from one end to another of a surface". It also defines "à travers quelque chose" as "entre" and "milieu (au milieu de)". These definitions translate as "in between" and "in the middle of". The definition gives as an example "passer à travers champs", which means "to get through fields". These definitions accord more closely with the natural interpretation of the English term "divided" and support the proposition that section 102 applies only when the railway line divides an owner's land and the owner has property on both sides of the line.
[23] In any event, it is a principle of bilingual statutory interpretation that where one of the two versions is broader than the other, the common meaning would favour the more restrictive or limited meaning (see Schreiber v. Canada(Attorney General), 2002 3 S.C.R. 269 at paragraph 56).
[24] Having regard to this principle of bilingual statutory interpretation, even if the French version were broader than the English version, the common meaning of the two versions is reflected in the more restricted English version. For these reasons, the Agency's reliance on the French version of section 102 was misplaced.
[25] Prior jurisprudence supports CP's argument that section 102 applies only where a railway line bisects an owner's land leaving the owner with land on either side of the line. In Fafard et al. v. Compagnie des chemins de fer nationaux du Canada (2004), 311 N.R. 293 (F.C.A.), Létourneau J.A. found, at paragraph 5, that "[S]ection 102 covers the detrimental situation where an owner's land is divided in two by a railway line." In the Grand Trunk Railway Company of Canadav. Therrien, [1900] 30 S.C.R. 485, the Supreme Court considered the predecessor of section 102. Sedgewick J., by reference to a similar provision in the English Railway Clauses Consolidation Act of 1845, stated at page 491:
That this provision is intended to apply only to a person who owns parcels of land on opposite sides of and adjoining each side of the railway, is shown in the case of The Midland Railway Co. v. Gribble,( [1895] 2 Chancery Division 827).
[26] He found at page 492:
In other words, it is confined to the person across whose land the railway is carried in the first place, and under certain circumstances to his heirs and assigns, and continues only so long as he or they own land on both sides of the railway. [Emphasis added.]
[27] In Coyne: Railway Law of Canada (Canada Law Book Company: Toronto 1947), the author stated with respect to the predecessor to section 102:
The right arises under this section when the railway is carried across the lands of an owner in such a way as to leave a parcel of his land on each side of railway.
[28] This interpretation has been adopted by the Agency itself in a series of cases to which CP has referred (see ClubLink Corporation Application, Agency Decision No. 417-R-2003, Penner Application, Agency Decision No. 185-R-2001; Westlund Application, Agency Decision No. 642-R-2000).
[29] For these reasons, I am of the respectful view that the Agency erred in finding that section 102 had application to this case.
Jurisdiction
[30] I will briefly deal with CP's alternative argument that the Agency was without jurisdiction to entertain an application under section 102 when the application was, in CP's view, a colourable attempt to appeal the order of the safety inspector under section 31 of the Railway Safety Act to close the crossing. CP says there is a statutory review mechanism available, which was not taken by the Muffords and there is no recourse to the Agency in such circumstances.
[31] I agree that there is no recourse to the Agency from a decision of a safety inspector under section 31 of the Railway Safety Act. However, I do not agree that an order of a safety inspector deprives the Agency of its jurisdiction under section 102. The Agency's jurisdiction under section 102 is not contingent. In circumstances in which it applies, it imposes a mandatory obligation on a railway company. It is not for me to speculate how a railway company could comply with an Agency order under section 102 when a safety inspector has ordered a crossing closed under the Railway Safety Act. I can only say that the obligation under section 102 is mandatory and when it applies, the railway company would have to take such steps in respect of construction and maintenance of a crossing to ensure that the crossing complies with all relevant laws, including the Railway Safety Act.
HARDSHIP
[32] I am not unmindful of the hardship the closing of the crossing appears to have caused the Muffords. The Muffords have always had access to Glover Road. They say their grandfather would not have sold the strip of land for the railway line if he had not been satisfied that there would be a crossing providing for access to Glover Road.
[33] While there is an access to their property from Crush Crescent which runs perpendicular to and intersects Glover Road and crosses the railway line, they point out that the Municipality of Langley restricts them to making only right turns into and out of their property. The Muffords say that the result is that trucks accessing their property from Glover Road using Crush Crescent cannot get back to Glover Road without a detour of 5.5 miles.
[34] These are compelling circumstances and undoubtedly were the reasons motivating the Agency to the conclusion it reached. The Agency obviously understood that the Act did not confer a discretion on it and that the only way in which an outcome favourable to the Muffords could be attained was by interpreting the words of section 102 as it did. Regrettably, I am unable to agree with the Agency's interpretation.
[35] I would observe that prior to the enactment of the CTA in 1996, section 216 of the Railway Act, R.S.C. 1985, c. R-3 did confer a discretion on the Agency in circumstances such as the present to order the railway company to construct, maintain and pay for a crossing. However, section 103 of the CTA, which is the successor to section 216 of the Railway Act, while discretionary insofar as ordering construction of a crossing is concerned, is not discretionary in respect of who is to pay the costs of the crossing. Section 103 provides:
| 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.
(2) The Agency may include in its order terms and conditions governing the construction and maintenance of the crossing.
(3) The owner of the land shall pay the costs of constructing and maintaining the crossing
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103. (1) Si la compagnie de chemin de fer et le propriétaire d'une terre contiguë au chemin de fer ne s'entendent pas sur la construction d'un passage croisant celui-ci, l'Office peut, sur demande du propriétaire, ordonner à la compagnie de construire un passage convenable s'il juge celui-ci nécessaire à la jouissance, par le propriétaire, de sa terre.
(2) L'Office peut assortir l'arrêté de conditions concernant la construction et l'entretien du passage.
(3) Les coûts de la construction et de l'entretien du passage sont à la charge du propriétaire de la terre.
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In all cases other than those covered by section 102, the land owner, and not the railway company, is responsible for the costs of constructing and maintaining a crossing.
[36] Of course, this decision does not preclude the Muffords from bringing a civil action against CP if they are of the opinion that they have a contract or other non-regulatory right to require CP to pay for a crossing to access Glover Road from their property. However, such right of action, if it exists, is outside the jurisdiction of the Agency.
CONCLUSION
[37] The appeal should be allowed and the decision of the Agency should be quashed. There should be no order as to costs.
"Marshall Rothstein"
"I agree
A.M. Linden J.A."
"I agree
B. Malone J.A."
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