Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
October 13, 2021
CASE NO(S).:
MM180069
PROCEEDING COMMENCED UNDER subsection 30(1) of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1 and section 123 of the Railways Act, R.S.O. 1950, c.331
Applicant
Ontario Northland Transportation Commission
Subject:
Maintenance costs of road crossings over railway right-of-ways
Property Address/Description:
Armstrong/Evanturel Boundary Road, Kerr's Road & Bryan's Road
Municipality:
Township of Evanturel
OLT Case No.:
MM180069
OLT File No.:
MM180069
OLT Case Name:
Ontario Northland Transportation Commission v. Evanturel (Township)
PROCEEDING COMMENCED UNDER section 12(1) of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1
Request by:
Township of Evanturel
Request for:
Request for Directions
Heard:
Written hearing
APPEARANCES:
Parties
Counsel
The Corporation of the Township of Evanturel
Orlando M. Rosa
Ontario Northland Transportation Commission
Raivo Uukkivi
DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL
1Ontario Northland Transportation Commission (“ONTC”) is an Ontario Crown Agency established in 1902 as the Temiskaming and Northern Ontario Railway (“T&NO”) by a Statute of the Province of Ontario. T&NO was continued under the Ontario Northland Transportation Commission Act in 1946 and has been known as ONTC since that time. It owns 675 miles of mainline track, exclusive of spur lines, across northeastern Ontario and northwestern Quebec which intersects countless highways. Part of ONTC’s railway right of way is part of the “Temagami Subdivision” (“TSD”) within the boundaries of The Corporation of the Township of Evanturel (Evanturel). The railway was constructed in the Evanturel railway right-of-ways around 1905-1906 and currently intersects with roads at five locations within Evanturel.
2ONTC is governed by the following legislation:
Ontario Northland Transportation Commission Act, RSO 1990, c 32 (ONTC Act)
The Railways Act, 1950, c 331, to the limited extent provided by the ONTC Act (1950 Railways Act)
The Ontario Railway Act, RSO 1906, c 30 to the limited extent provided by the ONTC Act (1906 Railway Act)
3Evanturel is a municipal corporation within the District of Timiskaming.
4On October 3, 2018, ONTC served an Application pursuant to s. 30(1) of the Local Planning Appeal Tribunal Act, (“LPATA”) claiming that the Township was liable to pay invoices for repairs made by ONTC at three rail crossings within the Township namely:
a. Armstrong/Evanturel Boundary Road, Mileage Point 131.67, Temagami Subdivision;
b. Kerr’s Road, Mileage Point 136.52, Temagami Subdivision; and
c. Bryan’s Road, Mileage Point 137.65, Temagami Subdivision.
MOTION BY TOWNSHIP OF EVANTUREL
5The Township has brought a Motion for an Order of the Tribunal that it has no jurisdiction to adjudicate on the Application filed by ONTC pursuant to s. 30(1) of the LPATA and s. 123 of the Railways Act, (“RA”) for an order that Evanturel is liable to pay invoices for repairs made by ONTC at the three rail crossings within the Township referred to above.
6The materials before the Tribunal on this Motion are:
(a) Evanturel Motion Record dated March 8, 2021, including the Affidavit of Virginia Montminy sworn, March 5, 2021; Affidavit of Jeannie Bright sworn, March 5, 2021; and the Affidavit of Rui Fernandes sworn, March 5, 2021;
(b) ONTC Notice Response to Motion dated March 31, 2021 including the Affidavit of Erin Mullens, sworn March 30, 2021; and
(c) Evanturel Reply dated May 6, 2021 to ONTC Notice of Response to Motion.
The Grounds for the Motion
7Evanturel relies on Sub-section 30(1) of the LPATA, which provides as follows:
Jurisdiction and powers of Tribunal
30(1) The Tribunal has jurisdiction and power,
(a) to hear and determine any application with respect to any railway or public utility, its construction, mainten
ance or operation by reason of the contravening of or failure to comply on the part of any person, firm, company, corporation or municipality with the requirements of this or any other general or special Act, or of any regulation, rule, by-law or order made thereunder, or of any agreement entered into in relation to such railway or public utility, its construction, maintenance or operation; and
(b) to hear and determine any application with respect to any tolls charged by any person, firm, company, corporation or municipality operating a railway or public utility in excess of those approved or prescribed by lawful authority, or which are otherwise unlawful.
8Evanturel maintains that the preliminary issue in this Application, is whether or not the Tribunal has the jurisdiction to hear ONTC’s Application wherein it is seeking an Order that Evanturel pay for the maintenance and repair of the above referenced three (3) level crossings within the Township.
9It further maintains that pursuant to s. 30(1) of the LPATA, LPAT has jurisdiction to determine any application with respect to any “Railway”, its construction, maintenance or operation. However, LPAT’s jurisdiction is limited to adjudication on matters arising by “reason of the contravening of or failure to comply” with the requirements of “this or any other general or special Act, or of any regulation, rule, by-law or order made or any agreement entered into in relation to such railway...”. Accordingly, the Tribunal’s jurisdiction is premised on there being a contravention of an underlying statute, regulation, Order or agreement.
10Furthermore, Evanturel argues that ONTC has not provided any evidence nor is there any evidence of;
any statutory obligation on the Township to pay for and/or perform maintenance on these level crossings;
any Order of the Board requiring the Township to pay for maintenance of these level crossings;
any Agreement between ONTC and the Township in regard to such maintenance or payment for the maintenance or operation of these level crossings.
11In summary, counsel for Evanturel argues that the absence of any underlying legislation, order or agreement relative to the maintenance, apportionment of cost of maintenance or operation of the level crossings referenced in the application by ONTC, disentitles ONTC from making the application and seeking a reimbursement of costs from Evanturel. ONTC’s Application is completely premised on there being some authority, whether in statute, regulation, or Agreement, permitting it to enforce and invoice the Township for maintenance of these level crossings. The Tribunal has no jurisdiction to make an adjudication under s. 30(1).
12Counsel for Evanturel argues that the facts set out in the Affidavit of Virginia Montminy (sworn March 5, 2021), who is the Clerk of Evanturel, indicates that Evanturel has not paid ONTC invoices for the maintenance of railway crossings despite attempts by ONTC in the past to invoice for the costs of the maintenance of railway crossings. Counsel also argues that ONTC’s reliance on the “Junior-Senior” Rule employed in the Federal Railway Statutory Framework to invoice Evanturel for the maintenance of level crossings within its jurisdiction is not applicable here and that the statutory basis for allocating costs in the Federal sphere is different than in the Provincial Railway Statutory Framework and that there is no statutory basis, which would permit the allocation of the costs of maintenance of these crossings. Therefore, there is no jurisdiction to apply the “Junior-Senior” rule. Furthermore, the Affidavit of Erin Mullens, sworn March 30, 2021, relied on by ONTC, assumes that the roads at these level crossings, which are the subject of this Application, were constructed after the Railway was constructed, but does not offer any first hand knowledge or evidence to support her assertions.
ONTC RESPONSE TO MOTION
13ONTC takes the position that the Motion should be dismissed and requests that the Tribunal issue an order confirming Tribunal has jurisdiction to make declarations as to responsibility for repair and maintenance of crossings over railway rights-of-way and to make orders to pay such costs.
14ONTC also requests that the Tribunal issue an Order striking the Affidavit of Rui Fernandes, sworn March 5, 2021 on the grounds that it contains impermissible and inextricable legal argument on the ultimate legal issue of jurisdiction to be considered by the Tribunal, and that in any event it is also wrong in law.
15ONTC states that its application seeks to have the Tribunal exercise its clear jurisdiction to:
a. hear and determine a contravention of legislation, rule, or order made thereunder, or of an agreement, in relation to railway maintenance; and
b. inquire and determine all matters respecting a highway crossing including the allocation of costs.
16Counsel for ONTC maintains that Evanturel makes assertions in its motions that are factually and legally incorrect and that a review and analysis of ONTC’s application should lead the Tribunal to the following conclusions:
Ontario Northland is not seeking a retroactive order requiring Evanturel to pay costs;
The Tribunal’s jurisdiction does not require a written agreement or instrument to make the order requested by ONTC; and
ONTC has an enforceable agreement with Evanturel regarding payment of crossing costs as disclosed.
17While the Township has denied the existence of an agreement, ONTC maintains that Evanturel has for decades, paid invoices tendered and otherwise negotiated the costs to be incurred or paid to repair or maintain the subject crossings and conducted itself as a party bound by agreement to do so. In particular, ONTC maintains that a written agreement was made in 1983, which provides that Evanturel is responsible for 100% of all maintenance work for a portion of highway that includes the Armstrong-Evanturel Crossing. With respect to Kerr’s Crossing, ONTC argues that a verbal agreement with respect to costs exists, wherein Evanturel accepted its responsibility for costs and negotiated costs to be paid on this basis. With respect to Bryan’s Crossing, ONTC argues that Evanturel had accepted its responsibility for costs, negotiated costs and requested estimates on the basis of a clear understanding that it was responsible for costs, and arranged for costs to be paid.
18ONTC also maintains that in many cases, municipalities whose highways cross the rail rights-of-way, pay some or all of the maintenance and repair costs, which are often allocated in accordance with agreements, many of which are not in writing, and most of which are determined based on the “Junior/Senior Rule.” This rule provides that the party who arrives second, i.e. creates the intersection that necessitates the crossing, is the “Junior” responsible for repair and maintenance costs related to the crossing. ONTC argues that Evanturel started refusing to pay for its share of repair and maintenance costs and that costs to maintain and repair the crossings in the future will continue to accrue. Without an order in place, the use, obligations and condition of the crossings are brought into question and will regularly end up as a dispute that is squarely within the jurisdiction of the Tribunal.
ANALYSIS AND FINDINGS
19The Tribunal has carefully considered the submissions of counsel and finds that the motion should be dismissed for the reasons that follow.
20Firstly, the Tribunal agrees with counsel for ONTC that the opinion of Mr. Fernandes set out in his Affidavit, sworn March 5, 2021 is inadmissible and should be struck from the record on this motion as this opinion goes to the ultimate legal issue of jurisdiction of the Tribunal. While the Tribunal has broad powers to admit evidence that is otherwise inadmissible in a court of law by operation of s. 15 of the Statutory Powers Procedure Act, the Tribunal’s practice does not allow lawyers to give argument cloaked as evidence. This is not a situation where the Tribunal is asked to accept the expert opinions from various qualified experts, such as land use planners, on the proper interpretation of instruments such as provincial policy and official plans and are matters linked to the work of a land use planner and assist the Tribunal. In this case, it is clearly a legal argument by a lawyer cloaked as opinion. The opinion of a lawyer on domestic law is generally considered to be inadmissible opinion evidence. The jurisprudence is clear that the courts have regularly guarded against lawyers cloaking legal argument as “opinion.”
21The Tribunal finds therefore that the opinion set out in the Mr. Fernandes’ Affidavit improperly and directly usurps the role of the Tribunal and will therefore be struck from the record.
22The Tribunal notes that since the filing of the application by ONTC as well as the within Motion by Evanturel, LPATA has been repealed and that the Ontario Land Tribunal (“OLT”) has been created by the enactment of the Ontario Land Tribunal Act (“OLTA”). The LPAT is continued as the OLT under this legislation.
23The OLTA now provides simply that the Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by the OLTA or any other Act. In this case, the jurisdiction and powers of the OLT as it relates to the hearing and determination of any application with respect to a railway, its construction, maintenance or operation is now found under s. 44(1) of the ONTC Act, which makes it clear that the Tribunal maintains the jurisdiction to provide for the remedies afforded to ONTC and sought in this application. It reads as follows:
“44 (1) The Ontario Land Tribunal has jurisdiction and power,
(a) to hear and determine any application with respect to a railway, its construction, maintenance or operation by reason of the contravening of or failure to comply on the part of the Commission or any other person or entity with the requirements of any Act, or of any regulation, rule, by-law or order made under any Act, or of any agreement entered into in relation to a railway, its construction, maintenance or operation;”
24The Tribunal finds that given the disagreement between the parties as to the existence or non-existence of agreements between them as to the apportionment of costs for the subject crossings, it cannot allow the motion based on the evidence before it as well as the submissions of counsel. The extensive submissions by counsel for Evanturel has convinced the Tribunal that this is a matter which should proceed to a full hearing given the disagreement as to the facts relied on by both parties as well as the interpretation of the legislation and jurisprudence as it may relate to an order or statutory basis that creates an obligation for the maintenance or repair costs relating to crossings by either the ONTC or Evanturel .
25The Tribunal also finds that the dispute between the parties as to the existence or non-existence of agreements between Evanturel and the ONTC as to the payment of maintenance costs for the subject crossings, is a question of fact that should be determined by the Tribunal after a full hearing of the application with viva voce evidence and full rights of cross-examination.
ORDER
26The Tribunal orders as follows:
The Affidavit of Rui Fernandes sworn, March 5, 2021 is hereby struck from the record; and
The Motion by Evanturel is hereby dismissed.
“R.G.M. Makuch”
R.G.M. MAKUCH
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.