The safety at federally regulated grade crossings of railway tracks is a shared responsibility. The Federal Grade Crossings Regulations (GCRs) apply to public grade crossings and private grade crossings (including Section 102 “farm” crossings). The railway company, as well as those with a right with respect to a private grade crossing, have obligations under these regulations.
Numerous farm properties have an active railway line passing through the farm and a private level crossing over the rail line that serves as the farmer’s only means of access to fields on the opposite side of the tracks. Safe rail transport of agricultural goods to market is essential to the industry, as is safe access to landlocked parcels via private crossings. Unsafe private crossings must be upgraded to keep farm families, farm workers, and the farmers safe.
While all members with private crossings are expected to comply with GCRs, the costs and associated responsibilities of upgrading these crossings will be borne by the landowner, the respective railway company, or shared. Who is responsible for these costs depends on whether the safety upgrade work is needed on private land or the railway’s land. It also depends on the type of private crossing, as determined under Sections 102 or 103 in the Canadian Transportation Act.
For example, over the last few months, several members who have private grade crossings on their properties have received contracts letters from railway companies that outline the work and maintenance required to bring their crossings into compliance with the GCRs. These contracts outline the proposed maintenance work to be done by railway companies as well as the costs to be borne by the property owner, and the need for the property owner to purchase liability insurance by a specified compliance deadline.
We encourage members that have received letters from railway companies regarding their private crossings from railway companies to verify their crossing type – whether it is a Section 102 (‘farm’ crossing) or Section 103 (all other types of private crossings). OFA wants to make it clear that not all crossings located on a farm, are considered Section 102 ‘farm’ crossings by virtue of being on a farm. Each crossing has its own history which will determine who is responsible for the costs of maintenance and compliance with the GCRs. Please see the list of criteria below for a summary on the differences between these two types of crossings:
Section 102 Crossings (Otherwise known as ‘farm crossings’):
- Refers to a crossing that is regulated by Section 102 of the Canadian Transportation Act: “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.”
- Refers to circumstances where the crossing exists as a result from the railway line splitting a single parcel of land in two when it was built, leaving the landowner with no way to get from one side to the other without a crossing.
- Landowner has a statutory right to a crossing at the railway’s expense. The landowner must prove that the land was split in this way. If they have enough proof, the railway company will build and maintain the suitable crossing and cover the costs in doing so.
- Typically, there is no formal agreement for construction and maintenance between the landowner and railway.
- Crossing use is typically for seasonal and/or for agricultural activities and there is no public use or access.
- Conditions where the definition of a farm crossing would not apply:
- The lands were severed before 1888 by the railway line.
- A person does not own parcels of land on opposite sides of and adjoining each side of the railway.
- The title is severed into two separate parcels.
- NOTE: Not all private crossings are deemed to qualify as Section 102 ‘farm crossings’ by virtue of being on a farm.
Section 103 Crossings (All other types of private crossings):
- Refers to a crossing that is regulated by Section 103 of the Canadian Transportation Act: “Agency may order the railway to construct a suitable crossing if the Agency considers it necessary for the owner’s enjoyment of the land.”
- Refers to a circumstance where the railway line did not split the land when it was built, or the landowner does not have proof that it did. However, the landowner needs a crossing to get to their land and requests the railway company build a suitable crossing.
- The crossing is not a right by the landowner. Rather, these crossings result from a discretionary order made by the Canadian Transportation Agency. Therefore, these crossings exist at the expense of the landowner.
- Typically includes construction and/or maintenance agreements between the landowner and the railway company.
- Typical crossing use by 3 or fewer private dwellings; private owner or company; association or groups.
- Conditions where these private crossings have been granted to landowners:
- No alternate access available to the landowner.
- No public roads bordering the landowner’s property which could provide alternate access.
- Owner is landlocked by the railway right of way.
- A crossing is the only practical access to the landowner’s property.
Based on a few agreements sent to our members so far, it appears that railway companies have determined that some of these crossings are private crossings without fully considering whether this might in fact be a farm crossing (which would be at the expense of the railway to provide and maintain). We encourage members to reach out to their railway to confirm whether their crossing meets the stipulations to be deemed a Section 102 crossing instead of a Section 103 crossing. If you can’t come to an agreement with the Railway Company, please contact the Canadian Transportation Agency to solve the dispute.
For further information, please review the Canadian Transportation Agency’s Guide to Railway Crossings.
Please see a link to the Canadian Transportation Act here.
Farm Safety and Rail Crossings Webinar (June 17, 2021). This webinar is recommended for members who have private grade crossings that are affected by the Grade Crossings Regulations. About 10 minutes into the video, Guest Speaker Li-Lian Lui speaks to the differences between Section 102 and Section 103 crossings.