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Federal Court of Appeal to Rule on Key Railway Noise and Vibration Issue

by on September 8, 2011

For those individuals and communities across Canada currently being negatively affected by railway noise and vibration, the pending outcome of a precedent-setting case to be heard by the Federal Court of Appeal this September 20th will be of enormous, nation-wide significance.

After being plagued for years by late night rail noise, the folks in and around the Quayside Community of New Westminster, B.C. are fed up.  They’re fed up of having their sleep ruined by late night railway noise and vibration from the four rail companies that operate quite literally in their backyard, namely CN Rail, CP Rail, BNSF, and Southern Railway.  Further, they’re fed up with the lack of progress to date in resolving their concerns.

Well Organized, Well Publicized

The article, “Quayside residents continue fight against nighttime train noise”, that appeared in the community newspaper, The New West Record, on November 1, 2010 details the efforts that this very well-organized, close-knit community have made in order to improve their living conditions:

As a result of a complaint filed in 2008, the Canadian Transportation Agency assisted the Quayside Community Board in reaching a mediated settlement with rail companies operating in the rail yard adjacent to the Quayside neighbourhood. The intent of that settlement was to reduce, and ultimately eliminate the unreasonable noise and vibrations being generated by nighttime operations, for the benefit of the community.

In April 2010,the Quayside Community Board filed a new noise and vibration complaint. It has requested that the Canadian Transportation Agency issue an operating guide for the rail companies that restricts operations in this rail yard to between 7 a.m. and 11 p.m., as the railways were not following the mediated settlement.”

View recent television coverage of this issue in the segment “Quiet please in Quayside Residents in NW’s Quayside neighbourhood want trains to be forced to be silent overnight” on Global TV BC on Friday, August 12, 2011.

Read further newspaper coverage, “New Westminster residents hope court case will limit Quayside train noise” in The Vancouver Sun on Friday, August 12, 2011.

 

Effects Likely to be Felt Nationwide

New Westminster residents are now geared up for a showdown with the railways in what promises to be a pivotal decision that will potentially affect not only the future of their community, but will likely send far reaching effects rippling across the entire country.

Brian Allen, Chair of the Quayside Community Board’s rail noise committee, and tireless advocate, details the efforts made after the mediation process in the The New West Record newspaper article:

“…the Quayside Community Board filed a new complaint as a result of the railways’ refusal to meet the terms of the previously mediated agreement.”

He further states:

“…the Canadian Transportation Authority recently ruled in the Quayside Community Board’s favour, but the railway companies then filed a notice of motion for leave to appeal the case to the federal Court of Appeal.”

But, depending on the outcome of this landmark case, which pits the railways up against the jurisdiction of The Canadian Transportation Agency, railway executives might be taking their turn tossing and turning at night instead.

 

Railways Fail to Derail Community Efforts

The President of the Quayside Community Board, James Crosty commented in The New West Record newspaper article that:

“ …the residents’ association has had to contend with “overpowering legalize” presented by the railways…We are going through the minefield of legalese in order to get a solution to the problem. We don’t care about process, we just care about results. The lawyers are fighting the process.”

The same article further states:

“While the Quayside Community Board gets the feeling that railways are “grasping at straws” in their submission, Allen said it will have to wait for a decision from the judge who will consider the issue. He said the current process wouldn’t be necessary if the railways had honoured the spirit and intent of the mediated settlement.”

 

Two Core Parts to the Issue

Board President James Crosty recently summed up how he views the situation at hand:

“There are two major issues to consider regarding rail noise and vibration as it relates to the struggle between the public and train corporations:

One is the question of the Canadian Transportation Agency’s (a quasi-judicial administrative tribunal of the federal government) jurisdiction and power to impose regulations on federally run (rail) companies.

Two is the question of the public right to peace and quiet in the late evening to early morning hours.”

Crosty notes that municipal noise bylaws do not apply to railway noise and vibration, a point not lost on the railways.

 

Kicking and Screaming

Brian Allen sums up the New Westminster situation by saying that:

Everything could be done during the day but these guys just don’t want to take the time to change their schedules and have to be dragged kicking and screaming into the twenty-first century. When the rail yards were built, it was a light industrial area but now it is heavy-use, high-density and people have to live here.”

We applaud the community spirit and enormous time and effort invested by Brian Allen and James Crosty, and the persevering residents of the Quayside Community of New Westminster.

We find their efforts an inspiration, and their determination to find solutions to their community’s problems with railway noise and vibration, a ray of hope for not just the citizens of New Westminster, but potentially for everyone in Canada living with this serious problem.

Brian Allen and James Crosty have our full support!

 

How You Can Help

Please consider showing your support for them, their community, and ultimately for all affected communities across Canada.

If you believe that finding solutions and reducing the impact of railway activities is a much-needed, and vital necessity for the well-being of Canadians, please support this community’s extraordinary efforts to improve their quality of life, and potentially that of many other communities across the country.

If possible, plan on attending this event, which will be held in downtown Vancouver, B.C. Details appear below.

Or, send a brief letter of support to the Quayside Community Board at the email address railnoise@quaysideboard.com.

We’re all in this together!

 ________________________________________________________________________________________

 Quayside Community Board Rail Noise Announcement

On the 20th of September 2011 The Canadian Federal Court of Appeal will be hearing the case (A-25-11) between the rail companies and the Canadian Transportation Agency (CTA) /Quayside Board (QCB).

The Trial will be held at 701 West Georgia, Vancouver BC at the Law Courts Building in the Federal Court of Appeals room from 9:00 AM to 1:00 PM.

The public is welcome to attend and there is seating available for 40 people. We feel it is important to fill the court room as a show of support for the QCB and the CTA. This case will decide whether or not the CTA has the authority to issue rules and guidelines for rail company operations in our community.

If you are planning on attending to show your support please email railnoise@quaysideboard.com and let us know.

 ________________________________________________________________________________________

© Copyright 2011 RailandReason.com

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17 Comments
  1. Jeff Willsie permalink

    I think if you chose to live by the railway you chose to live with the noise & vibration.The Railway was there first. Every industry using the railway will fight any restrictions on the railway as they need their freight moving 24-7.The economic life blood of the Canadian economy depend the railways.
    Jeff Willsie
    President Ontario Southland Railway

    • trainjane permalink

      Hello Mr. Willsie,

      It’s been a long time since we’ve heard from you. Unfortunately, it does not sound like your opinion has evolved very much since your last contact. That’s discouraging.

      To address your comments:

      “The Railway was there first.” Well, not in all cases, Mr. Willsie. Such are the pitfalls of making broad, stubborn, generalizations of a complex issue.

      We think the idea of who was there first needs to be updated with a more modernized, integrated approach in which the community, and its resident neighbours, are treated as stakeholders in rail operations, along with rail customers, rather than this outmoded, and, in our opinion, somewhat combative stance you have seemed to express in prior posts. The Proximity Guidelines and Best Practices issued by the RAC and FCM are a good start.

      We think there’s an opportunity to redefine the relationship between rail companies, customers, and communities, and your views and comments highlight the vital, dire, need for this.

      For example, from your comment on the post “This Blog Needs the Railway Point of View” of 2010/10/12 at 10:27 AM:

      “Folks who move in beside a railway can either put up with the sounds & vibration of the railway or move… The railways are not responsible to their neighbours.”

      A redefined, integrated approach could foster improved communication and understanding of rail operations by community interests, and help place rail interests as being part of the fabric of a community, rather than being at odds with it. Co-operation. What a concept.

      As for another core stakeholder, the railway customer, we note the following part of your most recent comment:

      “Every industry using the railway will fight any restrictions on the railway as they need their freight moving 24-7.”

      However, we note a previous comment you submitted on 2010/09/30 at 5:40 PM:

      “…most shippers see rail transit times as ridiculously slow already.”

      Based on what we’ve been hearing, the “fight” you refer to has more to do with the restrictions originating within parts of the rail industry upon its own customers, with the government seriously considering stepping in if the railways do not improve their service to the affected sectors.

      See “Bad Rail Service Must Be Fixed Now”, in canada.com.

      We previously wrote a post on this very subject, “Regulate this!”

      Perhaps these issues are something to mull over the next time a locomotive gets taken out for a spin to the local Tim Horton’s for coffee…

      From your comment of 2010/12/01 at 7:50 PM:

      “In London the yard engine often went to Tim Hortons. 5 min by yard engine 20 min by car. much safer to.The railways can run the locos aroung for whatever reason they want,just like a truck.”

      Make that a double-double with your carbon footprint!

    • Ian Macmillan permalink

      Regarding Jeff Willsie’s self serving comment about the railway being here first, it is obvious that the Coast Salish peoples were here for thousands of years prior to CN/CPR or any other train company. By his reasoning (and mine) their rights supersede those of the inconsiderate and uncooperative industry to which he belongs. I think that the native people across Canada may have many complaints about the way the train transportation industry has polluted and destroyed their land. Willsie’s attitude of, “We were here first”, reminds me of the Social Credit politician Phil Gagliardi, when dismissing the pollution created by the Port Mellon pulp mill in the early 1970’s:

      “That isn’t the smell of pollution, its the smell of money”.

      The reply from trainjane is far better thought out and written than the one from Jeff Willsie. British Columbians have progressed beyond that kind of mentality, why hasn’t Willsie?

  2. Person permalink

    I just moved in to a condo right by the rail crossing in New Westminster. I was not aware of this when I first moved in. I would not know that trains run all night and that they make loud horn noise. Nobody will investigate 24/7 before they move into a new community to see if there is a noise in the middle of the night. Since then I am having sleepless nights, miserable days and nights.. becoming very aggressive and angry person. Please. Start consider about the community and their lives.

  3. Gary C permalink

    Mr Willsie the fact that you used a fallacy to justify your thought “The Railway was there first” speaks volume about the ill-formed opinion you are trying to sustain.

  4. Technology moves forward as do society’s expectations. If we were still running the same trains, size, weights and speed, with the same frequency as 50 years ago there might not be an issue for most people. But running this generation of trains at today’s speed and frequency on past generations of rails isn’t a fit, literally and figuratively.

    The airlines have moved forward with adopting technology that is not only more efficient but friendlier to the environment. I have yet to see any move by the railways to take this approach. in too many ways the railways are behaving like the coal mining industry. If it’s cheaper to blast the top off a mountain and dump the tailings in the river, then that’s what they do. The railways seem to have the same approach. Why move a track away from populated areas when you can ram more trains, more cheaply, on the existing infrastructure.

    I believe there will be changes in the near future. The rail industry has the opportunity, but seemingly not the will, to set the agenda for the changes.

    • trainjane permalink

      Hello Mr. Bossart,
      Thank you for a well-stated viewpoint that addresses the much over-looked issue of the role that infrastructure can play in proximity issues.
      We completely concur with the many excellent points your have raised here.

  5. Ilia B. permalink

    I am a Quayside resident. Like any normal person, I do prefer peace and quiet unless I am the one making the noise 🙂 Having lived here for half a year, I must say that I love the neighbourhood to death, and I think that Quayside is one of the best real estate deals to be had in Greater Vancouver.

    Having said that, frankly, I am almost embarrassed by the entitlement mentality that permeates QCB’s rhetoric on the issue. The facts of the matter are blindingly obvious to any non-resident (just take a look at the comments on CBC’s story regarding this issue to get a reality check: http://www.cbc.ca/news/canada/british-columbia/story/2011/09/20/bc-new-westminster-train-noise.html). The community was built right on the railroad, and the industry was already there before. It makes sense to any impartial observer that the noise concerns should have been taken into account by civil engineers and construction companies. Suing an already struggling industry in the time of economic hardship is at the very least selfish.

    Why is there so little that QCB is offering in the way of compromise? What are we as a community prepared to do to meet the railroad half of the way? “Being responsible stakeholders in community living” does not help the railroad in any meaningful way, and sure as heck is not offering them any ways to recoup lost revenue because we decided to move in and now have the NIMBY/entitlement mentality.

    Does QCB have any ideas on other noise suppression methods? Has QCB approached the City or government bodies about figuring out a way to build a noise suppressing tunnel around the 1 or 2km of the tracks that are the most problematic? What other avenues are you exploring, in addition to litigating?

    • trainjane permalink

      Thank you for your opinion. We’re glad to hear that you are not one of the many affected persons in this area. During the last circulated petition, in which hundreds of residents took part, 99% of residents approached to sign the petition supported the Quayside Association’s position on this issue. That’s a pretty impressive show of support for the QCB.

      You say that “It makes sense to any impartial observer that the noise concerns should have been taken into account by civil engineers and construction companies.”Our question to you is have these concerns been considered there in New Westminster, and, if so, how, and why have these measures, if any, resulted in so many people being extremely upset at the conditions they are being subjected to by rail interests.

      It’s clear that there is a very significant number of people there who object to the current situation and for whom any such consideration has failed to meet their basic needs in order to have a reasonable quality of life.

      One of the recurring themes we are hearing here from communities is that problems with railway noise and vibration happened when the railway initiated significant changes to their operations without any consultive process with the community. This bypasses any opportunity to consider and mitigate potential impacts before they occur. How do communities plan, given the lack of communication that precedes what are frequently major changes initiated by the railway industry? And why should it be expected that the persons affected by these changes simply absorb them without question?

      You further state that “Suing an already struggling industry in the time of economic hardship is at the very least selfish.” A few points here. A struggling industry? We think not. The profits that big rail are raking in, even in turbulent economic times, are astounding.

      Further, the folks in your area are exercising their rights as citizens under The Canada Transportation Act, section 95, which they are fully entitled to do. Brian Allen of the QCB recently stated that “The QCB has a settlement agreement that the rail companies have breached and the rail companies do not want to abide by the Federal noise regulations that are in place. That is why the court case took place.”

      Under these circumstances, it’s hard to accept your claim that the QCB’s pursuit of this matter, given their claim of a breached agreement, is simply selfish.

      We wish you all the best, and hope that you remain relatively unaffected by the problems being experienced by so many Quayside residents.

      • Ilia B. permalink

        Dear Jane,

        I think I understand your point of view a little more clearly now, but still not completely. I can’t seem to find the specifics of the past agreement that was reached btw. rail and QCB as result of mediation. You do not provide clear indication of how exactly the rail is breaching that agreement and in what way, as you claim, “railway initiated significant changes to their operations without any consultive process with the community.” Once again, without these specifics clearly publicized and explained, I hope you can see how to a casual observer QCB comes off as a lobby of opportunists, rather than a group of people who were wronged by ‘big rail’.

        Reviewing the decision of Federal Court of Appeal (http://decisions.fca-caf.gc.ca/en/2011/2011fca269/2011fca269.html), it looks like they have allowed your appleal? I look forward to you making more information available on the developments.

        • trainjane permalink

          You are absolutely correct in noting that there were no specific details provided here on this blog regarding New Westminster’s Brian Allen’s statement that “The QCB has a settlement agreement that the rail companies have breached and the rail companies do not want to abide by the Federal noise regulations that are in place.”

          The reason for this is that the mediation process with The Canadian Transportation Agency regarding disputes over railway noise and vibration is bound by a confidentiality clause, so no one except the parties involved in the case has any sort of access to the specifics you refer to.

          As for our comment about railways initiating significant changes to their operations without consultive processes, this is, as we stated, a recurring theme we hear from the various communities who have contacted us.

          All too often we are hearing about functional co-existence between railways and residents being turned upside down when the railway opts to alter their operations in a way that proves devastating for the residents who are impacted, and who otherwise could not possibly have ever anticipated the situation they find themselves confronted with.

          As for the Federal Court of Appeal case, we’ll be providing an update once the issue is decided.

      • Rasmine Kabu permalink

        Indicating a preference for less noise or vibration is *NOT* a vote in support of QCB or how it has handled this and your survey did not indicate that it was.

        • trainjane permalink

          We understand that the QCB circulated a petition, not a survey seeking support for its efforts to address railway noise and vibration issues in the Quay area of New Westminster, B.C.

    • Rasmine Kabu permalink

      Have you noticed that when QCB goes on a public rant without offering alternatives that the horn noise gets REALLY loud for a few days? they seem to blow them all dammed night and I’d be lying if I said that doesn’t bother me. There are other ways and there is middle ground and maybe we’d be farther ahead if we worked on trying to find it. I listened to Brian speak once and he sounded like you could deal with him if he thought you were giving him some of what he wanted. Maybe it’s a multi-year solution with gradual improvement as they change things to make some of the noise elsewhere. Now that the court case didn’t go the way the QCB would like, what happens if the railroads go looking to recover their costs? It’s a David and goliath thing and I’d sure hate to see the bill for what the railways must have spent so far. Who is Quayside Community Board, where does it get its money and how deep are its pockets? There must be less than 20 buildings in the area along the tracks there so even if they all pitched in to help and each building came up with fity-thousand or so you’d still be under a million and I bet the costs are higher than that.

      • trainjane permalink

        New Westminster is not the only part of Greater Vancouver currently experiencing particularly loud late night rail whistling, according to what we’ve been hearing.

  6. Rasmine Kabu permalink

    Mr. Allen’s tireless work on the issue are not synonymous with the QCB and I did not mean to downplay his effort. I think he would have gotten farther pursuing enforcement of the original judgement rather than joining a new action but there wouldn’t have been as much press in it for the very politically charged and motivated QCB. It’s just an angry group over there.

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