ROMA seeks intervener status in drainage dispute

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Ontario Construction News staff writer

The Rural Ontario Municipal Association is seeking legal intervener status in a dispute between Canadian National Railway Co. and the City of Sarnia in which the municipality is accusing the railway of not paying its fair share of the cost of drainage work on CN property.

“Despite complying with {Ontario’s Drainage Act} for more than a century, railways have started telling municipalities that they will not cover the costs,” the association said in a statement May 18.

CN, which in 2022 informed municipalities that it would no longer be paying for drainage assessments for the installation and maintenance of municipal drain infrastructure in rural Ontario, says because railways are federally regulated, they are not bound by the provincial Act. The railway has applied to the Canadian Transportation Agency to settle the matter with Sarnia.

While seeking intervenor status in the application, ROMA says the CTA is not the proper authority, arguing that appeal processes set out in the Drainage Act are preferable means to resolve the dispute.  If CN wants to make a constitutional argument that it is exempt from the Act, that debate should be heard by the Ontario Superior Court, it adds.

According to research gathered by ROMA, at least 30 municipalities indicated they experienced problems with Drainage Act compliance by CN.

Under the Act, landowners share the cost for work on municipal drains located on the owner’s property to help prevent flooding and property damage in rural areas, assure safety and to allow rail services as well as other land uses. It is one of Canada’s oldest laws, dating back to 1859.

“Railways are essentially asking Ontario’s property taxpayers to foot the bill for project costs that should be covered by large, wealthy corporations,” said ROMA chair Robin Jones. “Railways are harming the very communities that produce the goods they move across the province.”

ROMA says unpaid maintenance costs from CN and other railways are nearing $500,000 and the tab for unpaid capital construction projects is crossing $1 million. It says about $1.7 million in critical capital construction projects have been delayed due to a backlog created by the railways’ lack of co-operation.

Minister of Agriculture and Rural Affairs Lisa Thompson has said that the Drainage Act applies to all federally regulated railways.

CN, meanwhile, responded in a statement earlier this year.

“CN maintains that the cost apportionment of work required on, over or under its right of way ought to be determined by existing federal processes found in the Canada Transportation Act. CN has always stated that it is willing to pay its fair share based on the determinations of those federal processes. CN agrees that the current situation requires resolution and is exploring options to address this impasse.”

 

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