Farmers feeling railroaded by lack of farm crossing designation

When is a farm rail crossing not a farm crossing? 

That’s the $5 million question facing many landowners in Eastern Ontario who have found themselves having to fight Transport Canada and CP Rail to make the distinction. 

Why it matters: Some eastern Ontario farmers with railway crossings over their land have suddenly found themselves having to fight CP Rail over maintenance costs.

Three years ago, Transport Canada’s Grade Crossing Regulation amendments to bring sightlines and grade levels into compliance made the distinction between farm and private crossings redundant.

In the spring of 2022, landowners with private grade crossings in eastern Ontario received letters and contracts from CP Rail saying they are on the hook financially for any maintenance work needed on railway crossings on their land.

Now landowners are railing against the farm crossing designation claw back and the contracts which require them to carry $5 million in liability insurance, pay approximately $700 for safety signage and bear the cost of yearly inspections. Refusal to sign the contract could result in crossing removal.

Historically, the railway-maintained farm crossings were installed on farms without public access and used seasonally to access landlocked farmland, said Jackie Kelly-Pemberton, director for Dundas, Grenville, Leeds & Frontenac with the Ontario Federation of Agriculture (OFA).

Now, she said, rail lines are downloading the costs for upgrades and maintenance to farmers and landowners.

“Farmers need these crossings to ensure they can access their land and aren’t cut off from it by the railway tracks running through their property,” Kelly-Pemberton said. “In fact, landowners of farm crossings have a statutory right to a crossing at the railway’s expense.”

The OFA has been drawing attention to the importance of establishing the difference between private and farm crossings and the need to validate and verify a crossing’s status.

“Based on the correspondence farmers have been receiving, this important ground-truthing step did not take place,” said Kelly-Pemberton. “And farmers are now left on their own to try and have the railway designate their crossings as farm crossings.”

She said land severed by the railway before 1888 won’t qualify for “farm” designation. Neither does land severed into two separate title parcels or crossings where the same person doesn’t own land on opposite and adjoining sides of the railway.

She’s spoken to Member of Parliament Michael Barrett of Leeds-Grenville-Thousand Islands and Rideau Lakes and Eric Duncan of Stormont-Dundas-South Glengarry, and both told her they’re working with farmers to rectify the issue.

Duncan is non-plussed about why Transport Canada and CP Rail are focusing on farm crossings that have, for more than a hundred years, not been a safety risk.

“Nobody’s against improving rail safety. But if you look at where the (safety) incidents are with rail crossings, they’re at public crossings,” Duncan said. “Not at these farm crossings that have been just fine for generations.”

He said that people are scrambling to locate 100-year-old documentation to secure a farm crossing designation where they access a landlocked field from another. It’s counterproductive and a waste of time and money, he adds.

According to Duncan, Estella and Ed Rose are an excellent example of an operation with only farm crossing access to landlocked production acres. The couple now faces the untenable decision to sign a contract with significant financial ties, sell the land below market value or lose their crossing altogether.

The Rose crossing was a pre-1888 installation, and while it fits the farm crossing designation to a “T,” it’s considered a private crossing.

Estella Rose, the former deputy mayor of North Dundas, said she’s been in back-and-forth contact with a railway representative to find a solution. While the Roses have farm insurance, the mandatory $5 million liability insurance would cost $1,000 to $1,500 a year.

“The last letter I got said, ‘we have no intention of removing your crossing.” But I’m not about to sign any agreements,” she said. “Once you sign up, whatever the annual fee is, you’ll be up against this to fix whatever they tell you.”

The railway representative indicated they could provide an amended agreement where CP Rail would bring her crossing and signage up to date at no extra cost, allow them to forego the $5 million liability coverage, and provide a reduced, agreed-upon annual fee.

Rose said there is no benefit to having a rail line split her property. Trains can be 150 cars or more and chasing the railway to have maintenance crews replace crossing ties interrupts farm management.

“They may be out for two weeks if you don’t’ call them instead of taking (the wood) out and putting back in the same day or two,” she said. “It could be at cropping time, spraying or combining. They don’t really care.”

Rose said that at nearly 85 years old, if the designation isn’t changed, they may consider selling the 40-acre parcel on the other side of the crossing but know it won’t command its top value.

Duncan said CP Rail’s push to have landowners sign costly agreements instead of redesignating private crossings to farm crossings where appropriate creates safety issues, not prevent them.

“Now they’re (farmers) going to be forced to use a county road, which has hundreds of cars an hour going down it with farm equipment,” he said. “It’s actually making farming local farmland more dangerous, not less dangerous. That’s the height of irony if you ask me.”

Eric Van Den Broek, a Winchester-area dairy and cash crop farmer, said several farmers locally, himself included, have land that’s inaccessible without a farm crossing.

The letter surprised him, given the railway had maintained his crossing for over 126 years with no issues, despite changing hands.

“I really hope that no one else signs or agrees to these terms because I don’t think they’re being fair or reasonable,” he said. “I can see some guys would almost feel pressured into it if you’re landlocked. You feel like you almost have no chance, but I definitely think it’s worth fighting for.”

Van Den Broek said the railway serves the greater good of Canada, and he supports that 100 per cent, but it shouldn’t fall on a few individuals to support it financially.

“They said they will take the crossing (out) if I don’t comply, which I don’t intend to comply. I intend to fight for the crossing,” Van Den Broek said. “You guys have kept it up for the last 130-some years – I would say you set a precedence that that’s your responsibility.”

Van Den Broek said that landowners who don’t use their crossings or plan to sell their land aren’t concerned about crossing removal but don’t realize the difficulty or the cost required to have one reinstalled.

“Why would you put all these people through that turmoil and stuff? It’s pretty frustrating,” he said. “ We’ll see how it shakes out, but I would like to think it can come to a positive resolution.”

Ideally, said Duncan, Transport Canada will hit the pause button and allow time for mitigation and redesignation of farm crossings and focus on the real safety issue of public crossings.

“The frustration is real. These have been safe crossings for generations. It’s not a public safety issue. It should not be a safety issue to CP at all,” Duncan said. “The Estella and Ed Roses of the world have not been a problem or jeopardy of rail safety in any way. The amount of money and time spent is not a productive use of government time.”