Eastern Ontario farmers, CP Rail battle over costs to maintain private rail crossings

There is a battle raging in eastern Ontario between farmers and CP Rail, revolving around private train crossings that intersect their farmland.

Winchester, Ont. farmer Eric VanDenBroek received notice from CP Rail in March saying that the private rail crossing behind his farm needs to be upgraded, and he will be on the hook for the thousands of dollars it will cost.

"$1,275 plus then there's yearly fees," VanDenBroek said, looking at the paperwork in his barn office. "I always hate yearly or monthly fees because they add up."

"My dad said he's been here 63 years and it's been there and maintained by them his whole 63 years," he added. "The farm was purchased from the Derby family and it was looked after for them as well, and then before that."

The rail line was installed in 1886 and cuts through VanDenBroek's land, separating him from a 12-acre field on the other side.

"There might be two weeks go by, we never cross it," he said. "Then there will be days when we cross it 40 or 50 times. At least I'd say probably on average like 1,000 times a year probably we would cross that."

In a statement to CTV News Ottawa, CP Rail says, "Existing federally regulated grade crossings must meet the requirements of the grade crossings regulations by November 28, 2024", which could include upgrades like signage, brush removal and level-grade work. 

They have sent farmers in the region contracts to sign asking them to pay for the upgrades and yearly maintenance, and even carry liability insurance that could be worth millions of dollars.

"They also want to have an engineer to check the crossing is up to their standards and stuff," VanDenBroek said. "That's part of where my hang-up is. Why should I have to pay for something that's, first of, all your property, and you are the one that wants to make sure it is up to your standards? It should never cost me anything."

VanDenBroek says if he doesn't agree to the contract and maintenance costs, he risks losing his crossing all together, forcing his farm equipment onto county roads to access his field, creating another potential hazard.

"We would have to travel on two pretty busy county roads and then a narrow back road which is much more difficult with all the cars," he noted. "The farm equipment is bigger and obviously much slower moving and people take chances."

"And the expense extra on tires and fuel and everything, it would all just increase exponentially," VanDenBroek added, saying the usual three-minute ride to the 12-acre field one way would take him more than 10 minutes using the road. 

Other farmers who received contracts say CP is using a loophole to push the costs onto them for the upgrades, saying there was no agreement with farmers when the land was purchased back in 1886.

Private crossings and farm crossings have a different set of rules, with farm crossings not officially covered by the Grade Crossing Regulations and Standards.

"There was no designation for a farm crossing up until 1888," said Estella Rose, who along with her husband Ed farm 150 acres in the area. "They are considering our crossing a private crossing and it's a farm crossing. It's not a private crossing."

Rose says they are being asked to upgrade their crossing with signage, which separates a 40-acre landlocked field with no other access.

"They said, well that's necessary to have signage to know to stop," Rose said. "It's stupid because it's a field, and a field on the other side. There is no need for signage."

The contract she received was asking for the Rose's to carry $5 million in liability insurance along with the $700 upgrade. There was also a $275 annual inspection fee that would be theirs to pay. 

"I'm not about to sign anything," Rose said. 

Jacqueline Kelly-Pemberton, Ontario Federation of Agriculture (OFA) Director for Dundas, Grenville, Leeds & Frontenac says farmers have contacted her about the issue. 

"It has been something probably within the last six to eight months that have been going on around the county," she said. 

"I think one of the biggest weaknesses in the whole process of going through with upgrading their crossings is that they may have identified all crossings, low-level crossings, as private," Kelly-Pemberton said. 

"Unfortunately, most of our landowners have to backtrack to reinstate that it is a farm crossing which follows different regulations altogether," she noted, adding the OFA published a statement to their website on May 16 outlining the differences between a private crossing and farm crossing. 

"It's very frustrating," she added. "Farmers do need these crossings to access their fields and to put their crops in and to take their crops off. Farmers have no means really to recoup these costs that they have to put in and maintain these safety standards that have been put upon them. 

Kelly-Pemberton said the farmers and rail company have had a good working relationship over the years for maintenance of all their private crossings.

"The rail line is owned by the railway and these crossings should be maintained," she said. "Communication, collaboration, can fix a lot of things and I think that's where it needs to start. A little more communication and collaboration to get this done and not a burden to the farmers, I believe that's not their burden to bear."

VanDenBroek says there are talks amongst farmers to work together to try to fight the changes.

"It's David versus Goliath, right? And hopefully there is enough of us little David's out there to stand up because obviously CP Rail is pretty big Goliath," he said. 

"If a bunch of us work together, private owners and farm crossings owners, then we should be able to come to a much more reasonable resolution to this."

CP Rail says residents with concerns can contact Transport Canada through their website, or if they have disputes over costs for their crossing they can contact the Canadian Transportation Agency at 1-877-850-7148 or through their website.

Transport Canada Senior Communications Advisor Sau Sau Liu said in a statement to CTV News Ottawa that they "are committed to protecting all Canadians who live and work along rail lines by putting in place the necessary measures to reduce the risk of serious accidents."

He noted that farmers, commercial businesses and private individuals share responsibility for managing safety at federally regulated grade crossings. 

"How compliance and maintenance costs are shared between railway and a road authority/private land owner is typically stipulated in an agreement between the two parties," the statement reads. 

"Private crossing owners can contact the railway company as they may have a copy of the grade crossing agreement.  The Canadian Transportation Agency has the mandate to assist land owners and railways with disputes related to costs a private land owner may contact the Canadian Transportation Agency for assistance."