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Airport Rail Link and CTA Jurisdiction
Published in the July 2009 issue of Transportation Notes - View Article
On July 8, 2009, the Canadian Transportation Agency issued a ruling to answer the question whether the proposed construction or operation of a rail link between Toronto’s Union Station and Pearson International Airport (“Pearson Airport”) by the Union-Pearson AirLink Group (“UPAG”) falls under federal jurisdiction and therefore requires a certificate of approval as mandated by the Canada Transportation Act. Submissions were made by UPAG and “related SNC-Lavalin entities” who will construct and operate the rail link. The Greater Toronto Airports Authority (“GTAA”) was invited to make submissions, but declined to do so.
The Agency concluded that the rail link as proposed will be a form of local transportation and that, unless the nature of the project changes in the future, the Agency will not be further involved in regulating the rail link.
The proposed link between Union Station and Pearson Airport is designed to provide access between downtown Toronto and the airport, which is located west of Toronto, in the City of Mississauga. According to evidence submitted by UPAG, it is predicted this service will eliminate 1.5 million car trips annually between Toronto and the airport, and will significantly facilitate access to the downtown core, including for passengers on layovers.
The rail link project is based mainly on the use of existing rail lines that are part of the GO Transit system (“GO”), which connects various cities on the outskirts of Toronto to the downtown core. In order to complete the link, a 3.3 kilometre rail spur must be built to Pearson Airport, with connections to existing GO lines. A passenger station will also be built at Terminal 1 at the airport. The rail link would terminate at the same location as an existing airport shuttle, the Automated People Mover (“APM”) which operates between terminals at the airport, but would operate on a track different from that used by the APM. Tickets for the downtown run will be sold on the APM platform. A storage and maintenance facility will also be constructed, which will be connected to the corridor in which the new spur line is operated.
The Agency applied an established test for determining whether the rail link falls within the legislative authority of the federal Parliament. Federal jurisdiction over railways exists where: (i) the railway work or undertaking connects or crosses provincial borders; (ii) a company operates a railway across international borders; (iii) the work is declared to be for the general advantage of Canada; (iv) the railway work is owned, controlled, leased or operated by a person who operates a railway within the legislative authority of Parliament; or (v) the railway is an integral part of an existing federal undertaking.
The only criterion requiring in-depth consideration by the Agency was whether the link would be an integral part of an existing federal undertaking, namely Pearson Airport. While there was initially some issue as to ownership and control due to the fact that the operation of the rail link would have required obtaining the right to operate over track owned by the Canadian National Railway Company (which is within the legislative authority of Parliament) the fact that GO Transit (which is not) subsequently acquired the relevant portion of track dispensed with the need to consider this issue.
In order to address the fifth criterion, the Agency applied a further five-part test established by the Supreme Court of Canada. This test must be applied flexibly with a view to the circumstances of each case, and requires considering whether: “(i) Pearson Airport is a core federal work or undertaking in relation to which the UPAG project might be seen as integral; (ii) the nature of the UPAG project’s operation identifies it as a federal undertaking; (iii) work is occurring simultaneously between the two enterprises, such that functional integration may exist; (iv) the effective functioning of Pearson is in any way dependent on the services of UPAG; and (v) whether there is more than a physical connection and a mutually beneficial commercial relationship with Pearson Airport.”
The starting point is the undisputed federal jurisdiction over “aeronautics”. The Agency confirmed that, with respect to an airport, it is not only “aerial navigation in the strict sense” which falls under federal jurisdiction over aeronautics. Rather, related ground operations also fall under this jurisdiction. For instance, the Ontario Court of Appeal has held that this was the case with respect to the construction of buildings at the airport.
With respect to whether the rail link could be seen as “integral” to the airport, the Agency considered evidence submitted by UPAG describing the nature of the project and the way in which the rail was expected to operate. The Agency found this evidence persuasive in indicating that there would be no functional integration with Pearson Airport or any other federal undertaking. In particular, UPAG submitted that the spur line would not be owned controlled or operated by the GTAA, and that the operation of the rail would be “distinct from any of the airport's air navigation and aircraft movement requirements and facilities”. Further, rail equipment used would not be part of a fleet owned or managed by CN, or Canadian Pacific Railway. The operating crews and management would also be separate from these federal undertakings.
The Agency also noted evidence that the operation of the rail link, while connected to the airport, would not be integrated with airport operations. Its maintenance facility would operate on land leased from the GTAA. Further, while there would be some interface with the APM for efficiency purposes, the UPAG trains would be entirely distinct. The UPAG trains would operate from the same platform, but from a different entranceway and at a slightly different level. Access to these trains would be separately delineated with “distinct signage” and separate ticketing facilities.
The Agency found that the significant increase in accessibility to downtown Toronto and reduction of traffic to and from the airport was certainly a “mutually beneficial commercial relationship” as well as beneficial in other ways, such as in the reduction of pollution, but it ultimately could not be seen as “essential” to the functioning of the airport.
The Agency concluded therefore that the rail link is “essentially local in nature”, similar to a local commuter rail operation. Having relied upon existing plans submitted by UPAG, however, the Agency cautioned that it would have to revisit the issue should these plans change significantly as the project progresses.
Canadian Transportation Agency
Decision 291-R-2009