Milne v. Canada

Milne v. Canada
Court (s) Database
Federal Court Decisions
Date
2021-07-19
Neutral citation
2021 FC 765
File numbers
T-967-16
Decision Content
Date: 20210719
Docket: T-967-16
Citation: 2021 FC 765
Ottawa, Ontario, July 19, 2021
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN:
SHAWN SOMERVILLE MILNE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
I. Overview
[1] The Plaintiff, Mr. Shawn Milne, is the owner of a rural property. On the north end of the property is a house, where the Plaintiff resides with his wife and four children. A busy railway corridor runs along the entire north side of the Plaintiff’s property, near to the Plaintiff’s residence.
[2] The railway corridor was expanded in 2012. To complete the expansion, the Defendant expropriated a 0.64-acre strip of the Plaintiff’s property (the “Required Lands”). The Required Lands are directly south of the railway corridor and thinly span the entire northern border of the Plaintiff’s property. The Plaintiff was compensated $1,000 for the expropriation of the Required Lands.
[3] The railway corridor expansion resulted in the construction of a third train track immediately south of the existing two tracks and the addition of approximately eight passenger trains per day. The expansion thus increased railway traffic along the corridor and brought that traffic closer to the Plaintiff’s residence.
[4] The Plaintiff claims he is entitled to further compensation for the expropriation under the Expropriation Act, RSC 1985, c E-21 (the “Act”). The Plaintiff asserts he can no longer live in the residence located on his property due to the increase in noise, light, and pollution caused by the railway expansion. The Plaintiff therefore seeks $967,534 in disturbance damages to relocate his residence and its ancillary improvements away from the railway corridor, towards the southern end of his property. In the alternative, the Plaintiff seeks $247,100 in injurious affection damages for the decrease in value to his remaining property caused by the railway corridor expansion. The Plaintiff also claims that he is entitled to an additional $1,100 in compensation for the Required Lands.
[5] In my view, the Plaintiff has not established his claims for disturbance damages or injurious affection. Both of those claims hinge upon the notion that the railway corridor expansion caused a perceptible increase in sound, which I find the Plaintiff has failed to establish. I accept, however, that the value of the Required Lands was $2,100 at the time of taking, thus entitling the Plaintiff to an additional $1,100 in compensation.
II. Facts
[6] The parties submitted an Agreed Statement of Facts, dated February 2, 2021, which I have attached in “Annex A” of this judgment. Additionally, attached in “Annex B” is a glossary of terms that are used frequently throughout this judgment.
A. The Plaintiff’s property and the railway corridor
[7] Since the mid 1800s, the Canadian National Railway Company (“CN”) has operated a double track railway corridor running between Montreal and Toronto. The segment of this corridor that abuts the north side of the Plaintiff’s property is known as the Marysville Corridor, which runs between the cities of Belleville and Napanee. At the Plaintiff’s property and surrounding area, the Marysville Corridor runs directly south of a road named Airport Parkway.
[8] The Plaintiff’s property is a 95-acre parcel of farmland, municipally known as 464 Mitchell Road, Belleville, Ontario. He bought the property for $220,000 upon returning to the Belleville area in 2003. The Plaintiff resides on his property and uses it for his organic farming operations.
[9] The residence on the Plaintiff’s property was built in 1867. The Plaintiff significantly renovated the residence upon its purchase.
[10] Construction to expand the railway corridor began on or about April 24, 2012. The third railway track went into service on November 24, 2012.
[11] Prior to the expansion of the railway corridor (“pre-expansion”), the Plaintiff’s residence was located approximately 34.14 metres from the southern most railway track and approximately 25.3 metres south of the railway corridor. After the expansion was completed (“post-expansion”), the Plaintiff’s residence is approximately 29.87 metres south of the new railway track and approximately 14.6 metres south of the expanded railway corridor. In other words, the railway corridor expansion resulted in the Plaintiff’s residence becoming approximately 4.5 metres closer to the nearest railway track.
[12] There is a small slope north of the Plaintiff’s residence that leads down to the railway corridor. The Plaintiff’s residence sits atop the slope, and it is thus located approximately 3 metres higher than the railway corridor. The slope begins to decline where the railway corridor begins. The slope starts closer to the Plaintiff’s residence post-expansion than it did pre-expansion.
[13] Post-expansion, the line of sight between the Plaintiff’s residence and the railway corridor is now more exposed. The Plaintiff claims that the expansion resulted in the removal of a berm made primarily of hay located at the apex of the slope north of the Plaintiff’s property. In addition, soil and vegetation were removed from the slope, further exposing the Plaintiff’s residence to the tracks.
[14] The Plaintiff asserts that the berm, topography, and vegetation all acted as a natural barrier between his residence and the railway corridor. With their removal, the Plaintiff claims the noise, light, and pollution from the railway corridor at his residence have increased.
[15] The following diagrams are contained in the evidence of Mr. Ward Lansink, an expert witness called by the Plaintiff. These diagrams are displayed here for demonstrative purposes only, not for the truth of their contents, as Mr. Lansink did not author the diagrams himself.
[16] The first diagram displays the railway corridor and the northern portion of the Plaintiff’s property, including his residence, pre-expansion:
Description: a cross-section diagram displaying the land north of the Plaintiff’s residence pre-expansion. The x-axis represents distance, with the south to the left and the north to the right. The Plaintiff’s residence is furthest to the south and Airport Parkway is furthest to the north. In the approximate middle of the x-axis is the railway corridor, with the berm immediately to the south. The y-axis represents topography. It displays the berm rising slightly higher than the land north of the Plaintiff’s residence, thus blocking the line of sight between the Plaintiff’s residence and the northernmost track on the railway corridor. The slope leading down to the railway corridor begins to steeply decline approximately 25 metres north from the Plaintiff’s residence. Vegetation also sits adjacent to the berm, rising high above the Plaintiff’s residence.
[17] The second diagram displays the same subjects but post-expansion:
Description: a cross-section diagram displaying the land north of the Plaintiff’s residence post-expansion. The x-axis represents distance, with the south to the left and the north to the right. The Plaintiff’s residence is furthest to the south and Airport Parkway is furthest to the north. In the approximate middle of the x-axis is the railway corridor, which has been expanded further south with the addition of the third track. The y-axis represents topography. It displays that the berm has been removed and no longer blocks the line of sight between the Plaintiff’s residence and the northernmost track on the railway corridor. The slope leading down to the railway corridor begins to decline approximately 15 metres north from the Plaintiff’s residence and is now cut at a 45-degree angle. The vegetation at the apex of the slope is now diminished.
B. Previous proceedings
[18] The Plaintiff has been involved in disputes concerning the railway corridor for nearly as long as the Plaintiff has owned his property.
(1) City of Belleville and Canadian Transportation Agency proceedings
[19] In a petition dated May 1, 2004 to the city of Belleville, the Plaintiff requested a prohibition on the use of train whistles at the railway crossing on Mitchell Road and attached the signatures of other community members. The Plaintiff stated under cross-examination that subsequent to the May 1, 2004 petition, it is no longer mandatory for trains to use their whistles at Mitchell Road crossing, thus reducing the day-to-day sound of train whistles at the Plaintiff’s residence.
[20] Upon learning of the proposed railway corridor expansion, the Plaintiff submitted an individual complaint dated August 18, 2009 to the Canadian Transportation Agency (the “Agency”). In his complaint, the Plaintiff claimed the expansion would increase the sound levels along the railway corridor if no mitigation measures were implemented. He requested that a sound barrier be constructed and his house be relocated away from the railway corridor, among other things.
[21] The Plaintiff submitted a further complaint dated April 26, 2010 to the Agency, this time on behalf of a community group. That complaint reiterated the potential increase in sound levels and proposed that the railway corridor expansion be cancelled, sound barriers be constructed, and/or nearby houses be rebuilt or relocated, among other things.
[22] In a decision dated January 19, 2012, the Agency found the pre-expansion noise and vibration caused by the railway corridor was reasonable under section 95.1 of the Canada Transportation Act, SC 1996, c 10 (the “CTA”). Additionally, the Agency anticipated the post-expansion noise and vibration caused by the railway corridor, once expanded, would remain reasonable. In coming to those conclusions, the Agency relied upon the findings contained in the Sound and Vibration Assessment prepared by Stantec Consulting Ltd. (“Stantec”), dated February 12, 2010 (the “2010 Stantec Report”). The 2010 Stantec Report predicted that the increase in noise and vibration caused by the railway corridor expansion would be largely imperceptible along the Marysville Corridor.
(2) Settlement negotiations
[23] Prior to the expropriation, the Plaintiff and CN attempted to settle the Plaintiff’s dispute with respect to the railway corridor expansion to avoid litigation. The Plaintiff proposed that his residence be demolished and a replacement be built elsewhere on his property. In a letter dated May 7, 2010, CN made an offer in accordance with that approach.
[24] The Plaintiff testified under direct-examination that he and CN agreed in July and August of 2010 that $610,250 in compensation would be paid to the Plaintiff to allow him to build an equivalent residence away from the railway corridor. The parties, however, were unable to agree on the restrictive covenants on the Plaintiff’s property pertaining to the future operations of the railway.
[25] In a letter dated September 1, 2010, CN ceased negotiations with the Plaintiff, stating that settlement efforts had failed. The Plaintiff testified this letter was “very shocking” as he believed they were “very close to getting a deal done.”
(3) Expropriation proceedings
[26] On September 21, 2011, subsequent to the dissolution of settlement negotiations, Public Works and Government Services Canada (as it then was) registered a “Crown Notice of Intention to Expropriate” on the Plaintiffs’ property. On January 23, 2012, the Minister of Public Works signed the “Notice of Confirmation of Intention to Expropriate.” On January 24, 2012, the Defendant expropriated the Required Lands.
[27] On or about January 24, 2012, the Defendant offered the Plaintiff $1,000 in statutory compensation for the Required Lands pursuant to section 16 of the Act. In a letter dated June 13, 2016, the Plaintiff accepted the Defendant’s offer of compensation.
[28] The Plaintiff required a new driveway and fencing along the perimeter of the railway corridor due to the expropriation of the Required Lands, for which the Plaintiff was compensated $40,341 and $5,618, respectively.
(4) Summary judgment motion
[29] On June 20, 2016, the Plaintiff filed his Statement of Claim for this action. Subsequently, the Defendant brought a motion for summary judgment pursuant to subsection 215(1) of the Federal Courts Rules, SOR/98-106 (the “Rules”).
[30] The Defendant argued that because the Act did not prescribe a limitation period within which a claimant must pursue an entitlement to compensation, the basic two-year limitation period prescribed under Ontario’s Limitations Act, SO 2002, c 24, Schedule B, applied to the Plaintiff’s claim by virtue of subsection 39(1) of the Federal Courts Act, RSC 1985, c F-7. The Defendant therefore asserted that the Plaintiff’s claim was statute-barred because the claim was commenced more than two years after it was discovered, when the “Notice of Confirmation of Intention to Expropriate” was registered in January 2012.
[31] In a decision dated June 9, 2017 (2017 FC 569), Justice Gleeson found that subsection 31(1)(a) of the Act provides a limitation period for the Plaintiff’s action:
Proceedings to determine compensation
Procédure en vue de déterminer l’indemnité
31 (1) Subject to section 30,
31 (1) Sous réserve de l’article 30:
(a) a person entitled to compensation in respect of an expropriated interest or right may,
a) une personne qui a droit à une indemnité pour un droit ou intérêt exproprié peut :
(i) at any time after the registration of the notice of confirmation, if no offer under section 16 has been accepted by him, and
(i) après l’enregistrement de l’avis de confirmation, si elle n’a accepté aucune offre faite en vertu de l’article 16,
(ii) within one year after the acceptance of the offer, in any other case,
(ii) dans un délai d’un an à compter de l’acceptation de l’offre, dans tout autre cas,
commence proceedings in the Court by statement of claim for the recovery of the amount of the compensation to which he is then entitled; or
engager des procédures devant le tribunal par voie d’exposé de la demande pour le recouvrement du montant de l’indemnité à laquelle elle a alors droit;
[32] Justice Gleeson therefore dismissed the Defendant’s motion. As the Act provided for a limitation period, he held that the two-year limitation period under Ontario’s Limitations Act did not apply to the Plaintiff’s action. Rather, the applicable limitation period is under 31(1)(a)(ii) of the Act, which requires the Plaintiff’s action to commence within one year of the Plaintiff accepting the Defendant’s statutory offer of compensation. As the Plaintiff filed his Statement of Claim approximately one week after he accepted the Defendant’s offer of compensation, the Plaintiff’s action was not statute-barred.
[33] In a decision dated June 6, 2018 (2018 FCA 113), the Federal Court of Appeal upheld Justice Gleeson’s decision.
(5) Collateral attack motion
[34] On the night before the commencement of this trial and in its oral submissions on March 23, 2021, the Defendant objected to the admissibility of the entirety of the parties’ expert evidence pertaining to the assessment of noise and vibration on the Plaintiff’s residence caused by the railway corridor. The Defendant argued that such evidence collaterally attacks the Agency’s January 19, 2012 decision, which found that the noise and vibration caused by the railway corridor post-expansion would be reasonable under section 95.1 of the CTA, among other things.
[35] A collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of an order or judgment (Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63 (“C.U.P.E.”) at para 33). In other words, the doctrine of collateral attack prevents a party from circumventing the effect of a decision rendered against it (Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 at para 61). Evidence that attempts to collaterally attack a finding of another court or tribunal may be inadmissible (Dankiewicz v Sullivan, 2021 ONSC 485 at para 14).
[36] In an Order dated March 24, 2021, I dismissed the Defendant’s motion.
[37] As discussed in detail below, the Plaintiff submitted noise and vibration evidence to establish that the 2010 Stantec Report, as relied upon by the Agency in its decision, miscalculated the noise levels adjacent to the railway corridor. Stantec admitted to this error in a letter dated July 30, 2019.
[38] Noting the Supreme Court of Canada’s decision in C.U.P.E. at paragraph 34, I held the Plaintiff did not submit the noise and vibration evidence to collaterally attack the Agency’s decision, as that evidence did not seek to overturn the Agency’s decision, but to contest, for the purposes of a different claim with different legal consequences, whether the Agency’s decision was correct. In my March 24, 2021 Order, I stated:
[7] The Plaintiff does not dispute that the Agency’s decision has legal force, nor does the Plaintiff seek to nullify the effects of the Agency’s decision by obtaining compensation under the [Act]. Rather, the Plaintiff attacks the correctness of the factual basis of the Agency’s decision by asserting that the Agency relied upon faulty evidence. The Supreme Court of Canada in C.U.P.E. confirmed that this approach is not a collateral attack. Furthermore, the Defendant made no submissions on whether such an approach constitutes an abuse of process, as was held by the Court in C.U.P.E.
[39] I further noted that the Agency’s conclusion is not determinative of the impacts the railway corridor expansion may have on the Plaintiff’s property and how such impacts may require further compensation under the Act. The former is concerned with the need to maintain viable railway infrastructure, whereas the latter is concerned with the impact of the expropriation on the Plaintiff’s property. Indeed, the Agency found that it does not have jurisdiction to address land acquisition and expropriation issues under section 95.1 of the CTA.
[40] In light of my determination that the Plaintiff was not attempting to avoid the consequences of the Agency’s decision, and that the Agency refused to consider in its decision the issue of compensation for the expropriation of the Required Lands, I found the Plaintiff’s submission of noise and vibration evidence did not constitute a collateral attack.
III. Witnesses & Evidence
A. The Plaintiff
[41] The Plaintiff testified as a witness regarding his property, the impact of the railway corridor expansion, and the expropriation of the Required Lands, among other things.
[42] I found the Plaintiff was credible. He did not exaggerate his testimony and answered honestly when asked about information that he did not know or remember.
[43] The Plaintiff explained that he was born and raised on a farm located approximately one kilometer from his current residence. According to the Plaintiff, he bought the property in 2003 because it contained productive agricultural land and was located close to his father’s farm, allowing the family to share equipment and labour. His wedding in 2006 was held at the property, and he and his wife have since had four children, all of whom were raised on the property. The Plaintiff also testified to the extensive renovations that he made to his residence between approximately 2003 and 2012.
[44] Pre-expansion, the Plaintiff claimed that the only issue he had with the nearby railway traffic was with respect to the use of train whistles. After the expansion of the corridor was announced, the Plaintiff explained that he represented a community group and submitted complaints to the Agency regarding the predicted impacts of the development.
[45] Near the end of 2012, prior to the third railway track coming into operation, the Plaintiff explained that he and his family moved in with his brother in Belleville to “buy [them] some more time to get the issues resolved.” The Plaintiff stated that they stayed with his brother for 13 months, although the move was initially intended to be temporary.
[46] The Plaintiff explained that he eventually made a berm using hay bales to block the line of sight between his residence and the railway corridor. According to the Plaintiff, the berm was relatively effective at attenuating the noised caused by the railway corridor for the first floor of the residence, but not for the second floor. The Plaintiff testified that the berm initially stood eight feet tall but shrank overtime as the hay rotted.
[47] The Plaintiff stated that the expansion of the railway corridor adversely affected his family due to the increase in noise, light, and pollution. He provided several videos of traffic along the railway corridor that he recorded in January and February 2021. He also provided pictures that he took of his property and the railway corridor, both pre- and post-expansion.
B. Noise and vibration experts
[48] The parties each called one expert witness for the purposes of assessing the levels of noise and vibration caused by the railway corridor expansion at the Plaintiff’s residence.
[49] The Plaintiff called Mr. Paul Kirby. Mr. Kirby is an environmental scientist with extensive experience in conducting noise assessments, including for several railway infrastructure developments. Mr. Kirby is currently the vice president of Independent Environmental Consultants (“IEC”). Since the Plaintiff initially retained him in 2012, Mr. Kirby has authored five reports and replies concerning the noise and vibration caused by the railway corridor expansion at the Plaintiff’s residence.
[50] I found Mr. Kirby was credible: he answered questions with clarity and declined to make assumptions when asked about matters for which he did not have direct or immediate knowledge.
[51] The Defendant called Mr. Frank Babic as its noise and vibration expert. Mr. Babic is an engineer who, like Mr. Kirby, has conducted numerous noise and vibration assessments. He has assessed railway, highway, and residential developments, often acting in the capacity of technical lead. Mr. Babic is currently employed by Stantec.
[52] I found Mr. Babic was credible: he answered questions frankly, conceded propositions when he thought it right to do so, and admitted to errors made by his predecessors at Stantec.
(1) Terminology
[53] The experts discussed two variables in particular in their noise and vibration evidence: the day-night sound level (“Ldn”) and the percentage highly annoyed (“%HA”).
[54] The Ldn is a unit of measurement that represents the average level of sound during a 24-hour period. It is expressed in “A-weighted” decibels (“dBA”), a unit that measures the volume of sound adjusted for the perception of human hearing.
[55] For reference, the experts agree that an increase of 3 dBA or less is an imperceptible change. Conversely, an increase of 10 dBA results in a doubling of volume.
[56] The Ldn is calculated by combining the daytime sound level (“Ld”), which measures the levels of sound from 7:00am until 10:00pm, and the night-time sound level (“Ln”), which measures the level of sound from 10:00pm until 7:00am. Since noise is more disturbing to residents at night, a +10 decibel penalty is applied to the Ln.
[57] The %HA is the percentage of people based on survey data who are predicted to be highly annoyed by sound levels at a particular Ldn.
(2) Expert reports
[58] There are two noise and vibration expert reports at issue in this action, from which several replies emanate: (a) the 2010 Stantec Report; and (b) the April 2015 Noise and Vibration Measurement and Modelling Program, reviewed by Mr. Kirby, then operating in his capacity as an employee of ARCADIS (the “2015 ARCADIS Report”). I shall address each report respectively before stating my conclusions on their findings.
(a) 2010 Stantec Report
[59] Underlying the noise and vibration experts’ evidence is the 2010 Stantec Report, which was commissioned by CN for the purposes of assessing the predicted impacts of the railway corridor expansion. Although authored by Stantec, Mr. Babic did not contribute to the 2010 Stantec Report. The report is not tendered for the truth of its contents because its authors were not called to testify at trial.
[60] The 2010 Stantec Report measured the pre-expansion sound levels at various locations along the Marysville Corridor and predicted how those levels may change post-expansion. The report did not directly measure the sound levels at the Plaintiff’s property. It is the only evidence to measure the pre-expansion sound levels near the Plaintiff’s property.
[61] Stantec found that the pre-expansion Ldn at 20 meters from the railway track was 73.8 dBA, which resulted in a %HA of 34% (these numbers were originally lower and later corrected in a letter from Mr. Babic, dated July 30, 2019). The parties essentially agree that this figure is correct.
[62] The 2010 Stantec Report predicted the post-expansion sound levels using a modelling program. Modelling programs receive information and use predictive tools to estimate sound levels for situations that cannot easily be measured, such as future scenarios. In this case, Stantec used a modelling program named STEAM, which predicts a reasonable worst-case scenario of sound levels propagating from the railway corridor both pre- and post-expansion.
[63] Stantec used STEAM to predict that the pre-expansion Ldn at 29 meters from the track along the Marysville Corridor would be 80 dBA, which results in a %HA of 55%. Stantec then predicted that the post-expansion Ldn at that distance would increase by only 0.13 dBA, which entails an increase of %HA of 0.42%.
(b) 2015 ARCADIS Report
[64] The 2015 ARCADIS Report measured the post-expansion sound levels at the Plaintiff’s property. It is the only evidence of such measurements.
[65] Using the measurement data from the 2010 Stantec Report, the 2015 ARCADIS Report calculated that the pre-expansion Ldn at 20 meters from the railway track was 73.6 dBA — a finding only 0.2 dBA less than Stantec’s corrected Ldn calculation.
[66] Using its own measurement data from a site slightly west of the Plaintiff’s residence, the 2015 ARCADIS Report found that the post-expansion Ldn at 20 meters from the railway track is 78.7 dBA. Mr. Kirby explained he measured the sound levels at this location to replicate the receptor location used in the 2010 Stantec Report for the Marysville Corridor, which was approximately one kilometer west of the Plaintiff’s property.
[67] The 2015 ARCADIS Report then used its measurement data, and through a modelling system named Cadna-A, projected the sound levels to 33 metres from the railway track at the most exposed façade of the Plaintiff’s residence, which is located at the top floor on the northern face of the Plaintiff’s residence. In a letter dated March 17, 2021, Mr. Babic agreed the most exposed façade is an appropriate assessment location.
[68] Based on Cadna-A modelling, the 2015 ARCADIS Report found the pre-expansion Ldn at the Plaintiff’s residence was 71.4 dBA, and the post-expansion Ldn at that location is 76.5 dBA. Accordingly, the 2015 ARCADIS Report found the expansion of the railway corridor resulted in an increase in Ldn at the Plaintiff’s residence of 5.1 dBA, entailing an increase in %HA of 16.2%.
(i) The berm
[69] The 2015 ARCADIS Report attributed the increase in sound at the Plaintiff’s residence primarily to the removal of the berm between the Plaintiff’s residence and the railway corridor. It found the berm reduced the Ldn at the Plaintiff’s residence by approximately 4 dBA. If the berm was not accounted for in the pre-expansion Ldn, the post-expansion Ldn was predicted to be only approximately 1 dBA greater than the pre-expansion Ldn. In other words, without the presence of the berm pre-expansion and its removal post-expansion, the increase in sound caused by the railway corridor expansion would be imperceptible at the Plaintiff’s residence.
(ii) The third track
[70] Mr. Kirby also alleged that the 2010 Stantec Report’s modelling of the post-expansion sound levels applicable to the Plaintiff’s property erroneously presumed the new third rail was located to the north of the existing tracks, when in fact it was located to the south.
[71] In its closing submissions, the Defendant asserted, “Mr. Babic rebutted Mr. Kirby’s assertions that the Stantec 2010 Report’s modelling contained errors with respect to track configuration and the location of the [third] track.”
[72] I find the Defendant’s submission is inaccurate. The section of the railway corridor adjacent to the Plaintiff’s property is an anomaly. Adjacent to the Plaintiff’s property and surrounding area, the third track exists to the south of the existing tracks; for the Marysville Corridor generally, it exists to the north of the tracks. The 2010 Stantec Report failed to account for this detail in modelling the propagation of sound from the railway corridor.
[73] Mr. Babic did not concede that Stantec’s omission was an error per se, as the 2010 Stantec Report sought to address sound levels along the entire Marysville Corridor and was not concerned with the Plaintiff’s property specifically. However, Mr. Babic agreed that the modelling of sound levels adjacent to the Plaintiff’s property was “misaligned at best,” and he accordingly advised Mr. Kirby on how to readjust Stantec’s modelling to make it accurate for the area adjacent to the Plaintiff’s property. The notion that Mr. Babic “completely rebutted” Stantec’s alleged error, as asserted by the Defendant, thus misconstrues Mr. Babic’s evidence.
(3) Conclusion
[74] The 2015 ARCADIS Report determined both the pre- and post-expansion sound levels at the Plaintiff’s residence. These two findings are essential to the Plaintiff’s claim and hence fiercely disputed by the parties. Such findings determine whether sound levels at the Plaintiff’s residence increased due to the expansion, and as a result of this increase, whether the Plaintiff is entitled to further compensation under the Act for disturbance damages and injurious affection. I shall address these two findings respectively.
(a) Pre-expansion sound levels
[75] The 2015 ARCADIS Report relied upon the data in the 2010 Stantec Report to determine the pre-expansion sound levels, as the 2015 ARCADIS Report was authored post-expansion. Using measured data, Stantec ultimately found the pre-expansion Ldn at 20 meters from the railway track was 73.8 dBA at a location approximately one kilometer west from the Plaintiff’s property and north of Airport Parkway. The parties essentially agree that this figure is correct.
[76] Using the measured data in the 2010 Stantec Report, the 2015 ARCADIS Report modelled the pre-expansion Ldn at the Plaintiff’s residence (33 meters from the railway track) to be 71.4 dBA. The Defendant asserts this finding is unreliable for three reasons: (i) the 2010 Stantec Report is not admitted for the truth of its contents; (ii) the measurement data is taken at a different receptor location and is therefore inapplicable to the Plaintiff’s residence; and (iii) the 2015 ARCADIS Report’s modelling incorrectly relied upon the finding that there was a 3 metre berm on the Plaintiff’s property pre-expansion.
[77] I am only convinced by the third argument raised by the Defendant, but I shall address each of them.
(i) Hearsay evidence
[78] The 2010 Stantec Report is not admissible for the truth of its contents because its authors were not called to testify at trial, thus rendering it hearsay. I do not find, however, that this inadmissibility precludes the experts from relying on the data contained in the 2010 Stantec Report. Both Mr. Kirby and Mr. Babic were subject to cross-examination regarding the veracity of the data and how it was used in their respective evidence. While the experts disputed how that data was used in modelling, neither contested the reliability of the measurements themselves, nor were such questions put to them upon cross-examination. I therefore find the calculations in the 2015 ARCADIS Report that relied upon the data from the 2010 Stantec Report are admissible for the truth of their contents.
(ii) Receptor location
[79] The Defendant asserts that because the receptor at issue in the 2010 Stantec Report was in a different location with different topography than the receptor used in the 2015 ARCADIS Report, the data it collected is inapplicable to the Plaintiff’s residence. However, the receptor location used by Mr. Kirby in the 2015 ARCADIS Report was selected to replicate the receptor location used in the 2010 Stantec Report, entailing a similar distance from the railway track and similar topography.
[80] I find the receptor location used by Mr. Kirby does not render the findings in the 2015 ARCADIS Report unreliable. The Defendant has not established why the differences in receptor locations are so fundamental that they render the measurements in the 2010 Stantec Report inapplicable to the Plaintiff’s property. For example, the Defendant notes that Stantec’s monitoring location is closer to Airport Parkway, but there is no evidence to suggest how busy Airport Parkway was at the time of Stantec’s measurements or the extent to which this proximity inflated Stantec’s measurements.
(iii) Modelling the berm
[81] Mr. Kirby’s calculations relied upon the notion that pre-expansion, there was a 3-metre berm north of the Plaintiff’s residence that attenuated noise from the railway corridor. For the reasons that follow, I find the Plaintiff has not established that such a berm existed at that time, thus rendering the 2015 ARCADIS Report’s calculation of the pre-expansion Ldn at the Plaintiff’s residence unreliable.
[82] The 2015 ARCADIS Report modelled scenarios of the pre-expansion sound levels at the Plaintiff’s residence both with and without the berm. When the berm was included in the modelling, the 2015 ARCADIS Report found the pre-expansion Ldn at the Plaintiff’s residence was 71.4 dBA. When the berm was removed from the modelling, the 2015 ARCADIS Report found the pre-expansion Ldn at the Plaintiff’s residence was 75.8 dBA. (I note that under the Cadna-A modelling, the pre-expansion Ldn at 20 metres from the railway track was 78.3 dBA, thus explaining why the pre-expansion Ldn of 75.8 dBA at the Plaintiff’s residence without the berm as modelled is greater than the pre-expansion Ldn of 73.6 dBA at 20 metres from the railway track as measured).
[83] The berm in the 2015 ARCADIS Report’s modelling is approximately 3 metres high, blocking the line of sight almost entirely between the Plaintiff’s residence and the track. The ARCADIS Report contains the following image from the Cadna-A modelling, depicting the berm pre-expansion and its subsequent removal post-expansion:
Description: Basic three-dimensional rendering images from Mr. Kirby’s Cadna-A model configuration. Of note are the two images of the Plaintiff’s residence seen from the north of the railway corridor, facing south. The top image represents the pre-expansion scenario, wherein the earth berm almost entirely blocks the line of sight between the Plaintiff’s residence and the track. The bottom image represents the post-expansion scenario, wherein the earth berm is removed and almost the entire line of sight between the Plaintiff’s residence and the track is visible.
[84] I find the Plaintiff has failed to establish that the berm relied upon in the 2015 ARCADIS Report existed pre-expansion.
[85] Mr. Kirby provided no evidence of the berm. Mr. Kirby admitted under cross-examination that he did not visit the Plaintiff’s property before he conducted the measurements for the 2015 ARCADIS Report in 2014. He therefore took no measurements or saw the berm as it existed pre-expansion, ostensibly relying upon the Plaintiff for the measurement.
[86] The Plaintiff’s documentary evidence of the berm is lacking. The Plaintiff submitted a brief of photographs he took of his property both pre- and post-expansion that he claims display the berm. However, none of those photographs display a 3-metre high earth berm existing pre-expansion as relied upon in the 2015 ARCADIS Report. At most, the photographs show a series of shrubs along the perimeter of the Plaintiff’s property, including a few trees and some decomposing hay bales. While much of this vegetation was removed due to the railway corridor expansion, thus visually exposing the Plaintiff’s residence to the tracks, this vegetation is not the same as the 3-metre berm in the 2015 ARCADIS Report’s modelling.
[87] One picture from the Plaintiff’s brief is worth noting in particular. The Plaintiff explained he took that picture in early 2012 from the north side of his residence on the front lawn looking towards the railway corridor. If the berm existed at that time, one would expect a 3-metre barrier of hay rising from the lawn that obstructs most, if not all, of the photograph. In the photograph, however, the horizon is clearly visible; there are some shrubs in the foreground, but they do not rise above the height of the photographer, let alone a height of 3 metres.
[88] If the berm existed pre-expansion, the Plaintiff must therefore have constructed the berm sometime between early 2012 and when the Required Lands were expropriated in late 2012. However, the Plaintiff’s testimony regarding such details is lacking. While the Plaintiff discusses growing and harvesting hay to build an eight-foot (approximately 3 metre) berm, he describes doing so after returning from living with his brother for 13 months beginning in late 2012, post-expansion. In particular, the Plaintiff stated under direct-examination:
So, you know, after 13 months, it was obvious that there wasn't a solution coming any time soon, and we had to figure out a better option. So that's when I planted a hay crop to harvest to use as a temporary hay bale sound barrier. […] So I put up a hay bale barrier the best I could. It was pretty impressive at the time. It was, you know, quite long and quite tall, but unfortunately, since it had to be so close to the house, it didn’t, it didn't provide adequate protection, certainly not to the second floor, just because it was too close to the house. It did provide some protection for the first level. And certainly when the kids were playing outside, it did help the noise level at ground level. But, again, meant to be temporary to buy us some more time, get us back into the house.
[89] In light of the above, I afford little weight to the 2015 ARCADIS Report’s finding that the pre-expansion Ldn at the Plaintiff’s residence was 71.4 dBA, as this calculation relied upon the existence of a 3-metre berm. Instead, I afford greater weight to the 2015 ARCADIS Report’s finding that the pre-expansion Ldn at the Plaintiff’s residence was 75.8 dBA, as this calculation reflects the pre-expansion sound levels without a berm.
(b) Post-expansion sound levels
[90] I accept the 2015 ARCADIS Report’s finding that the post-expansion Ldn at the Plaintiff’s residence is approximately 76.5 dBA. This finding is uncontradicted.
[91] The 2015 ARCADIS Report is the only expert evidence to measure the sound and vibration levels at the Plaintiff’s property post-expansion. The Defendant has not asserted that the measurement data for this figure is incorrect, nor has the Defendant provided any of its own measurements to contradict such findings. When asked about Mr. Kirby’s modelling of the post-expansion sound levels at Plaintiff’s residence, Mr. Babic stated he was not “contracted” to provide a response to this crucial finding. In addition, Mr. Babic acknowledged under cross-examination that measurements are the “gold standard,” as measurements generally provide more accurate representations of sound levels than modelling.
(c) Increase in sound
[92] The difference between the pre- and post-expansion Ldn at the Plaintiff’s residence represe