Decision No. 107-R-2016

INTRODUCTION

[1] CP filed an application with the Canadian Transportation Agency (Agency) pursuant to sections 26, 27 and 37 of the CTA and subsections 16(1) and (4) of the RSA for an order confirming the legal obligation on the part of the City of Winnipeg (City) to pay for maintenance costs of the pier incurred by CP at the subway carrying mileage 2.9 of the LaRivière Subdivision across and over Portage Avenue, Winnipeg, Manitoba.

ISSUES

1. Is the pier being considered part of the superstructure?
2. If not, is the maintenance of the pier under the responsibility of the City pursuant to the Board of Railway Commissioners for Canada (BRC) Order No. 52940?
3. If issues 1 and 2 are answered in the negative, to which party should the Agency assign the maintenance responsibility for the pier?

BACKGROUND

[2] In 1881, CP’s LaRivière Subdivision was constructed at grade across Portage Avenue.

[3] BRC Order No. 40 dated May 9, 1904 authorized the Winnipeg Electric Street Railway Company, at its own expense, to construct, maintain and operate a subway under the railway adjacent to Portage Avenue. This subway consisted of a single span railway bridge.

[4] Subsequently, the City was authorized, pursuant to BRC Order No. 52749 dated February 6 1936, to widen the Portage Avenue subway. The subway was described as having a pavement 76 feet wide and sidewalks 8 feet wide under CP’s track and consisted of a two‑span railway bridge.

[5] As per BRC Order No. 52940 dated March 27, 1936, the cost of maintaining the Portage Avenue subway under CP’s track was apportioned as follows:

1. the roadway, abutments, drainage and lighting to be maintained by the City;
2. the superstructure and the track that it supports to be maintained by CP; and,
3. the street railway tracks and appliances to be maintained by the Winnipeg Electric Company.

[6] The street railway tracks and appliances have since been removed from Portage Avenue.

[7] On October 9, 2013, CP sent a letter to the City indicating that the center pier required repairs in an expedient manner. CP indicated that it believed that the responsibility for the maintenance belonged to the City pursuant to BRC Order No. 52940.

[8] By letter dated November 14, 2013, the City agreed that CP needed to affix repairs to the center pier in an expedient manner to ensure public safety and safe railway operation, and that the repairs should not be delayed until the dispute on cost apportionment was resolved. The City advised that it did not agree to pay the cost relating to the pier.

[9] On April 29, 2014, CP submitted an invoice to the City, which, to date, remains outstanding.

THE LAW

[10] Subsection 16(1) of the RSA states:

16 (1) The proponent of a railway work, and each beneficiary of the work, may refer the apportionment of liability for the construction, alteration, operational or maintenance costs of the work to the Agency for a determination if they cannot agree on the apportionment and if no recourse is available under Part III of the Canada Transportation Act or the Railway Relocation and Crossing Act. The referral may be made either before or after construction or alteration of the work begins.

POSITIONS OF THE PARTIES

CP

[11] According to CP, the City is incorrect in its interpretation of BRC Order No. 52490 and its definition of “pier” as being part of the superstructure. According to CP, the pier of such a grade separation is not considered part of the superstructure or track. The pier is recognized to form part of the substructure, together with the abutments that are explicitly apportioned to the City for maintenance.

[12] To support its position, CP refers to Black’s Law Dictionary for the definition of substructure and superstructure.

[13] CP states that the intent of BRC Order No. 52940 was to apportion the cost of maintaining the superstructure to CP and the substructure to the City. In default of the BRC mentioning the pier, it should be deemed to be included with the abutments that serve a similar function, and not with the superstructure of which it does not form part.

[14] To CP’s knowledge, BRC Order No. 52940 is a valid and subsisting regulatory order that has neither been varied nor cancelled since the date of issuance.

The City

[15] The City submits that it is clear from CP’s correspondence that a concrete pier in the middle of the subway was not part of the design that the BRC considered when making its decision in 1936.

[16] The City references a letter dated April 1, 1936 from CP’s Chief Engineer who indicates a change in the design to include a concrete pier, and that “a substantial reinforced concrete pier in the middle of the street” replaces the “slender steel supports”.

[17] Further, according to the City, there is no indication at any point that the BRC was asked to consider the responsibility of the maintenance of the concrete pier.

[18] The City is of the opinion that the slender steel supports form part of the superstructure that CP is required to maintain pursuant to BRC Order No. 52940. The City submits that the superstructure can have a broader definition that can include all elements above the foundation, which, to the City, is consistent with the Black’s Law Dictionary definition of “superstructure” as cited by CP.

[19] The City, in its November 2013 letter, states that “abutments are specific bridge elements that have a common engineering definition as earth retaining structures supporting the ends of a bridge. The center pier is not an abutment.”

[20] The City argues that the words substructure and pier are never mentioned by the BRC. It is the City’s position that while it does not take issue with CP’s definitions of substructure and superstructure as cited, it maintains its position that the definition of superstructure can include all elements above the foundation.

[21] The City states that BRC Order No. 52940 required the City to be responsible for the maintenance of the roadway, abutments, drainage and lighting, and that there is nothing in that Order to suggest that the City was responsible for anything more. The City adds that an interpretation of BRC Order No. 52940 that requires the City to be responsible for anything more than listed in the Order would be an error at law.

[22] The City submits that given that there was no pier at the time of BRC Order No. 52940, it requests that the Agency order that maintenance be addressed consistent with current guidelines concerning maintenance costs as referenced in the Agency’s resource tool on cost apportionment of grade separations.

ANALYSIS AND FINDINGS

ISSUE 1: IS THE PIER BEING CONSIDERED PART OF THE SUPERSTRUCTURE?

[23] Pursuant to BRC Order No. 52940, CP is responsible to pay the cost of maintaining the superstructure and the tracks that it supports.

[24] As referred to by CP, Black’s Law Dictionary defines superstructure as “construction that is above the foundation or basement that is supported by infrastructure which is supported by substructure”, and substructure as “the basic foundation or framework supporting a superstructure and it is supported by infrastructure”.

[25] In assigning the maintenance responsibility, the BRC made a distinction between the superstructure and the other elements of the subway.

[26] In this case, the City did not substantiate its allegation that superstructure can have a broader definition that can include all elements above the foundation.

[27] In light of the above definition of superstructure and the distinction made by BRC Order No. 52940, the Agency is of the opinion that the center pier cannot reasonably form part of the superstructure of the subway and the track that it supports. Despite being above the foundation, the center pier is not supported by the substructure but, in the Agency’s opinion, it rather forms part of it.

[28] Consequently, the Agency accepts CP’s position and finds that the pier does not form part of the superstructure of the subway.

ISSUE 2: IF NOT, is the maintenance of the pier under the responsibility of the City pursuant to BRC Order No. 52940?

[29] While BRC Order No. 52940 does not make explicit reference to the pier, it nonetheless delineates into three categories the different elements for each of the parties to pay the cost of maintenance.

1. The City pays for the maintenance cost of roadway, abutments, drainage and lighting;
2. CP is responsible to pay the cost of maintenance of the superstructure and the tracks that it supports; and,
3. The Winnipeg Electric Company is responsible for the maintenance cost of the street railway tracks and appliances.

[30] The Agency is aware that BRC Order No. 52940 does not use the word “substructure”; however, it expressly lists the elements that reasonably comprise it.

[31] Upon reviewing the evidence on file, the Agency notes that the subway is made of steel and concrete. The railway bridge structure consists of two steel spans that are supported by a concrete abutment at both ends and by a concrete center pier, in the middle. There are several types of abutments. The Agency considers that the role of the center pier is to provide a support to the superstructure in the same fashion as the abutment at each end of the bridge. As the center pier performs the same function as the abutment, it may be considered, in this case, as an intermediate abutment.

[32] While it is true that BRC Order No. 52940 did not specifically refer to the pier, the same is true of BRC Order No. 52749 authorizing the City to construct, at its own expense, the Portage Avenue subway. From the evidence on file, it is clear that the construction costs, assumed by the City, related to all elements of the railway bridge, including the center pier (intermediate abutment) and two abutments. Although not specifically defined, a logical conclusion is that BRC Order No. 52940 apportions the responsibility between the parties for the maintenance as follows: (a) to the City for the abutments, which include the center pier and (b) to CP for the superstructure and the track infrastructure that it supports. Furthermore, the Agency notes that the City did not provide any argument that would negate this conclusion.

[33] The Agency therefore finds that the City is responsible for the cost of maintaining the pier pursuant to BRC Order No. 52940.

[34] Having come to this conclusion, the Agency is of the opinion that there is no need to address issue 3.

CONCLUSION

[35] Based on the foregoing, the Agency finds that the City has the legal obligation to pay for the maintenance cost of the pier (intermediate abutment) as per paragraph (a) of BRC Order No. 52940 dated March 27, 1936, which refers to the roadway, abutments, drainage and lighting, as the pier does not form part of the superstructure of the subway.