Order No. 1991-R-241

May 17, 1991

File No. R 8050/573-018.52

WHEREAS Clause 5 of Order No. 1989-R-225 dated August 11, 1989 states that:

"When the subway is opened for use by the public, the railway company shall close, within six (6) months, within the limits of its right-of-way, the existing crossing at grade at Maple Grove Drive, at mileage 19.25 Oakville Subdivision, in the Town of Oakville, in the Province of Ontario."

AND WHEREAS the Corporation of the Town of Oakville (hereinafter the applicant) has advised the National Transportation Agency (hereinafter the Agency) that the subway was opened for use by the public on September 14, 1990;

AND WHEREAS the applicant has applied for a variance of Clause 5 of Order No. 1989-R-225 to extend the closing date of the level crossing at Maple Grove Drive to June 14, 1991;

AND WHEREAS on March 13, 1991 the Agency granted a stay of Clause 5 of Order No. 1989-R-225 until disposition of the application for variance;

AND WHEREAS the applicant has advised the Agency that the opening of the grade separation and the realignment of Ford Drive has resulted in several impacts on other roads in the area, that still further traffic impacts were going to result upon the closing of the Maple Grove Drive level crossing and that it would therefore be in the public interest to complete certain minor road improvements in 1991 prior to the closing of the level crossing;

AND WHEREAS the applicant has advised that it met with and wrote to the railway company in December of 1990 with the aim of reaching a mutual agreement before applying to the Agency for a variance of Clause 5 and that it received the negative response of the railway company only on February 26, 1991 and that the applicant is now unable to meet its obligations with respect to the closing of the road;

AND WHEREAS the applicant has advised that it has begun the legal process required to close the Maple Grove Drive which will take until early to mid June 1991;

AND WHEREAS the applicant has advised that it is prepared to accept all reasonable maintenance costs and liabilities as its reponsibility for the additional three month period;

AND WHEREAS the railway company has asked for, and has advised that it has received, certain undertakings from the applicant respecting the extension of time for the closing of Maple Grove Drive level crossing;

AND WHEREAS the railway company has asked for the undertaking of the Agency that it will not grant any additional extension for keeping the Maple Grove Drive level crossing open beyond June 14, 1991, nor will it issue any order for the future reopening of any level crossing in this location should such applications be made;

AND WHEREAS the Agency has reviewed the submissions filed;

AND WHEREAS the Agency notes that the applicant has provided undertakings to the railway company to satisfy the demands of the railway company;

AND WHEREAS respecting the future of the Maple Grove Drive level crossing after June 14, 1991 the Agency will deal with any application filed, based on the merits of the case at the time;

AND WHEREAS pursuant to section 41 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), the Agency is of the opinion that there has been a change in the facts or circumstances pertaining to Order No. 1989-R-225;

AND WHEREAS the Agency is of the opinion that the proposed extension of time for the closing of Maple Grove Drive level crossing is in the public interest, to permit the road improvements described by the applicant as beneficial to the public convenience, and since the applicant has satisfied the demands of the railway company and assumed reasonable maintenance costs and liabilities.

NOW THEREFORE, IT IS ORDERED THAT:

Order No. 1989-R-225 dated August 11, 1989 is hereby amended by deleting Clause 5 and substituting the following therefor:

"The railway company shall close, on June 14, 1991, within the limits of its right-of-way, the existing crossing at Maple Grove Drive, at mileage 19.25 Oakville Subdivision, in the Town of Oakville, in the Province of Ontario."