Decision No. 397-R-2015

INTRODUCTION

[1] On March 26, 2015, Alberta Transportation filed an application with the Canadian Transportation Agency (Agency) pursuant to section 101 of the Canada Transportation Act (CTA) for an order related to the reconstruction and future maintenance of the existing grade separation carrying Highway 22X over and across the track of the Canadian Pacific Railway Company (CP) at mileage 10.73 of the Macleod Subdivision, 3 kilometres south of Midnapore, in the province of Alberta, and pursuant to section 16 of the Railway Safety Act (RSA), to apportion the costs of reconstructing and maintaining that grade separation (the 2015 application).

[2] While the parties do not contest the proposed construction of the grade separation, they do not agree on the apportionment of the costs of reconstruction and maintenance.

[3] This decision provides a short history at this crossing; addresses a preliminary matter regarding the scope of the application to be decided by the Agency; determines whether this constitutes reconstruction on a new or existing route; and apportions the costs of reconstruction and maintenance.

CROSSING HISTORY

Previous Orders

[4] Order No. 91218 dated March 19, 1957 authorized CP to install and maintain two flashing light signals and one bell at the existing at-grade crossing of the railway and Highway No. 22. Order No. 96068 dated October 22, 1958 authorized Alberta Transportation to relocate and widen Highway No. 22A. Alberta Transportation was responsible for the costs of relocating and widening the at-grade crossing and the cost of maintenance was paid by CP. Order No. 96273 dated November 17, 1958, authorized CP to relocate the crossing protection authorized by Order No. 91218 to the new crossing of its railway and Highway No. 22A.

[5] Order No. WDR-00429 dated August 27, 1981 authorized Alberta Transportation to construct an overhead bridge with 5 percent of the cost of the construction of the grade separation to be paid by CP and the balance by Alberta Transportation. The Agency apportioned all of the costs of maintenance of the overhead bridge to Alberta Transportation.

[6] Order No. R-32996 dated November 24, 1981 amended Order No. WDR-00429 to indicate that from the date the overhead bridge is opened for use of the public, the cost of maintenance of the existing at-grade crossing and the cost of maintenance and operation of the automatic protection shall be paid by Alberta Transportation.

137-R-2013">Decision No. 137-R-2013

[7] On June 15, 2012, Alberta Transportation filed an application with the Agency for an order related to the reconstruction (in two phases), maintenance and apportionment of costs of the existing grade separation. Alberta Transportation filed subsequent submissions clarifying the scope of its application (collectively, the 2012 application).

[8] Phase 1 of the project would consist of the construction of an additional six-lane westbound overhead structure adjacent to the existing overhead structure, and performing deck work on this overhead structure (to be eastbound).

[9] In 137-R-2013">Decision No. 137-R-2013 (the 2013 decision), the Agency authorized the construction of a six-lane westbound overhead structure, as shown on Drawing STR-01 dated December 20, 2012, adjacent to the existing overhead structure.

[10] For the purpose of cost apportionment, the Agency defined the basic grade separation of the westbound structure as two through lanes and one auxiliary lane plus the inside and outside shoulders (for a total of three through lanes). A fourth “future facility” lane was not included as part of the basic grade separation at Alberta Transportation’s request. The fifth and sixth lanes – two outside ramp lanes – were identified as being a part of phase 2 and, as a result, were excluded from the basic grade separation and cost apportionment at that time.

[11] The Agency also found that the addition of “a second three-lane structure” (i.e., the basic grade separation for the westbound structure) constituted the reconstruction of an existing structure on an existing route.

[12] The Agency apportioned 85 percent of the reconstruction costs of the basic grade separation to Alberta Transportation and the remaining 15 percent was apportioned to CP.

[13] The costs of additional facilities would be paid by the parties requesting them. As for the maintenance costs of the reconstructed grade separation, Alberta Transportation was responsible for the maintenance costs of the substructures and superstructures of the overhead bridge including the highway approaches, the highway surface and the drainage and lighting facilities. CP was responsible for all other costs of maintenance including the railway approaches, track structure, railway drainage and communication facilities.

PRELIMINARY MATTER – SCOPE OF THE APPLICATION TO BE DECIDED

2015 application

[14] In its 2015 application, Alberta Transportation explains that it began to perform some of the Phase 1 construction, but did not complete all of it. Specifically, it completed the modifications to the eastbound structure, which now consists of a single four-lane overhead structure carrying both eastbound and westbound traffic, but it did not construct the westbound structure. Alberta Transportation states:

Building of only Phase 1 has been superseded by the availability of the Tsuu T’ina Nation’s land agreement which allows for the construction of the complete Southwest Calgary Ring Road. With the final Ring Road connection being constructed now, the anticipated traffic volumes require both Phases to be in place now as well. Phase 1 was put on hold once the possibility of the Tsuu T’ina land acquisition became probable, thus avoiding re-work. Alberta Transportation is now proceeding with Phase 2 of the project which includes the reconstruction of both the westbound and eastbound carriageways.

[15] Alberta Transportation now seeks authorization to reconstruct the existing grade separation, resulting in two adjacent eastbound and westbound structures. The six-lane westbound structure will consist of three through lanes, two outside ramp lanes, and provision for a future lane, as shown on Drawing STR-01 dated January 9, 2015. The seven-lane eastbound structure will consist of four through lanes, two ramp lanes, and provision for a future lane, also as shown on Drawing STR-01 dated January 9, 2015.

[16] These two adjacent structures will carry eastbound and westbound traffic over and across the existing CP track; provisions for a future CP track; provisions for two future light rail transit (LRT) tracks on the west headslope and a future two-lane roadway on the east headslope.

[17] The 2015 application also involves the closure of the existing public at-grade crossing of Sheriff King Road SE across the CP tracks at mileage 10.78, just south of and adjacent to the existing overhead structure, as indicated in drawings STR-01, STR-03, and DD 1989D, dated January 9, 2015 (the existing at-grade crossing). To provide CP access to its facilities on the east side of the tracks, a new private crossing will be established approximately 10 m south of the existing at‑grade crossing, at mileage 10.785, as indicated in drawing DD 1989D, dated January 9, 2015 (the new at-grade crossing).

Effect of the 2013 decision on the 2015 application

[18] Certain elements raised in Alberta Transportation’s 2015 application were addressed in the 2013 decision, which remains in full force and effect. As a result, on September 21, 2015, the Agency required both parties to answer questions regarding the effect of the 2013 decision on the 2015 application; what issues remained to be decided; the differences between the proposed structures and related drawings filed as part of the 2012 and 2015 applications; and whether, as a result, the 2013 decision should be varied or rescinded.

Position of Alberta Transportation

[19] Alberta Transportation argues that the 2013 decision has already determined that the three-lane stage of the proposed westbound overhead bridge constitutes the reconstruction of an existing grade separation; the cost apportionment of the basic grade separation of the westbound structure; and maintenance responsibilities.

[20] Alberta Transportation submits that the issues remaining to be decided include the authorization and cost apportionment for the additional two outside lanes of the proposed westbound overhead bridge; authorization and cost apportionment associated with the newly proposed reconstruction of the eastbound overhead bridge; approval for the removal of the existing overhead bridge; and approval to eliminate the public at-grade crossing on the south side of the eastbound overhead bridge.

[21] With respect to the drawings and structures referenced in the 2012 and 2015 applications, Alberta Transportation provided a comparison whereby it concludes, among other things, that there is no difference in the lane arrangement or configuration of the westbound overhead bridge between the previous and the current proceedings.

[22] Finally, according to Alberta Transportation, the 2013 decision should be varied to include two additional outside westbound lanes on the proposed westbound overhead bridge; a reconstructed six-lane eastbound overhead bridge; the removal of the existing grade separation; and the removal of the existing public at-grade crossing located on the south side of the original grade separation.

Position of CP

[23] CP claims that the 2013 decision should have no effect on the current proceedings and that it has not determined any portions of the 2015 application. CP argues that the Agency rendered the 2013 decision in the context of the original proposed project and, as such, the 2013 decision is fundamentally project-specific and inextricably linked to the issue of providing for present day traffic volume. CP claims that the 2013 decision is only applicable to the original proposed project, which is substantially different from the new proposed project, and that the Agency must consider the new proposed project anew on its own merits.

[24] It is CP’s position that its submissions at all times prior to the 2013 decision related to the original proposed project rather than the new proposed project and, therefore, to apply the 2013 decision to anything other than the original proposed project results in a denial of fundamental justice and procedural fairness to CP.

[25] CP emphasizes that the Agency should require a new application from Alberta Transportation with respect to the new proposed project, and consider the 2015 application and related March 24 and June 12, 2015 submissions a nullity. CP alleges that new submissions can only be produced once the parties have equal access to all relevant information, including the documents in Alberta Transportation’s possession (relating to a commitment for federal funding for the construction of the Calgary Ring Road) which CP has been required to access by way of a freedom of information and protection of privacy request rather than voluntary disclosure throughout these proceedings.

[26] CP states that the 2013 decision should be rescinded and a hearing de novo be ordered.

Analysis and findings

[27] With respect to CP’s claim that the “original proposed project” differs from the “new proposed project”, the Agency notes that the proposed westbound structures in the 2012 and 2015 applications each consist of three through lanes, two outside ramp lanes, and provision for a future lane. In both cases, the structures carry traffic over and across the existing CP track, provisions for a future CP track, provisions for two future LRT tracks on the west headslope, and provisions for a future two-lane roadway on the east headslope.

[28] The Agency therefore finds that the westbound structure described in the 2012 application, for which the construction was authorized by the Agency in the 2013 decision, is essentially the same as the westbound structure which Alberta Transportation proposes to construct in its 2015 application.

[29] The authorization granted in the 2013 decision remains in full force and effect.

[30] In light of the foregoing and as the Agency, in its 2013 decision, also apportioned the costs of construction for the basic grade separation and made its determination regarding reconstruction on an existing route, the Agency finds that the 2013 decision does have an effect on the 2015 application.

[31] The Agency finds that only a portion of the scope of the 2015 application is outside of or beyond the scope of the 2013 decision. Therefore, the Agency is of the opinion that there is no need to rescind or vary the 2013 decision. In this Decision, the Agency will deal with those matters raised in the 2015 application which have not already been addressed in the 2013 decision, namely the reconstruction of the eastbound structure and putting into service the two ramp lanes on the westbound structure.

Authorization

[32] With respect to the overhead structures, given that the Agency already authorized the construction of the entire westbound overhead structure, it will only consider the authorization of the construction of the eastbound structure in this Decision. With respect to Alberta Transportation’s request for the Agency to approve the removal of the existing overhead structure, the removal of that bridge is considered to be a part of the overall project as described in the 2015 application and, therefore, need not be considered by the Agency.

[33] Alberta Transportation also requests that the Agency approve the closure of the existing at-grade crossing. The Agency acknowledges Alberta Transportation’s explanation that the construction of the overhead structures will eliminate the need to retain the existing at-grade crossing, and that the new at-grade crossing will be constructed to provide CP access to its facilities on the east side of its tracks. Therefore, the Agency need not approve the closure of the existing crossing, but will address in this Decision the authorization (and cost apportionment) of the new at-grade crossing.

Reconstruction on a new or existing route

[34] As noted above, in the 2013 decision, the Agency found that the addition of a second three-lane structure constituted the reconstruction of an existing structure on an existing route. Therefore, for the purposes of determining the matter of reconstruction on a new or existing route in this Decision, the Agency will address only the reconstruction of the eastbound structure and putting into service the two ramp lanes on the westbound structure.

Cost apportionment

[35] In the 2013 decision, for the purposes of cost apportionment, the Agency defined the basic grade separation as “[…] two through lanes and one auxiliary lane plus the inside and outside shoulders, as shown on Drawing No. STR-01 dated December 20, 2012.”

[36] Alberta Transportation was apportioned 85 percent of the reconstruction costs of the basic grade separation and CP, the remaining 15 percent. The costs of additional facilities would be paid by the parties requesting them. All maintenance costs of the substructure, superstructure and retaining wall of the overhead bridge were apportioned to Alberta Transportation; and all other maintenance costs of the overhead bridge, including the costs of maintaining the railway approaches, track structure, railway drainage and communication facilities, were apportioned to CP.

[37] With respect to the overhead structures, as the Agency already apportioned costs for the westbound structure basic grade separation construction as well as costs for maintenance, it will, for the purposes of cost apportionment in this Decision, consider only the reconstruction of the eastbound structure, the construction of the two ramp lanes of the westbound structure, and costs for maintenance.

[38] As noted above, the Agency will also address in this Decision the cost apportionment relating to construction and maintenance of the new at-grade crossing.

Other matter

[39] In response to the Agency’s September 21, 2015 questions to the parties, CP requested that the Agency suspend its issuance of this Decision for several months to allow CP to gather and submit to the Agency new evidence regarding Alberta Transportation’s request for funding for the construction of portions of the Ring Road and the federal government’s commitment to provide it.

[40] CP stated that it would file this new evidence in the form of an application pursuant to section 32 of the CTA to demonstrate that such funding clearly constitutes new facts that will materially affect any decision of the Agency and that the request for funding by Alberta Transportation will likely contain evidence that the Southwest Calgary Ring Road (SW CRR) is, in fact, a new route.

[41] Section 29 of the CTA provides that the Agency shall issue its decisions as expeditiously as possible, and no later than 120 days from the receipt of the originating documents. CP’s request to suspend the issuance of this Decision for several months is based on an uncertain outcome and its length is disproportionate to the 120 day requirement.

[42] The benefit to CP of a delay of several months to collect information, which may be relevant to the Agency’s decision in this case, does not outweigh the cost of such a delay to Alberta Transportation, which is entitled to a timely decision.

[43] However, section 32 of the CTA provides that:

The Agency may review, rescind or vary any decision or order made by it or may re‑hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[44] CP may file with the Agency a section 32 application to be considered by the Agency in the event that it obtains information which it feels establishes a change in the facts or circumstances supporting this application.

[45] The Agency therefore denies CP’s request to suspend the issuance of this Decision on the matters at hand.

ISSUES

1. DOES THE RECONSTRUCTION OF THE EASTBOUND STRUCTURE, AS WELL AS PUTTING INTO SERVICE THE TWO RAMP LANES ON THE WESTBOUND STRUCTURE, CONSTITUTE THE CONSTRUCTION OF A GRADE SEPARATION ON A NEW ROUTE OR THE RECONSTRUCTION OF AN EXISTING GRADE SEPARATION ON AN EXISTING ROUTE?

2. SHOULD THE AGENCY AUTHORIZE THE RECONSTRUCTION OF THE EASTBOUND STRUCTURE AND THE CONSTRUCTION OF A NEW AT‑GRADE CROSSING?  IF SO, HOW SHOULD THE AGENCY APPORTION THE COSTS OF RECONSTRUCTION AND MAINTENANCE OF THE EASTBOUND STRUCTURE, THE TWO RAMP LANES ON THE WESTBOUND STRUCTURE, AND THE NEW AT-GRADE CROSSING?

THE LAW

[46] Section 101 of the CTA states, in part, that:

(1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

[...]

(3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

(4) Section 16 of the Railway Safety Act applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing.

[47] Section 16 of the RSA states, in part, that:

(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.

[...]

(4) Where a matter is referred to the Agency under subsection (1), the Agency shall, having regard to any grant made under section 12 or 13 in respect of that matter, the relative benefits that each person who has, or who might have, referred the matter stands to gain from the work, and to any other factor that it considers relevant, determine the proportion of the liability for construction, alteration, operational and maintenance costs to be borne by each person, and that liability shall be apportioned accordingly.

[48] The Agency must consider the merits of the case pursuant to the requirements of subsection 16(4) of the RSA. The Agency must determine the proportion of the liability for the construction, reconstruction and maintenance costs to be borne by each party having regard to the relative benefits that each person stands to gain and any other factor that it considers relevant. While the need for the work may be a factor which the Agency considers relevant, subsection 16(4) of the RSA does not require the cost apportionment to be based on which party created the need for the work.

[49] In its deliberations, the Agency may use the Agency’s Apportionment of Costs of Grade Separations: A Resource Tool (Resource Tool) for decisions concerning the cost apportionment for construction or reconstruction of grade separations. The Resource Tool was published to assist parties in their negotiations and/or in the preparation of their submissions for any application to the Agency for a decision on the apportionments of costs. As per the Resource Tool, the Agency considers, among other things, the benefits accruing to each party for the construction or reconstruction of grade separations as well as the responsibility that each party has to coexist at crossings. However, each application for a grade separation and cost apportionment is assessed on its own merits by the Agency when it determines whether the Resource Tool applies and to what extent. Therefore, the Agency is not bound by the Resource Tool and may choose not to strictly apply it, as appropriate to the circumstances particular to each grade separation project.

ISSUE 1: DOES THE RECONSTRUCTION OF THE EASTBOUND STRUCTURE, AS WELL AS PUTTING INTO SERVICE THE TWO RAMP LANES ON THE WESTBOUND STRUCTURE, CONSTITUTE THE CONSTRUCTION OF A GRADE SEPARATION ON A NEW ROUTE OR THE RECONSTRUCTION OF AN EXISTING GRADE SEPARATION ON AN EXISTING ROUTE?

Positions of the parties

[50] According to Alberta Transportation, Phase 2 is a reconstruction of the existing overhead structure that was originally authorized by Order No. WDR-00429 of the Railway Transport Committee of the Canadian Transport Commission dated August 27, 1981. It is an expansion of Highway 22X, which has been in existence for over 60 years in the area, and this expansion is needed due to the ongoing urban growth in the region.

[51] In its June 12, 2015 submission, Alberta Transportation states that the new section of the SW CRR does not commence in the westerly direction for at least 4.5 km from the crossing and in the easterly direction for at least 11 km.

[52] In its June 12, 2015 submission, Alberta Transportation indicates that it agrees with CP that the section of the proposed SW CRR through the Tsuu T’ina Nation lands is a new route, but that the new route designation starts at the point where the SW CRR leaves the existing Sarcee Trail SW facility (north of Anderson Road) and then connects (due north) to Highway 8.

[53] Alberta Transportation reiterates that the section of Highway 22X through the proposed CP grade separation area is, in fact, a reconstruction of an existing facility on an existing route.

[54] CP claims that the proposed Phase 2 overhead structures, at a total of seven through lanes, are not simply part of the routine maintenance of Highway 22X, but are in fact part of a much larger project that will incorporate Highway 22X into a new route, the SW CRR.

[55] According to CP, there is no existing highway through the Tsuu T’ina Nation lands, but a land transfer agreement reached between the Government of Alberta and the Tsuu T’ina Nation in November 2013 paved the way for completion of the future SW CRR.

[56] CP states that the proposed new section of the SW CRR forms an entirely new route through the Tsuu T’ina Nation lands that will connect to the west portion of the Ring Road and that this new route runs directly across Highway 22X at CP’s railway line. CP argues that the new overhead structures are being constructed to accommodate, and form part of, this new route.

[57] In support of its position, CP refers to Agency 845-R-1993">Decision No. 845-R-1993, in which the Agency apportioned no costs to CP for the construction, by the Ministry of Transportation of the province of Ontario (MTO), of a new grade-separated crossing over CP track.

[58] The MTO proposed to construct a new route, the 11/17N, in Thunder Bay, Ontario. The MTO sought to apportion 5 percent of the costs of construction and maintenance to CP for the new crossing on the new route. The Agency stated, in part, that:

[…] the functions of the proposed Highway 11/17N will be entirely different from the functions that will be sustained by Highway 11/17 which will be arterial in nature and will carry large volumes of traffic at moderate speeds providing service to the adjacent lands. The proposed highway will be designed to freeway standards with controlled access.

[…]

In noting the purpose of the proposed Highway 11/17N, the Agency is of the view that the proposed grade separation represents a new crossing that is required to meet the freeway needs of Highway 11/17N which cannot be accommodated by the existing facilities.

[59] CP alleges that the principles of the Agency’s findings in that decision apply to the case at hand. Specifically, CP states that the Highway 22X is a “lesser freeway” that is not designed for thoroughfare traffic and cannot accommodate the freeway needs of the new SW CRR route. CP claims that Alberta Transportation’s proposed construction is part of a large-scale plan to complete the Ring Road, a large scale thoroughfare freeway.

Analysis and findings

[60] The Agency notes, in Alberta Transportation’s submissions, that the new section of the SW CRR does not commence from the crossing in the westerly direction for at least 4.5 km and in the easterly direction for at least 11 km and that the expansion of Highway 22X is needed due to the ongoing urban growth in the region.

[61] The Agency also notes CP’s arguments that the grade separation is being reconstructed as part of a new route, as well as its reference to 845-R-1993">Decision No. 845-R-1993. Specifically, the Agency remarks that, in that decision, the new route proposed by the MTO, 11/17N, was to be constructed 3 to 4 kilometres north of the existing Highway 11/17. Similarly, the proposed 11/17N grade separation crossing over CP tracks was to be constructed approximately 2.7 km away from the existing 11/17 grade-separated crossing.

[62] That decision differs from the case at hand, where the subject route segments and crossings are not located several kilometres apart. Rather, the subject segments of Highway 22X and the SW CRR follow the same route, and there is only one grade separation in this case, which consists of two adjacent overhead structures approximately 3 m apart. These differences are noteworthy and, based on the facts, distinguish 845-R-1993">Decision No. 845-R-1993 from the case at hand. The Agency finds that the proposed reconstruction of the existing structure constitutes, according to this jurisprudence, a “reconstruction” on an existing route.

[63] The 2013 decision sets out CP’s arguments regarding whether this constitutes a new route in part, as follows:

[…] CP maintains that the “new bridge” (regardless of whether considering Phase 1 and/or Phase 2,) is a new route and clearly forms part of the Calgary Ring Road (the Ring Road). CP submits that the new bridge has been designed to form part of the future Southwest Stoney Trail and that, in fact, Highway 22X is being transformed into the Ring Road as part of the Southeast Stoney Trail and the future Southwest Stoney Trail. CP maintains that the bridge cannot be separated from the Ring Road project.

[…]

CP submits that the sole purpose of the “new bridge” is to form part of a new route for the Ring Road/Southwest Stoney Trail. CP asserts that the magnitude of the Ring Road is such that the existing structure must be entirely redesigned and rebuilt in conjunction with other Ring Road project components. According to CP, the “new bridge” must accommodate vehicular traffic volume on a new six‑lane highway, rather than simply accommodate an upgrade to an existing highway.

[64] The Agency notes that the above-mentioned arguments made by CP are materially the same as those made by CP in its reply to the 2015 application. As a result, the Agency is of the opinion that its findings in the 2013 decision regarding the new route, which accounted for CP’s arguments about the broader scope of the project, apply equally to this issue in this Decision.

[65] The existing structure and the future eastbound structure both consist of four through lanes. Because the westbound structure, consisting of three through lanes, has already been approved, the reconstruction currently proposed for the existing structure will result in the same number of through lanes for this grade separation. The Agency is of the opinion that this fact supports a finding that this is considered a reconstruction of an existing grade separation.

[66] Further, and notwithstanding CP’s position, the proposed overhead structure will be reconstructed at the same location; will continue to carry traffic over and across CP’s railway line; and is being widened to support an increase in vehicular traffic due to the growth in the area. These characteristics also support a conclusion that this is considered as a construction of an existing grade separation on an existing route.

[67] With respect to the two outside ramp lanes on each of the eastbound and westbound structures which will serve the Highway 22X / Macleod Trail interchange, the Agency is of the opinion that these ramp lanes are common to and necessary for the proper functioning of freeway interchanges, and thus integral to traffic accessing this interchange. In this particular case, the outside ramp lanes are planned as part of the new structure due to the close proximity of MacLeod Trail, which is approximately 800 m east of the CP railway line.

[68] In light of the foregoing, the Agency finds that the proposed reconstruction of the eastbound structure, as well as putting into service the outside ramp lanes on the westbound structure, constitute the reconstruction of an existing grade separation on an existing route.

ISSUE 2: SHOULD THE AGENCY AUTHORIZE THE RECONSTRUCTION OF THE EASTBOUND STRUCTURE AND THE CONSTRUCTION OF A NEW AT-GRADE CROSSING? IF SO, HOW SHOULD THE AGENCY APPORTION THE COSTS OF RECONSTRUCTION AND MAINTENANCE OF THE EASTBOUND STRUCTURE, THE TWO RAMP LANES ON THE WESTBOUND STRUCTURE AND THE NEW AT-GRADE CROSSING?

Positions of the parties

Present day needs

[69] According to Alberta Transportation, upon completion of the reconstruction in 2021, the eastbound and westbound structures will handle an estimated total annual average daily traffic (AADT) of 37 600. According to Alberta Transportation’s Geometric Design Guide, an AADT of 31 000 warrants six lanes. Alberta Transportation indicates that it is proposing seven lanes to operate effectively with the adjacent section of the SW CCR.

[70] Alberta Transportation also claims that the projected 2021 traffic volume occurs when the SW CRR is anticipated to open to traffic in the fall of 2021 and, therefore, construction of the proposed eastbound and westbound carriageways on the SW CRR is required to meet present day needs.

[71] Alberta Transportation is of the view that both parties have experienced growth in traffic at the crossing and, therefore, the construction costs should be apportioned according to that growth; CP’s share should be greater than the 15 percent shown in the Resource Tool to reflect their increase in rail traffic, length of trains and tonnage hauled on the line; however, without setting a precedent, Alberta Transportation is willing to accept a 15 percent contribution of the shareable costs from CP towards the reconstruction of the overhead bridge.

[72] CP states that the true purpose of the reconstruction is to accommodate the extension of the SW CRR route and the significant increase in traffic flow that will arise in the future from the completion of the entire Ring Road.

[73] CP argues that Alberta Transportation does not refer to present day needs, but rather cites the projected traffic volumes for the years 2021 and 2035, and that the need to accommodate future traffic flow should have no bearing on CP’s present obligations.

[74] In support of its position, CP refers to Agency 258-R-1991">Decision No. 258-R-1991, in which the Agency apportioned no costs to CP for the proposed closure of two railway crossings (one at-grade and one grade-separated) and the resulting construction of a new grade-separated crossing. In the decision, the Agency stated, in part, that: “[…] while the proposed new structure may be required to support future municipal development, the railway company should not be required to contribute to works which are proposed for future development.” Likewise, CP claims that it should not be liable for the future development of the new SW CRR.

Benefit

[75] Alberta Transportation provides several costs and benefits associated with the proposed reconstruction, including freedom of operations and increased efficiency for both roadway and railway users; an increase in rail traffic on the line; allowance for the provision of a second CP track; increased safety; the restriction that the track causes for Alberta Transportation by virtue of its existence across the roadway; and the need for both parties to coexist at the crossing.

[76] CP emphasizes that the current grade separation meets its present day needs, and already accommodates a future railway track or maintenance road if so required at a later time. CP states that it derives no benefit whatsoever from the alleged “reconstruction” of the existing structure as it becomes part of the SW CRR and, rather, the benefits of the new SW CRR route accrue to the travelling public.

[77] CP also argues that any safety risks caused by train movement were addressed in 1981 when the grade-separated crossing was constructed.

Responsibility at the crossing

[78] Alberta Transportation claims that both parties have experienced growth in traffic at the crossing that has contributed to the high vehicle/train cross product and are, therefore, equally responsible for upgrading facilities in response to this issue. Alberta Transportation also alleges that CP “had a responsibility at this existing overhead bridge, which was authorized by Order No. WDR‑00429.”

Authorization, cost apportionment and maintenance

[79] Alberta Transportation submits that the costs for the reconstruction and maintenance be apportioned in accordance with the Resource Tool.

[80] Alberta Transportation claims that it is senior at this grade separation due to the road allowance being established prior to the railway being constructed and that the seniority status is further verified by Board Order No. WDR-00429 of the Railway Transport Committee of the Canadian Transport Commission, whereby CP has a responsibility at this crossing.

[81] Alberta Transportation submits that maintenance should be established as per the Resource Tool.

[82] CP submits that while it is not opposed to any alleged reconstruction by Alberta Transportation, 100 percent of the costs associated with Phase 2 should be born solely by Alberta Transportation based on the Resource Tool. CP states that Alberta Transportation’s proposed cost apportionment is neither fair nor reasonable because there is no benefit to CP.

[83] Referring to 731-R-2000">Decision No. 731-R-2000, CP claims that it should have no obligation to pay for the maintenance and operation of the existing structure.

[84] Alberta Transportation indicates that the new at-grade crossing will be constructed to provide CP access to facilities located on the east side of its tracks; that this construction, as well as a gated private access road to CP’s facilities, are considered part of the shareable portion of the overall grade separation reconstruction costs; and that the maintenance associated with the new at-grade crossing will be 100 percent CP’s responsibility.

[85] CP did not address the new at-grade crossing in its submissions.

Analysis and findings

Present day needs

[86] The Agency accepts that the proposed reconstruction is slated for completion in 2021; when complete, the two structures will consist of, among other things, a total of seven through lanes; at that time, the estimated AADT will be 37 600; and, according to Alberta Transportation’s Geometric Design Guide, an AADT of 31 000 warrants six lanes.

[87] The Agency is of the opinion that, upon opening, the grade separation should meet the AADT requirement estimated to be in effect at that time. Therefore, the Agency finds that the time at which the reconstruction is to be completed, which is the fall of 2021, is considered “present need” for the purposes of estimating AADT and, by extension, the number of through lanes required upon completion of reconstruction.

[88] Given the above-mentioned finding, 258-R-1991">Decision No. 258-R-1991, which addresses future demand beyond the completion of the crossing in this case, does not apply to the present circumstances.

[89] The parties do not raise the six-lane requirement of Alberta Transportation’s Geometric Design Guide versus the seven through lane grade separation which Alberta Transportation proposes to construct.

[90] Therefore, the Agency finds that the seven through lanes proposed by Alberta Transportation will meet present day needs when the grade separation construction project is scheduled to be complete.

Benefit

[91] The Agency finds that the reconstruction is required primarily due to an increase in vehicular traffic on Highway 22X, from which Alberta Transportation will benefit. However, given the existing and projected AADT at the crossing and the increase in rail traffic, the Agency is of the opinion that both parties will continue to benefit from the grade separation.

Responsibility at the crossing

[92] The Agency notes that Order No. 96068 dated October 22, 1958 authorized Alberta Transportation to relocate and widen Highway No. 22A. Alberta Transportation was responsible for the costs of relocating and widening the at-grade crossing and the cost of future maintenance was paid by CP. Furthermore, in Order No. WDR-00429 dated August 27, 1981, CP was required to share in the construction costs of the Highway 22X grade separation, thereby continuing the shared responsibility of the parties at the crossing.

[93] Given the history of parties’ shared responsibility at this crossing and that both parties will continue to benefit from the grade separation, the Agency finds it appropriate that the parties continue to share responsibility at this crossing.

Authorization, cost apportionment and maintenance

[94] The Agency has considered the parties’ submissions and is satisfied that the reconstruction is required for present day needs upon completion of the grade separation construction. Having already authorized the construction of the westbound structure, the Agency hereby authorizes the reconstruction of the existing overhead structure, as shown in Drawing STR-03 dated January 9, 2015. The Agency also authorizes the construction of the new at-grade crossing as shown in Drawing DD 1989D dated January 9, 2015.

[95] While Alberta Transportation is ready to accept liability for 85 percent of the reconstruction costs, CP submits that Alberta Transportation should be responsible for 100 percent as the project constitutes a new route. While the parties’ positions differ in this regard, they do not challenge that the Resource Tool applies to this case. As such, the Agency will apply it in this case.

[96] As per the Resource Tool, if an existing grade separation is to be reconstructed, in a situation where both parties have responsibility and the project is due primarily to road development, the construction costs of a basic grade separation are normally apportioned 85 percent to the road authority and 15 percent to the railway company. The Agency finds that this is an appropriate apportionment of costs in the case at hand.

[97] As noted above, the parties continue to share responsibility at this crossing, and this project is due primarily to road development. The Agency therefore determines, in accordance with the Resource Tool, that Alberta Transportation shall pay 85 percent of the costs of reconstruction of the basic grade separation, and CP 15 percent.

[98] The Agency finds that the basic grade separation in this case consists of the two outside ramp lanes on the westbound structure (as shown in Drawing STR-01 dated December 20, 2012); and the two outside ramp lanes and four through lanes on the eastbound structure (as shown in Drawing STR-01 dated January 9, 2015). The Agency also finds that the limits for the basic grade separation are as shown on Plan DD1916B dated December 20, 2012 (for the two outside ramp lanes on the westbound structure) and on DD 1989C dated January 9, 2015 (for the eastbound structure).

[99] The Agency is of the opinion that any provisions made in the length or width of either structure to accommodate future lanes, facilities, LRT, rail, roadway or other allowances on or under the structures or on the headslopes are not considered part of the basic grade separation and shall be paid for by the party requesting them.

[100] The Agency notes that Alberta Transportation is currently responsible for the maintenance costs of the existing overhead bridge. According to the Resource Tool, if an existing grade separation is to be reconstructed, the established maintenance responsibilities for the existing grade separation are normally considered in the apportionment of maintenance costs of the basic grade separation. Therefore, all maintenance costs of the substructure, superstructure and retaining wall of the overhead bridge are to be paid by Alberta Transportation; and all other maintenance costs of the overhead bridge, including the costs of maintaining the railway approaches, track structure, railway drainage and communication facilities are to be paid by CP.

[101] With respect to the new at-grade crossing, the Agency notes Alberta’s position that it will be constructed to provide CP access to facilities located on the east side of its tracks; that this construction, as well as a gated private access road to CP’s facilities, are considered part of the shareable portion of the overall grade separation reconstruction costs; and that the maintenance associated with the new at-grade crossing will be 100 percent CP’s responsibility.

[102] Given that CP did not address the new at-grade crossing in its submissions, the Agency determines that Alberta Transportation shall pay 85 percent of the construction costs of the new at-grade crossing, and CP 15 percent; and that CP will be responsible for 100 percent of the maintenance costs.

CONCLUSION

[103] In light of the foregoing, the Agency:

1. finds that the 2013 decision does have an effect on the 2015 application;
2. neither varies nor rescinds the 2013 decision;
3. denies CP’s request to suspend the issuance of the Agency’s decision on the matters at hand;
4. finds that the reconstruction of the existing four-lane eastbound structure, as well as putting into service the two ramp lanes on the westbound structure, constitute the reconstruction of an existing grade separation on an existing route;
5. authorizes
   
   1. the reconstruction of the eastbound structure as shown in Drawing STR-03 dated January 9, 2015; and,
   2. the construction of the new at-grade crossing as shown in Drawing DD 1989D dated January 9, 2015;
6. apportions to
   
   1. Alberta Transportation 85 percent and to CP 15 percent of the reconstruction costs of the eastbound structure, as well as the two ramp lanes on the westbound structure; and,
   2. Alberta Transportation 85 percent and to CP 15 percent of the construction costs of the new at-grade crossing;
7. apportions to the party requesting any additional facilities 100 percent of the costs thereof;
8. apportions to
   
   1. Alberta Transportation 100 percent of the maintenance costs of the substructures and superstructures of the overhead structures, including the highway approaches, the highway surface and the drainage and lighting facilities;
   2. CP 100 percent of all other costs of maintenance including the railway approaches, track structure, railway drainage and communication facilities; and,
   3. CP 100 percent of the costs of maintenance of the new at-grade crossing.