Decision No. 467-R-1991

August 28, 1991

August 28, 1991

IN THE MATTER OF a reference by the Corporation of the District of Pitt Meadows pursuant to subsection 16(1) of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) for a determination by the National Transportation Agency on the cost apportionment to be borne by each party in respect of the relocation of the automatic warning devices and the installation of cantilever structures at Harris Road, mileage 107.35 Cascade Subdivision of Canadian Pacific Limited in the District of Pitt Meadows, in the Province of British Columbia.

File No. 27073.60


BACKGROUND

On September 22, 1989, the Corporation of the District of Pitt Meadows (hereinafter the District) applied to the National Transportation Agency (hereinafter the Agency) for permission to widen an existing crossing at which automatic warning devices were previously installed. The project required that the masts for the signal work be relocated and, in addition, cantilever structures were required to be installed because of the widening. Originally, the District sought a grant from the funds appropriated for the purposes of the Railway Safety Act towards the cost of the relocation and improvements to the automatic warning devices. However, by letter dated November 28, 1989, the Department of Transport advised that:

Since the addition of cantilever structures and the relocation of the present equipment is dictated by the road widening project rather than an enhancement of safety, such projects are not eligible for funding.

By letter dated February 1, 1990, the District requested the Agency and Canadian Pacific Limited (hereinafter CP) to contribute, toward the relocation and improvement of the automatic warning devices, a similar level of funding that was provided at the time of their installation. By submission dated May 25, 1990, CP noted that the proposed cost apportionment was based on an outdated formula last used in 1959-60. CP further stated that the changes to the crossing signals are required to accommodate the road widening which will solely benefit the District. Therefore, as there would be no benefit or improvement to safety, CP refused to contribute towards the cost of the signal improvements.

POSITION OF THE DISTRICT

By letter dated January 16, 1991, the District submitted the question of apportioning the cost of the signal improvements to the Agency pursuant to the Railway Safety Act. It requested that the costs for the relocation and improvement of the signals be apportioned 60 percent to the Railway Grade Crossing Fund, 25 percent to the District and 15 percent to CP.

POSITION OF CP

By letter dated May 13, 1991, CP responded to the District by reiterating that:

  1. The work involved the modification and relocation of an existing crossing warning system rather than the installation of such a system.
  2. The apportionment of costs requested by the District reflects an apportionment formula used in 1957 which is no longer contemporary.
  3. The Agency has no power to order the Minister of Transport to make a contribution towards the costs of the work.
  4. The works have been completed and pursuant to subsection 17(2) of the Railway Safety Act, a grant may not be made in respect of work which has been commenced prior to approval of such a grant.
  5. Section 12 of the Railway Safety Act requires that railway works must improve the safety of a crossing at grade or permit the abandonment or relocation of a crossing at grade in order to be eligible for a grant. Transport Canada has previously advised that these works are not eligible for a grant.

No further submissions were received.

JURISDICTION

Subsection 16(1) of the Railway Safety Act states:

16(1) Where the proposing party in respect of a proposed railway work and each other person who stands to benefit from the completion of the work cannot agree on the apportionment between them of the liability to meet the construction, alteration, operational or maintenance costs in respect of that work, the proposing party or any of those persons may, if no right of recourse is available under the Railway Act or the Railway Relocation and Crossing Act, refer the matter to the Agency for a determination.

Since the Agency no longer apportions the costs associated with safety related works, such as automated warning devices, pursuant to the Railway Act, R.S.C., 1985, c. R-3 following amendments made to it by the Railway Safety Act with effect from January 1, 1989, no right of recourse to resolve the dispute is available under the Railway Act. Similarly no recourse is available under the Railway Relocation and Crossing Act, R.S.C., 1985, c. R-4. Therefore, subsection 16(1) of the Railway Safety Act affords the District an appropriate avenue under which to seek redress.

Subsection 16(4) of the Railway Safety Act states:

16(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.

Subsection 16(4) creates a benefits test that must be applied by the Agency in apportioning costs although the Agency is empowered to take into account factors other than the respective benefits of the affected parties in determining liability. Upon consideration of the matter, the Agency must make a determination of the proportion of the liability for construction, alteration, operation and maintenance costs that must be borne by each party and apportion the liability in accordance with that determination.

Finally, it should be noted that the Agency does not have jurisdiction pursuant to the Railway Safety Act to apportion any part of the liability for safety related work at crossings against the funds appropriated by Parliament for the purposes of making safety-related improvements to crossings under the Railway Safety Act. The issue of a grant for improvements at a crossing is within the sole discretion of the Minister of Transport. The Agency notes that other than the request for a grant pursuant to the Railway Safety Act, there was no suggestion of any interest in the matter on the part of a federal or provincial government department that would warrant consideration of an apportionment of liability for the cost of relocating the automatic protection devices and installing the cantilevers against the federal or provincial government.

CONSIDERATIONS AND FINDINGS

In this case, the work required to be done involves the relocation of the automatic warning masts and the installation of cantilever structures to accommodate the widening of the crossing. Transport Canada is of the opinion that the addition of cantilever structures and the relocation of present equipment is dictated by the road widening project rather than an enhancement to safety. Transport Canada further concluded that all safety requirements are within the present regulations and safety is not compromised. The widening of the crossing has been proposed by the District to enhance the public convenience of the motoring public. In this case, the relocation of the warning devices and the installation of cantilever structures will benefit the District which will maintain an appropriate safety level at the widened crossing.

Since the work done to relocate the warning devices will exclusively benefit the District, and no other relevant considerations are evident, the Agency determines that the cost of altering the automatic warning devices by relocation of the masts to accommodate a road widening and the cost of installing cantilever structures should be apportioned 100 percent against the District.

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