Decision No. 560-R-1991

November 8, 1991

File No. R 8050/326-149.90

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BACKGROUND

On October 16, 1985, the Canadian Transport Commission, pursuant to an application by the Corporation of the Town of Parry Sound (hereinafter the Town), by Order No. R-38569, authorized the Town and the Canadian National Railway Company (hereinafter the applicant) to widen Church Street. Order No. R-38569 also authorized the applicant to modify the existing automatic crossing protection and to improve the protective devices at Church Street by adding two flashing light units on the southeast mast.

Order No. R-38569 further apportioned the cost of improving the protective devices at 80 percent of the sum or $840, whichever is the lesser, from moneys appropriated by Parliament for the purposes of the Railway Relocation and Crossing Act, S.C., 1974, c. 12; 12.5 percent to be paid by the Town and the balance to be paid by the applicant. This percentage breakdown reflected a 62.5 percent proportion of eligible costs for the Town and a 37.5 percent proportion for the applicant. The Order also apportioned 50 percent of the costs of maintenance to the Town and 50 percent to the applicant.

The project authorized by Order No. R-38569 was never undertaken by the Town or the applicant. In light of this, on June 1, 1988, a Railway Safety Inspector of the Rail Safety Branch reactivated the dormant project authorized in Order No. R-38569 by pursuing the installation of the additional lights in order to improve safety at the subject crossing.

On October 23, 1990, the applicant, in accordance with the provisions of subsection 16(1) of the Railway Safety Act, referred the matter to the National Transportation Agency (hereinafter the Agency) for a determination on the apportionment of costs for the installation of a crossing warning system at the subject location. The applicant advised the Agency that the Town had informed it by letter dated October 12, 1990, that the expenditure of costs for improving the crossing warning system had been defeated by Resolution in Council No. 90-413 dated October 2, 1990.

An application was also made by the applicant on July 23, 1990, to the Minister of Transport for a ministerial grant to install the two additional lights in the southeast quadrant of the crossing.

Furthermore, CN advised Transport Canada that the original estimate for the project authorized by Order No. R-38569, was based on all work being done at the same time as when the cantilever mast was to be installed, thus keeping the labour and expense figure low. Also, lights were to be installed on the cantilever mast and additional lights were to be added to a signal and be aligned for Station Street. Therefore, since Church Street is not to be widened at this time, the situation now requires that the lights be installed on a larger mast which will require additional wiring, etc. These alterations, plus inflation have increased costs over that originally estimated in 1984.

POSITION OF THE APPLICANT

The applicant concurred with the recommendation of the Railway Safety Inspector that the installation of additional flashing lights at the subject location would improve safety.

Therefore, the applicant asserted that under subsection 16(1) of the Railway Safety Act there was a requirement for this project.

Furthermore, in its letter of July 23, 1990 to the Minister of Transport, the applicant submitted that it had no objection to carrying out the recommended alteration provided:

1. The Minister authorized a grant of 80 percent toward the work; and
2. The Town agreed to contribute 12.5 percent toward the cost of the work and also agreed to accept 50 percent of the cost of future maintenance of the road crossing warning system.

POSITION OF THE TOWN

By Resolution in Council No. 90-413 dated October 2, 1990, the Town defeated an expenditure of $445 for the additional signal head and 50 percent towards the maintenance of the signal in the future. (This was the amount previously ordered to be contributed by the Town in Order No. R-38569.)

The Town had intended for a number of years to widen Church Street from two lanes to four lanes of traffic with a sidewalk on either side as was authorized by Order No. R-38569. However, the Town has informed the applicant that it will be a number of years before the street can be widened.

AGENCY FINDINGS AND CONSIDERATIONS

In reviewing the application, the Agency considered whether the matter was more properly a review of an existing Order.

From the submissions filed, the Agency notes that while the proposed installation of two flashing light units on the southeast mast was authorized by Order No. R-38569 dated October 16, 1985, it is only a partial section of the work authorized by that Order. The work which is the subject of the present application is now proposed to be proceeded with independent of the rest of the project.

As the intention is not to proceed at this time with the original project in its entirety, it is the opinion of the Agency that the installation of two flashing light units on the southeast mast can be perceived as a project so different from that previously authorized, that it is actually a new project. Therefore, subsection 16(1) of the Railway Safety Act is the proper authority under which to consider this project.

Pursuant to section 16 of the Railway Safety Act, the Agency has jurisdiction to determine cost apportionments made respecting crossing protection. Furthermore, in cases where the parties involved are unable to agree on the apportionment of costs for the project and have no other recourse under other legislation to resolve the dispute, either party may apply to the Agency for a determination.

The parties involved have been unable to reach an agreement on the apportionment of cost for the installation of the additional lights at the subject location and therefore the applicant has referred the matter to the Agency for a determination on the apportionment of cost in accordance with the provisions of subsection 16(1) of the Railway Safety Act.

In making its determination on the apportionment of costs for the installation of the additional lights, the Agency is of the opinion that the proposed project will be of benefit to both the Town and the applicant.

The Agency recognizes that the Town had intended for a number of years to widen Church Street from two lanes of traffic to four lanes with a sidewalk on either side to satisfy the vehicular and pedestrian traffic at the crossing. Therefore, the Agency is of the opinion that there is significant vehicular and pedestrian traffic at the crossing and as such the Town will obtain a greater benefit than the applicant by the installation of the improved protective devices. Therefore, the cost of improving the protective devices by the installation of the additional light units on the southeast mast shall, after ministerial grant, be apportioned as follows: 62.5 percent to be paid by the Town and 37.5 percent to be paid by the applicant.

The Town and the applicant shall each be responsible for 50 percent of the cost of maintenance of the protective devices.