Decision No. 61-R-2013

INTRODUCTION AND ISSUES

Application

[1] Municipalité de Saint-Étienne-de-Bolton (Municipality) has applied to the Canadian Transportation Agency (Agency) for authority to construct a road crossing at du Roy Road and mileage 98.60 of the Sherbrooke Subdivision of the Montreal, Maine & Atlantic Canada Co. (MMAC) in the municipality of Saint-Étienne-de-Bolton, in the province of Quebec. The Municipality also requested that the Agency apportion the costs of construction and maintenance of the road crossing and establish the sharing of costs for safety measures, if necessary.

Issues

[2] Should the Agency authorize the construction of the proposed road crossing?

[3] If the Agency authorizes the construction of the proposed road crossing, how should its construction and maintenance costs be apportioned?

Conclusion

[4] As indicated in the reasons that follow, the Agency authorizes the construction of a road crossing equipped with crossbuck signs and mandatory stop signs at mileage 98.60 of the Sherbrooke Subdivision. The Agency also determines that the Municipality is responsible for the costs of the construction and maintenance of the road crossing and approaches.

BACKGROUND

[5] The application relates to the construction of a road crossing to enable residents to access the lots they purchased to build houses.

[6] Du Roy Road is a 530-meter long dead-end street that crosses ancestral farmland in a perpendicular way starting at Route 112 (provincial road under the authority of the ministère des Transports du Québec), between Domaine des Cantons and Des Quatre-Goyette Road, in the municipality of Saint-Étienne-de-Bolton. Traffic is slow moving and limited. Du Roy Road currently provides access to only one house and could eventually provide access to 16 houses. At this time, only one train per day, six days per week, goes by, and the maximum authorized speed on the track is 10 mph. The road crossing is already equipped with crossbuck signs and mandatory stop signs.

[7] In 2011, the owners of the 16 lots running along du Roy Road called on the Municipality to help them settle a dispute with the developer, who was refusing to make du Roy Road (a private road) compliant with the Municipality’s construction standards, a pre-requisite for the issuance of house building permits by the Municipality.

[8] For the sole purpose of resolving its residents’ issue, the Municipality took the necessary steps to purchase du Roy Road through expropriation and became the owner of the road on August 1, 2011. Du Roy Road, which was a private road, thus became a municipal road in 2011.

[9] After taking part in many discussions, the Municipality and MMAC still could not agree on the conditions related to the construction of the road crossing. Consequently, the Municipality filed this application.

POSITIONS OF THE PARTIES

Construction of the proposed road crossing

[10] The Municipality indicates that the portion of du Roy Road where the grade crossing is located has existed for a very long time. It adds that when the railway was built, the status of this crossing was “farm road”, and then became “private grade crossing”, probably when du Roy Road was built.

[11] The Municipality asserts that as du Roy Road has become a public municipal road, the status of the grade crossing has also gone from “private” to “public”. As a result, new safety rules apply. However, in practice, nothing changes regarding the risks it presents, nor its use: du Roy Road remains a dead-end, its traffic is slow moving and limited, and the only way to access it is through the grade crossing.

[12] The Municipality maintains that on September 20, 2011, a meeting was held between all the stakeholders in this matter – MMAC, the Municipality, the ministère des Transports du Québec, Transport Canada and a few lot owners from du Roy Road. However, the parties were unable to enter into an agreement.

[13] MMAC states that the proposed new redesigned public road crossing does not and cannot comply with the requirements of the Road/Railway Grade Crossings Technical Standards and Inspection, Testing and Maintenance Requirements (RTD 10) issued by Transport Canada pursuant to the Railway Safety Act (RSA).

[14] MMAC submits that it will derive no benefit from the new redesigned public road crossing as it will not serve existing clients better, serve more clients, or improve MMAC’s rail operations in any way. MMAC adds that due to the compromised safety of the crossing, MMAC would incur increased risk to its rail operations, the volume of which is expected to rise in the future.

[15] MMAC disagrees with the Municipality’s contention that nothing has changed with respect to the risks associated with the use of the crossing as it has no control over the number of houses that will be built in the area near the crossing and because the volume of MMAC’s operations is expected to rise in the future.

[16] The Municipality, in its reply, states that its argument is based on the RSA that is currently in effect and not on the draft RTD 10, which is still under review, and to which MMAC frequently makes reference.

[17] The Municipality maintains that the number of houses on du Roy Road is limited due to the size and configuration of the land and the fact that the road is a dead-end. The Municipality confirms that there will be no additional development (opening of streets) to the north, east or west of du Roy Road.

[18] The Municipality maintains that the “danger” arising from the grade crossing is the same, regardless of the road’s status.

[19] MMAC, in its supplementary answer, states that the Municipality has suggested that the RTD 10 is not the law or that it should not be followed; however, the Municipality does not give any reason in law why MMAC, or the Agency for that matter, should not follow Transport Canada’s requirement that railway companies follow RTD 10.

[20] MMAC states that the Municipality’s suggestion that the number of houses will be limited has not been substantiated.

[21] MMAC submits that in any event, although the number of houses is limited to 16, it remains “impossible” to construct a safe public at-grade crossing at that location.

[22] The Municipality, in its supplementary reply, submits that a simple change in the road’s status from “private road” to “public road” in no way modifies the safety of the grade crossing. The Municipality questions how this change in status justifies the imposition of future rules (RTD 10) that do not yet have force of law rather than the rules currently in effect.

[23] The Municipality states that it is willing to make the necessary commitments in order for du Roy Road to remain a dead-end road, restrict the number of houses to 16, and have the status of “public road”, for the purposes of accommodating its residents.

Cost apportionment

[24] The Municipality requests that the Agency apportion the costs of the construction and maintenance of the road crossing.

[25] MMAC maintains that the Municipality is the one that will accrue the sole benefit from the construction of a new redesigned public road crossing and, therefore, the entirety of the costs should be borne by the Municipality.

[26] MMAC asks that 100 percent of all construction, installation and maintenance costs be allocated to the Municipality as the requesting party and sole beneficiary of the proposed new and redesigned public road crossing.

[27] MMAC requests that if the crossing is to be constructed, the Agency order the Municipality to provide MMAC with a complete indemnity against all damage and claims made such that MMAC is held harmless in the event of personal or property loss arising out of the proposed new and redesigned public road crossing.

[28] The Municipality submits that du Roy Road, formerly Route 1, already existed when the railway was constructed.

[29] The Municipality requests that the Agency order that the road crossing remain accessible to all owners on du Roy Road and order, if applicable, additional safety measures and apportion the costs for those measures.

[30] MMAC submits that the allegation that du Roy Road is senior to the railway has no merit in fact. MMAC adds that cadastral registrations from 1993 and 2005 show that the Municipality’s ownership of the road ends on the north and south sides respectively of the railway company’s right-of-way. MMAC contends that, in any event, the Agency has previously concluded that junior or senior status is not conclusive (reference to Decision Nos. 517-R-2003 and 117‑R‑2011) in allocating responsibility.

ANALYSIS AND FINDINGS

Legislative context

[31] Subsections 101(3) and (4) of the Canada Transportation Act (CTA) provide that:

(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.

[32] Subsections 16(1) and (4) of the RSA state 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.

Should the Agency authorize the construction of the proposed road crossing?

[33] Pursuant to subsection 101(3) of the CTA, the Agency may authorize the construction of a suitable crossing and any type of work related to it. The Federal Court of Appeal, in Fafard v. Canadian National Railway Company, [2003] FCA 243 (Fafard), concluded that “A suitable crossing is a crossing that is adequate and appropriate for the purposes for which it was intended and installed.”

[34] Nevertheless, before deciding on the suitability of a road crossing, the Agency must consider safety, as the Federal Court of Appeal also concluded, in Fafard, that the concept of “suitable crossing”, by definition, includes an element of safety.

[35] Accordingly, as the determination of a suitable crossing includes an element of safety, and given that the Municipality and MMAC raised the issue of safety at the crossing, the Agency sought comments from Transport Canada, the authority in respect of rail safety in Canada.

[36] In a letter dated July 31, 2012, Transport Canada confirms that it is developing a new policy and technical standard for road-railway grade crossings. The new standard, known as RTD 10, is already used as common practice although it does not yet have force of law. Transport Canada indicates that it encourages all stakeholders to comply with the RTD 10 (2002 version), but that this is done voluntarily by railway companies and road authorities. Transport Canada adds that the regulations currently in effect are the Railway-Highway Crossing at Grade Regulations, SOR/80-748.

[37] Transport Canada states that it understands the railway company’s hesitation to agree with the granting of the grade crossing in question, because there is a lack of compliance with the RTD 10 criteria, but not with the regulations in effect. Transport Canada also states that the rule currently in effect for the installation of a warning system recommends such an installation when the cross product (the product of the annual average daily flow of trains and locomotives on the tracks and the annual average daily flow of the number of vehicles on the road that cross the grade crossing) is greater than 1,000. Transport Canada adds that in this case, the cross product is well below 1,000 but, according to its broad predictions, the cross product could reach 800 once all the lots have been built.

[38] Transport Canada submits that it was mentioned during meetings that the Municipality had not applied for an access permit from the ministère des Transports du Québec to link a public road to a road under the authority of the ministère and that certain standards of the ministère had not been met.

[39] Transport Canada maintains that the crossing in question could be equipped solely with crossbuck signs and mandatory stop signs and would meet the criteria of the regulations in effect.

[40] Accordingly, the Agency has considered the safety element as directed by the Federal Court of Appeal. Based on Transport Canada’s submission, the Agency determines that the proposed road crossing is suitable.

[41] The Agency finds that a public road crossing is necessary as it will provide residents with access to the lots they have purchased. Accordingly, the Agency, pursuant to subsection 101(3) of the CTA, authorizes the construction of a road crossing, equipped with crossbuck signs and mandatory stop signs, at mileage 98.60 of the Sherbrooke Subdivision.

[42] Furthermore, the Agency reminds the Municipality that this authorization does not relieve the Municipality from its obligations insofar as it relates to the standards of the ministère des Transports du Québec.

How should the construction and maintenance costs of the road crossing be apportioned?

[43] Subsection 101(4) of the CTA provides that section 16 of the RSA applies if the parties are unsuccessful in negotiating an agreement relating to the apportionment of the construction and maintenance costs of a road crossing. When the parties to the project are unsuccessful in negotiating an agreement regarding their responsibilities for the costs of the construction, alteration, operation or maintenance of a road crossing, section 16 of the RSA allows the developer or anyone who could benefit from the railway work, once completed, to refer the matter to the Agency for a decision. In this case, the parties have been unable to agree on the apportionment of the costs for the proposed road crossing. Accordingly, the Agency determines that this issue must be considered under subsection 101(4) of the CTA.

[44] The Agency has discretion to determine the costs to be borne by each party. In Decision No. 517-R-2003, the Agency indicated that:

The Agency must determine the proportion of the liability for construction, alteration, operational 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, contrary to CN’s arguments, require the cost apportionment to be based on the party which created the need for the work. Similarly, the Agency notes the argument of the applicant that the junior-senior principle, which would assign all costs of widening and maintaining an existing crossing to the junior party, should apply. The junior-senior principle is one which the Agency and its predecessors have considered in the past and which was also included within the Railway-Highway Crossing at Grade Regulations (General Order No. E-4), promulgated under the former Railway Act.The Agency may consider this principle, and others, in this or future cases, however, the Agency considers each case on its own merits. [emphasis added]

[45] After reviewing the parties’ arguments regarding their junior-senior standing with respect to the crossing in question and the benefits of the project as a whole, the Agency is of the opinion that, taking into account the factors set out below, it should not apply the junior-senior principle to determine the parties’ proportion of the liability for the costs of the construction and maintenance of the proposed road crossing. The Agency finds that in this case, it is appropriate to give more weight to the respective benefits that the Municipality and MMAC would gain from the road crossing. In making this determination, the Agency also refers to and, in the circumstances, gives weight to one of the principles established in paragraph 33 of Decision No. 224-R-2009, namely: “The cost of any facilities or upgrades additional to the work required for the reconstruction should normally be paid by the party requesting the additional facilities or upgrades.”

[46] The Agency is of the opinion that the Municipality will benefit from the construction of a public road crossing as it will provide the residents with road access to their lots. However, the construction of a public crossing will not enable MMAC to serve more clients or improve its railway operations.

[47] The Agency therefore finds that the Municipality is the main beneficiary of the construction of a public crossing. This is the main factor to consider in the apportionment of the costs in this case.

[48] Accordingly, the Agency determines that the Municipality is responsible for the costs of the construction and maintenance of the road crossing and approaches.

[49] Transport Canada has indicated that if the road crossing is equipped solely with crossbuck signs and mandatory stop signs, it will be in compliance with the regulations in effect. The Agency therefore cannot consider the additional safety measures referred to in this case. If a warning system proves to be necessary, according to the RSA, and the parties are unsuccessful in negotiating an agreement with respect to the apportionment of the costs, an application could be filed with the Agency at that time.

[50] MMAC requests that the Agency order the Municipality to give MMAC a complete indemnity against all damage and claims made such that MMAC be held harmless in the event of personal or property loss arising out of the proposed new and redesigned public road crossing. The Agency has considered this matter and finds that MMAC has not demonstrated why such an indemnity is necessary. Therefore, the Agency denies MMAC’s request.

CONCLUSION

[51] The Agency authorizes the construction of a road crossing at du Roy Road and mileage 98.60 of the Sherbrooke Subdivision, in the municipality of Saint-Étienne-de-Bolton, and apportions the costs as follows:

• The Municipality shall bear 100 percent of the costs of the construction of the crossing surface and approaches.
• The Municipality shall bear 100 percent of the costs related to the future maintenance of the crossing surface and approaches.

[52] Any authorization granted by the Agency does not relieve either the Municipality or MMAC from their obligations under the RSA.

[53] Any authorization granted by the Agency does not relieve the Municipality from its obligations insofar as it relates to the standards of the ministère des Transports du Québec.

[54] With respect to MMAC’s request for an indemnity, the Agency denies this request.