Decision No. 649-R-2002

December 2, 2002

APPLICATION by The Corporation of the City of Brantford pursuant to section 16 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) for a determination by the Canadian Transportation Agency of the cost apportionment responsibilities for the installation of a crossing warning system at the road crossing at Newport Street and mileage 62.40 TH&B Spur, off mileage 1.14 Burford Spur, with headblock at mileage 22.18 Dundas Subdivision, in the city of Brantford, in the province of Ontario.

File No. R 8050/415-S62.40

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APPLICATION

On June 13, 2002, the Corporation of the City of Brantford (hereinafter the City) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On July 12, 2002, the Canadian National Railway Company (hereinafter CN) requested an extension until August 16, 2002 to file its answer to the application and the Agency, by Decision No. LET-R-199-2002 dated July 19, 2002, granted the requested extension. On August 16, CN filed its answer to the application.

On August 22, 2002, the City requested an extension until September 9, 2002 to file its reply to CN's answer and the Agency, by Decision No. LET-R-243-2002 dated August 26, 2002, granted the requested extension. On September 5, 2002, the City filed its reply to CN's answer.

On October 18, 2002, Transport Canada was requested to provide the Agency with its comments on the subject application, specifically as it relates to the project funding. Transport Canada did not file any comments with the Agency.

On October 18, 2002, the Agency requested the City and CN to respond to interrogatories. On October 31 and November 1, 2002, the City and CN respectively filed their responses to the Agency's interrogatories.

Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until December 2, 2002.

FACTS

The City of Brantford proposes to improve Newport Street to service current and projected vehicular and non-motorized traffic volumes. Anticipated increases in the speed and volume of vehicular and non-motorized traffic on Newport Street will increase the potential for a conflict at an uncontrolled rail crossing. In addition, both the proposed Newport Street/TH&B Spur crossing and the Greenwich/Burford Spur crossing will be in close proximity to new signalized intersections.

Newport Street is a two-lane undivided roadway that is crossed at two locations; it is crossed by a double track on the TH&B Spur and by a single track on the Burford Spur. Greenwich Street is a two-lane undivided roadway that is crossed by a single track on the Burford Spur. All three level crossings are currently signed with cross-bucks. The City is the senior party at all three level crossings.

The average annual daily traffic count at the Newport Street/TH&B Spur crossing is expected to grow to 10,000 vehicles by 2005 compared to 2,700 in 1999.

The parties agree that the proposed Newport Street realignment and development will require the installation of a road crossing warning system consisting of flashing lights, bell and gates.

Until February 19, 2002, the TH&B Spur had been leased to Rail America Inc. On that date, the trackage reverted to CN. Currently, there is one main track and a service track running across Newport Street. The service track, which is 1,450 feet long, is used as a runaround track for switching operations on the TH&B and Burford Spurs. Rail traffic over the subject crossing currently consists of approximately two round trips per week, plus switching operations. Railway operations over the existing crossings are presently conducted on a "stop and proceed" basis.

CN serves two customers on the TH&B Spur. The first, located northwest of the Newport Street crossing, is usually served once a week and the train crosses both Greenwich and Newport Streets generally on weekends during morning hours. The second customer is located on the east end of the TH&B Spur and operations impact the Greenwich Street crossing only. This customer is serviced three to four times per week.

As shown on Figure 2 dated June 5, 2002 submitted with its application, the City proposes to widen and realign Newport Street to a four-lane divided roadway and to add a left turning lane. The left turning lane is intended for vehicles accessing a proposed retail plaza immediately to the east of the crossing. A signalized intersection to this retail plaza will be located approximately 100 feet east of the tracks with the left hand turning lane extending through the Newport Street/TH&B Spur crossing. The proposed project upgrades to the existing crossings in the area include the following:

1. the reconstruction of the tracks and the installation of gates, bell and flashing lights at the Newport Street/TH&B Spur double-track crossing;
2. the closing of the road and the fencing of the Newport Street/Burford Spur crossing; and
3. the reconstruction of the track and activation of traffic lights with track circuit at the Greenwich Street/Burford Spur crossing.

On June 4, 2002, the City, CN and Transport Canada discussed the type of crossing protection proposed for the Newport Street/TH&B crossing. CN indicated that it had no plans, in the foreseeable future, to close or realign its tracks at the subject crossing, and Transport Canada expressed the opinion that, due to the projected traffic volumes and the proximity of the crossing to a new signalized intersection, gates, bell and flashing lights were warranted.

ISSUE

The issue to be addressed is what proportion of the costs is to be borne by each of the City and CN with respect to the installation of the Newport Street/TH&B Spur road crossing warning system.

POSITIONS OF THE PARTIES

The City submits that there is a need for the project as the existing conditions in the area are no longer adequate. Anticipated increases in the speed and volume of vehicular and non-motorized traffic on Newport Street will increase the potential for a conflict at the uncontrolled rail crossing. The City is therefore of the opinion that improvements are required to Newport Street to service current and projected vehicular and non-motorized traffic volumes. The City adds that neither the rail nor the road authorities are the cause of these increased traffic volumes, which are the effect of social and geographic causes beyond the control of both parties. The occurrence of such increased volumes, however, will necessitate works from time to time by both the rail and road authorities.

The City maintains that seniority at the crossing is a relevant factor for the purposes of subsection 16(4) of the Railway Safety Act (hereinafter the RSA). It therefore requests that the Agency determine that CN be accountable for 50 percent of the cost of the installation of the proposed crossing warning system.

The City indicates that it has made an application for a grant to Transport Canada based on the closing of the Newport Street/Burford Spur crossing. The City has been advised by Transport Canada that it could be eligible for a maximum of 80 percent of the cost of upgrading the crossing proposed to be closed to the appropriate level of protection which, in the opinion of Transport Canada, would consist of flashing lights and bell at an estimated cost of $68,157 (estimate provided by CN).

According to the City, any funding received by the City from Transport Canada will be applied to upgrading the remaining crossing warning systems in the affected area. However, the City will proceed with the installation of the proposed crossing warning system at the Newport Street/TH&B Spur, estimated at $204,786, whether or not a grant is received from Transport Canada.

The City maintains that it will benefit from the proposed work through increased safety for vehicular, pedestrian and bicycle traffic at the rail crossings and the reduction in train whistling nuisance. The City asserts that CN, for its part, will benefit from the improved operational efficiency provided by the installation of a road crossing warning system at the Newport Street/TH&B crossing, the closure of the Newport Street/Burford Spur crossing, the construction of track activated signals at the Greenwich Street crossing, the increased safety for all traffic at the subject crossings and the reduction in train whistling nuisance. The City adds that the proposed rail safety works are either required now or will be required within a short time frame.

CN submits that the proposed Newport Street realignment and retail development has created the need for the installation of the proposed road crossing warning system. This is due to the combination of the projected increase in the speed of the vehicular traffic, the high volume of the vehicular traffic and the addition of a signalized intersection serving the new retail plaza east of the subject road crossing, any of which would be considered by Transport Canada as a significant change to the operating conditions at the road crossing.

CN maintains that, although this road crossing is more than three years old and could qualify for federal funding, the crossing warning system changes necessary to maintain a level of safety do not meet the warrants of Transport Canada with regard to funding as the existing road crossing was not a candidate for such an installation and as the project is a direct result of the roadway improvements proposed by the City to ease congestion and promote more efficient vehicular traffic flow.

CN submits that there has been no change in railway operations which have contributed to the need for an increased level of safety at the subject road crossing. Further, the installation of the proposed road crossing warning system will not affect the railway company's operations. Rail traffic will continue to stop and proceed, once an indication is received that the pre-emption with the adjacent intersection has completed its cycle and the gates are down.

With respect to the benefits, CN submits that the City will be the primary benefactor of the project. The City and its citizens travelling on the new roadway will benefit by the road alignment project which will ease congestion and promote a more efficient traffic flow. According to CN, the City, as the party responsible for the project and the party standing to gain the most benefit, should be accountable to meet the present day safety standards and be responsible for the installation costs.

CN contends that it will derive no benefit from the Newport Street alignment project which will result in increased rail/vehicle cross-product at this location. CN would be satisfied with the status quo, as CN's operations over the subject road crossing will not change as a result of the installation of the proposed crossing warning system. Further, any benefit derived from the closure of the Newport Street/Burford Spur crossing will be offset by the increased vehicular traffic at the Newport Street/TH&B Spur crossing. As for improved efficiency resulting from the construction of track activated signals at the Greenwich Street crossing, CN is of the view that the synchronization of road traffic signals with track circuitry serves only to benefit the travelling public.

It is therefore CN's position that the City is the party entirely responsible for creating the need for the road crossing warning system and, as such, the City should bear the costs for its installation.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

Pursuant to section 16 of the RSA, 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 CTA or the Railway Relocation and Crossing Act, R.S.C., 1985, c. R-4.

The Agency may determine the proportion of the liability for the construction, alteration, operational and maintenance costs to be borne by the parties in respect of a proposed work, having regard to any grant made by Transport Canada, the relative benefits that each party stands to gain from the work and to any other factor that the Agency considers relevant.

The Agency assesses each case based on its own merits and the circumstances of a particular railway work in the context of section 16 of the RSA.

In the present case, the Agency notes that the project includes the closing of the Newport Street/Burford Spur crossing, the activation of traffic lights with track circuit at the Greenwich Street/Burford Spur crossing and the installation of warning devices and gates at the Newport Street/TH&B Spur crossing. However, the Agency has only been asked to determine the proportion of the liability for the installation of the Newport Street/TH&B Spur crossing warning system. The need for the installation of the crossing warning system is not disputed by the parties.

At a meeting held in Brantford on June 4, 2002 and attended by officials of the City, CN and Transport Canada, Transport Canada indicated that the installation of gates at the Newport Street/TH&B Spur crossing is warranted due to the projected traffic volumes and the proximity of that crossing to a proposed signalized intersection (100 feet east of the tracks).

In addition, the Agency notes that, according to Transport Canada's Draft RTD 10, Road/Railway Grade Crossings Technical Standards and Inspection, Testing and Maintenance Requirements dated July 14, 2001:

11.1 Unrestricted grade crossings for vehicular use shall have a grade crossing warning system if:

(a) (i) the forecast cross-product is 1,000 or more; or....
(iv) there are two or more tracks and trains may be passing one another; or....

12.1 Where grade crossing warning systems are installed, they shall include gates if:

The Agency also notes that CN has maintained that it would derive no benefit from the Newport Street realignment as its train operations will not change from the present stop and proceed instruction once the Newport Street crossing is widened and the warning system is installed. According to CN, this project is due to the anticipated increase in the vehicular traffic speed, the high volume of the vehicular traffic and the addition of a signalized intersection serving a proposed new retail plaza east of the subject road crossing.

The Agency notes that the daily vehicular traffic is expected to grow from 2,700 to 10,000 vehicles by 2005. The Agency considers that the increase in the resulting cross-product, which is primarily due to roadway development, supports the installation of crossing warning devices consisting of flashing lights and bell at this location. Such installation, which shall ensure the safety of the pedestrian, vehicular and rail traffic, will benefit both parties.

The Agency notes that CN chose to take over the railway infrastructure from the former Toronto, Hamilton and Buffalo Railway Company where it is the junior party and conducts rail operations in the current manner. CN is therefore responsible for the physical railway layout and operations that presently exist at this location. The Agency notes that the use of the second track as a runaround track for the switching operations and the proximity of a signalized intersection support the installation of gates at this location, in addition to the flashing lights and bell.

As stated by CN, the existing train operations require that trains stop and proceed under the protection of a flagman. The Agency is concerned that, depending on the time of day when switching operations are conducted over the crossing and their duration, the present train operations at the subject road crossing could become more difficult and time-consuming with increased vehicular traffic on Newport Street. The Agency is of the opinion that such operations are greatly simplified when a crossing is protected by a warning device equipped with gates. The installation of gates at the subject road crossing, where CN is the junior party, will therefore benefit CN by allowing it to maintain and improve its current switching operations, while ensuring an efficient flow of pedestrian and vehicular traffic.

In addition, the Agency is of the opinion that the closing of the Newport Street/Burford Spur crossing is a benefit to both CN and the City as it eliminates the risks of both rail and vehicular accidents as well as the need to stop and proceed at that crossing. In the Agency's view, any improvement made to increase safety is a benefit to both parties.

CONCLUSION

Based on the above findings, the Agency determines that, as both parties stand to benefit from the proposed railway work, the City shall pay the installation costs of the flashing lights and bell, and the costs associated with the installation of the gates shall be shared equally by the City and CN.