Decision No. 74-R-2022

SUMMARY

[1] On January 22, 2021, CN filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 101(3) of the CTA and subsection 16(1) of the RSA for authority to construct a grade-separated road crossing by way of an underpass at mileage 40.69 of the Halton Subdivision at Lower Base Line in Milton, in replacement of the existing at-grade crossing, and to apportion the costs of construction and maintenance.

[2] Milton submits that the Agency should not authorize CN to construct the grade separation.

[3] The Agency will consider the following issues:

1. Should the Agency authorize the construction of the grade separation requested by CN?
2. If so, how should the costs of construction and maintenance be apportioned?

[4] For the reasons set out below, the Agency authorizes CN to construct the requested grade separation to accommodate 4 traffic lanes and active transportation paths as proposed at mileage 40.69 of the Halton Subdivision at Lower Base Line in Milton, in replacement of the existing at-grade crossing. The Agency determines that CN will pay for 100% of the construction of the grade separation for 4 lanes, and the maintenance of the subway substructure and superstructure, and Milton will be responsible for the road maintenance costs. Milton will also pay for all other maintenance costs of a subway, including the cost of maintaining the road approaches, retaining walls, road surface, sidewalks, drainage and lighting.

[5] While the Agency finds that a 6-lane crossing is not warranted in the circumstances, it can still be constructed subject to Milton paying for all additional costs associated with the construction of the 2 extra lanes it wishes to have.

BACKGROUND

[6] The grade separation forms part of CN’s Milton Logistics Hub Project (MLHP), a new intermodal terminal. In Determination No. R-2021-172 issued on November 22, 2021, the Agency approved CN’s application under subsection 98(2) of the CTA to construct certain railway lines associated with the Milton Logistics Hub, including the realignment and extension of the existing mainline tracks. The Lower Base Line crossing is part of the MLHP and CN now seeks the Agency’s authorization for the grade separation.

[7] Pursuant to the Memorandum of Understanding entered into between the Agency and Transport Canada (TC), which allows for a coordination of efforts related to road, utility, and private crossings within federal jurisdiction between the Agency and TC, a copy of the application was sent to TC for comments on safety-related matters.

PRELIMINARY MATTERS

[8] Milton submits that the grade separation is subject to the Ontario Municipal Class Environmental Assessment and CN must participate in this assessment process. Milton also argues that the costs of this environmental assessment process must be paid by CN.

[9] Milton argues that the Agency should defer its consideration of this application until CN abides by its obligations under subsection 8(1) of the RSA and section 3 of the Notice of Railway Works Regulations, SOR/91-103.

[10] CN argues that the MLHP is not subject to the Ontario Environmental Assessment Act, RSO 1990,c E18, which it claims was confirmed by the Province of Ontario. CN argues that the Agency has never asked that the requirements of the RSA be satisfied prior to authorizing a crossing under section 101 of the CTA, and section 8 of the RSA is unrelated to this application.

[11] The Agency has no authority to determine whether this project is subject to the Ontario Environmental Assessment Act. Regardless, authorization from the Agency under the CTA does not relieve CN from complying with any other applicable laws.

[12] The authority of the Agency to authorize the construction of a suitable crossing under subsection 101(3) of the CTA is not subject to a prior authorization under the RSA. While the process under the RSA must be followed, both processes are independent of each other. The Agency is not bound by the RSA when authorizing the construction of a suitable crossing under subsection 101(3) of the CTA.

[13] On April 25, 2022, Milton filed a request to place on the record Milton’s March 18, 2022, objection to CN’s notice filed pursuant to section 8 of the RSA. The information contained in this document relates to the objection process under the RSA. The matter before the Agency is to determine what constitutes a suitable crossing under the CTA. These two processes are separate and operate independently. If Milton believed that part of this information would have been relevant under the CTA process, nothing prevented Milton from submitting it as part of its response to CN’s application for a grade separation as this information would have been available to Milton at the time it filed its response. Accordingly, this information will not be placed on the record.

THE LAW

[14] Subsections 101(3) and 101(4) of the CTA and section 16 of the RSA give the Agency authority with respect to road crossings.

[15] 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.

...

[16] 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.

...

[17] In its determinations on crossing applications, the Agency may rely on its document, Apportionment of Costs of Grade Separations: A Resource Tool (Resource Tool). 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 bears to coexist at crossings. However, each application for a grade separation and cost apportionment is assessed on its own merits by the Agency, which determines whether and to what extent the Resource Tool should be applied.

SHOULD THE AGENCY AUTHORIZE THE CONSTRUCTION OF THE GRADE SEPARATION CROSSING REQUESTED BY CN?

Assessment of the suitability of a road crossing

[18] In Fafard v Canadian National Railway Company, 2003 FCA 243 (Fafard), the Federal Court of Appeal stated that a suitable crossing is a crossing that is adequate and appropriate for the purposes for which it is intended and installed, for both the users of the road crossing and trains. The Federal Court of Appeal also stated that the concept of “suitable crossing” includes an element of safety. In Decision 34-R-2019, the Agency identified factors for its consideration of what constitutes a suitable crossing. The Agency considers:

1. the impact of a crossing on railway operations;
2. the impact of a crossing on the safety of persons and property transported by railway companies and the safety of other persons and other property;
3. the impact, if any, of any changes in railway operations created by the new road crossing on people in the area, including changes in noise and vibration levels; and
4. any technical restrictions with respect to the construction of a particular type of road crossing (at-grade or grade separated, either passing over or under the railway line).

[19] In its analysis of these considerations, the Agency may also take into account factors such as:

• traffic volumes at the proposed crossing location for trains, vehicles and cross product;
• the maximum authorized speed for trains and vehicles at the location;
• the number of railway tracks and road lanes at the location;
• the type of traffic carried by trains in the area (for example, passengers, freight, dangerous goods) and the type of traffic that would use the crossing (for example, pedestrians, cyclists, vulnerable road users, emergency services, school buses); and
• any collision history or collisions predicted, based on a credible analysis, at the location; blocked crossing problems in the area; or relevant Transportation Safety Board recommendations.

[20] It should be noted that the Agency’s consideration of the safety impacts in its determination of what would constitute a suitable crossing does not include any assessment of the compliance of the crossing with safety-related requirements such as the Grade Crossing Regulations, SOR/2014‑275 (GCR). Ensuring compliance with such requirements is the responsibility of the Minister of Transport and TC.

Positions of the parties

CN

[21] CN asserts that a grade separation at Lower Base Line would ensure the uninterrupted flow of traffic and improved safety for users of Lower Base Line.

[22] CN states that the grade separation was included as a component of the MLHP’s federal environmental assessment (EA) process that was approved by the Minister of Environment and Climate Change in January 2021 subject to 325 conditions. The conditions pertaining to the Lower Base Line crossing include measures to mitigate noise during construction, to mitigate effects on outdoor recreation and to manage construction site surface runoff and drainage.

[23] CN argues that the grade separation would provide tangible benefits to Milton and surrounding municipalities including the alleviation of traffic interruption, bicycle and pedestrian delay and an improvement in safety by eliminating interactions between rail and road movements.

[24] CN indicates that there are currently approximately 25-30 trains per day moving through the Lower Base Line crossing and that, as of 2016, there were between 3,300 and 4,000 vehicles per day at the existing at-grade crossing (2 sets of tracks and a 2-lane roadway).

[25] CN states that when the Milton Logistics Hub is in operation, trains will use 4 tracks to cross Lower Base Line at a maximum speed of only 15 mph to enter and exit. CN adds that this will result in the crossing being occupied by a train for at least 9 minutes per occurrence, therefore obstructing the crossing longer than the 5 minutes allowed for in subsection 97(2) of the GCR.

[26] CN argues that the Agency does not and should not assess road design safety which CN asserts is more appropriately addressed pursuant to section 8 of the RSA (Notice of certain proposed railway works).

[27] CN confirms that the Lower Base Line crossing design consisting of 4 lanes of traffic conforms with the applicable Transportation Association of Canada (TAC) standards and asserts that the proposed design maximizes safety and visibility within the available right-of-way. CN states that the design’s road traffic lane widths fall within the range of lane widths recommended by the TAC standards, and that the design’s roadway gradients are less than the maximum roadway gradient specified by the TAC standards. CN indicates that, similarly, minimum stopping sight distances and minimum driving sight distances exceed the minimums specified in the TAC standards.

[28] CN argues that alternative designs were considered for the Lower Base Line crossing during the EA process and that it integrated Milton’s initial feedback on the design of the crossing, specifically the accommodation of 4 traffic lanes and active transportation paths as requested by Milton. CN indicates that, in addition, it revised the initial design to eliminate the need for a pump station to remove surface water and to instead rely on a standard gravity system for surface water drainage, significantly reducing the future maintenance costs of the roadway. CN states that in November 2020, after making these revisions to the crossing design, it provided to Milton design drawings of the grade separation which were 90% complete.

[29] CN confirms it plans for a roadway design speed for the Lower Base Line crossing of 80 km/h, consistent with Milton’s expressed preference.

[30] CN argues that there is no basis for an expansion of Lower Base Line to 6 lanes and that such an expansion is inconsistent with Milton’s own planning. CN states that none of Milton’s planning documents proposes any widening of Lower Base Line beyond the current 2 lanes up to the 2051 planning horizon.

[31] CN contends that the Agency should examine current needs rather than future needs when assessing the need for grade separations.

MILTON

[32] Milton argues that the Agency should defer its consideration of this application until CN provides road drawings that represent a safe design compliant with TAC standards, for example, road speed, lane widths and approach gradients.

[33] Milton requests that the grade separation be built to accommodate a 6-lane roadway opening to accommodate future needs and be designed with widened lanes due to increased truck traffic. Milton requests that the grade separation design also include provisions to meet its active transportation standards for on-street bike lanes, pathways and snow storage requirements.

[34] Milton argues it is one of Canada’s fastest-growing areas, and that major future disruption to CN’s proposed railway yard operations will be avoided if the bridge is built now to accommodate a 6-lane underpass.

[35] Milton contends that CN should bear the costs of constructing the 6-lane bridge span.

ANALYSIS AND DETERMINATIONS

[36] The parties do not dispute that a grade separated crossing would be suitable for the location in question. The Agency notes that approximately 25-30 trains per day move through the existing at-grade crossing location and, as of 2016, between 3,300 and 4,000 vehicles per day transit through the crossing, as well. As such, the Agency agrees that a grade separated crossing is suitable at this location. The grade separation will improve the safety of road users, including motorists, cyclists and pedestrians, and of persons and property transported by railway, as it would remove the need for road and rail users to interact at an at-grade road crossing.

[37] As planned, the Milton Logistics Hub will use 4 tracks to cross Lower Base Line at a maximum speed of 15 mph, causing trains to occupy the crossing for approximately 9 minutes. A grade separation will allow CN to comply with subsection 97(2) of the GCR which prohibits a crossing to be occupied for a period longer than 5 minutes. Extended occupation of road crossings by trains can create risks related to safety such as promoting dangerous driver behaviour at the crossing, pedestrians trying to get around a train stopped on the grade crossing or trying to pass between two cars of a train, and delaying the passage of emergency vehicles. Hence, a grade separation at that location will have a positive impact on the people in the area.

[38] Considering both the rail and road traffic that passes through the crossing each day, a grade separated crossing will prevent any impact on railway operations and any non‑compliance with subsection 97(2) of the GCR.

[39] Given that the Agency finds that a grade separated crossing is suitable at this location, there is no need to consider the cross product (daily traffic multiplied by daily trains), delays, and queuing issues in the consideration of the safety impacts of what constitutes a suitable crossing, as a grade separated crossing eliminates the interactions between road and rail users.

[40] During the EA process for the MLHP, CN agreed to construct a temporary sound barrier for the duration of the construction of the grade separation. While the Milton Logistics Hub will create noise and vibration, the proposed grade separation will not create changes in railway operations that will cause changes in noise and vibration levels.

[41] Nothing on the record indicates that there are any technical restrictions that would make it impossible or unreasonable to construct a grade separation at this location.

Compliance with engineering standards

[42] Compliance of the crossing with applicable engineering standards such as TAC standards or the GCR and associated standards under the RSA does not fall under the Agency’s jurisdiction. However, compliance with the applicable construction standards is certainly an element of safety that can be considered by the Agency in its assessment of the crossing’s suitability as per Fafard. That said, in the case where a proposed crossing departs from engineering standards, the RSA includes safeguard provisions that require the Minister of Transport’s approval and an objection process for persons who consider that the proposed railway work would prejudice their safety or the safety of their property.

[43] Thus, given there are no specific safety risks identified regarding the issue of compliance with applicable standards, the Agency is satisfied that compliance with applicable standards and the safeguards provided under the RSA sufficiently addresses the safety element that must be considered by the Agency in its assessment of the suitability of a crossing under the CTA. It should be noted that this finding is made solely for the purpose of the assessment of the suitability of the crossing under the CTA and has no impact on the objection process available under the RSA as the Agency’s decision does not bind the Minister of Transport’s authority to rule on such an objection.

[44] In this case, no safety concerns were specifically raised nor is there evidence of a specific safety concern. As such, the Agency is satisfied that the proposed crossing does not raise safety concerns that would impact on the Agency’s assessment of its suitability under the CTA.

Number of lanes the crossing should accommodate

[45] Milton argues that the grade separation must be designed to accommodate 6 lanes of vehicle traffic as opposed to 4 as proposed by CN and as initially requested by Milton. To justify its position, Milton cites Lower Base Line’s anticipated use as a major east-west road corridor as Milton’s population grows. However, as argued by CN, none of Milton’s official planning documents proposes widening Lower Base Line beyond its current 2 lanes up to a 2051 planning horizon. Indeed, the Milton Transportation master plan (T.M.P.) Final report, April 2018 (Milton TMP) limits the widening of town roads to 4 lanes. In Decision 40-R-2018 the Agency stated that one of the key considerations in determining what constitutes a suitable crossing is present-day needs. The Agency has considered projections for vehicular and railway traffic based on time horizons that were as long as 17 years, such as in Decision 688-R-2004. However, it did so based on estimates that were grounded on probative evidence and were reasonably reliable.

[46] Not only are the needs of Milton beyond 2051 far from present-day needs, Milton has not provided evidence that a 6-lane roadway would be necessary to meet present-day needs. Moreover, the Milton TMP does not identify Lower Base Line when assessing Milton’s transportation infrastructure needs until 2031. In Decision 310-R-2009, the Agency found that since there was no data supporting the need for a second track, it was not possible for the Agency to make a determination as to whether the additional track and related works were necessary to meet present-day needs. In light of the above, it does not appear that present-day needs warrant a grade separation of 6 lanes.

[47] The Resource Tool defines a basic grade separation as that portion of the work that is required to provide adequate facilities for present-day needs at the time of construction or reconstruction of the grade separation. The Agency finds that the grade separation design proposed by CN accommodating 4 lanes of traffic constitutes the basic grade separation at this location and that it is a suitable crossing.

[48] That said, based on a high-level initial assessment of field conditions, topography, and ground infrastructure, the Agency does not find any reason why it would not be possible to increase Lower Base Line from a 4-lane to a 6-lane underpass at the crossing location. However, both parties may have to revisit their engineering studies to accommodate a 6-lane underpass.

[49] Even if a 6-lane design is not warranted, it may nonetheless be constructed. However, in such a case, and as discussed below, Milton would be considered to have accrued the primary benefit of these two additional lanes which would have an impact on the cost apportionment.

[50] The Agency authorizes CN to construct the proposed grade separation accommodating 4 lanes of traffic. A 6-lane design can also be authorized subject to the cost apportionment.

IF THE AGENCY AUTHORIZES THE CONSTRUCTION OF THE GRADE SEPARATION, HOW SHOULD THE COSTS OF CONSTRUCTION AND MAINTENANCE BE APPORTIONED?

Positions of the parties

CN

[51] CN states that typically 85% of the cost of a grade separation required by roadway development is borne by the municipal road authority. However, CN indicates that in an effort to reach a timely conclusion to this matter it proposes to pay all of the construction and maintenance costs for the bridge structure, leaving Milton to pay for the maintenance of the roadway. CN stresses that it is willing to pay this despite the fact that the proposal has been expanded by CN to meet Milton’s expressed desire to accommodate future needs with 4 lanes and other enhancements.

[52] CN argues that for it to also pay future maintenance on the underlying roadway and related features that will be used by the public is unwarranted and, to its knowledge, unprecedented. CN states that it has modified the design of the crossing to minimize future roadway maintenance costs associated with drainage and CN expects that the roadway maintenance costs associated with the crossing will not differ from, and may in fact be reduced relative to, the maintenance costs borne by Milton today at this location.

MILTON

[53] Milton underscores that the only reason for this application is CN’s need for a grade separation to accommodate the proposed operation of the Milton Logistics Hub. Milton argues that if the grade separation is constructed then the costs of the construction of the grade separation accommodating 6 lanes of traffic should be 100% payable by CN. Milton states that if CN pays for these costs, then Milton agrees to maintain the road underpass.

ANALYSIS AND DETERMINATIONS

[54] 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 costs of constructing and maintaining a road crossing. In such situations, section 16 of the RSA enables the proponent of a railway work, and each beneficiary of the work, once finished, to refer the issue to the Agency for a determination. In this case, the parties were not successful in agreeing on the apportionment of costs of the requested road crossing.

[55] Pursuant to subsection 16(4) of the RSA, the Agency determines the proportion of the liability for construction, alteration, operational and maintenance costs to be borne by each person, having regard to:

• any grant made under section 12 or 13;
• the relative benefits that each person who has, or who might have, referred the matter stands to gain from the work; and
• any other factor that it considers relevant.

[56] There is nothing in the evidence suggesting that a grant has been made in this case. The Agency will therefore not consider the first criterion.

[57] CN has proposed to pay for 100% of the construction of the proposed grade separation. CN has also agreed to pay 100% of the maintenance of the subway substructure and superstructure.

[58] Only Milton will draw benefits from the 2 additional lanes it requests beyond the 4 lanes proposed by CN, if and when they are needed to support the development of Milton’s road network. The Resource Tool indicates that the costs of construction and maintenance of additional facilities that exceed the costs of the basic grade separation are normally paid by the party requesting the additional facilities. The Resource Tool also states that the road authority normally pays all other maintenance costs of a subway, including the cost of maintaining the road approaches, retaining walls, road surface, sidewalks, drainage and lighting.

CONCLUSION

[59] In light of the above, pursuant to subsection 101(3) of the CTA and section 16 of the RSA, the Agency authorizes CN to construct the requested grade separation to accommodate 4 traffic lanes and active transportation paths as proposed at mileage 40.69 of the Halton Subdivision at Lower Base Line in Milton, in replacement of the existing at-grade crossing.

[60] The Agency determines that CN will pay for 100% of the construction of the grade separation for 4 lanes, and the maintenance of the subway substructure and superstructure, and Milton will be responsible for the road maintenance costs. Milton will also pay for all other maintenance costs of a subway, including the cost of maintaining the road approaches, retaining walls, road surface, sidewalks, drainage and lighting.

[61] While the Agency finds that a 6-lane crossing is not warranted in the circumstances, it can still be constructed subject to Milton paying for all additional costs associated with the construction of the 2 extra lanes it wishes to have.

[62] Any authorization granted by the Agency does not relieve either CN or Milton of its obligations under the RSA.