Letter Decision No. CONF-R-12-2022

SUMMARY

[1] On August 4, 2021, Vancouver filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 101(3) of the CTA for authorization to construct and maintain four utility crossings in Vancouver, namely one sanitary sewer pipeline, one storm water sewer pipeline and one pipe containing electrical and communications cables under mileage 11.09 of the Spur; and one underground storm and ground water siphon pipe under mileage 11.15 of the Spur.

[2] The Agency will address the following issues:

1. Should the Agency authorize Vancouver to construct and maintain the utility crossings?
2. If so, what terms and conditions, if any, should be ordered?

For the reasons set out below, the Agency authorizes Vancouver to construct and maintain the proposed utility crossings, at its expense. No additional terms or conditions are necessary in this case.

BACKGROUND

[3] Vancouver and CP have been unsuccessful in reaching an agreement about construction and maintenance of four utility crossings:

1. At mileage 11.09: an underground sanitary sewer pipe connecting sanitary sewer lines on the south side of the Spur to an existing sanitary sewer system on the north side, which in turn connects to a sewage pump station. This would consist of a 762 mm diameter steel casing pipe containing a 375 mm diameter steel pipe.
2. At mileage 11.09: an underground storm sewer pipe connecting a storm sewer line north of the Spur to a pipe on the south side that in turn will connect to a storm water discharge/outfall fixture at the Fraser River. This would consist of a 610 mm diameter concrete storm sewer pipe.
3. At mileage 11.09: underground electrical and communications cables connecting Vancouver’s underground street lights and communications cabling system south and north of the Spur. This would consist of a 914.4 mm diameter steel casing pipe containing street light and communications cabling ducts.
4. At mileage 11.15: an underground storm water siphon pipe connecting a planned artificial water channel to a storm water pipeline south of the Spur that will connect to a discharge/outfall fixture at the Fraser River. This would consist of a 406.4 mm diameter steel casing pipe containing a storm water siphon.

[4] 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. TC replied on November 8, 2021, that it has no safety advice or information regarding the crossings, reiterating that they must be constructed and maintained in accordance with applicable requirements of the Railway Safety Act^{Note 1}(RSA).

THE LAW

[5] Subsections 101(1) and 101(3) of the CTA state:

(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.

POSITIONS OF THE PARTIES

Vancouver

[6] Vancouver states that the utility crossings are located in a planned, primarily residential area of Vancouver known as the East Fraser Lands (EFL). It adds that the Spur transects the entire width of the EFL and is therefore a physical barrier between the EFL south of the Spur and all other parts of the City north of it. Vancouver submits that the utility crossings will provide connections between the north and south side of the Spur for utilities supporting the EFL and its development.

[7] Vancouver proposes to install the crossings using open-cut excavation across the Spur, which it argues is a suitable method of construction at the crossing locations. This method of construction would require the removal and replacement of a total of approximately 28 metres of track on the Spur at two locations. Vancouver claims that construction could be completed within 8 hours at each location.

[8] While CP opposes Vancouver’s proposed method of construction in its answer to the application, Vancouver claims that CP had initially agreed to it and did not indicate any opposition to this method during two years of negotiations. Vancouver also argues that the reference on the construction plans to open-cut excavation being at CP’s discretion deals with administrative matters only, such as the scheduling of the work.

[9] Finally, Vancouver argues that open-cut excavation is appropriate for this location. It states that its engineers selected this method based on past experience, especially in the EFL, with both open-cut and horizontal drilling, and taking into account engineering design and risk considerations.

[10] Vancouver argues that the Agency does not have authority under subsection 101(3) of the CTA to include the terms and conditions requested by CP. It claims that, while safety is a relevant consideration for the determination of the suitability of a proposed crossing, the Agency does not have the authority to impose terms and conditions related to safety once it has determined suitability.

[11] Alternatively, Vancouver claims that these terms are unnecessary given that it has agreed to them, subject to certain modifications.

CP

[12] CP opposes the crossings due to the proposed method of construction and various safety concerns. It argues that Vancouver seeks open-ended, unqualified access rights to CP’s right-of-way. CP further argues that the Agency’s order should require that horizontal directional drilling (HDD) be used and include other terms related to safety.

[13] CP submits that the open-cut excavation method is not appropriate as it may increase risks to safe railway operations. CP considers HDD to be an appropriate method because it does not involve disrupting the rail and track bed. CP relies on its internal report entitled Construction Hazards Associated with Construction of Utility Crossings (Construction Hazards Report), which details [REDACTED] can be addressed by including specific safety terms in the Agency’s authorization, thereby safeguarding CP’s operations.

[14] CP claims that Vancouver has not identified all of the work required to construct the crossings. CP submits that it will need to perform protective and rehabilitative work such as shoring up the rail, providing flagging services, and to some degree repairing, rebuilding, or resurfacing rail, ties, ballast, and other structural elements on its right-of-way. CP argues that these activities must be included in the scope of the work and that they must be paid for by Vancouver in accordance with the Agency’s Guide to Railway Charges for Crossing Maintenance and Construction 2021 (Guide).

[15] CP argues that the Agency has authority to apportion liability for the costs of construction and maintenance of a crossing pursuant to subsections 101(3) and 101(4) of the CTA, and that its usual practice, described in Decision 213-R-2015, is to order the proponent to bear the costs and expenses related to the presence, construction, operation or maintenance of a crossing. CP argues that this includes costs related to safety measures.

[16] CP argues that, the proposed crossings would be unsafe and unsuitable unless the following safety terms are included:

1. Qualified Contractor: Vancouver shall use a contractor with a history of subsurface utility installation experience on and under railway rights-of-way. This applies to subcontractors as well.
2. Protective and Rehabilitative Work Necessitated by the Work: Any work supporting CP’s track or structure or for the protection of train movements (for example, flagging) made reasonably necessary by the construction of the crossings shall be performed by CP and billed to Vancouver.
3. Supervision: Construction, maintenance and repair of the underground pipes on CP’s land is subject to the supervision and direction of CP. A geotechnical engineer with railway-specific experience may be necessary. The cost of CP’s supervision is to be paid by Vancouver.
4. Notice Required for Access to the Right-of-Way: Vancouver is to provide CP with a notice of intention to access the right-of-way at least 10 business days before performing work.
5. Emergency Access: Vancouver is to contact CP to arrange for emergency access.

[17] CP submits that the Agency must consider safety as part of its determination of whether a proposed crossing is suitable and may be authorized. In its view, while safety is not defined in the CTA or the RSA, the Federal Court of Appeal and the Agency have broadly considered safety based on the specific circumstances of each case such that it includes the matters addressed in CP’s safety terms and conditions.

ANALYSIS AND DETERMINATIONS

1. Should the Agency authorize Vancouver to construct and maintain the utility crossings?

[18] The Agency may authorize the construction and maintenance of the rerouting works under subsection 101(3) of the CTA if it finds them to be suitable. As the Federal Court of Appeal stated in Fafard v Canadian National Railway Company, a suitable crossing is one that is adequate and appropriate for the purposes for which it is intended and installed, meeting the needs of those using the crossing and those of the railway operations. The suitability of a crossing includes an element of safety.

[19] CP does not dispute that the proposed crossings are adequate and appropriate to provide services to the EFL and its development, which are the purposes for which they are intended and installed.

[20] TC has no safety-related concerns.

[21] CP argues that the open-cut excavation method would intrude on its operations, but has not demonstrated that they would be hindered to an extent that would make this method inappropriate. The work would be performed on a spur, which is not a primary railway line. CP provides no evidence that it would be unable to meet its service obligations and does not dispute Vancouver’s claims that the frequency of service at the proposed locations is once per week. While CP questions Vancouver’s estimate of the time required to complete the work, CP does not provide any evidence to show that this estimate is unreasonable, nor does it provide an estimate of the time required to complete the protective and rehabilitative work that it might have to carry out on its right-of-way.

[22] Neither CP nor TC raise technical concerns about the proposed construction method or its use at the proposed locations. The third-party geotechnical review by Thurber Engineering Ltd., the consulting engineer chosen by CP, specifically assessed the open-cut excavation method for the proposed utility crossings. Thurber provided “geotechnical approval” for the crossings based on CP’s Geotechnical Protocol for Pipeline and Utility Crossings Under Railway Tracks, stating that excessive ground movements that could impact CP’s operations are unlikely, provided good construction practices are followed.

[23] The evidence in this case shows that both open-cut excavation and HDD are appropriate construction methods for the proposed crossings under TC’s Standards Respecting Pipelines Crossing Under Railways, TC E-10 (June 21, 2000) (TC’s E-10), as long as construction is carried out in accordance with the RSA, its rules and regulations and applicable engineering standards.

[24] The Agency will not specify a particular construction method because TC’s E-10 states that CP’s chief engineer must approve the method of construction and that CP is ultimately responsible for compliance with applicable TC regulations.

[25] In light of the above, the Agency finds that the proposed crossings are suitable and authorizes Vancouver to construct and maintain four utility crossings: one sanitary sewer pipeline, one storm water sewer pipeline and one pipe containing electrical and communications cables under mileage 11.09 of the Spur; and one underground storm and ground water siphon pipe under mileage 11.15 of the Spur.

2. If so, what terms and conditions, if any, should be ordered?

[26] As noted in Decision 28-R-2019, the Agency has no express power to impose terms and conditions when authorizing a utility crossing under subsection 101(3) of the CTA. However, as stated in Decision 7-R-2022, it is well settled law that the statutory powers conferred on an administrative body are construed to include not only those expressly granted but also, “by implication, all powers which are practically necessary” to accomplish the goals of the statutory regime (ATCO Gas & Pipelines Ltd v Alberta (Energy & Utilities Board), 2006 SCC 4 at para 51).

[27] Accordingly, the Agency has the power to order terms and conditions that are directly related to, and necessary for, the construction and maintenance of a utility crossing, or to the apportionment of the costs of its construction or maintenance.

[28] The parties do not agree on the following terms and conditions that CP seeks to add to the Agency’s authorization:

• Qualified Contractor
• Protective and Rehabilitative Work
• Supervision
• Notice Required for Access to the Right of Way
• Emergency Access

Qualified Contractor

[29] CP has not submitted specific evidence demonstrating that it is necessary for the safety or suitability of the proposed crossings that the authorization require Vancouver to use a contractor or subcontractor with a demonstrated history of subsurface utility installation experience on and under railway rights-of-way.

[30] [REDACTED].

[31] BC’s professional associations are responsible for prescribing the qualifications of contractors. For these reasons, the Agency will not address the experience or qualification of contractors or subcontractors in its authorization.

Protective and Rehabilitative Work

[32] CP concedes that Vancouver has already agreed to repairing, rebuilding, or resurfacing rail, ties, ballast, or other structural elements associated with the installation of the underground pipes. CP has not shown that it is necessary for the safety or suitability of the crossings to specifically describe the required protective and rehabilitative work in the scope of work.

[33] Vancouver has agreed to pay for the reasonable costs of any work that it is reasonably necessary for CP to undertake to support its track or structures or for the protection of train movements. The Agency is of the view that this would encompass, for example, flagging, track settlement monitoring and reinforcement activities that CP identifies in relation to this work.

[34] Vancouver seeks a detailed certified accounting of CP’s costs. However, the parties agree that the costs associated with CP’s work will be calculated in accordance with the Guide, whose billing guidelinesrequire that CP provide “a full description of the actual work performed and the related charges” for any work it bills to Vancouver.

[35] In light of the above, the Agency finds that it is not necessary to specify that the scope of work include protective and rehabilitative work; to apportion costs with respect to that work; or to include terms and conditions relating to billing for that work.

Supervision

[36] CP asks that the authorization expressly state that construction, maintenance and repair of the crossings are subject to supervision and direction by CP because its Construction Hazards Report demonstrates that utility crossing construction performed without CP’s supervision imposes unacceptable risks to safe railway operations.

[37] The Agency notes that TC’s E-10 provides in Appendix A that, “the execution of work on railway rights-of-way, including the supporting of tracks, shall be subject to the inspection and direction of the Engineer” and that the term “Engineer” is defined in clause 4 as meaning “the Chief Engineer of the railway company or his authorized representative”. Therefore, the Agency will not include in its order a term or condition regarding supervision.

Notice for Access to the Right-of-Way & Emergency Access

[38] CP requests that the Agency order Vancouver to provide CP with at least 10 business days’ notice of intention to perform the work. Vancouver does not oppose these terms.

[39] Given that a railway right-of-way is private land that can only be accessed with authorization, section 26.1 of the RSA provides that, “no person shall, without lawful excuse, enter on land on which a line work is situated”.

[40] The Agency notes that pursuant to subsection 7(1) of the Wire Crossings and Proximities Regulations, CRC, c 1195, 72 hours’ notice would be required prior to construction or maintenance work on the pipe containing electrical and communications cables.

[41] In light of the above, the Agency will not include in its authorization a term or condition with respect to notice and emergency access.

CONCLUSION

[42] The Agency authorizes Vancouver to construct and maintain four utility crossings in the City of Vancouver, namely one sanitary sewer pipeline, one storm water sewer pipeline and one pipe containing electrical and communications cables under mileage 11.09 of Marpole Spur; and, one underground storm and ground water siphon pipe under mileage 11.15 of Marpole Spur.

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