Decision No. 137-R-2013
APPLICATION by Alberta Transportation pursuant to subsection 101(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended and section 16 of the Railway Safety Act, R.S.C., 1985, c. 32, (4th Supp.).
 On June 15, 2012, Alberta Transportation filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 101(3) of the Canada Transportation Act (CTA) for an order related to the reconstruction, maintenance and apportionment of costs of the existing grade separation (Phase 1 and 2) carrying Highway 22X over the track of the Canadian Pacific Railway Company (CP) at mileage 10.73 of the MacLeod Subdivision, 3 kilometres south of Midnapore, in the province of Alberta. Alberta Transportation amended its application on August 30, 2012.
 In its amended application, Alberta Transportation requests that the Agency apportion the costs related to Phase 1 requirement, which will be part of the upgraded Highway 22X. Phase 1 involves the construction of an additional westbound structure to accommodate three lanes (two lanes plus an auxiliary lane) in the westbound direction and a 3.7-metre inside lane that is to be classified as a future facility. Phase 1 of the existing eastbound structure also involves removing the existing raised median from the superstructure and reconstructing the deck.
 In its Decision No. LET-R-166-2012 dated November 20, 2012; the Agency indicated that it would only consider Phase 1 of the project. Alberta Transportation was directed to describe the scope of the project for Phase 1, including the limits of the project subject to cost apportionment. The Agency also requested the parties comments on whether Phase 1 of the project constitutes the construction of a basic grade separation on a new route or the reconstruction of an existing grade separation.
 The existing bridge carrying Highway 22X is a paved three-lane facility over CP’s track and off‑track equipment roadway. An existing at-grade crossing is located to the south of the existing grade separation to provide service to some local acreages and access to CP’s field repair area located immediately south of the crossing.
 Reconstruction of the grade separation in Phase 1 will not change the need for the current at‑grade crossing at this site to accommodate local traffic and CP’s access requirements to the south of the crossing which accommodates field repairs.
 Order No. 91218 dated March 19, 1957 authorized CP to install and maintain two flashing light signals and one bell at the existing at-grade crossing of the railway and Highway No. 22. Order No. 96068 dated October 22, 1958 authorized Alberta Transportation to relocate and widen Highway No. 22A. Alberta Transportation was responsible for the costs of relocating and widening the at-grade crossing and the cost of maintenance was paid by CP. Order No. 96273 dated November 17, 1958, authorized CP to relocate the crossing protection authorized by Order No. 91218 to the new crossing of its railway and Highway No. 22A.
 Order No. WDR-00429 dated August 27, 1981 authorized Alberta Transportation to construct an overhead bridge with 5 percent of the cost of the construction of the grade separation to be paid by CP and the balance by Alberta Transportation. The cost of maintenance of the overhead bridge was apportioned to Alberta Transportation. Order No. R-32996 dated November 24, 1981 amended Order No. WDR-00429 to indicate that from the date the overhead bridge is opened for use of the public, the cost of maintenance of the existing at-grade crossing and the cost of maintenance and operation of the automatic protection shall be paid by Alberta Transportation.
- Does Phase 1 of the project constitute the construction of a grade separation on a new route or the reconstruction of an existing grade separation?
- Should the Agency authorize the proposed work and if so, how should the Agency apportion the costs of construction and maintenance for the proposed basic grade separation?
As indicated in the reasons that follow, the Agency finds that Phase 1 constitutes the reconstruction of an existing grade separation and not the construction of a grade separation on a new route. With respect to the costs of reconstruction of the existing grade separation, Alberta Transportation will be responsible for 85 percent of the costs of reconstruction of the basic grade separation and CP will be responsible for the remaining 15 percent. The costs of additional facilities will be paid by the parties requesting them. As for the maintenance costs of the reconstructed grade separation, Alberta Transportation shall be responsible for the maintenance costs of the substructures and superstructures of the overhead bridge including the highway approaches, the highway surface and the drainage and lighting facilities, while CP should be responsible for all other costs of maintenance including the railway approaches, track structure, railway drainage and communication facilities.
 Subsections 101(1), (3) and (4) of the CTA provide 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 101(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 (RSA) 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.
 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.
 The Agency must consider the merits of the case pursuant to the requirements of subsection 16(4) of the RSA. The Agency must determine the proportion of the liability for the construction, reconstruction 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 require the cost apportionment be based on which party created the need for the work.
 In its deliberations, the Agency may use the Agency’s Apportionment of Costs of Grade Separations A Resource Tool (Resource Tool) for decisions concerning the cost apportionment for construction or reconstruction of grade separations. The Resource Tool was published to assist parties in their negotiations and/or in the preparation of their submissions for any application to the Agency for a decision on the apportionments of costs. 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 has to coexist at crossings. However, each application for a grade separation and cost apportionment is assessed on its own merits by the Agency when it determines whether the Resource Tool applies and to what extent. The Agency may vary from the Resource Tool when appropriate in the circumstances surrounding each particular grade separation project.
ISSUE 1: DOES PHASE 1 OF THE PROJECT CONSTITUTE THE CONSTRUCTION OF A GRADE SEPARATION ON A NEW ROUTE OR THE RECONSTRUCTION OF AN EXISTING GRADE SEPARATION?
Positions of the parties
 Alberta Transportation submits that the proposed Phase 1 reconstruction of the Highway 22X grade separation is required to ensure that the facility adequately meets present day needs. Alberta Transportation states that the existing traffic volume of 26,000 (2012) Average Annual Daily Traffic (AADT) warrants a four-lane section according to its Geometric Design Guide, whereas the existing structure only accommodates three lanes. Alberta Transportation adds that the requirement for a six-lane section starts at 31,000 AADT which is very close to the existing traffic volume of 26,000 AADT (2012.)
 Alberta Transportation maintains that Phase 1 is clearly a reconstruction of the existing overhead bridge that was authorized by Order No. WDR-00429. Alberta Transportation submits that with respect to the proposed works being a reconstruction, there is a long history of cases where a two-lane provincial highway was expanded to four lanes (two in each direction), and where the Agency ruled that the proposed expansion was a “reconstruction” of an existing grade separation, not a new route.
 Alberta Transportation submits that Decision Nos. 701-R-2000, 30-R-2002 and 594-R-2008, and National Transportation Agency Order No. 1988-R-612, support its assertion that the proposed project constitutes a reconstruction of an existing grade separation.
 CP argues that Alberta Transportation has created a fiction and split its application in respect of the “new bridge” into two phases, even though the project will be constructed at one time. CP maintains that the “new bridge” (regardless of whether considering Phase 1 and/or Phase 2,) is a new route and clearly forms part of the Calgary Ring Road (the Ring Road). CP submits that the new bridge has been designed to form part of the future Southwest Stoney Trail and that, in fact, Highway 22X is being transformed into the Ring Road as part of the Southeast Stoney Trail and the future Southwest Stoney Trail. CP maintains that the bridge cannot be separated from the Ring Road project.
 CP submits that the “new bridge” is not a “typical reconstruction” as characterized by Alberta Transportation and should not be viewed as a typical maintenance upgrade or expansion project in order to meet current traffic needs on an otherwise existing highway. CP contends that if that were so, only one additional lane would be required to transform the existing road at this juncture to a four-lane highway and the “new bridge” would be complete. CP submits that the sole purpose of the “new bridge” is to form part of a new route for the Ring Road/Southwest Stoney Trail. CP asserts that the magnitude of the Ring Road is such that the existing structure must be entirely redesigned and rebuilt in conjunction with other Ring Road project components. According to CP, the “new bridge” must accommodate vehicular traffic volume on a new six‑lane highway, rather than simply accommodate an upgrade to an existing highway.
 CP contends that despite its pleadings to the contrary, Alberta Transportation has clearly planned and communicated that the “new bridge” is part of the Ring Road. CP refers to a presentation made by Alberta Transportation, titled SE Calgary Ring Road Project - The Saga of The Ring Continues (presentation), dated January 19, 2012. CP submits that the Ring Road has been planned since the 1970’s, and incorporating a large portion of Highway 22X into the southern portion of the Ring Road route has always been part of that plan. CP points out that Alberta Transportation is now ready to start the next phase of the new route, namely MacLeod Trail/Highway 22X – Southwest Stoney Trail and the “new bridge” is clearly identified as part of the MacLeod Trail/Highway 22X – Southwest Stoney Trail project on page 51 of the presentation and no phases are identified.
 CP argues that when the “new bridge” is examined within the context of the entire Stoney Trail Ring Road project, it is clear that the purpose of the construction is to meet the design requirements of the Ring Road. CP submits that this is not a “reconstruction to replace an isolated structure or typical highway upgrade.”
 Alberta Transportation submits that contrary to CP’s opinion, the proposed reconstruction of the existing grade separation, Phase 1, is necessary and designed to improve the efficiency of Highway 22X prior to Phase 2 being constructed.
 Alberta Transportation points out that even though the schedule for the Stoney Trail extension, Phase 2, could be at least three or four years in the future, the current design of the proposed reconstruction of the Highway 22X/CP grade separation must take into account the future roadway requirements such as geometrics, staging requirements, right-of-way acquisition, local access requirements, among other items.
 Alberta Transportation contends that a split in the schedule is necessary at this time and it points out that the right-of-way for Phase 1 construction has already been acquired and the project is ready to be tendered. Alberta Transportation submits that Phase 2 of this project requires that a land purchase agreement be executed. Alberta Transportation is optimistic that an agreement in that regard may be reached in the near future but points out that it could also take several years of negotiations.
 While Alberta Transportation acknowledges that the cost apportionment for the reconstruction of the two additional westbound lanes will be dealt with during construction of Phase 2 of this project, it maintains that it would not be cost effective to reconstruct Phase 1 without two additional westbound lanes and then two years later have to reconstruct the westbound structure again by adding two lanes for the Phase 2 facility.
 According to Alberta Transportation, Phase 1 will consist of a three‑lane carriageway (two through lanes and one auxiliary lane,) and the basic grade separation costs associated with Phase 1 construction only include the three-lane facility that is required to increase the level of service to meet present day needs. Alberta Transportation confirms that in Phase 2, the existing bridge will need to be entirely rebuilt; however, in Phase 1, some minor deck work will be necessary to accommodate one-way east bound traffic.
Analysis and findings
 On the one hand, Alberta Transportation states that Phase 1 is a reconstruction of the existing overhead bridge that was authorized by Order No. WDR-00429.
 CP, on the other hand, is of the view that: the “new bridge” is a new route and clearly part of the Ring road; it has been designed to form part of the future Southwest Stoney Trail; and it is not a typical expansion of an existing highway. If that were so, only one additional lane would be required to transform the existing road at this juncture to a four-lane highway and the “new bridge” would be complete.
 Highway 22X is a provincial highway. The Agency notes Alberta Transportation’s submission that it has developed a Geometric Design Guide which sets standards with respect to provincial highway requirements. The Agency also notes that CP does not dispute Alberta Transportation’s assertion that the existing traffic volume of 26,000 (2012) Average Annual Daily Traffic (AADT) warrants a four-lane section according to its Geometric Design Guide and is very close to the requirement for a six-lane section which starts at 31,000 AADT
 The Agency accepts that according to the Geometric Design Guide, the requirement for a six‑lane section starts at 31,000 AADT.
 The Agency recognizes the length of time required to reconstruct the existing grade separation. The Agency is satisfied that the 2012 vehicular traffic volume is sufficiently close to the requirement of a six‑lane section to conclude that six lanes of vehicular traffic should be considered part of the work required to provide adequate facilities for present day needs at the time of reconstruction of the existing grade separation.
 In this case, and notwithstanding CP’s arguments, the Agency is satisfied that the proposed addition of a second three-lane structure, in Phase 1, adjacent to and on the north side of the existing Highway 22X overhead bridge structure (twinning) is required to provide an adequate facility to carry the present day vehicular traffic at this location.
 The Agency is of the opinion that this project does not constitute the construction of a grade separation on a new route. This is a reconstruction of an existing structure on an existing route. The reconstruction is required to provide an adequate facility to meet present day needs and is at a location where both parties have a responsibility as set out in Order No. WDR-00429.
ISSUE 2: SHOULD THE AGENCY AUTHORIZE THE PROPOSED WORK AND IF SO, HOW SHOULD THE AGENCY APPORTION THE COSTS OF CONSTRUCTION AND MAINTENANCE FOR THE PROPOSED BASIC GRADE SEPARATION?
Positions of the parties
 Alberta Transportation is of the view that both parties have experienced growth in traffic at the crossing and therefore the cost of reconstruction should be apportioned according to that growth. Alberta Transportation submits that CP’s share should be greater than the 15 percent shown in the Resource Tool to reflect the increase in rail traffic, length of trains and tonnage hauled on the line. Notwithstanding this and without setting any precedents, Alberta Transportation is willing to accept a 15 percent contribution of the shareable costs from CP towards the reconstruction of this overhead bridge.
 Alberta Transportation submits that the cost of the basic grade separation is estimated at $4,860,000. Alberta Transportation adds that the cost to accommodate CP’s request to make provision for a future track is estimated at $175,000. The costs related to Alberta Transportation’s request to accommodate a 3.7 m inside lane on the proposed westbound carriageway, the provision for a two-lane future industrial roadway under the east headslope and the two Phase 2 Stoney Trail westbound lanes associated with the westbound structure are estimated at $5,607,000. With respect to CP’s request for provision for a future track or an off-track equipment roadway on the west side of their existing track, Alberta Transportation considers this to be an additional facility under the proposed westbound structure.
 Alberta Transportation states that it has agreed to guarantee CP continued access to its service track by way of the existing at-grade crossing or by the future city roadways located under the east headslope. Alberta Transportation adds that it intends to include this item in the proposed agreement between the two parties prior to commencing the proposed reconstruction.
 Alberta Transportation submits the following arguments with respect to the rationale of requesting 15 percent contribution from CP:
- The Province is senior at this location as the road allowance was established prior to the railway being constructed. The seniority status is further verified by the fact that CP had responsibility at this existing overhead bridge, which was authorized by Order No. WDR‑00429.
- Alberta Transportation is willing, without setting a precedent and on a without prejudice basis, to accept a 15 percent cost share from CP with respect to the reconstruction of the basic grade separation, which is in accordance with the Resource Tool.
- Alberta Transportation submits that the 15 percent cost apportionment request from CP is reasonable and equitable as this project is primarily due to road development.
 Alberta Transportation considers this cost sharing arrangement to be fair and reasonable to both parties. Alberta Transportation submits that the Resource Tool’s Preamble and the conclusion of the 1988 Coghlan report (one of the major studies with which the Resource Tool was developed) support the 85 percent Alberta Transportation/15 percent CP apportionment request. Alberta Transportation adds that delays and inconveniences to the general public were originally created by CP and continue to contribute to the problems at the present day crossing. Alberta Transportation states that the general public is exposed to conditions that cause accidents and more importantly, injuries, as a direct result of the train movements. Alberta Transportation adds that these problems are ongoing while CP continues to accrue benefits without any inconvenience to its train movements.
 Alberta Transportation indicates that from a historical point of view, both parties have experienced growth in traffic that has contributed to the high vehicle/train cross product and, are therefore, equally responsible for correcting this problem.
 With respect to the maintenance of the reconstructed overhead bridge, Alberta Transportation submits that the cost of the future maintenance should be apportioned as per the Resource Tool. Alberta Transportation states that the costs of maintaining the substructures and superstructures of the overhead bridge including the highway approaches, the highway surface and the drainage and lighting facilities will be its responsibility while CP will be responsible for all other costs of maintenance including the railway approaches, track structure, railway drainage and communication facilities.
 CP submits that an additional track is not a CP requirement as it only needs the existing track and existing maintenance road.
 CP contends that Alberta Transportation has recharacterized its application by splitting the apportionment issue into Phase 1 and Phase 2, and has refused to address the future needs issue with respect to Phase 2 at this time. CP reiterates that the alleged “reconstruction” of the existing structure is unnecessary as the existing structure more than adequately meets CP’s present day needs.
 CP submits that the application for a cost apportionment has been amended by Alberta Transportation to delay the cost of the two westbound lanes of the “new bridge” until Phase 2 has been scheduled. CP alleges that Alberta Transportation wants costs to be apportioned for the Phase 1 upgrades based on present needs and wait until Phase 2 is scheduled. CP further submits that Alberta Transportation is avoiding the future needs argument by waiting until such time as Phase 2 is scheduled, thus attempting to ensure costs are apportioned to CP at each stage of the “new bridge.”
 CP questions Alberta Transportation’s request that the Agency apportion CP’s liability at a minimum of 15 percent because, in CP’s view, its present day needs are being met by the existing structure. CP submits that this apportionment is neither “fair” nor “reasonable.” CP adds that it has already met its apportionment obligations with respect to the existing structure, and derives no benefit whatsoever for the “new bridge” under Phase 1 or Phase 2.
 CP submits that Alberta Transportation’s allegations concerning significant public costs involved with at-grade crossings are irrelevant. CP maintains that any inconvenience to the public with respect to the existing structure was addressed in 1981 and there are no present conditions which cause any inconvenience to the public with respect to the track.
 CP states that when determining the responsibility for cost apportionment, the Agency has acknowledged that it must consider the purpose of the subject project as well as the benefits which may accrue to each party.
 CP submits that while any alleged reconstruction by Alberta Transportation is not opposed by CP, 100 percent of the costs associated with both Phase 1 and Phase 2 should be born solely by Alberta Transportation.
 Alberta Transportation acknowledges that the proposed westbound structure will require some additional features such as provision for a future LRT, a two-lane city street, and additional lanes on the structure, however, the basic grade separation does not include any of these facilities. Alberta Transportation submits that the basic grade separation only includes the two through lanes and one auxiliary lane including the shoulders in order to meet present day needs. Alberta Transportation reiterates that the City will be responsible for all future costs associated with the LRT tracks and construction of the two-lane city roadway under the east headslopes.
 Alberta Transportation submits that according to the Resource Tool, CP has a responsibility at this grade separation facility and if a railway company has a responsibility at a crossing then a reconstruction of the existing grade separation is subject to cost apportionment by the two parties.
 Alberta Transportation states that contrary to CP’s position, the proposed Phase 1 reconstruction is required to increase the capacity of the existing carriageway to meet present day needs. Alberta Transportation notes that the existing level of service (LOS) for the 2011 traffic condition for this area is “F” in the A.M. peak and “D” in the PM peak which is clearly not acceptable. Alberta Transportation adds that the proposed Phase 1 reconstruction is expected to increase the LOS of Highway 22X through this area to at least a “B” or greater.
Analysis and findings
 Having determined that the proposed grade separation is a reconstruction of an existing grade separation, the Agency must now determine whether the Agency should authorize the work and how the cost of reconstruction and maintenance of the basic grade separation should be apportioned.
 The Agency has considered the parties’ submissions and is satisfied that the reconstruction is required for present day needs. Therefore, the Agency authorizes the work.
 The parties do not challenge that the Resource Tool applies to this case: while Alberta Transportation is ready to accept liability for 85 percent of construction costs, CP submits that Alberta Transportation should be responsible for 100 percent as the project would constitute a new route. Therefore the Agency is of the opinion that the Resource Tool applies in this case.
 The Agency notes that Order No. 96068 dated October 22, 1958 authorized the relocation and widening of Highway No. 22A and CP was responsible for the costs of maintenance. Furthermore, in 1981, by Order No. WDR-00429, CP was required to share in the construction costs of Highway 22X grade separation, thereby continuing the shared responsibility of the parties.
 As per the Resource Tool, if an existing grade separation is to be reconstructed, in a situation where both parties have responsibility, the construction costs of a basic grade separation are normally apportioned as follows:
- On a project due primarily to road development:
- 85 percent road authority
- 15 percent railway company
 As the twinning of Highway 22X is required to accommodate the increase in vehicular traffic, the Agency finds that this project is primarily due to road development. As such, the Agency determines, in accordance with the Resource Tool, that Alberta Transportation should pay 85 percent of the reconstruction costs of the basic grade separation and CP should pay 15 percent.
 The Agency finds that the basic grade separation, in this case, consists of two through lanes and one auxiliary lane plus the inside and outside shoulders, as shown on Drawing No. STR-01 dated December 20, 2012. The Agency also finds that the limits for the basic grade separation are as shown on Plan DD1916B dated December 20, 2012.
 With respect to the provision to be made for an off-track equipment roadway, as Alberta Transportation has agreed to guarantee CP continued access to their service track by way of the existing at-grade crossing or by the future city roadways, the Agency is of the opinion that any provision made in the length of the structure to accommodate the off-track roadway equipment is an additional facility which is not part of the basic grade separation. Therefore, the Agency finds that if CP wants provision for an off-track equipment roadway, it should pay for it.
 With respect to the LRT tracks and the two‑lane industrial roadway under the headslop, the Agency is of the opinion that any provisions made in the length of the structure to accommodate these additional facilities are not part of the basic grade separation.
 The Agency notes that Alberta Transportation is currently responsible for the maintenance costs of the existing overhead bridge. According to the Resource Tool, if an existing grade separation is to be reconstructed, the established maintenance responsibilities for the existing grade separation are normally considered in the apportionment of maintenance costs of the basic grade separation. Therefore, all maintenance costs of the substructure, superstructure and retaining wall of the overhead bridge are to be paid by Alberta Transportation; and all other maintenance costs of the overhead bridge, including the costs of maintaining the railway approaches, track structure, railway drainage and communication facilities are to be paid by CP.
 The Agency, pursuant to subsection 101(3) of the CTA, authorizes the reconstruction of the overhead bridge as shown on Drawing STR-01 dated December 20, 2012.
 Alberta Transportation shall pay 85 percent of the reconstruction costs of the basic grade separation and CP shall pay 15 percent. Should CP require an off-track equipment roadway, it shall pay the additional cost.
 All maintenance costs of the substructure, superstructure and retaining wall of the overhead bridge are to be paid by Albert Transportation; and all other maintenance costs of the overhead bridge, including the costs of maintaining the railway approaches, track structure, railway drainage and communication facilities are to be paid by CP.