Order No. 1988-R-1263

December 30, 1988

December 30, 1988

IN THE MATTER OF the installation of protective devices at the crossing of the railway of the Essex Terminal Railway Company (hereinafter the Railway Company) at mileage 5.75 Mainline Subdivision and California Avenue, in the City of Windsor, in the Province of Ontario; and

IN THE MATTER OF the relocation of an existing street light pole.

File No. 36327.37


UPON reading the submissions filed,

IT IS ORDERED THAT:

  1. Within seven months from the date of this Order, the Railway Company shall install and thereafter maintain flashing light signals and bell at the said crossing.
  2. The said protective devices shall be installed in compliance with the requirements of the Highway Crossings Protective Devices Regulations General Order No. E-6, C.R.C. 1978, c. 1183.
  3. Eighty per cent of the cost of installation of the said protective devices or the sum of $ 55,368., whichever is the lesser, shall be paid out of the moneys appropriated by Parliament for the purposes of the Railway Relocation and Crossing Act, S.C. 1974, c. 12; twelve and one half per cent of the said cost shall be paid by the City of Windsor and the balance of the said cost shall be paid by the Railway Company.
  4. The Railway Company is directed to prepare all accounts using rates not in excess of those stipulated in Schedule "A" entitled Directives, attached to Railway Transport Committee Order No. R-32367, dated June 23, 1981, or its replacement, for all construction and maintenance work carried out by the Railway Company under this Order.
  5. Before the said protective devices are installed the City of Windsor shall relocate an existing street light pole in the southeast quadrant to permit an unobstructed view of the proposed protection.
  6. Eighty per cent of the cost of relocating the said street light pole, or the sum of $ 520., whichever is the lesser, shall be paid out of the moneys appropriated by Parliament for the purposes of the Railway Relocation and Crossing Act, seven and one half per cent of the said cost shall be paid by the Railway Company and the balance of the said cost shall be paid by the City of Windsor.
  7. Fifty per cent of the cost of maintenance and operation of the said protective devices shall be paid by the City of Windsor and fifty per cent of the said cost shall be paid by the Railway Company.

REASONS FOR ORDER NO. 1988-R-1263 File No. 36327.37


December 30, 1988

On August 7, 1987 the Agency's District office recommended the installation of flashing light signals and bell and the relocation of an existing street light pole in the southeast quadrant to permit an unobstructed view of the proposed protection as seen by northbound motorists.

When requested to provide their comments on this proposal and on sharing in the expense, the railway company, by letter dated November 19, 1987, agreed to pay 7 1/2 % of the construction costs and 50 % of the future maintenance costs, but submitted that:

"The relocation of the existing street light poles is the responsibility of the City of Windsor, and we object to sharing in costs for same."

On March 21, 1988 the Agency's District office wrote the railway company and advised them that the alternative to relocating the existing street light pole is a cantilever signal, with its associated higher capital costs and maintenance costs. They continued by recommending that all parties contribute in accordance with the current formula to relocate the existing street light pole.

There has been no submission received from the railway company in response to the letter dated March 21, 1988.

Section 198 of the Railway Act, R.S.C. 1970, c. R-2, (hereinafter the Act) states:

"198. (1) Where a railway is already constructed upon, along or across any highway, the Commission may, of its own motion, or upon complaint or application, by or on behalf of the Crown, or any municipal or other corporation, or any person aggrieved, order the company to submit to the Commission, within a specified time, a plan and profile of such portion of the railway, and may cause inspection of such portion, and may inquire into and determine all matters and things in respect of such portion, and the crossing, if any, and may make such order as to the protection, safety and convenience of the public as it deems expedient, or may order that the railway be carried over, under or along the highway, or that the highway be carried over, under or along the railway, or that the railway or highway be temporarily or permanently diverted, and that such other work be executed, watchmen or other persons employed, or measures taken as under the circumstances appear to the Commission best adapted to remove or diminish the danger or obstruction in the opinion of the Commission arising or likely to arise in respect of such portion or crossing, if any, or any other crossing directly or indirectly affected.

(2) When the Commission of its own motion, or upon complaint or application, makes any order that a railway be carried across or along a highway, or that a railway be diverted, all the provisions of law at such time applicable to the taking of land by the company, to its valuation and sale and conveyance to the company, and to the compensation therefor, apply to the land, exclusive of the highway crossing, required for the proper carrying out of any order made by the Commission.

(3) The Commission may exercise supervision in the construction of any work ordered by it under this section, or may give directions respecting such supervision. R.S., c. 234, s. 260".

Section 200 of the Railway Act states:

"200. Notwithstanding anything in this Act or any other Act, the Commission may order what portion, if any, of the cost is to be borne respectively by the company, municipal or other corporation or person in respect of any order made by the Commission under section 197, 198 or 199, and such order is binding on and enforceable against any railway company, municipal or other corporation or person named in such order. 1955, c. 41, s.1."

Under these sections of the Act, it is clear that the Agency has the authority to order any work which, in its opinion, is required for the safety, protection and convenience of the public and to apportion the cost of such work and its maintenance as it see fit.

After considering the submissions filed, the Agency considers that the relocation of the street light pole, notwithstanding the railway company's opposition to their portion of the expense, is required for the safety, protection and convenience of the public and that the apportionment of the costs should be made in accordance with the usual formula when a federal grant is authorized to cover part of the cost of the work that is, 12 1/2 percent of the installation costs to be paid by the road authority, 7 1/2 percent by the railway company following an 80 percent grant, with the costs of future maintenance to be shared equally at 50 percent each.

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