Decision No. 34-R-2019

June 21, 2019

APPLICATION by the City of Montréal (City) against the Canadian Pacific Railway Company (CP) for authority to construct five at‑grade pedestrian and bicycle crossings and to apportion the costs of construction and maintenance.

Case number: 
17-02827

SUMMARY

[1] On May 31, 2017, the City filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 101(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) and subsection 16(1) of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) [RSA], for authority to construct five at‑grade pedestrian and bicycle crossings and to apportion the costs of construction and maintenance.

[2] CP submits that the Agency should not authorize the City to construct any of the crossings that it requested considering that none are necessary or suitable within the meaning of the CTA.

[3] Two of the requested road crossings are on the Outremont Spur, which begins at mileage 49.1 of CP's Adirondack Subdivision, more specifically[1] at the following mileages:

  • 4.86 of the Outremont Spur and Henri-Julien Avenue (Henri-Julien);
  • 5.08 of the Outremont Spur and Saint-Dominique Street (Saint-Dominique).

[4] The three other requested road crossings are located on the Parc Subdivision at the following mileages:

  • 5.51 and de l'Épée Avenue (de l'Épée);
  • 6.13 and Ogilvy Street, at the Parc station of the Réseau de transport métropolitain (RTM) [Ogilvy];
  • 8.83 and Henri-Bourassa Boulevard West, at the RTM's Bois-de-Boulogne station (Henri‑Bourassa).

[5] The Agency will consider the following issues:

  1. Should the Agency authorize the construction of suitable road crossings at the five locations requested by the City?
  2. If the Agency authorizes the construction of the road crossings, how should the costs of construction and maintenance be apportioned?

[6] For the reasons set out below, the Agency finds as follows:

  • For the Henri-Julien and Saint-Dominique road crossings on the Outremont Spur, the Agency authorizes the construction of grade separations at these locations because at‑grade road crossings, such as those requested by the City, would not be adequate or appropriate for the purposes for which they are intended and installed. The Agency determines that the City is responsible for the entirety of the costs of construction and maintenance.
  • For the Ogilvy, Henri-Bourassa and de l'Épée road crossings on the Parc Subdivision, the Agency authorizes the construction of at-grade road crossings, such as those requested by the City, because they are adequate and appropriate for the purposes for which they are intended and installed. However, the Ogilvy and Henri-Bourassa road crossings will have to be constructed so that they are integrated into the RTM's boarding platforms. The Agency determines that the City is responsible for the entirety of the costs of construction and maintenance.

BACKGROUND

[7] The City will be the road authority for each road crossing.

[8] The portion of the railway right-of-way of the Parc Subdivision, the subject of the application, measures approximately 6.44 km and that of the Outremont Spur, approximately 2.4 km, for a total of 8.85 km. Together, both portions of the railway right-of-way of the Parc Subdivision and the Outremont Spur form a corridor that has 14 crossings (10 underpasses, 2 overpasses, 2 at-grade) and 2 boarding platforms belonging to the RTM.

[9] The Outremont Spur is an essential part of CP's network as it leads to the Port of Montreal. The Parc Subdivision begins at the intersection of the Adirondack Subdivision and the Outremont Spur and ends in Saint-Jérôme. The RTM and Chemins de fer Québec‑Gatineau Inc. (CFQG) are the main users of the Parc Subdivision. The RTM operates its commuter trains on the Parc Subdivision during the morning (6:00 a.m. to 9:00 a.m.) and afternoon (3:00 p.m. to 7:00 p.m.) rush hours.

PRELIMINARY MATTERS

[10] The City states that the requested road crossings will only be used by pedestrians, cyclists and persons using assistive devices.

[11] Section 100 of the CTA defines a road crossing as the part of a road that passes across, over or under a railway line, and includes a structure supporting or protecting that part of the road or facilitating the crossing.

[12] Section 87 of the CTA defines a road as any way or course, whether public or not, available for vehicular or pedestrian use.

[13] In light of the above, the definition of road crossing includes crossings that are only used by pedestrians and cyclists. Therefore, the term "road crossing" will be used for the purposes of this Decision.

THE LAW

[14] Subsections 101(3) and 101(4) of the CTA and section 16 of the RSA give the Agency the 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, in part, rely on its document, Apportionment of Costs of Grade Separations: A Resource Tool (Resource Tool). 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 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.

ASSESSMENT OF THE SUITABILITY OF A ROAD CROSSING

[18] In this case, the Agency has the power to authorize the construction of suitable road crossings when no agreement is reached with respect to the construction, maintenance and cost apportioning of the requested road crossings.

[19] The Federal Court of Appeal, in Fafard v. Canadian National Railway Company, 2003 FCA 243, 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 the trains. The Federal Court of Appeal also stated that the concept of suitable crossing includes an element of safety.

[20] This Federal Court of Appeal's principle was subsequently applied by the Agency, who, on several occasions, confirmed that before deciding on the suitability of a road crossing, it has to consider elements of safety. The Agency more recently reiterated this principle in Decision No. 40‑R‑2018 (Corporation of the City of Cambridge and the Corporation of the City of Kitchener v. CP).

[21] The Agency, in Decision No. 448-R-2004 (Regional Municipality of Durham v. CN), and, more recently, in Decision No. 40-R-2018, noted that while the suitability of a crossing is to be determined on a case‑by‑case basis, the concept of "suitable crossing" must take into account, among other things, the applicant's and the respondent's intended use of the crossing.

[22] The Agency, in Decision No. 676-R-2002 (City of Windsor v. CN), stated that it is being asked to assess the requirements for the crossing and the resulting impacts on railway operations to determine whether the proposed crossing is suitable. The Agency also found in the same Decision that "the interaction of a railway and the roadway at the crossing will impact the operations of both the users of the railway and the users of the roadway" and that "[t]his is an inevitable consequence of the coexistence of various modes of transport, of the proximity of various types of businesses with varying requirements and of the proximity of businesses such as railway companies with residential and industrial areas."

[23] The Agency noted in Decision No. 688-R-2004 (Lebovic Enterprises Limited v. CN) and Decision No. 65-R-2008 (Buckingham Industries Ltd. V. BNSF) that to determine what constitutes a suitable crossing, it must consider, among other things, whether the crossing needs to be grade separated. In this context, it can consider elements such as cross-product calculation, safety and expected use of the crossing.

[24] In light of the above, in the consideration of what constitutes a suitable crossing, the Agency will consider:

  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;
  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).

[25] 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 predicated, based on a credible analysis, at the location; blocked crossing problems in the area; or relevant Transportation Safety Board recommendations.

[26] 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. Ensuring compliance with such requirements is the responsibility of the Minister of Transport and Transport Canada.

SHOULD THE AGENCY AUTHORIZE THE CONSTRUCTION OF SUITABLE ROAD CROSSINGS AT THE FIVE LOCATIONS REQUESTED BY THE CITY?

Positions of the parties

THE CITY

[27] The City submits that the railway right-of-way represents a physical barrier and an obstacle to people's mobility. According to the City, the road crossings are necessary for two reasons: the return of citizens and businesses to the boroughs and the fact that these crossings will improve the flow of travel. The City indicates that through studies, to identify its needs, it determined the places where at‑grade crossings would reduce trespassing and evaluated the current and future demand for implementing at‑grade pedestrian crossings.

[28] The City submits that the road crossings will:

  1. open up certain areas;
  2. encourage active travel and the use of public transportation;
  3. ensure the safety of people at the locations of the trespassing and, at the same time, reduce the risks caused by trespassing by directing users to specific and secure locations;
  4.  allow for urban redevelopment (job and residence creation) in former industrial areas converted to areas for offices, residences and businesses.

[29] According to the City, the requested road crossings will be a solution to trespassing, allowing people to cross the tracks in a controlled manner, as the crossings will be protected by infrastructure prescribed by regulation. The City states that it relies on the report entitled Projet de passages à niveaux piétonnier sur les voies ferrées du CP (Subdivision Parc et antenne Outremont), May 2017, a report that it ordered from ConsultRail International Inc. (ConsultRail) to prepare and defend its project form the railway perspective.

[30] The City submits that although there are alternatives to the requested road crossings, users will seek the shortest route possible, which causes trespassing problems.

[31] According to the City, the construction and maintenance of grade separations are costly and the crossings are not suitable for everyone.

[32] The City submits that although there are two at-grade road crossings dedicated to pedestrians on the Parc Subdivision near the requested road crossings, they are insufficient to meet the needs. The City also submits that the population has been asking for additional at-grade road crossings for pedestrians for several years now.

[33] The City is of the opinion that although alternatives exist for certain road crossings, they do not offer the same ease of use for all users. The City indicates that certain crossings are shared by pedestrians and cyclists, while others have restrictions with respect to the width, height, etc. that have an impact on pedestrians with reduced mobility or other physical constraints.

[34] The City submits that the requested road crossings will meet the regulatory standards set out by Transport Canada (TC) in the Grade Crossings Regulations, SOR/2014-275 (GCR) and the Grade Crossings Standards (GCS).

[35] In response to CP's arguments, the City submits that the grade separations would be too costly to construct and maintain considering winter weather conditions. Moreover, it adds that at-grade road crossings require little space and are less bulky than grade separations.

CP

[36] CP submits that it is inaccurate to say that the construction of at-grade road crossings would reduce right-of-way trespassing and the risk of accidents. CP acknowledges that there is a trespassing problem on both of the right-of-ways and admits that signs of trespassing are visible along the corridor. CP nonetheless submits that the construction of additional at‑grade road crossings would not eliminate this problem and would instead increase the risk of accidents.

[37] According to CP, there is a direct correlation between the number of crossings and the number of accidents at the crossings. CP submits that the more active tracks there are, the greater the risk because pedestrians tend to cross the lanes without considering that a second train may pass. CP states that the requested crossings go over two or more tracks, which increases the risk to public safety. Moreover, CP submits that by adding the requested road crossings, there will be a greater number of users, which will increase the risk to public safety. CP states that it relies on the report entitled "Needs and Suitability Study – Proposed At-Grade Pedestrian Crossings, Montreal, Quebec" (Dillon Report), a report that it ordered from Dillon Consulting to analyze the suitability and the needs of the proposed road crossings.

[38] CP is more of the opinion that to reduce the number of trespassing and reduce the risk to the safety of citizens along the railway right-of-way, the City should instead focus on improving the existing infrastructure, maintenance and repair, signage and education.

[39] Alternatively, CP submits that although the road crossings are not necessary and would increase the risk of accidents, if their construction were to be authorized, they should be grade separated. CP states that it relies on the report that it ordered from Hatch to analyze the documents presented by the City to support its application and to examine the impact of the requested road crossings on public safety and on CP's railway operations (Hatch Report) dated May 31, 2018.

[40] According to CP, the City did not show a need to increase the mobility of people nor the need to avoid detours. CP adds that there are alternatives as 14 crossings and 2 boarding platforms cross the corridor and the majority of the alternatives are below the standards recognized in the industry for time and distance to travel for pedestrians and cyclists. Moreover, CP submits that since 2013, the City has made several improvements to the existing crossings near the requested road crossings. CP does, however, recognize that certain existing crossings are not optimal for shared use between cyclists and pedestrians.

[41] CP submits that the requested road crossings will hinder the railway operations of CP, CFQG and the RTM. CP also submits that as it stores empty cars on the Outremont Spur, this capacity will be limited by the presence of the requested road crossings. According to CP, as the available space is limited, the risk of not complying with subsection 97(2) of the GCR regarding the prohibition to obstruct a grade crossing for more than five minutes will increase. It indicates that these operational constraints will also result in reducing the level of service offered to the Port of Montreal. CP adds that according to the Hatch Report that it submitted, the Outremont Spur is the link between CP's Saint-Luc Yard and the Port of Montreal. It states that the service to the port usually includes storing cars on the Outremont Spur to offer the port an adapted service. According to CP, the extent of the Port of Montreal's rail network is very restricted geographically and its limited footprint does not easily allow for the growth of its infrastructure to support its growing flow of traffic. Moreover, CP states that it expects an increase in its traffic volume and the length of trains over the years, which will exacerbate the impact of added road crossings on its railway operations.

[42] CP submits that the Agency should consider the safety element, alternatives to the requested road crossings and public convenience while also considering the negative impact on railway operations near the requested crossings.

[43] The RTM, through CP, states that it is not in favour of adding at-grade road crossings such as those that are requested, but adds that the decisions on infrastructure are ultimately CP's responsibility.

TRANSPORT CANADA

[44] In accordance with the memorandum of understanding between the Agency and TC on the coordination of efforts related to rail transportation, TC raised the following points:

  • CP and the City will be required to respect the RSA and the regulatory framework, including, among other things, the GCR and the Notice of Railway Works Regulations, SOR/91-103. The approval from the Minister of Transportation may be required.
  • The construction of new at-grade road crossings will not eliminate the risk of trespassing or dangerous behaviour by pedestrians on the railway.
  • TC recommends solving the trespassing problem along the corridor, particularly for the Henri‑Julien and Saint-Dominique requested road crossings, to install anti-vandalism fences and to extend these fences to the existing crossings at Saint-Denis Street and Saint‑Laurent Boulevard.
  • The obligations regarding the use or prohibition from using the whistle must be respected.Subsection 97(2) of the GCR regarding obstructing the crossing surface will apply to the new crossings.
  • Given the modification of section 33 of the GCR, section 11 of the GCS no longer applies to crossings that are only used by pedestrians.
  • The City and CP are responsible for ensuring that the design and operation are safe and comply with the RSA. According to the risk assessment conducted by the parties, grade separations could also potentially be safer at certain locations.

Analysis and determinations

[45] The parties submitted several reports in support of their arguments.

[46] The reports filed by the City mainly involve issues of urban planning and development, and safety issues related to trespassing problems on the railway right‑of‑way. The evidence filed by the City primarily supports its arguments regarding the need for at‑grade crossings at the requested road crossing locations. The City also filed a technical civil engineering report regarding the construction and cost of the requested crossings, which includes engineering plans for the construction of at-grade road crossings and estimated construction costs.

[47] The reports filed by CP include considerable data regarding urban planning and the superfluous nature of the requested road crossings; the impact of the requested crossings on railway operations, including the impact on the level of service of the Port of Montreal; risk analyses regarding the requested crossings and the risks of all road crossings in general; as well as civil engineering data, including engineering plans and the assessment of construction costs. The evidence filed by CP primarily supports its argument that the construction of the new road crossings will increase the risk factor for accidents in addition to hindering CP's railway operations.

[48] The Agency considered all the evidence filed on the record.

HENRI-JULIEN AND SAINT-DOMINIQUE REQUESTED ROAD CROSSINGS –OUTREMONT SPUR

[49] The Agency notes that for these two locations, the City wishes to increase the flow of travel of pedestrians, cyclists and people using assistive devices to encourage active transportation.

1. The impact of a crossing on railway operations

[50] The Dillon Report filed by CP reports that an average of 8 freight trains (4 trains and 4 locomotive transfers) per day circulate on the Outremont Spur in addition to 2 to 4 additional trains per week between December and March for grain transportation. The Dillon Report also indicates that, as for CP's future railway operations, the intermodal traffic on the Outremont Spur should increase by 51 percent by 2025. CP also expects that the total daily number of freight trains will also increase, as well as grain transportation trains. The City is of the opinion that the Outremont Spur is not very busy, but does not deny the volume of traffic.

[51] It the Hatch Report, CP indicates that the Outremont Spur includes a total of three tracks, two of which are main tracks plus one for parking cars and manoeuvering. At the Henri-Julien location, there is another unused track that is not connected to the others.

[52] During the periods of time when the RTM has priority to operate its commuter trains on the Parc Subdivision, the trains leaving the Port of Montreal wait on one of the main tracks on the Outremont Spur. As indicated in the Dillon Report, the cars that are going to the Port of Montreal are stored on the third track; however, according to the City, this third track is only used occasionally, as indicated in the report prepared in August 2018 by CANAC Railway Services Inc., in response to CP's arguments and the Hatch and Dillon reports (CANAC Report).

[53] According to the Dillon Report, the requested road crossings would significantly reduce, by 54 percent, the space available for waiting trains and would require CP to adapt its railway operations in order to comply with the GCR, namely that an at-grade road crossing must not be obstructed for more than 5 minutes. Moreover, the requested road crossings would split the storage track for empty cars, compromise CP's capacity to serve the Port of Montreal, and reduce its storage space for cars by 9 percent or 0.27 miles, as presented in the Dillon Report.

[54] Although CP disagrees, the City, in the CANAC Report, suggested connecting the fourth track to compensate for the loss of storage space for cars.

[55] Despite the diverging arguments from the parties regarding the impact of the road crossings on CP's railway operations, it is clear from the evidence that the Outremont Spur is essential for CP to provide services to the Port of Montreal and that the volume of rail traffic will continue to increase in the future considering the consistent increase of the Port of Montreal's operations. It seems that the City's proposed solution to connect the fourth track to compensate for the problems that would be caused by the addition of at-grade road crossings would not eliminate the constraints on CP's railway operations at these locations. The City's proposed solution would also fail to meet CP's concerns about its obligation to comply with subsection 97(2) of the GCR regarding obstructing the crossing surface.

[56] The presence of the requested road crossings would force CP to cut its trains from both sides at each of the crossings. The Agency notes that the time required to cut and reassemble the cars would have a negative impact on CP's railway operations. Moreover, depending on the volume of cars needed to and from the Port of Montreal, CP would have to cut and reassemble these cars several times a day. Therefore, beyond having an impact on railway operations, the addition of the two requested at‑grade road crossings would also potentially prevent CP from meeting its current service obligations. This situation, according to the Dillon Report, will be exacerbated by CP's anticipated growth by 2025.

 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

[57] CP is of the opinion that the risk of accidents at a road crossing increases based on the number of tracks to cross and, for the Henri-Julien and Saint-Dominique locations, this risk is nine times greater than if there were only a single track, as indicated in the Dillon Report. CP also submits that as 354 m separate the requested road crossings, the risk of longitudinal trespassing will increase. Pedestrians could be tempted to cross on either side of the railway right-of-way, which would contribute to increased risk to rail safety.

[58] In addition, increasing the number of manoeuvers required to cut and assemble the cars will lead to obstructions at the road crossings for long periods of time, as the manoeuvers could potentially last up to 30 minutes. The City, in the May 2017 ConsultRail Report, acknowledges this fact. Users of the requested crossings will have to wait to cross, which could result in their being tempted to adopt dangerous behaviour, thereby contributing to the risk of rail accidents. It should be noted that this risk will further increase when the number of rail tracks is higher.

[59] The City states that, by complying with TC's regulatory requirements, the risks associated with adding road crossings over multiple tracks are mitigated, as the crossings will be equipped with automatic protection systems with barriers, flashing lights, warning bells, guide fencing and baffles.

[60] Despite the implementation of automatic protection systems, it seems that these crossings will present an increased risk of rail accidents considering the number of tracks to cross, the increased number of manoeuvers required to cut, assemble and store the cars on the third track, and the possibility that users will adopt dangerous behaviour when the crossings will be occupied. Moreover, the possibility of diagonal trespassing, due to the proximity of the requested crossings, also contributes to increased risk to rail safety and to the security of the users of the road crossings.

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

[61] As noted above, the requested at-grade road crossings would significantly reduce the space available for waiting trains and would require CP to adapt its railway operations. Although it would be possible to move the waiting trains to the east, the trains would be waiting near a large number of residential buildings on both sides of the railway right-of-way, with the closest at 30 metres.

[62] Although the City did not report on the possibility of railway noise and vibrations caused by moving the waiting trains to the east or on the potential impacts on residents, the railway noise and vibrations caused would likely have significant negative impacts on the residents.

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)

[63] CP proposed a scenario of a grade separation passing over the railway line for the Henri‑Julien location. According to CP's Hatch Report, it would be possible to construct a grade separation at the Henri-Julien location, and the City did not submit any evidence or argument about any technical restrictions that would make the construction of a grade separation impossible or unreasonable at this location. With respect to the Saint-Dominique crossing, there are vertical restrictions due to the presence of a viaduct on Rosemont Boulevard. In its evidence, CP did not propose any scenario, but it states that the lack of scenario for the Saint-Dominique location did not preclude the possibility of constructing a grade separation passing over the railway line at this location or slightly to the west of the viaduct on Rosemont Boulevard, which would take the vertical restrictions into consideration.

Conclusion

[64] In light of the above, although it is possible to construct road crossings at the Henri-Julien and Saint-Dominique locations that comply with the regulations in force, these road crossings will cause significant negative impacts on the current railway operations. These impacts will increase as rail traffic increases.

[65] Moreover, the impact on the railway operations will lead to an increased risk for users, who could adopt dangerous behaviour to cross the road crossings or railway right-of-way should they be occupied for a period of up to 30 minutes. Also, the impact on railway operations will make it difficult for CP to respect the GCR's provision that it is prohibited to obstruct a grade crossing for more than 5 minutes.

[66] As the requested road crossings are in an urban environment and there are residents nearby, the increased number of manoeuvers required to cut, assemble and store trains during each of the waiting periods will increase railway noise and vibration.

[67] For the purpose of reconciling the City's intended use of the requested road crossings at the Henri‑Julien and Saint-Dominique locations and CP's use of the Outremont Spur, it is reasonable to conclude that grade separations are suitable. In fact, grade separations at the Outremont Spur provide a balance between the safety elements and the impacts on CP's railway operations. Grade separations, which are crossings that pass over or under a railway line, will allow to reduce interactions between the users of the crossings and the railway space while eliminating the safety issues related to at-grade road crossings, and will preserve the railway operations while accommodating the expected growth.

[68] Although there are vertical restrictions due to the presence of the viaduct on Rosemont Boulevard for the Saint‑Dominique crossing, the parties did not submit any evidence to the effect that these restrictions would prevent the construction of a grade separation at this location or nearby.

[69] The Hatch Report states that it would be possible to construct a grade separation at the Henri‑Julien location. The City did not submit any evidence or argument about there being any technical restrictions that would make it impossible or unreasonable to construct a grade separation at this location.

[70] The Agency therefore finds that the construction of grade separations at these two locations, or nearby, is technically possible and that the presence of certain restrictions does not make it impossible or unreasonable to construct this type of road crossing.

[71] Accordingly, the Agency finds that grade separations would be adequate and appropriate for the purposes for which they are intended and installed.

OGILVY, HENRI-BOURASSA AND DE L'ÉPÉE REQUESTED ROAD CROSSINGS –PARC SUBDIVISION

[72] The Agency notes that for these three locations, the City wishes to increase the flow of travel of pedestrians, cyclists and people using assistive devices to encourage active transportation.

1(a) The impact of a crossing on railway operations – Ogilvy and Henri-Bourassa

[73] On average, according to the Hatch and Dillon reports submitted by CP, 26 passenger trains pass here from Monday to Friday; 2 CFQC freight trains pass here per day and 2 to 4 additional trains per week pass here between December and March for grain transportation. The City did not challenge this evidence.

[74] The RTM's trains have priority during the morning and afternoon rush hours; freight trains pass outside these times.

[75] There are currently boarding platforms for RTM's users which provide access to two railway tracks but do not allow the railway right-of-way to be crossed completely. The platforms are protected by automatic protection systems with barriers, flashing lights and warning bells.

1(b) The impact of a crossing on railway operations – de l'Épée

[76] There is no RTM's station at this location. On average, according to the Dillon Report submitted by CP, 20 passenger trains pass here from Monday to Friday; 2 CFQG freight trains pass here per day and 2 to 4 additional trains per week pass here between December and March for grain transportation. The City does not challenge this evidence.

[77] With respect to future railway operations for the Parc Subdivision, in the Dillon Report, CP is of the opinion that the traffic of goods will increase by 51 percent by 2025. The total number of daily trains will increase in the future, as well as 2 to 4 additional trains per week between December and March for grain transportation. The parties did not provide information about the increase in service of the RTM's trains.

[78] Integrating road crossings into existing boarding platforms would avoid the installation costs of additional protection systems. Moreover, users would only have one option for crossing the railway right-of-way, thereby eliminating the risk of longitudinal trespassing and simplifying user access to the RTM's boarding platforms.

[79] Given that, under the obligations prescribed by the RSA, rail transportation has precedence over road users, rail transportation will not be affected by the addition of road crossings. Therefore, the addition of at-grade road crossings, as indicated by CP, will not create any negative impact on the current railway operations or on those anticipated in the future.

[80] From the users' point of view, increasing the number of freight trains will have little or no impact on users who wish to use the road crossings, as the freight trains pass outside the rush hours during which the RTM operates its trains and the vast majority of users will be using the crossings during the hours of service of the passenger trains.

[81] As for the road crossing requested at the de l'Épée location, it is a new crossing that will allow direct access to the future Outremont campus of the Université de Montréal. The crossing will be equipped with an automatic protection system as prescribed by regulation. Similar to the Ogilvy and Henri-Bourassa road crossings, rail transportation has precedence over road users, meaning that the addition of a road crossing at the de l'Épée location will not have a negative impact on current or future 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

[82] CP is of the opinion that the risk of an accident at a road crossing increases based on the number of tracks to cross, and that, for the Ogilvy, Henri-Bourassa and de l'Épée locations, this risk is six times greater than if there was only one track, as indicated in the Dillon Report.

[83] Given that the freight and passenger train pass-bys will occupy road crossings for short periods of time, the wait time for users will be minimal. Thus, the risk that users adopt dangerous behaviours at those locations is low. If users follow the signals, the risks are therefore limited.

[84] CP, in the Hatch Report, submits that the proposition to construct the Ogilvy and Henri-Bourassa road crossings so that they are adjacent to the RTM's stations runs the risk of encouraging users to use the railway right-of-way between boarding platforms and at-grade road crossings. CP reiterates this risk in a subsequent update dated March 28, 2019. TC also indicates this possibility. To mitigate this risk, the City proposes, in a March 13, 2019 updated version to the CANAC Report, to install a rubber anti-trespassing system inside the railway right-of-way in order to discourage users from accessing it between the boarding platforms and the road crossings.

[85] However, the longitudinal trespassing problem is greatly reduced if the requested crossings are constructed so that they are integrated into the RTM's boarding platforms. Considering the element of safety, it is reasonable to conclude that at-grade road crossings integrated into the RTM's existing infrastructure are suitable as they will be adequate and appropriate for the purposes for which they are intended and installed.

[86] With respect to the requested road crossing at the de l'Épée location, the installation of an automatic protection system, as prescribed by regulation, will contribute to reducing the risk of railway accidents. Furthermore, this road crossing does not present a risk of longitudinal trespassing because there will not be a road crossing adjacent to it.

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

[87] Although the parties did not submit any arguments regarding this, there is no reason to believe that integrating road crossings into the RTM's existing infrastructure and adding a crossing to the de l'Épée location would have an impact on the people in the area immediately surrounding these crossings.

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)

[88] Although CP did propose grade separation scenarios passing over the railway line at the Ogilvy, Henri-Bourassa and de l'Épée locations, there is no reason to believe that technical restrictions would prevent the construction of road crossings at the requested locations.

Conclusion

[89] The Agency finds, in light of the above, that adding the Ogilvy and Henri-Bourassa road crossings will not have a negative impact on CP's and CFQG's current and future railway operations. The Agency also finds that the risk to safety will be limited if the Ogilvy and Henri-Bourassa crossings are integrated into the RTM's existing infrastructure, and that the risk posed by the number of tracks is reduced through short wait times and the regulatory requirements regarding the protection of those road crossings.

[90] With the addition of these crossings, the flow of travel will be improved; users will have access to better controlled and safer road crossings, which will comply with applicable regulations.

[91] The anticipated increase in the frequency of the RTM's service will not be affected by the addition of the road crossings because RTM's trains stop at these stations, whether or not there are at-grade road crossings.

[92] With respect to the road crossing requested at the de l'Épée location, taking into account the risk to safety and the impact on railway operations, an at-grade road crossing is suitable in the circumstances.

[93] Accordingly, the Agency finds that at-grade road crossings are adequate and appropriate for the purposes for which they are intended and installed at the Ogilvy, Henri‑Bourassa and de l'Épée locations.

IF THE AGENCY AUTHORIZES THE CONSTRUCTION OF THE ROAD CROSSINGS, HOW SHOULD THE COSTS OF CONSTRUCTION AND MAINTENANCE BE APPORTIONED?

Positions of the parties

THE CITY

[94] The City states that residential and commercial development and the creation of employment lands are the main reasons why these crossings are needed.

[95] The City submits that the apportionment of costs must be done based on the relative benefits to each of the parties, that is, for itself, the protection of the public and facilitation of movement of the population around the railway right-of-way, and, for CP, the lowering of the risk of railway accidents and improving the safety of persons.

[96] The City states that it proposes an apportionment based on the Resource Tool. The City suggests, for the construction costs, an apportionment of 85 percent to itself and 15 percent to CP on projects primarily due to road development.

[97] The City proposes, with respect to maintenance costs, that CP be responsible for costs related to the operation of railway equipment and to signage for each at-grade road crossing and that the City will be responsible for maintenance and repair costs for the at-grade road crossings and road traffic signs.

[98] The City submits that the Agency has discretion to apportion construction costs, and refers to the Agency's Decision No. 40-R-2018. It also refers to the following Agency decisions with regard to the factors to be considered in apportioning the costs: Decision No. 517‑R‑2003 (Regional Municipality of York v. CN) [apportionment of costs for the reconstruction of a road crossing], Decision No. 224-R-2009 (City of Belleville v. CP) [apportionment of costs for the reconstruction of a road crossing] and Decision No. 40‑R‑2018 (construction of a grade separation and apportionment of costs).

CP

[99] CP submits that it will not benefit from the construction or maintenance of these crossings. CP also submits that, given that the City is requesting the new road crossings and CP's right-of-way has existed for 100 years, the Agency does not need to consider the respective benefits of the requested crossings. According to CP, the City should be responsible for the entirety of the costs.

[100] CP indicates that the Resource Tool is a guide for grade separations, but that it does not apply to at-grade road crossings. CP adds that the Agency decisions the City is referring to are not applicable, and that in one of these decisions, the Agency found that the applicant was responsible for the entirety of the costs.

[101] CP submits that, alternatively, in analyzing the benefits to each party from the construction of the requested at-grade crossings, it would not stand to gain any benefit from them. It states that there will indeed be a significant negative impact on its railway operations. CP specifically disputes the argument that the requested at-grade road crossings will reduce the risk of accidents and will contribute to users' safety. CP is rather of the opinion that the crossings will decrease railway safety and increase the risk of accidents.

[102] CP objects to bearing the costs of construction and maintenance, specifically with respect to railway equipment and signage. CP contends that such a conclusion would be contrary to the principles applied by the Agency because the benefits are for the City.

[103] CP submits that if the Agency finds that it should assume part of the construction or maintenance costs of any of the requested road crossings, it reserves the right to ask the Agency to apportion the costs to third parties that could be held liable.

[104] CP adds that, in estimating the cost of the work, the City has underestimated the cost of some of the work such as the raising of the tracks at the Henri-Julien and Saint‑Dominique requested road crossings, which presents an incomplete picture of the situation in order to assess the suitability of the application.

Analysis and determinations

[105] 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 crossings.

[106] 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;
  • any other factor that it considers relevant.

[107] 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.

[108] There is a distinction between the present case and that of Decision No. 40‑R‑2018 in which the Agency found that there was a need for a crossing at the proposed location. In that case, it was a question of converting a private crossing into a road crossing. In that Decision, the Agency also determined that the proportion of the liability for construction costs to be borne by each party was 50 percent as each party benefited equally from this crossing. It should be noted that, in the present case, the circumstances are different.

[109] The evidence reveals that the City will stand to gain all the benefits from the requested road crossings because they are intended for urban development in the areas concerned and the facilitation of people's mobility.

[110] Nothing in the evidence leads to the conclusion that CP could benefit from the addition of these crossings. Although the additional crossings will facilitate people's mobility on both sides of the railway right-of-way, there is nothing that would suggest that the additional road crossings will eliminate or reduce the risk of railway accidents related to trespassing or the risks related to pedestrians who adopt dangerous behaviours.

[111] Although the City claims that the road crossings will be safer for persons at trespassing locations and will thus benefit CP, the Agency accepts that there are reasonable alternatives to the requested road crossings and that, as TC indicated, adding the road crossings will not be an automatic and permanent solution to the problem of trespassing on the railway right-of-way.

[112] Even if the grade-separated road crossings will allow CP to maintain the level of railway operations, the Agency is of the opinion that the addition of road crossings at these locations offers no real benefit to CP as the construction of a grade separation does not eliminate an existing at‑grade crossing. Relative benefit is a consideration in the Resource Tool. While the requested crossings are conducive to the flow of travel of users from an urban development perspective, they are not a necessary addition and would have no positive impact on CP's railway activities.

HENRI-JULIEN AND SAINT-DOMINIQUE REQUESTED ROAD CROSSINGS –OUTREMONT SPUR

[113] Although the City suggests an apportionment of costs based on the Resource Tool on projects primarily due to road development, the Resource Tool provides that the costs of construction and maintenance of a basic grade separation on a new route are normally paid in full by the party deciding to construct the new route. Given that the City is the only beneficiary of the road crossings and that the crossings are new routes, the Agency finds that the City is responsible for the entirety of the costs of the construction and maintenance of the grade separations.

OGILVY, HENRI-BOURASSA AND DE L'ÉPÉE REQUESTED ROAD CROSSINGS –PARC SUBDIVISION

[114] The City proposes an apportionment of costs based on the Resource Tool on projects primarily due to road development. Given that the Agency found that at-grade road crossings are adequate and appropriate for the purposes for which the crossings are intended and installed, the Resource Tool does not apply.

[115] The addition of road crossings at these locations offers no obvious benefit to CP.

[116] In light of the above, the Agency finds that the City is the main beneficiary of the construction of these road crossings. Accordingly, the Agency determines that the City is responsible for the entirety of the costs of the construction and maintenance of the requested at-grade road crossings.

CONCLUSION

[117] In light of the above, pursuant to subsection 101(3) of the CTA and section 16 of the RSA, the Agency authorizes the construction of the road crossings as follows:

  • For the Henri-Julien (mileage 4.86) and Saint-Dominique (mileage 5.08) road crossings on the Outremont Spur:

In light of the circumstances of this case, the Agency authorizes the construction of grade separations at these locations because at-grade road crossings, such as those requested by the City, would not be adequate and appropriate for the purposes for which they are intended and installed. The Agency determines that the City is responsible for the entirety of the costs of the construction and maintenance of those grade separations.

  • For the Ogilvy (mileage 6.13), Henri-Bourassa (mileage 8.83) and de l'Épée (mileage 5.51) road crossings on the Parc Subdivision:

In light of the circumstances of this case, the Agency authorizes the construction of at-grade road crossings, such as those requested by the City, because they are adequate and appropriate for the purposes for which they are intended and installed. However, the Ogilvy and Henri-Bourassa road crossings will have to be constructed so that they are integrated into the RTM's boarding platforms. The Agency determines that the City is responsible for the entirety of the costs of construction and maintenance.

Member(s)

Scott Streiner
Elizabeth C. Barker
J. Mark MacKeigan
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