Decision No. 845-R-1993

December 6, 1993

December 6, 1993

APPLICATION by the Ministry of Transportation of the province of Ontario for authority to construct an overhead bridge to carry the "highway", namely Highway 11/17N, across and over the tracks of the Canadian Pacific Limited at mileage 8.88 Kaministiquia Subdivision, in the township of Paipoonge, Thunder Bay, in the province of Ontario.

File No. R 8050/102-008.88


BACKGROUND

On December 17, 1991, the Ministry of Transportation of the province of Ontario (hereinafter the MTO) applied to the National Transportation Agency (hereinafter the Agency) for authority to construct an overhead bridge to carry Highway 11/17N across and over the tracks of Canadian Pacific Limited (hereinafter CP) at mileage 8.88 Kaministiquia Subdivision, in the township of Paipoonge, in the province of Ontario.

In this particular case, the Agency must rule on the responsibility for the cost of constructing and maintaining the overhead bridge.

POSITION OF THE MTO

The MTO advised that in 1975 the need for improved highway links from Thunder Bay westerly was identified in a report entitled "Thunder Bay Transportation Study". The report recommended that a four-lane divided highway be constructed westerly to accommodate increasing traffic volumes. Of the four options that were identified and evaluated to upgrade the highway links from Thunder Bay westerly, the analysis concluded that the development of a new highway within the Highway 11/17 corridor would be the best alternative to address the existing and future highway capacity deficiencies. According to the Environmental Status Statement and a subsequent planning study, the best location for the new highway would be approximately three to four kilometers north of the existing Highway 11/17. The location will bypass all the built-up area along the existing highway. It will, however, be sufficiently close to attract much of the traffic. The proposed highway will be designed for eventual freeway standards. The forecasted traffic volume along Highway 11/17N is 5,900 vehicles per day. Traffic volume on the existing highway will be 6,000 vehicles per day. The average number of train movements is 25 per day.

There is presently an overhead bridge carrying the existing Highway 11/17 across and over the tracks of CP at mileage 7.19 Kaministiquia Subdivision. This overhead bridge will remain in use after Highway 11/17N is built. There is an existing level crossing at mileage 8.58 Kaministiquia Subdivision protected by flashing lights, bells and crossing gates. Traffic volume at that crossing is expected to grow modestly once Highway 11/17N is opened.

The proposal is to construct a three-span, two-pier structure over the existing two-track CP mainline. The MTO is of the opinion that this project will provide a parallel facility to the existing highway. Therefore, the MTO is of the view that CP should pay at least five percent of the cost of the structure, as was established in Order No. 109714 of the Board of Transport Commissioners for Canada, dated December 3, 1962 for the existing overhead bridge crossing at mileage 7.19 Kaministiquia Subdivision. The MTO further advises that the proposed overhead bridge benefits CP as the alternative, a level crossing, is less desirable due to a 45-degree skew angle, signalization, high speed traffic and overall safety. The overhead structure would eliminate accidents that could occur if the alternative, a level crossing, were constructed. Cost savings would also accrue to CP since signal devices would not be required.

By subsequent correspondence, the MTO advised that access to the new highway will only be at sideroads, which occur at a three to five kilometer frequency. The highway project is 12.8 kilometers long and will have only four access points - Belrose Avenue, Mapleward Road, Twin City Crossroads and 10th Sideroad. The existing Highway 11/17 within the same area has 150 entrances and 13 sideroads. Since the proposed highway is designated as "Controlled Access", no entrances will be allowed, whether they are for private households or commercial sites. The proposed highway is not being designed as a development road; rather, it is designed to alleviate capacity and safety problems on the severely constrained existing highway.

With respect to the current level of service being measured at level "D", the MTO states that its traffic forecasts indicate that without an increase in capacity of the TransCanada Highway system through this area, the existing highway will be operating within level of service "E" by the year 1997. At this level, speeds are reduced to a low uniform value and freedom to maneuver within the traffic stream is very difficult. Comfort and convenience levels are extremely poor and driver frustration is generally high.

In addressing CP's comments that Highway 11/17N is "an extension of the Thunder Bay Harbour Access Route" and cannot be considered an improvement of the existing Highway 11/17, the MTO submitted that the Harbour Expressway to which CP is making reference was an undertaking of the City of Thunder Bay and has always been under municipal jurisdiction and control. Highway 11/17N will have an easterly terminus with the Thunder Bay Expressway and the existing Highway 11/17, as the fourth leg of an intersection which coincides with the Harbour Expressway, because it is a logical location based on the overall traffic network and local/regional travel demand. Locating the easterly terminus at that location will serve to minimize the number of intersections on the Thunder Bay Expressway which will optimize highway operations and safety. The Highway 11/17N project is, therefore, not considered to be simply an extension of a City of Thunder Bay facility.

With regards to the rationale for the alignment, the MTO states that previous studies have confirmed that widening the existing facility from two to four lanes or four-laning (with a median) are significantly less desirable and considerably more costly alternatives to an independent parallel alignment. With respect to entrances for private households or commercial sites, the MTO acknowledged that such entrances would not be allowed as the facility will have a controlled-access designation.

The MTO concluded that CP is not in a position to challenge the justification and requirements for the proposed system improvements. The railway company was given ample opportunity to comment during the study process. Since the MTO has officially received environmental clearance to proceed with the construction, it considers the matter of justification and requirements for the undertaking to be closed. Documentation clearly shows that the purpose of the undertaking is to address existing and future capacity and operational problems on existing Highway 11/17, and that the selected alternative of a parallel new alignment was found to be the best way of addressing these problems.

POSITION OF CP

CP responded that it is not prepared to participate financially towards the construction or future maintenance of the proposed new overhead bridge since it is a new bridge on a new route, and that it will not benefit from this proposed highway.

CP stated that the MTO acknowledges that the proposed highway will be an entirely new route. In fact, CP states that the new overhead bridge is part of a proposed new road required for the expansion of the highway system and is in no way a reconstruction of the existing overhead bridge at mileage 7.19 Kaministiquia Subdivision. The existing highway and grade separation at mileage 7.19 will remain open to vehicular traffic after the construction of the proposed overhead bridge at mileage 8.88. CP further noted that the proposed overhead bridge will be located approximately 2.7 kilometers away from the existing overhead bridge at mileage 7.19.

With respect to the alternative of a level crossing on the proposed new route, CP stated that the MTO did not consider a crossing at grade to be an alternative in its 1979 study. CP also advised that a level crossing on the proposed new route is not a genuine alternative and was suggested only to support the MTO's request for funds from CP towards the construction of the proposed overhead bridge. CP further noted that all of the alternatives examined by the MTO in 1979 contemplated retention or expansion of the grade separation at mileage 7.19. In fact, CP states that if a level crossing equipped with crossing warning signals were to be constructed, the MTO as the junior party would be responsible for the costs of construction and maintenance of the crossing and the signals.

CP stated that it has no objection to the construction of the overhead bridge provided that all costs of construction, maintenance and replacement are borne by the MTO.

In further correspondence, CP, commenting on section 2.2 of the Environmental Study Report which provides that the current level of service "D" indicates that improvement to the existing route "will soon be necessary", states that in effect the proposed undertaking is not necessary at the present time.

CP submitted that the proposed new route which the MTO acknowledges to be a "new transportation corridor" is in fact an extension of the Thunder Bay Harbour Access Route and cannot be considered an improvement of the existing Highway 11/17. CP added that the new route is not required because the existing Highway 11/17 is undersized, but because so many private entrances have been allowed on the highway to make it less efficient, particularly for truck traffic, thereby requiring the road authority to deny any further access. CP stated that the mere fact that a highway does not have direct entrances to new commercial or residential developments does not mean that it will not allow access for such development. In this case, access will be available from Belrose Avenue, Mapleward Road, Twin City Crossroads and 10th Sideroad. This limited access pattern is common in highways serving developing districts. CP stated that with respect to traffic flow, the proposed undertaking is not required at present.

Finally, CP submitted that there is no justification for CP to contribute financially to this project. It further stated that the concepts of "present requirement", "quot;, ", "quot;new route", and "benefit to the railway" were not raised during the preliminary consultation program because CP had no objection in principle to the project. Cost sharing was not an issue at that time. CP also stated that it has the right to question the necessity of the project if CP is being asked to make a substantial contribution to a major public work.

FINDINGS AND CONSIDERATIONS

Pursuant to section 204 of the Railway Act, R.S.C., 1985, c. R-3, the Agency may assign costs in the way it determines appropriate for any project authorized under sections 201 and 202 of the Railway Act. The Agency is of the view that parties should attempt to come to an agreement on all the issues relative to the project, including the apportionment of costs. The Agency may issue an order on the basis of any agreement reached between the parties. However, should the parties be unable to reach an agreement, the Agency will rule on any outstanding issues based on submissions received from the parties concerned. Every case will be assessed on its own merits.

In determining the responsibility for the cost of constructing and maintaining the overhead bridge, the Agency must consider, among other things, the purpose of the project as well as the benefits which may accrue to each party.

The Agency notes that the main concern is the capacity of the existing highway to handle traffic on account of the many entrances due to the considerable pressure for additional residential and commercial uses experienced by the City of Thunder Bay.

The Agency also notes that the main purpose of the proposed highway is to allow traffic to bypass the congested commercial and residential areas; this bypass may eventually become a four-lane divided highway. Existing Highway 11/17 will retain its function with the exception that most of the through traffic would use Highway 11/17N.

The Agency further notes that the functions of the proposed Highway 11/17N will be entirely different from the functions that will be sustained by Highway 11/17 which will be arterial in nature and will carry large volumes of traffic at moderate speeds providing service to the adjacent lands. The proposed highway will be designed to freeway standards with controlled access. A proposal to widen existing Highway 11/17 to four lanes along with the upgrading of secondary roads was rejected as it would not meet the expected requirements of a freeway.

In noting the purpose of the proposed Highway 11/17N, the Agency is of the view that the proposed grade separation represents a new crossing that is required to meet the freeway needs of Highway 11/17N which cannot be accommodated by the existing facilities. The construction of the new crossing will benefit the travelling public and will have no impact on the railway company operations.

Therefore, the Agency is of the opinion that the costs of construction and maintenance of the grade separation shall be paid by the MTO as the party proposing to construct Highway 11/17N.

An order to this effect will be issued.

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