Decision No. 40-R-2018
APPLICATION by the Corporation of the City of Cambridge and the Corporation of the City of Kitchener against the Canadian Pacific Railway Company (CP) pursuant to subsections 101(3) and 101(4) of the Canada Transportation Act, S.C., 1996, c.10, as amended (CTA) and section 16 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA).
 On March 2, 2017, the applicants filed an application concerning a road crossing located at mileage 7.40 of CP’s Waterloo Subdivision. The applicants seek the Agency’s authorization of an at-grade road crossing, and an Agency order regarding the apportionment of costs for the construction, alteration, operation, or maintenance of the crossing.
 If approved, the applicants’ request would result in the conversion of the existing private crossing located at mileage 7.40 of CP’s Waterloo Subdivision to a public road crossing, built to current crossing and safety standards.
 CP does not oppose the crossing; however, it argues that a suitable crossing would be grade‑separated, and not an at-grade crossing as requested by the applicants.
 The Agency will address the following issues:
- Should the Agency authorize the construction of a road crossing at the proposed location?
- If so, is the proposed road crossing a suitable crossing?
- If so, how should the Agency apportion the costs for the construction, alteration, operation, and maintenance of the proposed crossing?
 For the reasons set out below, the Agency authorizes the construction of a crossing at mileage 7.40 of CP’s Waterloo Subdivision; finds that a grade separation is the most suitable crossing for that location; and determines that the costs of construction should be apportioned equally between the applicants and CP.
 The applicants are the road authorities for the roadway that is to be publicly assumed. Cambridge is located to the east and north of the crossing, while Kitchener is to the south and west. The municipal limits between Cambridge and Kitchener abut CP’s track at that location.
 CP’s Waterloo Subdivision extends over 11.3 miles linking CP’s Galt Subdivision to the Guelph Subdivision of the Goderich-Exeter Railway Company in Kitchener (Ontario). The Waterloo Subdivision is part of the main international export route for the transportation of automotive products to the United States of America.
 Toyota Motors Manufacturing Canada (Toyota) operates an automobile manufacturing plant in Cambridge, and has been shipping different vehicles from the plant in various types of rail cars since 1997. In or around 2000, CP, at the request of Toyota, expanded its Maple Grove Yard (MGY). The track north of the north switch at Maple Grove, which includes mileage 7.40, is the switching lead for the MGY.
 In accordance with the Memorandum of Understanding (MOU) between the Agency and Transport Canada (TC) on the coordination of efforts related to crossings, the Agency provided a copy of the application to TC seeking comments respecting any safety concerns that it may have with the proposed crossing.
 On August 17, 2017, TC submitted comments. TC indicated that, in principle, it had no objection to the proposed construction of the public road. However, TC highlighted that the proposed grade crossing would be subject to the Grade Crossing Regulations, SOR/2014-275 (GCR), specifically section 97, which deals with the unnecessary activation of the warning system and the obstruction of public grade crossings. TC also commented on the possible need to implement measures to mitigate the risks associated with the non-compliance of section 97 of the GCR, the potential queuing of road vehicles over the crossing surface, and the need for the use of the train bell and whistle pursuant to the Canadian Rail Operating Rules (CROR).
 Pursuant to Decision No. LET-R-62-2017, the Agency provided the parties with an opportunity to submit their comments on TC’s safety-related comments. CP filed its comments on October 4, 2017, and the applicants filed theirs on October 5, 2017.
 In Decision No. 80-R-2013, the Agency found that the owners of the lands, Benninger Holdings Inc. (Benninger) and 575482 Ontario Limited, were entitled to a private crossing pursuant to section 102 of the CTA as their lands were each divided by the railway line. Accordingly, CP was ordered to provide a single suitable crossing at or near mileage 7.40 of the Waterloo Subdivision. CP was ordered to pay for the costs of construction and maintenance of the suitable crossing.
 On or around September 6, 2014, CP constructed a private crossing consisting of hardwood planks and gravel approaches. The crossing provides access from King Street East to the Benninger lands and the lands owned by 575482 Ontario Limited. Benninger has an easement over the lands of 575482 Ontario Limited to the north of the King Street East access point, which provides for a right-of-way for both properties.
 In Decision No. 154-R-2015, the Agency found that the existing private crossing was suitable following an application from Benninger and 575482 Ontario Limited for a determination of what constitutes a suitable private crossing.
 In Decision No. 389-R-2016, the Agency dismissed without prejudice the application filed by the applicants for authority to construct an at-grade road crossing located at mileage 7.40 of CP’s Waterloo Subdivision, and for the apportionment of costs, due to a fundamental defect in the application.
 The lands owned by Benninger and 575482 Ontario Limited form part of a proposed land development by Intermarket CAM Limited (Developer), for which zoning and appropriate approvals have been granted. The Creekside Development (Phases 1A and 1B) is one component of the overall proposed development and is included in the Developer’s broader East Side Lands Stage 1 development plan.
 The Region of Waterloo, in cooperation with Cambridge, Kitchener, the Township of Woolwich and the Grand River Conservation Authority jointly conducted a Master Environmental Servicing Plan (MESP) and Community Plans for the East Side Lands.
 The need for, and benefits of, a road crossing at mileage 7.40 of the Waterloo Subdivision were recognized in the MESP, whose purpose is to advance the development of the land by assessing factors such as transportation and related infrastructure, integrated land use, environmental impacts, and community planning.
 The infrastructure required to support urban development was identified as part of the MESP’s transportation assessment. The transportation assessment included the evaluation of five alternatives for the provision of service and public access for Stage 1 of the East Side Lands. Most of the alternatives included an access point from King Street East, across CP’s railway line at approximately mileage 7.40, to the Creekside Lands.
 While the options and benefits were taken into consideration, the MESP, the findings favoured a plan that includes the provision of public road access to the development lands over a crossing at mileage 7.40, thereby connecting the lands to, and providing public access to and from, King Street East (Regional Road 8). This East-West Collector Road (to be known as Intermarket Drive) is to link Cambridge East, beginning from its municipal boundary with Kitchener at the proposed railway crossing, to the future North-South collector road. The favored plan also specifically includes the construction of an at-grade crossing on the Intermarket Drive to enable public connectivity to King Street East.
 On September 30, 2014, the Developer filed an application to amend the City of Cambridge’s zoning by-law and propose a Plan of Subdivision for the Creekside Development. In May 2015, Cambridge City Council approved the amendment of Zoning by-law 71-15 which rezoned the Creekside Development lands from “agricultural” to “prestige industrial”, thereby permitting the land to be used for a variety of industrial park uses.
 The 2015 amendments to Zoning by-law 71-15 also authorized the development of the land in question and included some limited access onto Maple Grove Road. However, it also imposed a “Holding” provision on both Phase 1A and 1B of the Creekside Development pending its anticipated connection with the connector road network and construction (to municipal standards) of a second municipally/publicly-owned right-of-way that was defined as a second public access connector out of King Street south of CP’s railway line and extending over the crossing within Kitchener’s city limits. The Holding provision prevents the issuance of building permits until such time as the conditions in respect of public access are met.
 Construction of the development is planned along on the north side of Maple Grove Road, east of Highway 8 (King Street) in Cambridge. The proposed development consists of 565,450 ft2 of Business Park and 300,000 ft2 of data centre. Access to the development will be provided via the existing access to the Region of Waterloo Operation Centre on Maple Grove Road and a new access point on King Street, and via a future new northern connection to Allendale Road.
 The holding provision from 2015 was subsequently lifted for Phase 1A development in 2016, through by-law 172-16, which gave approval for the development of the land to proceed without the need for a determination from the Agency. The Holding provision remains in effect for Phase 1B.
 The owner of the Benninger lands has closely followed the Cambridge planning process and proposed a plan for the subdivision and rezoning of his lands. The Benninger lands site bears the designation of Employment corridor in the Region of Waterloo’s Official Plan. The Benninger lands are subject to a holding provision that is to remain in effect until the site obtains a municipal water supply and sanitary sewers; and have frontage and vehicular access on a municipal/publicly‑owned right-of-way; these must all be constructed in accordance with full municipal standards and connected to the collector road network, to the satisfaction of Cambridge.
 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.
 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 the 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 the construction, alteration, operational and maintenance costs to be borne by each person, and that liability shall be apportioned accordingly.
 In its determinations on crossing applications, the Agency may rely in part on its 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.
SHOULD THE AGENCY AUTHORIZE THE CONSTRUCTION OF A ROAD CROSSING AT THE PROPOSED LOCATION?
 According to the applicants, the proposed crossing is required to enable construction on the owner’s land, and for public access to the Creekside Phase 1B development. Both access and authority are required to release the holding provision related to the Phase 1B development.
 The applicants submit that both parties agree that the existing private crossing should be converted into a road crossing. They specifically refer to CP’s letter dated September 18, 2014, wherein CP stated that: “In the future, should Creekside decide to pursue a section 101 (road) crossing, CP will cooperate with the local authorities and developers to change the status to a section 101 (road) crossing.”
 However, the applicants submit that they have been unsuccessful in negotiating an agreement with CP regarding the terms of proceeding to convert and reconstruct the current private crossing into a suitable road crossing.
 CP does not oppose the establishment of a road crossing at the location, provided that the authorized crossing is suitable for that location.
 In light of the above, the Agency finds that there is a need for a crossing at the proposed location and authorizes its construction.
IF SO, IS THE PROPOSED ROAD CROSSING A SUITABLE ROAD CROSSING?
 The Federal Court of Appeal, in Fafard v. Canadian National Railway Company,  FCA 243 (Fafard), stated that “A suitable crossing is a crossing that is adequate and appropriate for the purposes for which it was intended and installed.”
 In Fafard, the Federal Court of Appeal stated that the concept of “suitable crossing” includes an element of safety. The Agency, in Decision No. 117-R-2011, found that safety must be considered before deciding on the suitability of a crossing.
 In Decision No. 448-R-2004, the Agency noted that while the suitability of a crossing is to be determined on a case-by-case basis, the concept of a “suitable crossing” must take into account, among other things, the applicant’s as well as the respondent’s intended use of the crossing. Moreover, the Agency, in Decision No. 676-R-2002, found that the interaction of a railway company and the roadway at the crossing will impact the operations of both the users of the railway and the users of the roadway, as this is a consequence of the coexistence between the modes of transport. The requirements for the crossing and the resulting impacts on railway operations have to be assessed as part of the suitability of the proposed crossing.
 In Decision No. 688-R-2004 and Decision No. 65-R-2008, the Agency stated that the determination of what constitutes a suitable crossing includes, among other things, whether a crossing needs to be grade separated. Key considerations in making this determination are present‑day needs and cross-product numbers, safety, and intended use of the crossing.
Positions of the parties
 The applicants submit that a suitable crossing would be an at-grade crossing with an active warning system (i.e. lights, bells, and gates).
 CP submits that the proposed location is not well-suited for an at-grade crossing and that a grade‑separated crossing would be more suitable.
PRESENT-DAY NEEDS AND CROSS-PRODUCT NUMBERS
 The applicants state that in 2014, Paradigm Transportation Solutions Limited (Paradigm) prepared a Traffic Impact Study (TIS) as part of a transportation assessment. They also state that the TIS was based on the premise that a new road crossing would be constructed on the Intermarket Drive from King Street East, and that the Creekside Development (Phase 1A and 1B) would be constructed and occupied by 2025, using a 2017 construction baseline.
 The applicants suggest that a realistic time frame to assess “present-day needs” for the purposes of developing traffic forecasts would be mid-2018 to 2019 (the expected land occupancy). According to them, this time frame would capture CP’s planned increase in its rail movements; it would represent a definable point in time for the purposes of forecasting vehicular traffic movements, given that the development of the adjacent land would have likely already taken place and been substantially completed; and lastly, it would be a realistic time frame for the completion of the construction of an at-grade crossing satisfying both “present-day needs” and responding to the issues raised by TC.
 The applicants provide traffic forecasts for various scenario configurations. The applicants, using the assumption of 2018-2019 for construction and occupancy, and 2022 for the completion of Phase 1, anticipate that the Average Annual Daily Traffic (AADT) will be within the range of 1,429 to 4,940. The applicants rely on Paradigm’s TIS projections to support the present-day needs analysis.
 The applicants are of the view that, taking into consideration that the AADT and cross-product numbers are well below the generally accepted threshold of 200,000, a suitable crossing to meet present-day needs would be an at-grade crossing. The applicants refer to Decision No. 97‑R‑2013, Decision No. 65-R-2008, Decision No. 73‑R‑2008, and Decision No. 117-R-2011 to support their contention.
 The applicants disagree with CP in a number of areas regarding the vehicular traffic estimations, in particular CP’s allegation that the Paradigm TIS calculations are underestimated. The applicants submit that the Paradigm TIS followed professional standards, and add that CP’s calculations are based on incorrect assumptions about traffic. As such, they contend that CP’s argument is misleading. In addition, the applicants dispute the present-day rail traffic numbers submitted by CP which, according to them, are inconsistent with the expert studies, research, and presentations made by CP.
 The applicants also deny CP’s allegations that the Paradigm TIS calculations fail to take into account the development of the East Side Lands and the potential for the development possibly extending to, or past, 2031. The applicants specifically refer to a letter from Paradigm, dated May 8, 2017, which discusses traffic forecasts that include Phase 2 development information regarding the lands extending to the north to Allendale Road, and further states that primary access to the Phase 2 development will be via Allendale Road.
 Finally, the applicants are of the view that CP’s “speculative projection” to a distant future is inconsistent with the Agency’s “present-day needs” principle. They add that in Decision No. 397‑R-2015, the Agency found that “[…] the time at which the reconstruction is to be completed, which is the fall of 2021, is considered ‘present need’ for the purposes of estimating AADT […]”.
 CP states that there is no traffic at the current private crossing as the approaches are blocked by concrete barriers, and that the only actual activity at the current private crossing is the movement of CP’s trains, which average about 9 train movements per day. CP explains that in 2015, and during certain periods in 2016, daily train movements varied and ranged from 4 to 107, as CP was experiencing issues of rail car shortages and fleet management, among other things, due to the rail car pooling company. CP also explains that in the latter part of 2016, as a result of improved operations of the rail car pooling company, movements have stabilized and now range between 20 and 25 movements per day.
 In light of a planned increase in production at the Toyota Plant in 2018-2019, CP anticipates that its rail movements will increase to an average of 30 to 35 per day. According to CP, this number may vary depending on factors such as periodic rail car shortages, variation in production volumes and types, seasonality, and manufacturers’ hold.
 CP questions the applicants’ reliance on Paradigm’s TIS traffic analysis. CP states that it commissioned another firm, Hatch, to review and update projected traffic volumes for the Creekside Business Park Development based on the most recent information on land use. CP also states that because the Creekside Business Park Development is being undertaken in phases, the Hatch Traffic Study analyzes and calculates projected traffic volumes for both the near term (2018‑2025) and the long term (2028-2031) horizons.
 According to CP, the Hatch Traffic Study draws conclusions regarding traffic projections that are comparable to those found in the MESP (that was commissioned by the Region of Waterloo and others), but not to those in the Paradigm TIS. CP therefore concludes that the projections made in the Paradigm TIS appear to be understated.
 CP submits that upon the construction of Phase 1A in 2018 and Phase 1B in 2019, and with complete occupation to take place between 2018 and 2025, the AADT will increase from 0 to a range of 6,600 to 10,100, depending on which scenario is chosen.
 CP argues that in all but one scenario, the cross-product will significantly exceed the 200,000 threshold. CP indicates that for the sole scenario reporting below the threshold, the cross-product is 198,000.
 CP identifies several Agency precedents where the Agency, in its consideration of present-day needs, included future traffic projections. CP argues that the time frame used in the Hatch Traffic Study meets the horizons generally considered by the Agency. CP also relies on a report that it commissioned from Dillon Consulting Limited, entitled “Suitability Analysis for a Public Crossing at mp 7.4” (Dillon Report), which concluded that a grade separation would be more appropriate than an at-grade crossing with an active warning system in light of the specific circumstances of the proposed crossing. In addition, CP relies on a report that it commissioned from Dillon Consulting Limited, entitled “Risk Assessment – Proposed Public At‑Grade Crossing at MP 7.4 of the Waterloo Subdivision, Ontario” (2016 Dillon Report), which concluded that, when considering the safety risk, the environmental risk, and the level of service and operational risk, CP’s overall risk profile is “very high”.
 In response to the applicants’ allegations that CP’s Hatch Traffic Study is inflated and that the Agency should instead rely on the Paradigm TIS, CP contends that the MESP should be used given that it reflects the long-term and considers the development of the East Side Stage 1 Lands, of which the Creekside Business Park forms only one part. CP maintains that the focus of the Paradigm TIS traffic analysis was on Phase 1 of the development, which resulted in a shorter time frame for which to estimate traffic projections.
 The applicants interpret TC’s comments to mean that it is not opposed to the proposed crossing and does not consider an at-grade crossing at that location to be unsafe. They refer in particular to TC’s letter of August 17, 2017, which indicates that TC has no objection to the proposed construction of the public road. The applicants add that this is in line with TC’s later comments received as part of the 2015 application.
 The applicants submit that both of TC’s letters indicate that the proposed crossing will be subject to the GCR. The applicants add that in its 2015 letter, TC indicated that an at-grade crossing would be sufficient if constructed according to the Grade Crossing Standards (GCS).
 The applicants address the three technical elements identified by TC in its letter of 2017: the queuing of vehicles, the occupation of the crossing, and the use of the train bell and whistle at the crossing.
 First, with regard to the queuing of vehicles, the applicants submit that this was considered in the Paradigm TIS. The applicants add that there is room for 20 cars between the proposed crossing and King Street East. Furthermore, they explain that traffic control signals, interconnected with the railway’s pre-emption signals, could be used as a mitigating measure. However, they are of the view that no such system is required.
 Second, with respect to the occupation of the crossing, the applicants contend that CP’s operations, as well as commercial benefits, do not “trump the existing rights” of the users who will occupy the crossing. The applicants assert that Grade Crossing Predictors could be used to regulate train speed or the activation of the signals. They submit that another option would be for CP to consider and implement other measures such as amending its operations or even adding switches to the south end of the MGY. The applicants suggest that TC’s letter cautioned CP to conform its operation to the GCR and to work to mitigate any issues with them.
 Lastly, with respect to the use of the train bell and whistle at the crossing, the applicants state that there is a prohibition against whistling in the proximity of the proposed crossing, but that they are of the view that TC’s comments are “to manage expectations” and not factors against an at‑grade crossing.
 The applicants add that in the 2015 letter and subsequently in 2017, TC advised that, on safety grounds, it does not oppose an at-grade crossing as long as it is built according to modern GCR, including, as warranted, the provision for an active warning system.
 While the applicants agree that they would benefit most from an at-grade crossing, they contend that CP will also benefit from improved safety and cost savings if it agrees to adjust its operations.
 CP contends that TC’s comments dating from 2015 are not appropriate for the current application as these pre-date by 10 months the filing of CP’s answer to the 2015 application, and that those comments do not provide an opinion or recommendation as to whether there would be safety issues related to an at-grade crossing.
 CP is of the view that the 2017 TC letter identifies elements that complicate having a public road crossing constructed at the proposed location. CP is also of the view that several measures will be necessary to mitigate against the identified risks, and that the most effective mitigation measure is a grade separation.
 CP refers to Fafard where the Federal Court of Appeal indicated that a suitable crossing is one that is suitable for both vehicles and trains. CP indicates that the Agency has, in past decisions, identified numerous factors that are to be considered when determining whether a grade‑separation is the suitable form of crossing.
 With respect to the suitability of an at-grade road crossing, CP relies on the Dillon Report where other site-specific conditions are identified as risk factors in addition to cross-product estimates and proximity to the rail yard. The Dillon Report indicates that an active warning system does not in itself reduce the frequency of accidents. According to the Dillon Report, the site-specific factors applicable to the proposed location support the conclusion that an active warning system cannot mitigate the risk of an accident at an at-grade crossing. Specifically, the active warning system would frequently be activated by switching operations at MGY and because of its proximity to the proposed crossing, which would result in an increased frequency of accidents when compared to other road crossings due to the variability of train movements over the proposed crossing. According to the Dillon Report, consequently, road users’ behaviour could be altered as a result of road users anticipating a certain type of movement when the crossing signal is activated, which could prompt them to cross when another different type of movement is taking place. Due to certain types of movements and the five-minute occupancy rule, the length of time for which the crossing will be occupied may also alter road users’ behaviour. The Dillon Report concludes that an at-grade crossing with an active warning system would not be suitable at the proposed location.
 Further, CP lists the proximity of the proposed crossing to a no-whistling zone, the two percent grade running down from the crossing, the vehicle capacity constraint, long occupancies of slow movements over the crossing, and the increased switching activities as other factors that may impact the safety at the proposed crossing.
INTENDED USE OF THE CROSSING
 The applicants contend that the increase in the number of rail movements as reported by CP, from one train per day in 2000 to 4 to 8 trains per day in 2014, to a projected 118 for the year 2019, is due to CP’s operations.
 According to the applicants, if CP were to adjust its operations and invest in its facilities, an at‑grade crossing could be accommodated. They submit that CP could alter its existing operations by adding stub-end tracks equipped with switches and track to facilitate through movements, run-around movements, and to allow switching from the south end of the yard over Maple Grove Road instead of through the proposed crossing at mileage 7.40. The applicants contend that CP previously admitted in a letter dated August 1, 2012 from MMM Group Limited (MMM Letter) that the addition of switches at the south end of the MGY could be done and that it would reduce the switching movements over the proposed crossing.
 The applicants dispute the findings of a Feasibility Study prepared for CP by Dominion Railway Services Ltd. (DRS) in 2015. They contend that the Feasibility Study does not challenge the safety or the design of the crossing at grade. The applicants claim that the report did not consider the addition of one or more tracks on the bridge over Maple Grove Road, nor did it explore the benefits that this addition may offer. The applicants submit that DRS’ report suggests that other options could be available, but would require significant capital improvements. They also submit that options without such capital investments were not assessed. According to the applicants, the report misconstrues the proposal found in the MMM Letter, dismissing proposals that would allow CP to coexist with and accommodate the proposed crossing.
 The applicants are of the view that under the current circumstances, if there is any requirement for a grade-separated crossing, this can only be attributed to CP. According to them, CP has accrued benefits since the 2001 construction of the MGY that served to improve and augment its service to Toyota, and this amounts to a completely different use of a single track of railway, as has historically been the case.
 Finally, the applicants submit that CP wants a grade separation to eliminate any risk that it would have to vary its operations or incur any yard-related costs.
 CP states that in or about 2000, at Toyota’s request and in consideration of Toyota’s increased production and subsequent shipping needs, it increased its level of service by expanding its infrastructure to what is now the MGY, the current design of which was chosen in contemplation of safety and best use of the limited space. CP adds that the track north of the switch at Maple Grove is the switching lead, and represents a vital element of MGY as it serves to exclusively provide “just in time” transportation to the Toyota Plant and other clients.
 According to CP, at all times since its construction, CP has used the MGY for its pre-tripping activities that entail switching activities that result in rail movements at or over the proposed crossing. CP indicates that activities at the MGY consist of transferring, switching of loaded/empty rail cars, and marshalling of trains.
 CP claims that this is currently the only traffic over the proposed crossing. CP states that in 2015 and 2016, daily rail movements varied significantly from 4 to 107, and that in the latter part of 2016, its rail movements stabilized at 20 to 25 trains per day. CP adds that currently, rail movements are ranging from 2 to 19 for an average of 9 average annual daily railway movements. CP anticipates an operational increase in 2018-2019 to 30 to 35 trains per day.
 CP refers to the 2017 TC letter that lists three issues of concern with regard to the construction of an at-grade crossing; namely, that the crossing will be blocked for an extended period of time each day, the possible queuing of vehicles while the crossing is blocked, and the use of the train bell and whistle.
 CP agrees that it is bound to comply with section 97 of the GCR; i.e., the five-minute rule. It submits that an at‑grade crossing at the proposed location would result in the crossing being blocked each day for a significant period of time. CP contends that to comply with the five-minute rule, it will be unable to maintain its level of service obligations to its customers. CP filed evidence demonstrating that with the current train traffic, the crossing is blocked for periods in excess of five minutes, a minimum of once per day due to its proximity to the MGY. According to CP, the expected increase in traffic will add to the occupation and the length of time the crossing is occupied.
 CP adds that the five-minute rule does not, however, apply to all movements. CP submits that slow moving railway equipment would be blocking the crossing for more than five minutes multiple times per day. CP further submits that other activities would also influence the number and duration of instances where the proposed crossing is to be blocked, therefore resulting in an increase of the risk as identified in TC’s 2017 letter.
 CP claims that the active warning system will be activated as a result of the crossing being blocked whether the crossing is occupied or not. CP explains that the activation of the warning system may happen when the brakes are charged and when testing is occurring near the MGY, as the crossing may be occupied for periods of time ranging from 10 to 40 minutes depending on the time of year. CP submits that over time, this may influence drivers’ behaviour. CP states that long waiting times at the crossing, combined with the frequent activation of the active warning system, are factors that will contribute to an increased risk of train/vehicle collisions as drivers may choose to ignore the warning system. CP also states that such frequent activation may also occur when low-speed switching activities are taking place, regardless of whether the crossing is occupied or not.
 CP submits that, as indicated in TC’s 2017 letter, the use of a bell and a whistle will be mandatory, pursuant to the CROR, once an at-grade crossing is constructed. CP indicates that it will be required to signal a warning for 20 seconds by way of prolonged or repeated whistling until the crossing is fully occupied, each time a locomotive first occupies the crossing.
 According to CP, whistling cessation procedures at high-frequency low-speed operations, combined with high vehicular traffic, are inappropriate; therefore it would not support such procedures. It is of the view that a grade separation would better balance the applicants’ needs and its residents’ preference for limiting railway noise.
 CP contends that only a grade separation would efficiently mitigate against long queues of vehicles, frequent activation of the active warning system, and multiple/frequent blockages of the crossing. CP asserts that it is the only appropriate solution that addresses the cross-product forecasts and the site-specific factors.
 CP refers to the Dillon Report, in which factors related to CP’s operations were analyzed to determine the suitability of an at-grade crossing. The 2016 Dillon Report concludes that the operational risk is “very high” as CP’s operations and yard configuration cannot be amended without affecting the level of service to its clients.
 Furthermore, CP submits that the applicants cannot just demand that it changes its switching operations that occur in proximity to the proposed location by reconfiguring its tracks and by shifting its activities to the south to allow for an at-grade crossing, as suggested in the MMM Letter. CP states that, in order to assess the feasibility of the proposed operational changes, it commissioned DRS to produce a Rebuttal Report (DRS Report) to review and provide an independent evaluation of the reconfiguration proposed by the applicants. The DRS Report concludes that the proposed at-grade crossing will have a significant negative impact on rail operations, and that compliance with the five-minute rule will compromise CP’s ability to effectively serve Toyota. The DRS Report further concludes that there are no available options that allow CP to change its operations to the south and maintain its level of service to its customers in the area, and that each possible reconfiguration option presents negative consequences that would restrict either CP’s expansion capacity or would require significant capital improvements.
 CP further submits that the reconfiguration would cause delays, reduce its shipping capacity, as well as impact frequency of service, thus likely resulting in CP breaching its level of service obligations to its customers. CP refers to the Federal Court of Appeal’s Decision in Canadian National Railway v. Canadian Transportation Agency, 2013 FCA 270, where the Federal Court of Appeal held the Agency’s finding of a breach of service obligations resulting from the actions of a third party. CP submits that this will be the case when its customers initiate proceedings with the Agency.
Analysis and determinations
PRESENT-DAY NEEDS AND CROSS-PRODUCT NUMBERS
 For the current needs/cross-product criterion, the general approach is that when the average annual daily railway movements and the average annual daily traffic of vehicles is under 200,000, an at‑grade crossing will be considered sufficient, provided that it is properly protected.
 The applicants consider that the current needs should be assessed using a time horizon ranging from mid-2018 to 2022 (the proposed completion date), resulting in traffic projections that are below the 200,000 threshold.
 CP uses projections for vehicular traffic estimates that are based on a Phase 1A opening date in 2018, 2019 for Phase 1B, and a full occupation of Phase 1 during the 2018-2025 period. CP’s forecasts for vehicular traffic exceed the 200,000 threshold.
 Current railway activities at the existing crossing are on average, nine train movements per day, and the number of train movements per day will grow to between 30 and 35, due to a planned increase in 2018-2019. The parties do not dispute these numbers.
 In previous instances, the Agency has considered projections for vehicular and railway traffic based on time horizons that were as long as 17 years (Decision No. 688-R-2004). However, it did so based on estimates that were grounded on probative evidence and reasonably reliable.
 Based on the evidence provided by the parties, the cross-product could range from 42,870 to 343,000. According to the applicants, the projected cross-product ranges from 42,870 to 172,900, and CP’s projections range is from 198,000 to 343,000. The Agency notes that in this instance, the planned increase in railway movements has yet to happen, and that the use of the Phase 1 development and the final configuration of the road network are not known. While it is likely that the development will materialize and that the 200,000 threshold will be met, it is difficult to determine when that will happen.
 The parties have divergent views on the appropriate interpretation of TC’s comments. The applicants are of the view that TC is simply cautioning the parties that there are obligations to be respected and that the parties should be cognizant of those in the planning, design and operation of the crossing. CP interprets TC’s comments as akin to not endorsing the proposed at-grade crossing.
 The Agency notes the Dillon Report’s findings that an active warning system at the proposed crossing would not reduce the risk of accidents due to the proximity of the MGY and site-specific conditions, but also points out that the Dillon Report is based on Phase 1 and 2 being fully developed and on the 2018-2019 increased train traffic. As indicated in the report, switching activities by their nature would result in frequent activation of the warning system, which in turn and over time may cause road users of the crossing to alter their behaviour and prompt them to cross in an effort to avoid long waiting times. The same can be said for certain switching operations triggering the warning system without having any train movements over the crossing. The Agency further notes the Dillon Report’s conclusion that an at-grade crossing with an active warning system would not be suitable at the proposed location. Taken together, this evidence raises serious safety concerns around potential road users’ behaviour if the crossing is at-grade.
 In light of TC’s comments, the parties’ submissions on those comments, and the conclusions of the Dillon Report, the Agency finds that an at-grade crossing at the location is unlikely to provide an acceptable level of safety, while a grade separation would reduce the risks related to the obstruction of the crossing, the queuing of road vehicles over the crossing, and the use of the train bell and whistle at the crossing.
INTENDED USE OF THE CROSSING
 With respect to the impact on roadway operations, a crossing at the proposed location is required to access the land. Both parties are in agreement that if the crossing is at grade, road traffic will be delayed any time the crossing is occupied by a train, sometimes for long periods of time during slow-moving activities, multiple times per day. The applicants are well aware of this situation and they indicated that a majority of the obstructions to the crossing will not happen during peak hours.
 Since 2000, CP has developed and designed the extension of its rail network in the area to accommodate its clients. This is the case for Toyota at the MGY.
 Since the yard’s construction, CP’s activities have been to provide pre-tripping activities. CP’s service has to meet the “just-in-time” production of the Toyota Plant. CP’s ability to adapt its operations to meet Toyota’s requirements by having and using the unhindered switching lead to the yard will be reduced by the presence of the crossing.
 CP’s operations and infrastructure are designed for the switching activities to take place from the north end of the lead, using good railway design principles, including efficiency and safety.
 Imposing on CP a change in the conduct of its switching operations from the south end, as proposed by the applicants, would result in operational, space and service constraints and would impede its ability to comply with section 97 of the GCR and the service requirements imposed by Toyota. This will be more challenging once the planned increase in train movements and the vehicular traffic of the business park materializes. CP will be placed at risk of breaching its level of service obligations.
 The Agency notes that the applicants do not dispute the findings of the Dillon Report and the DRS Report.
 The Agency accepts that the presence of the at-grade crossing would interfere with CP’s operations and likely result in potential harm to CP and its customers. As a result, the Agency determines that the construction of an at-grade crossing imposes an undue burden on CP’s operations and would not constitute a suitable crossing. The Agency finds that a suitable crossing for the applicants and CP to coexist would be a grade separation.
 Having considered the cross-product and present-day needs, safety, and the intended use of the proposed crossing, the Agency concludes that a suitable crossing, one that is appropriate for the purpose for which it is intended while taking into account its potential impacts on the applicants as well the respondents, is a grade-separated crossing.
IF SO, HOW SHOULD THE AGENCY APPORTION THE COSTS FOR THE CONSTRUCTION, ALTERATION, OPERATION, AND MAINTENANCE OF THE PROPOSED CROSSING?
Positions of the parties
 The applicants submit that if a grade separation is chosen as the suitable crossing, it would solely be required to accommodate CP’s traffic, including its switching activities, and as such, the costs allocated to CP should be at least 85 percent, with the remaining 15 percent allocated to the applicants. They add that CP’s investment would be small for the achieved return of maintaining its operations, whole, unrestricted and unimpeded; as well as to avoid the cost of either a suitable at-grade crossing or the reconstruction costs required by the GCR.
 According to the applicants, CP will be in a position to increase its movements and benefit commercially, which is the true cause for the need of the crossing, and therefore should be allocated the majority of the costs of the grade separation.
 The applicants submit that if a grade-separated crossing is authorized, it can be constructed and operational within 18 months of the Agency’s Decision.
 CP submits that each application should be considered on the basis of its own unique facts; in other words, on a case-by-case basis. CP adds that for the apportionment of costs, the Agency must take into consideration the following: whether grants were made pursuant to section 12 or 13 of the RSA, the Resource Tool, the relative benefits that each party stands to gain, and any other factors that it considers relevant. Specifically, CP proposes that the following factors be considered: the party creating the need for the work, rail safety, the increased freedom of operations, the marginality of benefits to one party, the convenience to the motoring public, the variation of the vehicular traffic at existing public crossings, and the requirement to coexist at the crossings. CP’s submissions address each of these factors.
 CP states that, as per the Resource Tool, the costs of construction and maintenance of a basic grade separation on a new route are to be borne solely by the party that triggered the construction of the new route. According to CP, the proposed crossing constitutes a new route because it will have a different function than the current private crossing, and forms part of a road network providing access to the development of the Creekside Business Park. CP adds that the proposed crossing will accommodate new vehicular traffic and will not, by virtue of its existence, result in the closings of any other crossings or diverting traffic from other crossings.
 Furthermore, CP submits that the applicants are the cause for the crossing, and that without the planned land development, there would not be a need for a crossing at that location. CP maintains that there is no change to its operations for which a new crossing would be needed. CP’s MGY precedes the applicants’ needs for a crossing at that location by many years.
 CP contends that the historical increase in rail activities is irrelevant. To CP, its 2018-2019 planned increase in traffic is marginal when compared to the increase in vehicle traffic, once the crossing will be established.
 CP concludes that in light of the above factors, the proposed crossing should be paid in full by the applicants.
 CP submits that even if the Agency does not find that the proposed crossing is a new route, it should apportion the costs of constructing and maintaining the crossing in its entirety to the applicants because CP will not benefit from a crossing at that location. CP refers to Decision No. 61-R-2013, wherein the Agency stated that the main beneficiary of the construction of a public crossing is the main factor to be considered in the apportionment of the costs.
 CP contends that the applicants and the vehicular traffic will benefit most from a safe crossing in the form of a grade separation, as the risks to safety will be minimized. CP, however, admits that it will derive a small benefit from the enhanced safety associated with the grade separation. CP agrees, as in Decision No. 117-R-2011, to be responsible for partial maintenance costs of the rail equipment. CP suggests that, at a maximum, it be responsible for five percent of the costs of the crossing.
 CP states that it currently enjoys freedom in its operation at the proposed location of the crossing, as concrete blocks are preventing access to the existing crossing, there is no vehicular traffic and no route, and the five-minute rule does not apply to private crossings. CP further states that, whether the crossing is grade-separated or not, it will not gain more freedom than it already enjoys.
 CP submits that Decision No. 117-R-2011 is analogous to the current case in respect of the apportionment of costs. It adds that in that Decision, the Agency stated that the junior-senior principle should not be applied, and that instead the relative benefits to the parties should be assessed. CP considers that in this case, the junior-senior principle is also irrelevant because only the applicants are benefiting from a public crossing at the proposed location and that they are the sole cause for the crossing’s construction.
 According to CP, two alternate costing scenarios are possible. It submits that if the Agency decides that some costs should be borne by CP, then 100 percent of the costs of construction and 85 percent of the costs of maintenance of any associated railway safety measures should be attributed to the applicants, and 15 percent of the costs of maintenance of any associated safety measures should be borne by CP; or, alternatively, 95 percent of the costs of construction and maintenance should be borne by the applicants, and 5 percent of the costs of construction and maintenance by CP.
 According to CP, a grade separation at the proposed location can be constructed at an estimated cost of between $8.6 million and $9.3 million.
 Finally, CP submits that should the Agency authorize a public crossing at the proposed location, the Agency must order the applicants to submit plans for the construction of a basic grade separation. CP adds that it should be provided with an opportunity to review the proposed structure, including the definition of the basic grade separation, as well as be granted with the opportunity to make submissions on the matter.
Analysis and determinations
 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 construction and maintenance costs of a road crossing. When the parties to the project are unsuccessful in negotiating an agreement regarding their responsibilities for the costs of the construction, alteration, operation or maintenance of a road crossing, section 16 of the RSA allows the developer or anyone who could benefit from the railway work, once completed, to refer the matter to the Agency for a decision. In this case, the parties have been unable to agree on the apportionment of the costs for the proposed road crossing.
 The Agency has discretion to determine the costs to be borne by each party. In Decision No. 517‑R‑2003, the Agency indicated that:
The Agency must determine the proportion of the liability for construction, alteration, operational 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, contrary to CN’s arguments, require the cost apportionment to be based on the party which created the need for the work. Similarly, the Agency notes the argument of the applicant that the junior-senior principle, which would assign all costs of widening and maintaining an existing crossing to the junior party, should apply. The junior-senior principle is one which the Agency and its predecessors have considered in the past and which was also included within the Railway-Highway Crossing at Grade Regulations (General Order No. E-4), promulgated under the former Railway Act. The Agency may consider this principle, and others, in this or future cases, however, the Agency considers each case on its own merits.
 After reviewing the parties’ arguments regarding their junior-senior principle with respect to the proposed crossing and the benefits of the project as a whole, the Agency is of the opinion that, taking into account the factors set out below, it should not apply the junior-senior principle to determine the parties’ proportion of the liability for the costs of the construction and maintenance of the proposed crossing. The Agency finds that in this case, it is appropriate to give more weight to the respective benefits that the applicants and CP would gain from the proposed grade-separated crossing.
 In this case, the applicants will construct a business park at a location that will require the conversion of a private crossing to a road crossing. The need for the road crossing is created by the applicants in order for them to provide access to the business park.
 On the other hand, CP’s operations will benefit from not being impacted by the presence of an at‑grade crossing. CP will maintain its ability to adequately meet its level of service to its clients in the area, specifically Toyota’s level of service requirements, including its ability to expand and improve its railway operations. In light of the nature of CP’s switching activities in proximity of the proposed crossing, CP will also be gaining by the elimination of risks of accidents at the crossing if it were to be at grade.
 Given the circumstances of this case where the road development is due to the applicants and in light of the negative impacts that an at-grade crossing would have on CP’s operations, the Agency finds that the parties stand to benefit to a comparable degree from the construction of a grade separation at the proposed location.
 Consequently, the Agency finds that the applicants should be responsible for 50 percent of the costs of construction of the grade separation, and CP should be responsible for the remaining 50 percent.
 The Agency notes that the grade separation has not been defined nor designed. As such, it is impossible to establish what constitutes the basic grade separation and what are the additional facilities associated with the proposed subway structure.
 Consequently, if the parties cannot agree on the basic grade separation and the additional facilities, the Agency may, on application, determine that portion of the work that is required to provide adequate facilities for present-day needs at the time of construction or reconstruction of the grade separation.
 With respect to the costs of maintenance of the structure, the Resource Tool specifies that the maintenance costs for a subway are normally apportioned as follows:
- the railway company pays all maintenance costs of the substructure and the superstructure of a subway; and
- the road authority pays all other maintenance costs of a subway, including the cost of maintaining the road approaches, retaining walls, road surface, sidewalks, drainage and lighting.
 In light of the foregoing, the Agency, pursuant to section 101(3) and 101(4) of the CTA and section 16 of RSA, authorizes the construction of a crossing located at mileage 7.40 of CP’s Waterloo Subdivision, converting the private crossing authorized pursuant to section 102 into a road crossing. In the circumstances of this case, the Agency determines that a grade separation constitutes a suitable crossing, and apportions the costs of construction equally between the applicants and CP.
 Any authorization granted by the Agency does not relieve either the applicants or CP of their obligations under the RSA.