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RAILWAYS - Crossings - Highways and roads - Apportionment of costs

Tuesday, May 15, 2018 @ 8:41 AM  

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Appeal by the Canadian Pacific Railway Company (CPR) from a decision of the Canadian Transportation Agency (Agency) authorizing Alberta Transportation's (AT) application for the reconstruction of an existing grade separation between a railway line owned by CPR and a provincial highway and the construction of a new at-grade crossing and for the apportioning of the cost of construction and maintenance between CPR and AT. The crossing at issue involved a four-lane bridge over a single CPR track. The bridge had been in place since 1957. In 2012, AT applied for an order authorizing a new crossing. It also sought for costs to be apportioned between CPR and AT. AT sought to construct a new overhead bridge in two phases. Phase 1 involved expanding the existing bridge to six lanes by twinning the bridge. Phase 2 involved future expansion of the bridge to accommodate a ring road. CPR submitted that the project was a new route and therefore it should not be liable for any of the costs. In response, AT withdrew Phase 2. CP maintained its position that Phase 1 was a new route. The Agency found that Phase 1 constituted a reconstruction of an existing grade separation on an existing route and that six lanes were necessary to accommodate traffic needs. It apportioned costs between AT and CPR at 85 and 15 per cent respectively. In 2015, AT submitted another application for authorization of a revised and expanded Phase 2 project and cost apportionment. The 2015 application proposed major revisions to the previously approved Phase 1 project. The 2015 application involved the demolition of the existing bridge, the construction of a completely new bridge and the construction of the new bridge approved in the earlier application. The Agency denied CPR's request to defer the decision pending its pursuit of additional documents. It found that the westbound bridge in the 2015 application was essentially the same as the one authorized in the earlier decision. It rejected the argument that the proposed changes in Phase 2 constituted construction of a new route and concluded it was updating of the existing route. It authorized the proposed reconstruction and apportioned costs 85 per cent to AT and 15 per cent to CPR. CPR did not contest the authorization of any of the work. It contested the apportionment of costs, arguing that it had no obligation to pay any of the costs in excess of the earlier decision.

HELD: Appeal dismissed. There was no conflict between the 2015 decision and the earlier decision. While the Agency did not explain why there would be an increase in rail traffic that would benefit CPR, thereby justifying an apportionment of costs, this did not mean it was unreasonable to apportion costs to CPR. The parties had a history of shared responsibility for the crossing and both would continue to benefit from the grade separation. While the City of Calgary might have also benefited from the construction, specifically the construction of the ring road, it was not a party before the Agency and therefore the failure to consider the benefit to it was not an error. CPR had not established that the Agency breached procedural fairness by not delaying the matter or ordering production of documents. CPR had mechanisms available to it to ensure its interests were protected in the proceedings. However, there was evidence that Calgary and AT kept their future plans, which involved further encroachment on CPR's right-of-way for a four-lane road and a pedestrian walkway, from CPR and the Agency. Those plans could have impacted the Agency's analysis. As a result, CPR was free to make an application for reconsideration to the Agency.

Canadian Pacific Railway Co. v. Canada (Attorney General), [2018] F.C.J. No. 382, Federal Court of Appeal, D.J. Rennie, M.J.L. Gleason and J.B. Laskin JJ.A., April 6, 2018. Digest No. TLD-May142018004