Application of the Corporation of the City of Toronto for an Order directing the Canadian Pacific Railway Company to proceed with the construction of a subway at Lansdowne avenue, as provided in Order No. 35037, dated May 9, 1924, and to fix the time for the commencement and completion of said subway, and that a grant of 40 per cent of the cost of the construction of said subway be paid out of the Railway Grade Crossing Fund.

Judgment

McLean, Assistant Chief Commissioner:

Under date of September 30, 1930, the Board was written to by the city solicitor of the city of Toronto as follows:—

In the matter of the application of the Corporation of the City of Toronto, in the Province of Ontario, hereinafter called the Applicant under sections 257 and 259 of the Railway Act, 1919, for an order requiring the Canadian Pacific Railway and the Canadian National Railway Companies to collaborate with the applicant in the preparation of a joint plan for the separation of grades at the crossing of Bloor street, Royce avenue, Weston road, and St. Clair avenue by the said railways, and at the crossings of Wallace avenue and Davenport road by the Canadian National Railway Company, and that the time be fixed by the Board for the submission to it of the plans dealing with grade separation at the said crossings. Files Nos. 32453, 18759, 9437.149, 8673, 9437.94, 132.1, and Case No. 1353.

It was further set out that—

The Corporation of the City of Toronto hereby applies to the Board directing the Canadian Pacific and Canadian National Railway Companies or one of them to proceed with the construction of subways at St. Clair avenue and Lansdowne avenue as provided in Order No. 35037 of the Board dated the 9th day of May, 1924, and to fix the time for the commencement and completion of the said subways and for an order directing that forty per cent of the cost of the construction of said subways shall be paid out of the Railway Grade Crossing Fund, and that the remainder of the cost of constructing the said subways shall be borne in the same way as was the cost of the subways constructed at Bloor street and Royce avenue.

The covering letter stated that copy of the application as well as of the covering letter had been sent to—

E. P. Flintoft, Solicitor for the Canadian Pacific Railway Company.

Alistair Fraser, K.C., Solicitor for the Canadian National Railway Company.

I. S. Fairty, Solicitor for the Toronto Transportation Commission.

Canadian General Electric Company, Limited.

The Bell Telephone Company of Canada.

Consumers Gas Company of Toronto.

The Toronto Hydro-Electric System.

The Hydro-Electric Power Commission of Ontario.

Under date of October 3, the Canadian Pacific Railway stated that it had received copy of the formal application in question, and was consenting to the hearing of the matter on short notice.

After correspondence and conference, it was decided that the application should be divided; that Lansdowne avenue should be taken first; and it was accordingly listed for hearing at Ottawa on November 3, 1930. Notice was given to the City of Toronto, the Canadian Pacific Railway Company, the Toronto Transportation Commission, the Bell Telephone Company of Canada, the Consumers' Gas Company of Toronto, the Toronto Hydro-Electric System, the Hydro-Electric Power Commission of Ontario, and the Canadian General Electric Company.

Acknowledgment of receipt of notice was received from the Assistant General Manager of the Consumers' Gas Company of Toronto dated October 28. General counsel for the Bell Telephone Company stated that so far as the application related to the construction of a subway at Lansdowne avenue, the Bell Telephone Company had no plant on Lansdowne avenue at or near the location where the proposed subway was to be constructed and was, consequently, not a party interested or affected by the said application. The General Superintendent of the Hydro-Electric Power Commission replied stating that the said commission was not a party in the application, and it was presumed it had been sent in error. No communication was received from the Toronto Hydro-Electric System.

The application launched by the city is for a subway on Lansdowne avenue which is a main thoroughfare in the city of Toronto. It at present crosses, at grade, the North Toronto Sub-division of the Canadian Pacific Railway and the tracks of the Canadian General Electric. There are two tracks of the Canadian Pacific and three of the Canadian General Electric. It has been recognized in proceedings which were referred to by counsel during the hearing' that delay and danger were occasioned at the crossings in question. No such evidence was submitted to the Board at the recent hearing as would justify the conclusion that the crossings were not dangerous.

Counsel for the city of Toronto said that without prejudice to any future applications for contributions the city was prepared in the present instance to ask for an order that the two crossings by the Canadian Pacific and Canadian General Electric be looked after out of the Grade Crossing Fund, and that division of cost be distributed as it was in the case of Bloor Street Subway, provided for under the judgment of the Board, Board's Judgments and Orders, Vol 16, p. 213—Order No. 40367 of February 16, 1928.

Counsel for the Canadian Pacific recognized that conditions at Lansdowne avenue in regard to volume of traffic justified separation of grades.

Counsel for the Canadian General Electric, while stating his company was not at all anxious to go ahead with the work bearing in mind the expense, they appreciated that traffic conditions were onerous at the crossing, and notwithstanding that their plant would be dislocated by the work being done owing to the fact it would mean having offices and factories on both sides of Lansdowne avenue, they still felt that the onerous conditions of traffic at the point in question justified action.

The Toronto Transportation Commission's tracks at the northern approach come within 30 feet of the northerly track of the Canadian General Electric; the southerly track runs to within 100 feet of the tracks of the Canadian Pacific. Construction of the 5 per cent grade involved means that the grade would run out approximately about 330 feet on the north and about 200 feet on the south. The tracks of the Canadian General Electric will come within the area which would be affected by the grade revision necessary in connection with the separation of grades.

The situation is that the tracks running southerly from St. Clair avenue terminate a short distance north of the Canadian Pacific right of way. At the south, the street car tracks commence a few feet away from the southerly limit of the right of way and run south on Lansdowne avenue. There is a loop at the southeast corner of Royce and Lansdowne avenues, and from that point northerly there is a stub track to within a few feet of the railway. Passengers going north on Lansdowne avenue have to transfer to the Toronto Transportation Commission's cars south of the railway and walk over the tracks and entrain on the north side of the tracks, bound northerly. In the opposite direction, a converse situation exists. No additional fare is charged in connection with this movement involving the crossing of the steam railway tracks; there is a transfer. It was testified that the bulk of the passengers arriving at either of these termini of the Toronto Transportation Commission, that is either north or south of the tracks in question, continue their journey across the tracks; that is to say, the existing tracks are in the way of a through movement.

Counsel for the Toronto Transportation Commission while not minimizing the importance of work looking to the further development of safety did not see how it would react to the advantage of the commission he represented. He, rather, took the position that it would react with detriment; at the same time, he recognized that passengers using the facilities of the Transportation Commission might, in respect of the crossings in question, if grades were separated, find the work to be of distinct advantage.

Counsel for the Transportation Commission referred to negotiations which were under way between it and the city, the outcome of which might be of use for other purposes by the Transportation Commission of the moneys which would be involved if it had to make contribution to the grade separation. It further took the position that the burden of cost affecting it should be borne by the city, there being a burden on the city to supply right of way for the cars of the commission.

On consideration, the Toronto Transportation Commission is a party interested or affected and I am of opinion that Order should go on the basis of distribution of cost in the Bloor Street Case above referred to. The details of the distribution will be set out in the accompanying order.

The cost of the work is estimated at $750,000; the plans are being prepared, and it is hoped that the plans will soon be in such shape as to permit calling for tenders.

November 6, 1930.

Commissioners Lawrence and Stoneman concurred.