In the matter of the application of the Corporation of the City of Toronto, Ontario, for an Order under Sections 39, 257, 259 and other appropriate sections of the Railway Act, authorizing the construction of a bridge, with the necessary approaches thereto, over the tracks of the Canadian National Railways, the Canadian Pacific Railway Company and the Toronto Terminals Railway at Eastern Avenue in the City of Toronto, Ontario, apportioning the cost of the work between the parties interested and affected by the Order for construction, and authorizing a contribution from the Railway Grade Crossing Fund.

25493.1

Before:

Clarence D. Shepard, Q.C., Chief Commissioner.

Armand Sylvestre, Q.C, Deputy Chief Commissioner.

H. B. Chase, C.B.E., Commissioner.

Heard at:

Toronto, Ontario, on March 12th and 13th, 1957.

Appearances:

F. A. A. Campbell, Q.C, and W. R. Callow, for the Corporation of the City of Toronto.

A. P. G. Joy, for the Municipality of Metropolitan Toronto.

J. W. G. Macdougall and H. J. G. Pye, for the Canadian National Railways.

K. D. M. Spence, Q.C, for the Canadian Pacific Railway Company.

J. M. Duncan, for the Toronto Terminals Railway Company.

F. A. Burgess, for The Bell Telephone Company of Canada.

Fred Cawthorne, Q.C, for the Toronto Electric Commissioners.

J. N. Herapath and D. F. Graham, for the Hydro-Electric Power Commission of Ontario.

F. D. Turville, Q.C, for the Consumers' Gas Company of Toronto.

C. W. Lewis, for Canada Iron Foundries Limited.

Judgment

Chase, Commissioner:

As indicated in the Style of Cause, this is an application of the Corporation of the City of Toronto, Ontario, (hereinafter sometimes referred to as the "City") for an Order authorizing the construction of a bridge to carry Eastern Avenue over the tracks of the Toronto Terminals Railway, Canadian National Railways and the Canadian Pacific Railway.

The matter was heard in the City on March 12th and 13th, 1957, and at that time it became apparent that far more was involved than the mere question of constructing a bridge over the tracks of the three railways. By referring to the transcript and the list of appearances, it will be noted that there are ten different parties interested in the application.

At this point it might be well to state that in the Toronto area there exists, in addition to the Corporation of the City of Toronto, what is known as the Municipality of Metropolitan Toronto, hereinafter referred to as "Metro". The City has jurisdiction over certain streets, while some other traffic arteries come under the jurisdiction of Metro.

Description of the Bridge

The length is to be approximately 1,700 feet and, taking the direction east to west, it would commence some distance east of what is to be or is known as the Don Valley Parkway (a Metro project), with a 14-foot clearance above Don Valley Parkway. Continuing westward it would pass over the Don River (the present Don River bridge to be removed), next over four tracks of the Toronto Terminals Railway, two tracks of which are considered as main line tracks, then over a private spur line served by the C.N.R., next over one track of the C.P.R., then over one track of the C.N.R., and finally would cross a spur track of Axler & Co. which is served by the C.P.R. I should add that the Toronto Terminals Railway is jointly owned by the Canadian Pacific and Canadian National Railways. According to the evidence submitted, however, its right-of-way is actually owned by the City and leased to the Toronto Terminals Railway Company. Trains of both the C.P.R. and C.N.R. have the right to and do operate over the tracks of the T.T.R.

Estimated Cost

At page 1042 of the transcript the estimate made by the City is shown to be $2,424,000, plus land damage at $600,000, making a total of $3,024,000. The figure of $2,424,000 was disputed by Mr. Workman, a C.N.R. witness, his estimate being $1,817,000, exclusive of land damage. By adding the City's estimate of $600,000 for land damage, the C.N.R. estimate amounts to a total of $2,417,000. (See page 1163 of the transcript).

Having regard to the manner in which we will apportion the costs in this case, the discrepancy between the estimates in the amount of $607,000 is not material. I mention it only to indicate that in matters of this kind the parties concerned should get together prior to a hearing and agree, if possible, as to what a fair estimate should be.

Present Crossing Protection and Cost of Maintenance

At this time the most easterly tracks (those of the T.T.R.) are protected by electrically operated manually controlled gates. For the year 1956 the cost of operation and maintenance of these gates amounted to $16,391.16, divided as follows: $4,097.79 was paid by the City and $12,293.37 was paid by the T.T.R. (See Exhibit No. 17).

The balance of the tracks west of the T.T.R. tracks are protected by a watchman, with a provision that all rail movements must be stopped before passing over Eastern Avenue and be preceded by a yardman. (See Board Order No. 49648 dated March 14, 1933).

The cost of this protection is said to be approximately $9,000 per annum, which is paid by the C.P.R. and C.N.R. on a fifty-fifty basis.

I have previously mentioned herein that ten different parties are interested in this application and have also made reference to a Metro project known as the Don Valley Parkway. Witness Grant gave evidence with respect to the Don Valley Parkway, his examination and cross-examination being shown on pages 1087 to 1097 of the transcript.

Summarizing his evidence, it would appear that Metro plans to build the Don Valley Parkway, which would run in a south-north direction, crossing Eastern Avenue. The Parkway is to be a limited access highway and consideration has been given to putting the Parkway over or under Eastern Avenue, the estimated cost being somewhere between $300,000 and $400,000. A third plan, with respect to which it is indicated that Metro and the City are in agreement, is to extend the proposed bridge over the Parkway. This, in turn, imposes some liability upon Metro and in apportioning the costs this Board might well give consideration towards placing some of the costs on Metro. However, Counsel for both the City and Metro requested that no apportionment be made at this time between the City and Metro.

Counsel for the City said in part:

The next point is this, I would prefer, I think you would have power to assess part of the cost here against the Metropolitan Corporation. However, I am going to suggest to you that you don't do that, that you only assess the City and the Railways for this reason, I am sure we are going to get some help from the Metropolitan Corporation and I think the Metropolitan Corporation and the City will be able to reach an agreement in regard to that. If we don't then we could go back to the Board on that feature but I don't think it will ever be necessary. However, I want to reserve my rights in regard to that because I think there is a benefit which the Metropolitan Corporation are going to derive from this bridge and so I put it to you that way. What that amount is we cannot say, that will be a question for the Council of the Metropolitan Corporation to decide on the recommendation of the Metro officials.

(See page 1235 of the transcript).

And on page 1236 of the transcript the following appears:

Mr. Campbell: I don't think you ever will. And if we do have to come back to you I think Mr. Joy who is representing Metropolitan Toronto would agree that we could easily make a joint application.

Mr. Joy: I don't think it is material, Mr. Chairman. I think the City reserves its rights. If the Board has power now, as I believe it has, to make an apportionment between the two parties then it will have power at that time, on either application, it would have that right.

Having regard to the above, I agree with Counsel for the City and Metro. No costs will at this time be assessed against Metro. The rights of the City, however, will be reserved, and in the event that a mutual understanding cannot be reached between the City and Metro, upon application from either or both parties the Board will give further consideration to this matter.

Turning now to the four utility companies affected by this application, namely, The Bell Telephone Company of Canada, the Toronto Electric Commissioners, The Hydro-Electric Power Commission of Ontario, and the Consumers' Gas Company of Toronto:

The Bell Telephone Company estimates that the rearrangement of its plant and facilities, which will be made necessary by the construction of the bridge, would amount to $67,400.

The Toronto Electric Commissioners estimate their costs at $85,000, the Consumers' Gas Company of Toronto at $242,350, and The Hydro-Electric Power Commission of Ontario at $20,200.

As for many years past the policy of the Board has been to require public utilities to pay their own costs of rearrangement of their facilities when relating to cases such as the one presently before us, initially the above mentioned companies will in this case be required to pay their own costs, subject to the reserve that if the policy of the Board is changed the matter of the apportionment of the costs will be further reviewed.

Note: The Board has under consideration a review of its policy and a hearing will be held at which time all interested parties will be afforded the opportunity of expressing their views.

As regards The Hydro-Electric Power Commission of Ontario, from the evidence it appears that with the erection of the new bridge the question arises as to providing access to the property of that Commission.

We were told that the matter is under consideration and negotiation, that it also involves the City and the Toronto Terminals Railway Company, and it may be necessary for the latter Company to arrange with the Hydro-Electric Power Commission of Ontario for a private crossing over the tracks of the T.T.R.

As in all probability this matter can be settled between the parties, no Order will be made at this time but, should negotiations fail, the rights of The Hydro-Electric Power Commission of Ontario are hereby reserved for further consideration and decision of the Board.

The Canada Iron Foundries Limited is also an interested party, being mainly concerned in regard to an access road and a pedestrian bridge which would make necessary some amendment to the plan of the bridge.

Mr. C. W. Lewis appeared for Canada Iron Foundries Limited and as a result of a discussion between Counsel for the City and Witness Sutherland it would appear that an understanding agreeable to Mr. Lewis was reached. The discussion will be found on page 1057 of the transcript and reads as follows:

Q. Would you deal with it now, the question of the access road to the Canada Iron Foundries Company?—A. Our plan shows an access road on the south side of Eastern Avenue to the land of the Canada Iron Foundries Limited which would necessitate taking a considerable portion of land. Now, the representatives of this company have agreed to provide an access road provided they can get access from an access road on the north side of Eastern Avenue and proceed underneath the bridge and there will also be a pedestrian bridge to the main structure from the buildings of the Canada Iron Foundries Limited. So that that will do away with the necessity of this 30 foot access road on the south side.

Q. And you are willing to amend the plans to that effect?—A. That is right.

Q. After conferring with this company. Is that all right with you?

Mr. Lewis: Well, subject always to the plan not being amended, so our plant is not otherwise affected.

Mr. Campbell: Well, you have heard what our engineer says.

Mr. Lewis: Yes, that is right. That is satisfactory.

Discussion

From the "Description of the Bridge" set forth above, it is quite apparent that the east end of the bridge is to be much longer than would be necessary were it not to be carried over the Don Valley Parkway. The additional length and cost thereof must therefore be the responsibility of the City and/or Metro.

At the west end where it is to cross the spur track of Axler and Company (served by the C.P.R.) it would appear that if less than standard vertical clearance is permitted, the cost and perhaps the length of the bridge could be reduced. We were also told that the operation on the spur track could be safely handled if such permission were granted.

In summing up the evidence and all other matters placed before us, it appears that from the standpoint of safety the Eastern Avenue crossing is adequately protected. Some 15,000 vehicles cross the tracks in nearly every 24-hour period and of course do meet with some delays when rail movements are being made. On the other hand, some railway operations are slowed down due to compliance with the above mentioned Board Order No. 49648. However, when all of the reasons for building the bridge are carefully considered, it becomes quite evident that, while some benefit will accrue to the railways, the main reason is for the safety, protection and convenience of the public.

There remains for determination the apportionment of costs and in this connection Counsel for the City expressed the view that the Board should consider this project as crossing two separate railways: (1) the crossing of the tracks of the Toronto Terminals Railway and (2) the crossing of the tracks of the C.P.R. and C.N.R., thereby making possible the maximum grant from the Railway Grade Crossing Fund with respect to each crossing, and requested that we so decide.

Having in mind a somewhat similar situation in which the Board considered a subway passing under two separate railways as being two subways and made a grant from the Railway Grade Crossing Fund with respect to each, I agree with the view expressed (See Order No. 78540 dated March 20, 1952—Subway under tracks of C.P.R. and C.N.R., Cote de Liesse Road, Town of Dorval, Province of Québec, Board's File No. 9437.1160).

Counsel for the City also referred to certain agreements entered into between the City and the railways during the years 1890, 1891 and 1906, also to the Queen Street Bridge Case and the Order of the Board relating thereto made in 1909, as well as to certain other cases which were apparently disposed of on the basis of the Junior-Senior Rule. In essence, that particular rule required the junior party to pay all, or nearly all, of the costs. With regard to the above mentioned agreements, his view as he expressed it at page 1237 of the transcript reads in part as follows:

In 1890 and in 1891 and in 1906, the City entered into a contract, a lease by which the railways were permitted to use this strip of land that belonged to the City, and which was expropriated by the City, and as a concession, in order to allow the railways to come into the City along this strip, the City imposed certain conditions on the railways which the railways agreed to and the railways agreed that when a bridge would be built they would contribute to the cost of the same.

As I understand the meaning and interpretation of these leases it means this, that they agreed to contribute on the basis of the practice of what was in vogue at that time, and what was in vogue at that time was the junior and senior rule, and the junior and senior rule has been carried along so far as the municipality is concerned to this day, because when we extend a street, as we did in Dundas Street and we required to go under the railways and build a subway, the City paid the whole shot.

He further stated at pages 1240 and 1241 of the transcript:

Now, I say that a bridge is necessary here on the ground of public safety. We have just been fortunate here that we have not had a larger loss of life than we have. But even if the Board does not agree with the submission that I am making—I hope you will,—if you don't, I say that the railways should make a very substantial contribution to the cost of this work on the ground that they will receive a benefit. I am not foregoing the argument I have just made, in regard to benefit, but I do say that in this case with all these tracks that are there, the railways will reap a very substantial benefit and it will be a great advantage to them to have a separation of grade here and that they should pay somewhat near what the railways were ordered to pay in the Queen Street high level bridge case.

With great respect, I cannot agree with the views expressed in relation to apportioning the costs on the basis of the old Junior-Senior Rule, as that rule has not been followed in respect of protection and grade separation at railway-highway level crossings for many years, and, as to the agreements, I consider it to be entirely doubtful if the signatories thereto some fifty years ago could ever envisage that a time would come when a bridge of this proportion would be required on Eastern Avenue.

I do agree that the railways will secure a benefit and the amount they will be required to pay in this particular case will be what I would term a substantial contribution.

The position taken by the railways can be very briefly summarized. They do not oppose the construction of the bridge and are willing to pay some of the costs of construction, the amounts to be more or less dependent upon the share of the maintenance costs which they may be ordered to pay.

To arrive at what they considered as being the amounts which they should pay towards the costs of construction they submitted evidence, etc., based on the assumption that instead of building a bridge, the present form of protection would be changed in the following manner:

The tracks, other than those of the T.T.R., would be protected by flashing lights, all rail movements to stop at the crossing until the flashing lights are functioning. At the T.T.R. crossing the electrically operated manually controlled gates would be changed to automatically operated short arm gates.

Exhibit No. 28 reproduced below indicates that the value of the benefit to the C.P.R. is estimated at $9,200.

Canadian Pacific Railway
Ontario District	Toronto Terminals Division

Statement showing operating and maintenance costs for two C.P.R. crossings and one C.N.R. crossing over Eastern Avenue, west of Cypress Street, with installation of 2 flasher light signals and one bell with push button control at this location and watchman eliminated.

Estimated Cost of Signal Installation	9,000
Assuming B.T.C. Contribution 60%	5,400
Railway's Portion of Cost	3,600
C.P.R. Portion 50%	1,800
C.N.R. Portion 50%	1,800

Estimated cost to maintain two C.P.R. crossings is estimated at $200.

Estimated annual Maintenance Cost of proposed signal installation $560. This split 50% C.P.R. and 50% C.N.R. or $280 each.

Interest on investment of contribution to signal installation at 6 1/2% $117.

Estimated Annual Operation and Maintenance Cost $280.—$200.—$117.—$597.

Note—The above indicates the value of the benefit to the Canadian Pacific of Grade Separation only if the Company is not assessed with any cost of future maintenance.

Capitalized at 6 1/2% on $597.	$9,185
Say	$9,200

Office of Division Engineer	File No. 25493.1
Toronto, March 13, 1957.	Exhibit No. 28, filed by Mr. K. D. M. Spence, for the C.P.R., at Toronto, Ont.
	March 13, 1957.

Counsel for the C.N.R. estimated the benefit to the C.N.R. as being $10,000 but stated in part:

I am quite prepared to admit that there should be some increase over the figure of $10,000 that I have spoken about.

(See page 1263 of the transcript).

And Counsel for the C.P.R. stated, at page 1265 of the transcript:

So I suggest that in this case, the position of the railways, or at least the position of the Canadian Pacific should be and is that each of the railways—each of the railways—should contribute the amount of its benefit, the Canadian Pacific and the Canadian National, approximately $10,000 each, or perhaps as Mr. Macdougall says, twice that amount to allow for these intangibles, and if they were to contribute $20,000 each in respect of their crossings leading to the Cherry Street yard, then the Toronto Terminals Railway perhaps may have a benefit of twice that amount, $40,000.

With regard to the tracks of the T.T.R., assuming the method of protection were changed in the above mentioned manner, the cost was said to be of the order of 40, 45 thousand dollars, operation and maintenance costs being estimated at $4,500 annually. (See page 1138 of the transcript).

Counsel for the T.T.R., at page 1273 of the transcript, expressed his view in part as follows:

"On the other hand the capitalized value of the cost of automatic equipment, if it were installed, at 6 1/2 per cent, which is the figure which the Canadian Pacific Railway Company uses, is $69,300 annually—pardon me, that is the present value of the capitalized cost, and represents the net worth and the net benefit to the Toronto Terminals Railway Company.

Commenting on the manner in which the railways have calculated the amount of their benefits, I would say that in my opinion it is very ingenious and decidedly unrealistic. We are not considering the question of changing the protection from manual to automatic but are dealing with the question of constructing a bridge which will definitely provide complete protection at this crossing for some seventy-five years. Moreover, by eliminating the present protection a reduction in maintenance expenses of some $20,000 per annum between the railways will be effected, together with the removal of the hazards which are always present at level crossings.

Conclusion

With so many different parties having an interest in this matter, it is probably without precedent. However, at this time we are only apportioning the costs between the City and the railways, subject to the reservations herein mentioned.

After most careful consideration I would:

Grant the application.
If request is made, approve of less than standard vertical clearance over the spur track at the west end of the proposed bridge.
Assess the cost of construction of the bridge as follows:

At the crossing of the tracks of the Toronto Terminals Railway allow a grant from the Railway Grade Crossing Fund of $300,000; $100,000 to be paid by the Toronto Terminals Railway Company; the balance to be paid by the City.

With respect to the crossing of the balance of the tracks, I would allow a grant from the Railway Grade Crossing Fund of $300,000; $50,000 to be paid by the Canadian National Railways; $50,000 to be paid by the Canadian Pacific Railway Company; the balance to be paid by the City.

As to the cost of maintenance, I was greatly impressed by the views expressed by Counsel for the C.P.R. at page 1267 of the transcript where he said:

One thing that I want to emphasize, and I have emphasized in several cases recently, is this, that the Board has had the inclination in some cases of this kind in the last few years to issue an order more or less adopting the railway's figures as to benefit, but then adding at the end that the railways shall assume 50 per cent of the cost of maintenance in the future. Now, that is like giving us the benefit and then taking it away from us again. Our benefit is calculated on the assumption that we are getting rid of costs at these crossings but if we present figures to the Board on the basis of getting rid of the costs and then the costs are put back on us again, we have no benefit. And I do suggest in this case particularly there are very good reasons for not charging any of the costs of maintenance to the railways. The railways should pay for benefits for good and all and the bridge should become the City's bridge and that will simplify in many ways the situation for the future.

To a very considerable extent I agree with Counsel for the C.P.R. In this case we have assessed each of the railways a substantial amount of the cost of construction. With one exception I cannot visualize how railway traffic under a bridge can be the cause of or can create the necessity for maintenance or costs pertaining thereto. The exception is the possibility of the underside of the bridge being scoured by the exhausts from the locomotives, particularly steam locomotives.

I would therefore apportion the costs of maintenance as follows:

$100.00 per annum to be paid by the Toronto Terminals Railway Company; $50.00 per annum to be paid by the Canadian National Railways; $50.00 per annum to be paid by the Canadian Pacific Railway Company; the balance to be paid by the City.

H. B. Chase.

I concur:

Clarence D. Shepard.

A. Sylvestre.

April 26, 1957.