General Committee
	TO:	Mayor and Members of Council
	FROM:	Alan Brown, Director of Engineering
	PREPARED BY:	Arup Mukherjee, Manager of Transportation
	DATE OF MEETING:	2005-Dec-05
	SUBJECT:	Anti-whistling Status Report

RECOMMENDATION:

That the report dated 2005-Dec-05 and entitled “Anti-whistling Status Report” be received;

And that Go Transit be requested to finalize options for the installation of safety gates at the Eureka Gate at-grade crossing in consultation with the Town and impacted property owners as part of their current contract for gate installation along the Uxbridge Subdivision;

And that staff from Legal Department and Finance Department in consultation with staff from Engineering Department review and report back on the costs, risks and implications to the Town of Markham with respect to Go Transit’s requirement for third party liability if “anti-whistling” is to be pursued;

And that, subject to the resolution of third party liability and the gate installation issues with Go Transit, staff report back on any additional funding requirements as part of the 2007 budget.

PURPOSE:

This report provides a status update on the Anti-whistling project for the elimination of whistling along the Uxbridge Line.

BACKGROUND:

Rule 14(L)(ii) is a federal Transport Canada by-law that requires train operators to blow their whistle 4 times when they approach an at-grade road crossing. Residents in Markham have had a long standing concern with respect to the whistling by Go Trains along the Uxbridge Line. In response to these concerns, staff advised Council that Transport Canada has a process that allows communities to get relief from the whistling by-law. It should be noted that train operators will always have the discretion to whistle if there are safety concerns. The anti-whistling procedures provide relief from the requirement to whistle at all at-grade crossings.

Staff have reported back to Council on 2 occasions on this project (Sept. 29, 2003 and Feb. 23, 2004). Council directed staff to proceed with the anti-whistling project on the Uxbridge Line from Major Mackenzie to Steeles Avenue . A total of $221, 300 is allocated in the 2004 and 2005 capital budgets for this project. In 2005, staff have been working with Go Transit and CN staff to finalize the safety audit at a cost of $38, 760 leaving a total carry over of $182, 540.

Funding in the amount of $100, 000 is proposed in the 2006 capital budget for the anti-whistling project. The $100, 000 funding for the project is currently not included in the 2006 capital budget (e.g. it is below the line) and is identified as a “project for discussion” for the budget subcommittee. The budget sub committee at their meeting on November 15, 2005, requested staff to bring forward a report on the status of the project.

OPTIONS/DISCUSSION:

Transport Canada’s Process to eliminate whistling

The process to eliminate whistling at rail crossings involves the following steps which were discussed in detail in the September 29, 2003 staff report. These steps must be completed at no cost to the railway authority.

1. Formal request from Municipality to eliminate whistling at specified locations, including approvals from other road authorities as needed

2. Safety Audit to identify infrastructure required at all locations

3. Safety Infrastructure installed by municipality

4. Safety infrastructure inspected and approved by railway authority

5. Municipal by-law passed to eliminate whistling

6. Municipality advises all operators of railway (as identified by rail authority) regarding intent to eliminate whistling

7. Railway authority requests exemption of Rule 14(L)(ii) from Transport Canada

8. Transport Canada approves request from rail authority

Steps 1 and 2 have been completed by the Town. Attachment A shows the infrastructure that must be in place before Transport Canada will consider anti-whistling. Eight of the at-grade crossings along the Uxbridge Line in Markham are Regional Road crossings and requires the Region to install the identified safety measures. An additional eight crossings are Town of Markham road crossings with one remaining crossing in Toronto at Steeles Avenue and a future crossing at Castlemore Road.

Third party liability requested by Go Transit

Upon completion of the safety audit, staff met with CN and Go Transit staff to review and confirm the safety measures identified in the safety audit. During this discussion, Go Transit advised of the need for third party liability insurance. Staff had initially confirmed that CN did not require third party liability and had proceeded with the project on this basis. However, as part of the safety audit, Go Transit stated that although CN does not require the insurance, Go transit’s policy requires third party liability insurance from the road authority in order to implement anti-whistling.

Since eight of the seventeen at-grade crossings on the Uxbridge Line are on Regional Roads, staff contacted the Region of York to discuss the issue of third party liability. Region of York staff advised that they have received instructions from their Risk Management group to not support anti-whistling due to concerns related to third party liability insurance. At this time, this is a staff position and has not been endorsed by Regional Council.

Go Transit and CN officials indicated that they would not support a piece-meal approach to anti-whistling along a route. They stated that it would not be practical to instruct a train operator to either whistle or not whistle based on whether the crossing is a Regional road crossing or a local road crossing. Furthermore, if the Regional crossings do not include anti-whistling, there would be little benefit to the residential community since the whistles at Regional Road crossings along the Uxbridge Line would continue to have a noise impact to the adjacent community.

Given the concerns noted by Region of York staff, further investigation is required with respect to the liability issue. It is recommended that staff from the Legal and Finance Departments review the details of the liability requirements from Go Transit. Based on this review, it is recommended that staff report back on the costs, risks and implications to the Town of Markham as a result of the third party liability requirements as outlined by Go Transit.

As noted earlier, Region of York staff do not support anti-whistling as a result of their concerns associated with third party liability. If, after reviewing the report from Town staff on liability, Council wishes to proceed with the project, a formal Council resolution will be required to request Regional Council to consider third party liability on Regional road crossings. Regional Council approval for third party liability and anti-whistling will be required since CN and Go Transit requires a continuous section of rail line where anti-whistling is implemented.

Other issues related to anti-whistling

Notwithstanding the liability issue, there are other issues that will require resolution before the safety measures can be implemented. These key issues are noted as follows:

Go Transit gate installation project/Eureka Gate crossing

Go Transit has undertaken its own safety review of at-grade crossing across the GTA. This is a general safety review and is not related to anti-whistling. Based on their review, Go Transit is installing safety gates at all at-grade crossings that do not currently have a gate. There are a total of 5 gates that Go Transit plans to install in Markham on the Uxbridge Line as shown on Attachment B. Their current schedule anticipates installations along the Uxbridge Line to be completed in 2006/7.

One of the locations for a safety gate installation is the Eureka Gate crossing in Unionville. Due to the skewed angle of the rail line the location for the gate infrastructure on the southeast corner falls within private property and in the middle of an existing driveway to a garage at 16 Euclid Street as shown in Attachment C. In order to avoid property acquisition and/or discussions with the owner, Go Transit has requested the Town to consider either closing Eureka Gate on the north and south side of the rail line or convert Eureka Gate to one-way operations.

Safety gates at the Eureka Gate crossing have been identified in both the anti-whistling safety audit and the general safety audit by Go Transit. It is in the Town’s interest to work with Go Transit to install gates at this location. In this regard, the Town will need to undertake further discussions with Go Transit to determine the best option to install gates. In the event that either the road closure or one-way street designation is considered, staff will report back to Council before any further discussions with the community. Responsibility to coordinate this project is still under discussion with GO Transit.

Trespassing Requirements/Impacts to private gate access

The anti-whistling safety audit identified various measures such as fencing and public education to reduce incidences of trespassing across the tracks. As part of the safety audit, the consultant identified several properties that back on to the railway tracks that have private gates for pedestrian access. Go Transit has indicated that actions must be taken to either remove or lock these gates to reduce the possibility of trespassing. In this regard, discussions and potentially agreements with homeowners may also be required to ensure that private pedestrian access is not permitted onto the rail right-of way. GO Transit has advised that they will work with the Town to address the issue of trespassing. Further discussions will be required to determine the role of Go Transit and the Town in dealing with the homeowners.

Next Steps

Third party liability is the key issue that must be resolved before any further steps are undertaken on this project. In this regard, staff from Legal, Finance and Engineering Departments will report back on the costs, risks and implications for the Town of Markham to accept third party liability as part of the anti-whistling project. Should Markham Council agree to third party liability on this project, Regional Council approval accepting third party liability will be required before Go Transit and Transport Canada will consider implementing anti-whistling along the Uxbridge Line.

Once the liability issue is resolved, further discussions will be required with the community to address the issue of gate installation at the Eureka Gate crossing and removing private pedestrian access from residential units backing onto the railway property will be required by staff and possibly GO Transit.

FINANCIAL CONSIDERATIONS:

The 2004 budget is $121,300 of which $38,760 has been spent on the safety audit leaving a carry over of $82,540. The 2005 budget is $100,000 and has not been spent, resulting in a total carry over of $182,540 for the anti-whistling project.

Based on discussions with Go Transit, an additional $500,000 was recommended in the 2006 capital project of which $100,000 was tax rate and $400,000 was funded by Go Transit for gate installations. The $100, 000 funding for the project is currently not included in the 2006 capital budget (e.g. it is below the line) and is identified as a “project for discussion” for the budget subcommittee.

At this time, staff are satisfied that the carry over amount of $182,540 is sufficient to initiate the project in 2006 should the liability issue be resolved with the Region. Subject to finalization of the issues noted in this report, staff will update the cost estimates and advise of any additional funding requirements in the 2007 budget.

ATTACHMENTS:

Attachment A: Safety Infrastructure Required

Attachment B: Crossing Locations/Go Transit Gate Installations

Attachment C: Eureka Gate Crossing

Alan Brown, C.E.T. Director of Engineering

Jim Baird, M.C.I.P., R.P.P. Commissioner of Development Services

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