Bill C-58: An Act to Amend the Railway Safety Act and To Make a Consequential Amendment to Another Act (LS-326E)

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	5 November 1998	First Reading:	2 February 1999
Second Reading:	20 November 1998	Second Reading:	11 February 1999
Committee Report:	2 December 1998	Committee Report:	17 March 1999
Report Stage:	7 December 1998	Report Stage:
Third Reading:	1 February 1999	Third Reading:	18 March 1999

Royal Assent: 25 March 1999 Statutes of Canada 1999, c.9 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

BILL C-58: AN ACT TO AMEND THE RAILWAY
SAFETY ACT AND TO MAKE A CONSEQUENTIAL
AMENDMENT TO ANOTHER ACT

On 5 November 1998, Bill C-58, An Act to amend the Railway Safety Act and to make a consequential amendment to another Act, received first reading in the House of Commons.

The Railway Safety Act was initially enacted in 1988 and came into force in January 1989. Section 51 of the Act required the Minister of Transport to establish a committee to carry out a review of the first five years of the Act’s operation. This review, completed in December 1994, was a wide-ranging, independent assessment of all aspects of the legislation and included extensive consultations with all parties concerned with railway safety. The review committee’s report, tabled in Parliament on 15 February 1995, pointed out that Canada’s railways have a good safety record both in comparison with railways in other countries and with other modes of transport. It confirmed that their underlying attitude to safety was correct but recommended that further steps be taken to streamline railway safety regulation and to reduce the bureaucratic burden. Legislative amendments were therefore proposed by the committee.

In its response to the review committee’s report, tabled in Parliament on 8 June 1995, the government accepted the majority of the committee’s recommendations and indicated that legislation would be brought forward quickly, following consultations with the industry.

The subsequently struck industry committee included representatives of main players in the field: CN Rail, CP Rail, VIA Rail Canada, Railway Association of Canada (representing the other railways in Canada), Brotherhood of Locomotive Engineers, United Transportation Union, Canadian Autoworkers, Canadian Railway Labour Association (representing other labour organizations), Canada Safety Council, and the Federation of Canadian Municipalities. The industry committee, which also consulted provincial governments, met several times during the summer of 1995. It established a set of principles which were used in the drafting of Bill C-43, an Act to amend the Railway Safety Act and to make a consequential amendment to another Act (2^nd Session, 35^th Parliament), which received first reading in the House of Commons on 30 May 1996. On 24 and 25 September 1996, the industry made representations before the House of Commons Standing Committee on Transport. The bill was reported to the House by the Standing Committee on 2 December 1996 for second and third reading. However the bill died on the Order Paper on 25 April 1997.

In September 1997, the Minister announced that he was delaying the re-introduction of a bill providing for amendments to the Railway Safety Act in order to allow for departmental review of current mechanisms for overseeing railway safety and ensuring regulatory compliance. A committee of railway safety, risk management and regulatory experts consulted with industry and union stakeholders, the Federation of Canadian Municipalities, the Canada Safety Council, Transport 2000, the Transportation Safety Board of Canada, and provincial and territorial governments. The committee recommended further amendments to the Act.

Bill C-58 contains most of the proposed amendments to the Railway Safety Act that were in its predecessor bill, C-43, as amended by the House of Commons Standing Committee, as well as some of the recommendations endorsed by the subsequent Transport Canada review.

Bill C-58 would amend the Railway Safety Act and make a consequential amendment to the Access to Information Act. Essentially, the proposed amendments would:

The most notable proposed changes to the Railway Safety Act are set out below. Discussion is arranged according to the relevant clause of Bill C-58, with references to the current and proposed sections of the Railway Safety Act.

Section 3 of the Railway Safety Act would be replaced with a more explicit statement relevant to railway safety. Currently, broad legislative policy guidance is provided in the Canada Transportation Act but is not furthered in an explicit way in the Railway Safety Act. The proposed declaration would establish a clear policy for railway safety matters. It would clarify the objectives of the Act as well as the roles and responsibilities of all parties with respect to railway safety.

Section 8 of the Railway Safety Act currently provides for the filing of a notice of prescribed proposed railway works by a proponent, normally a railway company. The kinds of works (for example, tunnels, new lines, etc.) and the time period of the notice are set out in the regulations. At present, the proponent must wait to proceed until the notice period has expired. A proposed amendment to section 8(1) would allow a proponent who had received a response indicating no objection from all parties concerned to proceed before the expiration of the notice period. This would have the effect of allowing non-contentious work to proceed quickly.

Section 10 is the means by which a proponent may apply to the Minister of Transport for approval to construct a railway work when that work either does not meet standards established under section 7 of the Act or has been objected to under section 8. Proposed section 10(1.1) would allow a proponent to make an application to the Minister as soon as it had received responses from all parties concerned. At present, the proponent must wait until the expiration of the notice period before applying, even when all objections have been received well before that time. The proposed new section would have the effect of speeding up the process.

It occasionally happens that objectors withdraw their objections after the notice period has expired. Under the current legislation, the proponent has no choice but to apply to the Minister for approval, even though objections have been withdrawn. Proposed section 10(1.2) would allow the proposal to proceed without the Minister’s approval in these circumstances.

Currently, for items established by regulation, section 11 requires the professional engineer in charge of the work to file an affidavit with the Minister attesting to construction according to standards. This has been found to be a cumbersome process which requires a great deal of paperwork; in some cases, a professional engineer may not have direct knowledge of the work concerned. A proposed amendment would replace the affidavit process by requiring the involvement of licensed professional engineers in the designing, construction, evaluation, and alteration of all engineering works. Professional engineers are obligated under provincial and territorial laws to protect public health, safety and welfare where engineering principles are involved, and are subject to disciplinary procedures for professional misconduct.

Section 18 of the Act provides a general regulation-making power for the Governor in Council in relation to the operation of railway works and equipment. A proposed amendment to section 18(2) would grant the Governor in Council the power to make regulations requiring safety reviews at road crossings under specified circumstances. For example, on lines where authorized train speed was over a specified level, or where multiple fatalities had occurred, the railway company and the owner of the crossing (i.e., the road authority) would review the crossing to see what alterations should be carried out to improve its safety. This would not prevent the Transportation Safety Board from carrying out its own investigation into the causes of the accident.

Proposed section 18(2.1) would be added to grant the Governor in Council the power to make regulations respecting the security of railway transportation.

Section 19(1) currently provides a scheme whereby the Minister may, by order, require a railway company to formulate, and file with him or her for approval, rules respecting matters referred to in section 18(1) that are not dealt with in regulations. A proposed amendment would allow the Minister, by order, to require a railway company to file a rule regarding a matter referred to in section 18(1) or (2.1), even if it were already dealt with in regulations. This would allow a smooth transition from an old regulation to a new rule.

Section 19(2) currently requires a railway company filing rules with the Minister pursuant to section 19(1) to first afford "a reasonable opportunity" for consultation to relevant associations or organizations (typically railway labour organizations) that would likely be affected. A proposed amendment would give relevant associations or organizations 60 days in which to comment on the rules, thereby overcoming the potential for undue delay.

Proposed section 19(4.1) would allow the Minister, at the request of a railway company, to change the terms on which a rule could be approved if new information about the safety of the railway operations came to light. It would also obligate the railway company to inform interested organizations, commonly railway unions, of its request. Proposed section 19(4.2) would require the Minister, where he or she amended the terms, to provide relevant organizations with a copy of the amendments. Proposed section 19(5.1) would provide that rules approved by the Minister would come into force on a date specified by the Minister but, where they replaced regulations, no earlier than the day on which the regulations were repealed.

Section 19(8) currently provides a mechanism whereby the Minister must afford the particular railway company and each relevant association or organization "a reasonable opportunity" to comment on new rules before establishing them on the company’s behalf. A proposed modification would provide a 60-day time limit for all parties to make comments.

Under section 20, a railway company may file rules on its own initiative rather than pursuant to an order from the Minister. Proposed amendments would bring this section into line with section 19 as it would be amended by clause 13 of Bill C-58.

Proposed sections 22(4)-(7) would allow railway companies to apply to the Minister for an exemption from the application of a specified provision of regulations under section 18 or of any rules in force under sections 19 or 20, as those sections would be amended by Bill C-58. The railway company would first have to give each relevant association or organization 60 days in which it could comment on the exemption application (proposed section 22(5)). The railway company would be required to send with its application to the Minister a copy of all comments received from relevant associations and organizations (proposed section 22(6)). The Minister could grant the application within 60 days after receiving it if, in his or her opinion, the exemption was in the public interest and was not likely to pose a threat to safe railway operations. The Minister could extend the time for granting the application for an additional period of up to 60 days (proposed section 22(7)).

Proposed section 22.1 would give the railway companies greater freedom to conduct testing. At present, each time a railway company wishes to conduct, for example, high speed tests requiring special manual arrangements to protect crossings, an exemption must be obtained from the Minister. This creates much paperwork, often with very tight deadlines. The proposed section would require a railway company that proposed to conduct testing or required an immediate exemption of short duration to file a notice of the exemption with relevant associations or organizations (e.g., railway labour) and the Minister. Testing could proceed if, within 21 days after filing the notice, the company either received indications from the Minister and each of the relevant associations and organizations that they did not object to the testing or if no objections were confirmed or made by the Minister pursuant to proposed section 22.1(3). Proposed section 22.1(2) would allow each of the relevant associations or organizations to object to the exemption on safety grounds. The objection would have to be filed with the Minister and the railway company within 14 days after the notice of exemption was filed. The Minister could either 1) within seven days after the notice of the exemption was filed, confirm the objection, if he or she decided that the exemption did pose a threat to safety or 2) within 21 days after receiving notice of the exemption, object to it if he or she was of the opinion that the exemption was not in the public interest or likely to pose a threat to safety (proposed section 22.1(3)).

Under certain proposed amendments to sections 19, 20 and 22, interested associations and organizations, typically railway labour organizations, would have 60 days to make their comments known concerning new rules, rule changes, and proposals for exemptions.

The train whistle can be a great annoyance in urban communities; however, at the same time it is an important safety device, since over 95% of train fatalities are caused by trespassing or at crossings. Proposed section 23.1 would provide a compromise between the two opposing concerns. Under the proposal, whistling would not be permitted if a municipality had passed a resolution to that effect and the location met certain standards established in regulations. The municipality would first be required to consult with the railway company concerned, notify each relevant association or organization that was likely to be affected by the resolution, and give public notice that it intended to pass the resolution. The Minister would have the final say in determining whether a municipality met the prescribed requirements for whistle cessation. Under the above proposal, the train whistle could still be used: a) in emergencies; b) if any railway operating rules in force under sections 19 or 20 required its use (for example, if there were people working close to the tracks); or c) if a railway safety inspector ordered its use under section 31 because he or she believed there was an immediate threat to safe railway operations.

Accidents at road crossings are a significant portion of all railway-related accidents and account for almost half of all railway fatalities. The review committee suggested a target of reducing the accident rate by 50% within the next ten years. Bill C-58 contains a number of provisions that would help achieve this target.

A new section 7.1 would give the Governor in Council the power to make regulations regulating or prohibiting the construction of road crossings. It was felt that this provision would help minimize the problems in those high risk areas. This provision would, for example, give the Minister the power, by regulation, to establish conditions in which new crossings would be prohibited. This would likely be in specified corridor rail lines that carried high speed trains. The provision would not prohibit the construction of new crossings entirely but only in conditions specified in the regulations.

A new section 12.1 would allow the Minister to make an agreement with a person (mainly a road authority) who had rights under Part III of the Canada Transportation Act or otherwise relating to a road crossing, to close the crossing in the interests of safe railway operations. The agreement could provide for a grant to the person; once the agreement was made, the person’s rights relating to the crossing would be extinguished.

From time to time, there are disputes over how much of a proposed railway work should be paid by each of the parties. Though both the railway company and a road authority may stand to benefit from a crossing improvement, they may dispute the apportionment of costs. The current section 16 is the means whereby such disputes may be referred to the Canadian Transportation Agency. Section 16(1) would be modified to ensure that a referral could be made either before or after construction or alteration of the work had begun. This would reduce the time taken to bring some crossing improvement projects to completion.

Under current section 17(2), a proponent who, having applied for a grant under section 12 or 13 in respect of a railway work, commences the work before the Minister has approved or rejected the application, is deemed to have withdrawn the application. In other words, to receive a grant, a proponent must not commence a railway work before having received the Minister’s decision on the application. According to departmental information, this has had the effect of delaying needed safety improvements to road crossings. Bill C-58 would repeal section 17(2), accordingly reducing the time for safety improvements to be implemented.

Section 24 grants the Governor in Council the power to make regulations in respect of items that may impinge on the railway and have an impact on safe railway operations. Such items include crossings and the clearing of brush which might impede sightlines. Two new paragraphs would clarify federal powers in this regard, bearing in mind that other entities (for example, road authorities) are also involved. Proposed section 24(1)(f.1) would permit the Governor in Council to make regulations respecting the construction, alteration and maintenance of roads for the purpose of ensuring safe railway operations. Likewise, proposed section 24(1)(f.2) would grant the Governor in Council the power to make safety regulations respecting the control of vehicular and pedestrian traffic, for example, by traffic control devices, on road approaches to road crossings. This would include regulations regarding traffic control devices such as advance warning signs, which may have to be placed some distance from a crossing in order to give the motorist time to adjust his or her approach to it.

A new section 24(1.1) would give the Minister the power to exempt a person from the application of a regulation made pursuant to section 24(1) if, in the opinion of the Minister, the exemption was in the public interest and was not likely to pose a threat to safety. This would apply, for example, in the case of a road authority that might have difficulty in meeting the standards but could suggest an alternative that would ensure safe railway operations.

Section 25(1) currently gives a railway company, in certain circumstances, the power to enter onto land adjoining the railway to carry out work to prevent a threat to the line. This includes, for example, work to prevent a washout or to restore the line after a washout. Bill C-58 would simplify the wording to give the railway company power to enter onto adjoining land either to prevent a threat to or to restore safe railway operations. A proposed new section 25(1.1) would grant a similar power to a road authority to enter onto land adjoining a crossing to clear brush and trees that might obstruct sightlines, provided the owner of the land was given written notice of this.

Section 25(3) currently provides for compensation to affected landowners. A proposed change would provide for compensation by road authorities as a result of their new power to enter onto adjoining land under proposed section 25(1.1).

Section 31 of the current Act provides the means by which railway safety inspectors may issue notices and orders concerning unsafe railway equipment, works or operating practices. An inspector who is of the opinion that the standard of construction or maintenance of a crossing work poses a threat to safe railway operations must send a notice of this, with reasons, to the person responsible for the maintenance of the crossing work. If the inspector believes that the threat is immediate, he or she may order the person to ensure that the crossing not be used, except under terms and conditions specified in the notice, until the threat is removed to the officer’s satisfaction. The inspector must similarly inform the railway company concerned. Whereas the current section 31(2) requires that notices and orders be issued to both the person responsible for the crossing and the railway company, a proposed amendment would permit notice to be given to either or both of the above parties. This would provide a certain flexibility.

Proposed section 31(2.1) would give a railway safety inspector a new power to issue a notice or order to the operator of a motor vehicle using a crossing. This could be used, for example, in such cases as where an inspector became aware that the operator of a school bus should be taking extra precautions when using a crossing.

Section 31(3) currently gives a railway safety inspector the power to issue a notice or order to a railway company concerning unsafe railway equipment. A proposed amendment would provide the inspector with the option of issuing the notice or order to the railway company or to any other person who owned or leased the equipment.

Sections 31(5),(6) and (7) would be rewritten to take account of the above proposed changes to section 31. Proposed section 31(8) would provide for orders to be revoked or revised by another railway safety inspector but only if the one who had made the original order was unable to act, for example, through retirement or illness. A consequential amendment to section 31(10) would be made to take account of proposed changes to sections 31(2) and (3) and proposed section 31(2.1).

Reference was earlier made to current section 18, which provides general powers for the Governor in Council to make regulations in relation to the operation of railway works and equipment. A proposed amendment to section 18(2) would confer additional powers on the Governor in Council to require safety reviews at road crossings in specified circumstances. This would establish a system under which, for accidents of a type established in regulation (for example, on lines with train speeds over a specified level, or where multiple fatalities have occurred), there should be a review of the crossing by the railway, the road authority or the owner. Proposed section 18(2.1) would permit the Governor in Council to make regulations respecting the security of railway transportation.

Currently, under section 33, the Minister may issue emergency directives to railway companies where the Minister believes that there is an immediate threat to safe railway operations. A proposed amendment would clarify the wording and confirm that the Minister had the power to issue such directives for security purposes as well.

The bill would replace the current section 39, regarding security measures, with new sections 39, 39.1 and 39.2. Proposed sections 39(1)-(3) would replace present sections 39(4)-(7). The new provisions would clarify the wording and make the requirements more easily understood. Proposed section 39(4) would make it an offence for a person knowingly to make a false or misleading statement during screening, or knowingly provide false or misleading information to a screening officer.

Proposed section 39(5) would establish a requirement for the posting of bilingual notices to let travellers and other persons shipping goods know that screening was being carried out, and that they were not obliged to undergo screening of their person or goods if they chose not to travel or not to submit the goods for transportation.

Proposed section 39(6) would require that such notices, in both official languages and possibly in any other language, be posted in prominent places where screening was carried out.

Proposed sections 39.1(1) and (2) would replace the current section 39(2) of the Act, in which the wording concerning the Minister’s authority to formulate security measures is unclear. Proposed section 39.1(1) would specifically permit the Minister to formulate measures respecting the security of railway transportation. Proposed section 39.1(2), would permit the Minister, by notice in writing, to require or authorize a railway company to carry out the security measures.

Proposed section 39.1(3) would give the Minister the power to exempt a railway company or other person from the provision of a security measure made under the authority of section 39.1 if, in the opinion of the Minister, the exemption was in the public interest and was not likely to pose a security threat. This provision would be consistent with the Minister’s authority under section 22(2) to exempt a railway company from the requirement of a regulation or rule.

Proposed section 39.2(1) would replace current section 39(8), which is limited to the disclosure of security measures. The proposed provision would establish the conditions in which security rules, emergency directives and measures could be disclosed.

Detailed security requirements would be contained in security documents, i.e., security rules, emergency directives and measures. The prohibition against unauthorized disclosure would be expanded to include security rules and emergency directives. Dissemination of security requirements would be prohibited, unless the disclosure was authorized by the Minister, ordered by the court or another body pursuant to proposed section 39.2(3), required by law, or necessary for the measure to be implemented (for example, a railway company might provide information on security requirements for screening passengers or goods to a company conducting screening on its behalf).

Section 28 of the Railway Safety Act deals with railway safety inspectors’ general powers. However, the current section does not allow an inspector to enter dispatch offices or other railway facilities that do not directly abut a railway line for the purpose of monitoring compliance with the Act. Section 28(1) would be amended to broaden the authority of a railway safety inspector to enter such premises in order to carry out his or her duties in respect of auditing railways’ safety performance. This authority is considered necessary to support the enforcing of safety management systems.

Proposed section 28(1)(a.1) would clarify an inspector’s authority with respect to obtaining documents, records or data necessary to carry out his or her duties in respect of auditing railways’ safety performance.

The powers of railway safety inspectors in the crossing area would be expanded to allow inspectors to issue an order to the user of a crossing as well as to the owner or the railway company (proposed sections 31(2), (2.1) and (3)).

Section 32 deals with the Minister’s authority to issue orders to railway companies with respect to compliance. A new section 32(3.1) would be added to provide that if the Minister believed that a safety management system established by a railway company had deficiencies that risked compromising railway safety, he or she could, by notice, order the company to take the necessary corrective measures. Section 32(4) currently provides that an order contained in a notice to a person or railway company under sections 32(1) or (3) takes effect when the person or railway company receives that notice. A proposed amendment would add proposed section 32(3.1) to that provision.

Section 37 currently authorizes the Governor in Council to make regulations respecting the maintenance and production of safety records. Proposed section 37(c) would be added to authorize the Governor in Council to make regulations requiring railway companies to notify the Minister of information relevant to monitoring safety performance or predicting potential changes in levels of safety, including notification of any accident or incident associated with railway safety or any situation that could have a detrimental effect on safety performance.

Proposed section 47.1(1) would authorize the Governor in Council to make regulations respecting the development and implementation of safety management systems by railway companies, including the criteria that such systems would have to meet. A "safety management system" would be defined in section 4(1) to mean a formal framework for integrating safety into day-to-day railway operations; it would include safety goals and performance targets, risk assessments, responsibilities and authorities, rules and procedures, and monitoring and evaluation processes.

Proposed section 47.1(2) would give the Governor in Council the authority to make regulations restricting or otherwise governing the release of pollutants into the environment as a result of the operation of railway equipment.

A number of other sections of the Railway Safety Act would be amended, replaced or repealed. In addition, there would be a consequential amendment to the Access to Information Act.