Chapter 1: Introduction

The Railway Safety Act (RSA) was implemented in 1989, during a period of profound transformation for rail transportation in Canada - one of industry privatization and restructuring, as well as government deregulation.

The 1989 Act reflected that policy of deregulation, introduced as "Freedom to Move" in 1985. The policy shift separated economic and safety legislation and removed impediments to structural change of the railway industry. The flexibility afforded by this change led national railways to restructure by closing lines and transferring thousands of kilometres of track to short line operators.

During the 1990s, both Canadian National Railway (CN) and Canadian Pacific Railway (CP) were transformed as they sought operating efficiencies and enhanced profitability. In 1995, CN, which had been a Crown corporation, was privatized. Approximately 10,000 kilometres of rail lines were discontinued between 1990 and 2006, most divided fairly equally between CN and CP.

Today, CN and CP are profitable entities and operate about 74 per cent of Canada's rail network, compared with 90 per cent in the 1990s. There are now some 40 short line railways operating over about 16,000 kilometres of track.1 VIA Rail continues to dominate the rail passenger sector, accounting for 95 per cent of intercity rail passengers, as well as providing targeted tourist excursions. Commuter rail services in urban areas have also increased substantially in recent years. Tourist and recreational railways offer popular services in many parts of Canada.

Rail traffic has also grown rapidly between Canada and the United States over the past 20 years. In the past decade, growth in freight carried by rail has outpaced general economic growth. This growth is expected to continue. More recently, with rapid economic expansion in Asia, the industry has undergone significant growth in traffic through Canadian west coast ports, especially containers.2

The Railway Safety Act was developed in the spirit of cooperation between industry and government and reflected a move away from a fully prescriptive regulatory approach to one that recognized the responsibility of railway companies for the safety of their own operations. Transport Canada retained overall responsibility for a safe, national transportation system.

Following the mandated review of the Act in 1994 and subsequent amendments in 1999, regulatory changes were effected that required a railway to implement a safety management system (SMS). This led to new roles for the industry and the regulator - for railway companies, one of developing and implementing SMS and, for the regulator, one of performance-based auditing of a company's safety management system, rather than detailed technical inspections of the individual components of a company's operations.

The SMS approach is neither deregulation nor industry self-regulation. Rather, its success depends on a partnering between industry and the regulator to better manage risks inherent in the transportation system and to continuously improve safety performance. It represents an important change from "the way things used to be done" and continues to affect the railway industry and the regulator.

1.1 Rationale for the 2006 Railway Safety Act Review

Following these regulatory and industry changes, Canada enjoyed several years in the late 1990s during which the number of railway accidents declined. However, between 2002 and 2005, the number of railway accidents (excluding crossing and trespassing accidents) sharply increased.3 Several accidents that occurred during this time, and even more recently, were dramatic - notably those in British Columbia, Alberta and Quebec. Collectively, they resulted in serious injuries and fatalities, significant environmental damage and negative economic impacts.

In December 2006, the Minister of Transport, Infrastructure and Communities initiated the Railway Safety Act Review. The impetus for the Review was provided by the need to address concerns raised by these high-profile railway accidents and to determine where safety improvements could be made. The Review was aimed at identifying gaps in the Railway Safety Act, and making recommendations to strengthen the regulatory regime to meet the changing nature of the railway industry and its operations. (See Appendix A for the Review's terms of reference.)

In February 2007, we were appointed by the Minister of Transport, Infrastructure and Communities as an independent Advisory Panel to lead the Review, drawing on our collective expertise in the areas of public administration, law, labour relations, and the rail industry, as well as our ability to remain objective. (See Appendix B for biographies of Advisory Panel members.)

1.2 Scope

The scope of the Review encompassed many key issues concerning railway safety in a broad sense. We were asked to review the operations and overall efficiency of the Act, and to provide the Minister with advice on improvements to rail safety. In particular, we set out to address the efficiency and effectiveness of the regulatory framework established under the RSA; the provisions and operation of the Act; environmental concerns with respect to railway transportation and accidents; interface with non-railway users; and related railway safety issues.

These broad areas encompassed many specific topics of interest, which included (but were not limited to):

  • roles and responsibilities;
  • safety management systems;
  • monitoring, audit, inspection and enforcement, including enforcement powers;
  • human factors, safety awareness and public information;
  • modal competition and economic trends;
  • baseline safety requirements;
  • rule making and consistency of rule application;
  • ministerial authority and delegation;
  • engineering requirements;
  • establishment of a complete legislative authority;
  • protection of the environment;
  • emergency response;
  • crossings, trespassing and vandalism;
  • collection, analysis and dissemination of railway safety data; and
  • advanced technologies and their use.

It should be noted that security-related provisions of the Railway Safety Act, added in 1999, were not part of the Panel's mandate. Our focus was on safety issues.

1.3 Process

In commencing the Review, we considered carefully its objective of further improving railway safety in Canada and, ultimately, promoting a better safety culture within the railway industry. The Review was undertaken with a view to preserving and strengthening the vital role that the railway industry plays in the Canadian economy.

Over a period of several months, a series of public consultations and independent research studies were conducted and formed critical elements in the process leading to the development of the Panel's recommendations.

1.3.1 Stakeholder Consultations

Our approach to learning about the issues was, intentionally, practical. We compiled and contacted an extensive list of stakeholders to encourage broad participation in the Review, and prepared and distributed a Consultation Guidance Document to assist them in developing their own formal submissions. A website (http://www.tc.gc.ca/eng/tcss/rsa_review/index.htm) dedicated to the Review was created, which contained information on the overall process and made it easier for stakeholders to learn more about the Review and how to participate.

We held 15 public consultation meetings across Canada in all provinces with railway services so that individuals and groups were afforded the opportunity to present their views. We heard over 70 presenters and received over 180 written submissions.

Throughout the course of the Review, we consulted with a wide range of stakeholders, including the public, railway companies and their industry associations, railway company employees and their unions, railway customers (e.g., travellers and shippers), provinces and territories, municipalities, aboriginal interests, environmental groups, and emergency responders, as well as Transport Canada and other federal government departments and agencies.

We met with many people who are involved with rail safety, at all levels and throughout the system, with a view to seeing for ourselves how things worked at various sites across the country. We took a helicopter tour of the Port of Vancouver and the Lower Fraser Valley to better understand the challenges facing railways in transporting goods into the Port of Vancouver. We rode a hi-rail vehicle to see what is involved in railway operations in the Fraser River Canyon area. We visited the sites of the Cheakamus Canyon and Lillooet accidents. These visits left a lasting impression. We took a trip on a track evaluation car and learned more about the technology used to evaluate track conditions. We saw, first-hand, the impact of proximity issues on communities and railways. We toured rail yards, visited the scene of derailments, including at Montmagny, Quebec, and were given emergency response and fire management demonstrations. In every case, we benefited from the opportunity to talk to many dedicated railway workers and officials.

Public Consultation, Halifax, Nova Scotia, July 2007
Public Consultation, Halifax, Nova Scotia, July 2007

Bilateral meetings were also held with stakeholders to ensure that frank and open discussion occurred on issues of specific interest. We met with officials in the United States to learn more about railroad issues and working relationships between the regulator and industry. We also shared our experiences and learned from others in the international rail community while attending the International Railway Safety Conference in Goa, India. (Appendix C provides a chronology of public consultations, meetings and site visits.)

Owing to the broad scope of the Review and the myriad issues that emerged, we were faced with determining where to focus our findings and higher-level recommendations to ensure that the total package would contribute to improving safety. This was a difficult task because of the breadth of the issues and the wide variation of opinions about how to improve the current situation. While the report could not reflect all of the details and suggestions made in the various submissions to the Panel, these submissions are available on the Review's website and we encourage those who may be interested to read them.

All participants in the Review process expressed genuine interest in the issues. No matter how diverse, their views were studied and discussed, and were instrumental in crystallizing the Panel's thinking. This allowed us to develop meaningful observations and recommendations aimed at improving the overall safety picture.

Montmagny, Quebec, June 2007
Montmagny, Quebec, June 2007

1.3.2 Research

An integral part of our work involved research conducted by outside consultants. A series of studies was completed to supplement the Panel's knowledge and understanding of a number of subject areas, including:

  • the state of rail safety in Canada;
  • technical causes of accidents and mitigation strategies;
  • causes of accidents and mitigation strategies related to human factors;
  • Canada-U.S. comparisons and harmonization issues;
  • governance of rail safety;
  • the regulatory framework for rail safety;
  • safety management systems;
  • performance measurement;
  • environmental issues;
  • the development of the Work/Rest Rules; and
  • the impact of technology on safety.

The findings and recommendations of these research studies were reviewed and discussed by the Panel and provided key input for the development of our recommendations. A list of the research studies and consultants is contained in Appendix D of this report. The studies are available on the Review's website.

1.3.3 Development of Recommendations

The Panel heard a wide range of views from stakeholders in the railway world. The scope and content of submissions varied widely. Nonetheless, the following themes emerged, which guided the Panel in coalescing its recommendations and developing the report.

  • State of Rail Safety
  • Governance
  • Regulatory Framework
  • Safety Management Systems (SMS)
  • Information Collection, Analysis and Dissemination
  • Proximity Issues
  • Environmental Protection and Response
  • Operational Issues
  • Scientific and Technological Innovation
  • Resources
  • Building Relationships

We developed the recommendations through concerted discussion of key issues, taking into account views expressed in public consultations and the considerable wealth of knowledge obtained through research, including the findings and recommendations of the research studies. The recommendations evolved to the point where the Panel reached consensus on major recommendations. During the process, other considerations were also identified which, while not meriting specific recommendations, led us to make observations about issues that, in our view, deserved prominence in the final report.

Following development of the recommendations, we validated our findings and recommendations with a cross-section of stakeholders by soliciting feedback about whether or not the recommendations were practical and, overall, would serve to improve railway safety. The validation process was useful in leading us to improve and clarify our initial recommendations.

1.4 Key Challenges for the Railway Industry and the Regulator

Based on the information and data analysis available to the Panel, we believe that the safety record of Canada's major railways is among the best in North America. Nevertheless, there has not been sufficient improvement in their safety performance in Canada since the Railway Safety Act was last amended in 1999. Main track accidents can be severe and have significant environmental impact. With the exception of accidents and incidents involving dangerous goods, we note that main track derailments have shown an upward trend in recent years. This must be addressed. Also, accidents in railway yards and on spurs are occurring far too frequently and improvement is needed.

Generally speaking, we found that the Railway Safety Act and its principles are fundamentally sound, but that a number of legislative improvements are needed. The regulatory framework is founded on performance-based regulations and railway operating rules, and requires attention to ensure that it is implemented properly and effectively. Some areas for improvement are set out below.

  • The difference between rules and regulations needs to be better understood. A more structured and inclusive process needs to be developed for rule making and for consultation to ensure the involvement of all interested parties.
  • There is a need to determine the baseline safety requirements that must be met before a company commences operations, and for this to be recognized through the issuance of a Rail Operating Certificate.
  • The regulatory framework needs to make provision for the regulator to be better equipped with a broader range of enforcement tools, including an administrative monetary penalty scheme.
  • The Act needs to be updated to clarify the basis upon which railway safety inspectors exercise their current powers and to better reflect the changing nature of the railway inspector's job to that of auditor, a change brought about by the implementation of SMS a number of years ago.

We support the SMS approach to managing railway safety, but there are implementation challenges. Railway companies need to make concerted efforts to communicate what SMS is and how it can improve safety, and to do so at all levels in their organizations. Companies must capitalize on employee knowledge about hazards and risks in the working environment. They must develop better ways of using SMS information to monitor improvements in their own safety performance records.

The regulator must make safety management systems the key focus of its oversight activities. The regulator also needs to collaborate with the industry in developing meaningful performance indicators and to improve its capacity and approach to auditing railway companies' safety management systems. While progress has been made by both the industry and the regulator, much remains to be done in terms of ensuring proper training in SMS and effective implementation.

In terms of overall safety culture, from the Panel's experience, passenger railways, and VIA Rail in particular, have a commendable safety culture. CP has made great strides in improving its approach to safety management and to developing a healthy safety culture in its company. On the other hand, in the Panel's opinion, CN's strict adherence to a rules-based approach, focussed largely on disciplinary actions when mistakes are made, has instilled a "culture of fear and discipline" and is counter to an effective safety management system. CN needs to acknowledge this openly and take concrete steps to improve.

Understanding how well the railway industry is performing from a safety perspective depends on timely and reliable data. Currently, data collection, analysis and dissemination pose a huge challenge - for both the industry and the regulator. In part, this challenge stems from the nature and extent of reporting requirements for different purposes, railway companies, and government departments. In addition, there are deficiencies in publicly available data that make it difficult to determine, unequivocally, how well the industry is performing from a safety perspective. It is not an easy challenge to address, but clear and pertinent reporting requirements are needed, coupled with improved analysis and dissemination of safety data.

We are also aware that railway safety depends on good collaboration among many stakeholders with different interests, including those at all levels of government, public and private sector organizations, and the public. This became particularly apparent when issues that are foremost in the public's mind, such as those involving proximity of railways to communities, and environmental concerns, were brought to our attention.

Challenges are certainly posed for railways and others in terms of continuously reinforcing safety messages and educating the public so that the potential for accidents is minimized. A preventative rather than a reactive approach is key. Emergency response also poses a challenge. In collaboration with the provinces, the regulator should take the lead with railways and affected communities in developing an emergency response protocol and standard to address responses to accidents. We know that the collaborative approach can be successful. This has been demonstrated by the cooperative efforts of railway companies, Transport Canada and communities across Canada to reduce crossing and trespassing accidents. These efforts have led to tangible, positive results and we support a continued focus in this area.

Like many other industries, the railway industry has made scientific and technological advances and appears keen to pursue innovations that hold promise for improving safety. Nevertheless, it became evident that the industry is facing specific, safety-related operational issues that affect people and equipment. These include fatigue management, locomotive design, locomotive event and voice recorders, rail traffic control locations, track and infrastructure, training, train dynamics, and drug and alcohol programs. The Panel recognizes that further efforts are required to address these operational issues.

Transport Canada is facing significant financial and human resource challenges. With rail traffic growing and the railway industry flourishing, there are increasing demands on the regulator for ongoing monitoring and auditing of safety management systems. This means that the regulator must be adequately funded if it is to maintain effective delivery of the regulatory oversight program. Human resource concerns derive, in part, from changing demographics and lead to the need to develop and fund concrete action plans for recruiting and retaining individuals with the right skills. Transport Canada must enhance its financial and human resource capacity to better perform its important rail safety oversight role.

As a Panel, we firmly believe that the future success of railway safety depends upon building strong and effective relationships amongst all those whose primary interest is railway safety - but especially between the railway industry and the regulator. Strong and effective relationships are imperative to making much needed safety gains. Transport Canada oversees a national rail transportation system and needs to find ways to improve communication on rail safety objectives within that national framework.

At the end of the Review process, it is fair to say that the Panel concluded that Canadian railways are safe but should be safer. We recognized that there is a need for railways and the regulator to take action in certain areas to improve safety. We believe that they are missing opportunities to do so - such as having better data for measuring and analyzing safety performance, encouraging participation at all levels in implementing effective safety management systems, and taking steps to enhance the regulator's capacity to perform its important safety oversight role.

Our report focuses on many other areas where improvements can be made. In some cases, recommendations set out a general direction or approach to be considered in taking further action and, in other instances, specific changes are recommended. In all cases, our recommendations are aimed at having a positive impact on the overall safety of the rail transportation system.

The Panel finds that the Railway Safety Act and its general principles are fundamentally sound, but it recommends that a number of improvements be implemented.

1.5 A Word of Thanks

Finally, we would like to express our appreciation for the dedication and commitment of everyone who participated in the Review. The willingness to devote time and energy to the process, to make written submissions and presentations, to provide us with insights and information, and to speak openly and freely was invaluable. It enriched our understanding of the issues and provided us with much food for thought.

While it would be impractical to name and thank every participant individually, we would like to extend our special thanks to railway company management and employees, the Railway Association of Canada (RAC), and Transport Canada for their participation, and for meeting numerous requests for information in a timely and professional manner. It is evident to us that there was enormous commitment to the Review and to working towards the common goal of improving railway safety, now and in the future.



Notes:

1 Railway Association of Canada, Railway Safety Act Review: RAC Submission to Panel (February 2007), page 4.

2 Figures and information on the changing railway industry are derived from the Railway Association of Canada, 2007, Railway Trends (October 2007), and Transport Canada, Transportation in Canada 2006, Annual Report (May 2007).

3 Joseph F. Schulman, CPCS Transcom Limited, The State of Rail Safety in Canada (August 2007), page iii.

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