Chapter 3: Governance

Governance of railway safety in Canada - the process by which the institutions, organizations and individuals involved communicate with each other, make decisions, are accountable and generally guide themselves - is the foundation of the regulatory framework and the relationships among its participants. Governance defines, both formally and informally, the roles and responsibilities of the players.

We discovered that governance issues (whether or not they were labelled as such) lie at the heart of many of the concerns and frustrations brought to our attention during this Review.1 Are the roles and responsibilities of all participants clear and well understood? Are these responsibilities carried out consistently and with full accountability, in the public interest? Are communications and consultations effective for all players, no matter how small or large, or where they are located in Canada? How can the spirit of mutual trust and collaboration be assured?

We were also directed, by the terms of reference of the Review, to examine certain issues that are specifically matters of governance. We have found that there are elements of the existing governance structure for railway safety that are not being used effectively, and there are elements that can be added or changed to make it work better.

3.1 Organizations, Roles and Responsibilities

A variety of institutions, organizations and individuals are involved with railway safety in Canada. These include federal departments and agencies, provinces, railway companies, labour unions, and other stakeholders.

3.1.1 Federal Departments and Agencies

Transport Canada has overall responsibility for "a transportation system in Canada that is recognized worldwide as safe and secure, efficient and environmentally responsible."2

For railway safety, this overall responsibility is delivered, principally, by the Rail Safety Directorate. It is responsible for developing and implementing policies, regulations and services, as well as the overall administration of the Railway Safety Act, and the Railway Relocation and Crossing Act, which is intended to facilitate relocation of railway lines or re-routing of railway traffic in urban areas. The Rail Safety Directorate also oversees operating rules that are developed and applied by the railway industry.

The Transport Dangerous Goods Directorate administers the Transportation of Dangerous Goods Act, which applies to all modes of transport throughout Canada. The Act governs the handling, offering for transport, transporting and importing of dangerous goods, and their means of containment and transport.3

The surface branches in Transport Canada's five regions are responsible for delivery of the regulatory oversight program for railway safety and the transport of dangerous goods. Their activities include inspections and audits, emergency response planning, and public information and education. The regions are the primary points of contact on federal railway regulation for provincial transportation authorities. Transport Canada's regions also provide inspection services to provinces on a contractual basis.

The Rail Policy Branch (at national headquarters) provides ongoing policy advice to the Minister of Transport on a broad range of factors that pertain to Canada's railway industry, and is responsible for administering the subsidy to VIA Rail, and for the federal government's fleet of 12,000 hopper cars used in the transportation of western grain.

The Transportation Safety Board (TSB) of Canada was created under the Canadian Transportation Accident Investigation and Safety Board Act to advance safety by conducting accident investigations for the full range of transportation modes under federal jurisdiction. It is independent of Transport Canada, and reports to Parliament through the President of the Queen's Privy Council for Canada. Its findings and recommendations are conveyed to the minister(s) responsible for the department or departments most closely affected. In many cases, this is the Minister of Transport.

The TSB fulfills its mandate by:

  1. conducting independent investigations, including, when necessary, public inquiries, into selected transportation occurrences in order to make findings as to their causes and contributing factors;
  2. identifying safety deficiencies as evidenced by transportation occurrences;
  3. making recommendations designed to eliminate or reduce any such safety deficiencies; and
  4. reporting publicly on its investigations and on the findings in relation thereto.4

The TSB also collects information about accidents and incidents, as set out in regulations, and publishes periodic summaries and analyses of that information. Further, it provides services and advice to provincial authorities, under specific agreements or memoranda of understanding, with respect to accidents and incidents on railways under their jurisdiction.

TSB regulations require that accidents and incidents be reported to the Board. The resulting statistics are published in monthly and annual reports.

The Transportation Appeal Tribunal of Canada (TATC) is a quasi-judicial body established pursuant to the Transportation Appeal Tribunal of Canada Act. It reports to Parliament through a minister designated for this purpose by Cabinet. The TATC provides an independent review process for anyone who has been given notice of an administrative or enforcement action taken by the Minister of Transport, railway safety inspectors or the Canadian Transportation Agency, under various federal transportation acts. One of these is the Railway Safety Act. An order of a railway safety inspector under section 31, for example, or an order of the Minister under section 32 may be appealed to the TATC.5

The Canadian Transportation Agency (CTA) was created by the Canada Transportation Act in 1996 to deal with issues of economic regulation, market entry and dispute resolution for the whole spectrum of transport modes under federal jurisdiction. The CTA is an independent, quasi-judicial administrative tribunal reporting to Parliament through the Minister of Transport. The CTA has regulatory powers over economic matters such as licensing, cost apportionment, and competitive access.

While it has a limited role in railway safety, the CTA is responsible for issuing the Certificate of Fitness required to start the operation of a railway under federal jurisdiction. The CTA also addresses various issues relating to level crossings and right of access for owners of land adjoining railways, areas of potential safety concern. It also deals with complaints and disputes over such matters as rates charged by carriers, treatment of passengers (including accessibility), and proximity issues like noise and vibrations.

Human Resources and Social Development Canada, through its Labour Program, administers and enforces Part II of the Canada Labour Code. This relates to occupational health and safety and seeks to reduce workplace injuries and accidents. The Code applies to federally regulated workplaces, including railways under federal jurisdiction. The Labour Program responsibilities are discussed in more depth in Chapter 4.

Environment Canada is responsible for the Canadian Environmental Protection Act, 1999, which concerns "pollution prevention and the protection of the environment and human health in order to contribute to sustainable development." The Department may be involved, therefore, in safety-related issues involving spills or other environmental incidents. Environmental response, clean up and remediation also fall under provincial and municipal jurisdictions.

3.1.2 Provinces

Railways have traditionally been viewed as an area of federal jurisdiction, but the sale or lease of track by the major carriers in the 1990s led to the creation of many short lines that fall within provincial jurisdiction. Provinces are also responsible for their municipalities through various regulatory instruments that govern planning and development, emergency services, and environmental protection.

3.1.3 Railway Companies

In total, there are 34 federally regulated railways in Canada (see Appendix E). These operate under a Certificate of Fitness issued by the CTA and are subject directly to the Railway Safety Act.

The Act recognizes very clearly in its objectives "the responsibility of railway companies in ensuring the safety of their operations."6 This is the foundation of the spirit of cooperation between industry and government that we consider to be a significant strength of the Railway Safety Act, and which we consider can continue to support a safe railway system in Canada.

Railway companies are given powers under the RSA to develop rules in respect of many matters governed by the Act. The Minister may also order a railway company to develop a rule in certain circumstances. In any case, the Minister must approve all rules. This collaborative approach is intended to be responsive and adaptive to the needs of a particular railway or group of railways, and to complement the development of regulations, by Transport Canada, which apply to the industry as a whole.

Railway companies may also establish their own police services, and CN and CP have had such services for many decades. Their responsibilities are to enforce federal laws on railway property and within 500 metres of that property,7 to protect persons and property within that zone, and ensure a safe and secure environment for rail traffic. Railway police officers have powers of arrest and enforcement similar to those granted to other federal and provincial police officers.

The Railway Association of Canada (RAC) represents some 60 federal and provincial railways. Members include freight, tourist, commuter, and intercity operations. The RAC's mission is to promote the safety, viability, and growth of the railway industry within Canada. As discussed in Chapter 4, the RAC is often the organization that develops rules under the RSA, on behalf of its member railway companies.

3.1.4 Labour Unions

Since the 19th century, labour unions have played an important role in railway safety, and many different unions currently represent workers in the various trades and work categories involved in the railway industry across Canada. The Panel heard from four trade unions in particular, which have significant and widespread railway-related membership:

  • Teamsters Canada Rail Conference (TCRC), created in 2004 from the Brotherhood of Locomotive Engineers and Trainmen. Conductors, trainmen and yardmen subsequently joined the TCRC, as did maintenance workers and traffic controllers, for a total of approximately 10,000 members.
  • United Steelworkers represents some 3,200 CN track workers plus a range of workers at other railways.
  • United Transportation Union represents some 2,800 conductors and yard workers at CN.
  • CAW-TCA (formerly Canadian Auto Workers), the largest private sector union in Canada, has 11,500 members in the rail transportation sector working for CP, CN, VIA and Ontario Northland in a wide range of jobs, including maintenance, ticket sales, clerical and on-board services.

3.1.5 Other Stakeholders

Others are directly affected by railway safety and are eager to contribute to an effective and efficient regulatory framework. These include municipal authorities, First Nations, landowners and residents near tracks and yards, users of roads at crossings, and customers of railway companies (including intermodal carriers) who expect safe and timely deliveries. The public is generally interested in protection of the environment and sustainable development, and issues that affect the transportation network as a whole.

3.2 Accountability Within Transport Canada

Transport Canada delivers its programs by means of a national headquarters and regional structure, like many public and private sector organizations with geographically widespread activities. The Transport Canada, Rail Safety Directorate (national headquarters in Ottawa) is responsible for the overall railway safety framework, including administration of the Railway Safety Act. There are five regional offices - Atlantic, Quebec, Ontario, Prairie and Northern, and Pacific - each headed by a Regional Director General who reports directly to the Deputy Minister of Transport on all aspects of Transport Canada's mandate in that region. Railway safety inspectors designated under the RSA operate from the Rail Safety Directorate national headquarters and from all regional offices.

A simplified overview of reporting relationships is shown in Figure 3.1. This regional structure is intended to establish a proper balance between the need for clear, uniform principles across the federally regulated sector without excessive rigidity, and application and enforcement of those principles in ways that are appropriate to each region. It is comparable to the structures of many federal departments.

The Director General of Rail Safety reports to the Assistant Deputy Minister, Safety and Security, who is also responsible for safety and security in all transportation modes, as well as emergency preparedness and the transportation of dangerous goods. At national headquarters, the railway safety program depends on specialized teams led by directors of key operating branches, as shown in Figure 3.1.

Each of the five regions has a Regional Director, Surface, reporting to the Regional Director General. In most regions, three managers responsible for aspects of railway safety report to the Regional Director, Surface. The Manager, Dangerous Goods Transportation (for all transportation modes) also reports to the Regional Director, Surface in each region. Regional offices are the immediate contact points for operating divisions of railway companies, provincial authorities and agencies, municipalities, and for regional operations of other federal departments.

Railway safety inspectors from the regions conduct inspections and other activities for several provincial governments under memoranda of understanding with Transport Canada. They have considerable autonomy to determine the most appropriate resolution of an issue for local conditions. Their line accountability is through the Regional Director General to the Deputy Minister, not through the Director General, Rail Safety.

Figure 3.1: Transport Canada - Organizational Structure for Railway Safety

Figure 3.1: Transport Canada - Organizational Structure for Railway Safety

We heard that this organizational model may tend to create very independent regions, and presents a challenge for the Director General, Rail Safety to achieve national consistency. We were told about differences in inspection and enforcement actions from region to region, which have led to misunderstandings and a certain loss of trust, both within Transport Canada, and between Transport Canada and railway companies. Some suggested that the activities of railway companies that operate nationally could be overseen directly by railway safety inspectors who report to national headquarters in Ottawa, as is the case in Transport Canada, Civil Aviation for large air carriers. Alternatively, the suggestion was made that Regional Directors, Surface could report directly to the Director General, Rail Safety.

We are not convinced that change in Transport Canada's reporting structure is required, nor that such change would necessarily result in greater consistency, without giving up the benefits of flexibility and suitability to local circumstances. We note that railway companies also adapt their procedures and systems to regional conditions - indeed, as long as they are consistent with the overall framework, we consider this to be one of the strengths of the modern regulatory approach of the Railway Safety Act.

The Panel would like to see Transport Canada, Rail Safety Directorate strengthen its processes and practices to provide clear direction on national matters of safety. The existing departmental organization provides for functional direction and guidance through:

  • written statements of policy or interpretations (which should be developed cooperatively between national headquarters and the regions);8
  • sharing of good practices and lessons learned;
  • regular meetings, workshops, and conferences; and
  • training.

The objectives and anticipated results for railway safety within a national framework for Canada should be developed collaboratively, and agreed upon, by Rail Safety Directorate national headquarters and the regions. This would allow for a reasonable degree of flexibility and adaptation to the railway safety needs of a specific region, and to the overall priorities of that region. Regional managers, directors and directors general would be held accountable for their actions within that national framework.



Recommendation 1

Transport Canada, Rail Safety Directorate should assert its existing responsibility to provide functional direction to regions to ensure:

  • clear and consistent guidance on matters of rail safety rules and regulations;
  • effective communication on rail safety objectives within a national framework; and
  • regional managers are held accountable for their actions within that framework.


3.2.1 Powers of Railway Safety Inspectors

One of the issues we were asked to examine in the course of our Review is how enforcement powers should be delegated to railway safety inspectors (RSIs) under the RSA - how to rationalize the delegation of power to RSIs while preserving their role in dealing with critical safety issues. From our perspective, this is an area where improved guidance and decision-making processes would help to support Transport Canada in exercising its regulatory responsibilities for railway safety.

The Minister of Transport currently designates RSIs for one or more matters (such as equipment, operations, or engineering), as set out in section 27 of the RSA. This power to designate inspectors has been delegated to the Director General, Rail Safety. Once designated, RSIs carry out their responsibilities, with the powers directly delegated to them in the RSA, rather than via the Minister. RSIs have significant powers under section 28 of the RSA to enter premises, inspect, seize property and question people.

Section 31 gives RSIs the powers to issue a notice (if there is a threat to railway safety), or a notice and order (if the threat is immediate), where they believe line works, railway equipment, crossings or vehicles pose a threat to safe operation. In both cases, they must provide their reasons for the action. For example, section 31(3) reads:

(3) If a railway safety inspector is of the opinion that the operation of a line work or railway equipment of a particular railway company threatens the safety or security of railway operations, the inspector, by notice sent to the company or to any other person who owns or leases the equipment,

(a) shall inform them of that opinion and of the reasons for it; and

(b) may, if the inspector is satisfied that the threat is immediate, order either of them to ensure that the line work or railway equipment not be operated, or not be operated otherwise than under terms and conditions specified in the notice, unless the work or Stronger Ties: A Shared Commitment To Railway Safety 29 equipment is operated so as to remove the threat, to the inspector's satisfaction.9

The way this power is expressed appears to give RSIs considerable independence, and may have led some to conclude that inspectors are not under the authority of the Minister. It is the apparent autonomy of RSIs under section 31 that has led to differences and inconsistencies, and considerable frustration for both Transport Canada and the railway companies.

The individual powers granted in section 31, however, must not be read in isolation. In particular, section 31(5) requires that the Minister be informed of each section 31 order, and the Minister has independent statutory authority to review the order of an RSI and can confirm, alter or revoke it (section 31.4). Section 31 orders may also be appealed to the Transportation Appeal Tribunal.10 When section 31 is read as a whole, it is clear that RSIs are not completely independent, and must operate within the authority of the Minister.

The Panel believes that the ministerial powers delegated to the Director General, Rail Safety are sufficient to guide inspectors or to set out the national framework for railway safety within which they should act.

Nonetheless, these powers should not be used in isolation or arbitrarily - indeed, the RSA requires that RSIs provide reasons for their notices, and we have been told that they have recently been advised to include assessment of the threat they have identified. Furthermore, they must immediately inform the Director General, Rail Safety (the Minister's delegate) of the order they have issued, and the reason for it.

In our view, this gives the Director General of Rail Safety and his staff sufficient scope to:

  • provide consistent initial and ongoing training, in all aspects of railway safety, not just technical expertise;
  • set out guidelines;
  • provide standardized language for similar circumstances;
  • collect and share best practices; and
  • ensure that RSIs are accountable for their enforcement actions.

As we have recommended, Transport Canada, Rail Safety Directorate should assert its existing responsibility to provide functional direction to regions. We note that a step has indeed been taken in this direction, with the publication in September 2007 of the Rail Safety: Compliance and Enforcement Policy. We suggest that it would also reinforce clarity and accountability for Transport Canada to make all orders available to the public.

RSIs should seek guidance, through their regional or national headquarters office, but always with the objective of situating their proposed action in the national framework. For example, a template or checklist could be used to determine whether national level guidance is required. Provision of a wider range of compliance tools, including administrative monetary penalties, will be discussed in Chapter 4. We will also discuss how Transport Canada can improve consistency in its guidance for safety management systems.

The Panel recommends, therefore, that there be no change with respect to the delegation of powers to inspectors. For greater certainty and clarity, the RSA should be amended to expressly state that railway safety inspectors exercise their powers under the authority of the Minister.

As noted, the RSA gives the Minister the discretion to reconsider an RSI's order under section 31, "on his or her own initiative."11 This allows an avenue of appeal for railway companies or any other person affected by such an order, since they can ask for this power to be exercised if they feel that they have been aggrieved. The Minister may ultimately confirm the original order, or alter or revoke it by another order. This is a real option under the Act which, to our knowledge, has never been used. It should be developed into a meaningful process. For example, the Minister could delegate this power to a different level or sector of Transport Canada, or choose not to delegate it at all and exercise it directly. Clarifying the relationship of RSIs to the Minister's authority will assist in bringing rigour and accountability to the national framework for railway safety.



Recommendation 2

The Railway Safety Act should clarify that railway safety inspectors exercise their powers under the authority of the Minister.



3.3 Consultation - Transparency and Communication

Effective two-way communication in all aspects of the national railway safety framework is essential to making safety-related decisions, to transparency throughout the regulatory and enforcement processes, and to accountability of all participants. Many submissions stressed the need for active, structured consultation led by Transport Canada, and this view was reinforced by recommendations at public and other meetings - especially with representatives of provincial governments - and by the research we commissioned.12 A provision for a formal consultation process was part of the original Railway Safety Act (1989), and the committee that undertook the first review of the Act in 1994 recommended "implementation of a robust formal consultation mechanism"13 (which they found had not yet taken place).

A rigorous, structured consultation process can be an effective tool to provide transparency and build confidence among all participants in the collaborative approach. It does not tie the hands of the regulator - either in making recommendations about the regulatory framework or in taking enforcement actions and ensuring compliance. Nor does it encroach on the authority of the Minister, or indeed on the responsibilities of companies and their employees. By providing for structured exchange of views and positions, effective consultation leads to a shared sense of direction and vision. Indeed, the Railway Safety Act, as revised in 1999, specifies that consultation is required when rules are being developed (either at the initiative of railway companies,14 or of the Minister of Transport).15 Rules and regulations, however, should not be the only aspect of the national railway safety framework for which consultations are undertaken.

Upon implementation of the amendments to the RSA in 1999, Transport Canada's Rail Safety Directorate did indeed set up a Railway Safety Consultative Committee (RSCC), whose intended role was to:

  1. provide a forum for open communication between Transport Canada and their stakeholders on railway safety and environmental issues
  2. inform parties including railway companies, railway labour unions, other government bodies and representatives of the public
  3. establish action priorities for the development of regulations and rules.16

However, we learned that the RSCC has not met since October 2001. It seems that the process was quickly seen as unwieldy, and that personal agendas sometimes dominated discussion. Formal membership of the RSCC grew to over 130, and formulation of conclusions and recommendations became difficult. Senior repre- sentatives of key stakeholders - potential decision-makers - were no longer eager to participate. Although meetings were supposed to be held at regular intervals, they were not. We learned that only one member (from a labour union) has asked for a meeting since the RSCC last met in 2001.17

An executive committee of the RSCC was also set up, with a much smaller membership, but its role is more limited - to review and prioritize railway safety and environmental issues, to review the progress of working groups, and to establish the RSCC agenda. It too has met infrequently - most recently in December 2006, and before that in January 2006, once in 2003 and three times each in 2000 and 2001.

This is an untenable situation. Consultation must occur for all issues related to railway safety, and at most stages of a process - not just as expressly required under the RSA. It is an essential tool to accomplish specific objectives, and is in keeping with priorities of successive governments for transparency, accountability for public policy, and citizen engagement. Ongoing consultation should be considered a normal routine, and part of a continuing commitment to build good working relationships among stakeholders.

We recommend that the Railway Safety Consultative Committee be revived as a smaller and more focussed group, supported by a permanent secretariat within Transport Canada's Rail Safety Directorate. It should meet regularly for general information sharing and consensus building, with formal operating procedures and a predictable workplan. This approach will support meaningful participation, and members will be more willing to attend meetings if they see that progress is possible.

The revived RSCC should concentrate on strategic issues, including future directions in railway safety, rule making and regulation; policy issues of concern to the regulator and the regulated community; and problems and issues of common concern. A new mandate or charter should be developed for the RSCC, emphasizing that it will address these issues through collective activities. It will be important to build success by starting with smaller projects that can be resolved relatively quickly.

The role of the RSCC should not be limited only to those aspects of railway safety for which the RSA requires consultation, nor to narrowly defined categories of stakeholders.18 For example, it could also be used for the consultation phase with Transport Canada and relevant stakeholders for proposed rules being developed by, or on behalf of, railway companies. It could also be used to consult broadly about data needs and reporting, a topic that we will discuss in Chapter 6.

We suggest that the renewed RSCC meet at least twice a year or perhaps more often at first, to develop a successful track record. It should have no more than 12 to 15 members covering all sectors - railway companies (including short lines) and their sector association, the Railway Association of Canada, unions, provinces, and the broader public interest, for example, Transport 2000. Each sector member should be responsible for sharing information and proposals with the wider sector that they represent. He or she should have an alternate, and also ensure continuity for the originating sector when membership rotates to another representative. Members should be encouraged to participate on behalf of their originating organizations or sectors. They should know what leeway they have to discuss and agree on specific issues, and should state when they have to seek approval from other members or authorities. This would apply also to government representatives.

The revived RSCC should be able to establish permanent technical committees or working groups to cover defined, specific issues. The existing, albeit inactive, RSCC has two working groups - one on Access Control Regulations, and the other on Grade Crossing Regulations. The RSCC itself, and any of its sub-groups, could call on outside experts, representatives of organizations, or other government departments, to provide information and advice on aspects of its work. The expert or organization concerned would not necessarily need to be a long-term member of the RSCC. This approach would allow a wider range of views to be available to the RSCC and its members without making its processes unwieldy.

Transport Canada uses two general types of consultative process. The first type is set up under regulations or orders, as provided by specific legislation. Examples include the Transportation of Dangerous Goods General Policy Advisory Council, and the related Federal-Provincial/Territorial Task Force on Transportation of Dangerous Goods,19 the Canadian Aviation Regulation Advisory Council (CARAC),20 and the Canadian Marine Advisory Council (CMAC).

The second has evolved informally over time without formal legislated obligations. Nonetheless, consultations of this type occur regularly, adhere to a work plan to achieve objectives and have proved to be successful. Transport Canada has various consultative mechanisms with the provinces and territories, which are not established by legislation. Examples include the Council of Ministers Responsible for Transportation and Highway Safety (meets once a year), the Council of Deputy Ministers (meets three times a year), and the ADM-level Policy and Planning Support Committee (meets three times a year face-to-face and holds monthly teleconferences).

The U.S. Federal Railroad Administration (FRA) uses the Railroad Safety Advisory Committee (RSAC), set up in 1996 with a mandate to develop consensus recommendations on safety issues.21 Consideration by the RSAC is a required step in the U.S. FRA rule-making process (equivalent to development of a regulation in Canada). The RSAC includes representatives from all major groups interested in railway safety. The FRA seeks the RSAC's recommendations on specific tasks; on each task, the RSAC can decide whether or not to accept it and begin work. For tasks that it accepts, RSAC members appoint a working group of those most involved with the subject covered by the task. If the working group's recommendations are unanimously adopted by that group and by a majority of the full RSAC, they are sent to the FRA Administrator. While the FRA is free to accept or reject the RSAC's recommendations, it is fully engaged in the working group process to ensure that the recommendations are consistent with the FRA's goals for the rule-making project. As a result, the FRA's proposed and final rules that arise from RSAC recommendations usually incorporate those recommendations substantially.

The RSAC process is very formalized. It is chartered under federal legislation22 that requires standards and uniform procedures to govern the establishment, operation, administration and duration of advisory committees for the executive branch of the U.S. government. The RSAC process is often criticized as somewhat cumbersome and time-consuming, but it is nonetheless used effectively by stakeholders to reach widely accepted solutions. We do not propose that the Transport Canada, Rail Safety Directorate adopt an elaborate consultation model, but some aspects of the RSAC's activities may be applicable to a revitalized RSCC.

We do not consider that it is necessary to revive the RSCC by legislative or regulatory amendment. The commitment to a transparent, accountable and regular process will build a record of success. In turn, this will build confidence and trust among all participants.



Recommendation 3

The Railway Safety Consultative Committee (RSC) should be revived as a smaller and more focussed group. It should meet regularly for general information sharing and consensus building. It should serve as the key forum for discussion of:

  • future directions in rail safety, rule making and regulation;
  • policy issues of concern to the regulator and the regulated community; and
  • problems and issues of common concern, outside the formal rule-making process.

A permanent secretariat should be set up in Transport Canada, Rail Safety Directorate to support the ongoing activities of the RSC. The RSC may be supported by specific working groups and technical committees.



3.4 Working With Other Levels of Government

The restructuring and rationalization of railway companies since the early 1990s has led to the creation of many short line railways which, because they operate within a single province, fall within provincial jurisdiction. Appendix E provides an overview of the railways operating under provincial law. Short line railways generally have limited areas of operation (some operate on track belonging to the two main carriers, CP and CN), and serve targeted markets or specific industries. They can be very responsive to the needs of their local clients, but may not have extensive capital reserves, or management and workforces with a range of expertise. Such companies are an adaptive solution to market needs, and they call for flexibility and collaborative regulation.

Provinces with railways under their jurisdiction (i.e., all except Newfoundland and Labrador, and Prince Edward Island) have taken steps to create the legislation necessary to regulate railways and to link their regimes to the federal Railway Safety Act.

Three basic types of federal-provincial arrangements for regulating railway safety have emerged. These include incorporating federal legislation, regulations and rules, by reference, into provincial legislation; a "consultation model," whereby the provinces concerned decide on the manner in which their regulatory regimes will reflect the RSA; and a model that allows for federal services to be provided to provincial railways in keeping with the federal regulatory regime. These models and their application in different provinces are discussed in more detail in Chapter 4.

As part of ongoing efforts in this area, a Federal-Provincial Working Group on Railway Safety Regulations was established in 1994, by the Council of Deputy Ministers Responsible for Transportation and Highway Safety, to analyze existing regulation of railways under their respective jurisdictions and identify gaps. Subsequently, under the Federal-Provincial Regulatory Regimes Harmonization Project, the Council of Deputy Ministers agreed to create joint databases on regulatory requirements and on accidents and incidents. It also established principles of federal-provincial consultation on regulations.

A Short Line Railways Task Force was established in 2004 under the Policy and Planning Support Committee of the Council of Deputy Ministers. It is primarily a provincial initiative, and a Transport Canada representative (from the department's Policy Group, not the Rail Safety Directorate) attends as an observer. Its initial mandate was to explore the capital, operating and regulatory problems facing short lines across the country and to develop an inventory of short lines. The Task Force also provides a forum for sharing experiences and for discussion between governments on a variety of issues surrounding short line railways, but it is not linked to any of the consultative processes in Transport Canada, Rail Safety.

It is clear that all elements of the Canada Railway Safety Act, its provisions, regulations and rules, are of critical significance to the provinces. This is the case whether or not a province has established its own fully stand-alone regulatory regime, and whether it has its own compliance officers or has an agreement with Transport Canada to use railway safety inspectors. It is essential, therefore, that the needs and concerns of provincial regulators are taken adequately into account and addressed by Transport Canada.

Under the current framework, Alberta has little or no opportunity to influence RSA rules or regulations to address issues that concern Albertans. We are pressed to harmonize with a system that is structurally distant and exclusive, notwithstanding real long standing concerns that have arisen over time.

Province of Alberta Submission, page 2.

Manitoba considers that there is still a fairly uneven process of consultation and communication from the federal government with respect to regulation and rule development. … Manitoba recommends that some mechanism is required to involve jurisdictions that will have to apply the regulations and rules to their constituent railways earlier on in the process.

Manitoba Infrastructure and Transportation Submission, page 2.

New Brunswick has adopted federal rules, regulations, standards and procedures under the New Brunswick Shortline Railways Act and therefore changes to these federal rules, regulations, standards and procedures may have a significant impact on railway operations in the province. The ability to have input into proposed changes is critical to maintaining a harmonized regulatory regime.

New Brunswick Department of Transportation Submission, page 16.

Nova Scotia feels that the consultation process has been at best sporadic and at times limited to a notification process rather than a consultative process.

Government of Nova Scotia Submission, page 4.

We learned that the provinces affected are generally satisfied with the current regulatory approach. It reflects the variety of economic needs and priorities across Canada, and accommodates other provincial and municipal responsibilities, such as emergency and environmental response, and safety regulation for other sectors. Some expressed disappointment, however, at the way specific arrangements had worked out, and were concerned that Transport Canada, Rail Safety Directorate is not paying enough attention to provincial concerns and points of view. We have come to the conclusion that it is not necessary to seek further harmonization of railway safety through changes in federal-provincial arrangements, but to make the existing arrangements work more effectively.

Most provinces seek a considerably more open and consultative approach to rule making. They mentioned to us that there was no consultation or even advance notice about matters that can have major financial and other implications for provinces, railways under their jurisdiction and affected municipalities. They do not consider it adequate simply to be informed after the fact that new or amended rules have been approved.

Transport Canada, Rail Safety Directorate must develop a process for notifying the provinces of possible changes that could affect them. It must invite input to the consultative process according to the regulatory framework that applies to affected provinces. This process should not cause unnecessary delay because of inaction by the provinces (e.g., by providing that if no comment is received from provinces within a specified period, the proposal will proceed to next stage). Finally, the provinces must be notified of the result.

Transport Canada and the provinces should make more effective use of the Federal-Provincial Working Group on Railway Safety (FPWGRS). This group is the re-named Federal-Provincial Working Group on Railway Safety Regulations that was set up in 1994. It last met in November 2006, and before that once in 2003, and three times in 2001. It is chaired by the Director General, Rail Safety, Transport Canada, and includes representatives from the provinces designated by the Council of Deputy Ministers, and representatives of Transport Canada regions (Surface). The FPWGRS could be part of the solution to a more consultative relationship on matters of policy and rule making, and should be involved in more issues and at an earlier stage. It is an instrument of the Council of Deputy Ministers, and therefore can report to them on issues that may affect other parts of their mandate (such as highway safety). It is also part of Transport Canada's national framework of railway safety, and can be directly involved with emerging and ongoing policy issues at all stages.

We have suggested that the revived Railway Safety Consultative Committee, described above, should have a member representing provinces. Provincial participation in the RSCC would also provide an important understanding of the issues and challenges facing the wider railway safety community. This member could be a link to share information and proposals between the federal-provincial-territorial consultations and the revived RSCC.

The key is that Transport Canada must listen to provincial concerns and address them cooperatively and openly.



Recommendation 4

Transport Canada should institute the practice of regular consultation with concerned provinces on all matters to do with railway safety affecting provincially regulated railways. The Federal-Provincial Working Group on Railway Safety should be used more deliberately as an information sharing and consultative forum.



3.4.1 Agreements

Several provinces have entered into agreements or memoranda of understanding with Transport Canada, in particular to obtain inspection and other services under their safety framework from railway safety inspectors designated under the Railway Safety Act (Canada). The legislative authority for such agreements lies not in the RSA itself, but in the Canada Transportation Act,23 in the part dealing inter alia with powers of the Canadian Transportation Agency (CTA) in relation to railway transportation. Such agreements fall under the general headings of "Agreements to apply transportation law to provincial railways," and other agreements made with provincial authorities. However, these agreements apply to matters otherwise governed by the Railway Safety Act, such as railway safety; accident investigation and railway crossings; railway noise; and construction, operation and safety of a railway.

We see no reason why the railway safety aspects of such agreements should not be addressed by a power under the Railway Safety Act itself. Indeed, we consider that it would add clarity and transparency to the national framework for railway safety. We note that section 6 of the RSA allows the Minister to enter into agreements with the CTA to provide for coordination of activities between Transport Canada and the Agency.

We have also learned that Transport Canada, Rail Safety Directorate has had an active relationship with the U.S. FRA for many years. Formal and informal meetings are held between the two organizations to cooperate on issues of common concern regarding the regulatory oversight of their respective railway industries, for example, on new railway safety technologies, and harmonization of safety requirements to facilitate cross-border traffic. The relationship has developed without any express provisions to this effect in the Railway Safety Act.

We consider that it could be beneficial for Transport Canada to be able to develop agreements with foreign governments, such as that of the United States, concerning railway safety. This would allow Transport Canada to maximize and secure the benefits of international cooperation initiatives, such as sharing of information and mutual recognition of safety standards, by means of reciprocal agreements. There are also foreign and international organizations (for example, standards-setting bodies like the International Organization for Standardization (ISO), and standards bodies in specific countries) with which Transport Canada may wish to develop agreements or understandings.



Recommendation 5

The Railway Safety Act should be amended to authorize the Minister to enter into agreements with provincial governments or foreign governments or any international organization with respect to all matters relating to railway safety and security.



Over and above the processes and systems that are put in place, effective functioning of the RSA requires the collaboration and participation of interested parties. Other participants must feel confident that they can all work together successfully.



Notes:

1 See also James Mitchell and Nigel Chippindale, Sussex Circle Inc., The Governance of Railway Safety in Canada (September 2007), a report of research commissioned by the Panel (see section 6).

2 The department's "Vision Statement," from Transport Canada: 2006-2007 Departmental Performance Report, for the period ending March 31, 2006, page 4.

3 Transportation of Dangerous Goods Act 1992 (1992, c. 34), s. 5.

4 Canadian Transportation Accident Investigation and Safety Board Act (1989, c. 3), s. 7(1).

5 The TATC replaced the Civil Aviation Tribunal, under legislation that came into force in June 2003. At that time its mandate was expanded to cover the rail sector.

6 Railway Safety Act (1985, c. 32 (4th Supp.)), s. 3 (c).

7 The statutory authorities for railway police were transferred to the RSA from the Canada Transportation Act in June 2007.

8 We note that Transport Canada's Rail Safety: Compliance and Enforcement Policy, issued in September 2007, directs RSIs who are considering enforcement options to advise regional management and Transport Canada national headquarters, to seek functional guidance, if they believe the "observed instance of non-compliance or safety concern goes beyond a single instance and may be wide-spread, including across more than one region." This is a good example of the practices we recommend.

9 RSA s. 31(3), "Inspector may forbid operation of certain works or equipment."

10 Since 2003.

11 RSA, s. 31.4.

12 See, for example, Mitchell and Chippindale, Sussex Circle, Governance, op.cit.; Deana Silverstone, The Legislative and Institutional Framework for Railway Safety in Canada (July 2007); Harvey Sims, Sussex Circle Inc., The Development of Work/ Rest Rules for Railway Operating Employees: A Case Study Prepared for the Railway Safety Act Review Panel (August 2007); submissions from: the Railway Association of Canada (RAC), unions, provincial governments and municipalities.

13 Railway Safety Act Review Committee, On Track: The Future of Railway Safety in Canada, Report of the Railway Safety Act Review Committee (December 1994), pages 54-55.

14 RSA, s. 20(2).

15 RSA, s. 19(8).

16 Transport Canada, "Transport Minister Attends Inaugural Meeting of Railway Safety Consultative Committee," News Release No. H03S/99 (April 21, 1999).

17 Although the RSCC has not met frequently, we understand that its large membership is considered to be a "stakeholder list," and is used for distribution of documents of interest by Transport Canada, Rail Safety.

18 For example, when the Minister directs a railway company to formulate a rule, RSA s. 19(8).

19 Established by Minister's Order (under the Transportation of Dangerous Goods Act 1992, s. 26), setting out its general mandate and duties; both meet twice per year).

20 Canadian Aviation Regulations (SOR/96-433), 103.01(2). Set up in 1993, CARAC's prime objective is to assess and recommend potential regulatory changes through cooperative rulemaking activities. It has participation from a large number of organizations outside Transport Canada representing the overall viewpoint of the aviation community.

21 Federal Railroad Administration website, http://www.fra.dot.gov/us/content/53 ; Silverstone, Framework, op. cit., paragraphs 234-247.

22 Federal Advisory Committee Act, 5 U.S.C. App. 1, Public Law 92-463.

23 Canada Transportation Act (1996, c. 10), ss. 157.1, 158.

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