Chapter 9: Operational Issues

Over the course of the public consultations, the Panel heard comments on a number of operational issues and safety concerns. Submissions were received outlining concerns from many presenters on issues such as fatigue management, locomotive design, event and voice recorders, rail traffic control locations, track and infrastructure, training, train dynamics and drug and alcohol programs.

For the most part, operational issues stem from the operation of trains and the impact on their crews. As we discussed in Chapter 5, the rail industry has evolved, but it still remains rule-driven. These rules have been the mainstay for controlling train movements and reducing or preventing accidents and, in many cases, have become the basis for determining accident causation. As the science of human factors has grown, however, this approach, as a primary way to prevent human factor-related accidents, is in question.

Accidents and incidents are rarely the result of a single cause. Rather, they occur as a result of the combination of failures or deficiencies in organizational policy and procedures, human actions and equipment.1 This complexity necessitates that both the proximate and underlying causes, as well as their interrelationships, be considered in investigations. Unfortunately, conventional accident investigation processes tend to stop when a proximate cause is found, such as a rule not being followed.2 We believe that improving the overall safety culture of an organization is, ultimately, a better approach than simply correcting a single operator's localized behaviour. We are convinced that this will have a positive impact on addressing many of the operational issues that were brought to our attention.

9.1 Fatigue Management

Fatigue within the railway environment is a significant problem. The Panel heard that, in some cases, locomotive engineers are reporting for work insufficiently rested and are worried for their safety. We have recognized that there is a clear relationship among the regulated Work/Rest Rules, the collective agreements between operating employees and companies, and the need for effective fatigue management plans. Given the complex operating environment of the railway system, these relationships must be in harmony.

Until the 1980s, the hours of work for railway operating employees were not subject to regulation. These employees were exempt from Part II of the Canada Labour Code and there were no restrictions on their hours of work and rest other than their collective agreements. This changed after a passenger train and freight train collided head-on outside Hinton, Alberta in 1986. Crew fatigue was found to have played a major role. In 1987, the Canadian Transport Commission issued interim orders mandating minimum off-duty time for railway operating employees. The interim orders were replaced with a railway-written Rule Respecting Mandatory Off-Duty Time, which was approved by Transport Canada in July 1993, on the condition that the industry, through the Railway Association of Canada (RAC), develop a second rule setting out the maximum hours of work for such employees (i.e., the Work/Rest Rules). A working group was struck which included members of the RAC and union representatives.

The rail mode is unique in the world of transportation because of the difficulty for the major freight railways in scheduling work assignments in advance. Throughout our consultations and research, we were informed that work scheduling can have positive effects on fatigue management. We learned that such positive effects were more noticeable in eastern than in western Canada, due to better scheduling.

Some of the causes of fatigue are uncertainty about the time of one's next assignment, excessive working hours, long commutes and waiting times before beginning work, unsatisfactory conditions for sleeping at some "away-from-home" terminals, and personal decisions not to rest during the day, even when subject to call the next night. The working group considered all of these factors.

The CANALERT '95 study recommended that the following fatigue countermeasures be put into place:

  • Provide regular and predictable duty periods;
  • Require rest after outbound night runs and prior to overnight return runs;
  • Implement napping strategies system-wide;
  • Exempt napping train crews from train inspection responsibilities;
  • Install reclining seats in locomotive cabs;
  • Modify bunkhouse rooms for improved daytime sleep;
  • Install locomotive cab audio systems;
  • Conduct and extend lifestyle-training programs; and
  • Train rail traffic controllers and crew callers in fatigue strategies.

During the development of the Work/Rest Rules, working group members found that the issue of fatigue was much more complex than first anticipated. The working group realized that it would need a more thorough understanding of fatigue and its impact on train crew alertness. A wide-ranging study was undertaken to provide greater understanding and insight into the issue of crew alertness and, if possible, to develop a set of fatigue countermeasures, which would enhance alertness levels without affecting operations.

The report produced by this study, entitled Alertness Assurance in the Canadian Railways or CANALERT '95,3 was completed in 1995 and published in 1996. In brief, this comprehensive study concluded that even in the unique environment of the railway industry, there are fatigue countermeasures that, when implemented and complied with, would significantly reduce the negative effects of fatigue on safe train operations. These countermeasures, in fact, resulted in a corresponding improvement in job satisfaction for the group of engineers involved in the study.

The CANALERT '95 study used a sample of locomotive engineers from two subdivisions (one from CP and one from CN) who operated trains under typical but stressful mountainous railway operating conditions. These engineers were scientifically monitored during both awake and operational periods, as well as during rest and sleep periods, to establish a baseline and then to assess any gains of a proposed fatigue countermeasure. The study found that a significant improvement to alertness was possible and concluded that fatigue is a real issue in Canadian railways; hours of work and rest regulations cannot guarantee protection against fatigue; fatigue countermeasures can be successfully implemented in railway operations; circadian sleep and alertness principles are effective in addressing employee fatigue in railway operations; countermeasure effectiveness requires countermeasure compliance; and maintaining alertness is a joint responsibility of employees and management.

Armed with the CANALERT '95 study results, the working group, led by the Railway Association of Canada, developed the Work/Rest Rules, which attempted to balance the interests of the railways (safe and cost-effective crewing of their trains), of employees (quality of life and incomes) and the public interest in safe railway transportation.

The working group, which was joined by a representative of Transport Canada's Rail Safety Directorate, finalized the Work/Rest Rules for Rail Operating Employees and an interpretation document, known as Circular 14 - Recommended Procedures and Practices for the Application of Work/Rest Rules. These finally came into effect in April 2003, some seven years after the publication of the CANALERT '95 recommendations. Transport Canada, Rail Safety Directorate immediately began to hear concerns from the industry and railway employees about inadequate features of the rules and attempted to correct them.

Following subsequent work and several meetings between the RAC and Transport Canada, Rail Safety Directorate, the 2005 Work/Rest Rules for Railway Operating Employees (the "Work/Rest Rules") were developed and implemented, replacing the 2003 version.

While examining this issue, the Panel learned that recent research into the effects of fatigue in an occupational setting involving continuous operations has led to several key findings.4 Some of these findings can assist in the effective management of fatigue issues and should be considered in the establishment of safety minimum rules that are meant to apply across an entire sector or industry. For example, sleep deprivation will result in cognitive performance deficits; disruption of circadian rhythms will lead to a decrease in performance; human beings are not very good at estimating their current level of alertness; and most importantly, time off, by itself, may not guarantee a rested workforce.

Further, research has found that the magnitude of the negative effects of fatigue will vary by individual. While fatigue research provides a variety of measures to illustrate the magnitude of the performance decreases, one of the more interesting - or alarming - comparisons was presented to the Panel in a research paper,5 which pointed to tests that demonstrated that the effects on performance of working for 18 hours can be equivalent to the effects of a blood alcohol level of 0.05 per cent or greater.

Eight Important Fatigue Management Criteria

  1. Time of day
  2. Circadian rhythms
  3. Duration of opportunity for sleep
  4. Sleep quality
  5. Predictability (of start time)
  6. Sleep debt (extended sleep period)
  7. Time on task
  8. Short breaks

A 2005 Australian study on Working Hours Regulation and Fatigue in Transportation compared the regulations applying in four modes of transportation in four countries, and outlined eight important fatigue management criteria for such regulations.6

Given the research on this subject, the Panel shares some of Transport Canada's reservations about the content of the 2003 Work/ Rest Rules. Common sense causes us to question the safety value of legislated rules allowing, or one could say encouraging, railway engineers and other operating employees to work two shifts in a row (up to 18 hours in a 24-hour period) with as little as a coffee or meal break between shifts.7 Further, the 2005 Work/Rest Rules still allow for a maximum combined on-duty time of 18 hours. Requirements for rest are expressed in terms of "off-duty" times, rather than opportunities for sleep. This distinction is important because expressing requirements in terms of opportunities for sleep would support the principle that sleep is the important element, not just time "off duty."

The Work/Rest Rules also rely on the ability of operators to judge their own level of fatigue, when the research is clear that people (especially sleep-deprived individuals) are very poor judges of their fatigued state and do not reliably estimate their alertness and performance.8

Given these research findings, it is the Panel's opinion that the current version of the rules needs improvement.

In conjunction with the Work/Rest Rules, the working group intended that some of the fatigue countermeasures to improve alertness levels would be addressed in railway companies' fatigue management plans. The rules require fatigue management plans to be implemented by railway companies and considerable importance was initially placed on the development of these plans. They were to address key issues such as work scheduling, training, on-the-job alertness strategies, rest environments, work environments and unusual circumstances.

In fact, the Work/Rest Rules require that these plans be developed collaboratively between management and unions and be designed to reduce fatigue and improve on-duty alertness. They are also to reflect the nature of a specific operation such as "work trains" on a particular territory, and consider significant detail such as traffic patterns, traffic density, train length and geographic considerations, to name just a few.

We learned that fatigue management plans have been developed and submitted to Transport Canada, Rail Safety Directorate by all railway companies. To be effectively implemented, an evaluation of the plans would assess their comprehensiveness and whether or not all requirements provided in the Work/Rest Rules and the conclusions of fatigue science are being considered. These assessments would include an evaluation of human factors.

While there appears to be strong acceptance within the Transport Canada, Rail Safety Directorate for the role of human factors, there is equally clear acknowledgement that the Directorate does not have adequately qualified people to assess human factors science with respect to fatigue issues. Although railway companies have filed these plans with Transport Canada, we are not clear whether the plans meet the requirements of current human factors science and have been thoroughly evaluated by the Rail Safety Directorate. Furthermore, we do not believe that the content of these fatigue management plans has been incorporated in the Rail Safety Directorate's ongoing compliance monitoring program to ensure that the plans are being applied and are effective.

Given that some of these research findings are counterintuitive, it is imperative that education, planning and predictability are instilled within an organization to maximize utilization of work/rest schedules. If these factors are considered from the outset, developing work programs or basic rest standards will then be complementary to working conditions and to sound collective agreement negotiations that can lead to agreements providing for adequate rest periods. Any difficulties and problem areas can be dealt with in functional fatigue management plans developed in keeping with current fatigue science.

There is a shared responsibility between railway management and unions to ensure that collective agreements do not compromise any positive alertness level gains that may be forthcoming from the fatigue management plans or provisions of the Work/ Rest Rules. Issues such as time away from work, and rates of pay must complement the Work/Rest Rules and the provisions of the company's fatigue management plans.

It seems that at the time of the CANALERT '95 study, Canada was on the leading edge of incorporating the key elements of fatigue research into the railway-operating environment; however, it would appear that Canada has since lost momentum.



Recommendation 43

Fatigue management is dealt with in complementary ways, such as work/rest rules, fatigue management plans, and terms and conditions of employment.

  • The current Work/Rest Rules do not provide a satisfactory baseline framework for managing the risks associated with fatigue in rail operations. The rules should be amended to better reflect current science on fatigue management.
  • A robust system of fatigue management plans is needed. Transport Canada should audit them as it does for safety management system plans.
  • Fatigue management is also an issue that railways and employees should address in the establishment of terms and conditions of employment.


9.2 Locomotive Event and Voice Recorders

Electronic data recording equipment is required to some extent in all transportation modes in Canada, with the exception of highways. At this time, data event recorders are required on a locomotive by regulation (rather than voice recorders which are used in the aviation industry).

Event recorders continuously record speed, throttle settings and other information, and are used on all main track locomotives. In the United States, this data has been recorded, typically, on magnetic tape. In Canada, however, we have been using an improved solid-state electronic memory module to store this data. Accident investigators use the data to provide valuable insight into the circumstances leading to railway accidents and incidents. The data is easily accessible to the railway company for operational and/or maintenance purposes. In both magnetic tape and solid-state modules, however, the memory medium is vulnerable to damage from fluids, fire and impact.

Transport Canada recently incorporated in the Locomotive Inspection and Safety Rules, the U.S. Federal Railroad Administration (FRA) 'aviation-equivalent' criteria for the survivability of data recorders. These rules now require that all new locomotives be equipped with an event recorder that meets survivability standards and records sufficient, useful parameters for recreating events prior to and, if possible, after an accident or incident. As part of a phased-in approach, existing locomotives will be required to have crashworthy event recorders on the lead locomotive.

The Transportation Safety Board (TSB) has expressed reservations about using existing aviation mode survivability standards in the railway environment. Although it is encouraged by almost all of the other improvements, the TSB still raises concerns about the survivability of the memory when involved in a fire. Aviation crashes typically involve intense heat for short durations, whereas railway accidents may involve fires of much longer duration.

A requirement to ensure survivability and require voice recording on locomotives would enhance TSB's ability to investigate and bring more safety deficiencies to light.

W. Tadros, Chair of the TSB, Remarks to the Railway Safety Act Review, April 2007

Although event recorders must be manufactured to meet the new Canadian and U.S. requirements, thus providing for significantly enhanced survivability in a fire situation, the recorders are only required to remain intact for a period of 60 minutes. The TSB is concerned that this is not a long enough period and that, in such situations, even the data on new recorders may be lost.

Following an investigation of a VIA Rail occurrence in January 1999 near Kingston, Ontario, the TSB recommended in July 2003 that Transport Canada and the railway industry develop comprehensive national standards for locomotive event recorders and that those include "a requirement for an on-board cab voice recording interfaced with on-board communications systems."9 In its response, Transport Canada indicated partial acceptance of the recommendation, and initiated a project to provide advice on the establishment of standards. To our knowledge, there are no provisions for voice recorders in Canada other than in the aviation mode.

The Panel believes that the use of voice data can make an important contribution to the determination of causes and contributing factors to accidents and incidents by providing insight into the conduct and capacity of the locomotive crew.



Recommendation 44

Transport Canada should require the application of voice recorders on all new and existing locomotives, with survivability provisions similar to those for locomotive event recorders.



9.3 Rail Traffic Control

Rail traffic controllers (RTCs) supervise all train movements throughout the Canadian railway system, over numerous main tracks and for the various railway companies. Different control systems governing train movements are used. Centralized traffic control governs train movements on signalled track. On non-signalled tracks, often referred to as "dark territory," RTCs are responsible for the safe and efficient movement of various types of trains, including freight trains, passenger trains and commuter trains, along with many of the tourist trains that operate throughout the Canadian system.

The primary responsibility of the RTC is to ensure the safety of trains and personnel on or near the tracks, including both railway workers and the general public. A rail traffic controller is required to maintain a specified level of medical fitness, and this position is designated, therefore, as a railway safety critical position by the Rules Governing Safety Critical Positions. These rules require RTCs to submit to extensive medical exams prior to being appointed. They must maintain this level of medical fitness and be subject to periodic medical exams.10

Rail traffic controllers:

  • Control and route passenger and commuter trains safely and expeditiously to maintain their scheduled performance;
  • Control and route freight trains on their railways which can include passenger-carrying tourist railways;
  • Control and route special trains and tourist trains while intermixed with freight trains;
  • Communicate and plan with other rail traffic controllers on adjacent territories and control centre locations for trains passing from one territory to another;
  • Maintain and plan safe access track times for track maintenance work or inspections of signals and turnouts;
  • Authorize train movement by way of train orders for reduced track speeds, planned train meets and train bypassing etc.;
  • Advise train crews of improper track conditions, defective crossings and, when notified, provide advance notice to train crews of obstacles on the tracks, such as abandoned vehicles, trespassers, high water conditions, and fires;
  • Coordinate and plan with emergency response personnel, such as police officers and firefighters when required to deal with emergency situations, train derailments and crossing accidents.

Currently, Transport Canada, Rail Safety Directorate conducts audits of all the rail traffic control centres in Canada for compliance with the operating and medical rules that are applicable. Given that all RTC centres are physically located in Canada, railway safety inspector powers provided under the Railway Safety Act (RSA) remain in full force, ensuring access to all information related to this safety-critical rail operation. New technology has made it feasible to centralize RTC locations, or to locate their operations outside Canada. This would limit the ability of Transport Canada, Rail Safety Directorate to fulfill its oversight obligations under the RSA. The Panel recognizes the important role that the RTC position plays in railway safety and the importance of keeping the compliance monitoring of this position within Canada.



Recommendation 45

The Government of Canada should ensure that rail traffic control in respect of operations in Canada be physically located in Canada in order to ensure appropriate regulatory oversight.



9.4 Engineering

The Panel is aware that some clarity concerns have been raised pertaining to specific engineering sections in the RSA. For example, under section 11 of the RSA, all "engineering work" concerning rail infrastructure must be done in accordance with "sound engineering principles." Neither of these terms, however, is defined in the RSA, which some have asserted may lead to problems with interpretations, resulting in unclear expectations and making enforcement difficult. The Panel understands that these phrases lack clear definition, but believes it is important that they remain as a baseline in the Act and be complemented by rules and regulations that provide for clarity in terms of their application.

In addition, regulations have not addressed all of the main components of railway works. There are currently no regulations respecting the construction, repair, inspection or maintenance of bridges.



Recommendation 46

The reference to "sound engineering principles" in section 11 of the Railway Safety Act should be maintained and, where appropriate, specific standards or rules for construction, alteration and maintenance of a railway work should be developed.



Section 11 of the RSA requires that all engineering work related to railway works (design, construction, evaluation or alteration) be done "in accordance with sound engineering principles" and that a professional engineer must be responsible for the work. There is no mandated general duty of care, however, with respect to maintenance of works, which requires the ongoing repair, inspection and maintenance to also be conducted under the responsibility of a professional engineer.

Regulations respecting the maintenance of a railway work should be established, where appropriate. These regulations could include engineering standards that clarify maintenance requirements throughout the life span of the railway work.

As set out in the Railway Safety Management System Regulations, SMS plans are required to outline the processes and manner in which a railway company will provide for compliance with the RSA and the rules and regulations that are developed under its authority. The SMS Regulations require that a railway company submit an SMS plan and annual updates. Such plans should include how a railway company will ensure that its engineering maintenance programs are designed and implemented in accordance with sound engineering principles.



Recommendation 47

A general duty of maintenance of a railway work, in accordance with "sound engineering principles," should be included in the Railway Safety Act. The railway company's SMS plan should demonstrate how that company ensures that its maintenance conforms with "sound engineering principles."



9.5 Training for Operating Crews

The Panel heard from a number of presenters that the quality of the current training in place to educate and qualify locomotive crews has declined over a number of years and that some crew members are not as qualified as they need to be to take charge of a train.

The Railway Employee Qualification Standards Regulation has been in effect since March 16, 1987. Although the regulation has not been updated since it was implemented, it contains provisions to ensure that the training and certification of locomotive crews are being maintained at a significantly high level. The regulation specifies not only the operating crew positions that must meet the requirements of the regulations, but also criteria to be met by each candidate along with the passing grade that must be achieved. The positions specified are locomotive engineer, conductor, and hostler, or yard person.

The Railway Employee Qualification Standards Regulation also outlines the requirements for an instructor responsible for training and certifying candidates for a position specified in the regulations. It specifies that a training program must be filed with Transport Canada, Rail Safety Directorate, along with any changes or alterations to the program. The training and qualification programs can differ from railway company to railway company, and have been evolving to meet the needs of the industry.

The Panel learned that Canadian railway companies administer and update their training programs on an ongoing basis. Instruction in, and testing on the rules is conducted and the re-qualification of employees occurs continually. On some railways, new operators are assigned mentors who are responsible to coach newly qualified operating crew on the interpretation and application of rules. Even though the regulation itself has not been updated to reflect the current nomenclature, training and certification programs administered throughout the industry have been updated. Transport Canada monitors these training programs and, through audits, ensures that a crew member has the appropriate qualifications to fulfill the duties of the position.

In the United States, the FRA certifies all locomotive crews. As well, the Department of Transportation in the U.S. certifies all aviation and marine crew members. In Canada, Transport Canada also certifies all aviation and marine crew members, but there are no provisions for Transport Canada certification of railway operating employees.

Transport Canada, Rail Safety Directorate has programs in place to address the qualifications of locomotive crews and rail traffic control positions. Nonetheless, there is a perception that because sole responsibility for certification of the candidates rests with the industry, there may not be sufficient objectivity. While consideration was given to recommending alternative approaches to the certification of the running trades, we understand that the current regulation will be superseded by new training rules and that these rules will address this issue.

9.6 Train Dynamics

Several aspects of train dynamics were brought to the Panel's attention as having safety implications. These included train marshalling, distributed power, and dynamic brakes. We had discussions with the railway companies and, coupled with our independent research, we learned how these issues are being and should be managed.

Train marshalling is a term used to describe the placement or location of the cars in a train. The safety aspects of marshalling were brought to the attention of the Panel by the TSB11 and were raised in some presentations to the Panel as part of the public consultations. Improper train marshalling can escalate even minor component failures, such as brake valve malfunctions triggering an emergency brake application, into serious derailments. Trains can typically be marshalled one of two ways - "marshalling for train dynamics" or "destination marshalling."

CP Alyth Yard, Calgary, Alberta, April 2007
CP Alyth Yard, Calgary, Alberta, April 2007

Marshalling for train dynamics involves a structured approach to reduce in-train forces. Marshalling a train for improved train dynamics is accomplished by placing the loaded cars or heavier cars towards the head end of the train, and the empty or lighter cars towards the tail end, regardless of destination. This type of marshalling can dramatically reduce negative in-train dynamic forces that can be generated, for example, from an emergency brake application. Excessive forces can be generated as the heavier cars brake at a slower rate than the lighter cars. If the heavier cars are placed behind the lighter cars, a "run-in" occurs, which can result in an excessive build-up of longitudinal forces. If the build-up of forces is sufficient, it can lead to a derailment.

Also, marshalling for train dynamics reduces in-train forces for trains operating over territory with steep grades and sharp curves, thus lowering the risk of derailment. It reduces a build-up of lateral forces in a curve, for example, which can have the tendency to straighten the train ("stringlining") and cause a derailment. Stringlining was a contributing factor in the derailment and spill of a dangerous commodity into the Cheakamus River in British Columbia.

Destination marshalling groups cars together in blocks that are destined for the same location and eases the workload of en route switching activity required along the train route. Destination marshalling involves a reduced crew workload, fewer train delays and greater cost savings, while minimizing handling of cars. It is the marshalling method most often used in the industry today. As a simple example, a train departing Toronto can be marshalled with cars destined for Sudbury first in line, Thunder Bay second in line, Winnipeg third in line and so on. The destination blocks of cars can easily be uncoupled from the train. Destination marshalling, however, can lead to a disproportional distribution of loaded cars at the tail end of the train and empty cars at the head end, which is counter to optimal train dynamics.

One method to offset any negative effects of a destination-marshalled train is the use of distributed power. This places some of the locomotives that are required to pull the train either in the middle of the train or at the tail end, pushing the train. These locomotives are controlled by a locomotive engineer at the head end of the train through a remote control system, which provides full access to the braking and power systems on every locomotive in the train. Distributed power is especially useful to move larger, heavier trains as it distributes the longitudinal in-train forces throughout the train rather than focussing them at one end.

Distributed power also results in better brake response times, reducing the build-up of run-in longitudinal forces. It is being used extensively in mountainous regions, where the grades and curvatures of track are the most severe, and where it can mitigate dangerous "stringlining" forces that can be created throughout a train.

Locomotive engineers can be provided with a computer-generated "tonnage profile" which highlights the placement of heavy and light cars in the train. The engineer can then use this information to adjust his train handling to help counteract the build-up of negative train forces.

Using software developed by the Association of American Railroads, CP simulated derailments to determine how train marshalling may have been a contributing factor in accidents, and followed this work by developing countermeasures. Building on this, CP developed its own software, naming it TrAM (Train Area Marshalling). TrAM helps to detect marshalling issues that would impact train dynamics. The concept is intended to assist in the building of trains at major marshalling yards and reduce the build-up of negative in-train forces, thus improving train dynamics. The locomotive engineer is provided with improved information about how the train is marshalled, which permits more informed train-handling techniques.

There have also been significant improvements to the airbrake valves in use today. Brake control valve malfunctions have been significantly reduced. The newer valves are much less likely to trigger an emergency brake application unless initiated by the locomotive engineer. Also, railway companies now have better testing methods to isolate and remove cars that are prone to this problem.

Airbrake valve manufacturers and the railway industry are testing new technologies, such as electronic/pneumatic braking systems, that will lead to even better and quicker brake applications throughout the train, along with significant reductions in undesired emergency brake applications. This decreases the likelihood of excessive in-train dynamic forces being generated.

Dynamic brakes, which use the locomotive traction motors to generate stopping power, are considered to be a vital component for train control, especially in mountainous terrain. Transport Canada, Rail Safety Directorate has ordered the use of dynamic brakes under certain conditions, as they provide additional braking and train control options for the locomotive engineer to assist with downhill operations. The Panel is satisfied that the railway industry in Canada is actively engaged in improving train dynamics for safety purposes. Given that this is a purely operational issue, the Panel feels that the solution should come from the industry. Nonetheless, the issue is vital to the safe operation of trains in the mountainous regions of Canada, and should be monitored closely by Transport Canada, Rail Safety Directorate.

9.7 Drug and Alcohol Testing

In Canada, there are no regulatory requirements for mandatory random drug and alcohol testing of railway employees in safety sensitive positions. Such requirements do exist in the U.S., however, and it has been suggested to the Panel that we should align with our neighbour on this question.

Railway companies generally test for drugs and alcohol in pre-employment and post-accident situations, as well as for reasonable cause. With the agreement of their employees, railway companies could also institute random testing for drug and alcohol for employees in safety critical positions, since being free of drug or alcohol intoxication can be considered a bona fide occupational requirement under the Canadian Human Rights Act. If random testing were implemented, the Canadian Human Rights Act would require railways to accommodate employees who were found to be alcohol or drug-dependent.12

Given that unions generally object to random testing for drugs and alcohol for privacy reasons (thus making it difficult for employers to institute testing), we were asked by some stakeholders to recommend that such testing be made mandatory by regulations under the Railway Safety Act. In effect, the Act (section 18 (1) (c) (iv)) does provide enabling powers to control the consumption of alcohol by employees in positions critical to the safe operation of railways, and to prohibit the consumption of alcohol and the use of drugs by these persons.

Given the human rights issues raised by instituting mandatory random drug and alcohol testing, the Panel considers that a convincing case has not been made for pursuing this suggestion.

Regulations providing for mandatory random testing for substances would infringe on rights protected under the Canadian Charter of Rights and Freedoms. Sections 7 (right to life, liberty and security of the person), 8 (right to be protected from unreasonable search or seizure) and 15 (equality rights) of the Charter could be invoked to challenge the regulations.

In the present state of science, random testing for drugs would likely not withstand a Charter challenge because of the absence of a correlation between testing positive for drugs and having been impaired while on duty. This explains why the Railway Safety Act allows for regulations for the control of alcohol consumption but not for the control of drug use.

While mandatory alcohol testing could not be met with the same objection, it is far from clear that it would withstand a Charter challenge. Once it is established that a regulation infringes on a Charter right, it is inoperative unless the government can establish that the infringement is justified under section 1 of the Charter. Many factors would make this demonstration difficult in the case of mandatory alcohol random testing. Companies already test for alcohol when there is reasonable cause or after an accident, so they are not without means of controlling alcohol abuse. Although statistics provided to the Panel would tend to indicate that substance abuse is more prevalent in Canada than in the U.S., at present, there is no evidence that substance use is more of a factor in railway accidents in Canada than in the U.S.

The Panel also notes that there is no consensus in the industry in favour of government- imposed random alcohol testing. Unions are against the measure and, while the Railway Association of Canada is recommending it, the Panel's meetings with individual companies would indicate that there is not wide consensus on the issue.

For the preceding reasons, the Panel is not prepared to recommend that mandatory random drug and alcohol testing be instituted by way of regulations under the Railway Safety Act. Considering the importance of controlling substance abuse by persons employed in positions critical to the safe operation of railways, however, the Panel strongly encourages employers and employees to continue to work together on the establishment or enhancement of programs to deal with drug and/or alcohol dependence.



Notes

1 Maury Hill and Associates, Inc., Adaptive Safety Concepts, A Study of the Role of Human Factors in Railway Occurrences and Possible Mitigation Strategies (August 2007), section 2, "Conceptual Frameworks for the Human Factor;" section 3, "A Definition."

2 Ibid., section 3.

3 Moore-Ede, Martin et al., Alertness Assurance in the Canadian Railways: Phase II Report (CANALERT '95), Circadian Technologies, Inc. (May 1996).

4 Maury Hill, Human Factors, op. cit., section 4, "Summary of Effects of Fatigue on Performance."

5 Ibid., section 4.

6 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), paragraphs 43, 204 and Annex 6.

7 Circular 14, pages 7-9, quoted in Sims, Sussex Circle, Work/ Rest Rules Case Study, op. cit., Annex 1.

8 Maury Hill, Human Factors, op. cit., section 4, "Fatigue in Railway Operations."

9 Transportation Safety Board, Railway Investigation Report R99T0017, Train Passed a Signal Indicating Stop, VIA Rail Canada Inc., Kingston Subdivision, Trenton, Ontario, 19 January 1999 (July 29, 2003), Recommendation R03-02, page 30.

10 Also, RTCs must achieve a 90 per cent passing grade on their final operational and rules qualification exam. This is the only front-line position required to obtain such a high mark.

11 Wendy A. Tadros, Chair, Transportation Safety Board of Canada, Opening Remarks to the Railway Safety Act Review Panel (April 2, 2007).

12 Canadian Human Rights Commission, Draft Policy on Drug and Alcohol Testing (June 2007), pages 1-2.

 
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