1. Introduction
Transport Canada (TC), through the Railway Safety Act (RSA) and other
applicable legislation, promotes and regulates the safety of railway
operations by federally regulated railway companies and provincially
regulated railway companies applying federal regulatory requirements
(e.g., when operating on a federally regulated host railway or subject
to federal-provincial Agreements, etc.). TC also regulates the
activities of other relevant bodies (e.g., road authorities,
municipalities, etc) to promote safe railway operations by federally
regulated and relevant provincially regulated railway companies.
The purpose of the Rail Safety Compliance and Enforcement Policy (C &
E Policy) is to provide guidance to Transport Canada officials involved
in:
- promoting compliance with railway safety regulatory requirements
developed under the RSA and other applicable legislation and the
safety of railway operations,
- monitoring for compliance and safety, and,
- responding to non-compliance and threats to / concerns with
respect to safe railway operations, to help them fulfill these tasks
in a fair and consistent manner across the country.
For the purposes of this document, compliance is defined as:
conforming to regulatory requirements including, but not limited to
legislative provisions, regulations, rules, standards, orders and
emergency directives established under the RSA; while enforcement is
defined as: the measures that are taken to bring about compliance. Other
relevant definitions can be found in Appendix A.
Objectives of the RSA:
The objectives of the RSA are a key part of the foundation on which
the C & E Policy is built. Section 3 of the Act states:
The objectives of this Act are to:
- promote and provide for the safety of the public and personnel,
and the protection of property and the environment, in the operation
of railways;
- encourage the collaboration and participation of interested
parties in improving railway safety;
- recognize the responsibility of railway companies in ensuring the
safety of their operations; and
- facilitate a modern, flexible and efficient regulatory scheme that
will ensure the continuing enhancement of railway safety.
Consistent with these objectives, this policy seeks to promote and
provide for safety in the operation of railways by providing guidance
on: developing clear and enforceable regulatory requirements in a
collaborative manner; actively monitoring and evaluating railway
operations and practices; promoting and enforcing compliance with
regulatory requirements; and, responding to threats and safety concerns
with respect to rail safety.
The policy is likewise consistent with and supports TC’s vision,
mission, values and strategic objectives and values.
Smart Regulation and the “Continuum of Compliance Activities”:
This policy was developed in the context of the continuing, rapid
change in the railway industry, and incorporates concepts derived from
Smart Regulation – a government-wide initiative aimed at improving the
Government of Canada’s regulatory system. Smart Regulation strives for a
better-coordinated, more transparent system that remains
forward-thinking, progressive, and accountable to the citizens it
serves.1
Informed by Smart Regulation, the C & E Policy establishes the
framework for a better-coordinated and more coherent compliance and
enforcement program. For example, the policy recognizes that efforts to
promote compliance must begin at the regulatory development stage, since
compliance is facilitated by regulatory requirements that are clear, and
enforceable.
This recognition of a continuum of compliance activities, from
drafting to implementation to enforcement, helps to underpin the current
policy and is expected to improve both the level of compliance by those
regulated and railway safety official’s ability to promote, monitor and
enforce compliance and safety.
Structure of Document:
After specifying the policy’s applicability (section 2), this
document outlines the Policy’s objectives (section 3) and identifies and
describes activities for promoting and enforcing compliance and safe
railway operations (section 4 and 5, respectively). It then sets out the
enforcement and corrective action tools available to Transport Canada
when non-compliance or safety concerns/ threats are discovered and lists
factors that are taken into consideration when determining which of
these tools to use in response to either scenario (section 5). Finally,
the document’s appendices contain: a list of relevant definitions
(Appendix A); a flow-chart illustrating Rail Safety’s activities with
respect to enforcing compliance with regulatory requirements and
responding to safety concerns/threats (Appendix B); a list RSA offences
(Appendix C); contact information for TC, Surface offices (Appendix D);
and, a list of links to related documents and websites (Appendix E).
For further assistance and/or clarification concerning this policy,
contact:
Director, Safety Policy and Regulatory Affairs,
Rail Safety Directorate,
Safety and Security Group
Transport Canada
Enterprise Building, 427 Laurier Ave West
Ottawa, On, K1A 0N5
Tel: 613-990-8690
2. Applicability
This policy applies to all TC rail safety officials, both in the
Regions and Headquarters, involved in promoting, monitoring or enforcing
safe rail operations and compliance with regulatory requirements under
the RSA and other applicable legislation. The policy likewise applies to
the actions such officials take (e.g., drafting clear regulatory
requirements, conducting safety audits, issuing Notices) to promote,
monitor or enforce safe railway operations and compliance with
regulatory requirements.
3. Concepts and Objectives
Smart Regulation Concepts:
As indicated above, this policy incorporates concepts derived from
the Government of Canada’s Smart Regulation Initiative. While these
concepts are intended primarily to guide the regulatory process, they
are also useful in the context of promoting compliance. Some of the
Smart Regulation concepts applied to and adapted for this policy include
the following:
- Effectiveness
- Efficiency
- Timeliness
- Transparency
- Accountability and Performance
- National and International Cooperation
- Risk Management
- Instrument of choice
For more information on Smart Regulation, including these concepts,
please visit www.regulation.gc.ca.
Policy Objectives:
As a key component of TC’s national Integrated Rail Safety Program,
the objectives of this policy are:
- To promote and provide for safety in the operation of railways;
- To promote regulated parties’ awareness of the regulatory
requirements of the RSA;
- To facilitate and promote compliance with regulatory requirements
under the RSA;
- To promote safe railway operations and facilitate the
identification and resolution of safety concerns / threats to safe
railway operations;
- To help ensure regulatory requirements are developed and applied
in a fair, impartial, appropriate and consistent manner and in
accordance with Government of Canada priorities and principles;
- To encourage effective consultations and communications with
regulated parties and stakeholders;
- To raise awareness of redress mechanisms available to regulated
parties, which give them a reasonable opportunity to respond to
enforcement/threat response actions; and,
- To respect the confidentiality of information obtained through the
administration of regulatory requirements and communicate such
information only to those entitled to receive it.
4. Activities Contributing to Compliance and Safety
As mentioned above, TC seeks to encourage compliance and safe railway
operations at all stages of the regulatory cycle, from development to
implementation to monitoring and enforcement. TC’s compliance and
enforcement activities are planned using accepted risk management
practices, as appropriate, and are conducted by TC Rail Safety
officials. This section provides a description of the activities TC rail
safety officials undertake to promote, monitor and enforce both
regulatory compliance and safe railway operations more generally.
4.1 Activities for Promoting Compliance and Safety:
Regulatory Development:
TC activities for promoting compliance and safety at the regulatory
development stage include the following:
- Clear and enforceable requirements – When regulatory requirements
are being developed TC officials strive to ensure they are both clear
and enforceable. Clearly worded regulatory instruments promote
compliance by making it easier for regulated parties to understand
what the instrument requires. Enforceable requirements likewise
encourage compliance through the deterrent effect of possible
enforcement action.
- Consultations – TC is committed to the practice of consultation,
which it considers to be a fundamental element of good governance.
Interested parties are consulted whenever new legislation,
regulations, or important policies are being planned or developed. To
this end, a Railway Safety Consultative Committee (RSCC) was
established. The RSCC enables interested parties, including railway
companies, railway labour unions, other government bodies and
representatives of the public, to provide input to government decision
making in the interest of improving railway safety in Canada.
Implementation:
TC also promotes compliance and safety through the following
activities aimed at facilitating the implementation of railway safety
requirements:
- Safety Management Systems (SMS) – In 2001, TC issued regulations
under s. 47.1(1) the RSA requiring railway companies to develop and
implement SMS. An SMS is a formal framework for integrating safety
into the day-to-day operations of a rail company. SMS encourages
compliance by obliging railway companies to identify applicable
regulatory requirements and the procedures for demonstrating
compliance with them. SMS also promotes the development of a “safety
culture”, which is intended to encourage railway companies to operate
in a safe manner and comply with regulatory requirements under the RSA.
- Providing Information – While regulated parties are responsible
for being aware of the regulatory requirements that apply to them, TC
strives to ensure that all regulated parties are aware of and have
access to all regulatory requirements to which they are subject. This
is done, for example, by posting rail safety regulations, rules,
standards, guidelines etc on the TC’s website and by sending copies of
new rules and standards to affected stakeholders when they are
approved by the Minister.
- Education and Awareness – TC seeks to inform relevant parties
about, and help them to understand, the rail safety requirements set
out in the RSA and its regulations, rules, standards, orders, etc. For
example, Rail Safety officials provide information and advice to
interested parties about the content and application of the RSA and
its regulatory requirements. TC also provides information materials to
stakeholder conferences or directly to individual railways or other
relevant organizations. Finally TC contributes to public awareness
campaigns and occasionally conducts seminars and workshops on
particular issues (e.g., regarding the implementation of a new rule).
- Counselling – This tool is used prior to observing
non-compliance or unsafe railway operations to promote compliance and
safety and to encourage railway companies to correct potential
non-compliance or unsafe operations voluntarily. When counselling, TC
discusses general or specific compliance or safety concerns with
regulated parties, and provides them with information regarding the
reasons for the concerns, the rationale for the safety / regulatory
requirements and the potential consequences of non-compliance or
unsafe operations. Railway companies are then expected to take the
necessary remedial action voluntarily. TC Railway Safety Inspectors (RSI)
then monitor to ensure such action is taken.
4.2 Activities for Monitoring Compliance and Safety:
TC monitors for compliance with applicable regulatory requirements
and for safe railway operations by railway companies via the national
Integrated Rail Safety Program. Activities for monitoring regulatory
compliance and safe railway operations include the following activities:
- Data collection & analysis – TC collects and analyses data to
identify trends in railway safety (e.g., regarding safety awareness,
railway practices and compliance with regulatory requirements) and to
determine whether regulatory action is required to address any
identified safety concerns. Data is collected in several ways. For
example, TC’s SMS regulations require railway companies to submit data
regarding accident rates and safety performance. In addition, RSIs
collect information through inspections and investigations (see below
for more information). This information is used to conduct risk
assessments, which TC uses to set priorities and make decisions on
regulatory matters.
- Inspections - Inspections are a key component of the compliance and
safety monitoring process and are used to verify compliance with rail
safety regulatory requirements (and in cases of non-compliance, inform
decisions regarding possible enforcement action), collect data (see
above), and identify possible safety concerns or threats to rail safety
that require corrective action. Inspections may be stand-alone
activities or may be conducted as part of the audit process (see below).
Inspections can be conducted based on Risk Based Business Planning,
at the discretion of TC or “for cause”. For example, upon receipt of a
complaint regarding an alleged unsafe condition, or possible
non-compliance with a regulatory requirement, an RSI may do an
inspection “for cause” to verify if such a condition or situation
exists, evaluate the possible risks, and determine whether enforcement
or corrective action is required.
- Safety Audits - Audits are used to verify and promote compliance
with regulatory requirements and the safety of railway operations.
Audits are conducted to assess a railway company’s safety performance. SMS audits are conducted pursuant to a railway company’s SMS, or any
component of its SMS, including whether the company’s actual operations
conform to the procedures they developed to demonstrate compliance with
applicable regulatory requirements.
- Accident/Incident Investigations – TC may investigate an occurrence
(i.e., an accident or incident) for any purpose other than to make
findings as to its causes and contributing factors, which are the
responsibility of the Transportation Safety Board. For example, TC may
wish to investigate an occurrence where it has reason to believe that
non-compliance was involved or that a regulatory void may exist. The
decision to attend a rail accident/incident and to investigate the
occurrence will be at the discretion of a Rail Safety manager.
Investigating incidents and accidents also provides TC an opportunity to
collect valuable data for advancing rail safety. For further
information, refer to subsections 14(3) and 14(4) of the
Canadian
Transportation Accident Investigation and Safety Board Act.2
4.3 Activities for Enforcing Compliance and Responding to Safety
Threats / Concerns
As mentioned above, the term enforcement, for the purposes of this
document, refers to “measures that are taken to bring about compliance”.
This definition illustrates the fact that the enforcement aspect of the
policy is concerned primarily with encouraging regulated parties to
comply with regulatory requirements – thereby promoting railway safety.
In addition to enforcing compliance with regulatory requirements, TC
responds to safety concerns and threats to safe railway operations,
which might involve matters not subject to regulation. Under the RSA, “a
threat is a hazard or condition that could reasonably be expected to
develop into a situation in which a person could be injured or made to
be ill or damage could be caused to the environment or property, and a
threat is immediate if such a situation already exists.”
TC has a variety of tools available to it to enforce compliance and
respond to safety concerns / threats to safe railway operations in a
manner that is proportionate to the risk that the regulatory violation
or threat poses to safe railway operations.
List of Tools for Enforcing Compliance and Responding to Safety
Threats / Concerns:
- Letter of Non-Compliance – TC uses this tool to both promote
compliance and respond to non-compliance. Letters of non-compliance
identify the non-compliance and include a timeframe for the violator
to detail their corrective action plan. Appropriate follow-up action
is taken to verify corrective actions undertaken by the regulated
party. Failure to correct the non-compliance may result in progression
towards prosecution.
- Letter of Concern – This tool is used to identify and inform
railway companies of safety concerns. The letters include a timeframe
for the company to provide a corrective action plan to address the
safety concerns. Appropriate follow-up action is taken to verify
corrective actions undertaken by the regulated party. Failure to
correct the safety concern could lead to regulatory action or ongoing
monitoring / re-evaluation to determine if the concern poses or
develops into a threat to safe railway operations.
- Notice or Notice and Order – These tools are used to respond to
threats to safe railway operations; they are not tools for enforcing
compliance with regulated requirements. A Notice is a formal written
document, issued by an RSI under section 31 of the RSA, informing a
regulated party that, in the opinion of the RSI, a threat to safe
railway operations exists. A Notice and Order is a formal written
document, issued by an RSI under Section 31 of the RSA, informing a
regulated party that, in the opinion of the RSI, an immediate threat
to safe railway operations exists and prescribing specific action to
remove the immediate threat. Under subsection 41(2) of the RSA,
contravention of an Order is an offence and can lead to prosecution.
It should be noted that the Transportation Appeal Tribunal of Canada (TATC)
can review a Notice and Order.3
- Ministerial Order – is a formal written document, issued by the
Minister under Section 32 of the RSA, informing a regulated party of a
particular rail safety problem and ordering them to address that
problem. For example, such orders may be issued when, in the opinion
of the Minister: a railway work is unauthorized or improperly
constructed, altered or maintained; there is an immediate threat to
safe railway operations as a result of a person contravening a
regulation under Section 24 of the RSA; or, an SMS established by a
railway company has deficiencies that risk compromising railway
safety. Under subsection 41(2) of the RSA, contravention of an Order
is an offence and can lead to prosecution. A Ministerial Order can
also be reviewed by the TATC.
- Emergency Directive – Under Section 33 of the RSA, if the Minister
is of the opinion that there is an immediate threat to safe railway
operations, the Minister may issue an Emergency Directive ordering a
railway company to cease a particular unsafe action, or take specific
action set out in the Emergency Directive to mitigate the immediate
threat identified. The Directive may remain in effect for up to six
months and may be renewed for an additional period of six months.
Under subsection 41(2) of the RSA, contravention of an Emergency
Directive is an offence and can lead to prosecution.
- Order of the Court – Under Section 34 of the RSA, a Ministerial
Order, Emergency Directive or Notice and Order may be made into an
Order of the Court – in the case of a Notice and Order, it must be
first confirmed by the Minister and thereby given the same effect as
an order of the Minister – and enforced as such (e.g., via contempt of
court proceedings, or by seeking an injunction). Should this option be
pursued (e.g., in a case where a railway company fails to comply with
an Order, Ministerial Order or Emergency Directive), it is imperative
that TC Legal Services be advised as soon as possible to initiate
appropriate action.
- Prosecution – The Attorney General of Canada is responsible for
all litigation relating to the RSA, and its subordinate regulations,
rules, orders, standards, etc. Transport Canada officials may
recommend prosecution of a violation of the RSA or a regulatory
requirement made under it and present information to the Attorney
General of Canada. However, it is the Attorney General of Canada who
decides whether or not a prosecution will be initiated or continued.
Prosecution is more likely to be recommended in cases of serious,
willful, uncorrected or continued non-compliance or of failure to obey
Orders issued by RSIs or the Minister of Transport.
Factors for Selecting an Enforcement or Corrective Action Tool:
TC is committed to enforcing regulatory requirements and responding
to safety issues / threats in a fair, objective and consistent manner.
To help ensure this, the following factors are considered when deciding
on the appropriate enforcement or corrective action for any given
situation:
- the nature of the non-compliance or safety concern, including
consideration of the seriousness of the non-compliance or concern
(e.g., the resulting harm or potential harm to life, health, property
and the environment – and in particular whether there is a threat to
safe railway operations
- whether there are apparent attempts to conceal pertinent
information, including the violation or safety concern/threat itself,
or otherwise subvert the objectives and requirements of the Act;
- whether the violator attempted to comply with, or intentionally
contravene the applicable requirement(s);
- whether the non-compliance or safety concern is correctable
on-site;
- the regulated party’s previous compliance and safety record and
whether the violation or safety concern is likely to recur;
- what corrective / remedial action may be necessary to achieve
continuing compliance / safe railway operations by the regulated
party;
- the attitude of the violator or regulated party (e.g., their
willingness to co-operate with RSIs, evidence of corrective action
already taken, etc);
- responsibilities under applicable federal/provincial
administrative agreements; and,
- statutory conditions and obligations (e.g., with respect to the
existence of a threat to safe railway operations).
Wide-spread non-compliance and safety concerns:
Where it is believed that an observed instance of non-compliance or
safety concern goes beyond a single instance and may be wide-spread,
including across more than one region, the RSI, in addition to
responding to the non-compliance or safety concern as outlined above,
should advise regional management, who will in turn inform headquarters
(HQ) of the issue, as required. The appropriate HQ Functional Branch
will then evaluate the issue to determine if is a pan-regional or
nation-wide problem requiring national remedial action. If so, HQ (i.e.,
the appropriate Functional Branch and Safety Policy and Regulatory
Affairs) will develop, in consultation with the region(s) and other
relevant stakeholders, as necessary, the appropriate response.
5. Roles and Responsibilities:
Many Rail Safety officials contribute to the implementation of the C
& E Policy. In accordance with departmental policy, TC seeks to ensure
that all staff responsible for railway safety program activities covered
by the C & E Policy, including those designated as RSIs, will be
provided, as part of the Rail Safety Business Plan and in accordance
with approved resources, the training and resources required to carry
out their assigned mandate. This section provides a brief description of
the responsibilities of several relevant groups (listed in alphabetical
order).
Functional Branches, HQ:
HQ Functional Branches are responsible for providing expert advice on
technical rail safety issues. For example, they are responsible for, or
contribute to, the following activities under this Policy:
- participating in the development of regulatory requirements;
- evaluating, and helping to develop national responses to, possible
wide-spread rail safety / non-compliance problems;
- helping to provide information and delivering education and
awareness programming; and,
- evaluating and providing advice regarding enforcement programs.
Railway Safety Inspectors (RSIs):
RSIs conduct all on-site monitoring and have front-line
responsibility for monitoring and enforcement activities. In addition,
they provide information, perform education and awareness activities and
conduct counselling. Under the RSA, RSIs are given extensive powers to
enable them to fulfill their pivotal role in monitoring and enforcement.
Regional Directors – Surface:
In general, with respect to the C & E Policy, Regional Directors are
responsible for overseeing:
- the development and delivery of monitoring and enforcement
activities (e.g., audits and inspections);
- the development and delivery of regional education and awareness
programs;
- the tracking of regional trends in non-compliance or safety
concerns / threats to safe railway operations; and,
- the identification of possible wide-spread rail safety /
non-compliance problems.
Safety Policy and Regulatory Affairs Branch, HQ:
This Branch is responsible for coordinating the development of
regulatory requirements in consultation with TC regional offices and HQ
Functional Branches, industry, relevant associations and organizations
and other stakeholders. In the context of this Policy, the Branch is
responsible for the compliance promotion activities during the
regulatory development stage (see section 4.1, above). The Branch also
contributes to the evaluation of, and the development of national
responses to, wide-spread rail safety / non-compliance problems.
TC Legal Services:
As mentioned above, the Attorney General of Canada has responsibility
for pursuing and conducting litigation under the RSA. In addition to
that role, TC Legal Services provides advice to the Rail Safety
Directorate on various issues – including issues related to enforcing
compliance with regulatory requirements and responding to safety
threats.
Notes:
1. For more information on the Smart Regulation initiative,
please visit www.regulation.gc.ca.
2.
http://laws.justice.gc.ca/en/C-23.4/index.html
3.
More information on the TATC can be found on
their website at:
http://www.cat-tac.gc.ca/