Table of Contents:

• Executive Summary
• Chapter 4: The Legislative Framework
• Chapter 5: The Regulator: Roles and Responsibilities
• Chapter 6: People, Roads and Railways
• Chapter 7: Rail Safety and the Environment
• Chapter 8: Substance Use and Abuse
• Chapter 9: Provincially Regulated Railways
• Chapter 10: Safety in the Future
• Appendix: Other Issues

Executive Summary

The mandate of the Railway Safety Act Review Committee was to review the Railway Safety Act (RS Act). We did so in the context of the events that led to the RS Act's creation, its current impacts and its appropriateness for the future. We examined the present system and have made Recommendations that we believe will serve to promote the highest level of railway safety in the most effective and efficient manner possible.

These changes will allow the industry to prosper in the future by being responsive, competitive arid, most importantly, safe.
The RS Act, which came into effect in January 1989, was intended to "ensure the safe operation of railways," and its efforts were focused on:

• engineering standards and grants for railway works that contribute to safe railway operations;
• regulation and rule-making powers regarding the operation and maintenance of railway works and equipment;
• non-railway operations affecting railway safety;
• the Minister's power to appoint railway safety inspectors (RSIs), and to issue orders and emergency directives;
• the Minister's power to establish a Railway Safety Consultative Committee;
• regulations incorporating by reference any classification, standard or procedure, and their publication; and
• necessary changes to other statutes to make them consistent with the RS Act.

To ensure that the implementation of the RS Act met all parties' expectations, a provision was made for a review of its impact on railway safety after five years.

During our review, we found that railways in Canada are safe in comparison with competing mocks of transportation and railways in other nations. We note, however, that there are safety areas in which situations beyond the railways' control can have tragic consequences, such as drivers of motor vehicles who take insufficient precautions at grade crossings and risk collisions with trains. We were frustrated by the lack of knowledge of the causes of and remedies for these problems and believe firmly that we must investigate and develop workable solutions.

After reviewing the state of rail safety, we came to the conclusion that the system must be changed to one that is both non-prescriptive and industry-driven. lb that end, we report our findings and advocate improvements to the overall safety framework, but leave the details ro the appropriate authorities. We encourage maximum flexibility for the railways, the regulator and other levels of government to implement the recommended changes. This is in keeping with the spirit of the RS Act itself, which was based on a desire to provide the railway companies with greater freedom to manage their operations safely and efficiently.

Ideally, we envision the regulator as serving more as an auditor, adhering to the strictest standards of quality assurance and leaving the railways themselves to propose and manage how they will ensure optimum rail safety. We give considerable attention to modernizing the safety framework by eliminating out-of-date regulations, improving the consultation mechanism and developing a new and responsive process. We recommend that railway-developed safety programs be established as rules under the Act, thus creating a "contract" between the regulator and the regulated.

The regulator continues to play the lead role in ensuring public safety. The railway companies have always placed great emphasis on railway safety and have provided an impressive set of standards and procedures to ensure that their operations are among the safest in the world. One of the Committee's concerns, however, lies in the areas of interface between railways and the public, where the railways have less control and where the dangers have been demonstrated to be of greater consequence. This is illustrated in such examples as grade crossings and anti-whistling rules, for which responsibility is in some instances unclear and may lie partly with the provinces or municipalities. We recommend a number of cooperative initiatives in such instances, to ensure greater safety to the public in areas where there is interface with railway operations. The Committee proposes that the federal government show leadership by clarifying roles for governments, railways and road authorities in this critical area. We see a need for greater focus on education in the context of road—rail intersect issues. We urge all parties involved to strive together to develop and implement a comprehensive plan to reduce by 50% within 10 years the accident rate at Canadian grade crossings.

Our review considers a variety of issues affecting or affected by railways: the environment; the use of intoxicating or mood-altering substances by those in safety-sensitive positions; the roles of the railway companies and their industry associations in ensuring safety; arid the emerging number of short line railways as more and more rationalization of Canada's rail infrastructure takes place.

The Committee also notes with some alarm the proliferation of acts of vandalism on railway property, and the threat they pose to safety. The recent act of sabotage at Brighton, Ontario, resulting in injury to more than 40 passengers and several million dollars' worth of damage to a VIA Rail passenger train, illustrates vividly the need to eliminate these senseless acts.

We have devoted a chapter to a recently burgeoning side of the industry — smaller, provincially regulated railways. This sector is growing as the larger, federally regulated railways consolidate their operations. Our concern is that safety regulation must evolve to mirror the nature of the industry itself, which is continentally interconnected. The current regulatory system varies from province to province. The federal regulator, in performing inspections in some provinces, must adapt to take into account the specific attributes of all classes of railway. A consistent and national scheme is clearly needed both to ensure safety and to provide a framework in which this segment of the industry may flourish.

Our various analyses and Recommendations are examined collectively in Chapter 11 of the report, where we propose a new and comprehensive framework for regulating railway safety in Canada. Within that framework, the regulator is urged to seize the mantle of leadership in areas such as crossing safety by combining the numerous factors involved into a coherent policy thrust acceptable to and feasible for all parties involved.

A more efficient model will require the Railway Safety Directorate (RSD) to first restructure its decision-making apparatus for 1he setting of priorities to link them to established performance objectives and to ensure it has the appropriate skills to undertake its new mandate. We also comment on the need for a more coordinated effort to collect and disseminate safety data in this country.

Chapter 4: The Legislative Framework

Recommendation 4.1

We recommend that the Railway Act be amended so as to eliminate duplicate safety provisions.

Recommendation 4.2

We recommend that coordination agreements as contemplated in Section 6 of the Railway Safety Act be implemented between the National Transportation Agency and the regulator to ensure all safety issues are addressed.

Recommendation 4.3

We recommend that Section 35(3) of the National liansportation Act, 1987 be revoked.

Recommendation 4.4

We recommend that Sections 150 and 152 of the National Transportation Act, 1987 be amended to remove all references to engineering matters and jurisdiction over safety matters.

Recommendation 4.5

We recommend that Section 36 of the Railway Safety Act be revoked.

Recommendation 4.6

We recommend that the Railway Safety Act be amended to provide for a statutory framework that sees the railways propose performance standards and a comprehensive safety plan to implement the standards, both of which must be approved by the regulator. We further recommend that approved performance standards and safety plans be made binding on railway companies.

Recommendation 4.7

We recommend that Section 19 of the Railway Safety Act be amended to allow the regulator to establish rules on matters of public safety.

Recommendation 4.8

We recommend that the Railway Safety Act be amended to provide for authority for the railways to formulate rules under Section 20 of the Railway Safety Act in respect of those matters set out in Sections 7 and 18(2).

Recommendation 4.9

We recommend that any existing guidelines concerning matters of public safety be put forward as regulator-sponsored rules.

Recommendation 4.10

We further recommend that any rules sponsored or required to be filed by the regulator be subject to cost-benefit analysis.

Recommendation 4.11

We recommend that the Railway Safety Act be amended to provide that Section 31(9) be revoked and that appeals of notices and orders issued under Section 31 be directed to a qualified, publicized body, independent of the regulator. We further recommend that there be a provision to permit a timely review and resolution of any appeals, with decisions from this body to be final, it being understood that orders are to remain in force until the appeal has been decided.

Recommendation 4.12

We recommend that the Minister of Transport implement the Railway Safety Consultative Committee as specified in Section 44 of the Railway Safety Act. We further recommend that the Act be amended to eliminate the specified membership and to permit the Minister to appoint members as required, including representation from railways, unions and public interest groups.

Recommendation 4.13

We recommend that Sections 19 and 20 of the Railway Safety Act be amended to ensure that all parties are subject to the same time constraints for consultation under the rule-making process.

Recommendation 4.14

We recommend that Section 22 of the Railway Safety Act be amended to require a consultation process with relevant associations, similar to the process established by Sections 19 and 20, and that a time period be prescribed within which the association consulted may make its views known. We further recommend that the Minister be required to make a decision on an application for an exemption within 30 days of receipt, with provision for one extension of no more than 60 days.

Recommendation 4.15

We recommend that a statement of policy relevant to railway safety, outlining objectives and roles, be included in the Railway Safety Act.

Chapter 5: The Regulator: Roles and Responsibilities

Recommendation 5.1

We recommend that the requirement in Section 11 of the Railway Safety Act that an affidavit be filed with the Minister by a professional engineer be replaced by a requirement for a letter of declaration by the person in charge of the work on behalf of the party undertaking the work.

Recommendation 5.2

We recommend that the regulator, in conjunction with railways, provinces and other relevant parties, perform an analysis of data requirements and availability to fulfil its role as a monitoring and auditing agency and to implement means to collect and analyze the required data.

Recommendation 5.3

We recommend that the regulator implement a nationally coordinated program of monitoring, auditing and inspection to hold railways accountable for their safety plans. We further recommend that the current emphasis on front-line inspection be replaced by monitoring of key safety indicators, adherence to a multi-year comprehensive audit plan and the strategic use of limited frontline inspection.

Recommendation 5.4

We recommend that railways and the regulator work together to establish key indicators and the requisite data streams, as well as an optimal approach to conducting comprehensive audits of the railways' safety plans.

Chapter 6: People, Roads and Railways

Recommendation 6.1

We recommend that Transport Canada place higher priority on prevention/education activities as they relate to grade crossings and that a more appropriate proportion of resources be directed to such programs.

Recommendation 6.2

We recommend that Transport Canada establish and publish clear objective criteria to guide applications relating to grade crossing improvements and that an up-to-date comprehensive list of prioritized grade crossing improvement projects be publicly available.

Recommendation 6.3

We recommend that the Railway Safety Act be amended to give the Minister of Transport power to order work for grade crossing improvements and to authorize grants on his or her own initiative where, in the Minister's opinion, it will enhance safety.

Recommendation 6.4

We recommend that regulations be promulgated under Section 24(1)(e) of the Railway Safety Act to enable railways to exercise their authority to clear sightlines. We further recommend that the regulator explore the possibility of sharing the authority for entering adjoining lands to clear sightlines with provinces and municipalities.

Recommendation 6.5

We recommend that Sections 24(2) and 25(3) of the Railway Safety Act he reviewed with a view to achieving a fair resolution of the issue of compensating private landowners, including a determination as to whether and by whom compensation should be paid.

Recommendation 6.6

We recommend that Transport Canada work in concert with the railway industry and other relevant authorities to establish safety standards for all types of railway crossings in Canada, and that, following the determination of acceptable standards, a plan be developed to ensure that all railway crossings meet the new standards within a specified time or be closed.

Recommendation 6.7

We recommend that Transport Canada undertake and publish a comprehensive evaluation of the impacts and effects of anti-whistling on safety and determine the type of protection required before anti-whistling is implemented at crossings. We further recommend that Transport Canada and the railways not approve any new anti-whistling agreements with municipalities until the review has been completed.

Recommendation 6.8

We recommend that Transport Canada develop a comprehensive plan to cut in half the accident rate at Canadian grade crossings within 10 years. The plan should not be limited to rules governing grade crossing improvements and separations, but should include research and education needs.

Recommendation 6.9

We recommend that Transport Canada investigate, in cooperation with the appropriate authorities in other levels of government and the railway industry, all financial and technical aspects relating to the use of traffic signals to prevent accidents at rail crossings.

Recommendation 6.10

We recommend that Transport Canada undertake a review of Canada's standards for grade crossings on high-speed rail lines in conjunction with an analysis of high-speed rail abroad to ensure that Canadian standards are maintained at the highest practical level.

Recommendation 6.11

We recommend that Transport Canada, the railway companies and other responsible parties jointly undertake research to achieve increased safety in driver responses at rail crossings, and that such research include an assessment of the technical feasibility, cost and behavioural implications of new technologies.

Recommendation 6.12

We recommend that Transport Canada, other authorities and various affected parties sponsor research to determine the most effective ways of understanding and reducing or eliminating trespassing on railway property. The research should deal with behaviour, enforcement, public education and prevention.

Recommendation 6.13

We recommend that authority be given to issue tickets for violations of anti-trespassing rules, under either the as yet unproclaimed federal Contraventions Act or the Railway Safety Act.

Chapter 7: Rail Safety and the Environment

Recommendation 7.1

We recommend that a Memorandum of Understanding between Transport Canada, Environment Canada and the National Transportation Agency be developed for the purpose of ensuring environmental protection as it applies to railway operations.

Recommendation 7.2

We recommend that all newly acquired rail passenger cars be equipped with toilet systems that have full-retention capability and that, where feasible, existing cars be retrofitted no later than the year 2005.

Recommendation 7.3

We recommend that the National Transportation Act, 1987 be amended to require that any application for a rail abandonment be accompanied by a full assessment of its environmental impact, to include factors such as increased congestion of highways, increased pollutants and risk analysis, and that the results of such an assessment be considered in the approval process.

Recommendation 7.4

We recommend that Transport Canada and other government agencies review both the current regulatory arrangements and the sources of funding for transportation infrastructure investments for the purpose of creating greater balance between highway and rail. Any policy proposals should address factors such as safety and environmental protection.

Chapter 8: Substance Use and Abuse

Recommendation 8.1

We recommend that Section 18(1) (c) (iv) of the Railway Safety Act be amended so as to clearly give authority to the railways to implement a substance use testing program for employees in safety-sensitive positions. Such testing programs should be in the context of the overall programs of employee counselling and education.

Recommendation 8.2

We recommend that substance use be studied in order to determine the extent of the problem. Any existing programs should be adjusted to reflect the results of the study.

Chapter 9: Provincially Regulated Railways

Recommendation 9.1

We recommend that provinces without proclaimed legislation and regulation be encouraged to implement their own legislative plan compatible with the federal regime or sign a comprehensive agreement with Transport Canada to perform the inspection, monitoring and auditing of railways within provincial jurisdiction on their behalf.

Recommendation 9.2

We recommend that Transport Canada take into account the specific attributes of each class of railway in any agreements with provinces for the inspection of provincial railways.

Recommendation 9.3

We recommend a joint federal–provincial effort to clarify the regulatory jurisdiction over industrial spurs.

Recommendation 9.4

We recommend that Transport Canada seek agreements with the provinces to establish a national, coordinated regulatory system for railway safety following the implementation of this Committee's regulatory program.

Chapter 10: Safety in the Future

Recommendation 10.1

We recommend that previous Recommendations by the Transportation Safety Board of Canada concerning main track derailments be revisited by both government and industry professionals with a view to raising standards for early detection of rail fatigue, mechanical equipment failure or divergent operating practices.

Recommendation 10.2

We recommend that, where any rationalization of the rail infrastructure leaves open the possibility for abandonment of a main line, consideration be given, if financially feasible, to making sections of that main line available for the exclusive use of passenger traffic, in order to reduce congestion and increase safety.

Recommendation 10.3

We recommend that Transport Canada and the railways collaborate to undertake research on, and develop, new railway safety technologies, including advanced train control systems, and that all participants strive for a uniformity of application.

Recommendation 10.4

We recommend that the Railway Safety Act be amended to provide that all orders, rules or regulations dealing with safety matters and issued by the previous authorities be deemed to have been revoked as of January 1, 1997, but only in respect of the safety matters addressed by those instruments.

Recommendation 10.5

We recommend that Transport Canada maintain and make available a comprehensive, up-to-date volume of all orders and instruments provided for in the Railway Safety Act that are not otherwise published in the Canada Gazette.

Recommendation 10.6

We recommend that any new regulations or rules introduced under the Railway Safety Act have a "sunset clause," to ensure that these instruments remain relevant.

Recommendation 10.7

We recommend that the Railway Safety Act require a further comprehensive review of its operations five years after any amendments resulting from this Committee's report.

Appendix: Other Issues

Recommendation A.1

We recommend that the term "alter" in Section 4 of the Railway Safety Act be amended to include to reconstruct or change a railway work in form, but not in function, and not to include "maintain." We further recommend that the term "maintenance" be defined within the Railway Safety Act to include any type of work designed to ensure serviceability, but which does not alter the geometry of the structure.

Recommendation A.2

We recommend that Section 4(4) of the Railway Safety Act be amended to include the safety of the environment, in addition to the safety of persons and property, in considering the safety of railway operations.

Recommendation A.3

We recommend that Section 10 of the Railway Safety Act be amended to allow for the commencement of a railway work:

1. on receipt of notice from all parties to whom the railway must send a notice that they do not object to such a work; or
2. where objections have been filed to the proposed work,
1. upon approval by the Minister (as is currently the case); or
2. upon withdrawal of all objections.

Recommendation A.4

We recommend that Section 12(1) of the Railway Safety Act be amended to remove the requirement for a crossing to have been in existence for public use for at least three years in order to be eligible for a grant application.

Recommendation A.5

We recommend that Section 12 of the Railway Safety Act be amended to allow a grant to also be issued after a crossing work has been commenced.

Recommendation A.6

We recommend that Section 16 of the Railway Safety Act be amended to also allow grade crossing cost-apportionment by the National Transportation Agency after a work has been commenced.

Recommendation A.7

We recommend that Section 16 of the Railway Safety Act be amended to allow the National Transportation Agency to formalize crossing cost-apportionment agreements by means of an order of the Agency.

Recommendation A.8

We recommend that the designation of "safety-sensitive" positions be determined by the rail industry and implemented by way of a rule.

Recommendation A.9

We recommend that Section 19(4)(a) of the Railway Safety Act be amended to permit the Minister, in the event that new information comes to light, to subsequently modify the terms and conditions which may have been specified in the notice.

Recommendation A.10

We recommend that the exemption provisions of Section 22 of the Railway Safety Act be extended to any security regulation or measure adopted under the provisions of Section 39 of the Act.

Recommendation A.11

We recommend that the Railway Safety Act be amended to replace the term "railway safety inspector" with that of "railway safety officer."

Recommendation A.12

We recommend that Section 28 of the Railway Safety Act be amended to permit a railway safety inspector to enter the premises of a railway company for safety audit purposes. Section 28 should be further amended to permit an inspector to require the production of documents or information needed to carry out the audit.

Recommendation A13

We recommend that Section 31 of the Railway Safety Act be amended to permit a notice or order of one inspector to be altered or removed by another inspector when the inspector who issued the notice or order is unable to act, and that the circumstances of the inspector's inability to act he recorded in the amending document.

Recommendation A.14

We recommend that Section 31 of the Railway Safety Act be amended to permit a notice or order to be issued to a third party owning, leasing or using railway equipment, in addition to the railway concerned.

Recommendation A.15

We recommend that Section 35(1) of the Railway Safety Act pertaining to medical information be amended to eliminate the 12-month time period between medical examinations and to stipulate that the period between medical examinations be specified in a rule to be filed under Section 19 or 20, or in the railway company's safety plan.

Recommendation A.16

We recommend that Section 46 of the Railway Safety Act be amended to state that approved rules filed under Section 19 or 20 shall be deemed not to be regulations for the purposes of the Statutory Instruments Act, but shall he registered and published in the Canada Gazette.

Recommendation A.17

We recommend that Section 49 of the Railway Safety Act be amended to provide that rules made under Section 19 or 20 also prevail to the extent of an inconsistency.

Recommendation A.18

We recommend that Sections 91 and 93 of the Railway Safety Act be proclaimed.

Recommendation A.19

We recommend that all inspectors appointed under the Railway Safety. Act also be appointed inspectors under the Safe Containers Convention Act and that they receive training as required to exercise SCCA functions.

Recommendation A.20

We recommend that the railways remove cross-bucks following abandonment of a rail line that will not be conveyed, and that the road authority be so advised.