An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act (S.C. 2012, c. 7)
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Assented to 2012-05-17
An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act
S.C. 2012, c. 7
Assented to 2012-05-17
An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act
SUMMARY
The amendments amend the Railway Safety Act to, among other things,
(a) improve the oversight capacity of the Department of Transport by, for example, requiring companies to obtain a safety-based railway operating certificate indicating compliance with regulatory requirements;
(b) strengthen that Department’s enforcement powers by introducing administrative monetary penalties and increasing fines;
(c) enhance the role of safety management systems by including a provision for a railway executive who is accountable for safety and a non-punitive reporting system for employees of railway companies;
(d) clarify the authority and responsibilities of the Minister of Transport with respect to railway matters; and
(e) expand regulation-making powers, including in respect of environmental management, and clarify the process for rule making by railway companies.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Safer Railways Act.
R.S., c. 32 (4th Supp.)RAILWAY SAFETY ACT
Marginal note:1996, c. 10, s. 261
2. Subsection 2(2) of the Railway Safety Act is replaced by the following:
Marginal note:Application generally
(2) This Act applies in respect of railways that are within the legislative authority of Parliament.
Marginal note:Exceptions
(3) Despite subsection (2), this Act does not apply in respect of
(a) railways referred to in section 16 of the Harbour Commissions Act; or
(b) railways referred to in section 29 of the Canada Marine Act, except to the extent provided by regulations made under subsection 29(2) of that Act.
Marginal note:1999, c. 9, s. 1
3. Section 3 of the Act is replaced by the following:
Marginal note:Objectives
3. The objectives of this Act are to
(a) promote and provide for the safety and security of the public and personnel, and the protection of property and the environment, in railway operations;
(b) encourage the collaboration and participation of interested parties in improving railway safety and security;
(c) recognize the responsibility of companies to demonstrate, by using safety management systems and other means at their disposal, that they continuously manage risks related to safety matters; and
(d) facilitate a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security.
Marginal note:Minister’s responsibilities respecting railway safety
3.1 The Minister is responsible for the development and regulation of matters to which this Act applies, including safety and security, and for the supervision of all matters connected with railways and, in the discharge of those responsibilities, the Minister may, among other things,
(a) promote railway safety and security by means that the Minister considers appropriate;
(b) provide facilities and services for the collection, publication or dissemination of information;
(c) undertake, and cooperate with persons undertaking, projects, technical research, study or investigation;
(d) inspect, examine and report on activities related to railway matters; and
(e) undertake other activities that the Minister considers appropriate or that the Governor in Council may direct.
Marginal note:1999, c. 9, s. 2(4)
4. (1) The definitions organisation intéressée and système de gestion de la sécurité in subsection 4(1) of the French version of the Act are replaced by the following:
« organisation intéressée »
“relevant association or organization”
organisation intéressée Association ou organisation formée pour représenter le personnel d’une compagnie de chemin de fer ou les propriétaires ou locataires de matériel ferroviaire utilisé sur les voies ferrées exploitées par une telle compagnie de chemin de fer, et classée par arrêté du ministre comme organisation intéressée par rapport à la compagnie.
« système de gestion de la sécurité »
“safety management system”
système de gestion de la sécurité Protocole visant la mise en oeuvre de la sécurité ferroviaire dans l’exploitation ferroviaire courante et intégrant les responsabilités et les pouvoirs au sein d’une compagnie, les règles, les procédures, les processus de surveillance et d’évaluation auxquels elle est assujettie ainsi que les objectifs en matière de sécurité, de rendement des mécanismes de contrôle d’application et d’évaluation des risques.
(2) Subsection 4(1) of the Act is amended by adding the following in alphabetical order:
“company”
« compagnie »
“company” means a railway company or a local railway company;
“fatigue science”
« science de la fatigue »
“fatigue science” means a scientifically based, data-driven and systematic method used to measure and manage human fatigue;
“highest level of safety”
« niveau de sécurité le plus élevé »
“highest level of safety” means the lowest acceptable level of risk as demonstrated by a risk management analysis;
“local railway company”
« compagnie de chemin de fer locale »
“local railway company” means a person, other than a railway company or an agent or mandatary of a railway company, that operates railway equipment on a railway;
“railway”
« chemin de fer »
“railway” means a railway within the legislative authority of Parliament and includes
(a) branches, extensions, sidings, railway bridges, tunnels, stations, depots, wharfs, rolling stock, equipment, stores or other things connected with the railway, and
(b) communications or signalling systems and related facilities and equipment used for railway purposes;
“railway company”
« compagnie de chemin de fer »
“railway company” means a person that constructs, operates or maintains a railway;
Marginal note:1996, c. 10, s. 263(2)
(3) Subsection 4(2) of the Act is repealed.
Marginal note:2001, c. 29, s. 64(2)
(4) Subsection 4(5) of the Act is replaced by the following:
Marginal note:Filing or sending notices and documents
(5) With the exception of a notice or document sent to or by the Tribunal, for the purposes of this Act, the filing or sending of a notice or document must be
(a) in the case of an individual, by personal service, by facsimile or by mailing it by registered mail to the person’s latest known address;
(b) in the case of a corporation, by facsimile or by mailing it by registered mail to its head office or any other office designated by the Minister; or
(c) in either case, by any electronic or other means approved in writing by the Minister and subject to any conditions fixed by the Minister.
5. The Act is amended by adding the following after section 4:
Marginal note:Inconsistencies with operating agreements
4.1 This Act and all regulations, rules, certificates, orders, exemptions and emergency directives made or issued under this Act prevail over the provisions of any agreement or order that enables a company to operate railway equipment on the railway of a railway company in the event of an inconsistency between them.
6. Section 6 of the Act is replaced by the following:
Marginal note:Agreements between Department and Agency
6. The Minister may enter into an agreement with the Agency providing for the following matters and may, in consultation with the Agency, take any action that is necessary to ensure that the terms of the agreement are disclosed to any railway company or other person likely to be affected by it:
(a) the coordination of the activities of the Department of Transport and the Agency
(i) relating to the construction, alteration, operation or maintenance of railway works and railway equipment, or
(ii) in determining whether a person is constructing, operating or maintaining a railway; and
(b) procedures to be followed by that Department and the Agency in the event that conflicting interests arise between them in their activities with respect to those matters.
Marginal note:Agreements with provincial ministers
6.1 (1) The Minister may enter into an agreement with a provincial minister responsible for transportation matters providing for the administration, in relation to persons who operate railways within the legislative authority of the province, of any law respecting
(a) railway safety and security and the safety aspects of railway crossings; or
(b) matters relating to the protection of the environment to which this Act applies.
Marginal note:Designation of body or person
(2) The Minister may designate any body established under an Act of Parliament, or any person or class of persons employed in the federal public administration, to administer the law in accordance with the agreement.
Marginal note:Duties and powers
(3) The designated body, person or class of persons may perform any duty and exercise any power necessary for the enforcement of the law, to the extent specified in the agreement.
Marginal note:Agreements with provincial authorities
6.2 The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate the matters referred to in subsection 6.1(1) in relation to a railway in the same manner and to the same extent as it may regulate a railway within the authority’s jurisdiction.
7. (1) Subsection 7(1) of the French version of the Act is replaced by the following:
Marginal note:Règlements normatifs en matière de construction et de modification
7. (1) Le gouverneur en conseil peut, par règlement, régir l’établissement de normes concernant la structure ou le rendement d’installations ferroviaires et applicables à la construction ou à la modification de celles-ci.
Marginal note:1999, c. 9, s. 3
(2) Subsection 7(3) of the Act is replaced by the following:
Marginal note:Application of certain provisions
(3) Section 19 and regulations made under section 20.2 apply in relation to standards referred to in subsection (2) or (2.1), with any modifications that the circumstances require and without regard to any obligation to consult.
Marginal note:1999, c. 9, s. 7
8. Section 11 of the Act is replaced by the following:
Marginal note:Sound engineering principles
11. (1) All work relating to railway works — including, but not limited to, design, construction, evaluation, maintenance and alteration — must be done in accordance with sound engineering principles.
Marginal note:Engineering work
(2) All engineering work relating to railway works must be approved by a professional engineer.
9. The Act is amended by adding the following before the heading “Regulations” before section 18:
Prohibitions
10. The Act is amended by adding the following after the heading “Prohibitions”, as enacted by section 9:
Marginal note:Requirement for certificate
17.1 (1) No person shall operate or maintain a railway, or operate railway equipment on a railway, without a railway operating certificate.
Marginal note:Crossing maintenance
(2) Subsection (1) does not apply to a person exempted under paragraph 17.9(1)(c) or to a municipality or road authority that maintains a crossing work.
11. (1) The Act is amended by adding the following before the heading “Regulations” before section 18:
Marginal note:Compliance with regulations and rules
17.2 No railway company shall operate or maintain a railway, including any railway work or railway equipment, and no local railway company shall operate railway equipment on a railway, otherwise than in accordance with the regulations and with the rules made in respect of the company under sections 19 and 20, except to the extent that the company is exempt from their application under section 22 or 22.1.
Marginal note:Crossing works
17.3 No person responsible for the maintenance of a crossing work shall maintain it otherwise than in accordance with the regulations made under section 18 unless that person is exempted under section 22 or 22.1 from the application of those regulations in relation to the maintenance of that crossing work.
(2) Section 17.2 of the Act, as enacted by subsection (1), is replaced by the following:
Marginal note:Compliance with certificate, regulations and rules
17.2 No railway company shall operate or maintain a railway, including any railway work or railway equipment, and no local railway company shall operate railway equipment on a railway, otherwise than in accordance with a railway operating certificate and — except to the extent that the company is exempt from their application under section 22 or 22.1 — with the regulations and the rules made under sections 19 and 20 that apply to the company.
12. The Act is amended by adding the following after section 17.3:
Railway Operating Certificate
Marginal note:Issuance of certificate
17.4 (1) The Minister shall, on application, issue a railway operating certificate authorizing a person to operate and maintain a railway, or to operate railway equipment on a railway, if the Minister is satisfied that the prescribed conditions for obtaining one have been met.
Marginal note:Terms and conditions
(2) A railway operating certificate may contain any terms and conditions that the Minister considers appropriate.
Marginal note:Variation
(3) The Minister may, on application by a company, vary the terms and conditions of its railway operating certificate.
Marginal note:Time limit
(4) A decision by the Minister whether to issue or vary a railway operating certificate shall be made as expeditiously as possible within 120 days after receipt of the application unless the applicant agrees otherwise.
Marginal note:Suspension or cancellation
(5) The Minister may suspend or cancel a company’s railway operating certificate if the company has
(a) ceased to meet any of the prescribed conditions for obtaining the certificate;
(b) contravened any provision of this Act or the regulations or any rule, order, standard or emergency directive made under this Act; or
(c) requested its suspension or cancellation.
Marginal note:Notice of decision
17.5 (1) The Minister shall notify the affected person or company of any decision made under subsection 17.4(1), (3) or (5).
Marginal note:Contents of notice
(2) The notice of decision shall specify
(a) the grounds of the Minister’s decision; and
(b) the address at which and the date, being thirty days after the notice is sent, on or before which the person may file a request for a review of the decision.
Marginal note:Effective date of decision
(3) The effective date of a decision is the day on which the notice is received by the person or company unless the notice specifies a later date.
Marginal note:Request for review
17.6 (1) A person or a company affected by a decision of the Minister under subsection 17.4(1), (3) or (5) may, on or before the date specified in the notice under section 17.5 or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the decision.
Marginal note:Effect of request
(2) A request under subsection (1) for a review of a decision under subsection 17.4(5) does not operate as a stay of the decision.
Marginal note:Exception
(3) On application in writing by the person or company affected by a decision made under subsection 17.4(5), after giving any notice to the Minister that is, in the member’s opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, if he or she is satisfied that granting a stay would not constitute a threat to railway safety.
Marginal note:Time and place for review
17.7 (1) On receipt of a request filed under subsection 17.6(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Marginal note:Review procedure
(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Determination
(3) The member may confirm the decision of the Minister or refer the matter back to the Minister for reconsideration.
Marginal note:Effect of decision pending reconsideration
(4) If a decision under subsection 17.4(5) is referred back to the Minister for reconsideration under subsection (3), the decision of the Minister remains in effect until the reconsideration is concluded. However, the member, after considering any representations made by the parties, may grant a stay of the decision until the reconsideration is concluded, if he or she is satisfied that granting a stay would not constitute a threat to railway safety.
Marginal note:Right of appeal
17.8 (1) Within thirty days after a determination made under subsection 17.7(3) by a member of the Tribunal, the person or company affected by the determination may appeal it to the Tribunal.
Marginal note:Effect of request
(2) A request under subsection (1) for an appeal of a decision under subsection 17.4(5) does not operate as a stay of the decision.
Marginal note:Exception
(3) On application in writing by the person or company affected by a decision made under subsection 17.4(5), after giving any notice to the Minister that is, in the member’s opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the appeal is completed, if he or she is satisfied that granting a stay would not constitute a threat to railway safety.
Marginal note:Loss of right of appeal
(4) A person or company that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Marginal note:Disposition of appeal
(5) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.
Marginal note:Effect of decision pending reconsideration
(6) If a decision under subsection 17.4(5) is referred back to the Minister for reconsideration under subsection (5), the decision of the Minister remains in effect until the reconsideration is concluded. However, the appeal panel, after considering any representations made by the parties, may grant a stay of the decision made under subsection 17.4(5) until the reconsideration is concluded, if it is satisfied that granting a stay would not constitute a threat to railway safety.
Marginal note:Regulations
17.9 (1) The Governor in Council may make regulations
(a) respecting conditions to be met for the issuance of a railway operating certificate;
(b) respecting the form and content of applications for railway operating certificates and the process for obtaining a certificate or the variation of one; and
(c) exempting any class of persons from the application of section 17.1.
Marginal note:Application
(2) A regulation made under this section may be general or applicable to a group or class of persons or companies.
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