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Bill C-58

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RECOMMENDATION

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act to amend the Railway Safety Act and to make a consequential amendment to another Act''.

SUMMARY

These amendments to the Railway Safety Act allow railway companies to continue to manage the way in which they meet essential safety objectives but give the Minister full powers to ensure that safety performance is appropriate. The amendments

    (a) clarify the objectives of the Act;

    (b) provide authority to require railways to implement safety management systems;

    (c) provide greater involvement for interested organizations in rule-making;

    (d) minimize disruption caused by train whistles in communities;

    (e) strengthen and clarify federal powers at road crossings;

    (f) clarify and strengthen the powers of railway safety inspectors;

    (g) streamline the administrative process;

    (h) provide authority to regulate railway emissions; and

    (i) improve provisions for security measures.

There is also a consequential amendment to the Access to Information Act.

EXPLANATORY NOTES

Clause 1: Section 3 and the heading before it read as follows:

DECLARATION

3. It is hereby declared that this Act is enacted for the attainment of such of the objectives of the national transportation policy, as set out in section 5 of the Canada Transportation Act as relate to the safety of railway operations and as fall within the purview of subject-matters under the legislative authority of Parliament.

Clause 2: (1) The definition ``alter'' in subsection 4(1) reads as follows:

``alter'' includes reconstruct but does not include maintain;

(2) The definition ``proposing party'' in subsection 4(1) reads as follows:

``proposing party'', in relation to a proposed railway work, whether involving the construction of a new railway work or the alteration of an existing railway work, means the person proposing, whether voluntarily or by virtue of a requirement imposed by or under another Act, to undertake that construction or alteration or to cause that construction or alteration to be undertaken;

(3) The definition ``person'' in subsection 4(1) reads as follows:

``person'' includes a municipality and a public authority having legal jurisdiction to open and maintain highways in the area under its jurisdiction;

(4) New.

(5) New.

(6) New.

Clause 3: Subsection 7(2.1) is new. Subsections 7(2) and (3) read as follows:

(2) The Minister may, by order, require a railway company

    (a) to formulate engineering standards governing or embracing any matter referred to in subsection (1) that is specified in the order and is not dealt with by regulations made pursuant to that subsection, or

    (b) to revise its engineering standards governing such a matter in a manner specified in the order,

and to file with the Minister for approval, within a period specified in the order, the standards so formulated or so revised.

(3) Subsections 19(4) to (11) apply in relation to standards referred to in subsection (2), with such modifications as the circumstances require and without regard to the references to relevant association or organization.

Clause 4: New.

Clause 5: Subsections 8(1) and (2) read as follows:

8. (1) The proposing party in relation to a proposed railway work of a kind prescribed for the purposes of this subsection, whether consisting of the construction of a new railway work or the alteration of an existing railway work, shall not undertake the work unless it has first given notice of the work in accordance with the regulations.

(2) Any person to whom a notice of a proposed railway work is given under subsection (1) who considers that the safety of the person or person's property would be prejudiced by that proposed railway work may, before the expiration of the period specified in the notice for the filing of objections, file with the proposing party an objection to the proposed railway work setting out the reasons for the objection, and, where the person does so, the person shall forthwith file a copy of that objection with the Minister.

Clause 6: New.

Clause 7: Section 11 reads as follows:

11. (1) Except as provided by subsection (3), where the Minister's approval under section 10 is required for the undertaking of a proposed railway work, the proposing party shall not operate or permit the operation of that work until it has filed with the Minister an affidavit by the professional engineer in charge of that work to the effect that the engineer is satisfied that the work has been completed in accordance with the terms of the Minister's approval.

(2) Except as provided by subsection (3), where

    (a) the Minister's approval under section 10 is not required for the undertaking of a proposed railway work, and

    (b) the work is of a kind prescribed for the purpose of this subsection,

the proposing party shall not operate or permit the operation of that work until it has filed with the Minister an affidavit by the professional engineer in charge of that work to the effect that the engineer is satisfied that the work is consistent with safe railway operations.

(3) Where a proposed railway work consists of the alteration of an existing railway work, the professional engineer in charge of the proposed railway work shall, forthwith after its completion, file with the Minister the affidavit required by subsection (1) or (2), as the case may be, but the proposing party may operate or permit the operation of that work even before the affidavit is filed.

Clause 8: New.

Clause 9: Section 15 reads as follows:

15. Grants authorized under section 12, 13 or 14 shall be paid out of money appropriated by Parliament for that purpose.

Clause 10: Subsection 16(1) reads as follows:

16. (1) Where the proposing party in respect of a proposed railway work and each other person who stands to benefit from the completion of the work cannot agree on the apportionment between them of the liability to meet the construction, alteration, operational or maintenance costs in respect of that work, the proposing party or any of those persons may, if no right of recourse is available under Part III of the Canada Transportation Act or the Railway Relocation and Crossing Act, refer the matter to the Agency for a determination.

Clause 11: Subsection 17(2) reads as follows:

(2) Where a proposing party who has applied for a grant under section 12 or 13 in respect of a work commences that work before the Minister has approved or rejected the application for the grant, the proposing party shall be deemed to have withdrawn the application for the grant.

Clause 12: Subsection 18(2.1) is new. Subsections 18(2) and (3) read as follows:

(2) The Governor in Council may make regulations respecting the operation and maintenance of crossing works.

(3) Where the Governor in Council, at any time, makes regulations respecting a matter referred to in subsection (1) that are inconsistent with rules approved in relation to a particular company by the Minister under section 19 or 20 in respect of that matter, then, to the extent of the inconsistency, those rules are thereupon revoked.

Clause 13: (1) Subsections 19(1) and (2) read as follows:

19. (1) The Minister may, by order, require a railway company

    (a) to formulate rules respecting any matter referred to in subsection 18(1) that is specified in the order and is not dealt with by regulations made pursuant to that subsection, or

    (b) to revise its rules respecting such a matter in a manner specified in the order,

and to file with the Minister for approval, within a period specified in the order, the rules so formulated or so revised.

(2) A railway company that is required, by order under subsection (1), to file rules with the Minister shall not file those rules unless it has first afforded a reasonable opportunity to each relevant association or organization that is likely to be affected by the implementation of those rules to consult with it concerning those rules.

(2) New.

(3) New.

(4) Subsection 19(8) reads as follows:

(8) The Minister shall not, under this section, establish rules applying to a particular railway company unless the Minister has afforded that company and each relevant association or organization a reasonable opportunity to consult with the Minister in respect of the rules that the Minister proposes to establish and has considered any objection, on the grounds of safety, to establishment of those rules that is made in the course of that consultation.

Clause 14: (1) Subsections 20(1) and (2) read as follows:

20. (1) Where a railway company, on its own initiative,

    (a) proposes to formulate rules in respect of any matter referred to in subsection 18(1) that is not dealt with by regulations made pursuant to that subsection, or

    (b) proposes to revise its rules in respect of any such matter,

the company shall file the rules as formulated or as revised with the Minister for approval.

(2) A railway company shall not file rules with the Minister under subsection (1) unless it has first afforded a reasonable opportunity to each relevant association or organization that is likely to be affected by the implementation of those rules to consult with it concerning those rules.

(2) Subsection 20(4) reads as follows:

(4) Where rules are filed with the Minister pursuant to subsection (1), subsections 19(4), (5), (10) and (11) apply in relation to the filing and consideration of those rules as if the rules had been duly filed in compliance with an order made pursuant to subsection 19(1).

Clause 15: (1) Subsections 22(1) and (2) read as follows:

22. (1) The Governor in Council may, by order, on such terms and conditions as are specified in the order,

    (a) exempt a specified railway company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or of rules in force pursuant to section 19 or 20; or

    (b) exempt a specified person from the application of a specified provision of regulations made under subsection 18(2).

(2) The Minister may, by notice, on such terms and conditions as are specified in the notice,

    (a) exempt a specified railway company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or of rules in force pursuant to section 19 or 20, or

    (b) exempt a specified person from the application of a specified provision of regulations made under subsection 18(2)

if, in the opinion of the Minister, the exemption is in the public interest and is not likely to threaten safe railway operations.

(2) New.

Clause 16: New.

Clause 17: Section 23 reads as follows:

23. (1) Unless a railway company is exempted under section 22 from the application of regulations made under section 18 or of rules under section 19 or 20 that would otherwise apply to that company, the company shall not operate or maintain railway works or railway equipment otherwise than in accordance with those regulations or rules.

(2) Unless the person responsible for the maintenance of a crossing work is exempted under section 22 from the application of regulations made under section 18 in relation to the maintenance of that crossing work, that person shall not maintain that crossing work otherwise than in accordance with those regulations.

Clause 18: New.

Clause 19: (1) New. The relevant portion of subsection 24(1) reads as follows:

24. (1) The Governor in Council may make regulations

(2) New.

Clause 20: (1) The relevant portion of subsection 25(1) reads as follows:

25. (1) For the purpose of enabling a railway company to prevent the development of a situation that is potentially threatening to safe railway operations on a line of railway operated by it, and without prejudice to its powers under the Railway Act,

    (a) the company may, at any time, enter onto any land adjoining the land on which the line of railway is situated

      (i) for the purpose of maintaining, or carrying out alterations to, railway works in accordance with requirements imposed by or under this Act, or

      (ii) for the purpose of removing any obstruction to railway works,

    in circumstances where no other access to the line of railway is reasonably available, and may remain on the land for so long as is necessary to accomplish that purpose;

(2) New.

(3) Subsection 25(3) reads as follows:

(3) Where the owner, lessee or occupier of land adjoining the land on which a line of railway is situated suffers a loss by reason of the exercise by a railway company of a power conferred by this section, the railway company shall pay to that person such compensation in respect of that loss as is agreed to between the railway company and that person or, failing such agreement, as is determined pursuant to section 26, but the payment of compensation is not a condition precedent to the exercise of the power.

Clause 21: The heading before section 27 reads as follows:

Railway Safety Inspectors

Clause 22: Subsection 27(1) reads as follows:

27. (1) The Minister may designate any person whom the Minister deems qualified as a railway safety inspector for the purposes of this Act and, where the Minister does so, the Minister shall designate the matters in respect of which the person may exercise the powers of a railway safety inspector.

Clause 23: Paragraph 28(1)(a.1) is new. The relevant portion of subsection 28(1) reads as follows:

28. (1) A railway safety inspector may, at any time,

    (a) for the purpose of ensuring compliance with this Act and with the regulations, emergency directives, rules and orders made thereunder, enter any railway work or railway equipment, whether or not in operation, and inspect that work or equipment or any railway operation carried out at, in or in respect of that work or equipment, where that inspection relates to the matters for which the inspector is designated;

Clause 24: (1) Subsection 31(2.1) is new. Subsections 31(2) and (3) read as follows:

(2) Where a railway safety inspector is of the opinion that the standard of construction or maintenance of a crossing work poses a threat to safe railway operations, the inspector

    (a) by notice sent to the person responsible for the maintenance of the crossing work,

      (i) shall inform that person of that opinion and of the reasons therefor, and

      (ii) may, if the inspector is satisfied that the threat is immediate, order the person to ensure that the crossing work not be used, or not be used otherwise than under terms and conditions specified in the notice, until the threat is removed to the inspector's satisfaction; and

    (b) by notice sent to the railway company concerned,

      (i) shall inform the company of that opinion and of the reasons therefor, and

      (ii) may, if the inspector is satisfied that the threat is immediate, order the company to ensure that specified line works or specified railway equipment not be used, or not be used otherwise than under terms and conditions specified in the notice, until the threat is removed to the inspector's satisfaction.

(3) Where a railway safety inspector is of the opinion that the manner of operation of a line work or railway equipment of a particular railway company poses a threat to safe railway operations, the inspector

    (a) shall, by notice sent to the company, inform the company of that opinion and of the reasons therefor; and

    (b) may, in that notice, if the inspector is satisfied that the threat is immediate, order the company to ensure that the line work or railway equipment not be operated, or not be operated otherwise than under terms and conditions specified in the notice, unless the work or equipment is operated so as to remove the threat, to the inspector's satisfaction.

(2) Subsections 31(5) to (8) read as follows:

(5) Where a notice is sent under subsection (1), (2) or (3), the railway safety inspector who sends the notice shall, if the notice contains an order, immediately inform the Minister of the order and of the reasons therefor.

(6) Where a railway safety inspector includes in a notice sent to a railway company under subsection (1), (2) or (3) an order that the railway company ensure that certain works or equipment not be used or operated, or not be used or operated other than under specified terms and conditions, until certain action is taken or unless a certain mode of operation is adopted, the inspector shall send a copy of the notice

    (a) to the railway company supervisor who is directly responsible for the works or equipment concerned; or

    (b) in the absence of the supervisor referred to in paragraph (a), to the railway company employee who, at that time, is in charge of the works or equipment concerned.

(7) An order to a railway company contained in a notice under subsection (1), (2) or (3) has effect

    (a) when the notice is received by the company; or

    (b) if, before the notice is received by the company, a copy of the notice is sent pursuant to subsection (6) to a railway company supervisor or railway company employee, when that supervisor or employee receives the copy.

(8) An order to a person, contained in a notice under paragraph (2)(a), has effect when the person receives the notice.

(3) Subsection 31(10) reads as follows:

(10) An alteration or revocation of an order pursuant to subsection (9) has effect when the railway company or person to whom the original notice was sent receives a notice of the alteration or revocation.

Clause 25: Subsection 32(3.1) is new. Subsection 32(4) reads as follows:

(4) An order contained in a notice to a person or railway company under subsection (1) or (3) has effect when the person or railway company receives the notice.

Clause 26: (1) Subsection 33(1.1) is new. Subsection 33(1) reads as follows:

33. (1) Where the Minister is of the opinion that

    (a) the use by a railway company of a railway work or railway equipment of a particular kind, or

    (b) the following by a railway company of, or the failure to follow, a particular maintenance or operating practice in respect of a railway work or railway equipment

poses an immediate threat to safe railway operations, the Minister may, by emergency directive sent to the railway company, and notwithstanding that the construction of the work was undertaken in accordance with the law in force at that time or that the use of the equipment or the following of, or failure to follow, the maintenance or operating practice is in accordance with this Act and with any regulations or rules made thereunder, order the company

    (c) to cease, either absolutely or to the extent specified in the directive, to use works or equipment of that kind or to follow that maintenance or operating practice, or

    (d) to follow a maintenance or operating practice specified in the directive.

(2) Subsection 33(5) reads as follows:

(5) In the event that, for any railway company, there is an inconsistency between an emergency directive and a regulation made under subsection 18(1) or a rule in force pursuant to section 19 or 20, the emergency directive prevails to the extent of the inconsistency.

Clause 27: Subsections 35(1) and (2) read as follows:

35. (1) A person who holds a position in a railway company that is declared by regulations made under paragraph 18(1)(b) to be a position critical to safe railway operations, referred to in this section as a ``designated position'', shall undergo a company-sponsored medical examination, including audio-metric and optometric examination, at least every twelve months.

(2) Where a physician or an optometrist believes, on reasonable grounds, that a patient is a person described in subsection (1), the physician or optometrist shall, if, in the physician's or optometrist's opinion, the patient has a condition that is likely to constitute a threat to safe railway operations,

    (a) by notice sent forthwith to the Chief Medical Officer of the railway company or to a physician or optometrist specified by the railway company, inform the Chief Medical Officer or the specified physician or optometrist of that opinion and the reasons therefor, after the physician or optometrist has taken reasonable steps to first inform the patient, and

    (b) forthwith send a copy of that notice to the patient,

and the patient shall be deemed to have consented to the disclosure required by paragraph (a).

Clause 28: Section 36 reads as follows:

36. The Governor in Council may make regulations

    (a) respecting notification of the Minister by railway companies

      (i) of any accident or incident associated with the operation of railway equipment on a line of railway,

      (ii) of any situation that could, if left unattended, induce such an accident or incident, and

      (iii) of any contravention of a regulation, rule, emergency directive or order made pursuant to this Act; and

    (b) respecting the preparation and filing with the Minister of a return in respect of each calendar year and also in respect of any lesser period specified by the Minister, setting out particulars of each accident, incident, situation or contravention referred to in paragraph (a) occurring during that year or period.

Clause 29: New. The relevant portion of section 37 reads as follows:

37. The Governor in Council may make regulations

Clause 30: Sections 39.1 and 39.2 are new. Section 39 and the heading before it read as follows:

Security Measures

39. (1) In this section,

``authorized search'' means a search carried out in such manner and under such circumstances as are prescribed;

``goods'' means anything that may be taken or placed on board railway equipment as freight, baggage or personal belongings;

``security officer'' means such person as may be designated by the Minister to be a security officer for the purposes of this section.

(2) For the purpose of ensuring safe railway operations, the Governor in Council may make regulations requiring railway companies to establish, maintain and carry out, at or in respect of railway works, railway equipment or railway operations,

    (a) such security measures as are prescribed; or

    (b) such security measures as may be approved by the Minister.

(3) The Minister may establish, maintain and carry out, at or in respect of railway works, railway equipment or railway operations, in lieu of or in addition to the security measures required by regulations made under subsection (2), such security measures as the Minister considers necessary for ensuring safe railway operations.

(4) No person who, before boarding railway equipment, is required by a security officer

    (a) to submit to an authorized search of his person, or

    (b) to permit an authorized search to be carried out of the goods that the person intends to take or have placed on board the railway equipment

shall board the railway equipment unless the person submits to the authorized search or permits the authorized search to be carried out, as the case may be.

(5) Where, after having boarded railway equipment, a person who is required by a security officer

    (a) to submit to an authorized search of his person, or

    (b) to permit an authorized search to be carried out of the goods that the person took or had placed on board the railway equipment

refuses to submit to the authorized search or to permit the authorized search to be carried out, as the case may be, the security officer may order that person to leave the railway equipment and remove from the railway equipment the goods that the person took or had placed on board the railway equipment, and the person shall thereupon leave the railway equipment and remove or permit the removal of the goods from the railway equipment.

(6) No person who, having been required by a security officer to permit an authorized search of goods intended to be transported on railway equipment, refuses to permit the search to be carried out shall place or attempt to place the goods, or cause the goods to be placed, on board the railway equipment.

(7) Where goods are received for transport on railway equipment and are not accompanied by a person who may give the permission referred to in subsection (6), a security officer may carry out an authorized search of the goods and, in carrying out that search, may use such force as may reasonably be necessary to gain access to the goods.

(8) No person other than the Minister shall disclose to any other person the substance of security measures that have been approved by the Minister pursuant to regulations made under subsection (2) or established by the Minister under subsection (3) unless the disclosure is required by law or is necessary in order to make the security measures effective.

(9) Where, in any proceedings before a court or other body having jurisdiction to compel the production or discovery of information, a request is made for the production or discovery of any security measures that have been approved by the Minister pursuant to regulations made under subsection (2) or established by the Minister under subsection (3), the court or other body shall, if the Minister is not a party to the proceedings, cause a notice of the request to be given to the Minister and shall, in camera, examine the security measures and give the Minister a reasonable opportunity to make representations with respect to the request and, if the court or other body concludes, in the circumstances of the case, that the public interest in the proper administration of justice outweighs in importance the privilege attached to the security measures by virtue of subsection (8), the court or other body shall order the production or discovery, subject to such restrictions or conditions as the court or other body deems appropriate, and may require any person to give evidence that relates to the security measures.

Clause 31: Subsections 41(2.1), (3.1) and (3.2) are new. Subsections 41(2) and (3) read as follows:

(2) Every person who contravenes a regulation, an emergency directive of the Minister, an order of the Minister or of a railway safety inspector, a rule in force under section 19 or 20, or a requirement made pursuant to subsection 16(3) or 26(3) is guilty of an offence punishable on summary conviction and liable

    (a) in the case of a corporation, to a fine not exceeding one hundred thousand dollars; and

    (b) in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months, or to both.

(3) Where a person commits a contravention described in subsection (1) or (2) that is prescribed for the purposes of this subsection, and that contravention occurs on more than one day, or is continued for more than one day, that person shall be deemed to have committed a separate offence for each day on which the contravention occurs or is continued.

Clause 32: Section 44 and the heading before it read as follows:

Railway Safety Consultative Committee

44. (1) The Minister may establish a committee, to be known as the Railway Safety Consultative Committee, in this section referred to as the ``Committee'', consisting of not fewer than two and not more than four members who, in the opinion of the Minister, have special expertise or special interests in matters of safe railway operations, plus eleven other members as follows:

    (a) one member to represent the Minister;

    (b) one member to represent the Canadian National Railway Company;

    (c) one member to represent Canadian Pacific Limited;

    (d) one member to represent VIA Rail Canada Inc.;

    (e) one member to represent the other railway companies to which this Act applies;

    (f) one member to represent the shippers of rail freight traffic;

    (g) one member to represent the Federation of Canadian Municipalities;

    (h) one member to represent the public; and

    (i) three members to represent organized railway labour, two of whom shall represent the Canadian Railway Labour Association.

(2) All members of the Committee shall be appointed by the Minister, but the Minister shall not appoint a person as a member of the Committee to represent a body referred to in paragraph (1)(b), (c), (d), (g) or (i) otherwise than on the recommendation of that body.

(3) A member of the Committee may, in writing, authorize a person to attend meetings of the Committee in lieu of that member, as a non-voting observer.

(4) The Committee may, on its own initiative, and shall, at the request of the Minister, advise and make recommendations to the Minister on any matter affecting safe railway operations, and shall make to the Minister at least one report annually on the activities of the Committee.

(5) Each member of the Committee, other than the Minister's representative, holds office for a term not exceeding three years, and is eligible for re-appointment.

(6) Where a body referred to in paragraph (1)(b), (c), (d), (g) or (i) advises the Minister, in writing, that the member of the Committee appointed to represent that body should not continue to do so, the Minister shall advise the member that that advice has been received, whereupon that membership is terminated.

(7) The member appointed to represent the Minister holds office during the pleasure of the Minister.

(8) Where a member of the Committee is unable to perform the member's duties, the Minister may appoint a person to act in the place of that member during the remainder of the term of that member's appointment, subject to the requirement set out in subsection (2).

(9) The member appointed to represent the Minister shall be the Chairman of the Committee, and the Committee shall designate another of its members to be the Secretary thereof.

(10) The Committee shall meet at least once a year.

(11) The Chairman of the Committee

    (a) may call a meeting of the Committee at any time; and

    (b) shall, at the request of any five members of the Committee, call a meeting of the Committee to be held within ten days after the date of the request.

(12) The Committee may establish subcommittees and make rules for the conduct of the Committee's affairs and for the recording of its proceedings.

(13) A member of the Committee not referred to in paragraphs (1)(a) to (g) and (i) shall

    (a) where that member is not entitled to receive an allowance from any person or organization in respect of attendance at meetings of the Committee and the Minister determines that a daily allowance will be paid pursuant to this paragraph, be paid a daily allowance in respect of attendance at such meetings of such amount as is fixed by the Minister; and

    (b) where that member is not entitled to receive travel and living expenses from any person or organization in respect of service on the Committee and the Minister determines that expenses will be paid pursuant to this paragraph, be paid such reasonable travel and living expenses as are incurred, while absent from the ordinary place of residence of the member, in respect of such service.

Clause 33: Section 46 reads as follows:

46. Orders, emergency directives or notices of approval made or sent by the Minister, rules filed under section 19 or 20 and approved by the Minister, notices of exemption under subsection 22(2), notices referred to in section 32, measures established under subsection 39(3), or orders made by a railway safety inspector, shall be deemed not to be statutory instruments for the purposes of the Statutory Instruments Act.

Clause 34: New.

Clause 35: Section 49 reads as follows:

49. In the event of any inconsistency between any regulation made under section 7, 18, 24, 36, 37 or 47 and any orders, rules or regulations made pursuant to any other Act of Parliament, the regulations made pursuant to this Act prevail to the extent of the inconsistency.

Clause 36: Subsection 50(1) reads as follows:

50. (1) Subject to subsection (2), a copy of each regulation that is proposed to be made under section 7, 18, 24, 36, 37 or 47 shall be published in the Canada Gazette at least ninety days before the proposed effective date thereof, and a reasonable opportunity within those ninety days shall be afforded to interested persons to make representations to the Minister with respect thereto.

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