Bill S-4

60-61 ELIZABETH II

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CHAPTER 7

An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act

[Assented to 17th May, 2012]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Safer Railways Act.

RAILWAY SAFETY ACT

2. Subsection 2(2) of the Railway Safety Act is replaced by the following:

(2) This Act applies in respect of railways that are within the legislative authority of Parliament.

(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.

3. Section 3 of the Act is replaced by the following:

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.

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.

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:

(2) Subsection 4(1) of the Act is amended by adding the following in alphabetical order:

“company” means a railway company or a local railway company;

“fatigue science” means a scientifically based, data-driven and systematic method used to measure and manage human fatigue;

“highest level of safety” means the lowest acceptable level of risk as demonstrated by a risk management analysis;

“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” 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” means a person that constructs, operates or maintains a railway;

(3) Subsection 4(2) of the Act is repealed.

(4) Subsection 4(5) of the Act is replaced by the following:

(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:

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:

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.

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.

(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.

(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.

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:

(2) Subsection 7(3) of the Act is replaced by the following:

(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.

8. Section 11 of the Act is replaced by the following:

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.

(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:

10. The Act is amended by adding the following after the heading “Prohibitions”, as enacted by section 9:

17.1 (1) No person shall operate or maintain a railway, or operate railway equipment on a railway, without a railway operating certificate.

(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 “Regula- tions” before section 18:

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.

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:

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:

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.

(2) A railway operating certificate may contain any terms and conditions that the Minister considers appropriate.

(3) The Minister may, on application by a company, vary the terms and conditions of its railway operating certificate.

(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.

(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.

17.5 (1) The Minister shall notify the affected person or company of any decision made under subsection 17.4(1), (3) or (5).

(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.

(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.

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.

(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.

(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.

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.

(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.

(3) The member may confirm the decision of the Minister or refer the matter back to the Minister for 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.

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.

(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.

(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.

(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.

(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.

(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.

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.

(2) A regulation made under this section may be general or applicable to a group or class of persons or companies.

13. (1) Paragraph 18(1)(a) of the French version of the Act is replaced by the following:

(2) Paragraphs 18(1)(c) and (d) of the Act are replaced by the following:

(c) respecting the following matters, to the extent that they relate to safe railway operations, in relation to persons employed in positions referred to in paragraph (b):

(i) the training of those persons, both before and after appointment to those positions,

(ii) hours of work and rest periods to be observed by those persons,

(iii) minimum medical, including audiometric and optometric, standards to be met by those persons,

(iv) the control or prohibition of the consumption of alcoholic beverages and the use of drugs by those persons,

(v) the establishment of support programs for those persons and standards applicable to such programs, and

(vi) the establishment of a scheme for licensing those persons; and

(d) respecting the prevention and control of fires on railway works.

(3) Section 18 of the Act is amended by adding the following after subsection (2.1):

(2.2) A regulation made under this section may be general or applicable to a group or class of persons or companies.

(4) Subsection 18(3) of the French version of the Act is replaced by the following:

14. (1) Sections 19 to 22.1 of the Act are replaced by the following:

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

(a) to formulate rules respecting any matter referred to in subsection 18(1) or (2.1) or to revise its rules respecting that matter; and

(b) within a specified period, to file the formulated or revised rules with the Minister for approval.

(2) A company shall not file rules with the Minister under subsection (1) unless it has first, during a period of sixty days, given a reasonable opportunity for consultation with it on the rules to

(a) in the case of a railway company, each relevant association or organization that is likely to be affected by the implementation of the rules; or

(b) in the case of a local railway company, any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the implementation of the rules.

(3) When rules are filed with the Minister by a company pursuant to an order under subsection (1), the company shall, by notice filed with those rules, identify each association or organization or any railway company that was consulted and attach a copy of any objection that is made by any of them on grounds of safety.

(4) After rules are filed with the Minister by a company pursuant to an order under subsection (1), the Minister shall consider, without delay, whether, in the Minister’s opinion and after having regard to current railway practice, to the views of the company and the views of each relevant association or organization or any railway company identified under subsection (3) and to any other factor that the Minister considers relevant, those rules are conducive to safe railway operations by the company, and shall, before the expiration of the assessment period in relation to those rules,

(a) if the Minister is so satisfied, notify the company and each association or organization or any railway company identified under subsection (3) that the Minister approves those rules, either absolutely or on any terms and conditions that are specified in the notice; or

(b) if the Minister is not so satisfied, notify the company and each association or organization or any railway company identified under subsection (3) that the Minister refuses to approve those rules and of the reasons why the Minister is not so satisfied.

(4.1) A company referred to in subsection (4) may, on the basis of new information about the safety of railway operations, request the Minister to amend the terms and conditions specified under paragraph (4)(a), and shall send a copy of the request to

(a) in the case of a railway company, each relevant association or organization that is likely to be affected by the amendment to the terms and conditions; or

(b) in the case of a local railway company, any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the amendment to the terms and conditions.

(4.2) After receiving a request from a company under subsection (4.1), the Minister may amend the terms and conditions and, in that case, shall provide a copy of the amendments to each relevant association or organization, or any railway company, referred to in subsection (4.1).

(5) The Minister may, in deciding whether to approve rules filed by a company, engage any person or organization having expertise in matters relating to safe railway operations to furnish advice in relation to the matter.

(5.1) Rules approved by the Minister under subsection (4) come into force on a day specified by the Minister, but if they replace any regulations, they may not come into force earlier than the day on which the regulations are repealed.

(6) If the Minister notifies a company that the Minister refuses to approve rules filed by the company in respect of a matter pursuant to an order under subsection (1),

(a) the company may, unless the Minister indicates in that notice an intention to establish rules in respect of that matter under subsection (7), formulate and file with the Minister further rules as if the order made pursuant to subsection (1) had been made on the date of receipt by the company of the notice of refusal; and

(b) the provisions of this section apply in relation to those further rules, with any modifications that the circumstances require.

(7) If, in respect of a matter, a company fails to file rules pursuant to an order under subsection (1), or a company files rules pursuant to an order under subsection (1) but the Minister refuses to approve those rules, the Minister may, by order, establish rules in respect of that matter.

(8) The Minister may not, under this section, establish rules applying to a company unless the Minister

(a) has given, during a period of sixty days, a reasonable opportunity for consultation with the Minister on the rules to that company and

(i) in the case of a railway company, to each relevant association or organization that is likely to be affected by the implementation of the rules, and

(ii) in the case of a local railway company, to any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the implementation of the rules; and

(b) has considered any objection, on grounds of safety, to the establishment of the rules that is made in the course of that consultation.

(9) Rules established by the Minister under subsection (7) in relation to a company have the same effect as if they had been formulated by the company and approved by the Minister under subsection (4).

(10) Subject to subsection (11), in this section, “assessment period”, in relation to rules filed with the Minister under this section, means

(a) the period of sixty days commencing on the day after the day on which the rules are filed; or

(b) if, before the expiration of that period of sixty days, the Minister determines that, by reason of the complexity of the rules or the number of rules filed or for any other reason, it will not be feasible to consider the rules within that period, and so notifies the company concerned, any greater period that the Minister specifies in the notice.

(11) If, pursuant to section 40, the Minister directs persons to conduct an inquiry respecting proposed rules, the period commencing on the day when the Minister so directs and ending on the day when the persons report back to the Minister pursuant to section 40 shall be disregarded in computing the assessment period.

20. (1) A company shall file with the Minister for approval any rules in respect of any matter referred to in subsection 18(1) or (2.1) that it proposes to formulate or revise on its own initiative.

(2) A company may not file rules with the Minister under subsection (1) unless it has first given a reasonable opportunity during a period of sixty days for consultation with it concerning the rules,

(a) in the case of a railway company, to each relevant association or organization that is likely to be affected by the implementation of the rules; or

(b) in the case of a local railway company, to any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the implementation of the rules.

(3) Rules filed with the Minister by a company pursuant to subsection (1) shall be accompanied by a notice

(a) setting out the reasons why the company proposes to formulate or revise the rules; and

(b) identifying any relevant association or organization or any railway company that objects, on grounds of safety, to the implementation of those rules and attaching a copy of the notice of objection.

(4) Subsections 19(4) to (5.1), (10) and (11) apply in relation to the filing and consideration of rules filed with the Minister under subsection (1) as if the rules had been duly filed in compliance with an order made under subsection 19(1).

20.1 A third party may act for and on behalf of a company in all matters relating to the formulation or revision of standards or rules under sections 7, 19 and 20.

20.2 (1) The Governor in Council may make regulations respecting the process for the formulation or revision of rules applicable to companies and for the amendment of their terms and conditions.

(2) A regulation made under subsection (1) may be general or applicable to a group or class of companies.

21. In establishing, under section 19 or 20, rules applying to a particular company or in deciding, under section 19 or 20, whether to approve rules formulated or revised by, and applying to, a particular company, the Minister shall, to the extent that it is, in the opinion of the Minister, reasonable and practicable to do so, ensure that those rules are uniform with rules dealing with a like matter and applying to other companies.

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

(a) exempt a specified company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or (2.1) or of rules in force under 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) If, in the opinion of the Minister, the exemption is in the public interest and is not likely to threaten safe railway operations, he or she may, by notice, on any terms and conditions that are specified in the notice,

(a) exempt a specified company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or (2.1) or of rules in force under section 19 or 20; or

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

(3) A notice under subsection (2) shall be sent to the company or person exempted by the notice and takes effect on receipt by that company or person.

(4) A company may apply to the Minister for an exemption from the application of a specified provision of regulations under subsection 18(1), (2) or (2.1) or of rules in force under section 19 or 20.

(5) A company may not apply for an exemption under subsection (4) unless it has first given

(a) in the case of a railway company, each relevant association or organization that is likely to be affected by the exemption, and

(b) in the case of a local railway company, any railway company on whose line the local railway company operates railway equipment and that is likely to be affected by the exemption,

a reasonable opportunity during a period of sixty days to consult with it, except that it may apply for the exemption before the end of those sixty days if it has received comments from all those associations and organizations or from that railway company, as the case may be.

(6) The company shall send with its application to the Minister a copy of all comments received from relevant associations and organizations or the railway company.

(7) The Minister may grant the application within sixty days after receiving it if, in the opinion of the Minister, the exemption is in the public interest and is not likely to threaten safe railway operations. The Minister may extend the time for granting the application for an additional period of up to sixty days.

22.1 (1) A company that proposes to conduct testing relating to railway transportation, or that requires an immediate exemption of short duration, may by notice seek an exemption from the application of any provision of standards formulated under section 7, regulations made under subsection 18(1) or (2) or 24(1) or rules in force under section 19 or 20 for a period of up to six months.

(2) A notice under subsection (1) shall be filed with the Minister and

(a) in the case of a railway company, each relevant association or organization that is likely to be affected by the exemption; or

(b) in the case of a local railway company, any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the exemption.

(3) Each of the relevant associations or organizations or the railway company to which notice must be given, as the case may be, may object to an exemption on grounds of safety by filing its objection with the Minister and the company within fourteen days after the notice referred to in subsection (1) is filed.

(4) The Minister may

(a) within twenty-one days after the filing of an objection under subsection (3), confirm the objection if the Minister decides that the exemption threatens safety;

(b) within twenty-one days after the filing of an objection under subsection (3) or within thirty-five days after receiving a notice under subsection (1), impose terms and conditions on the exemption that the Minister considers appropriate, if the Minister is of the opinion that the exemption without terms and conditions is not in the public interest or is likely to threaten safety; or

(c) within thirty-five days after receiving the notice under subsection (1), deny the exemption if the Minister is of the opinion that the exemption is not in the public interest or is likely to threaten safety.

(5) An exemption is effective if

(a) the company receives a response from the Minister and each of those associations and organizations or the railway company, as the case may be, indicating that they do not object to the exemption;

(b) no objections are confirmed by the Minister under paragraph (4)(a);

(c) the Minister, instead of making or confirming an objection, imposes terms and conditions under paragraph (4)(b) and the company complies with the terms and conditions; or

(d) the Minister does not deny the exemption under paragraph (4)(c).

(2) Subsections 19(2) and (3) of the Act, as enacted by subsection (1), are replaced by the following:

(2) A company shall comply with the regulations made under section 20.2 in the formulation and filing of its rules.

(3) Subsections 19(4) to (4.2) of the Act, as enacted by subsection (1), are replaced by the following:

(4) If rules are filed with the Minister by a company pursuant to an order under subsection (1), the Minister shall without delay consider whether, in the Minister’s opinion, those rules are conducive to safe railway operations by the company — having regard to current railway practice, to the views of the company and each person that the company was required by the regulations to consult on the rules, and to any other factor that the Minister considers relevant — and shall, before the expiration of the assessment period in relation to those rules,

(a) if the Minister is satisfied that the rules are conducive to those operations, notify the company and each person whose views were considered that the Minister approves those rules, either absolutely or on any terms and conditions that are specified in the notice; or

(b) if the Minister is not so satisfied, notify the company and each person whose views were considered that the Minister refuses to approve those rules and of the reasons why the Minister is not so satisfied.

(4.1) A company referred to in subsection (4) may, on the basis of new information about the safety of railway operations, request the Minister to amend any terms or conditions specified under that subsection in accordance with the prescribed process.

(4.2) After receiving a request from a company under subsection (4.1), the Minister may amend any terms or conditions specified under subsection (4) and, in that case, shall provide a copy of the amendments to each person that the company was required by regulation to consult on the request for amendments.

(4) Paragraph 19(8)(a) of the Act, as enacted by subsection (1), is replaced by the following:

(a) has given, during a period of sixty days, a reasonable opportunity to consult with the Minister on the rules to that company and each person that the company would be required to consult if the rules were formulated by the company following an order made under subsection (1); and

(5) Subsections 20(2) and (3) of the Act, as enacted by subsection (1), are replaced by the following:

(2) A company shall comply with the regulations made under section 20.2 in the formulation and revision of its rules.

15. Section 23 of the Act is repealed.

16. (1) Paragraph 24(1)(f) of the Act is replaced by the following:

(f) for restricting or preventing, by means of fences, signs or any other means, access to the land on which a line of railway is situated by persons — other than employees or agents or mandataries of the railway company concerned, or of the local railway company authorized to operate railway equipment on the railway — or by vehicles or animals, if their presence on that land would constitute a threat to safe railway operations;

(2) Subsection 24(2) of the French version of the Act is replaced by the following:

17. (1) Subsection 25(1) of the English version of the Act is replaced by the following:

25. (1) For the purpose of preventing a threat to safe railway operations on a line of railway or restoring safe railway operations on a line of railway, a railway company may enter onto any land adjoining the land on which the line of railway is situated

(a) at any time, in order to maintain or alter railway works or remove obstructions to them, if no other access to the line of railway is reasonably available, and remain on the land for as long as is necessary to accomplish that purpose;

(b) at any time, in order to deal with any fire occurring on either of those lands;

(c) at any reasonable time, on giving notice in writing of its intention to do so to the owner of the adjoining land, in order to cut down trees or brush that has been permitted to grow on that land in contravention of regulations made under paragraph 24(1)(e); or

(d) at any time between November 1 and March 31, in order to install or maintain a snow fence.

(2) Subsections 25(2) and (3) of the French version of the Act are replaced by the following:

18. Section 26.2 of the French version of the Act is replaced by the following:

19. Subsection 27(1) of the Act is replaced by the following:

27. (1) The Minister may designate any person whom the Minister considers qualified as a railway safety inspector or a screening officer for the purposes of this Act and the Minister shall determine the matters in respect of which, and the restrictions or conditions under which, the person may exercise the powers of a railway safety inspector or screening officer.

(1.1) When carrying out powers and duties under this Act, a person designated under subsection (1) is acting for and on behalf of the Minister.

20. Paragraph 28(1)(a) of the Act is replaced by the following:

(a) for the purpose of ensuring compliance with this Act and with the regulations, emergency directives, rules, orders and security measures made under this Act, enter any place, other than a private dwelling-place, where activities are carried on that relate directly or indirectly to the operation or maintenance of a railway or the operation of railway equipment, and carry out any inspection that the inspector considers necessary in relation to the matters designated by the Minister under section 27 in respect of which the inspector may exercise the powers of a railway safety inspector;

21. (1) Subsection 31(1) of the Act is replaced by the following:

31. (1) If a railway safety inspector is of the opinion that the standard of construction or maintenance of a line work or railway equipment of a 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 for it; and

(b) may, in the 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 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.

(2) Subsection 31(2) of the French version of the Act is replaced by the following:

(3) Subsection 31(3) of the Act is replaced by the following:

(3) If a railway safety inspector is of the opinion that the operation of a line work or railway equipment threatens the safety or security of railway operations, the inspector, by notice sent to the company or to any other person who owns or leases the equipment,

(a) shall inform them of that opinion and of the reasons for it; and

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

(4) Subsections 31(6) and (7) of the English version of the Act are replaced by the following:

(6) If a notice sent to a company under this section contains an order, the railway safety inspector who sent the notice shall send a copy of it to the company supervisor who is directly responsible for the works or equipment concerned or, in the absence of that supervisor, to the employee who is at that time in charge of the works or equipment concerned.

(7) An order contained in a notice under this section has effect, in the case of a company, when the company receives the notice or when a company supervisor or employee receives a copy of it, whichever occurs first and, in the case of any other person, when they receive the notice.

(5) Subsection 31(10) of the English version of the Act is replaced by the following:

(10) An alteration or revocation of an order under this section has effect when the company or other person to whom the original notice was sent receives a notice of the alteration or revocation.

22. Subsection 31.1(1) of the Act is replaced by the following:

31.1 (1) A person who is sent a notice under section 31 that contains an order may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the order.

23. Section 31.5 of the English version of the Act is replaced by the following:

31.5 An alteration or revocation under section 31.4 has effect when the company or other person to whom notice of the order under section 31 was sent receives notice of the alteration or revocation.

24. Subsections 32(3) and (3.1) of the Act are replaced by the following:

(3) If the Minister is of the opinion that a person has contravened a regulation made under section 24, the Minister

(a) by notice sent to the person,

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

(ii) may, if the Minister believes that, by reason of that contravention, there exists in respect of particular railway works an immediate threat to safe railway operations, order the person to take any action that is necessary to remove the threat; and

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

(i) shall inform the railway company of that opinion and of the reasons for it, and

(ii) may, if the Minister believes that, by reason of that contravention, there exists an immediate threat to safe railway operations, order the railway company to ensure that specified railway works or specified railway equipment not be used, or not be used otherwise than under terms and conditions specified in the notice, until appropriate action to remove the threat has, to the Minister’s satisfaction, been taken by the person referred to in paragraph (a).

(3.1) If the Minister is of the opinion that the safety management system established by a company has deficiencies that risk compromising railway safety, the Minister may, by notice sent to the company, order the company to take the necessary corrective measures.

25. Subsection 32.1(1) of the Act is replaced by the following:

32.1 (1) A person who is sent a notice under section 32 that contains an order may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the order.

26. Section 32.5 of the English version of the Act is replaced by the following:

32.5 An alteration or revocation under section 32.4 has effect when the company or other person to whom notice of the order under section 32 was sent receives notice of the alteration or revocation.

27. (1) Subsection 33(1) of the Act is replaced by the following:

33. (1) If the Minister is of the opinion that there is an immediate threat to safe railway operations or the security of railway transportation, the Minister may, by emergency directive sent to a company, order it

(a) either absolutely or to the extent specified in the directive, to stop using the kind of railway works or railway equipment or following the maintenance or operating practice that poses the threat; or

(b) to follow a maintenance or operating practice specified in the directive if the threat is posed by the company’s failure to follow that practice.

(2) Subsections 33(4) to (6) of the English version of the Act are replaced by the following:

(4) The Minister may, by notice sent to the company, rescind an emergency directive, in which case the directive ceases to have effect.

(5) In the event that there is an inconsistency between an emergency directive and a regulation made under subsection 18(1) or (2.1) or a rule in force under section 19 or 20, the emergency directive prevails to the extent of the inconsistency.

(6) The Minister may, before the expiration of the period during which an emergency directive has effect, by notice sent to the company, renew the directive for a further specified period commencing on the expiration of the previous period and not exceeding six months and, if the Minister does so, this section, except this subsection, applies to the directive as renewed.

28. Subsection 34(2) of the English version of the Act is replaced by the following:

(2) For the purpose of enabling an order contained in a notice served on a company or person by a railway safety inspector to be enforced as an order of a court under this section, the Minister may, by notice sent to that company or person, confirm that order, and that order after that has effect as an order of the Minister.

29. (1) Subsection 35(2) of the French version of the Act is replaced by the following:

(2) Subsection 35(4) of the French version of the Act is replaced by the following:

30. Section 37 of the Act is replaced by the following:

36. The Minister may order that a company provide, in the specified form and within the specified period, information or documents that he or she considers necessary for the purposes of ensuring compliance with this Act and with the regulations, rules, orders, standards and emergency directives made under this Act.

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

(a) respecting the keeping and preservation by each company of information, records and documents relevant to the safety of railway operations conducted by that company, including a complete set of the regulations, emergency directives, rules and orders made pursuant to this Act that are applicable to that company;

(b) respecting the filing with the Minister at the request of the Minister of information, records and documents kept and preserved pursuant to regulations made under paragraph (a); and

(c) respecting notification to the Minister by companies of information suitable for monitoring safety performance or predicting potential changes in levels of safety, including information about any accident or incident associated with railway safety or any situation that could have a detrimental impact on safety performance.

(2) A regulation made under this section may be general or applicable to a group or class of companies.

31. The Act is amended by adding the following after section 40:

40.1 The Governor in Council may, by regulation,

(a) designate as a provision the contravention of which may be proceeded with as a violation in accordance with sections 40.13 to 40.22,

(i) any provision of this Act or the regulations, or

(ii) any rule, standard, order or emergency directive made under this Act; and

(b) prescribe the maximum amount payable for each violation, not to exceed

(i) $50,000, in the case of an individual, and

(ii) $250,000, in the case of a corporation.

40.11 (1) The Minister may designate persons, or classes of persons, as enforcement officers.

(2) Every person designated as an enforcement officer under subsection (1) shall receive an authorization in prescribed form attesting to the person’s designation and shall, on demand, present the authorization to any person from whom the enforcement officer requests information in the course of the enforcement officer’s duties.

(3) For the purposes of determining whether a violation referred to in section 40.13 has been committed, a person designated as an enforcement officer under subsection (1) may enter any place, other than a private dwelling-place, where activities are carried on that relate directly or indirectly to the construction or operation of a railway or the operation of railway equipment.

(4) For the purposes of determining whether a violation referred to in section 40.13 has been committed, a person designated as an enforcement officer under subsection (1) may require any person to produce for examination or reproduction all or part of any document or electronically stored data that the enforcement officer believes on reasonable grounds contain any information relevant to that determination.

(5) Any person from whom documents or data are requested under subsection (4) shall provide all reasonable assistance in their power to enable the enforcement officer making the request to carry out the enforcement officer’s duties and shall furnish any information that the enforcement officer reasonably requires for the purposes of this Act.

40.12 The Minister may establish the form and content of notices of violation.

40.13 (1) Every person who contravenes a provision designated under paragraph 40.1(a) commits a violation and is liable to a penalty not exceeding the maximum amount prescribed under paragraph 40.1(b).

(2) A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

(3) If a contravention of a provision designated under paragraph 40.1(a) may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding in the other.

(4) For greater certainty, a violation is not an offence and accordingly section 126 of the Criminal Code does not apply in respect of a violation.

40.14 When a person designated by the Minister under subsection 40.11(1) believes on reasonable grounds that a person has committed a violation, he or she may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out

(a) the penalty for the violation that the person is liable to pay; and

(b) particulars concerning the time for and manner of paying the penalty and the procedure for requesting a review.

40.15 If a person served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in the notice, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention and no further proceedings under this Act shall be taken against the person in respect of that contravention.

40.16 (1) A person served with a notice of violation that wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice — or within any further time that the Tribunal on application may allow — file a written request for a review with the Tribunal.

(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person that filed the request of the time and place in writing.

(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person that filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

(4) The Minister has the burden of establishing that a person has committed a violation.

(5) A person alleged to have committed a violation is not required to give evidence.

40.17 A person that fails to pay the amount of the penalty specified in a notice of violation within the specified time and that does not file a request for a review is deemed to have committed the contravention alleged in the notice.

40.18 At the conclusion of a review, the member of the Tribunal who conducts the review shall without delay inform the Minister and the person alleged to have committed a violation

(a) that the person has not committed a violation, in which case, subject to section 40.19, no further proceedings under this Act shall be taken against the person in respect of the alleged violation; or

(b) that the person has committed a violation and, subject to any regulations made under paragraph 40.1(b), of the amount that must be paid to the Tribunal by or on behalf of the person and the time within which it must be paid.

40.19 (1) Within 30 days after a determination is made under section 40.18, the Minister or the person to whom it applies may appeal from the determination to the Tribunal.

(2) A party 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.

(3) The appeal panel of the Tribunal assigned to hear an appeal may dispose of the appeal by dismissing it or by allowing it and, in allowing the appeal, the panel may substitute its decision for the determination.

(4) If the appeal panel finds that a person has committed a violation, the panel shall without delay inform the person and the Minister of the finding and, subject to any regulations made under paragraph 40.1(b), of the amount determined by the panel to be payable to the Tribunal by or on behalf of the person in respect of the violation.

40.2 The Minister may obtain from the Tribunal or the member, as the case may be, a certificate in the form established by the Governor in Council setting out the amount of the penalty required to be paid by a person who fails, within the time required,

(a) to pay the amount of a penalty set out in a notice of violation or to file a request for a review under section 40.16;

(b) to pay an amount determined under paragraph 40.18(b) or file an appeal under section 40.19; or

(c) to pay an amount determined under subsection 40.19(4).

40.21 (1) On production in any superior court, a certificate issued under section 40.2 shall be registered in the court and, when so registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.

(2) All reasonable costs and charges attend- ant on the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been registered under subsection (1).

(3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.

40.22 Proceedings in respect of a violation may not be instituted later than 12 months after the time when the subject matter of the proceedings arose.

32. (1) Subsection 41(1) of the Act is replaced by the following:

41. (1) Every person who contravenes a provision of this Act is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of a corporation, to a fine not exceeding one million dollars, and

(ii) in the case of an individual, to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding one year, or to both; or

(b) on summary conviction,

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

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

(2) Subsection 41(2) of the Act is amended by striking out “or” at the end of paragraph (e) and by adding the following after paragraph (f):

(g) a railway operating certificate issued under section 17.4; or

(h) an order made under section 36.

(3) Subsection 41(2.1) of the Act is replaced by the following:

(2.1) A person who is guilty of an offence under subsection (2) is liable on summary conviction

(a) in the case of a corporation, to a fine of not more than one million dollars; and

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

33. Section 44 of the French version of the Act is replaced by the following:

34. Subsection 44.1(2) of the French version of the Act is replaced by the following:

35. Section 46 of the Act is amended by striking out “or” at the end of paragraph (e) and by adding the following after paragraph (f):

(g) railway operating certificates issued under section 17.4 and notices of decision given under section 17.5; or

(h) orders made under section 36.

36. The heading before section 47 of the Act is replaced by the following:

37. Section 47.1 of the Act is replaced by the following:

47.1 (1) The Governor in Council may make regulations respecting safety management systems including, but not limited to, regulations respecting

(a) the establishment by companies of safety management systems that include

(i) the identification of an executive who is

(A) responsible for operations and activities of a company, and

(B) accountable for the extent to which the requirements of the safety management system have been met,

(ii) the implementation, as a result of a risk management analysis, of the remedial action required to maintain the highest level of safety,

(iii) the continuous monitoring and regular assessment of the level of safety achieved,

(iv) in the case of a railway company, the implementation of non-punitive internal reporting and confidential reporting to Transport Canada by employees of contraventions of this Act or of any regulations, rules, certificates, orders or emergency directives under this Act relating to safety, or of other safety concerns, and

(v) in the case of a railway company, the involvement of employees and their collective bargaining agents in the ongoing operation of the safety management system;

(b) the development and implementation of safety management systems by companies, including the involvement of employees and their collective bargaining agents in the case of railway companies; and

(c) the criteria to which the safety management system must conform as well as the components, including the principle of fatigue science applicable to scheduling, that must be included in a safety management system.

(2) The Governor in Council may make regulations respecting the release of pollutants into the environment from the operation of railway equipment by a railway company including, but not limited to, regulations respecting

(a) the keeping of records and information and their filing with the Minister; and

(b) the form and content of labels to be affixed to railway equipment and their placement on railway equipment.

(3) The Governor in Council may make regulations requiring a railway company to file with the Minister environmental management plans and compliance audits with respect to those plans.

(4) A regulation made under this section may be general or applicable to a group or class of companies.

47.2 (1) The Minister may make regulations prescribing any fees or charges, or determining the manner of calculating any fees or charges, to be paid

(a) for services or the use of facilities provided by the Minister in the administration of this Act; or

(b) in relation to the filing of documents and the making of applications for and the issuance of certificates, exemptions, licences or approvals under this Act.

(2) Her Majesty in right of Canada or a province and the entities named in Schedules II and III to the Financial Administration Act are not liable to pay fees or charges.

(3) A regulation made under this section may be general or applicable to a group or class of companies.

47.3 (1) The Standing Committee on Transport, Infrastructure and Communities of the House of Commons or, if there is not a Standing Committee on Transport, Infrastructure and Communities, the appropriate committee of that House may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The Committee may hold public hearings and may table its report on its review in the House of Commons.

(2) The Standing Senate Committee on Transport and Communications or, if there is not a Standing Senate Committee on Transport and Communications, the appropriate committee of the Senate may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The committee may hold public hearings and may table its report on its review in the Senate.

38. Section 51 of the Act is replaced by the following:

51. (1) The Minister shall, not later than five years after the day on which this section comes into force, appoint one or more persons to carry out a comprehensive review of the operation of this Act.

(2) The Minister shall have a report of the comprehensive review laid before each House of Parliament on any of the first thirty days on which that House is sitting after the Minister receives it.

CONSEQUENTIAL AMENDMENTS TO THE CANADA TRANSPORTATION ACT

39. Subsection 157.1(1) of the Canada Transportation Act is replaced by the following:

157.1 (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) accident investigations and railway crossings; or

(b) railway noise and vibration, or the regulation of the rates and conditions of service of railway companies, to the extent that those matters are governed by this Act.

40. Section 158 of the Act is replaced by the following:

158. The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate the construction and operation of a railway as well as the rates and conditions of service in the same manner and to the same extent as it may regulate a railway within its jurisdiction.

TRANSITIONAL PROVISIONS

41. An agreement entered into or a designation made under section 157.1 of the Canada Transportation Act in respect of any matter referred to in section 6.1 of the Railway Safety Act, as enacted by section 6, continues in force in accordance with its terms until it is replaced by an agreement entered into under that section 6.1.

42. An agreement entered into under section 158 of the Canada Transportation Act in respect of any matter referred to in section 6.2 of the Railway Safety Act, as enacted by section 6, continues in force in accordance with its terms until it is replaced by an agreement entered into under that section 6.2.

43. For the period ending two years after the day on which section 10 comes into force, section 17.1 of the Railway Safety Act, as enacted by section 10, does not apply to a company that was operating or maintaining a railway on that day or that was operating railway equipment on a railway on that day.

44. For the period ending two years after the day on which section 17.2 of the Railway Safety Act, as enacted by subsection 11(2), comes into force, the requirement to comply with a railway operating certificate imposed by that section 17.2 does not apply to a company that has no railway operating certificate if that company was operating or maintaining a railway on that day or was operating railway equipment on a railway on that day.

COMING INTO FORCE

45. (1) The provisions of this Act, other than subsections 7(2) and 14(2) to (5), come into force on a day or days to be fixed by order of the Governor in Council.

(2) Subsections 7(2) and 14(2) to (5) come into force on the day on which the first regulations made under section 20.2 of the Railway Safety Act, as enacted by subsection 14(1), come into force.