TRANSPORTATION MODERNIZATION ACT: SI/2020-60
Canada Gazette, Part II, Volume 154, Number 18
SI/2020-60 September 2, 2020
TRANSPORTATION MODERNIZATION ACT
Order Fixing the Second Anniversary of the Day on Which this Order is Published in the Canada Gazette, Part II , as the Day on Which Sections 61 to 67 of that Act Come into Force
P.C. 2020-570 August 23, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 98(4) of the Transportation Modernization Act, chapter 10 of the Statutes of Canada, 2018, fixes the second anniversary of the day on which this Order is published in the Canada Gazette, Part II, as the day on which sections 61 to 67 of that Act come into force.
(This note is not part of the Order.)
This Order in Council, pursuant to subsection 98(4) of An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts (Transportation Modernization Act), fixes two years after the publication of the new Locomotive Voice and Video Recorder Regulations (the Regulations) as the day on which sections 61 to 67 of that Act come into force. Sections 61 to 66 of the Transportation Modernization Act amend the Railway Safety Act (RSA) and section 67 amends the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA).
The objective of this Order is to establish a coming-into-force date for provisions of the Transportation Modernization Act that are intended to enhance and improve rail safety as well as the safety of the Canadian public. The amendments to the RSA will require rail companies to fit their railway equipment with recording instruments, and provide the Governor in Council with the authority to make regulations concerning those recording instruments, while the amendments to the CTAISBA will ensure that the data can be used for purposes set out in the RSA.
The federal legislation that governs rail safety in Canada is the RSA, which applies to anyone operating over the tracks of a federally regulated railway. One of the objectives of the RSA is to promote and provide for the safety and security of the public and personnel, and the protection of property and the environment, in railway operations. In support of this objective, the RSA establishes the principle that railway companies are responsible for the safety of their own operations.
Transport Canada (TC) is responsible for administering the RSA and for developing and implementing related policies and regulations. TC also conducts inspections and audits to verify that companies and road authorities are complying with safety requirements under the RSA and its associated regulations. TC conducts approximately 33 000 railway safety inspections every year.
The Transportation Safety Board (TSB) is an independent agency responsible for administering the CTAISBA and advances transportation safety by investigating occurrences in the air, marine, pipeline, and rail modes of transportation. As part of its mandate, the TSB makes recommendations to eliminate or reduce safety deficiencies posing significant risks to the transportation system and that warrant the attention of regulators and industry. The TSB reports directly to Parliament on its activities, findings and recommendations for each fiscal year, and also reports publicly on its investigations and related findings.
In 2003, the TSB first recommended the use of on-board voice recording devices in locomotive cabs. In 2012, the TSB added the lack of a requirement for both voice and video recorders on locomotives to its Watchlist. The TSB Watchlist identifies key issues that the TSB believes need to be addressed to improve the safety of Canada’s transportation system.
In February 2016, the Minister of Transport tabled in Parliament the Canada Transportation Act (CTA) Review Report, which recommended, among other things, that a formal strategy for the implementation of locomotive voice and video recording technology be developed by 2020. In September 2016, the TSB issued its report on a joint TSB–TC study on locomotive voice and video recorders, which concluded that rail safety would be enhanced if the recorded data could be used for proactive safety management. The Report noted that the safety benefits of locomotive voice and video recorders extend beyond use for post-accident investigation to also include use for proactive safety management to help identify and mitigate risks before accidents and incidents occur, which could even “reduce the need for reactive investigations.”
In response to the CTA Review Report, as well as the TSB’s reports, Watchlist and recommendations, amendments to the RSA were introduced in Parliament as part of Bill C-49, the Transportation Modernization Act, which received royal assent on May 23, 2018.
Sections 61 to 67 of the Transportation Modernization Act, which must be brought into force by Order in Council, amend the RSA to require rail companies to fit their railway equipment with recording instruments, and provide the Governor in Council with the authority to make regulations concerning these recording instruments. The new Regulations are necessary to implement the Transportation Modernization Act and are an important step in making rail transportation safer in Canada.
More specifically, the Transportation Modernization Act amends the RSA to (i) prohibit a railway company or a local railway company from operating railway equipment on a federally regulated railway unless the equipment is fitted with the required recording instruments; (ii) require that those recording instruments be used in prescribed circumstances to record specific information; and (iii) require that railway companies collect and preserve the information recorded by those instruments. The amendments also specify the circumstances in which the recorded information can be used and communicated by companies, the Minister of Transport, and railway safety inspectors. Additionally, the legislative amendments to the Transportation Modernization Act establish strong privacy protections for locomotive voice and video recorder data, by clearly reinforcing that this data is privileged information under the CTAISBA, meaning it cannot be communicated or used for any other purposes than what is authorized by law.
In 2018, the TSB removed locomotive voice and video recorders from its Watchlist in response to the Transportation Modernization Act amendments to the RSA and the development of related regulations.
The legislative amendments are expected to strengthen rail safety by establishing a regime that will ensure the provision of vital information about the causes and contributing factors of accidents or incidents. This information could lead to the development of new regulations, rules, policies or procedures to help mitigate and prevent future accidents and incidents.
Based on consultations with industry stakeholders and research and analysis conducted by TC officials, the average cost to purchase and install locomotive voice and video recording equipment is estimated to be $26,602 per locomotive. Rail companies will assume costs for purchase and installation, maintenance, testing, and other miscellaneous activities.
Locomotive voice and video recorders will provide information to rail companies and regulatory safety agencies that will enhance the development of railway safety measures that could reduce the frequency and severity of railway accidents and incidents. The presence of in-cab recording equipment will also act as a deterrent against operators engaging in unsafe behaviour.
The legislative amendments allow for locomotive voice and video recordings to be used by companies and TC for the purpose of determining the causes and contributing factors of a reportable accident or incident that the TSB does not investigate. For example, the amendments allow companies to access and use randomly selected voice and video data to identify lessons to be learned and implement corrective measures as part of their ongoing safety management. The amendments also allow TC to access and use randomly selected voice and video data for analysis and policy development. However, the amendments also establish strong privacy protections by clearly reinforcing that the collected data is privileged information under the Canadian Transportation Accident Investigation and Safety Board Act, meaning it cannot be communicated or used for any other purposes than what is authorized by law, including accident investigation by the TSB.
The legislative amendments allow locomotive voice and video recordings to be admissible in any proceedings for a violation or offence against companies
- operating without the prescribed recording instruments;
- not recording the prescribed information using the recording instruments;
- not collecting and preserving the information it records; and
- not in compliance with the Regulations.
The Regulations will specify what must be done in order for rail companies that meet the applicability criteria to comply with the RSA recording instruments requirements. The Regulations also set out the technical specifications required for the locomotive voice and video recording equipment, including environmental and crashworthiness standards and requirements for voice and video quality, placement of cameras and microphones, and synchronization of data, as well as privacy protections for the access and use of the voice and video data, including the requirements for random selection, access controls, collection, communication, and destruction of the data. Additionally, the Regulations require rail companies to provide training to authorized personnel on the handling of this data.
Sections 61 to 67 of the Transportation Modernization Act were not brought into force upon royal assent in order to allow time for TC to develop the Regulations in consultation with stakeholders. The supporting Regulations have now been made, and TC is ready to bring into force the sections of the Transportation Modernization Act. As well, this Order establishes the coming-into-force date of the new provisions of the RSA and CTAISBA as two years after the publication of the Regulations to allow railway companies time to procure and install the required recording equipment.
Impacted stakeholders, including companies, associations, and unions, have been aware of the issue of on-board recordings since 2003, when the TSB first recommended the use of on-board voice recording devices in locomotive cabs. These stakeholders were consulted extensively on the amendments to the RSA and the CTAISBA that were proposed in the Transportation Modernization Act. Stakeholders were mainly supportive of the amendments brought forward, as they acknowledge the safety benefits of voice and video recorders being installed in locomotive cabs and have indicated an eagerness to adopt the technology.
While there is general agreement among impacted stakeholders on the fundamental value of locomotive voice and video data, there are differences of opinion on the appropriate use of the recordings. Unions have long supported the use of voice and video data for post-accident investigations by the TSB only, but have expressed their opposition to the use of voice and video data by companies, including concerns about the potential for abuse of voice and video data by companies and the infringement of their members’ privacy rights. Companies have expressed support for installing locomotive voice and video recording equipment provided they are able to access voice and video data for proactive safety management.
Impacted stakeholders were also consulted on the two-year implementation timeframe between the making of this Order and the coming into force of the RSA provisions, and they were supportive.