Vol. 150, No. 8 — April 20, 2016
Registration
SOR/2016-65 March 29, 2016
RAILWAY SAFETY ACT
Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations (Grade Crossings Regulations)
P.C. 2016-164 March 24, 2016
His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 40.1 (see footnote a) of the Railway Safety Act (see footnote b), makes the annexed Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations (Grade Crossings Regulations).
Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations (Grade Crossings Regulations)
Amendments
1 Section 3 of the Railway Safety Administrative Monetary Penalties Regulations (see footnote 1) is replaced by the following:
Designations — orders, rules and emergency directives
3 (1) The following instruments are designated as provisions the contravention of which may be proceeded with as a violation in accordance with sections 40.13 to 40.22 of the Act:
- (a) an order made under subsection 7(2) or 19(1) of the Act;
- (b) a rule in force under section 19 or 20 of the Act;
- (c) an emergency directive made under section 33 of the Act; and
- (d) an order made under section 36 of the Act.
Maximum amounts
(2) The maximum amount payable for a violation referred to in paragraph 1(a) or (b) is $25,000 in the case of an individual and $125,000 in the case of a corporation.
Maximum amounts
(3) The maximum amount payable for a violation referred to in paragraph 1(c) or (d) is $50,000 in the case of an individual and $250,000 in the case of a corporation.
2 Item 17 of Part 1 of Schedule 1 to the Regulations is repealed.
3 The portion of item 19 of Part 1 of Schedule 1 to the Regulations in column 3 is repealed.
4 Item 20 of Part 1 of Schedule 1 to the Regulations is repealed.
5 Schedule 1 to the Regulations is amended by adding the following after Part 4:
PART 5
Designated Provisions of the Grade Crossings Regulations
| Item |
Column 1 |
Column 2 |
Column 3 |
|---|---|---|---|
1 |
Sections 4 and 11 |
5,000 |
25,000 |
2 |
Sections 5 and 11 |
25,000 |
125,000 |
3 |
Sections 6 and 11 |
50,000 |
250,000 |
4 |
Sections 8 and 11 |
5,000 |
25,000 |
5 |
Sections 9 and 11 |
50,000 |
250,000 |
6 |
Section 10 |
5,000 |
25,000 |
7 |
Sections 12 and 18 |
5,000 |
25,000 |
8 |
Sections 13 and 18 |
25,000 |
125,000 |
9 |
Sections 14 and 18 |
50,000 |
250,000 |
10 |
Sections 15 and 18 |
25,000 |
125,000 |
11 |
Section 17 |
5,000 |
25,000 |
12 |
Subsection 20(1) |
50,000 |
250,000 |
13 |
Subsection 20(2) |
50,000 |
250,000 |
14 |
Subsection 20(3) |
50,000 |
250,000 |
15 |
Subsections 21(1) and (4) |
50,000 |
250,000 |
16 |
Subsections 21(2) and (4) |
25,000 |
125,000 |
17 |
Subsections 21(3) and (4) |
50,000 |
250,000 |
18 |
Section 23 |
50,000 |
250,000 |
19 |
Section 24 |
50,000 |
250,000 |
20 |
Section 25 |
50,000 |
250,000 |
21 |
Section 26 |
50,000 |
250,000 |
22 |
Section 27 |
50,000 |
250,000 |
23 |
Section 28 |
50,000 |
250,000 |
24 |
Section 29 |
50,000 |
250,000 |
25 |
Section 31 |
25,000 |
125,000 |
26 |
Section 32 |
50,000 |
250,000 |
27 |
Section 33 |
50,000 |
250,000 |
28 |
Section 34 |
25,000 |
125,000 |
29 |
Section 35 |
50,000 |
250,000 |
30 |
Section 36 |
50,000 |
250,000 |
31 |
Section 38 |
25,000 |
125,000 |
32 |
Section 39 |
25,000 |
125,000 |
33 |
Subsection 40(1) |
50,000 |
250,000 |
34 |
Subsection 40(2) |
50,000 |
250,000 |
35 |
Section 41 |
50,000 |
250,000 |
36 |
Subsection 42(1) |
50,000 |
250,000 |
37 |
Subsection 42(2) |
25,000 |
125,000 |
38 |
Subsection 43(1) |
50,000 |
250,000 |
39 |
Subsection 43(2) |
25,000 |
125,000 |
40 |
Subsection 44(1) |
50,000 |
250,000 |
41 |
Subsection 45(1) |
50,000 |
250,000 |
42 |
Subsection 45(2) |
50,000 |
250,000 |
43 |
Section 46 |
50,000 |
250,000 |
44 |
Section 48 |
25,000 |
125,000 |
45 |
Section 49 |
50,000 |
250,000 |
46 |
Subsection 50(1) |
50,000 |
250,000 |
47 |
Subsection 50(2) |
25,000 |
125,000 |
48 |
Subsection 51(1) |
50,000 |
250,000 |
49 |
Subsection 51(2) |
25,000 |
125,000 |
50 |
Subsection 53(1) |
50,000 |
250,000 |
51 |
Subsection 53(2) |
50,000 |
250,000 |
52 |
Subsection 53(3) |
50,000 |
250,000 |
53 |
Section 54 |
50,000 |
250,000 |
54 |
Subsection 55(1) |
50,000 |
250,000 |
55 |
Subsection 55(2) |
50,000 |
250,000 |
56 |
Section 56 |
50,000 |
250,000 |
57 |
Section 57 |
50,000 |
250,000 |
58 |
Section 58 |
50,000 |
250,000 |
59 |
Sections 59 and 60 |
25,000 |
125,000 |
60 |
Sections 59 and 61 |
50,000 |
250,000 |
61 |
Sections 59 and 62 |
25,000 |
125,000 |
62 |
Sections 59 and 63 |
25,000 |
125,000 |
63 |
Section 59 and subsection 64(1) |
50,000 |
250,000 |
64 |
Section 59 and subsection 64(2) |
50,000 |
250,000 |
65 |
Sections 59 and 65 |
50,000 |
250,000 |
66 |
Section 59 and subsection 66(1) |
50,000 |
250,000 |
67 |
Section 59 and subsection 66(2) |
25,000 |
125,000 |
68 |
Section 59 and subsection 67(1) |
50,000 |
250,000 |
69 |
Section 59 and subsection 67(2) |
25,000 |
125,000 |
70 |
Section 59 and subsection 68(1) |
50,000 |
250,000 |
71 |
Section 59 and subsection 68(2) |
50,000 |
250,000 |
72 |
Sections 59 and 69 |
50,000 |
250,000 |
73 |
Sections 59 and 70 |
50,000 |
250,000 |
74 |
Sections 59 and 71 |
50,000 |
250,000 |
75 |
Section 72 |
50,000 |
250,000 |
76 |
Section 73 |
50,000 |
250,000 |
77 |
Sections 74 and 76 |
25,000 |
125,000 |
78 |
Sections 74 and 77 |
50,000 |
250,000 |
79 |
Sections 74 and 78 |
50,000 |
250,000 |
80 |
Sections 74 and 79 |
50,000 |
250,000 |
81 |
Section 74 and subsection 80(1) |
50,000 |
250,000 |
82 |
Section 74 and subsection 80(2) |
25,000 |
125,000 |
83 |
Section 74 and subsection 81(1) |
50,000 |
250,000 |
84 |
Section 74 and subsection 81(2) |
50,000 |
250,000 |
85 |
Section 75 and subsection 82(1) |
50,000 |
250,000 |
86 |
Section 75 and subsection 82(2) |
50,000 |
250,000 |
87 |
Sections 75 and 83 |
50,000 |
250,000 |
88 |
Sections 75 and 84 |
50,000 |
250,000 |
89 |
Sections 75 and 85 |
50,000 |
250,000 |
90 |
Section 86 |
50,000 |
250,000 |
91 |
Subsection 87(1) |
50,000 |
250,000 |
92 |
Subsection 87(2) |
50,000 |
250,000 |
93 |
Subsection 87(3) |
50,000 |
250,000 |
94 |
Subsection 88(1) |
50,000 |
250,000 |
95 |
Subsection 88(2) |
50,000 |
250,000 |
96 |
Section 89 |
50,000 |
250,000 |
97 |
Section 90 |
50,000 |
250,000 |
98 |
Section 91 |
50,000 |
250,000 |
99 |
Section 92 |
25,000 |
125,000 |
100 |
Subsection 93(1) |
5,000 |
25,000 |
101 |
Subsection 93(2) |
50,000 |
250,000 |
102 |
Subsection 93(3) |
25,000 |
125,000 |
103 |
Subsection 94(1) |
50,000 |
250,000 |
104 |
Subsection 94(2) |
50,000 |
250,000 |
105 |
Subsection 94(3) |
25,000 |
125,000 |
106 |
Section 95 |
50,000 |
250,000 |
107 |
Subsection 96(1) |
50,000 |
250,000 |
108 |
Subsection 96(2) |
50,000 |
250,000 |
109 |
Subsection 96(3) |
25,000 |
125,000 |
110 |
Subsection 97(1) |
25,000 |
125,000 |
111 |
Subsection 97(2) |
50,000 |
250,000 |
112 |
Subsection 98(1) |
5,000 |
25,000 |
113 |
Subsection 98(2) |
5,000 |
25,000 |
114 |
Subsection 98(3) |
5,000 |
25,000 |
115 |
Subsection 98(4) |
5,000 |
25,000 |
116 |
Section 99 |
50,000 |
250,000 |
117 |
Subsection 100(1) |
50,000 |
250,000 |
118 |
Subsection 100(2) |
50,000 |
250,000 |
119 |
Section 101 |
50,000 |
250,000 |
120 |
Subsection 102(1) |
50,000 |
250,000 |
121 |
Subsection 102(2) |
50,000 |
250,000 |
122 |
Paragraph 103(a) |
50,000 |
250,000 |
123 |
Paragraph 103(b) |
50,000 |
250,000 |
124 |
Paragraph 103(c) |
50,000 |
250,000 |
125 |
Paragraph 103(d) |
25,000 |
125,000 |
126 |
Section 105 |
50,000 |
250,000 |
127 |
Section 106 |
50,000 |
250,000 |
128 |
Section 107 |
50,000 |
250,000 |
129 |
Section 108 |
5,000 |
25,000 |
130 |
Subsection 109(1) |
5,000 |
25,000 |
131 |
Subsection 109(2) |
5,000 |
25,000 |
132 |
Subsection 109(3) |
5,000 |
25,000 |
133 |
Subsection 110(1) |
25,000 |
125,000 |
134 |
Subsection 110(2) |
5,000 |
25,000 |
Coming into Force
6 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Rail Safety Administrative Monetary Penalties Regulations (the AMPs Regulations), which came into force on April 1, 2015, did not contain designated provisions for the Grade Crossings Regulations (GCRs). Amendments complement the existing railway safety oversight regime by providing a full set of compliance and enforcement tools to the Minister of Transport to effectively deal with safety enforcement. Amendments were also required to address technical concerns raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR).
Background
The initial AMPs Regulations were published in the Canada Gazette, Part II, on October 22, 2014, and included designated provisions for the Railway Safety Act (the Act), the 2001 Railway Safety Management System Regulations, the Mining Near Lines of Railways Regulations and the Railway Prevention of Electric Sparks Regulations.
Subsequent amendments to the AMPs Regulations were made in June 2015 following the coming into force of new Railway Safety Act provisions associated with the railway operating certificate in January 2015, and the coming into force of the Railway Safety Management Systems Regulations, 2015, in April.
In May and June 2015, a counsel of the SJCSR raised various points of clarity within the AMPs Regulations and suggested subsequent amendments to the Regulations.
Objectives
The objectives of the amendments are as follows:
- (a) to provide the Minister of Transport with the necessary compliance and enforcement tools by expanding the scope of the administrative monetary penalties regime to encompass the GCRs; and
- (b) to address technical issues identified by the SJCSR.
Description
The amendments modify Schedule 1 of the AMPs Regulations by adding a new Part 5 that includes the designated provisions for the GCRs.
The schedules prescribe the maximum payable amount for an individual and a company for each violation of a designated provision. There are three distinct maximum payable amounts reflecting the level of significance of each designated provision measured by the seriousness of the consequences or potential consequences of the contravention. The three maximum payable amounts reflect low-risk violations of administrative-type provisions, medium-risk safety violations and major safety violations that pose the highest risk to safety.
The maximum payable amounts for a violation are as follows:
| Column 1 |
Column 2 |
Column 3 |
|---|---|---|
| Maximum Payable Amount ($) |
Maximum Payable Amount ($) |
|
| Level of Risk |
Individual |
Corporation |
Category A If violation is low-level risk |
5,000 |
25,000 |
Category B If violation is medium-level risk |
25,000 |
125,000 |
Category C If violation is high-level risk |
50,000 |
250,000 |
Examples of designated provisions of the Grade Crossings Regulations and the maximum payable amounts prescribed include:
- Subsection 110(2), requires a railway company to keep records of any warning system malfunction or failure for two years after the day on which the railway company was advised or became aware of any condition that exists that may cause a malfunction or failure: maximum payable amount — $5,000/$25,000.
- Section 92, requires a railway company to ensure that the instrument housing for a warning system is locked when it is unattended: maximum payable amount — $25,000/$125,000.
- Paragraph 103(a), requires a railway company or road authority to notify the other party of a traffic control device that is interconnected with a warning system malfunction even if the malfunction, condition or failure is not confirmed: maximum payable amount — $50,000/$250,000.
Under the Act, any person served with a notice of violation may request from the Transportation Appeal Tribunal of Canada (TATC) a review of an alleged violation and the amount of the penalty. The minister or the person served with a notice of violation may appeal the results of the determination to the TATC for final determination. As a quasi-judicial body, the TATC review process is less formal than court proceedings. Thus, an AMP regime is relatively inexpensive to administer within an existing compliance and enforcement program, and it normally results in more timely and effective enforcement than prosecution.
Following recommendations made by the SJCSR, technical amendments are made to relocate the designation of two instruments, the violation of which is subject to the AMP regime of the Railway Safety Act, from Schedule 1, Part 1 to section 3 of the Regulations. In addition, the maximum penalty for a corporation has been removed from item 19 in Schedule 1, Part 1, as the obligation under subsection 35(3) of the Act can only relate to an individual.
The amendments are technical in nature, and do not affect any of the instruments designated nor the maximum amounts payable for the violation of those instruments.
Consultation
Stakeholders were informed of the Department’s intention to continually amend the AMPs Regulations to reflect new regulatory requirements at the May 28, 2014, meeting of the Advisory Council on Railway Safety. During February and March 2015, Transport Canada consulted with the following stakeholders on the proposed amendments to the Railway Safety Administrative Monetary Penalties Regulations:
- Canadian railway industry, including all companies under federal jurisdiction, and the Railway Association of Canada;
- Labour organizations including, but not limited to, Unifor, Teamsters Canada Rail Conference, and United Steelworkers;
- Road authorities, municipalities, associations, and band councils;
- Representatives of provincial governments; and
- Members of the public.
As a result of the consultations, Transport Canada received one letter from a municipality that was outside the scope of this regulatory amendment. The municipality acknowledged the overall objective of providing an enforcement tool to improve rail safety. The stakeholder requested that Transport Canada establish a reasonable cost-sharing mechanism to mitigate the additional financial burden of complying with the Grade Crossings Regulations.
The proposed amendments to the Regulations Amending the Railway Safety Administrative Monetary Penalties Regulations (Grade Crossings Regulations) were published in Part I of the Canada Gazette on, June 27, 2015, followed by a 30-day comment period. No comments were received.
The amendments related to the recommendations from the SJCSR are technical and do not impact on stakeholder interests. Therefore, such amendments were not consulted with stakeholders.
“One-for-One” Rule
The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative burden.
Small business lens
The small business lens does not apply to this proposal, as no incremental costs will be imposed on small businesses that comply with the Act and its related instruments.
Rationale
The amendments to the AMPs Regulations address gaps in the AMPs regime by capturing the Grade Crossings Regulations. These amendments complement the existing railway safety oversight regime by providing a full set of compliance and enforcement tools to the Minister of Transport to effectively deal with safety enforcement.
The amendments to the AMPs Regulations benefit the Canadian public by allowing Transport Canada to enforce requirements with respect to the GCRs using an administrative process rather than resorting to prosecution in the courts. Criminal proceedings often result in considerable costs to the federal government and to the individual and/or corporation involved.
All government departments, and more specifically Transport Canada, have adopted what is termed a progressive or graduated approach to the compliance or enforcement activities under their authority. Where AMPs are proposed, they are invariably suggested as a complement or supplement to other compliance and enforcement tools. These amendments expand the application of the Minister of Transport’s compliance and enforcement tools, thereby increasing rail safety and public confidence.
The objectives of the Act include the promotion and provision of safety and security to the public and personnel, the protection of property and the environment in railway operations, the recognition of the responsibility of companies to demonstrate that they continuously manage risks related to safety matters, and the facilitation of a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security. The regulatory amendments to amend certain issues identified by the SJCSR serve to clarify the department’s current regulatory authorities. These amendments have no cost to or impact on government policy, industry, or Canadians.
Implementation, enforcement and service standards
The AMP Regulations modify existing Schedule 1 by adding a new Part 5 for the designated provisions for the GCRs, which came into force on November 28, 2014. The amendments to section 3 and Part I, Schedule I are technical in nature and do not change the nature of the AMP Regulations that were implemented in April 2015.
To ensure that AMPs in respect to the new Regulations are applied in a fair, impartial, predictable and nationally consistent manner, guidance materials will be developed to align with rail safety’s existing compliance and enforcement regime. Training will be provided to rail safety officials within existing programs. Adding this guidance to the existing training program will ensure that departmental officials take a standard approach in similar circumstances to achieve consistent results.
Contact
Any questions related to the amendments to the Railway Safety Administrative Monetary Penalties Regulations should be directed to
Susan Archer
Director
Regulatory Affairs
Transport Canada
Telephone: 613-990-8690
Email: susan.archer@tc.gc.ca
- Footnote a
S.C. 2012, c. 7, s. 31 - Footnote b
R.S., c. 32 (4th Supp.) - Footnote 1
SOR/2014-233