Feds have been working on draft regulations since 2010.

PUBLISHED Sept. 30, 2013, THE HILL TIMES

Following the fatal bus crash with a Via Rail train at a level crossing in an Ottawa suburb on Sept. 18 and with renewed calls for more rules on transport safety, the federal government says it’s been working on draft regulations since 2010, but opposition MPs say it’s time for Transport Canada to release them and look at implementation.

“What she’s [Transport Minister Lisa Raitt] saying is somewhere in the department there are regulations being crafted or considered I guess for grade level crossings. If she has them, then she should produce them and it shouldn’t be in this sort of trickle out approach,” said Liberal MP David McGuinty (Ottawa South, Ont.). “Look if the government has a package of reform measures they want to bring to bear from this question of safety, transportation safety and rail safety, then, you know what? They should table it.”

An OC Transpo bus and a Via Rail train crashed on Sept. 18, killing six people and injuring more than 30. The Transportation Safety Board of Canada investigators said that the gates, lights and bells at the level crossing were working and activated 47 seconds before the crash. The train also used emergency brakes two seconds before the crash, but did not blow its whistle because of a municipal ban. Investigators are still studying recorders from both the train and bus to find out what caused the accident, and will look at whether sightlines at the crossing were obstructed.

In response, Transport Minister Lisa Raitt (Halton, Ont.) said the government is looking at how new regulations could improve transport safety. She told CBC recently that following a different accident in 2010, the Transportation Safety Board made some recommendations and Transport Canada has followed up with draft regulations.

“We have developed a package of regulations. More than that, we have been assessing the higher risk crossings along with the rail lines in the country as well as in that Quebec-Windsor corridor that the TSB pointed out specifically,” she said on Sept. 19. “That being said, we have seen a lot of changes in a lot of these areas already. The government really did invest in infrastructure and grade separation helping with communities and making those separations in the places where they were deemed to be high risk.”

Ms. Raitt noted that the draft regulations are “technical” and outline rules for municipalities and industry to coordinate safety processes.

“What they’re meant to do is to make sure that wherever there is that interface, either between a person wanting to cross a rail line, or a vehicle crossing a rail line, that there’s a process in place and there are standards in place with respect to what’s there,” she said, noting that in general rail crossings are safe in Canada. “People are working on making sure we have the right levels of warnings of lights, of educating the people through Operation Life Save, for example. … That being said, every mode of transportation has an inherent risk. Our job is to make sure that we decrease and mitigate that risk as much as possible. I expect that industry and the municipalities will work with me.”

Between January and July 2013, there have been 108 accidents at crossings across Canada, of which there were 20 fatalities, according to the Transportation Safety Board. In 2012, there were 187 accidents, of which there were 29 deaths. The TSB website also stated there were 1,023 rail accidents in 2011. Freight trains accounted for 71 per cent of the 2011 accidents. The same year, 17 per cent of rail accidents involved vehicles or pedestrians at rail crossings, unchanged over the five previous years. “The safe interaction between railway operations and the public has been the subject of numerous TSBinvestigations and continues to present opportunities for safety improvements through the identification and elimination of risks,” the TSB said on its website.

In a briefing book given to then-Transport minister Denis Lebel (Roberval-Lac Sain Jean, Que.) after the 2011 election, Transport Canada said grade crossing improvements was a priority. The file, marked secret and obtained through access to information, contained a list of projects for the 2011-12 year under the Grade crossing improvement program, but the list was blacked out. The briefing book said, however, that Transport Canada was scheduled to start consultations on road railway grade crossing regulations in September 2011.

“These regulations will place individual and shared responsibilities on a broad number of organizations and individuals across Canada, including 26 federally regulated railway companies, nine provincial and two territorial governments, approximately 1,300 municipal governments, First Nations and many organizations and individuals who all share road crossings over rail lines. In accordance with government policies, consultations are required with the above organizations in order to explain the regulatory proposal and to have a shared dialogue among the regulated parties about the regulatory proposal. Before sending letters to provinces and stakeholders to make arrangements for their consultation meetings, the minister/minister’s staff will be briefed. The actual consultations are scheduled to start in September. In order to do, invitation letters to counterparts need to be sent in early June.”

According to the briefing book, “All departments must comply with the Cabinet Directive on Streamlining Regulations, which came into effect in April 2007. Because of the in-depth analysis required by the directive, the average length of the regulatory process is approximately two years. The process includes consultations with all affected stakeholders, risks assessments, coordination with other jurisdictions if required, cost-benefit analysis and legal drafting. Transport Canada is one of four departments with in-house Department of Justice drafting resources because of its extensive regulatory activities.”

The briefing book also says “improvements to transportation safety and infrastructure are required to ensure the continued safety of Canadians. Action is necessary on a number of fronts: [blacked out half a page].”

Additionally, the briefing book updated the minister on a “Transportation Safety Board watch-list” which noted that “concerning passenger trains colliding with vehicles, and that 80 per cent of public crossings located on the high speed Quebec-Windsor corridor are now equipped with a warning system with gates,” but the rest of the page is blacked out and does not list where those improvements were made.

In a media scan for the minister, the briefing book noted: “In April 2010, the Edmonton Sun reported that former transport Minister John Baird committed $11-million to upgrade 155 high-priority rail grade crossings across the country. A Transport Canada statistic stated that half of all railway related deaths are caused by accidents at grade crossing. When asked if the funding would realistically improve safety, Minister [Rob] Merrifield noted, ‘Statistics show a decline in fatalities and injuries at rail crossings and that means we are making progress.’”

According to the briefing book, Canada has one the safest transportation systems but “our safety record is being challenged by population growth, globalization and major increases in the volume of goods coming through Canadian ports from expanding Asian economies. These factors demand oversight vigilance and innovation.” Accident rates across all modes of transportation have decreased over the last 50 years, the briefing book says, but they are at a plateau and not decreasing further.

“To put the 2009 accidents into perspective, there were: 230 aviation accidents, two per cent lower than the previous year; 323 Canadian vessel shipping accidents and accident aboard ships, a record low; 1,038 reported rail accidents for federally regulated railways, 14 per cent fewer than the year before; an estimated decrease of nine per cent for road casualty collisions; and 396 accidents involving the transportation of dangerous goods, one per cent less than the year before,” the briefing book says. “With accident rates bottoming out and mounting challenges facing the transportation system, Transport Canada is moving to harmonize and streamline regulatory approaches and implement Safety Management Systems, a risk-based approach to mitigate critical safety risks. This strategic approach makes the transportation industry more responsible for proactively identifying and reducing safety risks.”

The aim of the SMSs is to work with industry to “collaboratively identify, develop and implement appropriate risk controls that will address emerging safety issues before they become problems. Success requires two things: one, an industry that is more engaged and responsible in identifying and mitigating safety risks early; and two, the government’s strong advocacy of a strategic, risk-based approach to safety.”

Ms. Raitt said that her department has been consulting with both industry (some members of which own the tracks) and municipalities (which own land and infrastructure) because each plays a role in safety.

“The railways know what the issues are. The municipalities know what the issues are. They know we’re helping to invest in making those changes,” she said. “The fact of the matter is we have regulations in drafting right now, and [the Ottawa bus-train crash] was a sobering reminder of the importance of talking about rail safety especially about level crossings. We will work with whoever we can to make sure we have a package of regulations ready to go as soon as we can.”

Ms. Raitt told CTV that Canadians could expect the regulations “this year.”

Green Party Leader Elizabeth May (Saanich-Gulf Islands, B.C.) said in addition to rail safety, she has questions on bus safety in light of the Ottawa tragedy.

“This is just a question, because I can’t presume to know what happened at that accident and I’m not trying to suggest that I know, but how often are brakes inspected for buses? How much regulation is there? I think in most instances, level crossings in Canada, with barriers down and lights flashing, are safe,” she said. “It’s clear that from everything I’ve read, the train was already clearly visibly in the level crossing. I suppose you could install barriers to every single one that would prevent even a vehicle that has lost control from reaching the train, but those accidents are extremely rare. We do need proper markings. There are some level crossings that don’t have proper markings, … but I don’t think that accident is primarily about rail safety. I think it was primarily about what was going on with the bus.”

Ms. May also said the Conservative government should take this opportunity to discuss a national transportation policy in light of both the bus-train crash and the derailment at Lac-Mégantic in the summer.

“We don’t have a national transport policy. We need a national transportation policy. We need to know what our goals are in terms of transportation. We need priorities for spending. We need to know about the transportation of hazardous goods,” she said.

“We need to have a transportation policy that looks at efficiencies that can be gained for the purposes of commerce in our transportation of goods, but we also need efficiencies in transportation of people so that our public transit systems are modern and efficient so that we can do everything to encourage Canadians to stay out of vehicles and cars and use the train safely. We also need to make sure that transportation of goods is safe. We need a lot more attention to our transportation systems in Canada than we currently have,” Ms. May said.

Mr. McGuinty agreed, saying that transportation safety should be a priority in the upcoming throne speech.

“It’s got to be a central preoccupation and priority for the House and the committee going forward. Why? Because it’s time to examine closely the findings from these two terrible tragedies,” he said. “Secondly, we do have to revisit previous recommendations to the government and to see to what extent those recommendations have been implemented, have not been implemented, have been partly implemented, and we need to generally improve the situation so that we can provide even more confidence in Canadian society for the transportation particularly of dangerous goods using rail, trucks and beyond. We’re an advanced 21st century country and we transport things all the time and it’s time for us to take a look. I think this also links with the question of infrastructure writ large. Where are we with infrastructure on this front?”

Ms. Raitt told CBC TV’s Power & Politics she couldn’t speculate on what would be in the Throne Speech when Parliament returns on Oct. 16, but said that Canadians’ health and safety is “the highest priority” for the government. “My officials have been told to draft regulations, they were told to do this well before what happened either [on Sept. 18] or in Lac-Mégantic,” she said. “We take safety incredibly seriously. … We will continue to be committed to that going forward too.”