CTLA Feature Articles and Case Notes A Railway Focused Overview of Bill C-33: Strengthening the Port System and Railway Safety in Canada Act

Elizabeth Fashler and Erin McKlusky*

Summary and Discussion of Proposed Amendments Relevant to Rail

Introduction

The Federal Government recently conducted a series of reviews designed to assess aspects of the national transportation system and identify and address challenges in Canada’s supply chain transportation sector. These reviews include the 2018 Railway Safety Act Review (the “RSA Review” ), which resulted in a final report released in May 2018,1 and a review by the Transportation Supply Chain Task Force of Canada’s supply chain, whose final report and recommendations was released in October 20222 (the “Task Force Report” ). Bill C-33 referred to as the Strengthening the Port System and Railway Safety in Canada Act, 3 which passed its first reading in November 2022, represents the Federal Government’s attempt to implement some of the recommendations contained in those reviews.

This article provides an overview of the proposed changes in Bill C-33 that will impact railways and identifies which challenges the federal government appears to address through the proposed legislative amendments. This article also considers potential impacts of the proposed amendments on railways and areas where further regulatory changes are expected.

The RSA Review and Task Force Report identified challenges faced by the transportation and supply chain sectors and recommended that the federal government take steps to address them.

The RSA Review included recommendations to address rail security and cyber security issues, Transportation Appeal Tribunal of Canada decision deadlines, compliance agreements, and mandatory Railway Safety Act reviews.4 It also recommended that Transport Canada’s Rail Safety Program undergo “a significant strategic transformation in role and safety approach”, transforming its role and capacity to, among other things, improve the implementation of safety management systems (SMS) and promote safety culture, provide leadership and flexibility on safety enhancing technological innovations, and increase leadership and direction to address crossing and trespassing issues.5

The Task Force Report identified a host of issues, including pertaining to labour shortages, service reliability and resilience, supply chain visibility (data and analytics), borders, regulatory certainty, planning, governance and accountability, and capacity constraints and infrastructure.6

Many of these identified challenges appear to have influenced the proposed amendments contained in Bill C-33. In a November 2022 Press Release, the federal government stated that the goal of Bill C-33 is to “modernize” how railway transportation systems operate, “remove systemic barriers” to create a “more fluid, secure, and resilient supply chain”, modernize provisions on rail safety, security, and transportation of dangerous goods, and also improve supply chain competitiveness, safety, security, efficiency, and reliability.7

The proposed amendments under Bill C-33 most relevant to railway operations examined in this article include changes to the Railway Safety Act 8 (the “RSA” ), the Canada Transportation Act 9 (the CTA), the Transportation of Dangerous Goods Act, 199210 (the “TDGA” ), and the Transportation Appeal Tribunal of Canada Act 11 (the “TATCA” ).

1. RSA

The amendments, if passed as drafted, focus on a number of concepts, including security, enforcement of contraventions of the RSA by the expansion of the administrative monetary penalty (“AMP” ) regime, the automatic review of the RSA at five-year intervals, and an expanded consultation process when developing railway rules.

(a) Security

The draft amendments introduce the concept of security as an aspect of safety by (a) introducing security into the definition of “safety” and (b) including other mechanisms to integrate “security” into the RSA. In doing so, Parliament appears to attempt to address some of the concerns identified in the Task Force Report and RSA Review; for example, the need to increase security within the supply chain system as a whole,12 with the RSA specifically identified.13 Additionally, the Task Force Report referenced “industry perspectives” regarding concerns about increasing cyber crime and the fact that not all stakeholders are equipped to deal with cyber attacks.14

(i) Expanded Definition of Safety

Bill C-33 proposes to expand the definition of “safety” at section 4(1) of the RSA to include “security”. However, “security” is itself not defined. By expanding all “safety” references in the Act to include “security”, Parliament expands the scope of its regulatory control over railway operations. However, at present, there is little detail available as to how the government intends to implement this expanded scope. Some clues are available in certain amendments, including the introduction of the concept of security management systems (“SeMS”).

(ii) SeMSs

Bill C-33 introduces the concept of SeMSs into the RSA. SeMSs appear to parallel SMSs, which already exist under the RSA. The RSA’s stated objectives will now include SeMSs, recognizing “the responsibility of companies to demonstrate, by using safety management systems, security management systems and other means at their disposal, that they continuously manage risks related to safety and security matters.”15

If passed, the RSA will define SeMSs and identify the potential components of SeMSs, including security policy, risk assessments, responsibilities and authorities within the company, security plans, and monitoring and evaluation processes to which the company is subject.16 The proposed amendments also authorize the Minister to take “necessary corrective measures” in relation to: SMS or SeMS deficiencies; the implementation of its SMS or SeMS in a manner that risks compromising railway safety or security; or deficient measures taken by a railway company further to regulations respecting the security of railway transportation.17

Little additional detail of the SeMS scheme is articulated in Bill C-33. However,