CTLA Feature Articles and Case Notes

section 5 of the TDGA is amended to include a requirement that a registration number be assigned under section 6.11. Additionally, the general prohibition on containing dangerous goods would be amended to require a “certificate of registration” issued under section 6.2 of the TDGA.

Sections 6.11 and 6.2 set out the proposed regime for registration numbers and certificates of registration under the TDGA, respectively. Under both provisions, the application process will be “prescribed” (presumably, in regulations to be passed in the future). However, any registration number or certificate of registration previously assigned under the TDGA to a person who Transports or contains dangerous goods will be deemed to be a registration number or certificate of registration assigned under the section.

In a November 2022 press release,33 the Federal Government noted that one of the aims of these proposed changes is to provide Transport Canada with a reliable and comprehensive inventory of stakeholders who Transport dangerous goods in Canada. The intended use(s) of such an “inventory” remains unclear, as does the application process and requirements for obtaining registration numbers and certificates. More information will need to be released by the government in the form of regulations to better understand both the purpose of these proposed amendments and the potential impact on railways that Transport dangerous goods.

(b) New Enforcement Regime

The proposed amendments would implement sweeping changes to the enforcement regime under the TDGA. Sections 32.1 to 32.28 implement an entirely new AMP regime under the TDGA (the “TDG AMP Regime” ). Under the TDG AMP Regime, the Minister may, by regulation, designate the contravention of a provision under the Act a violation in accordance with the regime, and prescribe a maximum amount payable for each violation up to $50,000 in the case of an individual, or up to $250,000 in the case of an organization.34 Which specific contraventions would result in a violation under the regime is not yet defined under the proposed amendments; like much of

Bill C-33, much of the impacts depend on the regulations that will follow.

However, note that due diligence will be a defence in a proceeding in respect of a violation under this part.35 Similar to the proposed AMP program under the RSA, the TDG AMP Regime program will provide the option to request to enter into Compliance Agreements with the Minister instead of paying a monetary penalty in the event of a violation.36

Under the TDG AMP Regime, the Minister will be able to designate “enforcement officers” with the power to enter a place search the premises and determine whether a violation has been committed.37

Additionally, the proposed TDG AMP Regime provides that a person served with a notice of violation can have the decision reviewed by the Transportation Appeal Tribunal of Canada.38 Bill C-33 also proposes to amend section 2(3) of the Transportation Appeal Tribunal of Canada Act 39 by including review of the AMP program established under the TDGA.

Finally, the current contravention and punishment regime under the TDGA will be updated to significantly increase penalties for contravention. In particular, an individual on indictment is subject to imprisonment up to three years (up from two) or a fine up to $500,000 (formerly not specified); and will be liable on summary conviction for imprisonment up to two years less a day (formerly not specified), or a fine of not more than $250,000 (formerly $50,000 for first offence and $100,000 for subsequent offences). An organization will be liable on indictment to a fine of not more than $10,000,000; or liable on summary conviction to a fine of not more than $5,000,000 Formerly, there was no distinction between punishment for an individual or organization. In addition, penalties would be further increased if a person contravenes a court order under section 34(3) and (4) of the TDGA.

The penalties to be imposed under this new TDG AMP Regime are a significant change, which appears to be intended to motivate compliance under threat of prison sentences and onerous financial penalties. We note that railways have operated,