CTLA Feature Articles and Case Notes

and continue to operate, with a significant focus on safety, including with respect to the transportation of dangerous goods. Record-keeping and related business practices designed to prove due diligence with the provisions of the TDGA and regulations should be front of mind for railways.

(c) New Powers to Minister Relating to Management of Safety Risks

If passed, section 3.1 of the TDGA will be added, giving the Minister power to authorize “any person designated by the Minister” to exercise any of the Minister’s powers and duties, either generally or as otherwise provided in the instrument of authorization. This will allow the Minister to delegate duties introduced under the Act more broadly.

Under section 7.1 of the TDGA , the Minister can currently direct a person to implement an approved emergency response assistance plan if the Minister believes doing so is necessary for the protection of public safety. Under the proposed amendments, the Minister may also impose any terms or conditions related to the implementation of the plan that the Minister “considers appropriate.” Further, Bill C-33 introduces a requirement for an implementation report at section 7.11 of the TDGA , which must be submitted to the Minister following the implementation of any emergency response assistance plan, in accordance with the regulations. These new requirements will increase the reporting requirements on persons who Transport dangerous goods and implement approved emergency response assistant plans. Additionally, even with an approved plan in place, the plan may be subject to any additional terms and conditions the Minister deems necessary, which may create a degree of uncertainty.

Section 31 of the TDGA currently allows the Minister to issue emergency and temporary certificates authorizing activities to be carried out in non-compliance with the Act. Under the proposed amendments, these certificates could be issued not only for the purposes of safety and public interest, but also for the purposes of security. Similarly, under Bill C-33, section 32 TDGA protective directions could be issued to reduce any danger to public safety or to security. Similar to the RSA , “security” is undefined in the TDGA , and this appears to be a general attempt at integrating security into the Act to address security and reliability concerns raised by the Task Force Report. 40

The proposed amendments also appear to broaden powers given to the Minister relating to safety risks generally. For example, under section 31(6) of the TDGA , the Minister would be able to revoke an equivalency, emergency, or temporary certificate if “the Minister is of the opinion that it is in the public interest to do so”. Currently, such a broad power of revocation is not available.

Additionally, the TDGA section 18 duty to report an anticipated release of dangerous goods will be amended to make this duty “subject to the regulations”. This implies that the current duty to report could be amended in the future depending on regulatory amendments. Further, the proposed section 27(1)(d.1) provides power to the Governor in Council to make regulations defining certain terms, including “import”, “offer for transport”, “handling” and

“transport”, “deliver”, “distribute”, “import”, and “use”. Again, the specific implications of these changes remain unclear until such regulations are passed. The impact of these changes will be entirely subject to future regulations.

Conclusion

In the context of railways, Government messaging about Bill C-33 emphasizes “modernization”, “flexibility”, and the introduction of “clarity” on issues of safety. Transport Canada contends that, collectively, the amendments in Bill C-33 will “strengthen our transportation supply chain and […] respond to the rising cost of living”.41 Given the details currently provided in the proposed amendments, it is unclear whether these stated objectives are likely to be achieved.

As outlined above, if passed, Bill C-33 will introduce changes that have yet to be fully delineated. Of the details that have been provided, some are likely to introduce regulatory burdens on industry, without any clear connection to improvement to safety or supply chain efficiencies, and others create regulatory uncertainty. Finally, we note that federally regulated railways operate their own police services as authorized under the RSA. It is unclear whether, or to what extent, the proposed amendments will work with existing systems in place, including railway police services.

It will be interesting to see whether the proposed amendments as currently drafted are passed as is, or if they are further amended. It will also be interesting to see what future regulations are passed to fill in the details of the scheme outlined in Bill C-33.

Endnotes

1 Canada, Transport Canada, Enhancing Rail Safety in Canada: Working Together for Safer Communities, The 2018 Railway Safety Act Review (Ottawa: Transport Canada, 2018), online (pdf): Government of Canada <https://tc.canada.ca/sites/default/files/migrated/enhancing_rail_safety_canada_working_together_safer_communities.pdf> [RSA Review]

2 Canada, Transport Canada, Action. Collaboration. Transformation. Final Report of The National Supply Chain Task Force 2022 (Ottawa: Transport Canada, 2022) online: Government of Canada <https://tc.canada.ca/sites/default/files/2022-10/supply-chain-task-force-report_2022.pdf> [Task Force Report]

3 Bill C-33, An Act to amend the Customs Act, the Railway Safety Act, the Transportation of Dangerous Goods Act, 1992, the Marine Transportation Security Act, the Canada Transportation Act and the Canada Marine Act and to make a consequential amendment to another Act [Bill C-33]

4 RSA Review, Recommendation 15, at page 95.

5 RSA Review, Recommendation 16, at page 99.

6 Task Force Report at 15.