April 18, 2016
Standing Committee on Transport, Infrastructure and Communities
House of Commons
Ottawa, Ontario
C/o Andrew Chaplin
Clerk of the Committee
Re: Study of Railway Safety
Dear Committee Members
I understand that the Standing Committee on Transport, Infrastructure and Communities is undertaking a study of railway safety in Canada.
As you are aware, the Lac-Mégantic disaster has raised very serious questions about the effectiveness of Transport Canada’s approach to railway safety regulation. These concerns have been reflected in the work of the Standing Committee, Auditor General of Canada, Transportation Safety Board, railway sector unions, and non-governmental organizations, including the Canadian Centre for Policy Alternatives.
The previous government undertook a number of measures in the aftermath of the disaster to update and strengthen the rules and regulations around the operation of trains carrying dangerous goods. However, these measures fell short of those adopted by the United States Department of Transport in response to the ‘oil to rail’ phenomena and the series rail accidents in Canada and the United States associated with it.
Moreover, the fundamental regulatory framework employed by Transport Canada around railway safety, with its focus on the development and implementation of railway company developed Safety Management Systems (SMS) has remained unchanged. My research suggests that there are serious flaws in this model, and that its role as the centrepiece of Transport Canada’s safety regulatory regime, not only for railways, but also for air, marine and road freight transportation, requires serious reconsideration.
In this context I attached for your interest a copy of a paper I recently submitted to the Journal of Environmental Law and Practice reviewing the railway safety regulatory regime in Canada, including the role of SMS. The paper finds that the SMS initiative began as a well-intended effort to improve railway safety performance, grounded in combination of “smart regulation” and management systems thinking prevalent in Canada and elsewhere in the OCED in the late 1990s. In practice, the simultaneous implementation of the SMS based regime and traditional regulatory oversight functions appears to be beyond the existing capacity of the department, with the result that resources have been drawn away from conventional oversight towards SMS oversight and implementation. Similar observations regarding the SMS regime have been made by the Auditor-General of Canada and the Transportation Safety Board.
Drawing on experience in environmental regulatory regimes, the paper suggests that the SMS system be replaced with strengthened statutory provisions regarding the personal responsibility and liability of company officers and directors. Specifically the Railway Safety Act should be amended to require that officers and directors to take “all reasonable care” to ensure the safe operation of railways. Transport Canada’s oversight activities should be refocused on conventional regulatory oversight functions rather than SMS development and implementation.
The introduction of statutory duties of care for officers and directors in Canadian environmental law triggered the widespread development and implementation of internal environmental management systems without the need for direct involvement or oversight by regulatory agencies. The overall effect was to prompt regulated entities to take more proactive, self-critical approaches to environmental issues, while avoiding the diversion of limited governmental oversight capacity inherent in the SMS regime employed by Transport Canada.
The paper makes a number of additional suggestions for strengthening the railway safety regime. These include:
- the introduction of a general offense provision under the Railway Safety Act;
- the streamlining of the consultation and appeal processes available to railways under the Railway Safety Act in relation to ministerial orders and other regulatory requirements;
- the establishment of clear reporting and approval requirements for significant changes in railway operations (e.g. changes to one-person train operation);
- a significant strengthening of the Railway Safety Act with respect to public access to information, particularly with respect to the transportation of dangerous goods; and
- a review of the role of individual company developed rules in the regulatory regime.
Although improvements have been made to the railway safety regime since the Lac-Mégantic disaster, significant gaps remain, and the safety of Canadians remains at risk as a result.
I would be pleased to discuss my findings with you, your staff or your officials.
Yours sincerely,
Mark Winfield