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Transport Canada inspector’s powers read narrowly by Court
Published in the May 2010 issue of Transportation Notes - View Article
The recently decided case of R. v. Canadian Pacific Railway Company demonstrates the importance of the proper delineation of powers for a Transport Canada railway inspector. If such an inspector is not specifically designated to investigate certain issues, s/he may not be entitled to disclosure and, as in this case, copies of internal documents in the possession of a railway company.
The case concerns a charge laid against the Canadian Pacific Railway Company (“CPR”) under the Railway Safety Act for failure to comply with a request made by an inspector for copies of CPR documents. The issue arose out of the proposed construction of a siding track at a railway crossing. The siding track was objected to by residents of surrounding communities, so CPR altered the construction proposal such that in accordance with legal requirements, it was no longer required to file notice with Transport Canada (“TC”).
At the heart of the matter was a concern of residents about delays that could arise at the crossing, blocking the access of emergency services. The only way in which TC could monitor the construction of the siding track was by exercising its inspection powers under the Safety Management Systems Regulations (“the Regulations”) appended to the Railway Safety Act (“the Act”). In accordance with sections 2(e) and (f) of the Regulations, railways are required to have a process for identifying safety issues and concerns, evaluating and classifying risk by means of a risk assessment, and risk control strategies for risks that have been classified as unacceptable or tolerable with mitigation.
Officials of TC wrote to the persons in charge at CPR indicating that an inspection would be conducted. This letter further indicated that the purpose of the inspection would be to monitor the railway’s compliance with the Regulations. In relation to this inspection, TC requested to see the risk assessment undertaken by CPR for the proposed project in accordance with ss. 2(e) and (f) of the Regulations. TC invoked its powers under section 28 of the Act, which grants a railway safety inspector the ability to enter a place where the railway carries out its operations, carry out an inspection and require a person appearing to be in charge of the place to produce any documents for the purpose of making copies.
An e-mail exchange followed between TC and CPR regarding the copying of the risk assessment. CPR indicated that while a copy would be produced at the meeting, it would not allow the TC inspector to retain a copy of the document. A number of persons from TC attended at the inspection, and a request for a copy of the document was reiterated by the inspector. CPR again refused, on the basis that providing copies was against company policy.
The focus of the Court in addressing the charge laid against CPR was whether the TC inspector who issued the formal request for a copy of the risk assessment had the legal authority to do so. The Court found that he did not, and therefore that CPR was not guilty of the charge.
In reaching its conclusion, the Court focused on the following factors. First, it stressed that the official letter issued to CPR notifying it of the upcoming inspection indicated that the purpose of the inspection would be to ensure compliance with the Regulations. Next, the Court relied on section 27 of the Act. This section indicates that a railway safety inspector has to be designated by the Minister of Transportation (“the Minister”) and further that the matters in respect of which the person may exercise the powers of a railway safety inspector shall also be designated. The power to request documents could only exist with respect to the matters for which the inspector was designated by the Minister.
In this case, the inspector was designated by the Minister with respect to Operations and Equipment. However, it was not within this inspector’s power to act with respect to Safety Management Systems. Thus, despite hearing evidence that TC’s concerns with the proposed siding construction were in fact operational (the lack of access of emergency services at blocked crossings), the court found that operational concerns were not officially conveyed to CPR in the initial letter, which only alluded to the Regulations.
Finally, the Court noted that a designation by the Minister under s. 27 of the Act specifically distinguishes between Operations and Safety Management Systems. This led the Court to conclude that “the integration of safety into day-to-day operations is a function of ‘safety management systems’ and not ‘operations’.”
As such, the inspector was not authorized in law to make a demand for copies of the risk assessment. Presumably, an inspector with a designation in Safety Management Systems would be the only person authorized to carry out the inspection and make such a demand.
R. v. Canadian Pacific Railway Company,
2010 ABPC 130