Proposed Amendments to the Railway Safety Act

Municipal Enforcement of Train

Speed Limits/Fencing Requirements.

The Urban Environment and Development Committee recommends the adoption of the following report (March 31, 1998) from the City Solicitor, subject to:

 (1)deleting from Recommendation (A) the words "decide whether it wishes to"; so that such Recommendation shall now read as follows:

"(A)City Council confirm the actions taken by the Council of the former City of Toronto at its meetings of August 21, 1997 and October 6 and 7, 1997 as follows:"; and

(2)adding to Recommendation (A)(2) the words "and the Toronto Catholic District School Board" after the words "the Toronto District School Board"; so that such Recommendation shall now read as follows:

"(2)advise the Toronto District School Board and the Toronto Catholic District School Board of City Council's action.":

Purpose:

To report, as requested by the Chair of the Urban Environment and Development Committee, on the communication (January 31, 1998) to the City Clerk from the Federation of Canadian Municipalities requesting that the Council of the new City of Toronto consider the resolution by the former City of Toronto requesting "an amendment to federal legislation to empower municipal police and/or municipal inspectors to enforce one speed limit in Metropolitan Toronto, the lowest of the three speed limits".

Source of Funds:

Not Applicable.

Recommendations:

It is recommended that:

(A)City Council decide whether it wishes to confirm the actions taken by the Council of the former City of Toronto at its meetings of August 21, 1997 and October 6 and 7, 1997 as follows:

(1)request the Federal Minister of Transportation to:

(a)consider the appointment and training of municipal employees or police officers under section 27 of the Railway Safety Act to enforce the Act, rules and regulations with respect to train speed limits and appropriate fencing of railway lands or, in the alternative, support amendments to the Railway Safety Act as set out in the schedule attached to this report to allow municipalities to appoint municipal inspectors for the purpose of enforcing speed limits and fencing requirements for trains operating in rail corridors within municipalities;

(b)support the passage of regulations under the Railway Safety Act, as set out in the schedule attached to this report, to impose a minimum requirement of two-metre high chain link fencing with respect to railway property located within the boundaries of municipalities with a population of greater than 50,000;

(c)amend the Railway Safety Rules to reduce the maximum rate of speed (preferably to 25 miles per hour) on railway tracks within the City of Toronto; and

(d)invite Ontario municipalities, along with the Association of Municipalities of Ontario and the Federation of Canadian Municipalities, to take part in any future discussions concerning the development of new regulations requiring adequate fencing to secure railway property where it passes through populated areas; and

(2)advise the Toronto District School Board of City Council's action; and

(B)City Council request the City Clerk to advise the Canadian Federation of Municipalities and the Association of Municipalities of Ontario of its action with respect to this matter and request their support.

Council Reference/Background/History:

At its meeting of August 21, 1997, the Council of the former City of Toronto considered Clause No. 22 of Report No. 19 of The Executive Committee. That clause contained a communication (dated July 14, 1997) from Councillor John Adams expressing concerns over the enforcement of present speed limits for trains passing through urban areas. As a result of its consideration, the former City Council adopted the following recommendations:

(1)that City Council seek an amendment to federal legislation to empower municipal police and/or municipal inspectors to enforce one speed limit in Metropolitan Toronto, the lowest of the three speed limits, i.e., 25 miles per hour, established by federal authority for trains on rail corridors within their respective municipalities;

(2)that City Council request the support of the Municipality of Metropolitan Toronto and the other Metropolitan Toronto Area Municipalities, the Association of Municipalities of Ontario and the Federation of Canadian Municipalities for this amendment; and

(3)that the Toronto Board of Education be advised of City Council's action.

Also contained in Clause No. 22 was a request from the Executive Committee that the City Solicitor report on seeking an amendment to the federal legislation that would allow the City of Toronto to require the railways to properly secure their property in populated areas.

Subsequently, a report (September 25, 1997) was prepared by the City Solicitor and submitted to the Executive Committee for its consideration. That report is contained in Clause No. 81 of Report No. 23 of The Executive Committee, which was adopted by the former Toronto City Council at its meeting of October 6 and 7, 1997, including the following recommendations:

(1)that City Council request the Minister of Transportation to:

(a)consider the appointment and training of municipal employees or police officers under section 27 of the Railway Safety Act to enforce the Act, rules and regulations with respect to train speed limits and appropriate fencing of railway lands or, in the alternative, support amendments to the Railway Safety Act as set out in the schedule attached to this report to allow municipalities to appoint municipal inspectors for the purpose of enforcing speed limits and fencing requirements for trains operating in rail corridors within municipalities;

(b)support the passage of regulations under the Railway Safety Act, as set out in the schedule attached to this report, to impose a minimum requirement of two- metre high chain link fencing with respect to railway property located within the boundaries of municipalities with a population of greater than 50,000; and

(c)invite Ontario municipalities, along with the Association of Municipalities of Ontario and the Federation of Canadian Municipalities, to take part in any future discussions concerning the development of new regulations requiring adequate fencing to secure railway property where it passes through populated areas.

The Federation of Canadian Municipalities was advised of the Toronto City Council's action and has now responded with a request that the new Council for the City of Toronto consider this matter and confirm its position.

The actions of the Council for the former City of Toronto concern the enforcement of speed limits within the City and the institution of proper fencing requirements for railway lands within urban areas.

Comments and/or Discussion and/or Justification:

Train Speed Limits:

At the present time, set speed limits exist for trains carrying regular cargo, dangerous goods, and special dangerous goods (i.e., explosives). With respect to other train traffic, speed limits are set in the Track Safety Rules (the "Rules") approved by the Minister of Transport. The Rules provide that different speeds will be permitted according to the "class" of the track rails and may vary from 15 to 110 miles per hour. In other words, where the tracks can sustain it, trains are permitted to achieve higher levels of speed. Passenger trains are permitted to travel at a greater rate of speed on any class of track than freight trains.

The speed limit of 25 miles per hour mentioned in Councillor Adams' previous recommendation is the limit imposed on freight trains travelling on "Class 2" tracks. "Class 1" tracks require a speed limit of 15 miles per hour.

Subsection 23(1) of the Railway Safety Act (the "Act") requires that a railway operate in accordance with the Rules, and subsection 28(1) of the Act allows a federal railway safety inspector to ensure compliance with the Rules made under the Act. Under subsection 31(3) of the Act, where an inspector is of the opinion that the manner of operation of a railway line poses a threat to safe railway operations (i.e., is not in accordance with the Rules or the Act), an inspector may issue an order requiring that operations cease or comply with certain conditions. Where compliance does not occur, the order may be confirmed by the Minister and enforced by the Federal Court.

Section 27(1) of the Railway Safety Act provides that the Minister of Transport may "designate any person whom the Minister deems qualified as a railway safety inspector for the purposes of the Act" and shall "designate the matters in respect of which the person may exercise the powers of a railway safety inspector". At the present time, only federal government employees and railway company employees are designated, the latter for the specific purpose of enforcing regulations with respect to the operations of their employer.

There is no apparent limitation in the legislation which would prevent the Minister from appointing a municipal employee or police officer as a railway safety inspector for the specific purpose of enforcing speed limits and fencing requirements (see discussion below) within the limits of the municipality. Given that the enforcement of speed limits is at present tied to the condition of the particular track, special training would likely be needed for any municipal employee or police officer asked to fulfil this function.

Alternatively, contained in the Schedule to this report is a suggested amendment to the Act to provide a municipality council with the power, should it wish to do so, to appoint inspectors to enforce federal railway safety regulations. This amendment would also obligate the Minister to provide appropriate training to these inspectors for the purposes of enforcing the Act.

Railway Fencing Regulations:

Originally, federal regulations relating to a fencing requirement for railways were found in section 214 of the Railways Act which required companies to erect on either side of the railway a wire fence with a minimum height of 4 feet 6 inches. These regulations have now been repealed by virtue of section 91 of the Railway Safety Act, proclaimed in force on October 1, 1995, under federal regulation No. SI/95-109. I have confirmed that since last October when Toronto City Council considered this matter, there are still no new regulations under the Act for, in the words of the Act ,"restricting or preventing by means of fences . . . access to the land on which a line of railway is situated" so as to institute new fencing requirements for railways.

Attached to this report are proposed amendments to the regulations under the Railway Safety Act to require such fencing which were previously put forward by the former City of Toronto. The minimum technical specifications for the fencing set out in the proposed regulation are taken from Chapter 182 (Division Fences) of the former City's Municipal Code, with the minimum height increased to two metres.

Status of the Consultation Process:

In its letter of January 31, 1998, the FCM indicates that, with respect to fencing requirements to be imposed on railways where they pass through urban areas, "cattle fences in urban areas are inadequate". The FCM has presented this position to officials from Transport Canada, Canadian National, Canadian Pacific, the Railway Association of Canada and VIA Rail and is expecting consultations on this issue to begin soon.

I understand that federal legislation (Bill C-43) is presently being prepared to make a number of amendments to the Railway Safety Act. However, due to the controversial nature of future fencing requirements, these are unlikely to be included in legislation at this time for fear of holding up passage of the Bill. FCM staff have advised that discussions are currently ongoing in the context of "Direction 2006", a committee of representatives from Transport Canada, the FCM and the railway companies, which is considering various railway safety issues. A sub-committee of this group currently considering railway crossings may be expanded to include discussion of the fencing issue.

City Council may, therefore, wish to request the Minister to include municipalities, along with the Association of Municipalities of Ontario and the Federation of Canadian Municipalities, in any discussions concerning the development of standard regulations requiring adequate fencing to secure railway property where it is located in populated urban areas.

Conclusions:

I would, therefore, recommend that City Council consider this matter and decide whether it wishes to confirm the action taken by the Council of the former City of Toronto, and that the City Clerk be directed to forward Council's decision to the Minister of Transportation, the Federation of Canadian Municipalities and the Association of Municipalities of Ontario for their information.

Contact Name:

Mr. Edward Earle, Legal Services, 392-7226.

Schedule of Proposed Amendments

(1)To the Railway Safety Act with respect to appointment of railway safety inspectors by the municipality:

Amend section 27 by adding the following subsections:

"(2)The council of a municipality may by by-law designate any municipal employee, including a police officer, whom the council deems qualified as a railway safety inspector for the purposes of enforcing this Act within the boundaries of the municipality, and shall designate the matters in respect of which the person may exercise the powers of a railway safety inspector.

(3)The Minister shall ensure that any person appointed as a railway safety inspector is properly trained to perform the duties arising out of the appointment and is properly supervised by an employee of the Ministry of Transportation."

(2)For a new regulation pursuant to subsection 24(1)(f) of the Railway Safety Act as follows:

"X.Land upon which a line of railway is situated which is located within a municipality with a population of greater than 50,000 shall be secured by fencing located on, or substantially on, the boundary between the land and adjoining lands and shall be constructed according to the following minimum specifications:

(a)Material.

(i)Posts: four centimetres outside diameter double-galvanized steel pipe, ninety-one hundredths (0.91) metre longer than the width of the wire.

(ii)Fabric: chain link galvanized steel wire, after woven, two hundredths (2.0) metres, No. 11 gauge in five-centimetre diamond-shape mesh.

(iii)Top rail: double-galvanized steel pipe.

(iv)Bottom brace: No. 6 gauge galvanized steel wire.

(b)Installation.

(i)Terminal corner posts to be imbedded ninety-one hundredths (0.91) metre in concrete.

(ii)Line posts to be placed at three-and-five-hundredths-metre intervals, and driven ninety-one hundredths (0.91) metre into the ground.

(c)Line of fence.

The point of contact between the wire and metal posts shall be on, or substantially on, the boundary line between the railway line lands and the adjoining land.

(d)Siting of posts.

The posts shall be located on the lands upon which the line of railway is constructed."

The Urban Environment and Development Committee reports, for the information of Council, also having had before it a communication (January 31, 1998) from Mr. James W. Knight, Executive Director, Federation of Canadian Municipalities, responding to a communication (October 10, 1997) from the Assistant City Clerk of the former City of Toronto informing the Federation of Canadian Municipalities (FCM) of the City's resolution regarding the proposed amendments to the Railway Safety Act; advising that at the FCM Board of Directors' meeting in December 1997, the Standing Committee on National Transportation and Communication considered the resolution by the former City of Toronto requesting "an amendment to federal legislation to empower municipal police and/or municipal inspectors to enforce one speed limit in Metropolitan Toronto, the lowest of the three speed limits"; that, in light of the recent election of a new City Council in Toronto, the Committee moved to send the resolution back to the new Council for further discussion; and setting out the FCM position with respect to railway fencing regulations.