Railway Safety Act (R.S.C., 1985, c. 32 (4th Supp.))

Marginal note:Consideration by Minister

31.4 If a matter is referred to the Minister under subsection 31.1(4) or 31.2(3), or if the Minister on his or her own initiative decides to review an order of a railway safety inspector, the Minister may confirm the order, or may, by order, alter or revoke the order of the railway safety inspector. For greater certainty, the Minister’s order may be made an order of the Federal Court or of any superior court under section 34.

Marginal note:When alteration or revocation effective

31.5 An alteration or revocation under section 31.4 has effect when the company or other person to whom notice of the order under section 31 was sent receives notice of the alteration or revocation.

Ministerial Orders

Marginal note:Orders concerning unauthorized or improperly maintained works

• 32 (1) Where, in the opinion of the Minister,

  • (a) a railway work the construction of which began after the coming into force of this section has not been constructed in accordance with the requirements imposed by or under this Act,

  • (b) any railway work has not been altered in accordance with the requirements imposed by or under this Act, or

  • (c) any railway work is not being, or has not been, maintained in accordance with the requirements imposed by or under this Act,

  the Minister may

  • (d) by notice sent to the person responsible for the work, order the person to remove or modify the work, and

  • (e) where a person fails to comply with an order made under paragraph (d), remove and destroy the work concerned and sell, give away or otherwise dispose of the materials contained in that work.

• Marginal note:Costs

  (2) Where the Minister removes, destroys or disposes of a railway work under paragraph (1)(e), the costs of and incidental to doing so, after deducting therefrom any sum that may be realized by sale or otherwise, are recoverable, with costs, in the name of Her Majesty from the person who failed to remove or modify the work, whether or not proceedings are instituted against that person for failing to comply with an order of the Minister under this section.

• Marginal note:Contravention of regulations under section 24

  (3) If the Minister is of the opinion that a person has contravened a regulation made under section 24, the Minister

  • (a) by notice sent to the person,

    • (i) shall inform the person of that opinion and of the reasons for it, and

    • (ii) may, if the Minister believes that, by reason of that contravention, there exists in respect of particular railway works an immediate threat to safe railway operations, order the person to take any action that is necessary to remove the threat; and

  • (b) by notice sent to the railway company concerned,

    • (i) shall inform the railway company of that opinion and of the reasons for it, and

    • (ii) may, if the Minister believes that, by reason of that contravention, there exists an immediate threat to safe railway operations, order the railway company to ensure that specified railway works or specified railway equipment not be used, or not be used otherwise than under terms and conditions specified in the notice, until appropriate action to remove the threat has, to the Minister’s satisfaction, been taken by the person referred to in paragraph (a).

• Marginal note:Safety management system deficiencies

  (3.1) If the Minister is of the opinion that the safety management system established by a company has deficiencies that risk compromising railway safety, the Minister may, by notice sent to the company, order the company to take the necessary corrective measures.

• Marginal note:Implementation of safety management system

  (3.2) If the Minister is of the opinion that a company is implementing any part of its safety management system in a manner that risks compromising railway safety, the Minister may, by notice sent to the company, order it to take the necessary corrective measures.

• Marginal note:Railway operation

  (3.21) If the Minister is of the opinion that a railway operation poses a significant threat to the safety of persons or property or to the environment, the Minister may, by notice sent to the person responsible for the railway operation, order the person to take the necessary corrective measures.

• Marginal note:Contents of notice

  (4) An order contained in a notice under subsection (1) or under any of subsections (3) to (3.21) takes effect on the date of receipt of the notice. The notice shall indicate the date, which shall be 30 days after the day on which the notice is sent, on or before which the recipient may file a request for a review of the order and the address to which the request may be filed.

Marginal note:Order — safe railway operations

32.01 If the Minister considers it necessary in the interests of safe railway operations, the Minister may, by order sent to a company, road authority or municipality, require the company, road authority or municipality to stop any activity that might constitute a threat to safe railway operations or to follow the procedures or take the corrective measures specified in the order, including constructing, altering, operating or maintaining a railway work.

Marginal note:Request for review

• 32.1 (1) A person to whom a notice that contains an order is sent under section 32 or a company, road authority or municipality to which an order is sent under section 32.01 may, on or before the date specified in the notice or order, as the case may be, or within any further time that the Tribunal on application allows, file a request for a review of the order.

• Marginal note:Time and place for review

  (2) On receipt of the request, the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person or the company, road authority or municipality that filed the request of the time and place in writing. In the case of a request for a review of an order made under subsection 32(3) or section 32.01, the Tribunal shall do so without delay.

• Marginal note:Review procedure

  (3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person, company, road authority or municipality that filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Person not compelled to testify

  (4) In a review of an order made under subsection 32(3), a person who the Minister is of the opinion has contravened a regulation made under section 24 is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Determination

  (5) The member may confirm the order or refer the matter back to the Minister for reconsideration.

Marginal note:Right of appeal

• 32.2 (1) The person, company, road authority or municipality that requested the review under section 32.1 may, within 30 days after the determination, appeal a determination made under subsection 32.1(5) to the Tribunal.

• Marginal note:Loss of right of appeal

  (2) If the person, or an individual who is acting on the behalf of the company, road authority or municipality, does not appear at the review hearing, the person, company, road authority or municipality is not entitled to appeal a determination unless the person or, in the case of a company, road authority or municipality, the individual who is acting on its behalf, establishes that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.

Marginal note:Stay of order

32.3 If a request for review is filed, an order made under subsection 32(1), (3.1) or (3.2) shall be stayed until the matter is finally disposed of in accordance with section 32.1, 32.2 or 32.4. However, an order made under subsection 32(3) or (3.21) or section 32.01 shall not be stayed pending a review under section 32.1, an appeal under section 32.2 or a reconsideration by the Minister under subsection 32.1(5) or 32.2(3).

Marginal note:Reconsideration by Minister

32.4 If a matter is referred back to the Minister under subsection 32.1(5) or 32.2(3), the Minister may confirm the order, or may, by order, alter or revoke the order. For greater certainty, the Minister’s order may be made an order of the Federal Court or of any superior court under section 34.

Marginal note:When alteration or revocation effective

32.5 An alteration or revocation under section 32.4 has effect when the company or other person to whom notice of the order under section 32 was sent receives notice of the alteration or revocation.

Emergency Directives

Marginal note:Minister may send emergency directives

• 33 (1) If the Minister is of the opinion that there is an immediate threat to safe railway operations or the security of railway transportation, the Minister may, by emergency directive sent to a company, order it

  • (a) either absolutely or to the extent specified in the directive, to stop using the kind of railway works or railway equipment or following the maintenance or operating practice that poses the threat; or

  • (b) to follow a maintenance or operating practice specified in the directive if the threat is posed by the company’s failure to follow that practice.

• Marginal note:Directive despite compliance with law

  (1.1) The Minister may issue an emergency directive even though

  • (a) the construction of the railway work was undertaken in accordance with the law in force at the time; and

  • (b) using the railway equipment or following or not following the maintenance or operating practice is in accordance with this Act or any regulations or rules made under it.

• Marginal note:Duration

  (2) An emergency directive has effect during such period, not exceeding six months, as is specified in the directive.

• Marginal note:Emergency directive to contain statement of reasons

  (3) An emergency directive shall contain a statement of the Minister’s reasons for holding the opinion by reason of which the directive was given.

• Marginal note:Minister may rescind emergency directives

  (4) The Minister may, by notice sent to the company, rescind an emergency directive, in which case the directive ceases to have effect.

• Marginal note:Inconsistency between emergency directives, regulations, rules or orders

  (5) In the event that there is an inconsistency between an emergency directive and a regulation made under subsection 18(1) or (2.1) or a rule in force under section 19 or 20, the emergency directive prevails to the extent of the inconsistency.

• Marginal note:Minister may renew emergency directives

  (6) The Minister may, before the expiration of the period during which an emergency directive has effect, by notice sent to the company, renew the directive for a further specified period commencing on the expiration of the previous period and not exceeding six months and, if the Minister does so, this section, except this subsection, applies to the directive as renewed.

Enforcement through Court

Marginal note:Enforcement through court

• 34 (1) An order or emergency directive made by the Minister may be made an order of the Federal Court or of any superior court, and shall be enforced in the same manner as an order of the court.

• Marginal note:Orders of railway safety inspectors

  (2) For the purpose of enabling an order contained in a notice served on a company or person by a railway safety inspector to be enforced as an order of a court under this section, the Minister may, by notice sent to that company or person, confirm that order, and that order after that has effect as an order of the Minister.

• Marginal note:Practice

  (3) To make an order or emergency directive of the Minister an order of a court, the usual practice and procedure of the court in such matters may be followed or, in lieu thereof, the Minister may file with the registrar of the court a certified copy of the order or directive and the order or directive thereupon becomes an order of the court.

• Marginal note:Effect of revocation

  (4) When an order or emergency directive of the Minister that has been made an order of a court pursuant to this section is revoked by a subsequent order or directive of the Minister, the order of the court shall be deemed to have been cancelled.

• Marginal note:Option to enforce

  (5) The Minister may, before or after an order or emergency directive is made an order of a court pursuant to this section, enforce the order or directive by the Minister’s own action.