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

Inquiries

Marginal note:Inquiry

• 40 (1) If the Minister considers that

  • (a) a proposed railway work set out in a plan filed with the Minister under section 10,

  • (b) rules filed with the Minister under section 19 or 20,

  • (c) any accident or incident associated with railway works or with the operation of railway equipment, or

  • (d) any other matter relating to the operation or maintenance of railway works or railway equipment

  raises, or may raise, issues of public interest relating to safe railway operations, the Minister may, by order, direct persons designated by the Minister for the purpose to conduct an inquiry into the matter in accordance with any regulations made pursuant to section 47, subject to the Canadian Transportation Accident Investigation and Safety Board Act, and report the findings of the inquiry to the Minister in such manner and within such period as the Minister directs.

• Marginal note:Powers of persons conducting an inquiry

  (2) Each of the persons designated to conduct an inquiry under subsection (1) has the powers of a person appointed as a commissioner under Part I of the Inquiries Act, subject to any restrictions specified in the designation.

• Marginal note:Privilege

  (3) Where, in the course of an inquiry under this section, a statement is obtained by the persons conducting the inquiry that is included within a class of statements classified pursuant to the regulations as privileged, those persons may make such use of the statement for the purposes of the inquiry as they consider necessary in the interests of safe railway operations, but they shall not knowingly communicate the statement or permit it to be communicated to any person except in the circumstances set out in the regulations or as authorized in writing by the person making the statement.

• Definition of statement

  (4) In subsection (3), statement means any oral, written or recorded assertion or any transcript or substantial summary thereof, and includes conduct that could reasonably be taken to be intended as such an assertion.

Administrative Monetary Penalties

Marginal note:

40.1 The Governor in Council may, by regulation,

• (a) designate as a provision the contravention of which may be proceeded with as a violation in accordance with sections 40.13 to 40.22,

  • (i) any provision of this Act or the regulations, or

  • (ii) any rule, standard, order or emergency directive made under this Act; and

• (b) prescribe the maximum amount payable for each violation, not to exceed

  • (i) $50,000, in the case of an individual, and

  • (ii) $250,000, in the case of a corporation.

Marginal note:Designation of enforcement officers

• 40.11 (1) The Minister may designate persons, or classes of persons, as enforcement officers.

• Marginal note:Certification of enforcement officers

  (2) Every person designated as an enforcement officer under subsection (1) shall receive an authorization in prescribed form attesting to the person’s designation and shall, on demand, present the authorization to any person from whom the enforcement officer requests information in the course of the enforcement officer’s duties.

• Marginal note:Entry

  (3) For the purposes of determining whether a violation referred to in section 40.13 has been committed, a person designated as an enforcement officer under subsection (1) may enter any place, other than a private dwelling-place, where activities are carried on that relate directly or indirectly to the construction or operation of a railway or the operation of railway equipment.

• Marginal note:Production of documents

  (4) For the purposes of determining whether a violation referred to in section 40.13 has been committed, a person designated as an enforcement officer under subsection (1) may require any person to produce for examination or reproduction all or part of any document or electronically stored data that the enforcement officer believes on reasonable grounds contain any information relevant to that determination.

• Marginal note:Assistance to enforcement officers

  (5) Any person from whom documents or data are requested under subsection (4) shall provide all reasonable assistance in their power to enable the enforcement officer making the request to carry out the enforcement officer’s duties and shall furnish any information that the enforcement officer reasonably requires for the purposes of this Act.

Marginal note:Notices of violation

40.12 The Minister may establish the form and content of notices of violation.

Marginal note:Violation

• 40.13 (1) Every person who contravenes a provision designated under paragraph 40.1(a) commits a violation and is liable to a penalty not exceeding the maximum amount prescribed under paragraph 40.1(b).

• Marginal note:Continuing violation

  (2) A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

• Marginal note:How contraventions may be proceeded with

  (3) If a contravention of a provision designated under paragraph 40.1(a) may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding in the other.

• Marginal note:Nature of violation

  (4) For greater certainty, a violation is not an offence and accordingly section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Issuance of notice of violation

40.14 When a person designated by the Minister under subsection 40.11(1) believes on reasonable grounds that a person has committed a violation, he or she may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out

• (a) the penalty for the violation that the person is liable to pay; and

• (b) particulars concerning the time for and manner of paying the penalty and the procedure for requesting a review.

Marginal note:Payment of specified amount precludes further proceedings

40.15 If a person served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in the notice, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention and no further proceedings under this Act shall be taken against the person in respect of that contravention.

Marginal note:Request for review of determination

• 40.16 (1) A person served with a notice of violation that wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice — or within any further time that the Tribunal on application may allow — file a written request for a review with the Tribunal.

• Marginal note:Time and place for review

  (2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person that filed the request of the time and place in writing.

• Marginal note:Review procedure

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

• Marginal note:Burden of proof

  (4) The Minister has the burden of establishing that a person has committed a violation.

• Marginal note:Person not compelled to testify

  (5) A person alleged to have committed a violation is not required to give evidence.

Marginal note:Failure to pay

40.17 A person that fails to pay the amount of the penalty specified in a notice of violation within the specified time and that does not file a request for a review is deemed to have committed the contravention alleged in the notice.

Marginal note:Determination by Tribunal member

40.18 At the conclusion of a review, the member of the Tribunal who conducts the review shall without delay inform the Minister and the person alleged to have committed a violation

• (a) that the person has not committed a violation, in which case, subject to section 40.19, no further proceedings under this Act shall be taken against the person in respect of the alleged violation; or

• (b) that the person has committed a violation and, subject to any regulations made under paragraph 40.1(b), of the amount that must be paid to the Tribunal by or on behalf of the person and the time within which it must be paid.

Marginal note:Right of appeal

• 40.19 (1) Within 30 days after a determination is made under section 40.18, the Minister or the person to whom it applies may appeal from the determination to the Tribunal.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) The appeal panel of the Tribunal assigned to hear an appeal may dispose of the appeal by dismissing it or by allowing it and, in allowing the appeal, the panel may substitute its decision for the determination.

• Marginal note:Finding of violation

  (4) If the appeal panel finds that a person has committed a violation, the panel shall without delay inform the person and the Minister of the finding and, subject to any regulations made under paragraph 40.1(b), of the amount determined by the panel to be payable to the Tribunal by or on behalf of the person in respect of the violation.

Marginal note:Certificate

40.2 The Minister may obtain from the Tribunal or the member, as the case may be, a certificate in the form established by the Governor in Council setting out the amount of the penalty required to be paid by a person who fails, within the time required,

• (a) to pay the amount of a penalty set out in a notice of violation or to file a request for a review under section 40.16;

• (b) to pay an amount determined under paragraph 40.18(b) or file an appeal under section 40.19; or

• (c) to pay an amount determined under subsection 40.19(4).

Marginal note:Registration of certificate

• 40.21 (1) On production in any superior court, a certificate issued under section 40.2 shall be registered in the court and, when so registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.

• Marginal note:Recovery of costs and charges

  (2) All reasonable costs and charges attendant on the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been registered under subsection (1).

• Marginal note:Amounts received deemed public moneys

  (3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.

Marginal note:Time limit for proceedings

40.22 Proceedings in respect of a violation may not be instituted later than 12 months after the time when the subject matter of the proceedings arose.

Offences

Marginal note:Contravention of provision of Act

• 41 (1) Every person who contravenes a provision of this Act is guilty of an offence and liable

  • (a) on conviction on indictment,

    • (i) in the case of a corporation, to a fine not exceeding one million dollars, and

    • (ii) in the case of an individual, to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding one year, or to both; or

  • (b) on summary conviction,

    • (i) in the case of a corporation, to a fine not exceeding five hundred thousand dollars, and

    • (ii) in the case of an individual, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months, or to both.

• Marginal note:Contravention of regulations, orders, etc.

  (2) A person is guilty of an offence if the person contravenes

  • (a) a regulation made under subsection 7(1) or section 7.1, 17.95, 18, 24, 37, 47 or 47.1;

  • (b) an order made by the Minister under subsection 7(2) or 19(1), section 32 or 32.01 or contained in a notice sent by a railway safety inspector under section 31;

  • (b.1) an engineering standard;

  • (c) a requirement made by the Agency under subsection 16(3) or 26(3);

  • (d) a rule in force under section 19 or 20;

  • (e) an emergency directive made by the Minister under section 33;

  • (f) a requirement under subsection 39.1(2) to carry out a security measure;

  • (g) a railway operating certificate issued under section 17.4; or

  • (h) an order made under subsection 36(1).

• Marginal note:Punishment

  (2.1) A person who is guilty of an offence under subsection (2) is liable on summary conviction

  • (a) in the case of a corporation, to a fine of not more than one million dollars; and

  • (b) in the case of an individual, to a fine of not more than fifty thousand dollars or to imprisonment for a term of not more than six months, or to both.

• Marginal note:Continuing offences

  (3) If a person commits a contravention described in subsection (1) or (2) that occurs on more than one day, or is continued for more than one day, the person is deemed to have committed a separate offence for each day on which it occurs or is continued.

• Marginal note:Venue

  (3.1) Any complaint or information in respect of an offence under this Act may be heard, tried or determined by a court if the accused is resident or carrying on business within the territorial jurisdiction of that court although the matter of the complaint or information did not arise in that territorial jurisdiction.

• Marginal note:Joinder of complaints

  (3.2) The judge who hears, tries or determines the complaint or information may, at the request of the accused, join it with others of the same type against the accused, even if the matter of the complaints or informations did not arise in the same territorial jurisdiction, and hear them under the same procedure.

• Marginal note:Limitation period

  (4) A prosecution by way of summary conviction under this section may be instituted at any time within, but not after, two years after the time when the subject-matter of the prosecution arose.

• Marginal note:Recovery of fines

  (5) Where a person is convicted of an offence under this Act and the fine that is imposed is not paid when required, the conviction shall, on production in a superior court of the province in which the trial was held, be registered in the court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the conviction were a judgment in that court obtained by Her Majesty in right of Canada against the convicted person for a debt of the amount of the fine.

• Marginal note:Recovery of costs and charges

  (6) All reasonable costs and charges attendant on the registration of the conviction are recoverable in like manner as if they had been registered as part of the conviction.

• Marginal note:Admissibility of evidence

  (7) Evidence relating to the presence or concentration of alcohol or a drug in a sample of a bodily substance obtained under the Criminal Code is admissible in proceedings taken against a person under this Act in respect of a contravention of a rule or regulation respecting the use of alcohol or a drug, and sections 320.31 to 320.35 of the Criminal Code  apply to those proceedings with any modifications that the circumstances require.