Canada Gazette, Part I, Volume 155, Number 25: Regulations Amending the Grade Crossings Regulations
June 19, 2021
Railway Safety Act
Department of Transport
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues: The Grade Crossings Regulations (the Regulations), which were published in the Canada Gazette, Part II, on December 17, 2014, established enforceable safety standards, such as sightlines, signage, design of crossing surface, warning systems, inspection, and testing requirements, for federally regulated public and private railway grade crossings. The Regulations, which apply to both new and existing grade crossings, became effective immediately for all new grade crossings; however, the Regulations provided a seven-year timeframe for stakeholders (e.g. railway companies, road authorities and municipalities) to bring existing grade crossings into compliance with the safety standards. The seven-year compliance timeframe will expire, and the safety requirements will become effective for existing grade crossings, on November 28, 2021.
Based on broad consultations conducted over the past 18 months with stakeholders, including municipalities, road authorities, railway companies and farmer associations, Transport Canada (TC) has determined that stakeholders will be unable to meet the November 28, 2021, compliance deadline for thousands of existing grade crossings. The COVID-19 pandemic has been partly responsible for the delays; however, there are also other factors, such as a lack of clarity among stakeholders about specific responsibilities and liabilities for the required upgrades, which could lead to disputes being raised to the Canadian Transportation Agency for settlement and contribute to implementation delays.
In addition to timing issues, TC has determined that the scope of application of the Regulations is too broad and, therefore, needs adjustment. Based on a comprehensive analysis of risk data covering the past seven years, TC has identified common characteristics in grade crossings that present a very low risk for serious accidents. From the data available to TC, 3 420 grade crossings currently subject to the upgrade requirements set out in the Regulations could be exempted based on these low-risk characteristics, as it is expected that upgrades would only yield minimal safety benefits.
Description: The proposed amendments would revise the scope of application of the Regulations by setting requirements for grade crossings according to a risk-based model. Under this model, existing crossings considered to be low risk would be exempted from upgrade requirements. The proposed amendments would also extend the compliance deadline for upgrade requirements by one year (until November 28, 2022) for crossings considered to be high priority, and three years (until November 28, 2024) for all other crossings (i.e. crossings that do not meet the threshold criteria for low-risk or high priority).
Rationale: This regulatory proposal would address stakeholder concerns about meeting the upcoming November 2021 compliance deadline. The proposal would also ensure that low-risk crossings are not subject to undue burden. In addition to the flexibilities being provided to stakeholders, the Regulations would also help ensure that needed safety improvements are prioritized according to risk and carried out as expeditiously as possible at the majority of grade crossings in Canada.
The total cost of the proposed amendments is estimated to be $240.24 million between 2021 and 2030 (present value, in 2020 Canadian dollars at a 7% discount rate), of which $234.52 million would be assumed by Canadians and $5.72 million by railway companies. These estimated costs represent safety benefits (estimated at the time of the 2014 publication of the Regulations) that would not be realized as a result of (i) delaying the compliance deadlines for upgrade requirements; and to a much lesser extent, (ii) exempting low-risk crossings from the application of some upgrade requirements. These costs are associated with estimated fatalities, serious injuries and property damage that would have been prevented if all existing grade crossings were to come into compliance with upgrade requirements on November 28, 2021.
The total benefits of the proposed amendments are estimated to be $109.12 million over the same 10-year analytical period, of which $68.78 million would be realized by road authorities and $40.35 million by railway companies. These benefits reflect the financial relief to affected stakeholders that would result from introducing a compliance exemption for low-risk grade crossings and from delaying the compliance deadlines for high-priority grade crossings and other implicated crossings. Overall, the proposed amendments would result in a net cost of $131.13 million over the 10-year period. Despite the net cost, TC has determined that the proposed amendments would be in the public interest, as they would (i) address the fact that thousands of grade crossings will not meet the compliance deadline of November 28, 2021; and (ii) help ensure that required upgrades to high-priority crossings are prioritized and completed as expeditiously as possible.
Grade crossing accidents remain the single largest source of fatalities and serious injuries involving railway operations in Canada. The Grade Crossings Regulations (the Regulations) were intended to address this long-standing and persistent rail safety issue. However, the current approach and timeline for improving grade crossing safety in Canada are proving to be a significant challenge for various reasons, including the effects of the COVID-19 pandemic on municipal finances and construction activity; the financial burdens facing owners of private crossings; unforeseen delays in the process of identifying owners of private crossings; and difficulties in obtaining agreement between road authorities and railway companies on the upgrades required and apportionment of the costs.
Based on broad consultations conducted with stakeholders, including municipalities, road authorities, railway companies and farmer associations, Transport Canada (TC) has determined that thousands of grade crossings covered under the Regulations will miss the November 28, 2021, compliance deadline. As a result, it is TC's position that the upgrade requirements will not be implementable by November 28, 2021. TC has concluded that it will not be able to enforce the Regulations at a level sufficient to produce a demonstrable improvement in the overall compliance situation. Railway companies and private and public crossing owners have indicated that they still need between one and three years in order to come into compliance. TC has therefore determined that regulatory amendments are necessary to avoid triggering a mass of non-compliances and to ensure that required improvements to safety at grade crossings are undertaken as quickly as possible with a priority focusing on crossings that present a higher risk.
The Regulations came into force on November 28, 2014. The Regulations apply to over 13 000 public crossings and between 4 000 and 10 000footnote 1 private crossings along 41 711 kilometres (km) of track in Canada. Railway companies, road authorities and private owners of existing crossings were given until November 28, 2021 (seven years after the Regulations came into force), to comply with the upgrade requirements included in the Regulations. These requirements touched areas such as sightlines, crossing surface, road geometry (road approach, gradient/crossings angle, travelled way width), warning system specification/design and signage. All new crossings built after the Regulations came into force in 2014 must comply with specific safety requirements.
The primary objective of the Regulations was to increase safety at Canada's federally regulated grade crossings to reduce the incidence of deaths, injuries, and property damage by
- Establishing enforceable safety standards for grade crossings;
- Clarifying the roles and responsibilities of railway companies, road authorities and private authorities; and
- Promoting collaboration between railway companies and road authorities.
During the first two years of the original seven-year compliance period, road authorities and railway companies were required to share information with each other to determine what upgrades, if any, were required. The following five years were intended to provide stakeholders with sufficient time to plan and prepare for the required upgrades, with the majority of construction activities expected to happen in 2020 and 2021.
The Regulations introduced the notion of shared responsibility for grade crossings, which had previously been the sole responsibility of railway companies. This brought thousands of new regulated parties (i.e. some 1 600 road authorities and 9 000 private crossing owners) to the table. This resulted in unanticipated challenges among stakeholders in exchanging safety-related information and determining the required upgrades for public crossings. There were also unforeseen challenges in identifying owners of private crossings. These challenges led to delays as well as disputes about cost apportionment.
Safety at public crossings is a shared responsibility between the railway company and the road authority. For existing public grade crossings, railway companies and road authorities were required to share prescribed information with each other within two years of the coming into force of the Regulations (by November 28, 2016). This was to give each party time to assess the safety of its infrastructure and plan accordingly. Several road authorities faced challenges with this phase: in communication with railway companies, these road authorities had indicated that they did not have the resources or the expertise to produce and validate the required safety information. Railway companies noted various gaps in the information that was provided by some road authorities. As a result, further communication and investigation were required to validate the information. The challenges in obtaining safety-related information combined with the pandemic restrictions had a significant impact on meeting the compliance deadline for upgrades.
In addition, over the past 18 months, but especially since the start of the COVID-19 pandemic, railway companies and road authorities have expressed concerns about their ability to complete the required upgrades to their crossings and have stated that they will not be able to meet the November 2021 deadline. The bulk of the required upgrades to public grade crossings was always expected to occur towards the end of a five-year municipal planning cycle, which is to say during the summers of 2020 and 2021. However, the pandemic led to the loss of the entire 2020 construction season, and municipalities are now faced with budget constraints, declining revenues and public health priorities, and lack the financial resources to invest in required upgrades. The impact of these constraints is evident in the fact that approximately 85% of existing public crossings are currently not compliant with the upgrade requirements.
Safety at private crossings has traditionally fallen under the responsibility of the railway company. However, in some cases, railway companies have agreements with private landowners, most of them from the agricultural community, where the private landowner can be responsible for up to 100% of the costs for required upgrades under the Regulations. Over the last year, railway companies have started to send letters to these private owners informing them of upcoming bills for work on their crossing. While estimates of these bills vary, they can reach as much as $200,000 in cases where warning signals are involved. These bills have attracted considerable media attention, and some of the stakeholders have indicated that they were not properly informed of the upcoming November 2021 compliance deadline. Railway companies have indicated that delays were incurred in both (i) determining the required upgrades; and (ii) identifying and informing private crossing owners. Both activities proved to be more complex than expected. To date, only 22% of private crossings are considered to be fully compliant with the upgrade requirements.
Transport Canada's outreach efforts
TC has conducted extensive outreach with industry and stakeholders since 2015 to foster collaboration between railway companies and road authorities and to promote compliance by the deadline by using all tools at its disposal.
TC made the following efforts to encourage and facilitate stakeholder compliance with the Regulations:
- 2015–2020: TC attended annual meetings of municipal associations, including the Federation of Canadian Municipalities (FCM), and presented multiple information sessions on the Regulations to municipal stakeholders at numerous municipal association meetings and conferences across Canada, through both webinars and face-to-face meetings.
- 2015–2020: TC held information sessions on the Regulations with the provinces.
- 2015–2020: TC held joint sessions with the Canadian Transportation Agency (CTA) to address and facilitate the resolution of disputes related to the Regulations, and also worked with the CTA to update their respective websites related to the Regulations.
- 2015–2020: TC held information sessions with smaller railways and road authorities to increase applications under Rail Safety Improvement Program (RSIP) for upgrades required by the Regulations.
- 2015: A placemat on the regulatory timelines was shared with the Railway Association of Canada (RAC) and the FCM for dissemination to their members.
- 2015: Information documents to support regulatory compliance were published on the TC website, including information sharing forms to support stakeholders in meeting the information-sharing requirements by the November 28, 2016, deadline.
- September 2016: TC sent letters to 1 656 road authorities providing information on the requirements in the Regulations.
- April 2017: The Minister of Transport sent letters to larger municipalities and provinces regarding the information-sharing requirements in the Regulations.
- 2017: TC established a working group with RAC and the FCM to assist stakeholders in completing the information sharing requirements in the Regulations.
- 2017–2019: Railway safety inspectors (RSIs) communicated with more than 478 road authorities between September 2017 and December 2019 to improve the information sharing for more than 2 300 crossings.
- 2019: TC presented multiple information sessions to municipal stakeholders on the regulatory requirements and on the application process for funding under the RSIP.
- December 2019: TC established a working group with various municipal associations in response to a letter sent to the Minister. Working group participants include the FCM, Alberta Urban Municipalities Association (AUMA), Saskatchewan Association of Rural Municipalities (SARM), Union des municipalités du Québec (UMQ), Association of Manitoba Municipalities (AMM), Rural Municipalities of Alberta (RMA), and Union of B.C. Municipalities (UBCM). This working group meets every other month to discuss the Regulations.
These efforts helped industry and stakeholders reach a compliance rate of approximately 99% for the information-sharing requirements of the Regulations as of March 2021, compared to 82% in 2016. Work is still ongoing to gather the missing information by the summer of 2021. However, in the past several months, it has become clear that compliance with the November 2021 deadline for required upgrades will not be possible, leading to a situation where thousands of crossings will be non-compliant if the Regulations are not amended.
Scope of application
In addition to the numerous challenges that impacted the timely implementation of required upgrades by stakeholders, TC has determined that the scope of application of the existing Regulations is too broad and, therefore, in need of adjustment.
TC now has significantly more data than it did when the Regulations were initially developed, which has allowed TC to conduct more comprehensive and more accurate risk analyses on grade crossings throughout Canada. For example, TC now has the Rail Safety Integrated Gateway (RSIG), which is a data system tool that was developed to provide inspectors with the ability to document, analyze and report on the results of their oversight activities. RSIG enables TC to better capture and consolidate its inspection results, which can then be used to support better informed, risk-based decision-making.
TC now also uses GradeX, an internal web-based risk analysis tool, to generate a list of grade crossings, which is published annually on the Grade Crossings Inventoryfootnote 2 on the Government of Canada's Open Data portal. The list of grade crossings in the inventory includes data on the location and characteristics of all crossings in Canada. This data is then used to support TC's rail safety inspection program.
Based on information collected through inspection activities in the RSIG, GradeX, as well as the Transportation Safety Board of Canada (TSB) data on rail occurrences, TC was able to determine that there are common characteristics for grade crossings that would represent a very low risk for serious accidents. Using this information, TC was able to establish an objective set of criteria that would capture grade crossings that present a very low risk. Based on the information available, TC estimates that 3 420 grade crossings currently subject to the upgrade requirements set out in the Regulations could be exempted.
The primary objectives of the regulatory proposal are to address stakeholder concerns about meeting the upcoming November 2021 compliance deadline and to ensure that safety requirements for existing individual grade crossings better reflect the relative level of risk at those crossings. Despite delaying compliance deadlines and removing some grade crossings from the scope of application, the proposed amendments would still support the broad safety goals of the 2014 Regulations by ensuring that safety improvements are carried out at that majority of grade crossings in Canada as soon as reasonably practical — with a focus on completing upgrades at the public grade crossings that present the highest risk first.
Without the proposed amendments, it is expected that the CTA would receive a high level of complaints from private crossings owners in the lead up to the November 2021 compliance deadline. The proposed amendments would permanently exclude 30% of private crossings from the requirements and would provide a three-year extension for an additional 70% of private crossings. This could be translated into an immediate 30% reduction in the number of complaints expected to be received by the CTA from owners of private crossings, and a staggering of the majority of the complaints from owners of other private crossings over three additional years.
1. Establish risk criteria
As previously noted, based on extensive analyses of data, which looked at factors such as train volumes and speeds at grade crossings, as well as the likelihood and potential impact of incidents, TC has determined that the current Regulations are suboptimal in their scope of application. As such, TC has developed a three-tiered, risk-based approach to the scope of application, specifically looking at the following risk factors:
- TSB data on rail occurrences;
- the volume of road and railway traffic;
- maximum train and vehicle speeds;
- number of tracks and lanes;
- whether the crossing is located in an urban or a rural environment; and
- whether or not warning systems are in place at the crossing (i.e. gates, bells, lights).
High-priority grade crossings
High-priority grade crossings would be defined in the proposed Regulations as public grade crossings with average daily railway movementsfootnote 3 of 10 or more and a railway design speedfootnote 4 of 97 km/h (60 mph) or more.
Based on TC data, only the Canadian National Railway Company (CN), Canadian Pacific Railway (CP) and VIA Rail Canada (VIA) have crossings that would meet the proposed criteria for high-priority grade crossings. The proposed definition of high-priority grade crossings would capture 2 125 public grade crossings.
Low-risk grade crossings
Low-risk crossings would be crossings for which TC has determined that the residual risks would be minimal regardless of whether or not the crossing is subject to the requirements in sections 19 to 96 of the Regulations, i.e. whether or not these crossings are upgraded. TC has developed three categories of low-risk crossings. Specifically, crossings meeting all of the criteria in any one of the following three categories would be considered low risk (as long as they continue to satisfy the criteria):
- Public grade crossings where the average annual daily railway movements are less than 3, the railway design speed is 17 km/h (10 mph) or less, no more than one track crosses the grade crossing, the storage distancefootnote 5 is 30 metres or more, whistling is required or permitted when railway equipment is approaching the grade crossing, and the cross-productfootnote 6 is less than 2 000;
- Private grade crossings where the railway design speed is 17 km/h (10 mph) or less, no more than two tracks cross the grade crossing, and the cross-product is less than 100; or
- Private grade crossings where the railway design speed is 41 km/h (25 mph) or less for freight trains and 49 km/h (30 mph) or less for passenger trains, no more than one track crosses the grade crossing, the storage distance is 30 metres or more, the cross-product is less than 100, and there is no sidewalk.
Other grade crossings
Grade crossings that do not meet the definition of “high-priority grade crossings” or do not fall under any of the three categories of low-risk grade crossings would not be specifically defined in the proposed Regulations. This general category of other grade crossings currently includes an estimated 17 783 crossings, representing 76% of the total crossings in scope of the Regulations.
Changes to grade crossings
It should be noted that a crossing could become subject to different requirements or a different timeline for compliance if there are changes to the railway design speed, average annual daily railway movements, cross-product, or other criteria applicable at the crossing. Operational characteristics at a grade crossing are not static and may change over time (e.g. increase in train speeds to maintain a level of service, road volumes increasing or decreasing due to changes in urban planning). Stakeholders who make changes to a grade crossing that would put the grade crossing in a different risk category under the proposed Regulations would need to ensure that any upgrade requirements are met within the timeframes set out in the proposed Regulations or, if those timelines have expired, before implementing the changes to the grade crossing.
2. Add a scope of application to exclude low-risk grade crossings from sections 19 to 96 of the Regulations
The proposed Regulations would amend the scope of application to exclude low-risk grade crossings from the requirements in sections 19 to 96 of the Regulations.
Sections 19 to 96 establish requirements to sightlines; design, construction, signs and warning systems for new public and private grade crossings; updated requirements for existing public and private grade crossings; and general requirements for instrument housing, inspections, testing and maintenance. Excluding the application of sections 19 to 96 of the Regulations for low-risk crossings would likely capture a significant number of field-to-field crossings used by farmers, which comprise a large proportion of private crossings, as well as many public and private crossings located on railway lines that have been identified for discontinuance within the next three years.
The proposed amendments would reduce the overall number of grade crossings impacted by upgrade requirements and would alleviate concerns from private landowners facing large expenditures for upgrading crossings that are subject to minimal traffic levels. The proposed amendments are also expected to reduce pressure on the CTA to mediate existing and potential disputes between railway companies and landowners over cost apportionment for upgrades to such crossings.
The proposed amendments would remove a total of 3 420 low-risk crossings from scope, including 398 public crossings and 3 022 private crossings, as long as they continue to satisfy the criteria. Based on available data, these low-risk crossings comprise about 15% of the total crossings currently subject to the Regulations. Despite the exclusion, if TC determines that a crossing presents a safety risk, options remain available under the Railway Safety Act for the Department to address specific threats or immediate threats.
Of the 3 022 total private crossings that would be excluded, 1 099 are expected to be excluded on the basis that the railway design speed is 17 km/h (10 mph) or less, no more than two tracks cross the grade crossing, and the cross-product is less than 100. In addition, 2 593 private crossings are expected to be excluded on the basis that the railway design speed is 41 km/h (25 mph) or less for freight trains and 49 km/h (30 mph) or less for passenger trains, no more than one track crosses the grade crossing, the storage distance is 30 metres or more, the cross-product is less than 100, and there is no sidewalk. Of these numbers, it is expected that a total of 670 private crossings are captured under both sets of criteria for low-risk private crossings.
TC estimates that costs have already been borne for approximately 665 low-risk private crossings to perform upgrades in order to be in compliance with the requirements of the Regulations by November 2021. It is likely that many of these crossings required only minimal upgrades to be in compliance with the Regulations.
Low-risk grade crossings would remain in scope for the regulatory provisions related to definitions (section 1), application (section 2), compliance (section 3), information sharing (sections 4 to 18), blocked crossings (sections 97 to 103), audible warnings (sections 104 to 107), and records (sections 108 to 110). The following is the rationale for keeping low-risk crossings in scope for each of these sections:
- Section 1: The definitions would be relevant to low-risk crossings because they would still be subject to some requirements of the Regulations.
- Section 2: The scope of application would be relevant to low-risk crossings because it would set out the criteria for low-risk crossings.
- Section 3: The compliance section provides a detailed clarification of the roles and responsibilities under the Regulations for railway companies and road authorities in respect of public and private grade crossings. Before the Regulations came into force in November 2014, the roles and responsibilities of these parties for monitoring conditions at existing grade crossings were often unclear, and multiple Railway Safety Act review reports had noted that the multijurisdictional nature of grade crossings is at the root of their safety deficiencies. As railway companies and road authorities would continue to have responsibilities related to low-risk crossings under some sections of the Regulations, section 3 would continue to apply.
- Sections 4 to 18: Under the information-sharing requirements of the Regulations, railway companies and road authorities were required to share information with each other within two years after approval and publication of the Regulations, i.e. by November 28, 2016. Railway companies are also required to keep the most recent information shared. The purpose of these requirements was to ensure railway companies and road authorities have the information needed to assess what modifications, if any, would be needed to bring crossings into compliance with the Regulations. Railway companies and road authorities are also required to share information with each other when a new grade crossing is constructed or when there is an alteration or operational change at a grade crossing. These sections would continue to apply to all crossings, as they contain requirements for stakeholders to share information on planned changes to the operations of the grade crossing so that railway companies and road authorities have the information they need to assess the safety of their infrastructure and plan accordingly.
- Sections 97 to 103: Before the Regulations came into force in November 2014, Railway Safety Act review reports identified blocked grade crossings as a serious safety concern. Under these sections on the obstruction of grade crossings, when a city, town, municipality or other organized district passes a resolution that the obstruction of a public grade crossing creates a safety concern, railway companies and road authorities are required to collaborate to resolve that concern. Further, railway companies are required to use all necessary measures to clear a public grade crossing immediately when an emergency vehicle requires passage. Road authorities are required to ensure that vehicles do not stop on the crossing surface of a public grade crossing. These sections would continue to apply to low-risk crossings because the safety rationale and benefits of these requirements are still relevant for low-risk crossings.
- Sections 104 to 107: The audible warning sections of the Regulations prescribe the requirements of an area where the cessation of train whistling may be prohibited under section 23.1 of the Railway Safety Act and also provide for the safety attributes of a grade crossing in respect of audible warnings. For instance, in order to be granted whistling cessation, a crossing must have a warning system. These sections would continue to apply to low-risk crossings because the safety rationale and benefits of these requirements are still relevant for low-risk crossings.
- Sections 108 to 110: These record-keeping requirements support TC in conducting oversight and enforcement of the Regulations, and would still be relevant to low-risk crossings under the proposed amendments.
3. Extend the compliance deadline by one year for high-priority grade crossings and three years for other grade crossings
The proposed amendments would provide a one-year extension to the compliance deadline for high-priority grade crossings and a three-year extension to the compliance deadline for other grade crossings.
Given the extent of the work that remains to be done on public crossings by railway companies and road authorities, a risk-based extension to the deadline would ensure that parties prioritize their efforts and resources to bring public grade crossings that present the highest risk into compliance as quickly as possible.
Through consultation with stakeholders, such as railway companies and road authorities, TC has determined that between one and three years would be required for all grade crossings to come into compliance. It was also established that in order to preserve the safety benefits for the Regulations as much as possible, public crossings that present higher risk should be addressed as a priority.
The factors that TC considered in developing the proposed extensions to the compliance deadlines were based on a review of collision history, likelihood of collisions and their associated impacts. The data reviewed included TSB data, GradeX data, as well as current requirements under the Regulations.
One-year extension for high-priority grade crossings
These datasets allowed TC to develop a risk-based approach where grade crossings, which saw a collision history resulting in serious or fatal injuries, would be compared for common characteristics. This risk-based approach was validated with available data from GradeX. Stakeholders have indicated that safety at public grade crossings is important and that they are working toward achieving compliance as quickly as possible. It was concluded that grade crossings presenting characteristics in the higher-risk range should be addressed as a priority.
It is estimated that a total of 2 125 public grade crossings would be considered as high priority and have to be in compliance by the extended deadline of November 28, 2022. Based on available data, these high-priority crossings comprise about 9% of the total crossings currently subject to the Regulations. As stakeholders are already working towards achieving compliance, the extension of the deadline by one year for high-priority crossings would allow them to concentrate their efforts on 9% of the grade crossing population, while also giving an additional construction season and an additional 12 months for municipalities to secure the necessary funding for required upgrades to those crossings. It would also stagger the potential draw on CTA resources to settle costing disputes between the road authorities and railway companies over any necessary upgrades over an additional 12-month period.
Three-year extension for all other crossings
The extended deadline of three years (to November 28, 2024) would affect approximately 17 783 grade crossings, which represents 76% of grade crossings in Canada. In the 2014 Regulations, the decision was initially left up to stakeholders on how to plan and prioritize their crossings upgrades to ensure compliance. The three-year extension would allow stakeholders to dedicate their resources to upgrading these crossings after the work on high-priority crossings is completed. This will include finalizing work plans after assessing the safety-related information of their crossing, as needed. During consultations, stakeholders have indicated that the Regulations were built with the premise that five years would be available to plan and perform the required upgrade after the initial two years for stakeholders to exchange safety-related information. Therefore, and given the fact that information sharing took longer than expected, they wished to be provided an equivalent timeframe. TC data shows that stakeholders had complied with 92% of the information-sharing requirements by the end of 2018, which slowly rose to 99% of those requirements completed as of March 2021. Most of the delay was due to additional work required by railway companies and road authorities to validate information that was exchanged. Therefore, the proposal to extend to November 28, 2024, the deadline for other grade crossings would provide the original planned five years to plan and perform the required upgrades for a vast majority of the grade crossings.
This should be achievable given that 85% of public grade crossings and 78% of private grade crossings that are currently not in compliance with the Regulations require only minor upgrades. Minor upgrades may include sightline requirements, signage requirements, etc., but do not include installing a new warning system. While many of these upgrades are minor, the sheer volume of crossings requiring these changes, and the fact that approximately 95% of these crossings are concentrated between the two major railway companies in Canada, each of whom is responsible for coordinating crossing upgrades separately with hundreds or thousands of different stakeholders, means that it would not be possible for all of these minor upgrades for all of those crossings to be completed by November 2021.
TC has conducted extensive engagement with railway companies on the upcoming compliance deadline to identify possible options for moving forward, and rail companies have provided TC with data to validate the proposed approach to amending the Regulations.
In early January 2021, TC officials intensified this engagement with a broad public consultation on the proposed amendments, including the three-tiered, risk-based approach, using the TC “Let's Talk Transportation” web consultation portal. Stakeholders who may be affected by the proposed amendments to the Regulations, including railway companies, provinces, municipalities and municipal associations, were given 30 days to provide comments through the portal. TC received 40 responses through the Let's Talk Transportation forum as well as 25 responses via letters or emails. All of the comments received were supportive of the overall approach to amending the Regulations. TC did not receive any comments from stakeholders expressing concerns about having already invested in upgrades to meet the requirements of the Regulations in advance of the compliance deadline.
TC has clearly communicated the need for railway companies and road authorities to focus their efforts on high-priority crossings to meet the proposed extension to the compliance deadline. TC will also reach out to producer associations in the agricultural sector and municipalities and road authorities to clearly communicate the proposed amendments and encourage their cooperation and sharing of information with the railway companies.
Modern treaty obligations and Indigenous engagement and consultation
The proposed Regulations would have an impact on Indigenous governments that are responsible for roads at grade crossings and for road approaches to the grade crossings where the road approaches impact on the safety of the grade crossings. The proposed amendments would provide relief by allowing more time to comply with the Regulations. Going forward, TC will engage with impacted Indigenous governments as necessary to ensure the successful implementation of the proposed Regulations.
In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an analysis was undertaken to determine whether the regulatory proposal is likely to give rise to modern treaty obligations. This assessment examined the geographic scope and subject matter of the proposal in relation to modern treaties in effect and no modern treaty obligations were identified.
The proposed amendments are needed to address the practical reality that thousands of grade crossings will not be in compliance with upgrade requirements by the current regulatory deadline of November 28, 2021. In addition, TC has determined that the scope of application of the Regulations is too broad: some grade crossings are sufficiently low risk that they do not need to be subject to upgrade requirements.
TC considered some alternatives to regulatory intervention, including a status quo option where no extension to the compliance deadline would be made and TC would enforce all requirements beginning on November 28, 2021. However, TC has determined that, given the broad scope of the anticipated non-compliance, enforcement actions would carry a high cost for both TC and industry stakeholders, and would not be practical or sufficient to bring grade crossings into compliance as expeditiously as possible. After consulting extensively with industry stakeholders, TC has concluded that regulatory intervention would be the only practical way to address the compliance situation and ensure that upgrades are completed as soon as possible with a focus on upgrading crossings of the highest risk first.
TC also considered granting ministerial exemptions under the Railway Safety Act for such grade crossings; however, it was determined that the authority to grant such exemptions would not extend to construction requirements set out in the Regulations. Therefore, TC concluded that regulatory amendments would be needed to establish exemptions to the requirements set out in sections 19 to 96 of the Regulations.
Benefits and costs
The proposed amendments would provide financial relief to affected stakeholders by introducing a compliance exemption for low-risk grade crossings, and by delaying the compliance deadlines for high-priority and other types of crossings for one year and three years, respectively. The total benefits (avoided and delayed capital investment) associated with the proposed amendments are estimated to be $109.12 million between 2021 and 2030 (present value in 2020 Canadian dollars at a 7% discount rate).
The proposed amendments would also result in a loss of safety benefits that would have been realized under the 2014 Regulations.footnote 7 The total costs of the proposed amendments are estimated to be $240.24 million for the same period (present value in 2020 Canadian dollars at a 7% discount rate).
As a result, the proposed amendments would result in a net cost of $131.13 million between 2021 and 2030 (present value in 2020 Canadian dollars at a 7% discount rate).
Benefits and costs associated with the proposed amendments are assessed based on comparing the baseline scenario against the regulatory scenario, in accordance with the Treasury Board Secretariat's Policy on Cost-Benefit Analysis. The baseline scenario depicts what is likely to happen in the future if the Government of Canada does not implement the proposed amendments to the Regulations. The regulatory scenario provides information on the expected outcomes of the proposed amendments.
This analysis estimates the impact of the proposed amendments over a 10-year analytical period from 2021 to 2030, with the year 2021 being when the final amendments are to be registered.
Unless otherwise stated, all dollar values are expressed in 2020 Canadian dollars, discounted to the year 2021 at a 7% discount rate for the 10-year analytical period.
Baseline and regulatory scenarios
For the purposes of this analysis, it is assumed that, in the baseline scenario, all types of grade crossings would comply with the safety upgrade requirements by the November 2021 deadline prescribed in the Regulations.footnote 8 This assumption is predicated on the proposition that, in the absence of an alternative, Transport Canada would have to enforce the existing Regulations.
In the regulatory scenario, low-risk grade crossings would no longer be required to comply with the safety upgrades requirements. In addition, the compliance deadlines for high-priority and other grade crossings would be delayed by one year and three years, respectively. In anticipation of the proposed amendments, it is expected that railway companies and road authorities would not take compliance actions on grade crossings if they have not met the safety upgrade requirements by January 2021. Based on stakeholder consultations, the non-compliance rate of grade crossings depends on specific provisions prescribed in the Regulations. The non-compliance rate and the compliance requirements are listed in tables 1 and 2, respectively.
|Responsible entity||Provisions in the Regulations||Non-compliance rate|
|Railway companies||One-time upgrade|
|Railway crossing sign (73)||4.00%|
|Operational control circuits — cut-out (70)||1.00%|
|Operational control circuits — approach warning time — design speed (69)||5.00%|
|Additional light units — cantilevers (68(1))||9.00%|
|Additional front light units — multi-lane roads (68(1))||9.00%|
|Additional back light units — multi-lane roads (68(1))||9.00%|
|Additional back light units — one-way roads (68(1))||9.00%|
|Additional front light units — one-way roads (68(1))||9.00%|
|Additional light units — curve on road approach (68(1))||9.00%|
|Additional light units — intersection road approach (68(1))||9.00%|
|Additional light units — sidewalks and paths (68(1))||9.00%|
|Clearing sightlines — public (21(2))||9.00%|
|Clearing sightlines — public (21(1))||13.00%|
|Clearing sightlines — private (21(2))||22.00%|
|Clearing sightlines — private (21(1))||1.00%|
|Road authorities||One-time upgrade|
|Railway crossing ahead sign (66(1)(a))||51.00%|
|Railway crossing ahead sign (66(1)(b))||51.00%|
|Stop sign and Stop ahead sign (64 [Stop sign] and 65 [Stop ahead])||17.00%|
|Stop ahead sign (65)||100.00%|
|Active advance Prepare to Stop at Railway Crossing sign (67)||5.00%|
|Clearing sightlines — public 21(2)||100.00%|
|Clearing sightlines — public 21(1)||100.00%|
Source: Transport Canada, Rail Safety Integrated Gateway (RSIG) inspection results 2020
Table 2 below compares compliance requirements under the baseline and regulatory scenarios in detail, by type of grade crossings.
|Type of grade crossings||Compliance requirement — baseline scenario||Compliance requirement — regulatory scenario||Difference|
|Low-risk grade crossings||Comply with safety upgrades by November 2021||Exempted from safety upgrades||It is no longer required to upgrade and maintain these grade crossings. Some responsible entities would realize cost savings from a one-time upgrade and all entities would realize cost savings from ongoing maintenance expenses.|
|High-priority grade crossings||Comply with safety upgrades by November 2021||Comply with safety upgrades by November 2022||Some responsible entities would delay their capital investment on upgrade by one year and all entities would delay maintenance expenses by one year.|
|Other grade crossings||Comply with safety upgrades by November 2021||Comply with safety upgrades by November 2024||Some responsible entities would delay their capital investment on upgrade by up to three years and all entities would delay maintenance expenses by three years.|
A railway grade crossing is a joint facility of a road or a private authority and a railway company. The proposed amendments would apply to over 23 300 federally regulated grade crossings, and affect 20 railway companies, along with road authorities and private authorities that are responsible for complying with the safety standards set out in the Regulations.
Among the affected 20 railway companies, Canadian National (CN) and Canadian Pacific (CP) are the two leading freight railway companies; together they own approximately 94.47% of the federally regulated grade crossings in Canada. Central Maine and Quebec Railway Canada Inc., also a freight railway company, is the third company with the most grade crossings, owning approximately 1.80% of the federally regulated grade crossings. In terms of railway passenger transportation, VIA Rail is the leading company and owns around 0.98% of the federally regulated grade crossings. The remaining 2.75% of the federally regulated grade crossings are owned by the other 16 railway companies.
All of these railway companies are considered large businesses except for one, which is considered a small business and which owns around 0.04% of the grade crossings in Canada.
A road authority is the body responsible for the care, control or management of roads within a given jurisdiction. Under the proposed amendments, road authorities, where appropriate, would share the responsibilities of upgrading and maintaining grade crossings with railway companies. There are two types of road authorities: public road authorities and private road authorities.
Public road authorities
Public road authorities share responsibilities with the railway companies on public grade crossings, which are defined as grade crossings located on public roads. There are three types of public road authorities: municipalities, provinces, and band councils. An estimated 1 450 municipalities, 9 provinces, 2 territories and almost 100 band councils would be subject to the proposed amendments.
The proposed amendments would affect approximately 13 000 federally regulated public grade crossings. Approximately 65% of these public grade crossings are located in three Canadian provinces: Saskatchewan (28%), followed by Ontario (21%) and Alberta (16%)footnote 9. The majority of public grade crossings associated with Indigenous communities are found in British Columbia.
Private road authorities
Private road authorities share the safety responsibility with railway companies on private grade crossings, which are defined as grade crossings located on private public roads. Private road authorities are usually the owners of private roads. The share of costs between private road authorities and railway companies are outlined in agreements between the two parties or filed with the CTA. Although in practice private road authorities may incur costs borne by railway companies with making sure the requirements of the Regulations are met, TC is not able to assess the proportion of costs to private road authorities as it does not have access to private contracts between parties. The CTA may settle any disputes on cost apportionment between the private authority and railways.
In Canada, there are between 4 000 and 10 000 federally regulated private grade crossings. Approximately 70% of these private grade crossings are located in three Canadian provinces: Quebec (25%), followed by British Columbia (24%) and Ontario (21%).footnote 9
The Canadian public would also be affected by the proposed amendments, as accidents at grade crossings can result in fatalities, serious injuries and property damages.
From 2010 to 2019, a total of 232 fatalities and 271 serious injuries at all railway grade crossings were recorded by the TSB. Vehicle drivers are at particular risk, because the failure to yield to a train at a grade crossing or being stuck in the path of a locomotive can result in a severe collision that leads to fatality or serious injury. Vehicle occupants also face similar risks.
The benefits (cost savings) associated with the proposed amendments would be twofold: avoided capital investment on low-risk grade crossings as they would be exempted from compliance, and delayed capital investment on high-priority and other grade crossings as they would need to comply with the safety upgrade requirements one year and three years later than the compliance deadlines prescribed in the Regulations, respectively.
Expected benefits were calculated using the unit costs multiplied by the number of grade crossings. It is estimated that the total cost savings would be $109.12 million, with $40.35 million in savings to railway companies and $68.78 million to road authorities. More specifically,
- $10.85 million would be associated with low-risk grade crossings, with $4.35 million to railway companies and $6.51 million to road authorities;
- $4.12 million would be associated with high-priority grade crossings, with $1.66 million to railway companies and $2.46 million to road authorities; and
- $94.15 million would be associated with other types of grade crossings, with $34.34 million to railway companies and $59.81 million to road authorities.
Table 3 outlines the total number of affected grade crossings under the responsibility of railway companies and road authorities, by compliance cost and risk type.
|Responsible entity||Provisions in the Regulations|| Compliance cost
|Number of affected low-risk grade crossings||Number of affected high-priority grade crossings||Number of affected other grade crossings|
|Railway companies||One-time upgrade|
|Railway crossing sign (73)||$1,714||194||0||450|
|Operational control circuits — cut-out (70)||$22,852||14||233||738|
|Operational control circuits — design approach warning time (69)||$22,852||78||1 292||4 102|
|Additional light units — cantilevers (68(1))||$57,131||54||892||2 830|
|Additional front light units — multi-lane roads (68(1))||$2,857||32||530||1 682|
|Additional back light units — multi-lane roads (68(1))||$1,143||32||530||1 682|
|Additional back light units — one-way roads (68(1))||$1,143||3||52||164|
|Additional front light units — one-way roads (68(1))||$2,857||3||52||164|
|Additional light units — curve on road approach (68(1))||$2,857||28||465||1 477|
|Additional light units — intersection road approach (68(1))||$2,857||42||698||2 215|
|Additional light units — sidewalks and paths (68(1))||$22,852||2||26||82|
|Clearing sightlines (21(2))||$1,143||58||235||2 755|
|Clearing sightlines (21(1))||$1,143||320||833||6 545|
|Clearing sightlines (21(2))||$377||21||0||57|
|Clearing sightlines (21(1))||$377||221||0||514|
|Road authorities||One-time upgrade|
|Railway crossing ahead sign (66)||$571||40||659||2 092|
|Railway crossing ahead sign (66)||$571||163||425||3 338|
|Stop sign and Stop ahead sign
(64 (Stop sign] and 65 [Stop ahead])
|Stop ahead sign (65)||$571||128||458||2 152|
|Active advance Prepare to Stop at Railway Crossing sign (67)||$57,131||4||65||205|
|Clearing sightlines 21(2)||$2,285||58||235||2 755|
|Clearing sightlines 21(1)||$2,285||320||833||6 545|
Source: Transport Canada, Rail Safety Integrated Gateway (RSIG) inspection results, 2020.
Exemption of low-risk grade crossings
The proposed amendments would exempt low-risk grade crossings from complying with the safety upgrade requirements. Therefore, responsible entities of these grade crossings would experience a one-time upgrade cost saving if they have not complied with the current requirements of the Regulations by January 2021, and an annual maintenance cost saving. The unit cost and the number of affected grade crossings are detailed in Table 3 above.
As a result, the total cost savings associated with exempting low-risk grade crossings is estimated to be $10.85 million, with $4.35 million in savings to railway companies and $6.51 million to road authorities.
Delay of compliance deadlines for high-priority and other grade crossings
High-priority grade crossings
Given that high-priority grade crossings would be subject to a one-year delay of compliance, responsible entities would benefit from delaying the capital investment on one-time upgrades and on annual maintenance. The unit cost and the number of affected grade crossings are detailed in Table 3 above.
As a result, the total cost savings (delayed capital investment) associated with high-priority grade crossings are estimated to be $4.12 million, with $1.66 million in savings to railway companies and $2.46 million to road authorities.
Other grade crossings
As other grade crossings would be subject to a three-year delay of compliance, responsible entities would benefit from delaying the capital investment on the one-time upgrade and on annual maintenance. The unit cost and the number of affected grade crossings are detailed in Table 3 above.
As a result, the total cost savings (delayed capital investment) associated with other grade crossings is estimated to be $94.15 million, with $34.34 million in savings to railway companies and $59.81 million to road authorities.
It is also worth noting that for high-priority and other grade crossings, the expected cost savings are due to time preference of spending the capital investment at a later time, as the investment not spent in 2021 can be saved or invested in other ventures and earn some return.
The costs of the proposed amendments would be carried by two groups: railway companies and Canadians. The exemption to low-risk grade crossings from complying with safety upgrades and the delay of compliance deadlines for high-priority and other grade crossings would result in a higher number of collisions than would be expected in the baseline scenario (i.e. the scenario where all grade crossings comply with the safety upgrades requirements by November 2021). This means that in the regulatory scenario, more fatalities, serious injuries and property damage would be expected. The total costs associated with the proposed amendments are estimated to be $240.24 million.
In the transportation safety literature, a common approach to estimating the expected reduction in collisions at a site is to use a collision modification factor (CMF). CMFs are used to represent the expected change in collision frequency resulting from the introduction of changes, usually countermeasures, at a site and thus represent the expected effectiveness of the collision countermeasures. Based on the estimated CMF that would result from the required safety upgrades at federally regulated grade crossings, the annual number of collisions that would be avoided by implementing these requirements are presented in Table 4.
|Type of collision||Type of grade crossings||Public grade crossings||Private grade crossings||Total|
|Collisions involving railway equipment||Low-risk grade crossings||0.86||0.34||1.20|
|High-priority grade crossings||12.90||0||12.90|
|Other grade crossings||44.61||1.35||45.95|
|Collisions not involving railway equipment||Low-risk grade crossings||2.79||1.12||3.91|
|High-priority grade crossings||41.92||0||41.92|
|Other grade crossings||144.97||4.37||149.34|
Sources: Transportation Safety Board collision data and National Collision Database.
This analysis considered two types of collisions at grade crossings: those involving railway equipment, and those not involving railway equipment. As previously described, the reduction in collisions involving railway equipment was estimated using a CMF from required safety upgrades. In order to estimate the reduction of collisions not involving railway equipment resulting from the implementation of the safety upgrades at non-compliant crossings, Transportation Safety Board collision data and data from the National Collision Database were compared for the period between 1998 and 2002. Based on this analysis, a ratio of the number of collisions not involving railway equipment to the number of collisions involving railway equipment was derived at 3.25 collisions.
This analysis assumes that the proposed amendments would not affect the expected annual avoided collisions (shown in Table 4). However, since low-risk grade crossings would be exempted, fewer avoided collisions (i.e. more collisions) would be expected under the regulatory scenario compared with those under the baseline scenario over the 10-year analytical period. In addition, due to the delayed compliance deadlines for high-priority and other grade crossings, even fewer avoided collisions (i.e. even more collisions) are also expected between 2021 and 2023. In total, the proposed amendments would result in additional 692 collisions from 2021 and 2030, 163 of which would involve railway equipment and 529 would not involve railway equipment. A higher number of collisions would be associated with more fatalities, serious injuries, and property damages.
Fatalities and serious injuries
The annual numbers of additional fatalities and serious injuries were estimated by multiplying the number of additional collisions per year, and fatality and serious injury ratios of collision at public and private crossings, respectively. The fatality and serious injury ratios were obtained from TSB collision data, using a 10-year average of fatalities and serious injuries per collision at public and private grade crossings from 2010 to 2019. Table 5 presents these average ratios, if they are involved with railway equipment or not.
|Type of collision||Public grade crossings||Private grade crossings|
|Fatality ratio||Serious injury ratio||Fatality ratio||Serious injury ratio|
|Collisions involving railway equipment||0.154||0.169||0.045||0.122|
|Collisions not involving railway equipment||0.003||0.016||0.003||0.016|
It is estimated that the proposed amendments would result in 26 additional fatalities and 36 additional serious injuries over the 10-year analytical period.
The fatalities are monetized using the value of statistical life (VSL) of $7.99 million per fatality, in accordance with the Treasury Board Secretariat (TBS) Policy on Cost-Benefit Analysis. The value of serious injuries is assumed to be 13.42% of the VSL,footnote 10 which is about $1.07 million per serious injury.
As a result, the cost associated with additional fatalities and injuries at grade crossings is estimated to be $227.57 million.
Collisions at grade crossings can cause property damages to railway equipment and road vehicles, and thus would affect both rail companies and Canadians. Costs associated with property damages vary, depending on whether collisions involve railway equipment or not. Details are presented in Table 6 below.
|Collisions involving railway equipment|
|Type of property damage||Percentage of collisions involving property damage table c2 note a||Average cost per collision table c2 note b|
|Collisions not involving railway equipment|
|Type of property damage||Number of vehicles damaged per collision||Average cost per vehicle|
Table c2 note(s)
The annual cost of property damage was estimated by multiplying the additional number of collisions that would involve each type of property damage per year and the average costs presented in Table 3. The total cost associated with property damage is estimated to be $12.67 million, $7.61 million of which result from collisions involving railway equipment and $5.06 million from collisions not involving railway equipment.
Cost-benefit statement (mandatory for proposals that have significant costs)
- Number of years: 10 (from 2021 to 2030)
- Base year for costing: 2020
- Present value base year: 2021
- Discount rate: 7%
|Impacted stakeholder||Description of costs||Base year (2021)||Other relevant years||Final year (2030)||Total (present value)||Annualized value|
|Canadians||Fatalities and serious injuries||$91.29||$1.26||$0.84||$227.57||$32.40|
|Railway companies||Property damages||$2.28||$0.04||$0.02||$5.72||$0.81|
|All stakeholders||Total costs||$96.34||$1.34||$0.89||$240.24||$34.21|
|Impacted stakeholder||Description of benefit||Base year (2021)||Other relevant years||Final year (2030)||Total (present value)||Annualized value|
|Railway companies||Avoided capital investment due to exemption of
low-risk grade crossings
|Road authorities||Avoided capital investment due to exemption of
low-risk grade crossings
|Railway companies||Delayed capital investment due to extension of compliance deadlines for high-priority and other grade crossings||$39.96||−$17.32||$0||$36.0||$5.13|
|Road authorities||Delayed capital investment due to extension of compliance deadlines for high-priority and other grade crossings||$24.62||−$0.58||$0||$62.27||$8.87|
|All stakeholders||Total benefits||$66.40||−$16.77||$0.75||$109.12||$15.54|
|Impacts||Base year (2021)||Other relevant years|| Final year
A sensitivity analysis was conducted to test uncertainties around key variables. Two different approaches are used to analyze uncertainty in the cost-benefit estimates: a single-variable sensitivity analysis and scenario sensitivity analysis.
Single-variable sensitivity analysis
The single-variable sensitivity analysis examines how the estimated net benefits would change if an assumption around one variable is changed at a time. The following variables were considered for the single-variable sensitivity analysis: the unit price for grade crossing safety upgrades, the fatalities and injuries ratio of a grade crossing collision, the discount rate, and the total years in the analytical period.
In terms of benefits, the sensitivity analysis considers the scenario where unit prices for complying with safety upgrades would be either 15% lower (lower benefit case), or 15% higher (higher benefit case). In terms of costs, the sensitivity analysis considers a situation where the fatalities and injuries ratios would be either 5% lower (lowest cost case) and 5% higher (highest cost case). Table 10 below presents the sensitivity analysis results.
|Variable|| Net benefit
|Low fatalities and injuries ratios||−$119.75|
|High fatalities and injuries ratios||−$142.50|
|Low-unit price estimate||−$147.49|
|High-unit price estimate||−$114.76|
Scenario sensitivity analysis
A scenario sensitivity analysis was conducted where lowest, most probable, and highest benefits and costs were considered. For this exercise, costs and benefits are evaluated at their extreme values simultaneously, such that the net benefits can be analyzed at their upper and lower bounds. The variables that were considered for this analysis are the same as those used for the cost and benefit single-variable sensitivity analysis, but they are combined simultaneously, arriving at six different scenarios, as presented in Table 11.
Small business lens
The small business lens applies as there are cost savings for small businesses associated with the proposal.
Based on summary data provided by the Railway Association of Canada, it was determined that one of the railway companies that owns federally regulated grade crossings would be impacted by the proposed amendments. This small business owns approximately 0.04% of the federally regulated grade crossings. The cost savings to the impacted small business is estimated to be $16,792 total, or $2,391 annualized. It is possible that a portion of private road authorities (small landowners) could be considered small businesses. As previously described, if some of them are responsible for sharing the cost of upgrading and maintaining grade crossings with railway companies, then they would also benefit from the proposed amendments, as the capital investment could be either avoided or delayed. However, due to lack of data, the cost savings attributed to these small businesses could not be estimated.
Small business lens summary
- Number of small businesses impacted: 1
- Number of years: 10 (2021 to 2030)
- Base year for costing: 2020
- Present value base year: 2021
- Discount rate: 7%
|Activity||Annualized value||Present value|
The one-for-one rule does not apply to the proposed amendments as there is no incremental change in administrative burden on businesses, nor do the regulatory amendments introduce or repeal a regulatory title.
Railway companies and road authorities were required to share information with each other for existing public grade crossings within two years of the coming into force of the Regulations in order to allow for each party to assess the safety of their infrastructure and plan accordingly (by November 28, 2016). This requirement was set out to ensure each stakeholder had the most up-to-date information to ensure safety at grade crossings (e.g. information on the interconnection between traffic signals and warning systems). Stakeholders have confirmed that they have already complied with these administrative requirements.
Regulatory cooperation and alignment
The proposed amendments would apply equally to grade crossings on the rail lines of all federally regulated railway companies in Canada.
This regulatory proposal is not being introduced to comply with an international agreement or obligation, nor does it have any impacts related to a work plan or commitment under a formal regulatory cooperation forum. The proposal has also not been introduced to align with another jurisdiction, standard-setting body, or international organization, nor is it part of an existing formal regulatory cooperation initiative.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals and the TC Policy Statement on Strategic Environmental Assessment (2013), the strategic environmental assessment (SEA) process was followed for this proposal and a sustainable transportation assessment was completed. No impacts were identified, as the primary objective of this regulatory proposal is to amend the Regulations in order to extend the compliance deadline for certain public and private crossings and add exclusions from some provisions of the Regulations for low-risk crossings using a risk-based approach.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal. TC sought stakeholder comments on the proposed amendments to the Regulations using its “Let's Talk Transportation” web consultation portal. No concerns were expressed by stakeholders that the proposed Regulations could have differential impacts on the basis of identity factors such as gender, race, ethnicity, or sexuality.
The data on accidents is insufficient to accurately identify specific vulnerable groups or to compare accidents between different communities. Urban areas would have more accidents due to the higher number of urban crossings and higher vehicle and train traffic volumes. In a published report on rail transportation occurrences, the TSB stated: “In 2019, the proportion of crossing accidents that occurred at public automated crossings was 50%, compared with 27% at public passive crossings. Although there are nearly twice as many public passive crossings than public automated crossings, the higher number of accidents occurring at automated crossings is due, in part, to higher vehicle and train traffic volumes at these crossings.”
Although the proposed amendments to the Regulations would result in a net cost, TC has determined that, overall, the proposed amendments would be in the public interest as they would (i) address the fact that thousands of grade crossings will not meet the compliance deadline of November 28, 2021; and (ii) would help ensure that required upgrades to high-risk crossings are prioritized and completed as expeditiously as possible. The proposed amendments would also provide temporary financial relief to rail companies, municipalities, road authorities and farmers in the wake of the impacts of the COVID-19 pandemic.
Implementation, compliance and enforcement, and service standards
The proposed amendments to the Regulations would come into force on registration.
As part of due diligence in support of the proposed extension, and mindful of the complexity of the responsibilities for safety at grade crossings as well as the large number of stakeholders involved (such as railway companies, municipalities, individual landowners, and other entities), Transport Canada will engage with railway companies immediately following prepublication of the proposed Regulations to seek formal plans to comply with the updated deadlines, including monthly progress updates.
To further support compliance with the Regulations, including the proposed amendments, TC would develop guidance materials and make them available to stakeholders on or before the date of publication in the Canada Gazette, Part II, for use by stakeholders during the period leading up to the proposed new deadlines for compliance.
No further flexibilities on compliance deadlines would be provided to stakeholders. Once the extended compliance periods have ended, TC would take a graduated and proportionate enforcement approach in accordance with the Rail Safety Oversight Policy to educate, deter, and, when necessary, penalize those who contravene the Railway Safety Act or its associated regulations. In the event of non-compliance with the proposed Regulations, where the new compliance deadline is not met for a given crossing, TC would consider the stakeholder's behaviour and willingness to comply before taking appropriate enforcement action, which could range from a letter of warning to an administrative monetary penalty of up to $250,000.
To ensure that the proposed Regulations would be applied in a fair, impartial, predictable and nationally consistent manner, guidance materials would be developed to align with the Rail Safety Directorate's existing compliance and enforcement regime. Training would be provided to Rail Safety officials within existing programs. Adding this guidance to the existing training program would ensure that departmental officials take a standard approach in similar circumstances to achieve consistent results.
Safety Policy and Regulatory Affairs
PROPOSED REGULATORY TEXT
Notice is given that the Administrator in Council, pursuant to section 7.1footnote a and subsections 18(1)footnote b and (2)footnote c and 24(1)footnote d of the Railway Safety Actfootnote e, proposes to make the annexed Regulations Amending the Grade Crossings Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Sean Rogers, Director of Regulatory Affairs, Rail Safety, Department of Transport, 427 Laurier Avenue West, Ottawa, Ontario K1R 7Y2 (tel.: 613‑998‑1939; email: email@example.com).
Ottawa, June 10, 2021
Assistant Clerk of the Privy Council
Regulations Amending the Grade Crossings Regulations
1 Subsection 1(1) of the Grade Crossings Regulationsfootnote 11 is amended by adding the following in alphabetical order:
- means the product of the average annual daily railway movements and the average annual daily traffic. (produit vectoriel)
- high-priority grade crossing
- means a public grade crossing with average annual daily railway movements of 10 or more and a railway design speed of 97 km/h (60 mph) or more. (passage à niveau de priorité élevée)
- storage distance
- means, on a road that crosses a grade crossing, the shortest distance between the rail nearest the road approach of the grade crossing and the edge of the nearest intersecting road, measured along the centre line of the road, as represented by D in Figure 11-1 of the Grade Crossings Standards. (distance de stockage)
2 Section 2 of the Regulations is amended by adding the following after subsection (2):
(3) Despite subsection (1), sections 19 to 96 do not apply in respect of the following grade crossings:
- (a) a public grade crossing where
- (i) the average annual daily railway movements are less than three,
- (ii) the railway design speed is 17 km/h (10 mph) or less,
- (iii) no more than one track crosses the grade crossing,
- (iv) the storage distance is 30 m or more,
- (v) whistling is required or permitted when railway equipment is approaching the grade crossing, and
- (vi) the cross-product is less than 2 000;
- (b) a private grade crossing where
- (i) the railway design speed is 17 km/h (10 mph) or less,
- (ii) no more than two tracks cross the grade crossing, and
- (iii) the cross-product is less than 100; and
- (c) a private grade crossing where
- (i) the railway design speed for freight trains is 41 km/h (25 mph) or less,
- (ii) the railway design speed for passenger trains is 49 km/h (30 mph) or less,
- (iii) no more than one track crosses the grade crossing,
- (iv) the storage distance is 30 m or more,
- (v) the cross-product is less than 100, and
- (vi) there is no sidewalk.
3 Subsection 21(4) of the Regulations is replaced by the following:
(4) The requirements of subsections (1) to (3) must be met beginning on
- (a) November 28, 2022, in the case of a high-priority grade crossing; or
- (b) November 28, 2024, in any other case.
4 Section 59 of the Regulations is replaced by the following:
59 In addition to meeting the requirements of section 58, an existing grade crossing that is a public grade crossing must meet the requirements of sections 60 to 71 beginning on
- (a) November 28, 2022, in the case of a high-priority grade crossing; or
- (b) November 28, 2024, in any other case.
5 Section 74 of the Regulations is replaced by the following:
74 In addition to meeting the requirements of section 73, an existing grade crossing that is a private grade crossing must meet the requirements of sections 76 to 81 beginning on November 28, 2024.
6 Subsection 75(1) of the Regulations is replaced by the following:
Requirements respecting warning systems
75 (1) An existing grade crossing that is a private grade crossing must meet the requirements of sections 82 to 85 beginning on November 28, 2024.
7 The Regulations are amended by replacing “the day on which these Regulations come into force” with “November 28, 2014” in the following provisions:
- (a) the definitions existing grade crossing and new grade crossing in subsection 1(1);
- (b) subsection 4(3);
- (c) subsection 12(3); and
- (d) paragraph 21(2)(b).
Coming into Force
8 These Regulations come into force on the day on which they are registered.