BILL 20 – 2004
RAILWAY SAFETY ACT

Contents

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Definitions

1 In this Act:

"administrative agreement" means an agreement under section 5;

"adopted provision" means a provision adopted under section 9 (1) and, if changed under section 9 (2) (a), means the provision as changed under that section;

"applicant" means a railway company that has submitted an application for a permit under section 10;

"authority" means

(a) the government of Canada, or an agent of the government of Canada,

(b) the British Columbia Safety Authority, or

(c) any other person

with which the minister has entered into an administrative agreement;

"permit holder" means a railway company that holds a valid permit issued under section 11;

"railway" means a railway as defined in section 1 of the Railway Act;

"railway company" means a company that has received an authorization under section 3 of the Railway Act;

"railway safety inspector" means a person appointed as a railway safety inspector under section 4;

"registrar" means the registrar of railway safety appointed under section 3.

 
Part 1 -- Administration of Act

Administration of this Act

2 The minister is charged with the administration of this Act and the regulations except to the extent that the administration of any provision of this Act or the regulations is delegated to an authority under section 6.

Registrar of railway safety

3 (1) The minister must appoint, under the Public Service Act, a registrar of railway safety.

(2) The registrar has the powers conferred and the obligations imposed on the registrar by this Act and the regulations.

Railway safety inspectors

4 (1) The minister may appoint any person as a railway safety inspector for the purposes of this Act.

(2) Railway safety inspectors are subject to and have the powers and obligations set out in the provisions adopted under subsection (3).

(3) The minister may adopt by regulation provisions of the Railway Safety Act (Canada) for the purposes of subsection (2) and may prescribe changes to those provisions.

Agreements

5 (1) The minister may enter into an administrative agreement with an authority to administer any provisions of this Act and the regulations.

(2) An administrative agreement must include provisions that specify all of the following:

(a) the acceptance by the authority of the responsibility to administer powers delegated to the authority under section 6;

(b) the terms for financial arrangements between the authority and the government;

(c) the right of access of the authority to records created by the government and the right of access of the government to records created by the authority;

(d) requirements for the authority to report to the government on matters related to the operation of powers administered by the authority under this Act;

(e) the obligations of the parties if the agreement is terminated;

(f) provisions for the settlement of disputes.

Delegation

6 (1) If the minister enters into an administrative agreement with an authority under section 5, the Lieutenant Governor in Council, by regulation, may delegate to that authority the administration of any of the provisions of this Act and the regulations except

(a) the power to appoint a registrar under section 3,

(b) the registrar's powers under sections 11 and 12,

(c) the power to charge fees under section 20, and

(d) the power to make regulations under Part 4.

(2) If an amendment to the regulation making a delegation under subsection (1) could substantially affect an agreement referred to in subsection (1), the minister must give reasonable notice to the authority of the proposed amendment and must consult on it with the authority.

(3) If the Lieutenant Governor in Council repeals a regulation under subsection (1), the agreement is terminated.

Delegation does not make authority an agent of the government

7 An authority to which the administration of any of the provisions of this Act and the regulations are delegated under section 6 is not an agent of the government for the purposes of that administration.

Exchange of information

8 (1) In this section, "records" includes, but is not limited to, records regarding a railway company's compliance or failure to comply with any provision of this Act, the regulations or the Railway Act.

(2) If the minister has entered into an information-sharing agreement with an authority to which the administration of any provisions of the Act or the regulations is delegated under section 6, the minister may disclose or transfer records to, and share records with, the authority in accordance with the agreement.

(3) The minister may enter into an information-sharing agreement for the purposes of subsection (2).

 
Part 2 -- Permits and Applicable Safety Provisions

Adoption of other provisions

9 (1) The minister may adopt by regulation provisions of

(a) the Railway Safety Act (Canada), the Canadian Transportation Accident Investigation and Safety Board Act, the Canada Transportation Act, and the Transportation Appeal Tribunal of Canada Act,

(b) any regulations, standards, codes, rules or procedures made under any Act referred to in paragraph (a), and

(c) a code or standard regarding railway safety established by any other standard making body,

and, subject to subsection (2) and section 11, the adopted provisions apply to railway companies.

(2) The minister may

(a) prescribe changes to any provision adopted under subsection (1), and

(b) make regulations providing for the administration of adopted provisions.

Permit required

10 (1) A railway company must not operate a railway unless the company has a valid permit issued by the registrar under section 11.

(2) An application to the registrar for a permit must

(a) be made in the form and manner approved by the registrar,

(b) include information required by the registrar, and

(c) be accompanied by the prescribed application fee.

Registrar may issue permit

11 (1) The registrar may issue a permit to a railway company in response to an application under section 10 if the registrar considers the applicant capable of operating the railway in a safe manner.

(2) If the registrar issues a permit, the registrar may

(a) exempt the permit holder from the application of any adopted provisions or from a regulation or any part of a regulation made under section 9 (2) (b), or from both, and

(b) establish terms and conditions that apply to the permit.

(3) A permit holder must comply with

(a) the adopted provisions that apply to the permit holder,

(b) the terms and conditions that apply to the permit holder's permit, and

(c) any order or directive made to the permit holder by a railway safety inspector acting under the authority of a provision adopted under section 4.

(4) The registrar, at any time by notice in writing, may

(a) vary or cancel an exemption granted to a permit holder under subsection (2) (a), and

(b) exempt a permit holder from additional adopted provisions or regulations under subsection (2) (a).

Permit remains valid unless cancelled or suspended

12 (1) A permit issued under section 11 remains valid unless it is cancelled or suspended under this section.

(2) A permit holder's permit is cancelled automatically on the permit holder's loss of an authorization under section 3 of the Railway Act.

(3) The registrar may cancel or suspend a permit if the permit holder has

(a) in the opinion of the registrar, ceased operations for a period of 12 consecutive months or more,

(b) failed to pay, within the time required, fees charged by an authority under section 19 or by the minister under section 20, or

(c) failed to comply with a term or condition of the permit holder's permit.

(4) If the registrar cancels or suspends a permit under this section, the registrar must notify the permit holder in writing of the cancellation or suspension and the notice must

(a) advise the permit holder of the reason for the cancellation or suspension, and

(b) in the case of a suspension, advise the permit holder of the term of the suspension.

(5) The registrar must publish in the Gazette notice of a cancellation or suspension made under this section.

Reconsideration

13 (1) A railway company may apply to the deputy minister for a reconsideration of a decision of the registrar under section 11 (1) or (2) or 12 (3) by sending an application to the deputy minister.

(2) An application for a reconsideration must

(a) be made within 30 days of the date of the registrar's decision,

(b) be in writing, and

(c) set out the reasons on which the application is based.

(3) On receiving an application, the deputy minister must

(a) consider the matter,

(b) affirm, change or rescind the decision of the registrar, and

(c) notify the railway company in writing of the result of the reconsideration.

 
Part 3 -- Offences, Penalties and Fees

Offence Act

14 Section 5 of the Offence Act does not apply to this Act or the regulations.

Offences

15 A person who does one or more of the following commits an offence:

(a) operates a railway without a valid permit issued under section 11;

(b) contravenes, or fails to comply with, an adopted provision or a minister's order or directive made under an adopted provision;

(c) contravenes, or fails to comply with, an order or a directive of a railway safety inspector made under a provision adopted under section 4.

Offences by corporations

16 (1) If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence also commits that offence, whether or not the corporation is prosecuted or convicted.

(2) In a prosecution for an offence under this Act or the regulations, it is sufficient proof of the offence to establish that it was committed by an employee, officer, director or agent of the defendant.

(3) Subsection (2) applies whether or not the employee, officer, director or agent is identified or has been prosecuted for the offence, but that subsection does not apply if the defendant establishes that

(a) the offence was committed without the defendant's knowledge or consent, or

(b) the defendant exercised due diligence to prevent commission of the offence.

Limitation period

17 The time limit for laying an information for an offence under this Act is 2 years after the time when the subject matter of the proceedings arose.

Penalties

18 (1) An individual who is convicted of an offence under this Act is liable to a fine of not more than $100 000 or to imprisonment for not more than 18 months, or to both.

(2) A corporation that is convicted of an offence under this Act is liable to a fine of not more than $200 000.

(3) If a person commits an offence and the commission of that offence occurs on more than one day or is continued for more than one day, the person is liable to the penalties set out in subsections (4) and (5).

(4) In the case of a continuing offence, an individual who commits the offence is liable to a further penalty of not more than $5 000 for each day during which the offence continues.

(5) In the case of a continuing offence, a corporation that commits the offence is liable to a further penalty of not more than $10 000 for each day during which the offence continues.

Power of an authority to set fees

19 (1) Despite any power of the Lieutenant Governor in Council or the minister to prescribe fees for matters under the administration of the government, but subject to section 20, an authority may set fees in accordance with a fee setting process established by the authority for any matter required under the authority's administration.

(2) The fee setting process established under subsection (1) must be in accordance with criteria that are established by the minister by regulation.

Fees to recover costs

20 (1) The minister may charge a railway company a fee to recover the costs incurred in respect of the railway company by the minister under an administrative agreement for the administration of this Act.

(2) If the minister charges a railway company a fee under subsection (1) in respect of any matter required under an authority's administration, the authority may not charge the railway company a fee under section 19 in respect of the same matter.

(3) A railway company charged a fee under subsection (1) must pay the fee within the prescribed time period.

 
Part 4 -- Regulations

Minister's power to make regulations

21 (1) The minister may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the minister may make regulations as follows:

(a) adopting provisions for the purposes of sections 4 and 9 and making changes to those provisions;

(b) providing for the administration of adopted provisions;

(c) requiring a railway company or a class of railway companies to submit to the registrar a safety management plan in the prescribed form;

(d) prescribing fees to be submitted on an application under section 10;

(e) prescribing criteria for the purposes of section 19 (2);

(f) prescribing the time period by which railway companies must pay fees charged under section 20.

Lieutenant Governor in Council's power to make regulations

22 The Lieutenant Governor in Council may make regulations, for the purposes of section 6, delegating to an authority the administration of any of the provisions of this Act and the regulations.

 
Part 5 -- Transitional Provisions and Consequential Amendments

Transitional

23 (1) The Lieutenant Governor in Council may make regulations considered necessary or advisable for the purpose of more effectively bringing into operation the provisions of this Act and to prevent, minimize, address or resolve any transitional difficulties encountered in doing so.

(2) A regulation made under this section may be made retroactive to a date not earlier than the date on which this section comes into force.

(3) Subsections (1) and (2) are repealed on April 1, 2007.

Transitional -- authorizations under the Railway Act

24 (1) In this section:

"applicable provisions" means the provisions of the preceding Act and of the regulations made under that Act that were applicable to a railway company with an authorization;

"authorization" means an authorization under the preceding Act to operate a railway;

"preceding Act" means the Railway Act as it read before the coming into force of any of sections 26 to 30 of this Act.

(2) Subject to subsection (4) and to regulations made under section 23, if, immediately before the coming into force of this section, a railway company held a valid authorization under which the railway company was operated, that authorization remains in full force and effect, subject to the applicable provisions, until April 1, 2005, and, while that authorization is in effect,

(a) the railway company is not required to comply with section 10 [permit required] or, subject to paragraph (b), any adopted provisions under this Act, and

(b) the railway company is subject to any orders or directives made by an authority to which the administration of any provisions of this Act has been delegated under section 6.

(3) An authority referred to in subsection (2) (b) may administer the applicable provisions of a railway company's authorization.

(4) A railway company referred to in subsection (2) may, at any time before April 1, 2005, apply for a permit under this Act, and if the company is issued a permit, the company's authorization is invalid on and after the date the permit is issued.

 
Consequential Amendments

 
Highway (Industrial) Act

25 Section 6 of the Highway (Industrial) Act, R.S.B.C. 1996, c. 189, is repealed and the following substituted:

Permission to place wires across industrial road

6 (1) Lines or wires for telegraphs, telephones or the conveyance of current to provide light, heat, power or electricity must not be erected, placed or maintained across an industrial road without permission from the minister.

(2) On any application for permission, the applicant must submit to the minister a plan and profile of the part of the industrial road proposed to be affected, showing the proposed location of the lines and wires and the works contemplated in connection with them.

(3) The minister may grant the application, and may order by whom, how, when and on what terms and conditions and under what supervision the work must be executed.

(4) On the order being made, the lines and wires may be erected, placed and maintained across the industrial road subject to and in accordance with the order.

(5) An order of the minister is not required if wires or other conductors for the transmission of electrical energy are to be erected or maintained over or under an industrial road, or over or under wires or other conductors for the transmission of electrical energy with the consent of the company or the person owning or controlling the last mentioned wires or conductors, in accordance with any general regulations or the code or with any plans or specifications adopted or approved by the minister for those purposes.

Duty to maintain drains

6.1 (1) In constructing an industrial road, a company must make and maintain suitable ditches and drains along each side of and across and under the industrial road to connect with ditches, drains, drainage works and watercourses on the land through which the industrial road runs, so as to provide sufficient outlet to drain and carry off the water, and so that the then natural, artificial or existing drainage of that land is not obstructed or impeded by the industrial road.

(2) If

(a) any land is injuriously affected because of the drainage on, along, across or under the industrial road being insufficient to drain and carry off the water from the land, or

(b) a municipality or land owner or occupant of land wants to obtain means of drainage, or the right to lay water pipes or other pipes, whether for drainage purposes or for purposes of transportation of gas or oil or any other substance or material, temporarily or permanently, through, along, on, across or under the industrial road or any works or land of the company,

the minister may, on the application or complaint of the municipality or land owner or occupant of land, by certificate, order the company to construct the drainage or lay the pipes.

(3) For the purposes of subsection (2), the minister may

(a) require the applicant to submit to the minister a plan and profile of the portion of the industrial road to be affected, or

(b) direct an inspecting engineer, or other person the minister considers advisable to appoint, to inspect the locality in question, and, if expedient, there hold an inquiry as to the necessity or requirements for the drainage or pipes, and to make a full report to the minister.

(4) The minister may, on the report, or in the minister's discretion, order how, where, when, by whom and on what terms and conditions the drainage may be effected, or pipes laid, constructed and maintained, having due regard to all proper interests.

(5) An order under subsection (2) is not required if

(a) the drainage is constructed or the pipes are laid in accordance with any general regulation or the code or with any plans or specifications adopted as approved by the minister for those purposes, and

(b) the company consents to the construction of drainage or the laying of pipes.

 
Railway Act

26 Section 3 (6) of the Railway Act, R.S.B.C. 1996, c. 395, is amended by striking out "A" and substituting "Subject to the Railway Safety Act, a".

27 Sections 28, 137 and 139 to 141 are repealed.

28 Parts 15 to 20 and 23 are repealed.

29 Sections 167 to 170, 173 to 179, 185 (3) and (4), 188, 189, 192 to 196 and 197 (7) and (8) are repealed.

30 Parts 36 and 42 to 45 are repealed.

 
Safety Authority Act

31 Section 5 (a) of the Safety Authority Act, S.B.C. 2003, c. 38, is amended by striking out "equipment and systems" and substituting "equipment, systems and railways".

 
Safety Standards Act

32 Section 97 of the Safety Standards Act, S.B.C. 2003, c. 39, is repealed.

 
Workers Compensation Act

33 Section 108 (2) (b) of the Workers Compensation Act, R.S.B.C. 1996, c. 492, is repealed.

Commencement

34 This Act comes into force on April 1, 2004, and is retroactive to the extent necessary to give it effect on and after that date.