Backgrounder (R19T0191)

TSB Rail Transportation Safety Investigation R19T0191 November 2019 crossing accident in Kitchener, Ontario

Regulatory jurisdiction and oversight

The Metrolinx Guelph Subdivision consists of a single main track, oriented generally east–west, extending from Mile 30.0 (Silver Station near Georgetown) to Mile 65.1 (Sturm Station in Kitchener). The Lancaster Street West crossing is situated at Mile 62.08.

The crossing consists of 2 railway tracks. The south track is the Guelph Subdivision main track, while the north track is a siding that provides access to Canadian National Railway Company (CN) Kitchener yard located northeast of, and adjacent to, the crossing. GO commuter trains and VIA Rail passenger trains operate on the main track, while CN freight trains and CN switching assignments operate predominantly on the siding track. Since the CN rail yard is just east of the crossing, CN trains and switching assignments frequently occupy the crossing. It is not uncommon to have trains occupying both tracks near or on the crossing at the same time.

In the vicinity of the crossing, the main track and the siding track (H31) are owned by Metrolinx. CN owns and operates Kitchener Yard: and tracks H32 to H39, and Metrolinx owns and operates track H31. Consequently, Metrolinx owns the crossing and is responsible for its maintenance.

Lancaster Street West crossing regulatory jurisdiction

CN is federally regulated. Consequently, CN was required to abide by federal regulations, standards, and rules while operating on the Metrolinx-owned Guelph Subdivision, including over the Lancaster Street West crossing.

Metrolinx is a provincially regulated company. Metrolinx was not subject to federal regulations when operating on Metrolinx-owned track; however, it had agreed to be subject to safety oversight performed by Transport Canada (TC) inspectors through the provision of inspection services using federal requirements for equipment, track, operations, etc.

While operating on federally regulated track, which comprises approximately 10% of Metrolinx’s operation, Metrolinx is considered a local railway company and thus subject to the federal regulatory rail safety oversight provided by TC, including all of the related regulations, standards, rules, policies, guidelines, and procedures.

Regulatory oversight

In April 2020, there were 12 railways that fell under Ontario provincial authority, including Metrolinx.

In Ontario, there are 3 provincial acts related to railways:

• the Shortline Railways Act, 1995 (SRA), which stipulates safety requirements for railway operation for shortline railways that are under provincial jurisdiction and which references the federal Railway Safety Act;
• the Metrolinx Act, 2006, which is economic in nature, prescribing agency corporate structures but not safety requirements; and
• the Ontario Northland Transportation Commission Act.

Although the Ministry of Transportation of Ontario (MTO) is responsible for the oversight of  provincially regulated railways, it has no overall provincial regulatory framework and has not issued any regulations pursuant to the SRA. The MTO does not have employees with the expertise to provide the requisite oversight but rather relies on the following for regulatory oversight:

• For Metrolinx, the Province has arranged for TC to conduct inspections in accordance with an inspection-services agreement between the MTO and TC.
• The Ontario Northland Transportation Commission conducts its own internal track inspections and hires third-party inspectors for some other inspections.
• For provincial shortline railways, TC conducts inspections in accordance with an inspection-services agreement between the MTO and TC, separate from the inspection-services agreement for Metrolinx.

Oversight and inspection agreements for Metrolinx

When Metrolinx operates on its own provincially regulated track, it falls under the Metrolinx Act, 2006. The Metrolinx Act, 2006 only applies to Metrolinx, not to other railways that may operate on Metrolinx owned property or track.

In January 2013, the MTO entered into 2 companion agreements for the provision of inspection services for Metrolinx’s rail operations: an agreement with TC and an agreement with Metrolinx.

1. Metrolinx – MTO agreement: for the provision of safety oversight and inspection services, consistent with federal regulations, to ensure the safe operation of Metrolinx’s GO Transit commuter rail system and the UP Express air–rail link system while operating on Metrolinx infrastructure.

   The inspection services were to include engineering, operational, and equipment inspections, and safety management system (SMS) audits to determine compliance with an agreed-to list of railway rules, standards, and regulations. The agreement also required Metrolinx to implement appropriate corrective action to bring GO Transit’s operation into compliance with the agreed-to list of rules, standards, and regulations, or to correct any identified deficiencies.

2. TC – MTO agreement: for the provision of TC railway safety inspectors to perform the safety oversight function on Metrolinx’s GO Transit commuter rail system and the UP Express air–rail link system by providing inspection services for all associated rolling stock, railway lines, and railway operations. These inspection services were to determine whether Metrolinx was in compliance with the agreed-to list of rules, standards, and regulations.

When performing inspection programs on Metrolinx property that is provincially regulated, federal acts and regulations do not provide TC inspectors with the authority to compel Metrolinx, or any other provincial railway operating on Metrolinx-owned property, to take action to address identified safety hazards. The TC agreement with the MTO for inspection services also does not provide such authority.

However, TC does have regulatory authority over any federally regulated railway that operates on track that falls under either provincial or federal jurisdiction.

Crossing safety oversight

The operation of a crossing is a shared undertaking between a railway and a road authority, with oversight provided by a regulator. Once the crossing has been constructed, all parties are responsible for ensuring its maintenance and safe operation. 

The safe operation of the crossing relies on

• the road authority (the Region of Waterloo) to ensure that the road approaches leading to the crossing are properly maintained to the appropriate standards;
• the railway crossing owner (Metrolinx) to properly maintain the crossing right-of-way and warning systems to the appropriate standards; and
• the crossing users (GO Transit, CN, VIA Rail Canada Inc., and the public) to abide by the appropriate rules and regulations.

The Region of Waterloo, Metrolinx, and CN all followed the federal rules and regulations when maintaining or travelling over the crossing and the Metrolinx Guelph Subdivision. The crossing was maintained to the requirements of the TC Grade Crossing Regulations and the TC Grade Crossing Standards.