Last Thursday [February 25] the Auditor General [AG] released a series of reports, including the lack of government supports to ensure safe drinking water for indigenous communities, and mismanagement of the government’s shipbuilding plan. Receiving much less attention was its report on rail safety, the first since the 2013 Lac-Mégantic rail disaster, which claimed 47 lives, orphaned 26 children, destroyed the town centre and spilled a record 6 million litres of toxic Bakken shale oil.
The AG report found that while there have been modest improvements, Transport Canada’s audits of Safety Management Systems [SMS]—the centrepiece of its safety oversight regime since it was introduced 20 years ago— focused on whether a company’s SMS complied with regulatory requirements, checking off the regulatory boxes: not whether these systems were effective— namely whether they improve safety i.e. reduces the risk of accidents. In the press conference, AG Karen Hogan called the Department’s failure to assess the effectiveness of SMS “a big loophole.”
AG Hogan’s press statement accompanying the release read in part: “Transport Canada has taken some actions to address our recommendations; 8 years after our last audit, there is still much left to do to improve the oversight of rail safety in Canada…[This along with the other audits released] need to be resolved permanently, and soon.”
This echoed the conclusion of the previous AG rail safety report in 2013: “Transport Canada does not have the assurance it needs that federal railways have implemented adequate and effective safety management systems.”
Her colleague, Andrew Hayes, Interim Environmental Commissioner within the AG’s office, which released a report last October on the transportation of dangerous goods, also found that Transport Canada still has not resolved problems identified in its 2011 audit. His language with reporters was more direct: “the window for a recurrence of a Lac-Mégantic-type disaster is still open.”
Past AG findings, as well as recommendations by the Transportation Safety Board [TSB] and various parliamentary committees, were met for the most part with largely incremental actions on the part of Transport Canada. Here again the Department agreed with AG recommendations and promised to do better. Another Groundhog Day?
Under the SMS regime— a form of performance based regulations—which replaced prescriptive regulations, government sets the broad regulatory boundaries and outsources to industry the role of operationalizing and implementing them—a form of self-regulation. SMS plans are approved and audited by Transport Canada to ensure that they are being implemented.
From their inception in 2001, Transport Canada insisted that Safety Management Systems would constitute an additional layer to conventional regulation and inspection-based oversight. However, Transport Canada’s resources and capacities have been systematically squeezed, and SMS audits, essentially a bookkeeping exercise, increasingly replaced unannounced on-site inspections.
Safety Management Systems have remained on the Transportation Safety Board’s 2020 Watchlist, since the list was first created more than a decade ago to highlight issues it deemed posed the greatest risk to transportation safety. Like the AG report, the Watchlist stated that many railways are not demonstrating SMS is improving safety.
Although the AG did not conduct its own investigation of SMS effectiveness, let’s briefly address this question.
The stated goal SMS and rationale for the government introducing the regime was the creation of a positive safety culture, one in which safety values are firmly entrenched in the minds of managers and employees at all operational levels and respected on a daily basis in the performance of their duties.
The following two SMS requirements, in their currently form— notably in the privately-owned freight railways— are clearly detrimental to achieving such culture. Via Rail, a crown corporation, is according to experts I’ve interviewed, seen as a better performer in engendering a positive safety culture.
Fatigue management regulations require that work rest scheduling practices be compatible with the fatigue management science. A former TSB investigator I interviewed said companies have avoided re-examining their work-rest practices simply because of the costs involved, and because regulations allow them to do so. They have been the subject bitter labour-management negotiations, and companies have resisted recent pressure by Transport minister to implement these practices. Fatigue remains on the TSB Watchlist as posing a safety risk to operations.
Robust whistleblower protections are essential to instilling a positive safety culture. Employees at all levels need to feel that when they raise a safety concern they will be listened to and supported. However, in general the corporate culture is predominately one of fear and discipline, which means existing whistleblower provisions are rarely used by employees for fear of recrimination.
Risk management is another element delegated by government to companies under Safety Management Systems. For example, companies are required to do a risk assessment of any major proposed change in their operations.
Quigley et. al. in their book Too Critical to Fail describe Safety Management Systems as a form of blame shifting, whereby delegating responsibility for risk assessments and risk management to the companies themselves provides cover for the government from their responsibility for failures. Transportation Safety Board chair Kathy Fox, speaking to a National Railway Day conference in November 2017, complained that companies were still not taking their risk assessment obligations seriously: “There are still railway companies that aren’t conducting risk assessments before making operational changes. Moreover, there still seems to be an attitude of trying to justify why a risk assessment is not required by the regulation.”
To make matters worse, risk assessments are privileged information protected under the commercial confidentiality laws and therefore not accessible to independent outside scrutiny.
The 2020 Transportation Safety Board Watchlist added the risk of unplanned or uncontrolled movement of railway equipment noting that of uncontrolled movements have. increased significantly in recent years, notwithstanding prior recommendations to strengthen prevention measures, notably in the 2014 Lac-Mégantic investigation report. In 2018, there were 168 rail accidents involving dangerous goods, an increase of 27% over the previous five-year average. average.
There is widespread support, in principle, for Safety Management Systems as an additional layer of oversight. However, until Transport Canada can ensure SMS is part and parcel of an effective, adequately financed, staffed and enforced system of regulatory oversight, SMS should be suspended, and resources focused on prescriptive regulation and conventional oversight.
The primordial responsibility to protect the public rests with government. The Corporation’s overarching mandate is to maximize shareholder value; when they conflict, safety becomes compromised. The railways have had the upper hand for far too long. The power relationship must be rebalanced. The regulator’s deferential relationship toward the industry that currently exists must shift to one of necessary tension.