Rail transportation safety investigation R19T0191

The occurrence

Although this transit company falls under provincial jurisdiction, the TSB conducted the investigation at the request of the Ontario Ministry of Transportation.

At about 1444^{Footnote 1} on 13 November 2019, while returning from a nearby park to their clinic on Victoria Street North in Kitchener, Ontario, a group of pedestrians (6 adult therapists and 5 child clients) from bitKIDS Behaviour Consulting (bitKIDS) encountered activated automatic grade crossing warning devices (GCWD) at the Lancaster Street West public crossing. The activated GCWD consisted of flashing lights, bells, and gates that extended across each side of the roadway, but not the pedestrian walkways.

At this location, Lancaster Street West crosses 2 sets of railway tracks, both owned by Metrolinx: the south track is the Guelph Subdivision main line, and the north track is a siding. The lead track to Canadian National Railway Company’s (CN) Kitchener Yard joins the siding at Mile 62.05.

The group of pedestrians stopped at the crossing and stood on the northwest quadrant sidewalk for an estimated 5 to 10 minutes in cold weather to wait for CN freight train L56831-13 (CN 568) to clear the crossing as it slowly shoved eastward on the north track, back into Kitchener Yard. Just as CN 568 had nearly cleared the east end of the crossing, a pedestrian waiting on the southwest quadrant sidewalk walked northward over the crossing, toward the group of 11 pedestrians on the northwest quadrant sidewalk, while the GCWD were still activated (Figure 1).

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As the northbound pedestrian approached the north side of the crossing, a pedestrian waiting on the northeast quadrant sidewalk, as well as 4 of the 11 pedestrians from bitKIDS (2 adults and 2 children) on the northwest quadrant sidewalk, proceeded to traverse the crossing. At the east end of the crossing, the locomotive engineer of CN 568 verbally warned the pedestrian in the northeast quadrant of the approach of GO Transit commuter train 3919 (GO 3919) from the east on the south track, and that pedestrian turned back.

In the meantime, the 1st adult and child pair from the group on the northwest quadrant sidewalk ran across the crossing and made it to the southwest side of the track. A 2nd adult and child pair followed about 15 feet behind the 1st pair and, while traversing the crossing, they proceeded into the path of and were struck by westbound GO 3919, which was operating on the south track. The 2nd adult and child both sustained serious injuries and were airlifted to a local hospital.

The investigation determined:

• Since CN 568 was reversing slowly on the north track at the east end of the Lancaster Street West crossing, the 11 pedestrians waiting on the northwest quadrant sidewalk were unable to see GO 3919 as it approached from the east.
• Despite being aware of the activated GCWD (flashing lights, bells and gates), 4 of the 11 pedestrians (2 adults and 2 children) who were waiting on the crossing sidewalk proceeded to traverse the west end of the crossing.
• The adults in the group of 11 pedestrians attributed the GCWD activation solely to the freight train exiting the east end of the crossing and did not recognize that the activated GCWD could also indicate the approach of a second train on the south main track.
• The 1st adult and child pair of the group proceeded successfully to the south side of the crossing, unaware that GO 3919 was approaching from the east until they heard its train horn sound to signal an emergency.
• The 2nd adult and child pair followed immediately behind the 1st pair. Approximately 1.5 seconds after the GO 3919 train horn sounded, the 2nd adult began to react, but by that time they were already entering the south track. About 1 second later, they were struck by GO 3919.
• CN’s use of the crossing for switching activities in Kitchener Yard resulted in the GCWD being activated frequently, sometimes for extended periods, which influenced some users of the crossing to adopt the risky behaviour of entering the crossing while GCWD were activated in order to avoid delays.
• CN freight trains continued to occupy the crossing in excess of the 5-minute regulatory limit, which resulted in corresponding delays for motorists, pedestrians, and cyclists that contributed to their behaviour.
• Although CN and Metrolinx had processes in place to identify safety concerns and assess risk, as required by the Railway Safety Management System Regulations, 2015, and performed some monitoring at the crossing, neither company identified the safety hazards and infractions occurring at the crossing, so the risks were not mitigated.
• The Ministry of Transportation of Ontario (MTO) is responsible for oversight of provincially regulated railways. If the MTO does not have the information and the capability to assess the quality of the Transport Canada (TC) inspections and the proposed remedial measures, and whether the measures implemented mitigated the deficiencies, the MTO will not be able to provide effective safety oversight.

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 a crossing has been constructed, all parties are responsible for ensuring its maintenance and safe operation.

A Metrolinx video recording of the Lancaster Street West crossing made over a 10-day period after the occurrence showed that pedestrians, cyclists, and motorists were routinely delayed by switching activities at the crossing throughout the day. Occasionally, the delay exceeded the 5-minute maximum permitted under the Grade Crossings Regulations (GCR). The video recording also showed many pedestrians and cyclists, and the occasional vehicle, passing through the crossing while the warning system and gates were still active, contrary to both the provincial Highway Traffic Act and the Metrolinx bylaws. Many vehicles were observed performing U-turns, some within 30 m (98 feet) of the crossing, which is also a violation of the Highway Traffic Act.

The video recording also showed many pedestrians entering or exiting the railway right-of-way at the crossing without authority. There were also occasions when motorists had backed up onto the crossing as they waited for the traffic lights at the Victoria Street North–Lancaster Street West intersection to change.

All of these potentially hazardous events occurred at a crossing that had been designated an anti-whistling^{Footnote 2} crossing for many years. There were also occasions when a faster train, operating on the main track, would pass a slower freight train that was performing switching operations on the siding and was occupying the crossing.

None of the parties involved were aware of the observed hazards that existed at the crossing. Specifically:

• The Region of Waterloo was unaware of motorists backing up onto the crossing from the Victoria Street North–Lancaster Street West intersection.
• CN was unaware that its crew members were routinely delaying traffic beyond the maximum period permitted under the GCR.
• Metrolinx was unaware of the trespassing and violations by pedestrians and cyclists of the active grade crossing warning systems.

The Region of Waterloo did not have, nor was it required to have, a process to proactively identify traffic backing up onto the Lancaster Street West crossing, as prescribed by subsection 100(1) of the GCR, because the Lancaster Street West crossing was provincially regulated and not subject to federal legislation.

CN’s crew monitoring program did not identify any non-compliant activities regarding switching movements delaying pedestrians and cyclists at the crossing for more than 5 minutes, and this was not highlighted as a risk in its risk assessment.

Metrolinx’s monitoring programs and multiple risk assessments identified only a few safety-related incidents at the crossing, and so the crossing was not identified as requiring an increased level of scrutiny and no action plan was developed to address the hazards.

Transport Canada oversight of the Lancaster Street West crossing

In April 2019, TC responded to a complaint from the public regarding an extended occupancy at the crossing. After three inspection visits of 2 to 3 hours each, conducted over a period of about 5 months, TC considered the complaint resolved, and no further follow-up activities occurred. The accident occurred just over a month after the last inspection while the crossing was once again occupied for an extended period of time.

Metrolinx’s continuous video surveillance of the Lancaster Street West crossing taken after the occurrence recorded crossing activity throughout the day over several days and very clearly showed that extended occupancies of the crossing by CN, and other safety infractions by the crossing users, continued to occur. The video provided more accurate and useful information about the extent of crossing activity and safety infractions when compared to the TC inspection methodology that relied on limited site visits and visual inspections.

Province of Ontario oversight of provincially regulated railways

The MTO is responsible for regulatory oversight of Metrolinx’s GO Transit and UP Express, a dedicated air–rail link that connects Union Station in downtown Toronto with Lester B. Pearson International Airport. However, the province has no safety-related regulations that govern provincial railway operations. Instead, the MTO relies on companion inspection agreements that it has with TC and Metrolinx to meet the requirements for engineering and operations set out in federal regulations, rules, and standards.

In accordance with the agreements, the MTO oversees the implementation of the Metrolinx Act, 2006, and the agreements for safety inspection services between Metrolinx and TC. As part of these agreements, the MTO was to receive all TC inspection reports and resolve any disputes that might arise from the implementation of the TC inspection agreement with Metrolinx. However, the MTO had not been receiving TC inspection reports. Furthermore, the MTO has no employees with the technical knowledge, expertise, and experience required to evaluate any TC inspection reports they receive.

SAFETY ACTION TAKEN

Transportation Safety Board of Canada

On 18 January 2021, the Transportation Safety Board of Canada (TSB) issued Rail Safety Advisory 01/21 that discussed second-train events at multi-track grade crossings. The advisory suggested that the parties involved identify multi-track crossings that experience frequent and extended crossing GCWD activation and that have a high level of pedestrian and cyclist traffic, assess the likelihood of a second-train event to occur, and consider implementing additional safety measures at the crossing to minimize the risk of an accident.

Metrolinx

Metrolinx made a number of safety improvements at the Lancaster Street West crossing including installing

• dedicated sidewalk pedestrian barrier arms, sidewalk tactile plate inlays for visually challenged pedestrians;
• dynamic LED second-train event signs; and
• static second-train event signage.

Metrolinx also requires train operators approaching the crossing to sound the horn if the crossing is occupied by another train.

It has also introduced a number of business processes to improve its risk management and oversight, and now requires that risk assessments be conducted for Metrolinx grade crossings every 12 months.

Metrolinx continues to monitor CN switching activities via closed-circuit television cameras and in-person observations at locations where CN trains interact with GO Transit trains. Problem crossings are identified and safety blitzes are conducted quarterly. Results from the observations and analyses of the crossings are shared with CN, and Metrolinx continues to work with CN to manage and reduce risks to railway operations and the public.

Ministry of Transportation of Ontario

The MTO now receives TC inspection reports, starting with the 2019 reports.

Both the agreement with TC and the agreement with Metrolinx were updated in January 2022 to include

• explicitly noting the MTO’s authority to direct Metrolinx, where necessary, to address a non-compliance identified in an inspection report if Metrolinx has not taken appropriate corrective action. Metrolinx is required to comply with the direction issued;
• formalizing the process for and contacts within the MTO to receive inspection reports from TC inspectors; and
• updating the rules, standards, and regulations appendix to reflect the current applicable federal requirements.

bitKIDS Behaviour Consulting

bitKIDS moved from its Victoria Street North location to a new location that has its own fenced play area. Street-safety skills are taught in the fenced play area. Once children have learned the skills, they practise these skills daily outside the fenced play area. In addition, the bitKIDS Behaviour Consulting handbook has been updated to include the following statement: “Obey all traffic laws when crossing streets, railway tracks, and crosswalks with or without traffic signals at all times.”

SAFETY CONCERN

Regulatory oversight of Ontario provincial railways

Metrolinx was created in 2006 to improve the coordination and integration of public transit train and bus service for the Greater Toronto and Hamilton Area. It oversees the operations of UP Express and the GO Transit regional public transit train and bus service. The GO Transit train service and UP Express operate over about 420 km of rail lines, 337 km of which are owned by Metrolinx. In 2019, they carried an average of about 229 000 riders each weekday, which represents the highest daily ridership in Canada.

In April 2020, the provincially regulated rail network in the Province of Ontario comprised 12 railways (including Metrolinx) that are governed by 3 provincial acts:

• the Shortline Railways Act, 1995 (SRA), which outlines safety requirements by reference to the federal Railway Safety Act (RSA);
• the Ontario Northland Transportation Commission Act; and
• the Metrolinx Act, 2006, which prescribes corporate structure but has no safety requirements.

The MTO is responsible for the oversight of the provincially regulated railway system, but it has no overall provincial regulatory framework and has not issued any regulations pursuant to the SRA. The MTO also does not have employees with the technical knowledge, experience, and expertise required to oversee the safety of railway operations; rather, it relies on various agreements with other parties in an effort to provide oversight, specifically:

• The MTO has an inspection-services agreement with TC that requires TC to conduct inspections of Metrolinx and various shortline railways to federal regulations, rules, and standards.
• The Ontario Northland Transportation Commission conducts its own internal track inspections and hires third-party inspectors for some other inspections.

Metrolinx falls under the Metrolinx Act, 2006 when operating on its own provincially regulated track. Because this Act does not include safety-related provisions or subsequent offence provisions for violating them, it does not provide the Province of Ontario with a framework for taking enforcement action for safety-related deficiencies, when appropriate, against Metrolinx or other provincial railways operating on Metrolinx-owned property. Furthermore, TC inspectors do not have the authority to compel Metrolinx or other provincial railways operating on Metrolinx-owned property to take action to address identified safety hazards.

With regard to enforcement, it is within the authority of the Ontario Minister of Transportation to require Metrolinx or the Ontario Northland Transportation Commission to implement any directives issued to either agency with respect to any matter arising under their respective legislation, including implementation of corrective action. For the provincial shortline railways that fall under the authority of the SRA, the Registrar of Shortline Railways can suspend or revoke a railway licence.

In accordance with its agreement with TC, the MTO was to receive all TC inspection reports and resolve any disputes from the implementation of the TC inspection agreement with Metrolinx. However, the MTO had not been receiving TC inspection reports and does not have employees with the technical knowledge, experience, and expertise required to evaluate TC inspection reports.

Given the current complex MTO regulatory framework that involves multiple agreements, there are gaps in the oversight processes that can lead to occasions when the MTO will not be able to provide effective safety oversight.

The MTO has identified a need to update the oversight framework for urban and regional rail transit in Ontario that would better support the province’s growing rail network and the diversity of operators. Early in 2021, the MTO began a review of the safety oversight framework for provincial railways; this review was ongoing at February 2023. The review encompasses provincial shortline railways, the Ontario Northland Transportation Commission, and urban and regional transit systems with rail service (i.e., the Toronto Transit Commission, GO Transit and UP Express [Metrolinx], OC Transpo, and ION light rail [Grand River Transit]).

The Board is encouraged that the MTO has identified a need to update the oversight framework for urban and regional rail transit in Ontario. However, although such a framework may include updated legislation and the creation of a regulator to provide oversight and support safety practices across the provincial railway sector, no such framework has yet been established. Therefore, the Board is concerned that the Province of Ontario does not provide effective safety oversight of provincially regulated railways.

Safety communications

Rail safety advisory

Backgrounders

Rail safety concern

Media materials

News releases

Media advisories

Video