TRAIN WHISTLING:
A MATTER OF SAFETY

Locomotives have been whistling in Canada
for more than a century. However, as Canada’s
urban and residential areas developed, increas-
ingly people living near the country’s rail corri-
dors have come to regard train whistles as an
annoyance.

Frequently, the public’s views on this issue
are brought forward through their municipal
governments which seek, through the railways
or regulatory authorities, to have a ban placed
on whistling at particular crossings or within a
given area.

This reference guide is intended-to provide:
some background and guidance on the issue of
whistling.

REGULATORY
BACKGROUND

Regulation of mandatory whistling at public
crossings at present falis under the jurisdiction
of Transport Canada and the Railway Safety Act.

Prior to the impiementation of the Railway
Safety Act on January 1, 1989, whistling was
governed by regulations under Section 248 of
the Railway Act. Whistling requirements were
also incorporated in “Rule 141”, of the Uniform
Code of Operating Rules (UCOR), a regulation
established under the Railway Act.

The Railway Act and the UCOR required
-kailways to sound the engine whistle a quarter of

a mile before a crossing. To have the whistling
requirements waived, a municipality would, asa
first step, pass a by-law prohibiting the sound-
ing of a whistle.

Then, if the by-law was followed by an order
of the Canadian Transport Commission, the
railway would be relieved of the regulatory
requirement to sound its whistle.

TREATMENT UNDER ©
RAILWAY SAFETY ACT

The new Railway Safety Act changed the
regulatory approach to whistling and repeaied
Section 248 of the Railway Act.

Although the current Railway Safety Act
contains no reference to whistling, the require-
ment to whistle at public crossings remains in
effect through a rule (14L) in the newly estab-
lished Canadian Rail Operating Rules (CROR),
which have been approved by the Minister of
Transport and have the force of regulation under
the Railway Safety Act.

This rule obliges railways to whistle in ad-
vance of all public railway crossings except as
prescribed by “special instructions.”

In the past, these “special instructions” could
be issued by the railways to train crews only on
the receipt of an order from the Canadian Trans-
port Commission.

Under the new Railway Safety Act, however,
Transport Canada has indicated that it will not
issue any new orders relieving the railways from
the requirements to whistle. _

Transport Canada takes the position that the
railways are free to issue special instructions

_ provided that the affected crossings meet the —
requirements of a guideline issued by Transport
nhs tor

Canada entitled “Procedure and Conditio

Eliminating Whistling at Public Crossings.”

This guideline, in effect, calls for municipali-
ties to deal directly with the railways and to
achieve a consensus on whistling.

This new approach, however, which involves
the regulatory authorities far less actively than
. before, has some important liability implications
especially since the guideline is neither a regula-
tion nor an ordexy and, therefore, does not have
the force of law.

{it should be noted that specific orders re-
specting whistling already issued by the CTC
remain in effect, as a result of the transitional
provisions of the Railway Safety Act.)

LIABILITY

Given that the railway’s decision to cease
whistling is no longer supported by an order
that has the force of law, such decisions - as well
as the municipality's initial decision to prohibit
whistling - could now be questioned by, for
example, individuals who suffer loss or damage
as a result of a crossing accident.

This could result in both the railway and the
respective municipality being put in a position
of having to defend the decision to cease whis-
iling. |

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