TRAIN WHISTLING:
& 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
gr regulatory authorities, to have a ban placed _
on whistling at pacticular crossings or within a
given area.

. a
This reference guide is intended to provide

sme bacHgepund and guidance on the issue of
ad

GR : ATORY

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

Prior to the implementation 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 14L”, of the Uniform
Code of Operating Rules (UCOR), a regulation
established under the Railway Act.

The Railway Act and the UCOR required
railways to s¢urd the engine whistle a quarter of
a

a mile before a crossing. To have the whistling
requirements waived, a municipality would, as a
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regulatory approach to whistling and repealed
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
Canada entitled “Procedure and Conditions for
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 invoives -
the regulatory authorities far less actively than
before, has some important liability implications,
especially since the guideline is neither a regula-

tion nor an order 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-
tling.