The Transportation of Dangerous Goods Act, 1992 is an “Act to Promote Public Safety in the Transportation of Dangerous Goods.”
Background
The TDG Act, 1992, received Royal Assent on June 23, 1992. It replaced the old TDG Act which was passed by Parliament in 1980. Development of TDG Regulations began soon after 1980, with the first complete set of regulations coming into force in 1985.
The five year preparation yielded more than just a set of regulations. The provinces and territories allowed the federal regulation makers to coordinate the needs of all levels of government into one text. The product was a regulatory text which applied everywhere in Canada, sometimes under federal jurisdiction, sometimes under the appropriate provincial jurisdiction. In practice, we had thirteen distinct regulatory texts which, in general, carried the same requirements.
Today, there are 14 legally distinct texts (1 federal, 10 provincial, 3 territorial) which, by the choice of each jurisdiction, contain the same words. There are exceptions to this “copy and paste” approach; however, they are usually minor or they cover local needs, like rules for road tunnels in Quebec and in British Columbia. In addition, the Canadian TDG Regulations incorporate international harmonization and trans-border reciprocity.
Although the TDG Regulations appear almost seamless, the application of the old TDG Act was far from being without question. The old act found its application through the National Transportation Act. Therefore, it could only apply to certain modes (rail, marine, air) and to inter-provincial and international activities for any mode.
Many defendants challenged the old TDG Act, using arguments involving the Constitution, the Charter and even basic principles of law such as unequal application. For example, it was possible to have on the same road, two identical vehicles carrying the same dangerous goods over hundreds of kilometres; the one that happened to stop 1 km before crossing into the next province was not subject to the old TDG Act (and its penalties) while the other, for the sake of that kilometre, was subject to the old TDG Act for the entire length of the trip.
The review of 1990-1992
The review of the old TDG Act began well before 1990. However, by 1990, it was clear that the Act was in danger of being declared void by the courts and there was a real sense of urgency to complete a review and to make necessary changes.
It was important to rebuild the authority under which the TDG Regulations were made which, in turn, provided the structure for the entire collaborative TDG Program in Canada. Because of the scope and magnitude of the problem, it was important to proceed rapidly, yet in a structured manner.
The process
Step 1: Determinethe issues. This was done by consulting the regulating authorities (provinces, other federal departments), the inspectors (our own and others), the regulated industry (consignors, carriers, manufacturers, users, importers and exporters of dangerous goods), the public and people working on their behalf (police, fire fighters, medical community), and other interested groups (e.g., insurers, environmentalists). Over one hundred issues were identified.
Step 2: Categorize and prioritize the issues. At first we wanted to have a “top ten” list. As the number of identified major issues grew, we aimed for “top 25”. We grouped similar issues together, or created themes (e.g., anything dealing with the Charter or the Constitution). We identified 37 issues which, admittedly, did not cover everything unearthed during step 1.
Step 3: Describe the issues. The 37 issues were consolidated in a consultation document originally published in the TDG Newsletter, and also made available on the internet and available as an attachment to correspondence. For each issue, we prepared a brief description of our understanding of the issue and our proposed solutions (given that we understood the issue). Readers were invited to comment both on the description (do we understand the issue properly?) and our proposal (would the solution work?).
Step 4: Make it known : Consultation is on. Meetings and presentations were organized. We met with each provincial government and with many associations (e.g., CCMTA—Canadian Council of Motor Transport Administrators). We put ads in various trade journals and talked to reporters, putting out the message that we were consulting. When we expected reactions from a particular sector of the industry, and failed to get it, we would seek them out, to the point of sending individual letters to CEO's.
Step 5: Consult on the issues. The list of issues along with the invitation to comment, was sent to anyone who had expressed interest in step 1, to all subscriber to the TDG Newsletter, to all transportation companies that were expressly regulated by Transport Canada (e.g., air, marine, rail), to all provincial and territorial governments, to many associations (e.g., road carriers, chemical producers), to other federal departments (e.g., departments responsible for the Explosives Act or for WHMIS—Workplace Hazardous Materials Information System), and to anybody else who asked for it.
Step 6: Analyse the results. Hundreds of responses were received. Some only covered one of two issues, many were general and some (over twenty) gave detailed comments on each issue. We had to “modify our perception” on a few issues (i.e., our description of an issue was wrong). However, most comments were about proposed solutions, where we were given ample opportunity to adjust our position. We developed an indicator to quickly assess the overall comments. It showed in real time (day to day) what were the issues on which our perception or our proposed solutions met with the greatest resistance.
Step 7: Seek expert advice. Some comments forced us to seek expert advice on how an issue could be addressed. For example, it was common at the time for governments to establish clean-up funds, fed by a levy on goods being manufactured or transported. Because of the nature of the industry and how such funds would have to be administered (a jurisdictional nightmare), our initial proposal was shot down by just about everyone. We met with insurance experts and replaced the proposal with a legal obligation for financial responsibility, which is normally met in the form of insurance policies.
Step 8: Make the decisions. Once all the information was in, it was time to make the decisions. These were discussed with the provincial and territorial representatives, with the Minister's Advisory Council on Dangerous Goods, even with Opposition Critics on Transportation. There were 40 issues.
Step 9: Realise the decision. This step involved preparing a Memorandum to Cabinet to recommend various options to the government, which required more inter-departmental consultation. The Cabinet requested a new TDG Act, we worked with Justice to prepare a Bill, we prepared explanatory binders, speeches and notes for readings in both Houses, and we attended Parliamentary Committees in both Houses, with more speaking notes and possible answer material. Finally, we had Passage of the act and Royal Assent.
Here we go again (The 2003 Review of the TDG Act, 1992)
When the TDG Act, 1992 was passed, there was a commitment to review its application after a period of ten years. In early 2002, the review began with the analysis of security issues following the events of September, 2001. In the Summer of 2003, it is possible to extend the review to the entire act.
Security initiatives are already under review and some have voluntarily been put in place by industry. The initiatives for which some think that amendments to the TDG Act may be necessary will be the object of discussion during this review.
As for more general A Historical Perspective on the Review of the TDG Act, there is not now the sense of urgency that existed in 1990. The Act now deals almost exclusively with public safety and appears well based on the Criminal Head of Power of the Canadian Constitution. All provinces and territories have well established legislation and programs in place, so that there are no gaps in the TDG Program or, at least, certainly no major problems that could affect public safety, as may have been the case in 1990.
Nevertheless, we intend to follow the same procedure (the nine steps) this time as we did in 1990-1992.
Step 1 begins
Since June 10, 2003, we actively invite comments in order to to find out what issues exist in relation to the TDG Act, 1992. We welcome comments on any concern that anyone may have (e.g., safety, security, interaction with other programs, redundancy, new technology). We will, of course, take note of comments already received over the last ten years and include them in any list of issues that we prepare for Step 2.
We will accept comments in any format and through any medium. Given our experience in the early nineties, we know that comments that explain an issue in relation to the existing Act (something in the Act or something thought to be missing from the Act) are ideal. However, we would rather know about an issue even if there is no proposed solution. Let the future work and consultation deal with possible solutions.
Proposed timetable
Comments received before September 30, 2003, will be included in the analysis and categorization that occurs at Step 2.
We expect to complete Step 8 by September 30, 2004.
Contact us
By mail:
Review of the TDG Act,
(ASDE) Transport Dangerous Goods
Transport Canada, 9th floor, Tower C
Place-de-Ville, Ottawa, Ontario
K1A 0N5
By e-mail: TDGact@tc.gc.ca
Through our web site: https://tc.canada.ca/en/dangerous-goods/transportation-dangerous-goods-canada
Click on the link Review of the TDG Act
By telephone:
1-888-758-9999
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