This bulletin is being written in line with the rapidly changing responses to the COVID-19 pandemic. The aim is to provide a high level overview of the recent developments in order to assist our transportation and logistics clients better understand the complexities and nuances involved. If you have any questions, please feel free to reach out to any member of Miller Thomson’s Transportation & Logistics Group.

Transportation of Dangerous Goods Exemptions

On March 27, 2020, Transport Canada issued two temporary certificates pursuant to subsections 31(2.1) of the Transportation of Dangerous Goods Act S.C. 1992, c.34 (“TDG Act”).[1] Certificate TU 0750 relates to training and Certificate TU 0751 relates to testing and inspection requirements.

Given the unique circumstances caused by the COVID-19 pandemic, Transport Canada has stated in Certificate TU 0750 that the handling, offering for transport, or the transport of dangerous goods does not need to comply with section 6.5 of the TDG Regulations and the requirement to have recurrent training every 24 months. This temporary certificate is subject to the following conditions:

  1. The dangerous goods are being handled, offered for transport, or transported by a person who was in possession of a valid and compliant transportation of dangerous goods (TDG) training certificate on March 1, 2020;
  2. The person must have a sound knowledge of all TDG aspects directly related to their duties;
  3. The person who handles, offers for transport or transports dangerous goods, or who directly supervises another person engaged in these activities, under this temporary certificate, must give his or her expired training certificate to an inspector or a peace officer immediately upon request;
  4. All efforts should be made to ensure that employees are provided recurrent training through any means possible such as webinars, online courses, on the job training; and
  5. Employers must ensure to enroll their employees to renew their training certificate at the first available opportunity once employees providing the training or training establishments have resumed their training operations.

In addition, Certificate TU 0751 states that the handling, the offering for transport, the transport, or importation of dangerous goods does not need to comply with the testing and inspection requirements of standardized means of containment prescribed by Part 5 of the TDG Regulations. This temporary certificate is subject to the following conditions:

  1. The dangerous goods are not handled, offered for transport, transported, or imported by rail tank cars;
  2. The expired inspection and test markings remain visibly and legibly printed on the means of containment and were valid on February 29, 2020;
  3. There are no other non-compliances or safety defects with the means of containment;
  4. The means of containment is inspected and tested at the first available opportunity once inspection and test facilities resume operations; and
  5. The means of containment is not subject of any notice of defective construction or recall, or any notice of defective repair or defective testing as per Section 9 of the TDG Act.

Both of the temporary certificates above remain in effect until the earlier of: September 30, 2020; or the day it is cancelled by the Minister of Transport.

Federal Hours of Service Exemption

In addition to the above, on March 24, 2020, Transport Canada issued an emergency declaration which supports the efforts by extra-provincial (federally-regulated) truck undertakings and their drivers to transport essential supplies and equipment to provide “direct assistance to the emergency relief efforts during the response to COVID-19”. This exemption only applies if direct assistance is being provided and does not include transportation of mixed loads that include essential supplies and equipment and non-essential supplies and equipment. The specific essential supplies and equipment included in the exemption are:

  1. medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
  2. supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;
  3. food, paper products and other groceries for emergency restocking of distribution centers or stores;
  4. immediate precursor raw materials-such as paper, plastic or alcohol-that are required and to be used for the manufacture of items in categories ( I), (2) or (3);
  5. fuel;
  6. equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
  7. persons designated by Federal, Provincial/Territorial or local authorities for medical, isolation, or quarantine purposes; and,
  8. persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.[2]

This allows these companies and their drivers certain exemptions from the federal hours of services rules, if they ensure that certain conditions are continually met. For example, must provide notice of their intention to act under this rule and certain supporting documents to the provincial director in their base jurisdiction. In addition, while operation under this exemption, the extra-provincial truck undertaking shall:

  • keep the provincial hours of service director of the base jurisdiction informed of any changes to information previously provided so that the director may accurately and quickly identify the commercial vehicles or the drivers. These changes are to be reported by means of weekly
  • maintain daily logs or use an electronic recording device to record their hours of driving, on-duty and off-duty time;
  • hold a valid safety fitness certificate that has not been assigned a Conditional or Unsatisfactory Safety Rating by the base jurisdiction pursuant to the Motor Vehicle Transport Act and the motor Carrier Safety Fitness Certificate Regulations;
  • not request, require or allow a commercial vehicle to be used if either the commercial vehicle or driver are subject to an out-of-service declaration;
  • require that a copy of the exemption be placed in the commercial vehicles that are operated in accordance with this exemption;
  • encourage shippers to indicate on the bill of lading that the supplies and equipment being transported are in direct assistance to the emergency relief efforts during the response to COVID-19;
  • keep at their principal place of business or other location deemed acceptable by the provincial hours of service director of the base jurisdiction of the motor carrier, a copy of the exemption as well as daily logs and other supporting documents that demonstrate compliance with the conditions of this exemption and shall at the request of an inspector or provincial hours of service director, immediately make available for inspection such documentation;
  • monitor drivers and other employees for compliance with the conditions of this exemption and where non-compliance is observed, ensure immediate remedial actions are taken to effectively eliminate the non-compliance and document these monitoring efforts and results;
  • not request, require or allow a driver to drive if their faculties are impaired by fatigue to the point where it is unsafe for the driver to drive;
  • ensure that in cases where a driver informs the extra-provincial truck undertaking that he or she needs immediate rest, the driver must be permitted to take at least 8-consecutive hours of off-duty time before having to report again to the home terminal; and
  • ensure that a driver operating under the terms of this exemption takes a minimum of 24- consecutive hours of off-duty in every 14 day period.[3]

Certain Exemptions for Québec Spring Thaw Weight Restrictions

Quebec’s Ministry of Transport determines the thaw period dates for the three Thaw Zones across Québec each spring. For this year, the official dates for Zone 1 have been set from March 9, 2020 to May 8, 2020. However, for Zones 2 and 3 the official date has not yet been, however, the predicted starting dates are from April 6, 2020 to June 5, 2020. During these periods, additional restrictions are imposed in order to reduce the amount of load that heavy vehicles can carry due to the road conditions being more fragile due to the spring thaw. These load restrictions help reduce the damage to the pavement and range from an 8% to 20% reduction. Although the spring thaw load restrictions continue to apply in Québec generally, due to the COVID-19 pandemic, certain vehicles can qualify to be exempt from these spring thaw load restrictions. These vehicles must comply with the following two conditions[4]:

  1. carry only food products, sanitary and medical supplies, pharmaceutical product and goods necessary to produce food products; and
  2. comply with the load limits normally applicable outside thaw periods.

This publication is intended to be a high level overview of the applicable legal considerations and not legal advice for any specific business. Businesses are encouraged to contact a member of Miller Thomson’s Transportation & Logistics Group for specific advice.

[1]     Government of Canada, “Temporary certificates”, online: <https://www.tc.gc.ca/eng/tdg/temporary-certificates.html>

[2]     Minister of Transport, “Essential Freight Transport Exemption”, online: < http://cantruck.ca/wp-content/uploads/2020/03/Signed-EN-Essential-Freight-Transport-Exemption_public.pdf>

[3]     Minister of Transport, “Essential Freight Transport Exemption”, online: < http://cantruck.ca/wp-content/uploads/2020/03/Signed-EN-Essential-Freight-Transport-Exemption_public.pdf>

[4]     Transports Québec, “Thaw period – Official and predicted starting dates”, online: <https://www.transports.gouv.qc.ca/en/camionnage/degel-periode-restrictions-charges/Pages/periode-degel.aspx>

 

Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.