TRAN Committee Meeting

STANDING COMMITTEE ON TRANSPORT

LE COMITÉ PERMANENT DES TRANSPORTS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 1, 1998

• 0905

[English]

The Chairman (Mr. Raymond Bonin (Nickel Belt, Lib.)): I call the meeting to order, please.

At nine o'clock I said we would suspend proceedings until we had a quorum. We don't have a quorum, but this is information that will assist the committee in their decisions. We do not need a quorum for presentations, so we will proceed immediately.

Committee members, the intent of the chair... As you know, the intent of the chair is only an intent; you are the ones who control this committee. The intent is to hear witnesses this morning and hopefully agree on clauses we all agree on before going for lunch, if you agree with that procedure. We will come back at 3.30 to deal with all clauses that need to be questioned, reconsidered, or amended.

We will start with the first group, the Canadian Pacific Railway. Presentations will be 10 minutes and there will be 20 minutes for questioning. There will be a maximum of 30 minutes per presentation, unless the committee decides they want more time.

Without further ado we will hear from Ms. Faye Ackermans.

Ms. Faye Ackermans (General Manager, Safety and Regulatory Affairs, Canadian Pacific Railway): Thank you. Good morning, ladies and gentlemen.

Canadian Pacific Railway welcomes the opportunity to discuss Bill C-58, an act to amend the Railway Safety Act and to make consequential amendments to another act. Because of time constraints today I will confine my remarks to four of the six concerns that are contained in CPR's written brief.

The government, the rail industry and other stakeholders involved in the review of the Railway Safety Act have all been at this process for a long time. The initial review, as required by statute, commenced in 1994, culminating in Bill C-43 in 1996. Ironically, the Standing Committee of Transport reported C-43 back to the House on December 2, 1996 exactly two years ago tomorrow, but it died on the order paper.

CPR wants the majority of the changes in this bill, and we want to see speedy passage. I do not want to appear before this committee for a third time to provide comments.

Having said that, there are a few areas where we'd like to see some changes. The first of these is something I discussed last time, which is safety at highway rail intersections. CP argued in its last appearance before this committee that a clause should be added to the RSA giving trains the right-of-way at crossings, and provided an example of the law in another jurisdiction, New Zealand.

The Standing Committee on Transport agreed with this recommendation, and Bill C-43 contained a provision that reads as follows:

The users of a road shall give way to railway equipment at a road crossing when warning of its approach is given.

This right-of-way provision has been removed from this bill. Railway companies and the unions representing our operating employees are concerned that the provision has been removed and request that it be reinstated.

There are several key changes in Bill C-58 that will provide Transport Canada with additional powers to address the problem of crossing and trespasser accidents, and to enable all stakeholders the ability to contribute to the stated goal of reducing such incidents by 50% over a 10-year period. Collectively, it is best to have as many tools as possible in our tool box to make these goals attainable.

By far the majority of fatalities associated with rail transport—some 96% in the last five years—are the result of collisions between trains and roadway vehicles at highway rail intersections, or collisions with persons illegally trespassing on railway property. Behaviour of drivers and pedestrians approaching highway rail at grade intersections is the main contributor to the vast majority of crossing collisions.

This right-of-way provision would sharpen public awareness about appropriate precautions when approaching level crossings; force some consistency in provincial highway regulations; and ultimately reduce level crossing accidents. It could also assist the railways in resolving individual site problems with municipalities or road authorities.

CPR recommends that wording similar to section 26 of Bill C-43 be included in Bill C-58. To address concerns that the present wording is too broad, CPR recommends the following sentence:

The users of a road shall give way to a train at a road crossing when appropriate warning of its approach is given.

• 0910

This rewording offers two changes. The word “railway equipment” is replaced by “train”. This narrows the application of the right-of-way to those instances of concern to us, namely when a train with locomotives is approaching an intersection, and recognizes those instances where railway equipment, such as maintenance of way equipment, must give way to the roadway user.

The second change is that the word “appropriate” is used to describe the warning. Again, this narrows the application, since there are rules and regulations that specify a railway's obligations to sound the whistle, operate headlights and ditch lights, and maintain the integrity of crossing warning devices.

My second concern is safety management systems. This bill introduces a new concept called safety management systems. This is a major directional shift that Transport Canada envisions in the future management of railway safety. Safety management systems require railways to file information with Transport Canada about internal policies and procedures, and for Transport Canada to then audit company adherence to internal policies and procedures. This takes safety management well beyond regulated minimum standards, which is how railways and most other industries are regulated in Canada today.

The RSA contains a provision under subsection 47.1(1) for regulations that will spell out the content, performance criteria, implementation and compliance monitoring processes for these systems. The RSA also contains a provision under subsection 32(3.1) for ministerial orders for corrective measures to safety management systems.

CPR is in agreement with this general direction. However, in order to assess whether a safety management system is satisfactory or to audit for internal compliance, the minister will require railways to file extensive documentation. These documents may contain information that is sensitive or confidential that should be protected from inquiries under the Access to Information Act. CPR recommends that provision be made in the RSA under consequential amendment to protect the documents filed with the minister pursuant to regulations promulgated under subsection 47.1(1).

Protection is provided to third parties under section 20 of the Access to Information Act. The applicable paragraphs are 20(1)(b), (c) and (d). CPR does not believe this provides sufficient protection for all of the information we will be required to file with the minister. Further, under subsection 20(6), Transport Canada can determine that the disclosure of information is in the public interest and can disclose any record if their view of public interest outweighs third party interest.

The third thing I want to speak to you briefly about is the environmental clause. In discussion with Transport Canada, it has been clearly stated that the intent of the environmental provisions in proposed subsection 47.1(2) are to deal with greenhouse gas emissions, yet this proposed subsection could be interpreted more broadly and runs the risk of creating jurisdictional disputes with either federal or provincial departments of the environment. CPR suggests that more specific wording be used to clarify the limits of Transport Canada's proposed regulation-making power. We recommend that the word “pollutants” be replaced by “greenhouse gases”.

The fourth element I want to speak to you about today is medical information, which is in proposed section 35. In our view, section 35 was rather poorly written in the original legislation. It has limited impact so far because neither a new rule or regulation governing medical exams, nor a regulation naming safety critical positions has ever been promulgated. The railways have been working on proposed rules to cover both of these rules, with a plan to have them in place shortly after the changes to the Railway Safety Act become effective. In fact, consultation with the affected unions has begun and there as a meeting in Montreal yesterday.

Under current Transport Canada regulations, only two elements of railway employee health are regulated. These are vision and hearing. The railway-proposed medical rules recognize many other conditions, including physical ailments and psychological disorders, as having an impact on employees whose jobs are critical to railway safety.

• 0915

Transport Canada has attempted to address some of the concerns CPR raised during consultation.

We think this section requires some additional changes. We recommend changing subsection 35(1) by removing the words

referred to in this section as a “designated position”

and using the term “safety-critical position” in place of “designated position” elsewhere in this section. There is some redundancy in the English version, which doesn't exist in the French version. It actually uses these two terms throughout this section to refer to these employees. You really need to use only one term.

Proposed subsection 35(1), as it's currently stated, refers to regulation and rules in two places. In the first instance, proposed subsection 35(1) specifies the reference as “paragraph 18(1)(b) or by any rule in force under section 19 or 20”. This refers to safety-critical positions. That's clear. In the second reference, at the very end of proposed subsection 35(1), it states “at intervals determined by the regulations or rule”. The second reference is actually to medical examination requirements, not to the list of safety-critical positions. We think this is confusing.

We would recommend that the second reference to rules or regulations at the end of this proposed subsection be amended by making it more specific to “regulations made under subparagraph 18(1)(c)(iii) or by any rule in force under section 19 or 20”. This would clarify the intent of the section by referring back to the regulations or rules that specify the medical standards.

We also think that proposed subsection 35(2), again in the English version, is poorly worded and somewhat confusing. Our written brief has proposed some text that doesn't change the intent but certainly clarifies the language.

The last two points I'll touch on briefly. Our written brief mentions a concern that when legislation for the proposed Canadian Transportation Tribunal is forthcoming, we expect additional changes may be required to the Railway Safety Act.

My last concern is one I mentioned at the last appearance here, namely that the application of security provisions to freight, particularly bulk freight such as coal or grain, is not reasonable or practical.

That concludes my remarks. I welcome any questions you may have. Thank you.

The Chairman: Thank you very much.

There are 19 minutes left. I'd like members to indicate if they want to ask a question. On my list I have Mr. Morrison, Mr. Bailey, Mr. Casey, and Mr. Cullen for three minutes each. Can we ask a question in a minute? They're technical issues. Or do you want to go beyond what we agreed on?

Mr. Lee Morrison (Cypress Hills—Grasslands, Ref.): Why don't we just try one and see how it works?

The Chairman: Okay. Mr. Morrison.

Mr. Lee Morrison: Ms. Ackermans, I have two specific questions arising out of your presentation. The first one deals with the right-of-way at railway crossings.

We were cautioned by the legal people from the department that new wording or changing wording here could put us into a position where we are going to do away with the five-minute rule at railway crossings. If that is a possibility, then I would certainly oppose such a change. What are the limits of the right-of-way? Can you move in there and sit on the crossing all day and block traffic?

I'll ask both questions, and then you can answer them.

The other question is on number 3 with regard to the pollutants. It was my understanding that the object of the clause in the bill was to deal with ground-level pollutants, such as nitrous oxides, sulphur trioxide, particulate matter, none of which have anything to do with greenhouse gases and which are of far more immediate concern to people who live alongside railway tracks, particularly, I would think, the nitrous oxides. If we made this change, you might be like the Chinese philosopher; that is, you might be getting what you asked for. I don't think it really covers the problem they were trying to address in the bill.

• 0920

With that, could I have your response, please?

Ms. Faye Ackermans: On the first one, I think the proposed wording is clear; it's “on approach”. We don't want this provision so that we can extend the current rule or regulation, which only allows us to block a crossing for a maximum of five minutes. As far as we're concerned, everything that's currently in either regulation or rule would stay in place. All this would do is that on the approach of a train coming to a railway crossing, the motorist would be aware of their behaviour to slow down and to wait for the train. We have no intentions of making changes to the CROR rules or to any other regulations Transport Canada may promulgate on crossing warning devices or crossing protection.

With regard to the second question, perhaps we've chosen our words very poorly. What I was trying to get across was that we don't believe Transport Canada intends to use this pollutants jurisdiction to include things such as vibration or noise. They're talking about the emissions that come from locomotives, essentially, and I'd just like that scope narrowed. I may not have chosen the best words for that scope-narrowing, but that's what our intent was.

Mr. Lee Morrison: So you could change it, then, just to combustion emissions or something like that.

Ms. Faye Ackermans: Something like that, to narrow the scope away from things they don't intend to use it for.

Mr. Lee Morrison: That would certainly satisfy me more, because the very words “greenhouse gases” exclude the three most serious pollutants that come out of a locomotive.

Ms. Faye Ackermans: That wasn't the intent.

The Chairman: Thank you.

Mr. Cullen.

Mr. Roy Cullen (Etobicoke North, Lib.): Thank you, Mr. Chairman.

Thank you, Ms. Ackermans.

I have a question that follows on Mr. Morrison's comment about the right-of-way provision. I'm sure we'll be asking the department, but do you know why the department would remove subclause 26(2) from the bill? Do you have any background as to why they would do that?

Ms. Faye Ackermans: The first we knew about it was a year ago in January or February, when we were discussing it as a railway association with the department. I didn't believe they had explored the reasons it was wanted it in the first place. Each time we spoke to them about it they tended to be a bit more focused on why they excluded it, but I don't think I've ever been totally clear as to why they felt it was no longer appropriate, when it was put in there in the first place. That doesn't really answer your question.

Mr. Roy Cullen: I'm sure we can ask them as well, but I just wondered if you had any theories.

Actually, your response to Mr. Morrison's question answered my question about proposed subsection 47.1(2) about the pollutants and greenhouse gases. What sorts of pollutants or gases would trains and train equipment emit that pose a threat to the environment?

Ms. Faye Ackermans: In its broadest sense, I suppose you could call pollutants noise, vibration, public annoyance types of things. The rest of what comes out of a locomotive is diesel emissions, the combustion of diesel fuel. If that's what they intend to regulate, I don't have a problem with that. We already have a memorandum with the Department of Environment on emissions in critical areas, such as the lower mainland of British Columbia, and on total emissions from the industry. So we already have some agreements in place. This would be specific to an area. I'm not quite clear exactly how they intend to go about regulating in this area, but as long as there isn't an overlap of jurisdiction, we don't have a problem with them stepping into this particular area.

Mr. Roy Cullen: Good. Thank you.

The Chairman: Mr. Casey.

Mr. Bill Casey (Cumberland—Colchester, PC): I have just a couple of questions.

I'd like to go back to the rail-crossing issue, which is a popular one. I'm surprised, really, but we're all probably affected by it a lot. Who decides what's an appropriate warning to the approach? That's my first question.

The other question is in your second concern about safety management systems, what type of information would you not want made public?

• 0925

Ms. Faye Ackermans: The types of warnings that are appropriate are those that are already included in rule or regulation or could be included in future rule or regulation. We are required to sound the whistle. We are required to keep our headlights and ditchlights going to provide that visible presence. The protective devices we have at railway crossings themselves are governed by regulation as to how long they have to be activated before the train hits the crossing so you have a minimum warning for the motorist. You have regulations that are coming that will talk about maintenance standards, and so on. There are all kinds of regulations or rules that control the crossing interface.

The second question is a little bit more complicated, because we haven't yet seen the regulations that will come out of section 47. We've talked over some examples, and when we look at the detail they're expecting us to supply, I get quite nervous.

We've had a couple of instances in the last few months where the trucking industry has taken potshots at the railway using publicly available information. I can just imagine what they would do if they had total access to all of our safety processes inside the railways, as will other railway companies. It's like saying to DuPont—you know they make a lot of money selling their safety practices—make your safety practices available to the whole world so the whole world can have your information.

It's just a little bit frightening for us not knowing what the regulation is going to say. It's frightening for us to think we will have to be completely exposed in everything we do inside the company, because that's the extent of what could be required to be filed.

Mr. Bill Casey: Part of the problem when private companies become involved with government regulations is that vulnerability to accessed information. On the other hand, often the public wants to know, and they are entitled to know, what regulations are in place for their protection. It is a problem.

Ms. Faye Ackermans: This regulation goes beyond requiring a minimum. It goes to everything we say, everything we do, all of our policies, all of our procedures.

The Chairman: Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Ref.): Some of my questions have already been touched upon, but this most recent one raised by Mr. Casey, this divulging of information, could that also involve some people personally? Would they get involved, or is it just strictly the information? People are operating these devices, and to just throw open all of the information, could that touch on some very personal things with individuals as well?

Ms. Faye Ackermans: I haven't taken my reasoning that far. I'm not sure yet.

Mr. Roy Bailey: Another thing of interest, you say the security provisions are not reasonable and practical. Could you just elaborate a bit? Because of the variance in cargo that you have, you need the same security on $2 wheat going down there as you would on a few clumps of gold. That's the extreme, true, but why do you say that in such a forceful way?

Ms. Faye Ackermans: The security provisions in proposed section 39 are intended to deal with passengers and their luggage and things they might carry with them, or freight that might be carried in conjunction with passenger operations. A careful reading of that section places the focus squarely on passenger safety, but the definition of “goods” includes the word “freight”.

It raises the spectre of saying they could require us to do screening, somehow, of anything we carry on a freight operation. We just think they probably will never use the provision, so why should the act allow it, because it doesn't make much practical sense.

Mr. Roy Bailey: In other words, if you were carrying toxic waste that would be a risk product, right?

Ms. Faye Ackermans: Right.

Mr. Roy Bailey: And that would fall under these provisions.

Ms. Faye Ackermans: Anything we carry would currently fall under these provisions.

The Chairman: Thank you, Mr. Bailey.

Thank you very much, Ms. Ackermans.

We have time for one more four-minute intervention. Colleagues, we started eight minutes late and we're caught up already. We should be operating the train systems.

• 0930

I now call upon the Brotherhood of Locomotive Engineers, please. Please proceed with your presentation.

Mr. Thomas G. Hucker (Brotherhood of Locomotive Engineers): Thank you very much, Mr. Chairman.

This will be short and sweet, because most of what my organization has said we have said in the past in regard to Bill C-43 to the review committee itself.

The membership of the Brotherhood of Locomotive Engineers would like to thank the committee for the opportunity to make this submission on the proposed changes to the Railway Safety Act.

The Brotherhood of Locomotive Engineers represents locomotive engineers in passenger, freight, and yard service who work on Canadian railways governed by the provisions of this act.

The locomotive engineer is the operating employee with the ultimate responsibility for the safe operation of all railway traffic in Canada. The brotherhood represents some 5,000 locomotive engineers in the railway industry and therefore are directly affected by the Railway Safety Act and its administration.

The brotherhood has participated as a member of the railway review committee, supporting proposed changes in the act. As an active member in this process, we work closely with the normal antagonists, the railway companies and the regulators, provincial governments, municipalities, to bring forward those improvements that we believe would enhance the act. Through this process, all stakeholders came away with a clearer understanding of the proposed position put forward by each of the participants.

I'd like to speak now in regard to the noise the trains make in your communities and the problems you have with your individual constituents when they phone you up after one of my locomotive engineers has woken them at three or four o'clock in the morning.

Section 23 of the act provides for a process for the municipalities to have a prohibition of whistling within this community and for the notification of the relevant associations or organizations. As the Brotherhood of Locomotive Engineers has stated in previous submissions to this committee, the notification would only be after the consultative period with the railways.

The stakeholders in all parts of this legislation should be involved in the consultative process. Let me editorialize here that we're not here to get a stick in the mud. We are very cognizant of what has to go on in regard to the prohibition of whistling at a road crossing, because we are the people who go across that road crossing every day and watch drivers and pedestrians take their lives into their hands as they come across in front of us. So we want to be able to add something to the process, not simply speak to the process afterwards.

The full section of the legislation does not allow for the discretionary use of the whistle where a locomotive engineer deems it necessary. Each time a locomotive engineer uses the whistle, a citizen will complain, and there needs to be an investigation into that use. I do not believe that is what the framers of the language envisioned. Locomotive engineers do not want to wake up anybody, nor do they want to kill anyone by not using the whistle in the appropriate manner.

It actually may be better to look at the required whistling in relation to the speed of the train through a community than to strictly restrict the use of the whistle.

The present CROR rule 14-L—two long, one short, and one long—requires the locomotive engineer to begin whistling one quarter mile from the crossing at grade. At 30 miles an hour or at 60 miles an hour, the locomotive engineer must comply with rule 14-L to allow for the whistling of that crossing.

Clearly, the slow-speed whistling from a quarter mile can be extremely annoying to the residents around the railway tracks and deafening to the locomotive engineer.

Locomotive engineers and train crews should not be put in harm's way with the prohibition of whistling as they pass through the communities where the citizens are annoyed with the use of the whistle. We are the helpless victims of many road-crossing accidents.

The brotherhood therefore proposes that the legislation include that the affected organization or association be part of the process to eliminate the use of the whistle in the community. The brotherhood further proposes that the regulation include the discretionary use of the whistle by the locomotive engineer.

We heard some discussions this morning with regard to crossing safety and the fact that my membership and the membership of the UTU are on the pointy edge of the wedge as we come across those road crossings. We need some protection there. I believe this committee has given it to us in the past.

• 0935

The brotherhood supports the railways' position for the need to alter the behaviour of the motorists and pedestrians approaching crossings at grade. In this instance, the vehicle operators and pedestrians are the problem, not the locomotive whistle. There is a need to change the philosophy of the public when they are approaching railway crossings and hear a locomotive whistle. The behaviour of drivers and pedestrians approaching crossings at grade is the main contributor to the vast majority of crossing accidents.

Persons using highway crossings at grade are often unaware of the long distances that are required to stop a train and that the railway vehicles are incapable of stopping for a motor vehicle or pedestrian traffic.

The CPR and the brotherhood argued at our last appearance before this committee that a clause was needed to be added to the Railway Safety Act giving trains the right of way at crossings. Both the brotherhood and the CPR provided legislative examples from New Zealand, the Railway Safety and Corridor Management Act, 1992, and from the recent legislative acts in the Texas State House of Assembly dealing with crossings at grade and vehicle drivers. Both of these legislative documents have taken steps to realize where the problem lies. The brotherhood believes there is a need to look at the principles expressed in those statutes and have them incorporated in the new Railway Safety Act.

This committee agreed with the recommendation, and Bill C-43, as reported by this committee, contained provisions to this effect. For as yet unexplained reasons, the right-of-way provisions have been removed from Bill C-58. Both the railway companies and the brotherhood are concerned that these provisions have been removed, and we request that they be reinstated.

One of Transport Canada's major initiatives was to reduce level-crossing and trespasser accidents by 50% over the 10-year period between 1996 and the year 2006. Collectively, the industry, the unions, and Transport Canada need to have as many tools as possible to make this goal a reality. As you are no doubt aware, by far the majority of the fatalities associated with rail transportation are the result of collisions between trains and roadway vehicles at crossings at grade or collisions with persons illegally trespassing on railway right-of-way and property.

The right of way would assist the railways in resolving the individual site problems with municipalities and road authorities; sharpen public awareness about the appropriate precautions when approaching a level crossing; force some consistency with provincial highway regulations; and ultimately, reduce level-crossing accidents.

The brotherhood supports the railway's recommendations that wording similar to section 26 of Bill C-43 be included in Bill C-58. The brotherhood further supports CPR's recommended wording to address concerns that the present wording is too broad. CPR has proposed that the wording “railway equipment” be replaced by “trains”. We believe this would provide the focus the parties are looking for, but narrows the scope of the statement.

CPR is further proposing that the word “appropriate” be used to describe the warning. Again, this narrows the application, since there are rules and regulations on what the railways are obliged to do, such as sounding the whistle, operating headlights and ditch lights, and maintaining the integrity of the physical characteristics of the crossing, including the operation of warning devices.

I thank you on behalf of my membership for allowing me this time.

The Chairman: Thank you very much.

There are 22 minutes left. How many members have a desire to intervene?

Mr. Morrison and Mr. Bailey, you have five minutes each for now.

Mr. Lee Morrison: Mine won't take that long.

Mr. Hucker, I see a lot of sense in the proposal you're making, that the use of the whistle or the horn should be related to speed. That makes eminent sense, but how on earth would you write a regulation that would accommodate that?

Mr. Thomas Hucker: Mr. Morrison, I think if the impetus is put forward by Transport Canada, the rule itself in the CROR would reflect this. The railways and their unions have begun to discuss how to put this into practice, and we are having some difficulty getting the wording.

How exactly do you put it into regulation? I'm not astute enough, sir, to give you the answer to that question, but I think there has to be a way of doing it.

We had an incident not too long ago in Saskatchewan where a locomotive engineer in a train was required by rule to blow at the crossing, but he was going ten miles an hour. So obviously the citizens around that crossing were not a bunch of happy campers when this individual, as required by the rule, blew the whistle for the quarter mile.

• 0940

That's what we're up against. And how we get around that I'm not exactly sure, but I think we need to have Transport Canada, my membership, and the railways understand there's a necessity to change that part of the rule.

Mr. Lee Morrison: I direct my question to our researcher, with respect to what he has said.

If this were to be brought in to change the regulations to accommodate varying speeds at the railway crossings, would that have to be referenced at all in the act, or could that be over and above the act and after the thing was passed? Would it have to be part of the act?

The Chairman: Before our researcher responds, I'll note that before we do the clause-by-clause, on clauses you have questions on, if you wish, we will invite the department to come and answer all questions you might have.

Do you agree that we wait for the department, or are you able to answer that now? Would you have the research on it?

Mr. John Christopher (Committee Researcher): No.

Mr. Lee Morrison: Okay.

I think he has raised a sufficiently important point there that I think we should clarify this, because I'd like to see it included somewhere in the regulations. The question in my mind is does it have to be in what we're doing here and now?

The Chairman: Could I ask for agreement from committee members that we do invite the department to appear before we address the clauses that may be altered?

Some hon. members: Agreed.

The Chairman: The clerk has taken note of your question. What we need to do is identify what clause this would fall under. That's very important. Sorry to interrupt.

Mr. Bailey.

Mr. Roy Bailey: Thank you.

You mentioned the town where the whistle incident happened, and I'm well aware of that. The thought that went through my mind since it has happened, and with the complaint coming in and back to you people, and so on, is that they didn't like the whistle-blowing, but what if the whistle didn't blow and there was an accident? So you're in a Catch-22 situation.

I find it extremely difficult to recognize. I know that situation well. We probably have more crossings, but maybe won't have... We have crossings galore. I can't see turning this back to the highway traffic board in each province, because there you couldn't get agreement. You don't have agreement now.

There's a fundamental thing going on here. One, your trains are going to be longer; that's coming. Two, because they are longer, they'll take more of a stopping distance. It increases with each capacity of the train. To remove this and to control somehow the whistling and the warning is in reverse of what we would like for safety. I find that difficult.

Do you know the difference in the highway traffic of the municipal regulations as they approach? Is there much variance across the country?

Mr. Thomas Hucker: I can't give you an answer to that question because I have not gone into the research on the issue. I'm sure that either the railway companies or the RAC could probably provide you with some of the information.

You're absolutely right, it is a Catch-22 that I, as a locomotive engineer, find myself in every time I come up to a road crossing that has a prohibition on it, and I watch somebody come out around a barrier and come up in front of me. And if you haven't had that experience, we can certainly put you in a locomotive and allow you to have the experience. At 60 miles an hour it's frightening, especially when that vehicle happens to be a gas truck.

I think the whistling is necessary for my salvation. I'm not sure that all people in the motor vehicles hear it, or even if they do hear it I'm not sure they pay attention to it. But there has to be something, an audible warning at that crossing—either some way that we've amended the rule to be able to allow us to be able to blow the whistle, or the discretionary use by the locomotive engineer when it's necessary at a road crossing.

• 0945

I do not know where we should fall on this issue. I simply believe that we have to change the behaviour of all of us when we come to a road crossing and in terms of what we need to look for. A long time ago we thought that ditch lights were going to be the idea because we had some information that a couple of accidents would have been prevented had the locomotive engineer seen some obstructions on the track earlier. It did work for the first little while when we approached road crossings, but then the accidents went back up again. People became oblivious to the fact that there was an extra set of lights on the locomotive.

Mr. Roy Bailey: How do you know when there's a prohibition in effect, as an engineer?

Mr. Thomas Hucker: It's in the timetable.

Mr. Roy Bailey: It's on your cards?

Mr. Thomas Hucker: It's on our timetable, yes. And that was our original problem under the other legislation, we found out after the fact. And there were many cases my membership approached me on and said “Hold it a second, we're having problems here. A prohibition against the use of the whistle may be advantageous to a couple of people around the road crossing, but we're having really severe problems coming up to these road crossings.” And while the railways would know of some of that, my membership, who are sitting in those locomotive engines every day, have a better understanding of what's going on at some of these road crossings.

Mr. Roy Bailey: My observation is that those people who duck the crossings, and the arms and so on, and get through do that consistently. Have you any records to indicate that it's likely to be the same people doing it more often?

Mr. Thomas Hucker: No, sir, I have no records, but I do have a copy of a tape we provided to the last committee that was put on by the Arts and Entertainment Network in the United States called Danger on the Rails. If you want a copy of it, I have some in my office. You'll be shocked at what you see in there. It's an hour-long video and it graphically shows what the problem is. There was one accident in Chicago where the bus was hanging out over the road crossing because when they put lights in they never considered the fact that the tracks were so close to the intersection. I forget how many kids were killed on that Wednesday morning when that locomotive engineer came along and there was a school bus hanging out on the crossing because of the lights.

The Chairman: Thank you.

Mr. Roy Bailey: What structure do you have within your organization to report? And to whom do you report the violators, the obvious violators?

Mr. Thomas Hucker: Our union and the United Transportation Union, along with the railway companies, have a reporting system where they can dial in from the radios in the locomotive to report it. Part of the problem is that it's after the fact, and when we get the information to either the municipal police or the railway police, all we have is a car; it's the exception that we ever find a licence plate number. But when we do get them they make sure they're prosecuted under the proper laws that we have.

But we do have a reporting system. We are trying to put that onto our web site right now with the cooperation of both railway companies and their police so that our membership have a place they can go into and pull up that information and get it to us as quickly as possible.

The Chairman: Thank you, Mr. Bailey.

Maybe you should have video cameras at the front to have some hard proof. Why not?

Mr. Thomas Hucker: Yes, we tried that a couple of years ago. I think Transport Canada should be funding that kind of stuff, not the railway companies.

The Chairman: I think the best way is to solve the problem, I don't care who pays. The video you have that you offered, I would appreciate if you would send it to the clerk so that it could be presented to the whole committee.

Mr. Thomas Hucker: I will do that.

The Chairman: Thank you.

[Translation]

Mr. Mercier, please.

Mr. Paul Mercier (Terrebonne—Blainville, BQ): I have with me a text which purports to be the French version of your presentation. I would like to read three sentences from it. I have to apologize to the interpreters; it cannot be translated, because the French is incomprehensible.

Under section 23 of the Act, a municipality may prohibit whistling in its boundaries, and for the notification of the relevant organizations or associations.

I must apologize to the interpreter. It cannot be translated; it isn't French.

The Canadian Pacific Railway...

The Chairman: Mr. Mercier, we are not here to talk about the quality of language. We appreciate the fact that the document was supplied to us in English and French.

Mr. Paul Mercier: Mr. Chairman, can I conclude my intervention?

The Chairman: You may make an intervention on the content.

Mr. Paul Mercier: The content is incomprehensible in French.

The Chairman: We'll listen to it.

Mr. Paul Mercier: Is this translation from the House services or from the organization? From the organization. I am closing, sir. I'm sorry but this French is incomprehensible.

• 0950

[English]

The Chairman: Mr. Cullen.

Mr. Thomas Hucker: We received our translation this morning at 8.30 and haven't had a chance to proofread; it was supposed to be in by Friday. And it's from the Brotherhood of Maintenance of Way Employees.

The Chairman: The point made is that the quality of the French is not up to Mr. Mercier's standards. But this is not a language committee. If the message gets put across, this is what we're aiming at. If your interpreters or translators are missing the point, then you miss an opportunity to bring the point across. That's the position I take.

Mr. Thomas Hucker: Agreed.

The Chairman: Mr. Cullen, please.

Mr. Roy Cullen: Thank you, Mr. Chair, and thank you, Mr. Hucker.

I had a question on railway crossings and then one on vandalism. Help me to understand this a bit better, the people who are crossing when trains are coming. Are they doing so because they don't hear the train or don't see the train, or are they doing it because they're just trying to be cute or they think they can outsmart the train?

Mr. Thomas Hucker: I would hate to generalize, to put all people into one category, but a number of people I've talked to in my career as a locomotive engineer simply believe that they can get across the crossing ahead of the train. They have no comprehension of how fast these things are moving and how quiet they are. We've had a number of accidents where employees have been killed or injured when cars and locomotives have sneaked up on them because they're just so quiet.

I think the behaviour out there is that if you go across a road crossing ten times in a day and there's not a train there, and the eleventh time there's a train there, for some unknown reason it doesn't register that there's now this huge mass of metal sitting in front of you. We've had a couple of horrific accidents where people have driven into the sides of trains that were going by at 60 miles an hour. We had one just recently. It's incredible that some kind of defence mechanism would not kick in. But I believe that most of them just do not see us at the crossings when they come up there.

Then of course there are the ones who are just going to play chicken with us, no matter what we do.

Mr. Roy Cullen: Maybe it's a question I'll put to CN as well, and perhaps I should have done it with CP, but do you know if there's any research being done about an alternative to the whistle? I know it sounds like a dumb thing to say, perhaps, but the point is if people don't see the train or hear it you don't necessarily have to communicate with a whistle. If there were a remote device, for example, a locomotive engineer could zap at the railway crossing and some big light would flash or something... This is a dumb idea, perhaps, but is any research being done into replacing the whistle as a solution?

Mr. Thomas Hucker: I'm sure either the RAC or the CN could tell you, but I believe some time ago there was some stuff done in Texas on one of the road-crossing surveys, in the United States anyway, where they had proposed that there would be an additional type of horn that was on the road crossing. I do not know, sir, where that is today.

Mr. Roy Cullen: Thank you. I'll ask the Railway Association and also maybe CN.

Finally, sir, it's one thing to guard against safety problems that emerge out of acts that just happen, but it's another thing to guard against deliberate acts of of vandalism. Do you see that as a trend that's increasing? Are the railways responding adequately? Could you comment? I lost track of that particular accident; it was somewhere between here and Montreal, or Cornwall or Brockville or something, where some people had allegedly—I don't know what the outcome was—put something on the track to derail it. Could you talk generally about vandalism and how the railways are responding? In that particular case, what was the outcome?

Mr. Thomas Hucker: I believe it was that vandals had tampered with the switch and then derailed a passenger train. Wherever you have children around railway tracks, you're going to have people laying pennies on the track. And whether or not that then leads to people going up to switch stands and breaking off switch locks to the line or put them in positions where there could be an accident... I think the railways have done everything humanly possible to prevent accidents, because there are huge liability costs in regard to workers' compensation and benefits they must pay if my members or the UTU's members are injured.

• 0955

I will never be able to stop people who try to wedge rocks into the points of a switch, but I think in most cases the railways have done an adequate job of providing a level of safety we're comfortable with. Can they do more? I'm sure they can. But to what extent this is possible, I really couldn't say to you this morning.

Mr. Roy Cullen: Thank you.

The Chairman: Mr. Dromisky.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): Thank you very much, Mr. Chairman.

Your recommendation is that the legislation should include the discretionary use of whistles at crossings. You know, there are all kinds of crossings in this country. If we're on the prairies, we can go for miles and miles, and see for miles, as far as the eye can see, in a very straight line. But if the railway is travelling through the winding terrain of northwestern Ontario, then around that next rock cut there could be a railway crossing.

What I'm trying to drive at is this. Can there be a blend of the compulsory and discretionary use of the whistle? Surely we have enough knowledge about the most dangerous crossings in this country where it's absolutely essential for this type of warning to be given. It could be two long whistles. It's whatever kind of whistle you were thinking of here.

There are other crossings where it's not absolutely necessary to blow a whistle. That's where the engineer would have the discretionary power.

Is it possible to identify those crossings that are the most critical ones and have the highest risk? You can use whistles at some places while giving discretionary powers at others. Is that possible?

Mr. Thomas Hucker: I believe so. Mr. Dromisky, you and I are from the same hometown; we know Fort William very well. There are houses next to the CN tracks and crossings that run along Arthur Street—at least it used to be called Arthur Street—in Fort William, and whistles are prohibited there now. You're looking for discretion in a situation like that where prohibition is in place. Yet we have children who use that crossing when coming home from school. I envision a locomotive engineer using a whistle in that type of situation.

I don't want to wake anybody up at 4 a.m. when that train rumbles along that piece of track there, but there are times when it's necessary. Say somebody is woken up. I don't want my locomotive engineer involved in an investigation when the fact is that he was trying to warn somebody to get off the track yet inadvertently woke somebody else up because they're so close to the right-of-way.

Mr. Stan Dromisky: You're implying that in a situation such as the one in Thunder Bay, where you cannot use the whistle in certain areas, because of the safety factor—say there's someone on the track or whatever—the engineer can then have the discretionary power to blow the whistle to clear the track. Can't we have some kind of combination of regulations like that?

Mr. Thomas Hucker: I think we can. This is why I go back to our involvement in the prohibition discussions. We can put forward some of our experiences there so that the municipalities would not just be looking at it from one point of view, such as the person who had been woken up in the middle of the night or someone who's annoyed at the use of the whistle. Therefore, we can be involved in the process. Then where there's the necessity to have that in the regulations, we're there to come forward with those experiences.

Mr. Stan Dromisky: Thank you.

The Chairman: Ms. Desjarlais.

Ms. Bev Desjarlais (Churchill, NDP): I have a comment. I hope Mr. Cullen's question didn't sound stupid, because I was thinking the exact same thing. We have global positioning systems where we can pinpoint something to within so many centimetres or so. If we can't come up with some kind of a system where it could activate lights before a crossing or something like this, then there's something seriously wrong, especially with the huge amount of dollars that are being made within the rail industry, including the transportation of freight.

With regard to the reporting of whistling, I'm getting the impression that the biggest problem with the whistling has to do the reporting of it afterward and your members having to go through sort of an interrogation process.

I guess I'm kind of wondering how big of a chore it is to report an incident. If someone is going to be on a crossing and possibly lose their life, I can't believe the reporting of the incident could be that much of a hassle.

• 1000

How many of these cases are there where there's someone on the track and the whistle gets blown and somebody gets upset during the night?

Mr. Thomas Hucker: To your point, it's not a hassle from our point of view. We do report these things. The problem is the enforcement of the existing laws. We had, I believe in Edmonton, one case where we actually caught an individual, got them to court, and the judge threw it out—or gave it a minimal fine, I can't remember which one—because the person didn't get hit.

So what was the problem? We've tried to put judges on trains, as we've put officers on trains, to find out what the problem is. From our point of view, it's not a problem. We'll report it, but when we do report it we want to make sure the offender who is putting us in jeopardy is gone after and that there is some retribution for that individual. We are the helpless individuals at these road crossings.

Ms. Bev Desjarlais: I see that as the problem, not the incident itself, not the reporting of it, not the follow-up. If that's what the problem is, I believe we deal with these things rather than the whole scope of just not whistling, or being able to whistle and not have an incident report.

The other question I have—and I guess it could be asked to the railway industry as well—is are you aware of any kind of advertising campaign that either your local or the railways might do to make the public aware of some of the dangers of the crossings?

Mr. Thomas Hucker: My union and the United Transportation Union have nationwide blitzes at least half a dozen times a year where we have radio spots put on the air just for that purpose. We spend the money to go out along with the railway companies to help children, especially children, understand the real dangers around the right-of-way and playing on the tracks. Yes, we do do that.

I don't have the kind of budget that CPR or CNR or the RAC has, but we make do with whatever we can to get that done.

Ms. Bev Desjarlais: I was leading up to the fact that in all my years I can remember maybe a few advertisements on crossings usually indicating a school bus going across a track. Apart from that, I can honestly say I can't recall anything else. If anybody else is aware, jump in here.

Also, I'm aware of the fact that Manitoba Public Insurance has numerous advertising campaigns throughout the year warning people of the different hazards on the roads, those kinds of things. They have constant poster campaigns, yet I don't see anything like that from the rail industry. So if you're aware, I'm just curious to find out if there are some joint things happening.

Mr. Thomas Hucker: Oh, there are. I have members who on their own time go out and provide Operation Lifesaver. There's a huge amount of money spent, both in the United States and Canada, on Operation Lifesaver.

We would like to have more money to spend. In Saskatchewan, Manitoba, and Alberta we have some people who do nothing else but that. My union pays their wages to go out and make sure they visit the schools to bring across the safety message.

If you go to Heritage Park in Calgary on railway days you'll see huge advertisements there in regard to Operation Lifesaver. I think that Operation Lifesaver here in Canada can provide you with all kinds of information on what they do. They are really a driving force with Transport Canada in Direction 2006, where we want to reduce the number of crossing accidents and deaths to do with crossings and trespassers. There is a lot, and I'm sure they can provide you with that kind of information. I can also provide you with what we as a union also do, and the spots we have on the radio so you can become aware of that.

We do quite a bit here in Ottawa, also.

The Chairman: Thank you very much.

Mr. Sekora.

Mr. Lou Sekora (Port Moody—Coquitlam—Port Coquitlam, Lib.): We have talked about railway crossings. You know, in my riding there certainly was a railway crossing where the lights came on and the gates came down and everything else. Yet some years ago council passed a resolution that we write to the railway company asking them not to blow the horns at two and three o'clock in the morning. That was fine for the first year or two. Without any accidents, they decided to blow the horn again at two and three o'clock in the morning. I'm wondering how you handled that. Why would that come on again all of a sudden, especially when there's a guarded crossing?

• 1005

Mr. Thomas Hucker: Maybe the individuals were mad at the railway. That's the flippant answer.

I don't know. Maybe there had been a change in the regulation for that road crossing such that the timetable changed for some unknown reason. That would be the only explanation I could give you.

My membership wouldn't—at least I think they wouldn't—go out of their way to annoy people in the middle of the night when there was a prohibition there. Unless the railway company changed the notation on the timetables, there would be no reason for it to begin again.

Mr. Lou Sekora: It's heavily populated along there. When I was the mayor, families used to phone me to see whether I could get the conductor's name, address, phone number, and everything else, so they could phone him and wake him up while he was sleeping.

But I'm really concerned about this situation in my riding. The fact is that at two and three o'clock in the morning they would be blowing their whistle. The lights would come on and the gates would come down, yet they would still blow that stupid whistle and wake people up. I'm just wondering why.

The Chairman: I think individual situations are very hard to discuss here, because we don't have the facts. We have to deal with the legislation.

Mr. Lou Sekora: I realize that. I just wonder why they would reinstate it, especially if there were no accidents.

The Chairman: Be very brief, please. We're beyond our time.

Mr. Thomas Hucker: Okay.

I'm glad they phoned the conductor, not the locomotive engineer, because then the engineer would have phoned me.

Just because there are bells and whistles and crossing arms at the road crossing does not relinquish the locomotive engineer from the requirement to blow the whistle unless there's a prohibition put in place at that crossing. My understanding is that you don't need to have a marked crossing. All you may have is crossing arms. Then you can ask for a prohibition. That's all that would be required.

So why did it change? I think if you gave us specifics, we could give you the answer to that question. But generally, unless there was a change made at the railway management level, we would not change our procedures.

The Chairman: Thank you.

Mr. Casey.

Mr. Bill Casey: I have one short comment for other members. We had a crossing safety issue in my riding. We asked for that Operation Lifesaver, which you referred to. CN and the transport department came to put on a presentation for the schools. It was really good. There were videos and handouts. So anybody who has a particular problem can contact the transport department.

See how quick I was?

The Chairman: Thank you very much.

Mr. Bill Casey: You're welcome.

The Chairman: This concludes this presentation. Thank you very much.

As I invite Canadian National, colleagues, I'll tell you that I'm changing my system. At the beginning I asked which members were interested in asking a question or making an intervention. On this one I had two members, so I allowed more time. But then we had eight questions. Therefore, we'll go to three minutes. There will be a one-minute question and a two-minute answer. If we have time, we'll do a second round.

Welcome, friends from CN. When I say “friends”, I mean the others also; we don't have any preferential treatment here. Welcome, Michel Huart.

Mr. Michel Huart (System General Attorney, Canadian National): Thank you, Mr. Chairman. Thank you, members of the committee.

As already expressed by my predecessor, we want to thank you for this further chance to make our comments known to the committee.

I understand that you have received copies of our submissions, so I do not intend to read those submissions. You can read them the way we wrote them.

One important thing among the various topics discussed here so far this morning is the train right-of-way. I hope you will direct some questions at us among these topics. They're important not only for the railway company but for the overall safety of citizens. That's railway safety as we know it and as defined in the act.

We're allowed ten minutes to talk about the issues we have close to our heart; these may not necessarily be the ones that have found their way into Bill C-58.

• 1010

I would draw your attention to our report. We have put in there some wording and drafting for some of the amendments that CN would like to see included in Bill C-58. CP has already covered most of these topics. I just want to highlight those that might not have been addressed by CP.

In our brief you will find a comment with respect to a railway company's access to lands. When you read the current legislation, it says that a railway company has the right to access adjoining property for the purpose of going to its railway line. We do not have the authority to go onto other properties and do things that relate to railway safety. We have this authority in connection with snow fences, for instance, and cutting brush and trees that could be a threat to safety to safe sight lines.

You will find in our brief a proposal for an amendment to section 25 as it currently exists. The purpose is for us to be able to quickly address issues dealing with railway safety.

Let's just talk about one issue. For instance, consider the unsafe situation created by beaver dams, especially when the beavers have left the dams and the soil becomes imbued with water and other liquids. This does threaten railway safety. There have been serious accidents in the Canadian railway industry involving beavers.

Our proposal is to have access to adjoining property and even go beyond in a context of railway safety. It's very important, and you will find it there.

Next, consider the right-of-way of highway-railway crossings at grade. You will see that our text differs slightly from that of Canadian Pacific. Why have we chosen a different text? CN wants to make sure that act addresses all crossings, not only road crossings. More particularly, we do not want to leave the impression that we only need to address road crossings. We must address all of the various crossings.

There is a right-of-way for a train. The fact is that a train is a heavy piece of equipment; it cannot be stopped on a dime. This is very important. You'll see that our wording talks about vehicles and pedestrians coming up to a crossing. It's not only a road crossing, but a crossing of some sort.

There have been many questions this morning on the right-of-way of trains. I have had the benefit of reading some of the comments made by Transport Canada regarding crossings. They had a concern about the five-minute occupancy. First, it should be said that these five minutes are directed at a train that would be standing there because shunting or other operations are being conducted. By referring to a train, the concept that we really want to push forward is essentially about a train that is in continuous movement over a crossing. That train can be a long train. It will occupy a crossing for, at times, more than five minutes. Trains are getting longer, as members have noted. But at the same time, these are the trains that do present a problem. It's the train that's coming down the line up to a crossing where there's potentially a safety situation.

Another area we've talked about in our document is something that was addressed in Bill C-43, and it's being addressed also in Bill C-58. At the same time, we would like to see some expansion of authority at that point. It has to do with the inspector's powers. You may find it strange that a railway company would ask for an inspector from Transport Canada to be given additional power. The fact of the matter is that the power of an inspector under current legislation is limited to issuing orders to the railway companies and their employees. A Transport Canada inspector has very little authority when it comes to third parties.

Under the legislation as proposed, there will be expanded authority with respect to the owner or operator of a vehicle going across a crossing. At the same time, we feel there should be extended powers for the inspector to issue notification, a warning or a ticket, to anyone who is a threat to safe railway operation or has control over an element that deals with safe rail operation.

For that particular section, of course, we have not included a specific wording. But of course we would be willing to work with Transport and others. We know you have a tight schedule, but since some words could be suggested before report stage, it's something we would like to take advantage of.

• 1015

With respect to medical assessment for safety-critical positions, you will also see in there the concerns of CN as expressed, and some proposed wording. The wording is proposed because we want to make sure the regulatory power to make rules and regulations is clear as to the fact that the frequency and content of exams can be addressed in separate regulations.

Regarding the screening of goods carried on rail equipment, the situation was well described by Canadian Pacific, and it should be noted that this situation is comparable to what we know about airport safety. It has to do with the safety of passengers and essentially making sure the goods that are found in the rail car carrying passengers constitute a safe environment. At the same time, there is concern on the part of CN that if the wording or the definition of “goods” is too broad, the security power would apply for instance to a unit train, a coal train, or a grain train, and obviously we're not talking about the same situation.

So again, there is specific wording in the CN submission to the House on this.

On the issue of confidential information relating to safety management systems, CN has the same concerns that have been expressed by Canadian Pacific. There again, providing the committee with some wording was a tougher exercise. But essentially the issue is this. Anyone familiar with the access to information legislation is well aware that an application for access to information can be filed by a third party to an agency or department of government. There are two notable situations where it becomes more and more difficult for an external party that has submitted confidential information to one of these departments to protect such information: the areas of environmental information and health and safety. We are concerned with the easy access to information that could be on those records.

As part of the exercise, as indicated by CP, the railways will have to file their plans and extensive information. This information should benefit from the protection of confidentiality not only when it is claimed by the railways at the time of filing, but also once on the record of Transport Canada. The information filed is a tool that's used to verify whether safety is actually enforced, put in place with the railway. It's an audit system and a safety management system. I'm sure you can relate to, for instance, the various ISO programs. What will be in place following amendments to this legislation, which we hope will come in the very, very near future, will allow both Transport Canada and the railways to cooperate in ensuring safe systems. But we're also concerned about the access given to information, access which may be premature at times.

We support the proposal by Canadian Pacific regarding environmental jurisdiction. I think we need to recognize the fact that there are currently voluntary agreements in place, as between the railways and Environment Canada, with respect to what we commonly refer to as NOx spots or the nitrous oxide and the volatile organic compounds. This is there, and I think it's important that the legislation somehow distinguishes between what the Canadian Transportation Agency is already looking into, namely noise vibration and problems associated with the operation, as opposed to the matters that can be released by locomotives.

Again, as I said, I do not intend to read from the brief. This is CN's presentation. The wording is there for the committee to consider, and we want to thank you again for the opportunity given to us to come and make our presentations.

• 1020

We want to also acknowledge the support of Transport Canada. A great deal of work went into the effort to produce Bill C-43. It was a joint effort. It was repeated, possibly with less time this time, with respect to Bill C-58. But it is a good piece of legislation. And we suggest that by reintroducing some of the amendments this committee had approved and supported the last time on Bill C-43, we will have an act that will be to the benefit of the railways, its employees, and the Canadian public.

Thank you.

The Chairman: Thank you very much. Before I go to Mr. Morrison and Mr. Cullen, I'd like you to clarify a point about the five-minute movement. Are you saying moving forward?

Mr. Michel Huart: Well, moving forward or moving in reverse.

The Chairman: Well, I've seen them moving back and forth for 15 minutes. Are you referring to in one direction?

Mr. Michel Huart: I'm referring to a train in movement, as opposed to a train stopped on a crossing.

The Chairman: You're switching, and it's so long it bogs the intersection for 20 minutes. That would be okay as long as it's moving?

Mr. Michel Huart: I don't think this is what is contemplated by the provision on the right-of-way. It is not a right-of-way by means of a right to camp or establish oneself on the crossing.

I did a very superficial review of provincial laws dealing with highway and railway interface, and while I could find some very interesting provisions under the Alberta and Nova Scotia acts dealing with highway traffic and what to do at a crossing, most other legislation is silent, with the only exception being trucks carrying dangerous commodities or school buses.

We're talking here of the right-of-way in the same way you would see the “yield” sign as you go on a highway. The right-of-way meaning the railway will have precedence over vehicular traffic at the crossing, and not a right-of-way that is an absolute right, the right-of-way of the company as the exercise of a property right, if you will.

The Chairman: Thank you very much.

Mr. Morrison, you have a one-minute question, and a two-minute answer.

Mr. Lee Morrison: Yes, with respect to section 25, I wonder if you could clarify a little better just exactly what amendment you want in there. I notice that CP actually wrote proposed amendments, whereas in your presentation, it's all very general and you're saying to us, would you please do an amendment.

What do you envisage on this section 25? I think this is a little touchy, and I'd just like to know what you want it to say.

Mr. Michel Huart: Do you have a copy of our presentation or submission?

Mr. Lee Morrison: Yes, I have it right here.

Mr. Michel Huart: I would refer you to page 4 of that presentation, the fourth paragraph from the bottom—

Mr. Lee Morrison: Oh, okay, sorry.

Mr. Michel Huart: This is where we suggest some wording, which essentially is the wording you currently find in the legislation, and toward the end it makes reference to actually the last two lines: “or to deal with any other situation that constitutes a threat to safe railway operations”.

We had situations last summer that we had to address with provincial authorities in which people blocked culverts to generate or create a little fishing pond. This of course is quite a safety hazard for the rail bed. These are the kinds of situations we have in mind. Rather than limiting them to allowing the railway to walk across an adjoining property to reach another point on the railway line or on the right-of-way to address safety issues, this recommendation would actually address the right to go in and deal with an actual threat-to-safety situation.

Mr. Lee Morrison: Okay. I apologize, Mr. Huart. I didn't read your presentation as you were giving it.

The other thing with respect to section 25, which has come up before, is that if you go on to private property and cut some trees to give yourself a line of sight, who is going to pay for the work and the damages?

Mr. Michel Huart: There are provisions currently in the legislation that deal with the damage we would do on a third party property by first of all gaining access to the property, or walking or driving on that property. That's one thing. Of course if it's situated on our own property, in terms of the shrubs or things like that, it's our cost.

• 1025

By the way, Mr. Ferussi, who is here with me, is the assistant vice-president dealing with regulatory affairs. Of course I invite him to jump in on some of those answers dealing with costs and safety matters.

On the matter of costs, to the extent that there is an obligation at large for safety of the railway, there should also be an obligation upon some of the neighbouring property owners—I'm thinking mainly of the road authority—to, at their cost, keep some of the sight lines for railway and highway crossings in proper shape.

The Chairman: Mr. Cullen.

Mr. Roy Cullen: Thank you, Mr. Chair and gentlemen.

Do you have any rules or regulations on derailments and the sort of safety measures you should take? I'll give you a specific example. Eons ago in a summer job I worked up in the Great Slave Lake railroad from Pine Point down to Peace River. It was built on muskeg, so the rail bed wasn't very stable. The rail cars were coming from Pine Point and there must have been two or three derailments a day because the bed wasn't stable. They were small derailments; they would just bring a locomotive up from Peace River and yank it onto the track again. But the more derailments you have, the more they create some safety risks and hazards. Do you have any rules and regulations or policies on derailments and whether they should cause you to take any specific safety measures or stop operations?

Mr. Achille Ferussi (Assistant Vice-President, Safety and Regulatory Affairs, Canadian National): I'll address the answer to that. Funny you should bring up the Great Slave Lake branch line. I was there eons ago as well.

Mr. Roy Cullen: Maybe we shovelled gravel together.

Mr. Achille Ferussi: Possibly. We have a complete emergency process, and I'm sure every railroad represented here has the same thing. Derailments, of course, are a major concern to us. We track, report, and investigate every incident we have. We do trend analyses and have definite procedures on how to deal with specific derailments, depending on the nature of the accident. Of course if you're in a dangerous commodity derailment, it's much more restrictive than just a general derailment. But we have security provisions on derailment sites. Quite often we have public intervention—people in and around the derailment site who could put themselves in danger. We're always trying to improve, but we do have processes in place.

Mr. Roy Cullen: I suppose in this particular case it's up in northern Alberta and the Northwest Territories and derailments wouldn't be that much of a safety hazard. But I had the clear impression it was better to get the iron ore out of the mine and down to the smelter, even though there was the risk of a few derailments a day, because it would take the bed years to become totally stable.

Mr. Achille Ferussi: The situation up there was unique, in that you were into permafrost and it was a constantly changing sub-grade. One day it would be level, the next day it would be undulating. Derailments similar to the Churchill line happened on a regular basis because it was pretty much impossible to control the elements. But you worked with it and the business ran well.

Mr. Roy Cullen: Thank you.

Mr. Stan Dromisky: I have just a very simple question. Could you define “train”? What do you mean by “train”?

Mr. Michel Huart: Lawyers like to talk definitions, so I'll take this one.

I would say there are two definitions of “train” in the sense that there's the technical definition of a locomotive and then markers. This is the sort of definition you would find in the operating rules.

One of the difficulties we had when we looked at the wording that was in the legislation previously was the concept of railway equipment. It's also a concept that is defined elsewhere in the legislation. There is some reference to it in the Criminal Code. Railway equipment could be anything from a hi-rail car to some switchers. We really want to link it again to the concept of right-of-way. We really want to refer to the idea of a train being something that's moving goods between points as a regular movement.

• 1030

Think of a VIA train, for instance, or a CN train that's moving stuff between Toronto and Vancouver. The concept of train is there to illustrate what common folks would understand a train to be. A train to most people is what they see going by—a locomotive and several cars. That's the train moving down the line, as opposed to a hi-rail car or some equipment we have that does tamping of the road bed and things like that.

Transport Canada was concerned that in some instances there are rules where the railway equipment does not have the right-of-way at the crossing, because it's lighter equipment and may not activate the signals. So this is not what we view as a train. What we view as a train is the train in the normal parlance or understanding of people. When they see a train coming they should be aware it's a big piece of equipment and has the right-of-way at the crossing.

The representative from the union answered a question, possibly from you, on why people do it. It's a fact of life that when a train is moving it's very difficult for most people to assess its speed. It's a huge mass and appears to be moving ever so slowly, yet it moves very fast. I'm thinking of the 95-miles-per-hour VIA trains. It's obvious that most people still have in their minds that a train does not move fast. It does move fast, and aside from the whistle, it's very quiet.

The Chairman: Thank you.

Mr. Sekora.

Mr. Lou Sekora: Thank you very much.

This is something I wanted to ask the previous speaker but didn't. If a municipality has a bylaw that certain chemicals cannot be used for weed control, do you adhere to that as a railway company, or do you just say you are going to spread any kind of chemical for weed control?

Mr. Achille Ferrusi: I used to handle that for CN. We post notice of vegetation control programs. We abide by provincial regulations. In every province we try to abide by the individual provincial regulations as well, as to what chemicals are allowed or not allowed. If a particular municipality has a particular ban on a product and we're aware of it, we will certainly abide by it. Notice is usually posted that there will be a vegetation control program. I know in some places we used to send that to all the communities well in advance so they could raise objections.

Mr. Lou Sekora: In my community we have very stringent rules for our school board and our engineering department and they cannot use certain chemicals for weed control. Yet I've noticed that your railway and CP post signs and just do whatever they want. We should have legislation where if a certain municipality has a ban on certain chemicals in their community, it ought to be adhered to by CP, CN or whatever the railway company is. I think it's very important to our communities.

The Chairman: Thank you. If you wish to present amendments you will have that opportunity at 3.30.

Mr. Lou Sekora: Great, I'll be here with pleasure.

The Chairman: Mr. Bailey.

Mr. Roy Bailey: Sorry, Mr. Chairman, I had to be absent. If this question has been discussed then just tell me.

I was interested in your opening remarks about the concept of access to property. In municipalities, the department of highways have that right and it's spelled out very clearly in the HTAs within each province. My question in on this access to property. It means you have the right, for the purposes of safety, clear vision and so on, to go onto property, private or otherwise. I missed your point in bringing that in, sir.

Mr. Michel Huart: If you look at the current legislation, there's a clear right for the railway to go on adjoining lands to cut branches and trees and shrubs that create a visibility issue for the railway operation. If there's something such as a tree that would fall across or onto our right-of-way but is rooted in the adjoining land, the act currently gives us the authority to go on that property and fix the safety-related issue.

• 1035

The act also provides us with the authority to walk on an adjoining property for the purpose of reaching another point on our line, if it is inaccessible because of the configuration. For instance, if we want to go somewhere near a railway bridge and it's easier to gain access through a farmer's land, we're allowed to do it, but strictly for the purpose of going from the highway to the right-of-way that may be located behind that farmer's property.

We do not have a broader right to address safety issues whose causes or origins are not only on adjoining property, but somewhat beyond. Of course the biggest concern here is beaver dams, because beavers are a well-recognized problem across Canada. They create some problems, and we've had some serious issues, particularly in northwestern Ontario.

[Translation]

On the Quebec side, a number of years ago, VIA had a spectacular accident in which one of its trains was derailed and a passenger was seriously injured.

[English]

So the amendment would provide us with the right to go on those lands and address the issue of the beaver dams, both above the line and below the line. Essentially, the impact of the beaver dam, with the dynamic of water in the soil, creates problems for our railway line. It will either cause spongy land and result in a wash-out, or the beaver dam will break and take away the right-of-way, creating a dangerous situation.

The Chairman: Thank you. This completes the first round.

On the second round we will have one-minute questions and one-minute answers. We'll start with Ms. Desjarlais and Mr. Cullen.

Ms. Bev Desjarlais: Do you foresee, on the same issue, any situations other than the beaver dams? That beaver's really becoming a problem here in Canada with the highways, and now the railways.

Mr. Michel Huart: Fishing ponds are the other problem, where people decide on their own to block culverts and enlarge their streams to have nice fishing areas. It has been a problem in the province of Quebec, particularly last summer. The only way we can fix this, because at times they're not necessarily the next one and could be down or up the line, is to be able to address it with the landowner directly, and not necessarily have to go through provincial or municipal authorities. There's a need to be able to fix it.

It's obvious that CN is not asking for the absolute right of total trespass and disregard for the property of others. Even with beaver dams, as we do with pesticides and herbicides, it's done in a normal business fashion. Usually these situations build up. We are aware of them and have beaver recognition programs and have identified problem areas. But when the problem arises, we need to be able to address it.

The Chairman: Mr. Cullen.

Mr. Roy Cullen: Thank you, Mr. Chair.

Just picking up on that point, let's say there was a property where a beaver dam was causing a problem to the railway, or a blocked culvert. Let's say the law gave you the authority to go to that area and talk to the owner, if you could. Are you talking about an emergency-type situation here, where you'd actually break the beaver dam or remove the blockage from the culvert? How would that actually transpire?

Mr. Michel Huart: In the proposed amendment, we talk about giving prior notice to the landowner. Again, as I said, we normally know when these situations are developing through our surveillance of the zones on each side of the right-of-way. But still, once we have given notice and have had those discussions, it would be nice to have the right to go in and fix the problem before it becomes more than a safety threat and actually causes an accident.

Mr. Roy Cullen: On the definition of train, what about these big pieces of equipment, like tamping machines or whatever? Have there been any experiences of them crashing into cars or people? Do you have any speed restrictions? How are they handled?

Mr. Achille Ferrusi: Most of those large pieces of equipment have to stop clear of a crossing and flag themselves across. If there is an accident, it's usually because of somebody not following the rules or the highway vehicles not stopping when they're being flagged. Just about all of them are flagged across.

The Chairman: Mr. Dromisky.

• 1040

Mr. Stan Dromisky: I have a simple question. We have approximately 48 railway companies in Canada. Can you tell me how closely you people have been working with other players in the game? What kind of liaison have you had regarding Bill C-58? What kind of dialogue have you had?

Mr. Michel Huart: Our best vehicle right now for this is, of course, the Railway Association of Canada. Most of the newcomers, whether they're federally or provincially regulated, do become members of the Railway Association of Canada.

That gives us a chance to talk about whistling at crossings, for instance. The Quebec government wanted to initiate some different kinds of whistling. Instead of having the 14-L—that's two long whistles, then a short one, then a long one—they wanted to come up with something else. Well, these things can be discussed and reviewed at the Railway Association of Canada. As a matter of fact, that one has been discussed.

Some of the other things that have been discussed were issues we heard about from the representative from the union. The discretionary use of a whistle is, of course, a safety issue in itself for my company. It's through standardization that you would usually ensure some level of safety.

The Chairman: Thank you very much.

The Railway Association of Canada will be appearing before us in half an hour.

Thank you. This concludes this part of the research. As I call the United Transportation Union, I have a comment to make. I will try not to offend anyone.

This bill was presented first in 1996. I always find it intriguing that as we do clause-by-clause, the negotiations start. This is fine. This is your game. I just want to make it clear that the clerk is not a mediator between the department and the stakeholders. I would like to make that clear. I would like someone to pass that on to a certain gentleman who has left this room. That's as clear and as nice as I'm able to be.

Thank you very much.

I welcome Mr. Tim Secord from the United Transportation Union.

Mr. Tim S. Secord (Canadian Legislative Director, United Transportation Union): Thank you, Mr. Chairman.

Again, like others before me, I'd like to thank the members of the committee for the opportunity to address you on Bill C-58.

I might preface my remarks with perhaps some direction for the research staff of the committee. You were talking earlier about some kind of technological device with respect to whistles at crossings. I know that several years ago the City of North York's fire department had a problem. People on the streets couldn't hear the siren or the horn from the fire trucks. They were looking at the development of a system that, when a fire truck came toward a crossing, would cut out AM or FM radios in vehicles, because that seems to be a problem. It's the same for railway crossings. So perhaps you might want to look toward the fire departments for some of that information.

As I begin, I'm certainly not going to read this word for word. However, I'd like to speak to certain selected points from this brief this morning.

Bill C-58 is the result of a consultative process. I think for the most part all of us who were on the Railway Safety Act review committee—I'll make a leap of faith here in suggesting this—support this to varying levels and degrees.

I don't want to belabour the committee with too much discussion on the bill itself. However, I'd like to speak about some of the external factors concerning why we came to this bill. Some factors are still out there. Since this is the Standing Committee on Transport, you have more to deal with more than just railways. So perhaps you need some information that might help you in some other deliberations.

The Chairman: Yes, provided it's related to Bill C-58.

Mr. Tim Secord: This is as it impacts on Bill C-58. Yes.

The Chairman: That's perfect.

Mr. Tim Secord: First and foremost, we represent roughly 8,200 men and women in Canada's railways. We participated through the process of the regulatory review emanating in this bill. It was a good process. There was a lot of debate. It was a lengthy debate. It went on and on on. It's good to finally see something on paper.

• 1045

We did, of course, have some diverging positions between our interests and the interests of the other stakeholders. We would like to see the term “meaningful” put into proposed section 20 so that it talks about a meaningful consultation. We think that term alone changes the context of that clause itself.

We have a concern that the railway safety consultative committee, which was in section 44 of the act, is no longer there. Of course, as it was never enacted, some may say that was never a problem anyway.

We also have a concern that there's an increased reliance on the safety management system that will lead to the downloading of regulatory oversight from Transport Canada to the railways themselves. We have a very serious concern about that.

We also have some concerns about the safety of surface freight transportation in Canada in general. We believe there's inadequate and inconsistent safety regulation, compliance, and enforcement for the trucking industry. This compromises safety for trucking employees and the general public. Moreover, those poor safety rules give the trucking industry an artificial advantage in cost, competition, and service over the railways, which undermines the viability of the railway industry, our jobs, and safety on the railways in general.

We believe the federal government should assume its constitutional authority to regulate trucking safety, because the provinces, after 13 years, have failed to implement the uniform national safety code. If they would implement that safety code, that would level the playing field between the different modes, truck and rail, by putting them both under federal safety regulations. This removes that competitive advantage the trucking industry currently holds over the railways, which puts downward pressure on the railways, reducing the levels of safety.

We believe the downsizing of railway employment is straining the operations and safety of the railways. That has already become an issue in the United States when one looks at the Union Pacific Railway.

Here are our specific comments on the bill itself. We understand, of course, that the minister wants to create a Canadian transportation tribunal. That would give the industry the right to appeal a minister's order to another body.

We're concerned that by doing that, it would give the industry a way out of compliance, or of delaying compliance, with an order or rule made pursuant to the act. So we have a serious concern about that.

We're also concerned that the proposed reliance on rule-making by the railways may transfer the regulatory oversight from Transport to the railways, as I mentioned earlier. For example, once the standards are set by regulation and then transferred to rules pursuant to proposed section 20, there's less notice and scrutiny of any changes made after that.

In other words, say we participate in the process of consultation under proposed section 20. Once we agree through that consultative process to a set of rules that would replace the regulation, our opportunities for being involved in the process of any future changes are gone forever. We have a concern about that.

There are a number of amendments that give organizations, such as the unions, the right to provide input to the railways on proposed exemptions to rules or regulations, or proposed rules. The railways develop this after the minister requests them to do so.

It's a step in the right direction. Of course in this bill we've increased the timeframe in terms of the consultative process. We have more time for our consultation, which is good. It's a step in the right direction. But that word “meaningful” is not there, of course. What is consultation if it's not meaningful?

By putting that terminology into the act, it would help the trade unions propose rules rather than just react to those that were proposed by the railways themselves. I know we're causing the railways some grief by suggesting that. But that's why we're here in front of the committee.

• 1050

Clause 32 of the bill repeals section 44, and that was the never-instituted railway safety consultative committee. It gave the minister the power to create that committee. We believe it's better to set the committee up within the legislative framework to ensure that the committee has the resources to continue meeting and working and to ensure the participation of the affected groups. Those that are listed in section 44 are obviously subject to review, and should be, but all of the interested and affected workplace parties and other interest groups that have a tie to the process should have input through a railway safety consultative committee.

Of course the bill, although it deals primarily with railway safety, does nothing to address the forced application of U.S.-type regulations extraterritorially on us in the Canadian railway industry, which they are doing, perhaps not directly, but indirectly through terms of economic leverage. As opposed to saying you must comply with our law, they're just saying we won't let you into our marketplace unless you comply with our law, so we'll close the border off to you until you do comply. That has happened to us in the inter-city bus industry, and it appears they're going to try to do something similar in the rail industry.

We believe the federal government has the constitutional authority and, we argue, the responsibility to improve the safety of large truck operations. The federal government in 1988 deregulated the entry and exit controls on trucking, and they said there'd be that national safety code to ensure that safety wouldn't suffer from cutthroat competition.

The original schedule was to implement the code by 1990. So all this time passed, and here we are today and the motor carrier safety rating system under the safety code has been postponed year after year. It has a current deadline of January 1, 1999. It will not be met, and given the past delays, we don't expect to see it in place for several years to come, if the provinces can actually agree on a uniform rating system at all.

Keeping in mind that as the regulation in the trucking industry, the competitive industry for railways, continues to be lax and not enforced, there continues to be more pressure exerted on the railways to become competitive with the trucking industry.

The federal government, in our view, should implement the recommendations of the two statutory reviews to implement the national safety code and give the Transportation Safety Board authority to investigate large truck crashes, just as they do for railways. This would put rail and truck under the same regulatory framework and remove distortions to competition.

Railway employment in Canada has declined from 75,000 in 1988 to 48,000 in 1996. It has again shrunk since 1996 and will continue to do so for some time in the future. CNR has recently served notice that between mid-1998 and the end of 1999 there will be a further 3,000 job reductions. There's a point in time when the railways begin to cut into muscle and not fat, and we think we're at that point.

Canadian railways are striving for the labour input ratio of U.S. railways, but the U.S. railroads have already gone too far, as we noticed in the Union Pacific, where they had a service meltdown and some very serious problems. Some of those U.S. railroads have agreed they've cut too far and they're now starting to hire. In fact Union Pacific, as a result of the meltdown from having cut too far, have hired 3,800 employees in 1997. They expect to hire 4,500 in 1998 and improve the safety of its operations and improve its service. The roughly 8,000 jobs they are going to create are equivalent to 15% of its workforce.

The Chairman: Excuse me. We're a little bit off topic and we're three minutes over the ten minutes, so I'll ask you to wrap up.

Mr. Tim Secord: All right, Mr. Chairman.

In essence, we believe the trucking industry has to be regulated so that it takes the pressure of an unfair advantage off the railway system. We believe the bill does a lot toward improving the safety system in the railways. There are some changes that could be made, obviously, and everybody has a different interest. We hope the committee looks toward changing some of those things in the bill and also keeps in mind the external pressures that force the railways to work in the manner in which they do and Transport Canada to work in the manner in which it does.

Thank you.

• 1055

The Chairman: Thank you very much.

We'll proceed to questions. We'll start with four minutes per question and answer in total. Mr. Bailey, Madame Desjarlais, Monsieur Mercier.

Mr. Roy Bailey: Mr. Secord, I want to zero in on two particular points of your discussion.

You have stated very clearly that this downsizing, as it relates to safety, is hurting the safety situation. I'm wondering if you have any statistics you could throw out to this committee that in fact would prove this statement.

The other thing I want to discuss with you is the unfair advantage the trucking industry has. You are very keen on and you mentioned such things as the federal government getting into the trucking regulations. When you do so, you recognize that you're moving into provincial territory, and here you have a different highway traffic act in each province. Then you mentioned further that if there was a huge truck accident, like the one up in our chairman's constituency, that's where Transport Canada should become involved.

I see a fight coming here. These trucks are registered under the provincial legislation. They are licensed under provincial legislation. Each province is different, and yet you're asking for the superimposition of Transport Canada in an investigative way in which you double up on the investigating teams that you would have, one from the provincial government and the insurance companies or whatever and one from Transport Canada.

I'm wondering if you understand the significant difficulty you will face—I'm not saying it's not right—in getting Transport Canada involved in what is normally a provincial routine.

Mr. Tim Secord: Yes, Mr. Bailey, we do understand that. It's a serious problem. In the last 13 years since the national safety code was supposed to have been in place, the federal government has transferred the jurisdiction to the provinces. That's where the problem has come in, and 13 years waiting for it shows there is a problem.

If we look at some serious bus crashes—because it's not just the trucking industry, but the highway industry—the TSB didn't investigate all the bus crashes that have occurred because it doesn't have the regulatory authority to. We think they should, because if they don't... Every time something happens on the railway, the TSB is right there, and so it should be. When there are competitive modes out there, they should be treated in the same manner as the railways are so that the competition stays level. In the absence of this, if they don't have to worry about big brother watching over them in the bus or trucking industry and only the railway does, it just keeps the big hand pushing down on the railway and everybody else gets off scot-free.

That's a serious problem, and it changes the dynamics of what we're able to achieve in the railway industry in terms of safety, what we can achieve through Transport Canada in terms of safety. And clearly it's a money issue as well. If we're going to have competition, competition is great, but let's make it fair for everybody so we're playing by the same rules. That's all we're asking. Otherwise, they can be more lax in terms of safety in one mode as opposed to in the railway, where actually they are starting to get more involved in trying to bring more rules on themselves in terms of safety.

Mr. Roy Bailey: What about my first question, sir? I mentioned you stated that the downsizing has limited or impairs or harms the safety features. Have you any statistics to back that up?

Mr. Tim Secord: I don't have the statistics in front of me. I'm sure the railways could provide you with the statistical data. However, it's clear, and I don't know that the railways would dispute the fact, that there is a trend toward downsizing the number of certified car inspectors and certified car inspection locations. Obviously if you inspect your equipment less, it travels more and more miles before it's inspected, and farther and farther. That becomes a safety concern, certainly for the general public and the people who operate the equipment.

• 1100

The Chairman: To clarify the issue of truck-train transportation, Transport Canada becomes involved because of transportation of dangerous goods, and the only time they have jurisdiction, as in the case of the crash in my riding, when the truck went to the side of the road, was once the truck stopped. That's when Transport Canada jurisdiction came in. As long as it's moving, it's not federal jurisdiction.

Madame Desjarlais.

Ms. Bev Desjarlais: In regard to the issue of the unfairness between having to go into the U.S. and abide by laws that are there, so there's an onus to make sure you do that or you're not going to be able to go in there, how do you feel about whether or not those coming from the U.S. have to abide by laws that are in Canada?

Mr. Tim Secord: I feel very strongly about that.

NAFTA kind of clouds everything, but if we have foreign carriers operating on Canadian soil, they should comply with Canadian regulations and laws, just as we have to when we cross into the United States. However, the Americans sometimes tend to want to have a dual system, a “do it our way or don't do it all” sort of thing. They believe their system is better, so they want their rules to apply everywhere.

For example, in the case of inter-city buses, and I use this because it has already happened, according to the FRA, it's going to happen in the rail industry, in Montreal and here shortly.

With respect to Ontario Northland buses that travel into the United States, the Department of Transportation in the U.S. said “You will comply with these regulations or else you will not enter our country”. The ONR said “What choice do we have?” So they had to comply in Canada with a foreign regulation, which they had no right to apply extraterritorially. But they didn't apply it directly; they just said “We're going to close the border to you; we're not going to let your drivers operate here.”

Ms. Bev Desjarlais: But it only applies once they cross over the border. Correct?

Mr. Tim Secord: No. It said if you, as a company, want to have a share in our market on the U.S. side, you will make all of your employees subject to our regulations. I can give you the exact example.

The Chairman: That question can be addressed to the department when they come back, as it pertains to rail.

Ms. Bev Desjarlais: Yes. I wanted the answer as to whether or not you thought the regulations should apply when they come into Canada, that they should abide by Canadian rules.

I guess I just want to make a statement on this, because it seems to be coming out that the biggest issue here is that we all want to be competitive, and somehow I would rather see that our onus should be on the safety and welfare of all Canadians, not that we're reaching a point where we just want to be competitive. I would like to think we're all here for that reason, more than just making each industry competitive.

I really wish that would be the ultimate goal, and it doesn't seem to be coming out that way.

The Chairman: If it does, it's the responsibility of committee members to amend it so that their wishes are demonstrated in the bill we send back to the House.

Mr. Mercier.

[Translation]

Mr. Paul Mercier: Mr. Secord, you rightly point out the inadequacies of the regulations concerning truck transportation. I have two questions. First of all, do you think that the regulations are better in the United States, meaning that they rest on a more solid foundation? Secondly, in the United States, are the regulations a federal responsibility or a State responsibility?

[English]

Mr. Tim Secord: With respect to your first question, Mr. Mercier, better or worse, it's all subjective.

• 1105

The difficulty with respect to that regulation here in Canada is that we don't have a standard right across the system, a national standard. Every province is different. And as traffic patterns change from east to west to north to south, each of the provinces begins to compete with the neighbouring state in the United States and tries to adjust their regulations in respect of how they can access and get more market share within the neighbouring state. I don't know if it's better or worse, but it is certainly not uniform.

I'd like to think that we in Canada could create better solutions to Canadian problems than having to look across the border to the United States to have them solve the problems for us.

I didn't catch all of your second question, Mr. Mercier.

[Translation]

Mr. Paul Mercier: In the United States, is road transportation a federal or a State responsibility?

[English]

Mr. Tim Secord: They're established by the federal government under the Department of Transport.

[Translation]

The Chairman: Thank you, Mr. Mercier.

[English]

Mr. Dromisky.

Mr. Stan Dromisky: In one of your specific comments pertaining to Bill C-58 you use the word “meaningful”. That's a very subjective term. What is meaningful to you may not be meaningful to me. If I get my way, the consultative process was very meaningful; if I don't get my way it wasn't meaningful. So you see, there's a tremendous amount of subjectivity built into a word of that nature. Maybe some other phrase could be used or created to cover what you really mean here. You wouldn't have any objection if we just leave that word out and not put it in?

Mr. Tim Secord: Not really. The drift of the terminology I used was to get equal status so that we all shared an equal voice in the development of the rule, so that we don't show up and provide our input into a proposal and then as we leave they say thank you very much and it goes in the garbage. That's not our concept of meaningful. That's the context in which it was offered.

Mr. Stan Dromisky: Thank you.

The Chairman: In those deliberations, there's a report produced when the union and the company meet and make recommendations. Who is it provided to, and does the union have an opportunity to forward their information to the person they successively report to?

Mr. Tim Secord: Yes. When the railway proposes a rule change under section 20 they send it out to the interested parties or affected parties for consultation. We read it, make our comments or meet with the railway industry. We may have different positions, and that's fine; it's okay to agree to disagree. The railway then submits after the time limit to the minister their proposed rule change, and along with that they have an obligation to submit our comments where we agreed or disagreed. The minister, and obviously the department, takes that, reviews it, and then makes a decision one way or another.

The Chairman: You say they have an opportunity to submit your comments?

Mr. Tim Secord: Yes, they do.

The Chairman: Is there an obligation?

Mr. Tim Secord: Yes, there is an obligation.

The Chairman: So your view reaches the minister although it may not be included in the report by the company?

Mr. Tim Secord: It would be included in the report. The companies have been very good in that respect. And if they didn't we send it to them anyway. We make sure the minister gets it.

The Chairman: I wanted that cleared up. Thank you very much.

Any other questions, colleagues?

This concludes this part of the consultation. Mr. Secord, thank you very much.

We now invite, from the Railway Association of Canada, the president, Mr. R.H. Ballantyne, and Mr. Mike Lowenger.

Before you start, I will share with my colleagues that there will be two written presentations made, one by the Federation of Canadian Municipalities and one by the Canadian Council of Professional Engineers. They will be made available to you.

• 1110

Dear friends, please proceed.

Mr. R.H. Ballantyne (President, Railway Association of Canada): Thank you very much, Mr. Chairman. It's certainly a pleasure for the Railway Association of Canada to have the opportunity to make input to the committee as it addresses Bill C-58.

I'm accompanied by my colleague Mike Lowenger, who is vice-president at the RAC. Mike will make our submission, and the two of us will certainly attempt to answer any questions you have.

Mr. Mike Lowenger (Vice-President, Railway Association of Canada): Thank you, Mr. Chairman.

Again, the RAC is happy to be here. We believe that the Railway Safety Act is very good legislation, and that the passage of Bill C-58 will, in general, make it even better.

When we appeared before SCOT on Bill C-43 in the early fall of 1996, there were 32 member railways in the Railway Association of Canada. There are now 48. Member railways include class 1s—the major railways, CN and CP—and regional and short-line railways that operate both rail-based freight and passenger services in Canada and the United States. The Canadian railways carry 5 million carloads of freight and containers annually, and some 45 million rail commuters and passengers. Canada's railways, which employ some 46,000 workers, are among the safest railways in North America. The statistics specifically in the last two years have shown that we are indeed the safest in all measurable categories.

Of our members, 29 members are federally regulated and 19 are under provincial jurisdiction. Four provinces—Alberta, Ontario, New Brunswick and Nova Scotia—have adopted the federal form of railway safety regulation, and are now under agreement with the Government of Canada to have Transport Canada rail safety inspectors ensure compliance with national railway safety requirements. The safety regime in the other provinces is informally based on the Railway Safety Act as well.

The reality is that all railways want and need to operate safely for the benefit of their employees, their customers, communities and the shareholders. The Railway Safety Act and any amendments will apply to virtually all railways in Canada—as we've just indicated—and not just the major carriers. The application of the act, and the development and enforcement of related regulations, must reflect that reality.

The RAC was extensively involved in the consultation process, along with many other interested parties, in bringing forth the Railway Safety Act back in January 1989. We again had the opportunity to consult with the Railway Safety Act review committee in the 1994-96 period, which translated into proposed amendments under C-43. The Railway Association of Canada and virtually all affected stakeholders strongly supported Bill C-43. Unfortunately, as we've all heard and know, this bill died on the order paper.

The RAC and industry stakeholders were consulted again this year in Transport Canada's regulatory review, which resulted in adjustments and improvements to the previous bill now tabled as Bill C-58. Again, the RAC generally endorses the amendments contained in the bill, but the industry has a few suggestions that we feel will further enhance the application of the act. As you have already heard, Canadian National and Canadian Pacific have made detailed representations on many of these issues. As a result, we will focus on two distinct issues. One is a repetitive issue that we feel deserves reinforcement, and that is crossing safety. And the other issue we would like to address is safety on short-line railways. Again, we would like to indicate that the Railway Association of Canada has reviewed and supports the submissions of CN and CP.

I would like to talk first about grade-crossing safety. As an industry, we have a vested interest in grade-crossing safety. Obviously, crossing issues are strongly linked to public safety, as well as railway safety. In this matter, the railways and all three levels of government are partners. The public must be educated on the risks associated with traversing grade crossings, and must fully understand that trains—and again, this was said before—take substantial distances to stop and cannot take evasive action.

Operation Lifesaver, the national public safety program co-sponsored by the Railway Association of Canada and Transport Canada, already has an excellent track record of reducing accidents, fatalities and injuries at grade crossings. Again, with the help of the unions, as was mentioned, this program has helped reduce railway-highway grade-crossing accidents by 60% over the last fifteen years. And the industry is also very active in Direction 2006, a public-private initiative in cooperation with Transport Canada that will help reduce trespassing and road-rail crossing accidents by another 50%, targeted for the year 2006.

Over the years, these programs and others sponsored by individual railway companies have contributed to a steady decline in crossing accidents and fatalities. However, there were still 309 grade crossing accidents in Canada in 1997, as compared to 502 in 1988, while 30 people died and 67 were seriously injured. In virtually every case, the accident was caused by drivers or pedestrians who put themselves in the wrong place at the wrong time.

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The majority of such collisions occurred at crossings equipped with advance warning devices. In about one-third of them, it was the vehicle that struck the side of the train. Many accidents were—and are—caused by drivers underestimating the speed of a train and trying to cross the tracks ahead of it. Large objects always appear to be moving up to five times slower than they really are.

In light of these continuing problems of driver perception and behaviour at crossings, the railway industry, with strong support from various labour organizations, made a recommendation to the standing committee in 1996, at Bill C-43, to amend the act in such a way as to address this safety issue. The industry recommended that a clause be added to the Railway Safety Act that provided right of way at grade crossings, similar to legislation adopted by New Zealand—and I think Michel Huart defined well what that right of way means. At that time, the standing committee agreed with this recommendation, and Bill C-43 was amended to include a new proposed section that stated:

26.2 The users of a road shall give way to railway equipment at a road crossing when warning of its approach is given.

It has been accepted historically that marine vessels, ships, have the right of way over trains at canal intersections, and that trains have the right of way over motor vehicles—and pedestrians, of course—at intersections. This historical acknowledgement was based on the physical principles of stopping vehicles in each of the three modes. Including such a reference in Bill C-58 will just make the laws of Canada compatible with the laws of physics.

The industry saw this addition to the Railway Safety Act as a major step forward in acknowledging the reality of train operations and driver behaviour at grade crossings, and in the likelihood of contributing to overall crossing safety awareness and reduced accidents. The industry was, of course, disappointed in the removal of this proposed section from the act in the preparation of Bill C-58. The reasons given were related to inappropriate application of the term “railway equipment” and unclear interpretation of “warning”. The RAC would like to propose new wording or, as an alternative, would like to work with Transport Canada on acceptable language that will achieve the desired effect and allow for the reinstatement of this important amendment.

In our brief, we have recommended a version stating, “The users of a road shall give way to trains at a road crossing when appropriate”—and “appropriate” is underlined—“warning of its approach is given.” But as I said, whatever language is used to reinstate this proposed section and give it the meaning that we intend would be totally acceptable.

Before I get on to short-line issues, I just want to raise a couple of quick points to address some comments that the member made about external contributions to crossing safety. One thing you mentioned was public advertising. There is a campaign that has been very successful in the United States, called “Highways and Dieways”, under the Operation Lifesaver program. There's government involvement and railway involvement in public service announcements in prime time on TV in certain states in the United States. They're very graphic, very visual public service announcements, but they have been shown to be very successful. There were measured reductions in accidents by up to 30% to 40% in a very short term. We are trying to do the same kind of thing in Canada. We are working with Transport Canada on Direction 2006 to try to get all parties involved, interested and funding that kind of program.

The other issue I'd like to raise about external involvement is with regard to crossing consolidations and closures. The safest crossing is obviously no crossing at all. In many locales, there are many crossings adjacent to each other. For the sake of very simple convenience, the elimination or consolidation of some of these crossings could result in a much higher safety situation. We are lagging far behind in that kind of an approach. In the United States, they have many federal, state, railway and municipality initiatives that result in a re-look at access over railways lines. Over the last ten years, they have eliminated or consolidated 20,000 crossings in the United States. In Canada, I'm afraid we can probably count them on only one hand. I think that's a very important initiative that should be followed.

Anyway, I'm sorry I digressed, but those were issues that were raised, and I thought that information would be valuable.

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On the topic of short lines, passage of the Canada Transportation Act in mid-1996 streamlined the process for the restructuring of railway operations in Canada, and simplified the process for creating new, locally managed short-line railways that could be more responsive to local customer needs and service requirements. This initiative has been very successful. Currently, an average of one new railway a month is being established in Canada and joining the Railway Association of Canada. Not only are they maintaining rail service to many communities, they are very successful at growing their business now. This has been achieved by attracting business that rail had lost to trucking, or by gaining new traffic that had never been moved by rail before. Some short lines have increased their traffic volume by as much as 300% over the last two years. This is not by accident. It is because they interchange traffic with main-line carriers for final delivery.

The short-line safety performances and standards have to match those of their main-line partners. As such, the short-line partners are developing strong and cooperative relationships with major freight carriers, including CN and CP. These partnerships extend not just to marketing opportunities, but also to safety. With the focus of the rail industry on delivering seamless and transparent freight transportation services, it is essential that all segments of the freight transportation network provide safe and damage-free services.

The class ones are very active in providing appropriate assistance to the short lines in the areas of technical expertise, resources, training materials, etc. As the Railway Association of Canada, we also provide many safety-related services to our member short-lines, including access to rules, regulations and standards as they apply; industry guidelines and circulars; workshops and seminars on safety and regulatory issues; and access to various technical committees and working groups. And we also have the advantage of having both the major class 1s and short-line railways as members of the same association, thereby facilitating an industry-wide approach to safety management.

In spite of these safety-efficient short lines, the reality is that they do not have the staff and the associated resources of major freight carriers to support a high level of dialogue with government. In essence, it must be recognized that short lines can attain excellent levels of safety performance similar to those of class ones, but they have to be delivered in simpler forms and with less administrative effort. The implementation of new regulatory oversight mechanisms now being considered in Bill C-58 must respect this transportation reality. New regulations to support these amendments in the act, and related enforcement activities, must provide balance and due consideration to these business realities. This is essential particularly in light of a more stringent regulatory regime that exists for railways, including short lines—and this whole area was raised by Tim Secord—than exist for trucks.

Clause 47 of Bill C-58 outlines the requirements for railways to implement and monitor safety management systems, while clause 32 provides for ministerial orders for corrective measures related to those systems. The Railway Association of Canada believes the safety management should apply to all railways, large and small, and both federally and provincially regulated. Rolling stock moves between railways, big and small, and across all borders in the NAFTA countries. It is therefore vital that there be as much consistency and compatibility between various regulatory regimes as possible.

The philosophy of the Railway Safety Act requires that certain safety objectives be met, but it acknowledges that a large transcontinental railway operating at high speeds and in heavy-density traffic will meet these objectives in a significantly different manner than will a low-speed, light-density, short-line operator. Bill C-58 retains this basic premise. As the regulator will now require all railways to implement safety management systems, it will be necessary that Bill C-58, in supporting regulations and the staff at the Transport Canada Rail Safety Directorate, be sensitive when applying these sections of the act to short lines and terminal-switching railways. The RAC is not recommending changes to these clauses in Bill C-58, but is providing a word of caution in their application.

In summary, we repeat that the Railway Safety Act is good legislation. It provides protection for the public, and directs the responsibility of managing safe railways through railway officers. Bill C-58 generally enhances the current Railway Safety Act, and the RAC supports its adoption, with requested consideration to the above mentioned changes and suggestions.

The Chairman: Thank you very much. Before we go to questions, I'd like to compliment and commend the industry and the employees for being the safest in North America. We understand how extreme our conditions are, so it's to everyone's credit that we can be at the top.

Mr. R.H. Ballantyne: It truly is a team effort.

The Chairman: It can't be done without good management or good laws, but it especially can't be done without good employees.

Mr. Mercier.

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[Translation]

Mr. Paul Mercier: Mr. Lowenger, you are rightly concerned about safety at level crossings. It seems in most of the European states, this problem has been resolved by having gates that are raised and lowered at nearly all level crossings, except on roads where traffic is much lighter. Here in North America these gates are quite rare. Would their presence not resolve the problem of safety? Are they felt to be too expensive?

[English]

Mr. Mike Lowenger: It's partially a cost issue, but the reality is that 50% of our accidents at grade crossings happen at these kinds of crossings.

We have to understand the dynamics of the European transportation network are mostly focused on passengers. Here we are, for the most part, a freight-operated railway. There are different speeds and different issues.

Mr. R.H. Ballantyne: I have some further comments.

There are about 23,000 public crossings, and probably about an equal number of private and farm crossings in Canada. As Mike points out, much of the situation in North America is different from that in Europe. Among other things is the density of population. A lot of the railway lines in Canada do run through very sparsely populated areas of the country. The policy is enshrined in federal railway law that it's not a requirement to have barriers at every crossing. It really is based on the issue of cost-effectiveness.

The Chairman: Anyone else? Mr. Bailey.

Mr. Roy Bailey: The number of railway crossings in Canada is going to go down by thousands in a few years, which will take away some of the safety features. My concern has always been that... Somebody mentioned earlier this morning comparing northwestern Ontario, where winding in and out is a safety feature. It always amazed me that on the prairies, where you can see a mile from each side, you can see the train, we still have accidents in broad daylight. I'm not too sure whether... No, you couldn't. I counted the number of crossings on the branch line they lived on; there are only about 136 of them. So you would see the idea of putting up 136 units is totally out of the...

There is a problem you have in the wide-open spaces. It isn't limited just to those areas that... And nobody's ever addressed that because they don't know the answer.

Mr. R.H. Ballantyne: I think that's quite right. There have been a lot of studies done looking at the psychology of driver behaviour. Certainly there have been times, for example, when the level-crossing accidents in Saskatchewan in the daytime seem to be somewhat out of proportion to other parts of the country, which makes one wonder.

Mr. Mike Lowenger: I'd just like to follow up on that point about Saskatchewan, having worked there for ten years and having done a little bit of work on crossing safety there. You mentioned broad daylight, but there are many accidents that occur in the prairies at night. A lot of cars actually run into the side of the train. It just doesn't show up well. The Saskatchewan Association of Rural Municipalities and the railways are looking at a program to reflectorize the backs of crossbucks on some of our main lines where there's high-density interface, where the lights of the cars will reflect back on the crossing posts. You'll be able to get a flicker effect when the train is occupying the crossing, so you'll see there's something occupying the crossing. We think that will help. It has been done in some of the states in the United States and it has worked.

The Chairman: Mr. Dromisky.

Mr. Stan Dromisky: Do all the railway companies belong to this railway association?

Mr. R.H. Ballantyne: Yes. There tends to be some lag in terms of when they join from the time they're created. Mike made the point that they're being created at the rate of about one a month. We haven't had any of the new railway companies refuse to join, so essentially all railway companies either are members or we anticipate that they will be members within the near future.

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Mr. Stan Dromisky: Do you, as president and vice-president, know what access you have regarding the information they possess, and whether or not they share it with the association? Do we have any idea, for railway companies in general—I know you have to give me a ballpark figure—what percentage of their budgets are spent on safety in general, for example on workshops, training their employees, and everything you can think of that could be put under that heading of safety?

Mr. R.H. Ballantyne: I personally can't answer that question. Canadian National and Canadian Pacific spend substantial amounts of money. Their representatives are here in the room today. It's probably measured in millions. Mike's been a little closer to that. He may something he wants to add.

Mr. Mike Lowenger: Well, a little over a month ago I was a Canadian National Railway employee and I worked in the safety and regulatory group. I can give you one number as a round figure. I know that Canadian National, as an example, spends about $50 million a year just on training, aside from all its other programs.

I know the major railways are helping to make a lot of these training programs available to some of the smaller roads, because they are now becoming more important partners. So that's just one area of safety, and most training is safety related.

The Chairman: Mr. Morrison.

Mr. Lee Morrison: I'm glad you brought up that question of reflector marking on cars, Mr. Lowenger. It's my understanding this has been going on intermittently for about 30 years, but out my way you sure don't see an awful lot of signs of it.

I had a neighbour who hit a train broadside just a few weeks ago. It was on a road the neighbour was familiar with—they had crossed that crossing lots of times—but they just could not see that train. The last time I drove alongside a train on the main line, I was on the highway watching the train and counting the reflectorized cars. Actually fewer than half of the cars on that train were reflectorized, and there were gaps of almost a quarter of a mile where not one car was flagged.

I'm not asking a question. I guess I'm sending a message. For God's sake, this is a very cheap, effective way of contributing to public safety, and I think it's incumbent upon the railways to get going on that.

Mr. Mike Lowenger: I won't disagree with your comment about railway cars, although my comment was more about the reflectorization of the crossbuck posts that mark the crossing as such. But I agree, those are two elements. There are many ways to identify the crossing, such as lighting, better reflectorization, and improved reflectorization of the car equipment.

Mr. R.H. Ballantyne: I'll just add that the issue of freight car reflectorization is something that's been around the industry and with Transport Canada off and on for some decades now. One of the problems is that freight cars move all over North America, and at any point in time we have some thousands of U.S. cars on Canadian lines that may or may not have a requirement to have the reflectorized markings on them. So in that instance, you can get situations where you'll get groups of cars from other jurisdictions that aren't required to have the reflectorized markings.

The Chairman: Thank you.

Ms. Desjarlais.

Ms. Bev Desjarlais: Following with that would lead to my point that the rules that apply in Canada would have to be applied to any cars that would come in and be used on the rail lines. I don't think the rail lines are suffering so much that this kind of system can't be put in place.

I was actually going to get clarification from you when you mentioned it being on the posts, because I am from the Saskatchewan prairies and I get back there often, and I have to admit, I don't see a whole lot of those. It's exactly what Mr. Morrison says. There are numerous times when you wouldn't know if a train was coming. It just wouldn't be possible to see it; nothing would reflect. Even driving down the highway with the rail line right beside it, there are times you don't know the train is there until you see the lights and they look like they're coming right at you.

So I think a lot of things that should have been happening aren't happening, and maybe a rules-based system isn't working within the industry. Maybe there needs to be some regulation in this area to ensure it is happening. What I'm seeing is a relatively inexpensive method of saving a number of lives, and it just isn't happening.

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We all know what it's like to be driving down the road and to see see an animal in the headlights. On the prairies you watch the ditches to see if something is going to run across the road. You wait for the whites of their eyes, so to speak. However, when they're running across the road in front of you, they don't have reflectors. The deer have a reason not to have reflectors. The trains don't. So maybe the regulation needs to be in place.

Mr. R.H. Ballantyne: I'd like to make some comments on that. First of all, every public crossing in Canada has a reflectorized crossbuck. It is the law, and they all have that. So anybody approaching any public crossing in Canada will see a reflectorized sign up there, the normal crossbuck. So there is no reason any driver should not see some reflectorized thing when he approaches a crossing.

The point Mike was trying to make is that we are looking at what we think is a better approach to this than having reflectorized decals on freight cars, which are subject to dirt and a whole lot of other things, and that is to reflectorize the back of the post. There is a crossbuck on each side of the crossing, so if you reflectorize the back of each post, then as the train goes by, there's a space in between each freight car, and you'll get a kind of flashing effect. We think that's a better approach to it than reflectorizing the freight cars, for all the reasons I've just said, including that there are a lot of different jurisdictions in North America that have to deal with this issue.

The Chairman: That's a good point. Thank you.

Mr. Bailey.

Mr. Roy Bailey: Thank you.

I brought that point up some time ago, and I wish you would get on with that. I even tried just a small one out to see the effect, and it works. As mentioned by my two colleagues who spoke before me, this is the cheapest safety thing you can do. But it involves two things: one, it has to be continental because of the switching of cars; and two, some onus has to be placed on the users. You watch a unit train of coal go out, and if there's a little bit of dampness, it can go right to its destination and no light is going to come through, and they have no responsibility to clear that reflector. It's the same with the loading of grain. The grain dust is raining, and it also may never get off of there until it reaches the seaport.

So if we took those two things and together with your counterparts in the U.S. said, this is what's going to happen, we'll put reflectors on all cars, then the user of those cars has some responsibility to clear that before that unit goes out. There would not be very much time involved.

Mr. R.H. Ballantyne: We think reflectorizing the back of the post at the crossbucks is better. Dirt on freight cars is a reality, as it is with any vehicle, such as your private automobile or trucks, and that would have to be dealt with. It would probably be dealt with in different ways in different jurisdictions across North America. So those are some of the practical problems.

The only other comment I should make is that under the NAFTA process it was agreed recently that we would set up a government and industry group involving the three NAFTA countries to look at some of the freight car safety appliance issues so that we can bring some standardization to freight-car safety devices across North America.

Mr. Mike Lowenger: I just want to add one more point. Like any other good idea, especially when it involves public safety and roads and rails together, there's more than one player on these issues. There's the railway, but there are also the road authorities, the provincial highways, and so on. You just can't slap these things up and change the whole nature of how these things are negotiated. It's a partnership. You have to work with these groups, and you have to get their commitment on this as well. That's why some of these things don't work perhaps as quickly as we'd all like. I just want to remind everybody that it's not a unilateral decision to do these things. There's more than one player. It's the same thing with international regulations and so on. We could always use the help of our governments in these NAFTA-type issues when it comes to standardizing.

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The Chairman: I can relate to the problem of having clean reflectors. I regularly drive to Sudbury, and there are times when I have to stop three times to clean my headlights. You can have them clean, and then in ten minutes you won't be able to see them.

The back post is a good point.

Thank you very much, colleagues, and thank you very much, gentlemen.

I now invite the Brotherhood of Maintenance of Way Employees, Mr. Gary Housch, vice-president. I hope I pronounced that close to what it should be.

Mr. Gary D. Housch (Vice-President, Brotherhood of Maintenance of Way Employees): Thank you, Mr. Chairman. I know we're running late, so I'll try to be as brief as I possibly can.

The Chairman: Sir, you have the full half-hour. You're entitled to your time.

Mr. Gary Housch: Honourable members, it's indeed a pleasure to be here to put across our ideas on this very important legislation.

The BMWE represents about 10,000 members in Canada who are responsible for repairing and maintaining the buildings and bridges of the infrastructure on virtually every major railway in North America. This summer, along with the Brotherhood of Locomotive Engineers, we signed an alliance with STFRM, which is the Mexican Railroad Workers Union, to cooperate on endeavours that are indeed NAFTA issues.

Our members habitually work around a pretty dangerous environment where thundering locomotives are pretty much a part of their life and their everyday workplace. It demands, and it is critical, that each and every one of those members be responsible for safety and maintain a constant outlook for safety. We feel it's important that with that requirement to work in such an environment, a neutral supervisory function of government needs to be involved. We are not necessarily opposed to the idea of deregulation, but we think the government needs to have an oversight role in the whole issue. I think that's an important aspect of the bill with regard to the safety management system that is being entertained.

We feel that we have a thorough knowledge of our portion of the industry, and we are well aware of the environment and conditions our members work in and what's required of them today. We do applaud the aim of proposed paragraph 3(b) of the bill where it states “encourage the collaboration and participation of interested parties in improving railway safety”. We feel that's a prime goal and that we should maintain that idea as a prime goal of the bill.

We would also like to take a couple of minutes—a couple of seconds, I guess—to applaud the efforts of the minister and indeed Transport Canada on the thorough consultations on this bill that have taken place. I think that's why every presenter here feels comfortable with having only ten minutes to make a presentation.

We have a few concerns about the bill, and I'll go through them briefly and just follow the guidelines of our written submission.

On proposed subsection 7(3), we're concerned that although there is this focus of encouraging collaboration and participation of interested parties, the language “without regard to the references to relevant associations or organizations” has been retained in the act. We feel we have a lot of expertise on railway safety to bring to the table, and we have a vested interest in doing that. However, our experience has been that under this portion of the act, when such orders have been given by the minister, we have been involved in that process. If that process is to continue, and I assume that's under subsection 19(5), then we don't necessarily have a problem with that language being maintained if it is indeed ministerial and government policy to have relevant associations involved in the promulgation of those rules.

On proposed subsection 19(4.1), we think that if new information is presented by whomever is promulgating the rule and if the relevant organizations and associations are going to be consulted, it would seem reasonable and rational that the relevant organization that was involved in that process should have an opportunity to be involved in that new information. It would seem appropriate to me that if that new information is available, there should be consultation on that new information before it's forwarded to the minister.

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The act is currently considering just sending a copy of the new information to the relevant organization, and we don't think that meets the test of the aim of the act. So we believe proposed subsection 19(4.1) needs to be amended by adding “after reasonable consultation with each relevant association or organization” and removing the second sentence of that proposed subsection.

In section 20, we feel that the act is lacking in one aspect, and we think it's a very important aspect that's missing. As I stated, I think, and in fact I know, our members have a very good experience and bring to the table information valuable to the process. I think that's fair of all of the organizations that have an interest in railway safety. But they're not allowed to formulate rules on their own initiative, and we think that's an area that's lacking in the proposed act and in the current one.

I know the criticism will be that the relevant organizations will formulate rules for self-serving interests. We believe, however, our past performance in regard to consultation doesn't lead one to rationally make that assumption. We bring the skill and experience of thousands of workers whose very life depends on the railway system, and that knowledge should not be discarded because of nothing more than a perception. We believe our participation, as experts in the field—and we say that sincerely—should not only be permitted but should be encouraged.

In view of that, we're proposing that a new subsection 20(5) be added that would read:

(5) Relevant associations or organizations may formulate rules in respect of any matter referred to in subsection 18(1) that is not dealt with by regulation made pursuant to that subsection by forwarding such rules to a railway company. In such circumstances such rules shall be deemed to be a railway initiated rule in the manner provided for in subsection (1).

That does two things. And we've heard a few things about that so far in the discussions today, and I guess that's one of the advantages of being last. We heard some discussions about concerns about CROR rule 14-L and whistles. It would seem appropriate to me that such an issue should be presented for rule-making, but the unions don't have the ability to do that, and I think that's part of the thing that's lacking in this.

CN said the issue has been discussed. If it was a railway issue, it would have gone beyond discussion and rules would have been formulated and something would have been done, and I think that's an important aspect that's missing out of this act.

It's as much a stretch, perhaps, for some people to consider that unions would do this in a proper manner, but I think it was as much a jump for us to assume that railways would try to regulate themselves in a proper manner, too.

Our next concern is subsection 35(1). I don't know that it's a big one, but it's something that jumped out at us, and during the consultations also. The proposed act contains the words “medical examination organized by the railway”, while the current act says “company-sponsored medical examination”. To us, this would appear to have the effect of allowing railway companies to eliminate any costs in this process, which is currently borne by them. We don't see the reason for this amendment, why that would be necessary. We feel that the current language is more appropriate.

We are also concerned about the removal of current subsection 35(6). We feel that it's ill-advised to remove that. Information disclosed by such a person to a third party should remain confidential. We've heard a lot of things from the three railway representatives today, the three associations and companies, regarding protecting their interests under safety management systems, but we haven't heard anything about protecting the interests of an individual in regard to release of information that could be considered confidential, a doctor-client kind of confidential issue.

I think that begs the question in regard to some of the things that have been stated about safety management systems. In our position, it's a pretty big leap of faith in this whole safety management system, because what we're looking at, basically, is this neutral third-party government allowing the railway to look at self-enforcement in regard to regulations.

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If that's going to come about, to say that any issue in that is confidential bothers me. I want to know what's going on, what these railway companies are doing in regard to safety management systems. I think it's important that this kind of information be available to the public. At least as far as we're concerned, we'd like access to that information.

In regard to the short-line issue, I'll make a brief comment on that, too, on something that is again not in the brief. Short lines that are federally regulated fall under federal regulation. They move cars, but whether they move them at ten miles an hour or sixty miles an hour is really an irrelevant issue. They may be railway companies on a smaller scale, but they are still involved in the movement of freight. That being the case, they should be regulated as any other railway is regulated. To make special rules for them seems to me to be fairly ridiculous.

I appreciate the opportunity to raise these few points with you. There are not very many, but we feel they're very important. And I think I really need to emphasize the importance of the consultations that went on. I really want to thank the minister and Transport Canada for their efforts in that regard. They've really moved the process along and have helped us out.

Thank you very much.

The Chairman: Thank you very much.

Mr. Bailey and Ms. Desjarlais.

Mr. Roy Bailey: Thank you, Mr. Chairman.

Earlier, you said you were concerned about your members' own safety. Basically, on the last point that you made, do I gather from what you have said that, as of late, you have had more input into this act that we're studying than you had previously? Did I hear you say that?

Mr. Gary Housch: I hope I'm understanding your question correctly. What I'm trying to say is that the consultations involved with this act have made it very easy for us to determine what was satisfactory and what was unsatisfactory in the act, and where we felt it was lacking. The consultations helped us to understand where the other parties were coming from, too, and gave us some measure of comfort. Without them, our approach on safety management systems would have been completely different from what I put forward today. We are concerned about those systems, but we're not as concerned as we would have been had we not had those consultations.

Mr. Roy Bailey: Thank you.

The Vice-Chairman (Mr. Lee Morrison): Ms. Desjarlais.

Ms. Bev Desjarlais: I'm actually glad that you brought up the issue of the medical examination, because my guts just turned when I read this. Having worked in a hospital for a number of years—I was not a nurse, but I worked in a variety of areas—and having experienced a number of situations related to company-sponsored medicals and company-sponsored doctors who, in my opinion, do not always reflect... Two doctors may not say the same thing.

For instance, I'll use my own situation. I had a dislocated shoulder. I was told by one doctor that I could go back to work in three days, but was told by another doctor that I couldn't go back to work for six weeks. I had a bit of a discussion on it with another regulating body, so to speak, which said I'd have to have their doctor examine me. I then said I wanted to see a specialist, and I asked who their doctor was. They said it was so and so, and I said that was fine because he was my doctor. I was lucky. He was the one who had said it would be six weeks, and I believe I got the best treatment.

I'm always leery when it comes to restrictions placed on any employee when a specific doctor is named, in that they may not be able to obtain necessarily the best treatment or the best examination response. I personally would like to see every individual have the opportunity to have the choice of which doctor they're seeing, and I would hope we can somehow reflect that in this legislation.

In regard to the payment of it, that's another issue altogether. I would suggest that I would like to see the union and the railway groups work that out themselves. Again, I think it's an area that sometimes gets dropped on the medical system, the health care system, in terms of overseeing those costs. I don't necessarily think that should happen.

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In regard to the forwarding of the rules to the company, is it still your impression that consultation would take place between the groups, and that there would be an agreed-upon solution to the rules that were suggested? Or is it a matter of it being a done deal once the rule suggestion is put forth?

Mr. Gary Housch: Can I start with your last question first?

Ms. Bev Desjarlais: Sure.

Mr. Gary Housch: Our position is that in the act today, the railway has the right to promulgate a rule. All we're saying is that organizations that have a concern—such as the whistle concern, for example—should be able to sit down, draft up a rule that they think is appropriate, and forward it to the railway. They should be able to say that this is what they're proposing as a rule. Have a consultative process, and, from that point, treat is as if the railway had promulgated that rule. In effect, what would happen is that you would go through the consultative process, and the two parties would present to the minister something that hopefully they could both agree on. Generally, after consultation, 90% of the issues are agreed upon.

We see it as bringing more expertise into the issue from the workers who are out there every day, who have to worry about whether they're going to blow the whistle or not, for example. That's what we're saying. After the railway has received it, from that point on it would be treated as though the railway itself had promulgated it, so it would go through the process.

In regard to the medical costs, that was the one reason I raised this issue. During consultations, it appeared to me—I won't say the railways stated it directly, but it certainly came across this way—that the railways were looking for the ability to download these costs onto the health care system. I think that thing's stressed enough. Currently, and for many years, people who have been covered under the current General Order Number 0-9 have been covered by the railways for those costs. We don't think that should change, so that was one of the issues we wanted to put forward.

The whole section is fairly onerous, in that if I go to a doctor and am in a safety-critical position, I have to advise that doctor, that doctor has to... As I said, this thing is very onerous, and it's cutting very close to privacy issues. We feel the removal of that one section is really ill-advised. If there is going to be that infringement on a doctor-patient relationship, the information should be confidential. I think that's absolutely critical.

Ms. Bev Desjarlais: I don't have any problem with the confidentiality aspect of it. However, I certainly do see that just as a doctor is obligated under the motor vehicle acts of most provinces, there is a restriction on someone's licence to fill out forms and to do it accordingly. In certain cases, in critical positions, I could see the same thing being in place here. But certainly the information between the doctor and the employee should be considered confidential.

The Chairman: There may be a question that could be asked later in terms of what right the company would have to such information if it doesn't pay for the visit. I leave this with everyone, but whoever pays the fiddler calls the tune. But if you don't pay the fiddler...

Mr. Gary Housch: My point here is that this has been this way for many years. I don't see the rationale for changing it, other than to save the railways some money. I don't think that's what this should be about. It should be about safety.

The Chairman: Should who pays be a matter of legislation or collective agreements?

Mr. Gary Housch: Currently, legislation says “company-sponsored medical”, so the company is paying. Our concern about changing that is who is going to pay. If it's not the health care system, it's going to be the employees, and we're not going to have the ability to bargain that issue before this act is changed.

The Chairman: I understand. That's a good point.

Are there any other questions?

Thank you very much. This completes our consultation process.

For those of you who have appeared for the third time on this bill, if you are called to appear before the Senate, I hope the senators will read the blues. The information provided today especially is complete and very helpful, and I want to thank each and every one of you.

Colleagues, we don't have a quorum, so we will not dispose of the clauses we all agree on. However, I would invite you to identify some clauses that you wish to either question, amend, or even address, and they will be pulled. If you don't give them now, you will have an opportunity to do so again at 3.30.

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I can tell you that at this point government amendments have been identified directly, not through a member. I will caution you that members of the government side may want to pull clauses 20, 23, 26, and 27. I would invite anyone else to identify any other clause you wish to even question, and we can pull it now.

[Translation]

Mr. Mercier, if you would like us to continue our discussions on certain sections or propose amendments, I would like you to indicate the numbers and we will withdraw them now.

Mr. Paul Mercier: The section that I would like to ask questions about and would like to see amended eventually is section 19, which indicates that the Governor-in-Council may prescribe measures for municipalities or provinces...

The Chairman: Section 19 is withdrawn from our discussions.

[English]

Are there any other clauses, anyone?

Ms. Bev Desjarlais: Clause 35.

The Chairman: Clause 35.

Mr. Lee Morrison: Please give us some time to go through our notes.

The Chairman: Yes, that's fine.

Clauses 19 and 35 are being pulled now, and if you even have a question on any other clause, we're going to pull it.

Mr. Lee Morrison: Clause 18.

The Chairman: Clause 18 is pulled.

To be fair to committee members, when we return at 3.30 I will ask you again to identify any clauses that you wish to pull. My first step will be to proceed to agreeing to the remaining clauses. We will then know what work we have left to do. It's an elimination process so that we don't bounce from one to the other.

Ms. Desjarlais.

Ms. Bev Desjarlais: I'm just going by what was in the last report. Did you have subclause 18(1)?

The Chairman: We have that one.

Okay, we'll meet you at 3.30. We can leave everything here, and I thank you very much for a good morning of work.

We are adjourned.