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Good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 49.
Pursuant to the order of reference of Wednesday, December 8, 2010, we are dealing with Bill C-33, an act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.
Joining us here today, from the Urban Transit Authorities, are Mr. Gregory Percy, vice-president, operations, Greater Toronto Transit Authority; and Nancy Fréchette, vice-president, operations, Agence métropolitaine de transport.
Joining us live, via video conference, from Surrey, British Columbia, is Mr. Doug Kelsey, chief operating officer, Greater Vancouver Transportation Authority--TransLink.
Thank you. Good afternoon, everyone. We've reviewed what the process is, so if you would, please open with your comments, and then we'll move to committee questions.
We are urban transit authorities, publicly owned and funded transit regulatory authorities, established under provincial law, with local and regional mandates and accountability. We are committed to safe operations, and our safety records and investments show this.
Bill , as presently written, would impose inappropriate, inefficient, and expensive burdens and risks on urban transit authorities, burdens and risks that cannot be justified or fulfilled, in our view. The three largest UTAs representing commuters in Vancouver, Toronto, and Montreal--a total of more than 65 million riders annually--make this joint submission to this committee to ask that amendments be made to this legislation. We have shared interests and shared challenges, and we all serve the same public: the taxpayer.
In particular, we request that this honourable committee amend the definition of “company” and “local railway company”, which inappropriately but inevitably include UTAs, which already fall under provincial jurisdiction. We also ask that the committee exempt UTAs from the bill's requirement to apply for federal railway operating certificates.
The bill's definition of a local railway company expands the application and provisions regarding rules and all the proposed administrative and other compliance and filing measures in the Railway Safety Act. In our view, this is unjustified. Parliament has already acknowledged that the UTAs have a distinct and unique public nature. UTAs fall under provincial jurisdiction; each is subject to the special provincial legislation that created them and gives them authority.
We are governed by boards of directors that oversee and are responsible for the professional management of our commuters and other integrated operations. We are already subject to rigorous special checks and balances and taxpayer demands and public scrutiny, which differentiates us from commercial freight operators. UTAs are already publicly accountable, committed to safety, and committed to serving local taxpayers.
We encourage you to question the authority of Parliament to enact laws that impose new obligations and liabilities on provincial entities that are already responsible and accountable. You must question a bill that extends the reach of the federal minister to regulate and certify a provincial urban transit authority and to affect its local public mandate.
None of the urban transit authorities in Canada own all of their own railway lines. They operate on federally regulated host lines, which are owned by federally regulated railway companies. The UTAs enter into contracts with those same host companies to ensure the safe management of the railway. These agreements require the UTAs to undertake extensive and onerous responsibilities and to incur substantial liabilities for their passenger operations. These include the acquisition of insurance coverage, as required by the host railways, which agree to maintain their lines in conformity with existing federal laws and prevailing standards. In exchange, the host must offer a safe railway upon which to operate.
UTAs have no authority over the host railway to inspect or audit them. We cannot manage their infrastructure or staff or contractors. We cannot hold the host accountable if the host departs from required federal standards. It makes no sense, therefore, to require UTAs to be accountable for their hosts' actions as part of a federal certification requirement or as an extension of federal regulatory oversight.
Safety is at the heart of this legislation, and it's important to put on the record that TransLink, Metrolinx's Go Transit, and Agence métropolitaine de transport have operated and continue to operate among the safest railway operations in Canada. It cannot be said that Bill was introduced because of any safety concerns about passenger trains operated by UTAs in Canada. Transport Canada's representatives must concede and have in this committee conceded this.
The report of the rail safety review panel identified no pressing regulatory issue or concern in relation to UTAs. It did not find any need or justification for making a legislative change to sweep us unnecessarily under federal oversight, which would duplicate existing provisions and processes, would be neither flexible nor efficient, and would not really add to safety.
Bill is in error in attempting to hold provincial UTAs and their senior officers accountable for what they themselves cannot reasonably control or direct on the lines of federal railways.
The bill also contemplates extensive new obligations to keep and preserve records in order to comply with the federal minister's demand for information. This is another onerous, expensive, and totally unnecessary requirement to which UTAs should not be required to submit. We already have reporting and documentary obligations to our constituting authorities. Here again, Bill C-33 proposes another onerous, expensive, and totally unnecessary burden on UTAs.
All of these proposals in Bill represent considerable costs for UTAs. Unlike commercial freight railways, UTAs, by their very nature, have no means to recover all of their costs. Additional expenses caused by unnecessary and burdensome requirements will ultimately mean that either taxpayer and commuter support of UTAs will increase, or that necessary growth in urban transit will be constrained, or that service to the public will be reduced, all because of an unnecessarily broad definition of "company" or "local railway company".
For all these reasons, we, the urban transit authorities of Vancouver, Toronto, and Montreal, ask this honourable committee to amend the provisions in Bill to exempt urban transit authorities, already recognized and federally defined, from the scope and application of the bill. In particular, exempt UTAs from the newly defined terms "company" and "local railway company" and from the requirement to apply and qualify for a federal railway operating certificate.
We thank you for this opportunity to make these submissions. I'd be pleased to entertain any questions.
In fact, I wish to state that AMT is already in compliance with the Railway Safety Act through the contractual agreements that we already have with the railway companies. The railway companies are required to respect the Railway Safety Act regulations.
We must remember that the Act aims, first and foremost, to regulate the safety of those railways that fall under the jurisdiction of the federal government as well as those belonging to host railways, such as CP and CN. These railway companies impose upon AMT consequential requirements, for example in the area of costs, in order, precisely, to respect all of these regulations.
Furthermore, this bill appears to us to be impracticable given that CP and CN will not allow us to interfere in their internal management, which is very important to mention. Also, AMT has no authority to impose anything on either CP or CN.
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I'm of the belief, as others have already commented, that, again, it's not required. I think we've all tried to approach our business as if the taxpayer were sitting in the room with us as we conduct our business. What is reasonable and appropriate? Looking at this legislation, very clearly, in the definition of an “urban transit authority”, if I look in Vancouver, by our own provincial legislation we also have responsibility for roads, for bridges. Even at the commuter rail, we have parking lots. We have all kinds of technical things that I think are even beyond the contemplation of what the definition of UTA might be within this legislation.
I think also, specifically, that you also do not want multiple regulators, whether provincial or federal, dealing with somewhat similar interfacing responsibilities. I think what's really important here is we do not want to harm our relationship with the class one railways. It's very important in an operating sense. And we're quite comfortable through and with Transport Canada to continue this relationship. To Mr. Percy's comments earlier, I think we're all very proud of our leadership relationship with Transport Canada, and we really want that to continue, but it doesn't mean you need regulation to accomplish this.
In my mind, legislation should be indicative, in the case of urban transit authorities, that all other avenues have been exhausted. And I would suggest MOUs have not been attempted, other practices have not.... If there are things that are missing, we should absolutely further that conversation, but legislation, in my mind, as it relates to us, should be absolutely a last and needed option. So I'm very supportive of the positions of both Ms. Fréchette and Mr. Percy.
Mr. Roger Gaudet: Merci, monsieur.
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I might add that, in Quebec, we have the Act to Ensure Safety in Guided Land Transport, that covers the entire territory of the province. As far as provincial jurisdictional issues are concerned, we are regulated by the province.
With regard to best practices, that Mr. Percy spoke of, we set benchmarks, if I may use the term, based on the best that exists in the world. Furthermore, we belong to the APTA, the American Public Transportation Association, and we work with the UTP in Europe so as to ensure that we have the best practices.
Within the territory of the province, on those railways belonging to railway companies, it really is the federal regulation that applies, and the companies are responsible for enforcing it. For our part, within our contractual arrangements, we ensure that they respect federal legislation. One of the differences resides in the fact that we are to ensure that those authorities responsible for the railways respect this regulation. That is where we find that an additional responsibility, that does not fall under our jurisdiction, is imposed, given that this is also interference. Furthermore, it adds considerable costs for the transportation agencies. In the end, it is the taxpayer who pays for these costs.
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When we use federal railways, we have contractual agreements with the railway companies that require them to respect the Railway Safety Act Regulations. Therefore, based upon what we pay, we are certainly financing a portion of these tasks that serve to ensure that the railway companies are abiding by the regulations. If we are to carry out the same verification work, we will be responsible and accountable, as is presently set out in the bill.
This would mean that there would be an overlap between the management infrastructures. Unfortunately, such infrastructures come with a cost. Given that we are not a for-profit undertaking, a private enterprise, but a publicly-owned corporation, it is taxpayers who will be forced to pay for all of this.
There is also the matter of the value added through this. The act fulfils an objective. This objective will not be met if agencies like ours are included, because we achieve good results in the area of safety. We have a provincial act regarding railway safety. As for the federal laws we fall under, we respect them through contracts. This requirement would therefore be very costly.
You talked about the railway operator certificate, but the requirements pertaining to it are not defined. You mentioned that there might be consultations. As Mr. Kelsey stated, we would have liked there to have been consultations pertaining to Bill , but there were none. Therefore, there is legislation and there are intentions, and we are going to work on what has been proposed.
Thank you, witnesses, for appearing today. I appreciate that.
I was quite concerned by something that was mentioned earlier. One of the cornerstones of this government's position on bills is to consult widely with the public. I was very concerned by your comments earlier that they didn't consult with any of you. So I immediately talked to the department officials who are here, and they indicated to me particularly the 15 public consultations that were advertised on the Internet and by newspaper around the country: in Ottawa, Montreal, Huntsville, Calgary, Edmonton, Ottawa, Vancouver, Kamloops, Prince George, Saskatoon, Regina, Winnipeg, Montreal, Quebec City, Ottawa, Moncton, St. John, Dartmouth, Halifax. It goes on and on and on about the consultations and the public meetings.
I understood they received 180 written submissions and more than 70 presentations. In fact on March 11, I think AmeriRail and Agence métropolitaine de transport actually appeared at this particular site visit, and again GO Transit in Toronto appeared August 5.
I just want to make sure for the record that people understand that there were public consultations throughout the country, and many of them, and they asked for written submissions.
Now, my question to you would be why you didn't make any presentations or written submissions if indeed you feel that strongly about it, so that we're not here learning about this today instead of some months ago, when the department was drafting that. That would be my question.
Bluntly, I don't want an answer on it, because I don't think it's important. It just tells me frankly that you're complaining about something that, in my mind, you're already required to comply with on federal tracks through a third party, and you don't want to comply with it for whatever reason. I don't really understand, and I would like to know what the costs are that you say you can't comply with because it's too onerous.
I don't understand why we're here today talking about this in this position. We have many high-profile accidents and derailments that have happened across this country, which brings us to this point today and many moves by the ministers to make rail safer. You carry the most precious cargo in the country and you're asking to be exempted from federal regulations because you are already safe. The most precious cargo in the country is passengers, and I don't understand why you wouldn't want that.
You mentioned earlier that it was an extra layer. I don't usually make speeches; at least I try not to. I just want to ask you if you have any problems with the objectives of the act, because the act says:
(a) promote and provide for the safety and security of the public and personnel, and the protection of property and the environment, in railway operations;
Do you have any problem with that?
I welcome the opportunity to be here. With me is Michael Teeter, who is my technical advisor.
The Union of Canadian Transportation Employees is the national union for rail, aviation, marine, and road safety inspectors. All of our inspector members are Transport Canada and Transportation Safety Board employees.
For the past four years UCTE has been making the case to Transport Canada, to SCOTIC, and to other interested parties that as we increasingly move into a safety management system world, we require, to as great an extent as possible, a consistent set of principles that will apply for all modes of transport. We need this so everyone can better understand that the idea of having transport companies managing safety is a good thing and not a bad thing. A public understanding and confidence in the transportation safety system is critical for all modes of transportation, and especially for rail, given the rail safety performance over the last years.
The UCTE prescription for an enhanced public confidence in transportation safety as we increasingly move towards SMS involves the following principles:
In all transportation safety statutes, the government and the Minister of Transport are legally responsible, and this responsibility does not leave despite the delegation powers in transportation statutes. Therefore, any ministerial delegations should be very carefully applied, and they should be applied with considerable restraint.
We recommend that only fully trained government inspectors should be responsible for legislative and regulatory compliance and oversight. This inspection and compliance layer should be present and required in all SMS statutes.
Any delegation to non-government workers and organizations should be governed by a conflict of interest provision. Conflicts and perceived conflicts should never exist. Inspectors who are responsible for SMS certification and SMS operations should be different from those who are responsible for regulatory compliance and oversight.
There should be clear whistleblower protections and provisions for reporting to third parties, in all transportation safety statutes. These protections should also apply and be available to the government inspectorate.
The transportation statutes, including Bill , should require the regulator to maintain the highest level of safety. This level should be clearly and unambiguously defined in either legislation or regulations, or both.
I will say that UCTE has an excellent relationship with Luc Bourdon, director general, and with his staff at rail safety. We support Bill in principle, and like the other unions you have had before you, we do have some specific suggestions for change.
Let's face it, rail is a bit different from aviation or marine; there are fewer operators. SMS is not being certified and then handed off to the private sector. SMS is being implemented with regulations approved by the Governor in Council. The delegations in Bill are much more restrained than they are with either aviation or marine.
On balance, we are much more pleased with the rail safety regime than we are with either aviation or marine. We do have some amendments to propose, and comments on each.
We recommend that railway safety inspectors, enforcement officers, and screening officers be federal employees, with appropriate certifications and training. It is not explicit in the bill that these positions be government positions.
While there is a requirement that government inspectors be responsible for the oversight of federal-provincial agreements, there is no such clarification for the three positions specified in the bill. The bill seems to imply that the minister could delegate these powers to any individual. We would recommend that the statute specify that the people in these positions be government employees.
We should put these delegation and responsibility issues in context. Look what is happening in aviation and marine.
A recent B.C. Supreme Court decision has extended Transport Canada liability to the delegation of ministerial authority to a private contractor who was certifying the airworthiness of aircraft. Leaving aside the issue of the performance of that contractor, the contractor appeared to be in a clear conflict of interest, and people lost their lives because of it. We should never allow this to happen.
In the last year, on the basis of interventions by UCTE and others and a number of reports of the Transportation Safety Board, the Minister of Transport removed the ministerial delegations for the Canadian Business Aviation Association. Again, leaving aside the performance of the association, how could a trade association possibly be effective at the regulatory oversight and compliance of its own members?
We have a similar problem developing in marine, where there are proposals to delegate ministerial powers to organizations that are suppliers to the very companies they would be responsible to regulate. How could this possibly work in real life? We should never allow these same situations to arise with rail, even if that is not the government's intent at the time legislation is introduced and passed. When statutory delegations are not restrained, there is a tendency for regulators to broadly delegate in the interests of cost savings. We believe this is wrong and is not supported by the will of Parliament or the interests of the travelling public.
If Bill C-33 requires that the inspection positions be government employees, then this problem cannot exist.
We require a definition and standard for "highest level of safety", and make the system responsible to meet this standard.
We are very pleased that the bill makes reference to highest level of safety in proposed paragraph 47.1(1)(a). The reference is to risk management analysis and remedial actions only. Unfortunately, the term is not defined, nor does it apply across the board. We think it needs to, in the same manner and phrase as was proposed in the SCOTIC-amended Aeronautics Act that died on the order paper two elections ago. Simply make the whole railway safety system accountable to the "highest level of safety" and require that this be defined in the accompanying regulations.
We require third-party whistleblower protections.
The U.S. experience and whistleblower remedies are ones that we should all study. The United States aviation safety statute provides for an independent office for whistleblowers, both government inspectors and private sector employees. The fact is that even government inspectors are concerned about punitive actions that can be taken by government and private sector management, should those inspectors take a hard line against an operator. With today's fast-paced world, the pressures to operate quickly and on time are so great that many safety infractions can be overlooked for fear of the extra costs and reprisals associated with safety enforcement. We recommend that you put out the compliant process to a third party that is completely independent of commercial and political pressures.
Like the teamsters who appeared before you on February 10, we support the appeal to the SCOTIC provision that was inserted into the Aeronautics Act. We also support the explicit reference to the Canada Labour Code in the statute. We would also like to see these provisions added here.
In conclusion, like our brothers and sisters in other unions, we do not want this bill to die on the order paper and not be reintroduced. We need to give Transport Canada's rail safety program the tools this bill gives them to do their job better. We are not asking for significant and difficult changes to the bill. You could do these changes and still get this bill through the House and Senate quickly. We sincerely hope you will do this.
Thank you.
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Thank you, Mr. Chairman.
To begin, I will give you time to appreciate the great job our interpreters are doing.
I fully share your view that inspectors should be federal government employees. There must be a shared view about security matters and also there should be no room at all for conflicts of interest.
Earlier, Mr. Kelsey, from TransLink in Vancouver, as well as Ms. Fréchette, from the Agence métropolitaine de transport, and Mr. Percy, from the Greater Toronto Transit Authority, seemed to be saying that this bill is rather unnecessary. If I look at the situation in Montreal, which I know somewhat better, 90% of all routes belong to CN or CP. They are therefore under federal jurisdiction. These two railways have to comply with provincial security standards, with provincial regulations which ensure proper enforcement of security standards. Indeed, no serious or even minor accidents have been reported by the board.
These witnesses say that the bill is unnecessary because rules are already in place within their organizations and at the provincial level. This raises a quasi constitutional issue insofar as the bill creates an interference with provincial jurisdiction.
They tell us that if we impose regulations on them, they will have to tell CN and CP what to do. But CN and CP may not want to take orders from these organizations or have them interfere in their business. So these witnesses are saying that things are fine as they stand, that we should let them be, but that some other measures should be taken in the area of safety.
For example, your suggestions about whistleblowing and the requirement that inspectors be government employees seem very legitimate to me. But what do you think about the views of these three organizations that appeared earlier before us? I would like to hear the opinion of the two unions represented by Ms. Collins and Mr. Piché.
I'm sensing that the amendment is acceptable, but we do need to vote on it.
(Amendment agreed to)
(Motion as amended agreed to) [See Minutes of Proceedings]
The Chair: That takes care of one order of business.
We do have some committee business with regard to motions.
I will advise the committee that because of the timeframe, any amendments to Bill that anyone is interested in proposing, either as an individual or as a political party, must be submitted to the clerk of the committee 48 hours prior to the clause-by-clause consideration. I'm suggesting that day would be the Thursday before, to give our staff two working days to deal with the amendments.
Is everybody comfortable with that?
I actually need a motion on that, just to have it on the record. Can I have a mover on that?
This is with regard to some business arising out of the meeting on February 15. I had stated an interest in a study or a review of the statutory and operational framework of Marine Atlantic Incorporated, which is a federal crown corporation. At the time, the parliamentary secretary volunteered that requests for either information or documents made by any member of the committee, including me, regarding the issue would be welcomed and would be handled by the minister and the department and the crown corporation with urgent priority.
The parliamentary secretary seemed to suggest that the department would be so anxious to fulfill the request for a number of reasons, but in particular that by so fulfilling the request my concerns and curiosities would be satisfied that the corporation was being well managed, and there was no need for any further study.
So what I'd like to do, because I raised this issue at committee, is let my fellow committee members know the following.
Brian, I'll be presenting you with a letter that I'd like you to convey to the minister's department and to Marine Atlantic Incorporated. It's a fairly extensive list of information that I'm requesting, but it should be fairly easy to compile.
Rather than communicate that information to the committee at large, I had discussions with members of the Bloc Québécois, and because of the translation requirements, I think it would be agreed and fair that if you just conveyed that information to me, it would be a private communication between the minister's office and me. I would be prepared to share that information with any member who so desired.
If I can get that information quickly, then I won't be presenting a motion before the committee to pursue the issue of Marine Atlantic further. If I can't get that information quickly, then I will indeed pursue the matter with a formal motion.