[Recorded by Electronic Apparatus]
Wednesday, September 25, 1996
.1632 
[English]
The Chairman: I believe the requisite quorum is present.
Mr. Gouk, do you have a comment before we begin?
Mr. Gouk (Kootenay West - Revelstoke): Just for the record, when I expressed some concern yesterday about not getting the briefing books, I was assured they were delivered on Monday. I received them in my office this afternoon.
The Chairman: I'm informed, Mr. Gouk, this is the second set that has been sent to your office.
Mr. Gouk: Well, I'd like to know what happened to the first set, because they were not received in my office.
The Chairman: As would we all, Mr. Gouk. We will institute a search.
[Translation]
Mr. Crête.
Mr. Crête (Kamouraska - Rivière-du-Loup): I won't hold up the proceedings, but we have to consider our agenda for the next few days since we haven't voted to refer this matter to a committee. What happens if the opportunity to travel arises next week?
[English]
The Chairman: Well, I think -
[Translation]
Mr. Crête: We could discuss this either right away or after the meeting.
[English]
The Chairman: I'm going to assume I understood most of that thanks to your assistance and suggest we meet right after. Let's hear the witnesses, let them go and not keep them waiting, and then we'll sit and have a chat.
Mr. Crête: We have a vote at 5:30.
The Chairman: We have a vote at 5:30. Well, we're scheduled to sit until 6:30 today, so we'll probably have to come back to hear further witnesses in any event. But we should not adjourn this meeting until we've resolved this issue of the travel. Okay?
I'm informed that we will be interrupted for a vote. We have witnesses appearing right through until 6:30. So if we're interrupted for a vote at 5:30, I would ask that we go over, vote and return so we can finish with the witnesses who have travelled to appear before us. Then we'll take a few minutes to deal with the issue of our agenda for tomorrow and the next two weeks.
Yes, Mr. Gouk.
Mr. Gouk: Mr. Chairman, in the previous committee structure before you took the chair, I think the former chairman was instrumental in supplying us with pizza. Now, I'm sure you want to at least equal him, if not top him.
The Chairman: Well, Mr. Gouk, I appreciate that bit of advice. The former chair was much more adept at these things than I. But perhaps you and I could undertake this.
Let's get on with our -
Mr. Gouk: I acknowledge that you're calling on the Reform Party for help.
The Chairman: I note Mr. Mercier from the Bloc has expressed interest in the pizza, so we'll perhaps put this on the agenda for later.
Today we are dealing with Bill C-43, an act to amend the Railway Safety Act. From the Federation of Canadian Municipalities we have Mr. McGregor and Mr. Hopcroft.
The floor is yours, gentlemen. You have half an hour. I would ask that you restrain your remarks to give time for interaction. The members are quite interested in this piece of legislation, and I'm sure we'll have questions.
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Mr. Grant Hopcroft (Chairperson, Standing Committee on National Transportation and Communications, Federation of Canadian Municipalities): Thank you very much,Mr. Chairman. I'll try to keep my remarks to under 10 minutes.
We'd like to start by thanking you for providing FCM with the opportunity to appear before you today on Bill C-43. Along with my chairing responsibilities, I am deputy mayor of the City of London. I'm joined today by Dan McGregor, FCM's senior policy analyst responsible for surface transportation.
Our intent today is to register our support for certain provisions of Bill C-43 and to signal concerns with other sections this committee might be in a position to address. We will keep our comments as brief as possible.
The first issue, in the interests of safety, is that municipal governments generally ensure, at their expense, that their road allowances in the vicinity of railway crossings are clear of unnecessary objects - trees, bushes, parked vehicles - that could obstruct sight lines to a crossing.
Subclause 19(2) of the bill is a new provision, giving road authorities the power to enter land adjoining a railway line to cut down trees or brush to ensure clear sight lines. FCM supports this measure, because in some instances municipalities may be able to carry out needed work sooner than the railway. However, to ensure safety and avoid disputes between road authorities and railways, the responsibility for clearing sight lines must continue to rest with the railways. This was the intent of both the working group, which defined the principles contained in the bill, and former Transport Minister Young, as confirmed to FCM by letter last fall. However, this important distinction does not appear in the bill's wording.
We urge the committee to correct this omission and make clear that the responsibility for clearing sight lines outside of the municipal road allowance still rests with the railways. In the interests of fairness, we also recommend that the act requires the road authority to notify the railway that it intends to undertake a given work on its behalf if the specified work is not carried out by the railway within a set period of time.
I would like to deal with the compensation for work undertaken. While FCM supports giving road authorities the power to enter adjoining lands to clear sight lines in the interests of safety, this cooperation should not come at the expense of municipal taxpayers. Subclause 19(2) should make clear that railways will compensate road authorities for work undertaken on their behalf outside of the road allowance. It should not be the intention of the Government of Canada to transfer private sector railway costs onto municipal taxpayers.
Subclause 19(3) includes a new provision making road authorities liable for any loss suffered by an owner, lessee or occupier of adjoining land occurring during the clearing of sight lines near crossings. As I have explained, it was the intent of the working group and the minister that the ultimate responsibility for clearing sight lines should rest solely with the railways. Given this, we believe it's unfair to transfer contingent liabilities associated with the clearing of sight lines to taxpayers.
Further, it's not clear from subclause 19(3) whether the railway would be allowed to attribute a portion of its damage costs to a municipal government, even when the damage is caused by the railway itself. As written, this clause might lead to numerous disputes over the apportionment of compensation claims. Disputes, including those involving relatively small claims, would have to be settled by the CTA at public expense. Such an outcome would be contrary to our goals of reducing public sector expenses and eliminating red tape.
We recommend that the second reference to road authorities in subclause 19(3) be deleted to make clear that the railway is responsible for all damage costs. Damage caused as a result of gross negligence on the part of the municipality would be the exception.
On the issue of closure of grade crossings and prohibition of new crossing construction, clause 4 of the bill would provide the minister with the power to prohibit new crossing construction. Clause 18 would provide the minister with the power to prohibit or limit certain types of crossings by certain types of vehicles and to require closure or consolidation of existing crossings.
We have concerns respecting this amendment. First, we wish to avoid a situation whereby the threat of crossing closure may be used by railways and the federal government to coerce municipal governments into paying for upgrades to crossing protection that they believe are unnecessary and for which they are not responsible.
Second, the closure of a crossing may have a drastic social and economic impact on any community, as it may effectively be cut in half. The movement of goods, services and people may be severely impeded, hurting the competitiveness of local business and industry.
Third, crossing closure may increase the emergency response times for law enforcement, fire protection and ambulance services, putting lives and property at risk. The closure of a crossing or prohibition of new construction can have a major impact on municipalities, businesses and industry.
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These are not decisions that should be taken lightly by the government. If these amendments are accepted we urge that the act require affected governments to be consulted by Transport Canada before such decisions are made and that municipal governments have recourse to appeal any such decision to an appropriate independent body.
If the proposed power to prohibit or limit the use of certain types of crossing is accepted, we recommend that the act bestow upon the minister the same power in respect of rail traffic. Restricting the kind of rail freight traffic and the time at which it moves through a crossing may be as effective of means of ensuring safety as restricting vehicular traffic is.
We believe it's only fair to municipalities, motorists, and businesses that rely on trucking that both options be available to the minister.
The final matter we would like to touch upon is train-whistling. As the level of government closest to the people, municipal leaders are reminded frequently of the dislocation and disturbance caused by the use of train whistles at night. Municipal governments are the first place citizens turn to for help when faced with intrusive noise and disruption. Consequently, FCM and its members have long pressed Transport Canada and the railways for a satisfactory resolution to this problem.
Since the coming into force of the Railway Safety Act in 1989, municipal governments have expressed two concerns respecting the federal framework governing the cessation of whistling at crossings.
First, there was no longer a legal mechanism to require a railway to cease whistling even where crossing protection conforms with Transport Canada's guidelines for cessation of whistling, and the municipal government has enacted an anti-whistling by-law.
Second, there is no consistency on the part of railways regarding whether they require municipal governments to share in costs of liability insurance before they are prepared to cease whistling, nor is there a route of appeal for governments at the municipal level unable to come to an acceptable agreement with railways on costs for insurance.
Before 1989, municipalities could apply to the federal government to issue an order requiring the railway to cease whistling if the crossing protection met Transport Canada's guidelines.
FCM was therefore delighted that its proposed solution to train-whistling was accepted by the railways, unions, and federal officials represented on the working group, and clause 17 of the bill will require railways to cease whistling at crossings where protection conforms with Transport Canada's guidelines and where the municipal government by resolution declares its support for cessation of whistling following consultation with the railways and suitable public notice.
This amendment will allow municipal governments to allocate spending for crossing improvement with the certainty that the environmental needs of their citizens will be addressed.
The amendment should also resolve any concerns on the part of railways and municipalities regarding liability, since cessation of whistling would be required by law under defined circumstances.
Transport Canada's recent study on train-whistling reported a 0% increase in train accidents in areas where whistling has been ceased and crossing protection conforms to guidelines.
We encourage this committee to give its full support to the solution contained in the bill.
In closing, I would like to thank the committee for this opportunity to register the views of municipal governments on this important subject. I would also like to congratulate Transport Canada on the exemplary consultation process it has followed in preparing this legislation, and indeed in the development of all legislation and policy relating to railway safety. We would be happy to answer any questions you or the committee may have.
The Chairman: Thank you very much.
Mr. Mercier.
[Translation]
Mr. Mercier (Blainville - Deux Montagnes): Concerning the train whistle, I believe you expressed support for the adoption by municipal government of a resolution to ban the use of the train whistle, except in emergencies. I too support this idea.
I would like you to comment on one aspect of this proposal. Basically, the municipality is assuming responsibility if it passes a resolution banning the use of the whistle and an accident occurs at some point in the future. We understand that citizens are exasperated by whistles. However, if an accident were to happen, I know full well - I was mayor for 16 years - that the public would blame the municipality and say: ``You agreed to ban the use of the whistle and now an accident has happened.'' Would you care to comment on this?
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[English]
Mr. Hopcroft: It's a very good question. As I understand from Mr. McGregor, the working group was quite satisfied that the legislative provisions here get around the liability issue. Our concern with the law since 1989 has been that municipalities did assume a liability that was inappropriate. It caused concerns, not just for municipalities but for railways, as to the liability they might be assuming given that there was no clear process to follow. The bill now provides for a clear standard to be met, and when the standard is met, with municipal support and with public consultation, the whistling could cease. So we feel the liability issue is addressed in that standard-setting process. One can't be found negligent when one has met a legislated standard.
The Chairman: Mr. Gouk.
Mr. Gouk: I have two areas I'd like to get some clarification on from you. One is with regard to your request under the power to enter in order to clear. You also go on to say, as I understand it - correct me if I'm wrong - that you wish to have the power to enter, to make that decision to enter to clear, but you also wish to be compensated and to be saved harmless from liability. Do you not think it places an unfair onus on the railway if you can go in at any time to do what you think is necessary and simply hand them the bill and the liability for anything you do, as opposed to going when they ask you or having the option to clear it to an agreed-upon standard themselves?
Mr. Hopcroft: That's a very good point. It would be unfair for municipalities to enter without notice and do that kind of work. Our presentation specifically mentions that municipal entry would be on notice to the railways, presumably giving them an opportunity either to do the work or to acquiesce in the municipality's proceeding or making other arrangements to do the work. The only situation where I would see a municipality entering without that kind of notice would be an emergency situation that needed to be addressed immediately, where it simply wouldn't become -
Mr. Gouk: To whose standard would you be clearing?
Mr. Hopcroft: I think an emergency standard would -
Mr. Gouk: No, not an emergency, the regular clearing of the right of way - whose standard would you be upholding, the municipality's or one that's prescribed to the railways?
Mr. Hopcroft: I think we would be quite happy to live with a standard that's prescribed by the railways in consultation with Transport Canada and the municipal sector.
Mr. Gouk: I can sympathize with your situation, but I don't want to openly endorse something that gives you carte blanche to do whatever you think is right and simply send the bill to the railway.
Mr. Hopcroft: We see the provision as accommodating concerns that both the railways and the municipalities have about safety. As it stands now, the railways are the ones that do that work, and there's no power for the municipalities to enter under any circumstance. We're prepared to go along with the municipality's playing a greater role under certain circumstances, but we clearly see ourselves as working with the railways and not against them.
Mr. Gouk: One other area is closure of crossings. I think it would be unreasonable for the railway to be able to come along and close something without any consultation with you. They would just close whatever they.... The fewer crossings we have, the better for us, so we're going to close anything that isn't unquestionably necessary. Likewise, municipalities wouldn't particularly want anything closed.
You did make a suggestion that if you didn't get the actual control, you would at least like to have a consultative process. Under those circumstances, do you not see that between it all resting on one side or the other, having that control or that veto, it would probably be fairest to simply have a consultative process? Would that not be the most effective way?
Mr. Hopcroft: In fact, that's what we're recommending: that there be a consultative process and that where the consultative process doesn't result in a compromise or a consensus, there be a right of appeal if either the railways or the municipalities feel the public interest isn't being served.
Mr. Daniel McGregor (Senior Policy Analyst, Federation of Canadian Municipalities): If I might add to that, Mr. Gouk, I take it that when you say ``crossing closure'', you mean stopping the vehicular traffic and not the train traffic.
Mr. Gouk: Yes.
Mr. McGregor: We're also saying that both options should be available to the federal government. In certain circumstances we can imagine that safety would be just as well served by restricting the nature of rail freight or the times at which it goes through a crossing as it would be by restricting the vehicular traffic.
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Mr. Gouk: With all due respect, on that, though, I would point out that the vehicle can go to the next crossing and cross. The railway can't go to the next track and go through. They do have to get through all the time; it's very limiting.
Mr. Hopcroft: Some communities have an easier response than others. Some of our communities have very few crossings.
Mr. Gouk: The railway only has one.
Mr. Hopcroft: Well, again, in some cases there's only one and in other cases there are options. We're simply trying to say what's sauce for the goose should be for the gander as well.
The Chairman: Okay, Mr. Jordan.
Mr. Jordan (Leeds - Grenville): I think it was an excellent presentation, crisp and right to the point.
I just want to come back, though, to Mr. Mercier's concern. I think you were suggesting that as long as you met the legislative requirement, that would relieve you of any responsibility. Then whose responsibility would it become?
Somebody might question whether the fact that you met the legislative requirement relieved you of responsibility in the context of an accident. In your opinion, how would that be handled if there were a lawsuit?
Mr. Hopcroft: In that event, one would expect the cause of a collision would be one of the following: a failure of the warning equipment at the crossing, which presumably would fall to the person responsible for maintaining the equipment; a failure to keep sight lines clear, which again would be a railway responsibility; or, as in most cases, a great deal of fault on the part of the motorist for not observing the warning signals.
We think the standards that have been set by Transport Canada with respect to the safety equipment that must be in place prior to cessation of whistling are appropriate. In our community, the city of London, which Mr. Fontana is certainly well aware of, since he has a number of level crossings in his riding, the requirement at a minimum is for bells to be installed and in some cases warning gates as well. If someone can't hear bells and can't see flashing lights and warning gates, they shouldn't be driving.
Mr. Jordan: Yes, well, that's easy for us to say.
I just have one more small item. It says ``the use of train whistles at night''. I personally would like to see that.... I don't know why you put that in there.
Mr. Hopcroft: Well, that's when we get most of the complaints.
Mr. Jordan: That should say ``the elimination of train whistles''.
Mr. Hopcroft: That's in fact what typically happens.
Mr. Jordan: That's what you mean, eliminating train whistles.
Mr. Hopcroft: Yes. It's the whistling at night that tends to be the one we hear about most often from our constituents.
Mr. Jordan: Yes, I know what you mean, but you wouldn't want to get into a contradiction with the idea that it isn't night now and we're okay with whistling through town.
Mr. Hopcroft: Yes. Typically the bylaws apply 24 hours a day.
Mr. Jordan: Okay, that's all I have.
The Chairman: Gentlemen, thank you very much.
Mr. Hopcroft: Thank you very much, Mr. Chairman, and to the committee members as well.
Mr. Keyes (Hamilton West): Mr. Chairman, just before Grant leaves, I want to ask something.
On page 2 you mention that to ensure safety in disputes between road authorities and the railways, there was a working group to find the principles, and former Minister Doug Young confirmed to FCM by letter last fall. Do you have a copy of that letter that you can leave with the committee?
Mr. Hopcroft: I'll read the letter verbatim. It was dated November 7, 1995.
Mr. Keyes: That's okay, Grant. We don't need it read into the record.
Mr. Hopcroft: It's a very short paragraph.
Mr. Keyes: Oh, all right.
Mr. Hopcroft: It says:
- I agree that municipalities should have the power but not the responsibility to clear sight lines on
adjoining lands at railway crossings. It's our intention that the railways remain responsible for
clearing sight lines.
Mr. Keyes: Thank you very much.
Thanks, Mr. Chairman.
Mr. McGregor: Thank you.
Mr. Hopcroft: Thank you.
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The Chairman: Gentlemen, we now have Mr. Tim Secord, the director of legislative services from the United Transportation Union.
Mr. Secord, you understand the process here. Confine your remarks so we will get a chance for some questions, please.
Mr. Tim S. Secord (Canadian Legislative Director, United Transportation Union): Yes, Mr. Chairman.
I would like first to thank you for providing this opportunity to us to speak to Bill C-43. I hope that the progression of this most important of bills to railway workers in the industry itself will be expeditious.
The UTU has been a full and willing participant in the Rail Safety Act review committee and believes that, although the discussions of that committee ended in a consensus document with which we have no major problems, there are one or two issues that, because of the timing of the placement of those on the table before the committee, couldn't enjoy the benefits of full debate and as such weren't included as consensus items in the review committee's report. It's to these two items that I wish to speak to the committee today.
In my letter to Mr. Colin Churcher dated May 24, 1996, which I believe the committee had access to - it was provided to them - the first issue that was raised as a non-consensus issue is the proposal for a railroad safety officer as denoted in clause 27 of the bill. While we have some concerns respecting the individual's jurisdiction, our focus here is to attempt to change the title itself, because of the confusion that will surely be caused by the fact that the railways currently have management personnel with the same title. One who encounters a person with such a title would not necessarily know on whose authority they were there.
In addition to this, we believe there is an opportunity here for the government to utilize these individuals on a cross-jurisdictional basis on issues for which they have common training and experience. By changing the title to something consistent throughout the regulatory regime, such as ``Canada safety officer'', there would be no confusion as to on whose authority these individuals are there.
Albeit that we understand that, because of the various statutory requirements of differing acts, there may be some difficulty in drafting the language that would allow this to happen, we believe this is an opportunity to provide a better service to the clients and the public in general.
Another difficulty from the perspective of some would be the administrative concerns in assigning the officer with the proper jurisdiction to a workplace or assignment for which she or he has the appropriate training, knowledge, experience, and authority. To us, this is merely a challenge that, although presenting some logistical concerns, is an opportunity to utilize officers more readily and that amounts to - although this is simplistic - nothing more than putting the responsibility on the respective department for ensuring that the proper officer will attend the assigned task.
In this way the regulatory authority makes the determination as to the selection and qualification of the assigned officer. This would quite possibly end the dispute between departments over jurisdictional issues and solve the difficulty of railway employees who can't quite figure out the nightmare of the memorandum of understanding between HRDC labour and HRDC transport.
The second issue involves the absence of wording in the bill, which we see as a lost opportunity as well. In my letter to the clerk of the standing committee dated July 15, 1996, I expressed those concerns. They related to clause 20 of the bill. Our concern in this respect is to ensure that workers are an equal part of the equation when it comes to formulating rules that affect their everyday livelihood and safety.
Given the events of recent months, one could not say with a clear conscience that the railways have been operating in the safest manner possible. It has been shown time and time again that the employees subjected to the rules emanating from the Railway Safety Act not only have a lot to contribute in making things better on the railways but also are the resident experts in this field.
The consensus document that is before you today was reached on the premise that all workplace parties and the regulator had a valued say in what goes on in the rail industry in Canada today. Bill C-43 is documentary evidence of such a trust between government, industry, and labour.
What we are requesting of this committee, therefore, is that they put in the statute the valued input of labour when it concerns rule changes that may be proposed by them when they see value and safety in such proposals.
To date, the railways have been successful in holding the rights conveyed in section 20 for themselves, under the premise that it's the railway that will determine what is best for the industry and the workers.
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We are not out to challenge their management rights. We're only out to be considered as a valuable resource that can provide different and new thoughts and fresh resolve when it comes to concerns that have plagued the industry from time to time. After all, it is our members who must work under the rules contemplated by section 20, our members who know the value of those rules and our members who, through such intimate knowledge and experience, know what needs to be changed to achieve the desired result and just how that change should be produced.
To resist the opportunity for such valued input really ties the hands of the industry and the government. It also places responsibilities on employees subject to those rules without ever having afforded them an equal opportunity to request changes when things don't work or present avoidable risk to them.
To include the affected trade unions in section 20, whereby they have the same opportunity of proposing rule changes, expedites the opportunity for progressive change. The minister, under such a proposal and the current wording contained in the bill, has the final say on approval of such proposed rule changes. The unions will not use this opportunity frivolously, as others might suggest. The opportunity will be used when change is desired to produce a positive change to operating practices as they relate to safe railway operations, period.
The United Transportation Union requests that this committee look favourably upon the suggestions we have placed before you and seek to amend Bill C-43 accordingly. By doing so, the committee will open a door to a safer, better regulated working environment where government, industry and labour share in the responsibilities of providing an effective, thriving and safer railway industry in Canada.
Again, I thank the members of the committee for their indulgence and offer the opportunity to answer any questions they might have in this regard.
The Acting Chairman (Mr. Keyes): Thank you, Mr. Secord.
Are there questions from members? Paul.
[Translation]
Mr. Crête: Thank you for your presentation. Other companies have made representations regarding the status of railway safety officers. Unfortunately, I wasn't on hand for every single presentation. Is you position similar to the one taken earlier by these companies? Perhaps you held discussions. Do your recommendations reflect a consensus among companies with ownership in the network?
Secondly, concerning employee participation and the consultation process, did I understand correctly that you favour something resembling Quebec's Occupational Health and Safety Act pursuant to which employees can be called on by a workplace health and safety committee to make recommendations because they are on the front line and know what the problems are and because their safety concerns may be different from those of the company?
[English]
Mr. Secord: In response to the first question, I wish I could answer you, but I was not here myself to hear the previous proposals. I was debating at length two doors down with other members from this environment.
On the second issue with respect to what we seek being similar to the Quebec health and safety legislation, I guess that's a relatively good analogy. It is a good analogy in the sense that we want to be able to make those recommendations and have that opportunity to make those recommendations. We want it embedded in the statute because right now we're left out of the statute. We don't have the right to make those recommendations to the minister as a proposed rule change.
[Translation]
Mr. Crête: Could you clarify something in connection with my first question. The status of railway safety officers is not dealt with in the bill. Is this because there is no consensus on the subject or because the government did not consider this matter, which could have been part of a consensus? Do you think it would still be possible to discuss this with the companies to see if there is a consensus?
[English]
Mr. Secord: First of all, the reason it didn't become a consensus item is we didn't put it forward. We didn't realize it was there or that it may have presented a problem until the committee's recommendations were in draft and going over to those who script it into legal language. So it was kind of too late to sit down and fully discuss it. But in the brief discussions we did have, some of the legal counsel for the railways didn't have a problem with the wording of it.
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I mean, there's an obvious conflict between the railway management personnel who have the same title and what's being proposed in the bill, but the concern was more properly directed towards different statutes and what the legal implications would be with respect to changing the terminology of the railway safety officer. I can't speak for the railways, but for the most part I don't think there was a major problem with changing the terminology.
The Chairman: Mr. Gouk.
Mr. Gouk: With regard to the railway safety officer, the groups that appeared yesterday specifically asked that it be changed to a railway safety inspector. Would that be more appropriate?
Mr. Secord: I suspect it would, but as in my comments to you earlier, although that would resolve the conflict between what the railways call a railway safety officer and what's contemplated in the bill, it doesn't address the opportunity to utilize those officers in cross-jurisdictional issues where they have the same level of experience and training. That would capture a group of officers and make them captive in the rail mode. You couldn't use them anywhere else - or not as far as I know. But if they weren't captive to railway safety inspector, presumably they could be used as Canada safety officers who could investigate workplaces other than railways, or perform functions they're assigned and have jurisdiction for at workplaces other than railways. I think there's an opportunity the government's missing.
Mr. Gouk: Certainly you focused on the title as one aspect of that. I would go out on a limb and say that I suspect there will be considerable support for the title. The other, we'll have to look into.
With regard to your amendment to section 20, let me play devil's advocate with one question. You have it down here that the unions will not use this opportunity frivolously. Of course, opponents would throw that out right away. Let me ask you, then, how can we be assured of that? You may not now, but maybe somebody five years from now will see it as a different opportunity.
Mr. Secord: With respect to that statement, you could liken it to when the Railway Safety Act was first debated and discussed and implemented. Somebody somewhere along the line had to think to give the railways that power under section 20. Although I wasn't party to those debates, I could almost suspect that the railways said the same thing - that the unions were sitting back saying they were going to misuse it and abuse it. Now, I don't know that for a fact, but if I was on the railway I'd be saying the same thing. It's the same argument, but now it's just in reverse.
The reason we say we're not going to use it frivolously is because it's a power. It's not only a right, it's a power and a trust invested in a statute the minister oversees. The minister's not going to let us abuse that. I'm sure the minister's not going to let us abuse that. I don't know what else I can say.
Mr. Gouk: Okay. That's good, thanks.
The Chairman: Mr. Keyes.
Mr. Keyes: Thanks, Mr. Secord, for your submission. Of course we take in hand your suggestions, but I do have to divert your attention to page 4 of your brief. At the top you say:
- Given the events of recent months, one could not say with clear conscience that the Railways
have been operating in the safest manner possible.
Mr. Secord: I don't have any problem with your taking exception to that. That's fine. I can understand it. But you have to remember that this is my submission to committee. I'm not putting words in the committee members' mouths. Those are my words, my thoughts, in my view, in my opinion. That's exactly the way I see it. I - meaning me - could not in clear conscience come out and make a statement that the railways have been operating in the safest manner possible.
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Mr. Keyes: You said ``Given the events of recent months''. Can you take -
Mr. Secord: I have three dead employees.
Mr. Keyes: - one event where you can show how the railways had not been operating in the safest possible manner and that caused that particular accident in these recent events? How do you substantiate a statement like that?
Mr. Secord: I can mention the Edson collision. Obviously that's not finished yet. The TSB aren't done, Transport Canada's not done, so I can't say clearly something caused that accident, but what I can tell you is some of the things about that accident. I can tell you that in 1992 the joint health and safety committee told the employer to put the derail back on the east end of the yard track. The employer did not. I can tell you that in 1996 cars ran out of a track where a derail would have knocked them off the track and not let them enter the main line, and they proceeded down the main line and killed three people. That's where that statement comes from.
I'm not very happy with what's gone on in the railway industry when I have dead people, dead members...not even dead members, but their families and their kids and their widows. What do we tell them?
Mr. Keyes: I'm sure the railway doesn't delight in that situation either.
Mr. Secord: I'm sure they don't. But that's where the statement comes from, Mr. Keyes.
The Chairman: Thank you very much, Mr. Secord.
Now, from the Brotherhood of Locomotive Engineers, Mr. George Hucker.
Mr. George Hucker (Vice-President and National Legislative Representative, Brotherhood of Locomotive Engineers): I apologize for the number of briefs I don't have with me. About 14:30 this afternoon our high-speed copier decided to go south. I'll commit that by lunch tomorrow the rest of the briefs will be here for all the committee members. The brief in itself is short.
I'm very happy to be here to -
Mr. Fontana (London East): You're obviously not reporting to this one.
Mr. Hucker: I'm a locomotive engineer. You should see my manual. It's incredible.
What I've done is I've appended some of the things I've talked about in the brief to the report, so the committee can have a better look at where I'm coming from.
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 precipitated and as a member of the review committee supports the proposed changes to the act. As an active member in the process, we've worked closely with our normal antagonists, the railway companies, the regulators, provincial governments, municipalities, to bring forward improvements we believe would enhance the act. Through this process all stakeholders came away with a clear understanding of the positions put forward by each participant.
Before I get into my main submission, I think it's important that the committee understand how the act has worked to our advantage since 1988. I've appended an example of what we're talking about.
In 1993, as a result of two incidents, Transport Canada imposed hours-of-service regulations on the industry and its operating employees. Transport Canada did, however, indicate to the railways and the operating unions that if we could come up with a better system than the hours-of-service one, which is based on faulty logic and has been around in the United States for 75 years, they would look at the results. If not, they would regulate the industry.
After two years of research and report writing, Canadian National Railway, Canadian Pacific, VIA Rail Canada Inc., and the Brotherhood of Locomotive Engineers in May 1996 presented the CANALERT report to Transport Canada. I have appended the executive summary to this.
A major problem in the railway industry today is fatigue. Locomotive engineers and train crews are in a constant state of jet lag. The CANALERT report has given us clear medical evidence at scientific standards of how fatigue is a constant problem in a locomotive cab, and the recommendations to overcome those problems. The railways and their operating unions currently are in the implementation stage of the recommendations. The report has put the Canadian railway industry on the leading edge in dealing with fatigue in the locomotive cab. The U.S. industry is only now coming to terms with how to have similar projects in individual railway companies. Our research and findings are now being supplied to the U.K. and other countries. As I said, I'm providing you with an executive summary.
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The use of the whistle by the locomotive engineer in many cases is the simple communication with other railway personnel. While the railways would have you believe their modern communications system will allow the rail traffic controllers to communicate with the head of a train several hundred miles away, the facts are that railway crews have difficulty communicating a few car lengths away from each other. The proposed legislation is intended to restrict or totally eliminate the use of the whistle within communities that have passed the necessary by-laws in consultation with the railways. The consultation is only with the railways and the unions would only find out about the restrictions after the fact.
The stakeholders, as we did in putting all parts of this legislation together, should be involved in the process. The proposed sections of the legislation do not allow for the discretionary use of the whistle by the locomotive engineer when he deems it necessary. Each time a locomotive engineer uses the whistle a citizen will complain and there will be a need for an investigation into that use. I do not believe the framers envisioned this when they drafted the language.
Locomotive engineers do not want to wake up anybody at three or four in the morning, but we do not want to be killed by anyone who would use the whistle in an inappropriate manner. It is maybe better to look at how the required whistling is performed in relation to the speed of the train through the community than to look at a simple restriction of the use of the whistle.
At present CROR rule 14(1) requires a locomotive engineer to begin whistling one-quarter of a mile away from a crossing at grade. At thirty miles an hour or at sixty miles an hour the locomotive engineer must comply with rule 14(1) to allow for the whistling at the crossing. Clearly the slow-speed whistling from a quarter of a mile is extremely annoying to the residents around the railway tracks, and definitely to the locomotive engineer. Locomotive engineers and train crews should not be put in harm's way with probition of whistling when they pass through communities where citizens are annoyed with the use of whistles. We are the helpless victims of road crossings.
The brotherhood therefore proposes that the legislation include that affected organizations or associations be part of the process to eliminate whistling in the communities. The brotherhood further proposes that the legislation include discretionary use of the whistle by the locomotive engineer.
Medical examinations: The brotherhood supports the position of amending the French and English parts of the legislation, which are in conflict. However, it is not the employees' responsibility to pay for the required medical examinations under the legislation. It is not, as CN-CP and RAC have stated, an issue for collective bargaining. Is it the locomotive engineer who is required to give up payment of a child's dental coverage to provide payment for this legislative medical examination? I think not. If the locomotive engineer is required to take a medical examination by the company through this legislation, then it is not the responsibity of the locomotive engineer to take the money from his pay package to pay for it.
When Transport Canada previously imposed regulations on the railway companies such as minimal qualifications - that was to re-qualify everybody out of the Hinton inquiry - the railway companies took the position that it was not a matter for collective bargaining and payment of the training rate was not in order. The railway companies cannot have it both ways. They cannot appear before this committee and profess that it is an issue for collective bargaining, then at the bargaining table express the concern that they cannot be held responsible to pay for testing that is a legislative requirement. Clearly it is not the responsibility of the locomotive engineers to pick up the cost of these medical examinations, whether those examinations are company sponsored or organized by the company.
Substance abuse testing. The brotherhood does not support the concept of substance abuse testing brought forward by Canadian National in their presentation. The brotherhood does not see the need for the inclusion of any regulatory requirement for substance abuse testing of railway employees in general or safety-critical positions in general. At last count 417 positions were classified by the railway as critical for the safe operation of the railway. I've included the company's designations in one of my tabs.
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Substance abuse testing regulations came from the Chase, Maryland accident involving a Conrail freight train and an Amtrak passenger train on January 4, 1987. The UTU locomotive engineer testifying at the National Transportation Safety Board investigation led directly to the regulations. However, it turned out that Mr. Ricky Gates' testimony was a complete fabrication and he did not have substance abuse prior to the accident. However, the damage was done in the minds of the travelling public and the FRA.
The substance abuse regulations have had two effects: they have driven the use of drugs and alcohol underground and have moved those employees who have had substance abuse problems to untested drugs. These regulations have also led to abuse by certain company officers. In a recent arbitration case an employee was withheld from service when a light bulb he was changing in the locomotive cab broke in his hand, cutting his hand. In the opinion of the company officer it was a ``for cause'' accident and that employee was withheld from service pending the results of a substance test. This was a Canadian employee working in the United States.
The brotherhood agrees with Canadian Pacific's position, but the substance abuse can better be handled through an enhanced employee and family assistance program, which encompasses a family's financial stress and substance problems. With proper programs such as CP's, CN's, and VIA's EFAP, substance abuses by the employee are being properly handled and regulatory testing is not needed. The railway employees in safety-critical positions are no different from any other part of the population and need not be singled out.
As for crossing safety, the brotherhood supports Canadian Pacific's position that there is a need to alter the behaviour of motorists and pedestrians approaching crossings at grades. In this instance, the vehicle operators or the pedestrians are the problem, not the locomotive whistle. There is a need to change the philosophy of the public when they approach the crossing at grades and hear a locomotive whistle.
Legislative examples of a different philosophy are the New Zealand railway safety and management act in 1992 and the recent legislative acts of the Texas House of Assembly dealing with railway crossings at grade and vehicle drivers. Both bodies have taken the steps to realize where the problem lies. The brotherhood believes that there is a need to look at the principles expressed in those statutes and have them incorporated in the new Railway Safety Act. I have included those legislative statutes with my brief.
In order to give you a better understanding of the problem in the industry, and in particular with grade crossings, the brotherhood has included a videotape of Arts and Entertainment's presentation, ``Danger on the Rails''. I'll have those for the clerk when you're finished. This will give you a first-hand view of what the locomotive engineer deals with on a regular basis when approaching railway crossings.
On the educational side, I have included examples of the new advertising campaign the brotherhood is beginning to target freight-line, long-haul truckers through their own magazines. If you take a look at the last page you'll see that it's a picture of what's left of a truck. It says ``A freight train travelling 100 kilometres per hour will occupy a road crossing in one-tenth of a second whether you're there or not''. The little white box in the middle shows where the body of a dead trucker is.
Thank you.
The Chairman: Mr. Mercier.
[Translation]
Mr. Mercier: You would like your association to be consulted when it comes to restricting the use of the whistle in certain communities. Am I to understand by this that you wish to be consulted about subsection 23.1(1)(a) which reads as follows:
(a) the area meets the requirements prescribed for the purposes of this section;
Are you telling us that you would like to have a say in these requirements?
[English]
Mr. Hucker: Yes, sir. As a stakeholder, I believe the locomotive engineer and his representative and the trainman and brakeman handling that train and their representatives should be involved in the process.
Clearly, the example of how we got from our initial meeting to Bill C-43 is an example of the consultative process. In discussions with the municipalities they do not have a problem with the union representative being there as a stakeholder in the problem. We are big boys. We deal with this every day. We don't stick our feet in the mud when the railways pose certain rules and changes to the operating rules that we believe are also necessary.
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It's only important so our members - those who are coming up to road crossings where there have been accidents - have an understanding that their needs and concerns have also been taken into consideration, and not just those of the railways or your constituents in certain municipalities who have been woken up at three or four in the morning.
Mr. Gouk: You mentioned a bit about the hours of week for an engineer. I quickly perused your 13-page executive summary, but I couldn't find the actual hours a locomotive engineer is required to work. What is the time period?
Mr. Hucker: By regulation, a locomotive engineer is required to work 12 hours. By collective agreement, it's 10 hours. Through a 24-hour period, because of some time off, a locomotive engineer can be available for 18 hours during that 24-hour period.
Mr. Gouk: It's interesting that you used the analogy of jet lag, because for the most part you seem to have better hours than the actual pilots of the jet aircrafts.
Mr. Hucker: Sir, I have a 19-year-old in university and a 16-year-old. I've not been able to watch them grow up. I suggest to you that an airline pilot has a hell of a lot better job than I have.
As a locomotive engineer, I may go to work Monday at 2 p.m., Tuesday at 5 a.m., and Wednesday at 5 p.m. That's my lifestyle. I do not have a job; I have a lifestyle. My family is required to live that lifestyle. My children live that lifestyle. Unfortunately, that's the nature of the beast I'm in.
Mr. Fontana: By choice.
Mr. Hucker: Oh, most definitely by choice. I'm not here saying that it's not by choice. Don't get me wrong. I happen to enjoy what I do. Contrary to the CPR, I was good at what I did.
Clearly, there has to be a change. You cannot have people in a constant state of fatigue operating 15,000-, 16,000-, or 17,000-tonne trains. It just doesn't work.
I would suggest that if you went out and watched coal trains in the Kootenays you may be -
Mr. Gouk: I live in the Kootenays.
Mr. Hucker: You've got it. I've been down there. I lived in Alberta until three years ago.
Mr. Gouk: I have another point I wanted to make. You talked about the collective bargaining aspect for medicals and that the company could perhaps come back to the bargaining table and say they can't be held responsible for paying for testing that was legislated.
They have, by way of their own submission, put in writing that they anticipate this should be, by their own words, an item for collective bargaining. They have taken upon themselves a commitment, as it were, they have made to this committee that they acknowledge it is a collective bargaining item.
Mr. Hucker: And I will hold them to it come October of next year.
Mr. Gouk: If they throw that excuse back, then I'll tell them what you said here in this committee.
Mr. Hucker: Thank you for that.
The Chairman: It sounds like a deal.
Thank you, Mr. Gouk. Mr. Hubbard.
Mr. Hubbard (Miramichi): Just to follow up on the matter of engineers and railway safety, I had the assumption that you drive by miles rather than by hours in terms of your workloads.
Mr. Hucker: We do, most definitely. We are paid by miles in a dual system of pay. If you are going to be in the House until 5:30 p.m. I could spend the next hour and a half explaining how the dual pay system works.
If I work 3,800 miles in a month, that's the maximum number of miles I can work, but I'm still required, by the trip, to work x number of hours in that trip. The company has my services for that long in a tour of duty. How I get paid is by the number of miles I work in a month.
Mr. Hubbard: In terms of that, so many miles is regarded as so many hours in terms of a day. I'm a bit concerned. You're expressing that the companies are creating a safety problem, but to many of us, in terms of my own perception, I thought something to the extent of 100 miles is regarded as four.... Could you just explain that?
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Mr. Hucker: You're talking about 1917. Judge McAdoo, on a report from Dwight Eisenhower, who travelled from Washington to Los Angeles, came up with the fact that a train travelled 800 miles in eight hours. That has been what they call the dual system of pay.
Curiously, Parliament in this country imposed that upon railway workers in 1917 to prevent them from working overtime and striking during World War One. So it's not just a one-sided issue here.
Yes, you're right. We get paid on a dual system of pay, but that's just the base from which we begin, as a teacher's pay is based on how many people are in the classroom.
Mr. Hubbard: Just to conclude this, you contend that the system of employment is a factor in railway safety.
Mr. Hucker: Oh, most definitely. Take a look at the report. If you want, I'll give you the three-volume report of the CANALERT. Clearly, the dual system of pay is a problem in the fatigue level of a locomotive engineer and train crews in the cab of a locomotive.
We don't argue that point. In fact, we're in the process of trying to convince the railways that they should change from the dual system of pay. We don't have all kinds of success, but we're trying to change that. We also agree that it's a problem. It would be nice if every three years -
Mr. Hubbard: Mr. Chairman, sometime probably the committee should look into that. I think they may see that there are two points of view.
Mr. Hucker: Well, most definitely there are two points of view. I suggest to you that since 1917 the railways have been trying to get the dual system of pay out of my collective agreement and we've been trying to keep it in there, because it is a good system of pay. I'm a piece worker.
Mr. Cullen (Etobicoke North): I have just a quick one. I'm just following up this recommendation you have, sir, to have the union involved in decisions about stopping whistles in conjunction with the municipalities and railway.
Other than a statutory requirement, what would be the normal practice of the railway? Would they involve a union member in those discussions as a matter of practice? I know your desire is to get it into legislation, but as a matter of practice, how would that happen now?
Mr. Hucker: It wouldn't happen. We would find out when a bulletin was issued after the fact.
The Chairman: Thank you very much. Thank you, Mr. Hucker.
For the information of members of the committee, we are going to adjourn now and head over to the House. We're not going to return here because that concludes the hearings for today.
We are meeting tomorrow in this room at 9 a.m. to hear from the minister on Bill C-44, which is the marine legislation. The bill is still before the House. We're going to hear from the minister on a pre-study basis.
There'll be some discussion tomorrow after that and with members in the House today about the schedule for travel next week and the week after.
Mr. Keyes: I'm just wondering something, Mr. Chairman. It would take, I think, all of30 seconds to resolve that situation right now.
The Chairman: Perhaps what we could do is go in camera right now and ask other members of the public to vacate the premises.
[Proceedings continue in camera]