Bill C-11 (Historical)

An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts

This enactment amends the Canada Transportation Act. Certain amendments apply to all modes of transportation, including amendments that clarify the national transportation policy and the operation of the Competition Act in the transportation sector, change the number of members of the Canadian Transportation Agency, create a mediation process for transportation matters, modify requirements regarding the provision of information to the Minister of Transport and modify and extend provisions regarding mergers and acquisitions of air transportation undertakings to all transportation undertakings.
It amends the Act with respect to the air transportation sector, in particular, in relation to complaints processes, the advertising of prices for air services and the disclosure of terms and conditions of carriage.
The enactment also makes several amendments with respect to the railway transportation sector. It creates a mechanism for dealing with complaints concerning noise and vibration resulting from the construction or operation of railways and provisions for dealing with the transfer and discontinuance of operation of railway lines. It also establishes a mechanism for resolving disputes between public passenger service providers and railway companies regarding the use of railway company equipment and facilities.
The enactment also amends the Railway Safety Act to create provisions for the appointment of police constables with respect to railway companies and procedures for dealing with complaints concerning them.
In addition, it contains transitional provisions and consequential amendments.

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone. The orders of the day are pursuant to the order of reference of Thursday, September 21, 2006, Bill C-11, An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts.

With us today we have Raynald Bélanger, Gary McNeil, and Doug Kelsey. It's my understanding that Mr. Kelsey will present on behalf of the three groups before us, but certainly the questioning and the answers can come from all involved.

Without further ado, we'll proceed and ask Mr. Kelsey to make his presentation.

[Jean-Pierre Bazinet, President, Chutes-la-Chaudière East Sector, City of Lévis]

Since my knowledge of English is limited, I will speak to you in French.

To the Chair of the Standing Committee on Transport, first we want to thank the members of the committee for allowing us to speak about our experience with noise generated by the Joffre switching yard in Charny. Our comments will pertain to an aspect of rail transportation which bears witness to the problems associated with the co-existence of rail traffic and daily life in an urban environment.

You have received our brief. I want to read you a summary that will be provided to you, if you so wish.

My name is Jean-Pierre Bazinet and I am a municipal councillor for the City of Levis. I am also president, Chutes-la-Chaudière East Sector, which includes the neighbourhood of Charny, Breakeyville, Saint-Jean-Chrysostome and Saint-Romuald.

I am accompanied today by Mr. Alain Lemaire, who is the municipal councillor for Charny and former mayor of the City of Charny, now part of an agglomeration. I am also accompanied by Mr. Alain Blanchette who is chief of staff of the mayor of the City of Levis, Ms. Danielle Roy-Marinelli. Finally Mr. Michel Hallé, a lawyer and legal advisor at the Direction des affaires juridiques for the City of Levis, is also here with me.

First, that current City of Levis is the result of the merger of 10 former municipalities which became neighbourhoods of that city on January 1^st, 2002. This city is home to some 127,000 people, making it the eighth largest city in Quebec.

The history of the railway and Levis heritage are intertwined. The railway was an important leader for economic development throughout the ages, and its rich tradition has grown over the years. Currently we want to maintain rail operations within our area, but in a more harmonious way.

Our brief deals with the following aspects: noise generated by the Joffre switching yard and its effects on public health; Bill C-11 and its amendments; finally suggested additions to the Bill.

As part of its activities, Canadian National operates a switching yard within the boundaries of Charny and Saint-Jean-Chrysostome. Given the elevated noise levels generated by switching operations conducted by Canadian National, numerous complaints have been laid by residents of the three former neighbourhoods that existed prior to the merger in 2000, as well as by residents of the other neighbourhoods that I mentioned earlier.

These residents believe that the noise pollution caused by CN's operations, particularly in the evening and at night, is affecting their health and impedes their peaceful enjoyment of their property. This situation came about in 1998 — and that date is important. Previously, the switching yard and the residents lived in harmony. The new situation coincided with the privatization of the company, which streamlined its operations not only in Quebec, but throughout Canada.

In that respect, the problems experienced by the residents of Charny are similar to those encountered in other cities in Canada. The preceding testimonies are compelling.

When CN failed to take action, a large number of affected residents signed a petition that was presented to the council of the former City of Charny in 2000. The municipality also received letters from home owners describing the situation as unacceptable and intolerable.

The former City of Charny decided to support the citizens' committee opposed to the noise from the Joffre switching yard in Charny. It hired an engineering firm Dessau-Soprin to conduct a noise study to measure the effect of CN's operations. The study, tabled in February 2000, copies of which I have, showed that the impulse noise mainly comes from such activities as switching of cars, acceleration and deceleration of locomotives, hooking together of cars, breaking of trains, train whistles, train movement, loaders, tow trucks and other vehicles and back-up beepers.

In 2001, the Public Health Department of the Chaudière-Appalaches Health and Social Services Board conducted an analysis of the situation and produced a report entitled “Assessment of the public health risk associated with environmental noise produced by operations at CN's Joffre switching yard in Charny.”

The study concludes, and I quote:

Based on the available noise measurements the literature review and the specific context, we find that the environmental noise to which many of the people living in the residential area adjacent to CN's Joffre switching yard adversely affects their quality of life and potentially their health. Such noise levels are therefore a nuisance to the peace, comfort and well-being of the residents near the Joffre switching yard in Charny. From a public health stand point, these noise levels are likely to have an adverse affect on health by disturbing sleep, which in turn has a number of side effects. These noise levels are in our view incompatible with residential zoning unless special measures are taken to reduce the noise.

Around the same time, the residents of the City of Oakville, Ontario, filed a complaint with the Canadian Transportation Agency under the Canada Transportation Act. In its decision, the agency determined that CN was not doing as little damage as possible in the exercise of its powers. Accordingly, the agency ordered CN to take certain measures, among them preparing a long-noise reduction plan satisfactory to the agency.

This decision was a source of tremendous hope for the residents of Oakville and Charny. In response to the decision, CN decided to challenge the Agency's jurisdiction in the Federal Court of Appeal. In a ruling handed down on December, 2000, the court found that the Canadian Transportation Agency did not have jurisdiction under the Canada Transportation Act to deal with complaints about noise, smoke and vibration from duly authorized railway operations.

In the wake of the decisions in the Oakville matter, the Canadian Transportation Agency decided to offer a mediation service in a bid to resolve disputes similar to those in Oakville and Charny. In March 2001, the former City of Charny and the citizens' committee submitted a request for mediation to the Canadian Transportation Agency. CN agreed to mediation. Unfortunately, after several meeting between the parties, we concluded that the mediation was not going to work. Bound by an undertaking to preserve the confidentiality of the discussions, we are unable to provide further details. We can say, however, that the City of Lévis which succeeded the former City of Charny on January 1^st, 2002, made every effort to find a solution acceptable to its residents and even delegated to the mediation meetings three elected representatives, including two members of the executive committee at the time.

Section 29 of Bill C-11 introduces four new sections dealing specifically with the noise caused by operation of a railway. We are especially pleased that Parliament decided to fill a major void in the process of resolving disputes between the community and the railway company by giving the Canadian Transportation Agency clear authority to make orders to rectify a noise problem.

The new section 95.3 restores the monitoring authority the agency lost as a result of the Federal Court of Appeal decision in the Oakville case. This section restores to Canadians a mechanism for control that they had lost for more than six years, and which was causing problems. This would make it possible to turn to a tribunal with jurisdiction in order to condemn situations affecting public health.

Without making any assumptions about the agency's future work, we hope that the attitude the agency showed in the Oakville case will govern its orders. We believe that the wording used in Bill C-26 in 2003 requiring railway companies to make the least possible noise was better than the wording used in the current bill. We believe that the current wording waters down the obligation of railway companies to operate their facilities in a way that respects their neighbours. On the contrary, we want section 29 to be reinforced by adding a clause stating that railway companies are not to harm public health in the course of their operations. We are concerned that the obligation of railway companies to refrain from making unreasonable noise is subject to operational requirements.

Operational requirements should not be allowed to preclude that obligation. It should therefore be made clear that what must be taken into account is the company's essential operational requirements not just any requirements. For example, operational profitability should not be used to relieve a railway company of its obligation to refrain from making noise.

Section 7 of Bill C-11establishes the framework for the mediation process the Canadian Transportation Agency has been using for several years. As a result of our experience in this area, we are very hopeful that the prescribed 60-day mediation period will be reduced to 30 days as proposed in Bill C-26. We believe that 30 days is enough time to try to voluntarily resolve a dispute provided the parties make the necessary effort. More than 18 months should not be allowed to pass between a request for mediation and an outcome as was the case in Charny.

In addition to expressing support for the amendments as indicated above, we would like to take this opportunity to suggest that Bill C-11 be amended to give the Canadian Transportation Agency jurisdiction over the use of train whistles. More specifically, we believe it would be appropriate for every request to prohibit the use of train whistles within municipal boundaries to be reviewed by the CTA in cases where the municipality, the railway company and Transport Canada cannot agree on the requirements for no-whistle regulations.

Furthermore, we support the request from the Union des municipalités du Québec made by its President Jean Perrault in his letter of July 6th, 2006, to the Honourable Lawrence Cannon, Minister of Transport of Canada, to establish tangible measures for ensuring the rigorous application of Rule 103(c) of the Canadian Rail Operating Rules, which states that “no part of a train or engine may be allowed to stand on any part of a public crossing at grade for a longer period than five minutes”, and to permit the application of Rule 103(c) of the Canada Rail Operating Rules to moving trains. In fact, vehicle and pedestrian traffic blocking a crossing for more than five minutes can lead to public safety problems, especially where the blockage prevents safety services such as firefighters police and ambulance vehicles from providing the required services.

The problem of noise, caused by railway operations is a fundamental priority for the City of Lévis. This situation is causing problems for more than 10,000 people in our area. A great deal of effort has been made in the past to restore the peace and quiet the neighbourhood so amply deserves. Unfortunately, our efforts have been in vain. That is why we support the federal government's desire to give Canadians a forum in which to assert their rights. However, we believe that the wording of section 29 of Bill C-11must be amended to ensure that the objective of the legislation is met.

Mr. Chairman and members of the committee, I want to thank you for your attention.

[François Picard, Second Vice-President of the Executive Committee, City of Quebec]

I am accompanied by Mr. André Demers, alderman for the Sainte-Foy sector, where there is a marshalling yard. Mr. Demers is also President of the Commission aménagement du territoire et transports.

I am also accompanied by Mr. Marc des Rivières, who is a professional director and expert on transportation for the City of Quebec.

First, the City of Quebec would like to thank the members of the House of Commons Standing Committee on Transport for the opportunity to present his comments on Bill C-11.

Thank you for listening to us. And of course, my presentation will be in French.

I will begin by talking about noise generated by railway operations, by addressing the legal framework as well as the overall approach that the City of Quebec is proposing. If time allows, although you already have our brief in hand, we will also discuss other nuisances or issues that could be improved in the bill.

First, I will talk about the legal framework with regard to noise generated by railway operations. In the short-term, the City of Quebec recommends that amendments be made to Bill C-11 as follows.

First, we recommend the reintroduction of the wording proposed in the former Bill C-26 so that railway companies are required to produce the least possible noise, replacing the wording of Bill C-11 which states the obligation "not to make unreasonable noise".

In other words, like the mayor of a municipality in British Columbia who spoke before us, we believe that the expression "unreasonable noise" is too vague and leads instead to confrontation with the railway companies. Consequently, we propose amending the wording which, although it is only two words, has vast implications for the City of Quebec.

Second, we recommend adding, in the new section 95.1 under Bill C-11, the following: "that noise levels caused by the railway operations shall not harm public safety or cause negative effects such as disrupted sleep for persons living in residential areas adjacent to switching yards or along railway lines".

Third, we recommend subjecting railway companies under federal jurisdiction to provincial and municipal laws and regulatory provisions concerning public nuisances and nocturnal noise in order to preserve the quality of life of populations living near railway facilities.

Another approach would be to reduce railway noise at the source. Even if the wording that companies make the least possible noise is reintroduced, we could require the companies to reduce noise sources by doing research and development on new technologies that would allow them to directly reduce the amount of noise caused by the cars.

Those are our recommendations with regard to the legal framework.

With regard to adopting a more comprehensive approach, the city proposes as part of a long-term strategy the adoption of a national railway noise reduction policy setting orientations, objectives and the most appropriate action strategies. This policy could be developed by Environment Canada, jointly with Health Canada, since it is part of a public health and noise pollution approach.

We could develop noise maps of areas where residents are subjected to excessive noise levels in order to gradually eliminate black spots. We could also give priority to reviewing the sites causing the greatest harm during the night, when thresholds exceed fixed limits.

We could also give priority to at-source noise reduction measures—such as those I mentioned earlier—by taking into account the three types of noise: rolling noise, locomotive and auxiliary equipment noise and switching noise.

Furthermore, various specific measures, some of which are presented in section 1.6.1, to reduce railway noise gradually through retrofits and better maintenance of rolling stock and railway lines, subject to available funds, could be taken.

A number of European countries have adopted regulations relating to decibel levels. It starts at 55 decibels, which corresponds with normal annoyance caused by noise, and goes up to 65 decibels which, according to the OECD, corresponds to constrained behaviour patterns, symptomatic of serious damage caused by noise. If you wish to take the idea of "least possible noise", you could adopt a targeted strategy in the hope that the noise from switching yards or trains will not exceed 55 to 65 decibels, during the day, when noise could reach as high as 65 decibels, or at night, when noise levels should not exceed 55 decibels.

So, a number of European countries have adopted similar regulations, which exceed what you are proposing, but which could prove interesting in the long-term, particularly if we opt for a comprehensive approach and a national railway noise reduction policy.

Other measures in our brief address other nuisances. Railway companies must be required to comply with local legislation and regulations on environmental protection and the protection of public health and safety, particularly with regard to odours and unhealthy conditions.

We propose that the bill require railway companies to put a communications plan in place aimed at resident populations concerning railway operations involving the transportation of hazardous goods.

With regard to, in particular, the obstruction of public crossings, there must be concrete measures requiring the strict application of paragraph 103(c) of the Canadian Railway Operation Regulations, so that no switching done at crossings can block road and pedestrian traffic for more than the five-minute maximum prescribed by those regulations.

Obviously, the City of Quebec is faced with one last nuisance related to train whistling. Section 11 of the Railway-Highway Crossing at Grade Regulations needs to be reviewed in terms of the allocation of cost for the construction and maintenance of new grade crossings, so that the benefits associated with railway facilities in urban areas can be equally shared by the railway company and the local government.

Currently, the municipality pays 100 per cent of the cost of changes made to grade crossings. We believe that at least 50 per cent of the cost of changes to grade crossings should be paid by the railway companies.

I have used my seven minutes. We are prepared to answer any questions you may have. Once again, I want to thank you for having taken the time to listen to us.

[Jim Lowrie, Director, Engineering Services, City of New Westminster]

Thank you, Mr. Chairman and members of the committee.

My name is Jim Lowrie, and I am director of engineering at the City of New Westminster. My submission is on behalf of Mayor Wayne Wright, and we're pleased to make this submission today.

Incidentally, Mayor Wright does invite members of the committee to the city of New Westminster to experience firsthand the impact of railway operations on the city.

By way of background, the city of New Westminster was the first incorporated city in the province of British Columbia, incorporated in 1860. The city is located on the north shore of the Fraser River and has strong historical ties to the river and to the railway, principally in the later half of the 19th and early 20th centuries. Today the city of New Westminster is a thriving city with a population of approximately 60,000. The city occupies only 15 square kilometres, making it one of the most densely populated in the greater Vancouver metropolitan region.

The city hosts three major railway companies, each having marshalling yards located in relatively close proximity to residential neighbourhoods. Approximately 40,000 residents--over two-thirds of our population--live within one kilometre of a railway line or marshalling yard.

Historically the cooperation of railway companies in responding to neighbourhood complaints has been inconsistent. While some complaints are addressed, most others are not--complaints relating to shunting railcars, idling engines, squealing wheels on rails, and excessive whistle-blowing. It is the experience of city staff that railway companies have not been highly cooperative in modifying their operation to address the concerns of residents, particularly during the late night hours.

Mr. Chairman, specific comments on proposed Bill C-11, and we're speaking to clause 29 of this legislation, which suggests modifications to section 95 of the Canada Transportation Act. This section talks to the operation of railways, that they must not make unreasonable noise, taking into account various matters, including their own operational requirements.

Our submission would be that the balance here is between making unreasonable noise as it is perceived by residents and the operational requirements of the railway companies. Past experience in New Westminster has shown that railway companies are reluctant to modify their operations in meaningful ways to reduce or eliminate excessive noise, particularly in late night hours. We suggest that the use of language such as “unreasonable” invokes a high degree of subjectivity to the legislation.

With respect to proposed section 95.2, the concern here is the mention that the agency “may issue...guidelines”. We believe it's imperative the agency issue guidelines. That “may issue” should be a “must”, in our view. Perhaps the guidelines should be in the form of regulation. The guidelines are not proposed to be statutory, and we believe the guidelines or regulations must be made to be readily and easily enforceable. Given the geographic variation among municipal jurisdictions across the country, the logical enforcement agency would be local government. The suggestion here is the noise parameters could be nationally legislated, i.e., based on CMHC guidelines or those of some other agency.

With respect to proposed section 95.3, we question what authority the agency has in ordering operational changes of a railway company and what enforcement methods would be used in gaining compliance if the other companies are found to be non-compliant with adopted guidelines and regulations.

Mr. Chairman, in summary, we believe the intention of the proposed bill is laudable and commendable. The aforementioned suggestions are provided in the spirit of strengthening, improving, and providing clarity to the proposed legislation.

Thank you for the opportunity.

[The Chair, Conservative, Merv Tweed]

Welcome.

I'll call the meeting to order of the Standing Committee on Transport, Infrastructure, and Communities. It's meeting 19 and we're studying Bill C-11, An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts.

Joining us today, we have from the City of Quebec Monsieur François Picard; from the City of Lévis, Jean-Pierre Bazinet; from the City of New Westminster, through telecommunications, Jim Lowrie; from the City of Langley, Mr. Peter Fassbender; and from the Township of Langley, Mr. Kurt Alberts.

[The Chair, Conservative, Merv Tweed]

You're absolutely on time. Thank you, Mr. Blaney.

I would like to thank our guests. We call you witnesses, but I'd like to think you're guests offering advice to government. We appreciate that. And to our long distance guests, thank you very much.

If I may, just with the committee members, we do have one little piece of business to wrap up. We've circulated the budget request for Bill C-11, and what I really need is just an acknowledgment that you've looked at it and it's acceptable to submit. Is everybody comfortable with it?

Mr. Jean.

[Christian Jobin]

The Chaudière-Appalaches Regional Health and Social Services Board conducted a study on the Charny yard and noise zones at night. The noise is so intense that people cannot sleep. They wake up in the middle of the night. People have reported high stress levels. Amongst other things, there are reports of children who are not doing as well in school and senior whose stress levels have gone up, and who even have developed more serious illnesses due to stress. Some of my friends who live near the yard sleep in their basements at night and have to use ear plugs.

Bill C-11 will give the transportation agency the power to issue orders, but is the word “unreasonable ” strong enough to address all the situations I have just described? CN, CP and all the other railway companies will repeat what they did in 1999 when they took their case before the Federal Court in Ontario to challenge the very severe ruling the CTA had made against CN. That is what I fear.

[Christian Jobin]

Based on what we can tell, if bill C-11 is adopted, the Canadian Transportation Agency will recoup the power to issue orders which it lost in 1999 because of CN's litigation before the Federal Court. That is what would change.

As well, we find the word “unreasonable”, which is a qualitative term that will allow, unless I'm mistaken, arbitrators to determine whether or not a noise level is unreasonable or not.

[Don Bell, Liberal, North Vancouver, BC]

Thank you.

I'd like to welcome the guests and also those from British Columbia.

Certainly, listening to some of the speakers here and to Mr. Allen and Ms. Fisher parallels my experience when I was the mayor of North Vancouver. We had problems when BC Rail was sold to CN. BC Rail, being a provincial railway, by obligation of the province, had to comply with municipal standards in terms of noise. Our noise bylaws and the issue of non-whistling at crossings applied. Once CN took it over, it no longer applied.

What I've heard you say sounds like a repeat of the things I've heard. I've had complaints from residents who were awakened all night, and I see that some of the submissions here have detailed times going through the entire evening--how many times the whistle blew. As mayor, I had people phoning me at night and playing tape recordings of whistles to let me know they were hearing whistles. Interestingly enough, I lived several miles away and I could hear the shunting.

It seems to boil down, as Ms. Fisher said, to an issue of scheduling and also of logistical changes. The yard was, in this case, close to a residential area. As Mr. Hubbard said earlier, the railways were here before many of these residential areas, but the very nature of the railways attracted workers and business. The very nature that made them thrive is in fact what is the growth of cities, as we've seen, and they have to recognize that. And they have to look at some of their logistical activities, such as shunting and the assembly of trains, in areas that are different from where they were in the past, because the areas they're in have changed. I agree with that.

Mr. Gantous, you referred to the European standards, and I think you made reference to 45 decibels. Was that the WHO standard that you were referring to? If it was, I'd be interested, because municipalities have bylaws that establish decibel ratings. The big problem with the kind of noise you get from shunting is that it's intermittent, whereas if somebody is running a stereo system or go-carts or something, you can stand with a meter and read them; if it's an industrial noise, it's consistent. It's the intermittent noise.... Some of the bylaws refer to it as nuisance noise, which can be intermittent and therefore difficult to measure, but if they have technologies and you can provide any information on that, I would appreciate receiving that.

Mr. Jobin, I heard you say you'd like to see qualitative rather than quantitative...but if I listened to your wording, I think you meant just the opposite, because what you want is some kind of measurable standard rather than one that is more vague, that talks to the qualitative as opposed to the quantitative standard.

Certainly the issues there are ones that we have to find out...and CN cannot simply hide behind the standards or the defence it has had in the past. It has to recognize that they have to work in cooperation with the areas they serve, and that it's a mutual benefit if they do so.

I'm not going to repeat much of what has been said by my colleagues, and I think they've all addressed the issues.

Some of the comments here relate to rail safety. There's an issue in Mr. Allen's presentation from New Westminster talking about the rail yard having had several derailments in the past. Most recently it was the derailment that destroyed part of the Westburne Electric building, and there are other references. This is also a concern.

I know, Mr. Chair, that in a meeting I was not at there was a decision made that rail safety would be considered by this committee once Bill C-11 has been dealt with, that that issue would come forward. I'm concerned particularly because of the recent CN derailments that occurred in the Prairies, Alberta, and also B.C. As you know, we had a toxic spill in the Cheakamus River that wiped out fish populations, that devastated those fish populations. Last June we had two deaths when rail workers were caught on a runaway locomotive.

It would be my intention, in compliance with the suggestion of what would be appropriate for this committee, that once we have gone through these issues and are ready to move on to rail safety...I would like to see us look seriously at the derailment issues and rail safety, particularly with CN. Whether it needs a formal commission or an in-depth study by this committee, I would like to hear a good discussion. It is certainly a concern that's been brought to me by my constituents.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you very much, Mr. Chair, and thank you to each of the witnesses. You're coming forward on a very important issue, so we're very happy to have you here, particularly Ms. Fisher and Mr. Allen from British Columbia. We appreciate your participation in the committee hearing today.

I'd like to start with Mr. Allen. You provided very detailed information to the committee on what has happened in the New Westminster area, and we appreciate that.

I would like you to speak for a few moments on the impact on the lives of people in the Westminster Quay area of New Westminster. What does the existing situation create in terms of living conditions in the quay? Second, I'd like you to come back to the issue of mediation, having actively talked to the railway companies. We actually have four, as you detailed in your brief. CP, CN, Burlington Northern, and the Southern Railway of British Columbia run through that area. How effective or ineffective would voluntary compliance remediation be if we don't amend Bill C-11 as you've recommended?

Could you talk to those two points--the impact, and how mediation or voluntary compliance would not be adequate?

[Brian Allen, As an Individual]

Mr. Chairman and committee members, I would like to thank you for this opportunity to present our community's concerns and recommendations regarding the amendments contained in clause 29 of Bill C-11. With the support of Mayor Wayne Wright and James Crosty, the president of the Quayside Community Board, I am representing the interests of 2,000 residents in New Westminster who reside within 200 metres of the New Westminster rail yard.

All of us here today recognize rail yard operations can create a significant amount of noise that negatively impacts many tens of thousands of Canadians living in close proximity to rail yards across Canada. The amendments contained in clause 29 of Bill C-11 need to be significantly modified if they are to truly address the concerns Canadians have with railway noise in close proximity to high-density residential areas such as the New Westminster Quay.

We recognize that the amendments in clause 29 of Bill C-11 were formulated in a way that requires the railways and concerned parties to try to resolve the noise problem through mediation. While this may be a desirable approach, it is not one that is realistic. We have supplied the committee with our report on the New Westminster rail yard operations and the efforts made over many years by local residents to try to work with the railways to eliminate or mitigate noise emanating from the rail yards. The bottom line is that they do not see this as their problem, and they see little or no need to do anything about this problem.

We have also supplied the committee with our rationale of why the amendments contained in clause 29 of Bill C-11 should be modified to better protect the interests of all residents who reside in low-rise and high-rise apartments in close proximity to rail yards. The following are suggested changes to the amendments contained in clause 29 of Bill C-11. These modifications are only suggestions. You may know a better way of wording the amendments to meet our common objective.

We recommend that proposed section 95.1 be changed to read:

When constructing or operating a railway, a railway company must not cause unreasonable noise and must comply fully with all agency guidelines issued under subsection 95.2, taking into account a) its obligations under sections 113 and 114 if applicable, b) its operational requirements, and c) the area where the construction or operation takes place.

We also recommend that the following new subsection be added to proposed section 95.1:

Notwithstanding 95.1, where a rail yard or line is within 300 meters of high-density residential housing, railways can only shunt, couple, decouple rail cars and idle engines between the hours of 9:00 AM and 5:00 PM, Monday to Friday, excluding statutory holidays, unless authorized by the Minister of Transportation on a temporary basis during a National Emergency.

Under this proposed section, we would also recommend the following addition: “At no time shall a rail engine be left idling.”

We would like to see proposed section 95.2 changed to reflect the following points:

1) The Agency shall issue and publish for public access, in any manner that it considers appropriate, guidelines with respect to a) the elements that the Agency will use to determine whether a railway company is complying with section 95.1, and b) the process of collaborative resolution of noise complaints relating to the construction or operation of railways.

2) The Agency must consult with interested parties including municipalities where there are rail operations before issuing any guideline.

3) The guidelines are not statutory instruments within the meaning of the Statutory Instruments Act.

For the balance of the amendments contained in clause 29 of Bill C-11, it is not clear what sanctions, if any, would be possible if a railway does not comply fully with an order from the agency. We need to ensure that the Canadian Transportation Agency has the authority to levy sanctions. We must also ensure that these sanctions can be enforced. Otherwise, why would the rail companies feel compelled to comply with any order or ruling from the Canadian Transportation Agency?

Mr. Chairman, I thank the committee for taking the time to listen to our concerns and recommendations regarding clause 29 of Bill C-11.

Thank you.

[Paul Gantous, ProPointe]

Hello, my name is Paul Gantous. I represent a small group of residents in Pointe St-Charles, which is in the centre-south district of Montreal. We live very close to the Alstom rail yards.

My brief is pretty much in line with and very similar to the briefs you've already heard. We have the same concerns. In our opinion, the amount of shunting noise that's going on—it's been going on the same amount of time, since 1998-99—in the neighbourhood, close to people's houses, especially at two, three, and four in the morning, has increased exponentially.

I won't repeat some of the points these gentlemen have made already. I'll just point out the three things that are of great concern to us. One, as has already been said, there's no qualification of noise regulation in Bill C-11, and we believe it should be tied to the World Health Organization's community noise guidelines. The numbers are in our brief, but I'll just quickly mention that at night there should be a decibel level of no more than 30 decibels within a bedroom, which corresponds to 45 decibels outside the house.

Something that concerns us in the language of Bill C-11 itself is in the proposed section 95.1 of the Canada Transportation Act. It's just one line, paragraph (b), which says “taking into account...(b) its operational requirements”, referring to the railway company's. We're worried that this can be used to override the intent of the law. If the intent of the law is to protect people from excessive noise in the middle of the night, but the railway company can just come back and say yes, but we have operational requirements, it's equivalent to a “notwithstanding” clause in relation to paragraph (a). We're worried about that and would like to see paragraph (a) take precedence over paragraph (b).

The other thing we're very concerned with is the carrying and the parking of toxic chemicals in these trains, toxic chemicals that are parked in our neighbourhood, toxic chemicals that are carried repeatedly through the heart of Montreal, through residential neighbourhoods that are very close to downtown. To look at the number of derailments, CN reported 70 in 2005, up from 49 derailments in 2004.

Just this past spring, I believe it was, there was a derailment on the Mercier Bridge going from Montreal to the South Shore. If these cars had been carrying toxic chemicals, could we have possibly been in a very dangerous situation? For anyone who lives in the neighbourhood, for anyone who happened to be passing through the neighbourhood.... Considering the proximity to downtown, the number of people this could affect would just be enormous. We're very concerned about that, let alone the fact that toxic chemicals are moving through Montreal when probably their destination is not within the city of Montreal—they could easily be routed around Montreal, but they're not—and that they're parked very often in Montreal, just sitting on the rails overnight.

What happens if there are kids playing around there? There are fences around these rail lines, but we've all been children; we've all hopped fences when we were kids. There are going to be kids getting near these cars, and the cars should not be parked anywhere that anyone can have access to them other than the rail employees. And they shouldn't be in populated centres.

Other than that, the conclusion is that we currently seem to be in a void of regulation in the train industry with respect to noise pollution. As has been said already, the municipalities and provinces are unable to apply their noise regulations where this industry is concerned.

We don't seek to remove the train industry; we seek to live in harmony with it, and we insist that we be able to coexist with them in a way that does not reduce the quality of life because of either noise pollution or fear of toxic chemicals being run through our neighbourhoods, and by an industry that seems to be running without control at this point in time.

Thank you.

[Robert Dalpé, Comité Anti-Bruit]

Thank you, Mr. Chairman, for inviting me here today to speak to you about Bill C-11.

For the past 10 years I have lived next to the Hochelaga shunting yard. On my own, as well as with some of my neighbours, and more recently, with the support of my member of Parliament, Mr. Réal Ménard, I have made a number of attempts to deal with this issue; since there is no regulatory framework, we were unsuccessful.

We would very much like to see Bill C-11 passed as soon as possible, with the following minor adjustments. In the interest of clarity, I will deal with only two points, which I intend to emphasize.

The first relates to the lack of a regulatory framework to deal with the environmental impact of railway activities. The court decision to amend the mandate of the Canadian Transportation Agency has left a void when it comes to enforcing environmental standards in this area. Other modes of transportation have environmental standards and mechanisms to enforce them. In the case of the railways, the people in charge of the regulations suggest that we negotiate with the railway company management. As individuals with limited means, we must try to have the standards enforced, standards which, for the time being, are none existent. Moreover, as has already been said, there is no one to arbitrate a disagreement between the two parties. Therefore, I would first emphasize the importance of having a regulatory framework and allowing the Canadian Transportation Agency to enforce environmental standards.

I will now address my second point.

Bill C-11 deals with noise. That is the only concept that is stated exclusively. We would like other aspects to be included, so that things are perfectly clear. The Transportation Agency itself constantly raises the three following points: noise, smoke and vibrations. Let's look at pollution caused by odours and smoke. What we hate even more than noise coming from the Hochelaga shunting yard is smoke pollution. The engines are not well maintained, and there is often a chronic problem with locomotives idling, which is really a euphemism. These engines run for hours but they don't go anywhere.

At the moment, there is no regulation for these companies and nothing that is enforced by any federal government body. So these engines can idle for hours, which causes pollution and—this is something that never ceases to amaze us—a huge waste of fuel.

In closing, I would say that I would like to see a regulatory framework specific to environmental issues applied to rail transportation, something that is similar to the rules for other modes of transport. There should be penalties included, and they should be enforced by a recognized authority. Moreover, the regulations should promote a better protection of the environment. That would include noise, air quality, energy saving and the health of our citizens.

[Christiane Théberge, Vice-President, Public Affairs and GM Eastern Canada for the Association of Canadian Travel agencies (ACTA) , Travellers' Protection Initiative]

The second concern we would like to address is with respect to airfare advertising transparency. We were here earlier on and heard a great deal about the matter. We believe that the proposed amendments in Bill C-11 will only give the minister power to prescribe regulations sometimes in the future. TPI does not believe that the airlines will willingly change their advertising practices. We see every indication that they increasingly tend to break up their airfares and announce one way fares when these are not even available. We have seen cases where consumers, upon completing the transaction, had paid 25%, 50% or even 90% more the amount initially advertised by the airline.

In the past, the airline industry has promised to take voluntary measures, but they never delivered the goods. We are therefore skeptical of arguments put forward by the airlines, in other words that the airline industry can be self-regulating with respect to consumers' interests. Despite years of discussions with the airline industry and a series of false starts, the airline industry has not moved voluntary on this issue.

We believe that the requirement to full disclosure, with details, should be firmly entrenched in the legislation and apply to all airlines which advertise in Canada. After all, air carriers providing services in United States are already subject to these requirements. There is indeed American legislation requiring that air carriers disclose their fares in full. It is stipulated that any advertising or solicitation by an air carrier or by one of its agents or middlemen will be considered an unfair or deceptive practice, unless the price stated is entire price to be paid by the customer to the air carrier, or the agent. In subsequent interpretations of this requirement, the US DOT has issued notices to clarify that the intent of the rule is to ensure that members of the public are given proper fare information on which to base their airline travel purchasing decisions.

It should also be noted that the US DOT just recently refused to change its rule and enforcement policy that have been in place for 21 years. The Department concluded that the current practice protects consumers and helps them compare prices. It also found that the current rule promotes healthy competition while leaving airlines with freedom to innovate.

Because Canadian airlines are not covered by any provincial regulations, they perpetuate a situation where consumers often experience “sticker shock” when they see the final travel bill. As was mentioned earlier by Michael Pepper, several provincial jurisdictions including Quebec and Ontario, already require that travel agents and wholesalers be fully transparent when it comes to their advertising, something which air carriers are not subjected too, I might add. In Ontario, there is the requirement that the advertised price indicates clearly and in an obvious manner to the consumer all additional fees , with the exception of provincial sales taxes and GST. The same applies in Quebec.

It is important to remember, when we refer the healthy competition within this industry that the current situation gives airlines an unfair advantage over , in many cases, largely small businesses, creating an uneven playing field at the expense of travel agents and wholesalers and also consumers.

TPI is therefore of the view that transparency in advertising needs to be entwined in the legislation and not left to the discretion of the Minister of Transport and the agency.

One other issue is with respect to the air travel Complaints Commissioner. TPI members certainly supported the position and role of the airline Complaints Commissioner when it was created. While we believe that the Commissioner was hampered in his/her position by a lack of powers to take substantive action, having a visible place for consumers to voice their concerns and issues, and having the Commissioner annual report, added an element of transparency to the system, that cannot be replaced by the officials at the Canada Transportation Agency. While we have confidence that the CTA can adequately carry out this function, we are concerned that the issues will loose their public focus., through what was referred to earlier as the “embarrassment” that such an annual report could bring about. We do believe that this balance is important to the consumer, in a way, finally giving consumers some power.

For these reasons, we are prepared to take a “wait and see” approach with respect to this new way of dealing with complaints. However, we expect that the CTA will take a proactive role in ensuring that passenger complaints are appropriately addressed, and that this role is well-known to airline passengers,so that they may know where to lodge their complaints.

In closing, we recognize that this bill addresses many important transportation issues. TPI believes that it is in the public interest that these consumers' concerns about air travel have a proper hearing and debate. By adopting our recommendations and amendments to Bill C-11, we believe that it is possible to adopt measures that would booster consumer confidence and promote competition by ensuring a stable market with transparent and measurable standards applicable across the board. We have all seen the statistics with respect to our main air carriers and that the numbers have been rising from month to month. So this is a stable industry, at the moment.

We thank you for your attention.

[Michael Pepper, President and Chief Executive Officer for Travel Industry Council of Ontario, Travellers' Protection Initiative]

Good afternoon. Thank you for allowing the Travellers' Protection Initiative the opportunity to make a submission today.

My name is Michael Pepper. I'm the CEO of the Travel Industry Council of Ontario, which is known as TICO. We are responsible for regulating travel agents and travel wholesalers in the province of Ontario. There are over 2,500 registered travel agencies, which generate over $7 billion in gross sales per year.

The Travellers' Protection Initiative is an alliance of several organizations. Our goal is to persuade the Minister of Transport to make necessary changes and amendments to Bill C-11. In addition to TICO, our members include the Public Interest Advocacy Centre, represented today by Michael Janigan; Option consommateurs, represented by Marie-Hélène Beaulieu; and the Association of Canadian Travel Agents, represented by Christiane Théberge. Christiane will provide an address following my overview.

These four organizations, together with the Canadian Association of Airline Passengers, represent the interests of consumers, professionals, and small businesses from across Canada. A full list of members can be found in the appendix to our written submission, which I think has been provided to you. The focus of the Travellers' Protection Initiative is consumer protection, and our submission deals not only with what's in the bill, but also with what's not in it.

There are a couple of issues in the bill we want to talk about, but we're also asking the committee to consider making some amendments to include some other things in the bill. We think the bill provides an opportunity for the Government of Canada to take a leadership role in the world by improving consumer protection for its citizens who travel by air. There are a few fundamental issues that we'd like the government to address.

First of all, we would like stronger financial criteria for air carriers, together with published information on airline service and financial performance. The issue of airline advertising has been mentioned. We have experienced full price disclosure in the three major provinces. We are advocating full price disclosure including all of the auxiliary charges, with the exception of the GST and the PST. The final issue is the continuation of the air travel complaints commissioner.

I'd like to outline our biggest concern with the airlines—the financial criteria. My colleague Christiane Théberge will outline our concerns regarding the advertising disclosure and the continuation of the complaints commissioner.

Our first concern is the financial plight of the airline industry. Many airlines in the world today are undercapitalized and unprofitable. A number of factors have contributed to this, including bad management, overcapacity, the cost of fuel, and an ever-increasing overhead cost that airlines have to incur, collect, and pass on to their customers.

In Canada, however, the airline industry is currently stable. Canadian scheduled and chartered carriers are well managed and profitable. But this was not the case in recent years. Two large carriers in Canada failed, namely Canada 3000 and Jetsgo. Both of these airlines provided a mix of scheduled and charter services.

On the scheduled side, neither of these airlines were subject to financial oversight from the government. While we understand and agree that the Canadian government is not in the airline business, and is a strong advocate of free enterprise, it has to take a leadership role in how air carriers are allowed to behave. Scheduled carriers in Canada are not subject to any ongoing financial criteria. There are neither working capital requirements nor any requirement to hold consumers' advance payments in trust.

As an example, I want to go back to Canada 3000, which failed in November 2001, and the Jetsgo failure of March of last year. Both of these carriers were permitted to sell seats in advance in order to generate cash to pay their operating expenses. This was to the detriment of consumers. When these airlines finally ran out of money, it was the unsuspecting consumer who felt the brunt. Thousands of consumers were either left stranded or did not receive the travel services for which they had paid.

Who bailed them out? Not the federal government, and certainly not the bankrupt airlines. The lucky ones received compensation from provincial compensation funds, credit card charge-backs, or insurance companies. Many, however, received nothing at all.

Unlike provincial consumer protection against travel agency failure, there is no federal compensation fund that reimburses consumers. And yes, I understand, and we understand, why the stronger airlines, like Air Canada and WestJet, would not support such a compensation fund scheme. But there is another remedy available, which needs serious consideration, that would go a long way to improving the financial plight of airlines.

Now is an opportune time to at least introduce stronger entry requirements, requiring ongoing financial criteria such as minimum working capital and trust accounting of consumer advance payments until the services are provided. These requirements would go a long way to improving the financial health of the industry. And why now? Because the Canadian airline sector is in good financial health and it should not have difficulty meeting minimum financial criteria. This would in turn benefit existing carriers, because any new entrants would not be able to do as they have done before, which in the past has diluted the marketplace and put consumers at risk, in addition to bringing down the level for the whole sector.

These financial provisions and the ability of the minister to make regulations in respect of a national compensation fund we think need to be firmly entrenched in the act. I'm saying the ability to make regulations for a compensation fund because perhaps down the road things might turn out differently.

Those are my main issues on the financial side. I would now like to ask my colleague, Christiane Théberge, to conclude with regard to advertising and the complaints commissioner.