Bill C-33 (Historical)

Safer Railways Act

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

These amendments amend the Railway Safety Act to, among other things,
(a) improve the oversight capacity of the Department of Transport by, for example, requiring railway companies to obtain a safety-based railway operating certificate indicating compliance with regulatory requirements;
(b) strengthen that Department’s enforcement powers by introducing administrative monetary penalties and increasing court-enforced penalties;
(c) enhance the role of safety management systems by including a provision for a railway executive accountable for safety and a non-punitive reporting system for employees of railway companies;
(d) clarify the authority and responsibilities of the Minister of Transport with respect to railway matters; and
(e) expand regulation-making authorities and clarify the process for rule making by railway companies.

[Jeff Watson, Conservative, Essex, ON]

Oh, I'm sorry, Mr. Kelsey; that was you.

Transport Canada would need authority to do that. This bill provides that authority. Do you have any objection to that authority being established through Bill C-33? I mean, if you want them to come in and audit, they'd need the authority to do it by law.

[Gregory Percy]

Absolutely there are, and I would say the freight, the inter-city passenger train, and commuter train all take the high road and adhere to the higher standard because it's good business to do that. But they may vary across Canada; I can't really speak to that that well.

But I did just want to speak to the difference between provincial and federal. Certainly the Province of Ontario does not regulate railways itself. They actually have an agreement with Transport Canada to regulate on their behalf. That's specific to short lines and freight railways, and commuter as well.

Commuter is different. I'll give you an example. With GO Transit, GO actually owns, and in April will own 61% of its rail corridor, and is deemed unregulated. This Bill C-33 deals, for us, with the other 39%, which is where we run over CN or CP.

[Roger Gaudet, Bloc, Montcalm, QC]

Mr. Kelsey, in Vancouver, what do you think of Bill C-33?

[Roger Gaudet, Bloc, Montcalm, QC]

Do you believe that, with Bill C-33, the requirement on the part of provincial companies to adopt these standards will amount to duplication, bringing about useless additional costs which will in reality be passed on to taxpayers and users?

[Gregory Percy]

We would have no problem working with Transport Canada to create our own memorandum of understanding in terms of the rigour they feel is appropriate to manage safety with us. Again, we hold ourselves up to high standards. But we are more than pleased to work directly with them in a different set of circumstances from what is outlined in Bill C-33.

[Gregory Percy]

We would have no problem with Transport Canada contacting us directly. But I would add that the model today works. Again, our safety record is admirable.

You are correct, Transport Canada goes through the class one railways today. We'd be more than pleased if they came directly to us. Our view is that they should be able to do that, but we don't feel that Bill C-33 is the mechanism to enable that to happen.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair.

I would like to thank both of you and Mr. Kelsey, who is from my hometown, Surrey.

Federal crown corporations and provinces are exempt from monetary penalties under Bill C-33. Does that apply to the provincial crown corporations and local transit authorities as well, or should it?

[Gregory Percy, Vice-President, Operations, Greater Toronto Transit Authority; Urban Transit Authorities]

Thank you.

We are urban transit authorities, publicly owned and funded transit regulatory authorities, established under provincial law, with local and regional mandates and accountability. We are committed to safe operations, and our safety records and investments show this.

Bill C-33, as presently written, would impose inappropriate, inefficient, and expensive burdens and risks on urban transit authorities, burdens and risks that cannot be justified or fulfilled, in our view. The three largest UTAs representing commuters in Vancouver, Toronto, and Montreal--a total of more than 65 million riders annually--make this joint submission to this committee to ask that amendments be made to this legislation. We have shared interests and shared challenges, and we all serve the same public: the taxpayer.

In particular, we request that this honourable committee amend the definition of “company” and “local railway company”, which inappropriately but inevitably include UTAs, which already fall under provincial jurisdiction. We also ask that the committee exempt UTAs from the bill's requirement to apply for federal railway operating certificates.

The bill's definition of a local railway company expands the application and provisions regarding rules and all the proposed administrative and other compliance and filing measures in the Railway Safety Act. In our view, this is unjustified. Parliament has already acknowledged that the UTAs have a distinct and unique public nature. UTAs fall under provincial jurisdiction; each is subject to the special provincial legislation that created them and gives them authority.

We are governed by boards of directors that oversee and are responsible for the professional management of our commuters and other integrated operations. We are already subject to rigorous special checks and balances and taxpayer demands and public scrutiny, which differentiates us from commercial freight operators. UTAs are already publicly accountable, committed to safety, and committed to serving local taxpayers.

We encourage you to question the authority of Parliament to enact laws that impose new obligations and liabilities on provincial entities that are already responsible and accountable. You must question a bill that extends the reach of the federal minister to regulate and certify a provincial urban transit authority and to affect its local public mandate.

None of the urban transit authorities in Canada own all of their own railway lines. They operate on federally regulated host lines, which are owned by federally regulated railway companies. The UTAs enter into contracts with those same host companies to ensure the safe management of the railway. These agreements require the UTAs to undertake extensive and onerous responsibilities and to incur substantial liabilities for their passenger operations. These include the acquisition of insurance coverage, as required by the host railways, which agree to maintain their lines in conformity with existing federal laws and prevailing standards. In exchange, the host must offer a safe railway upon which to operate.

UTAs have no authority over the host railway to inspect or audit them. We cannot manage their infrastructure or staff or contractors. We cannot hold the host accountable if the host departs from required federal standards. It makes no sense, therefore, to require UTAs to be accountable for their hosts' actions as part of a federal certification requirement or as an extension of federal regulatory oversight.

Safety is at the heart of this legislation, and it's important to put on the record that TransLink, Metrolinx's Go Transit, and Agence métropolitaine de transport have operated and continue to operate among the safest railway operations in Canada. It cannot be said that Bill C-33 was introduced because of any safety concerns about passenger trains operated by UTAs in Canada. Transport Canada's representatives must concede and have in this committee conceded this.

The report of the rail safety review panel identified no pressing regulatory issue or concern in relation to UTAs. It did not find any need or justification for making a legislative change to sweep us unnecessarily under federal oversight, which would duplicate existing provisions and processes, would be neither flexible nor efficient, and would not really add to safety.

Bill C-33 is in error in attempting to hold provincial UTAs and their senior officers accountable for what they themselves cannot reasonably control or direct on the lines of federal railways.

The bill also contemplates extensive new obligations to keep and preserve records in order to comply with the federal minister's demand for information. This is another onerous, expensive, and totally unnecessary requirement to which UTAs should not be required to submit. We already have reporting and documentary obligations to our constituting authorities. Here again, Bill C-33 proposes another onerous, expensive, and totally unnecessary burden on UTAs.

All of these proposals in Bill C-33 represent considerable costs for UTAs. Unlike commercial freight railways, UTAs, by their very nature, have no means to recover all of their costs. Additional expenses caused by unnecessary and burdensome requirements will ultimately mean that either taxpayer and commuter support of UTAs will increase, or that necessary growth in urban transit will be constrained, or that service to the public will be reduced, all because of an unnecessarily broad definition of "company" or "local railway company".

For all these reasons, we, the urban transit authorities of Vancouver, Toronto, and Montreal, ask this honourable committee to amend the provisions in Bill C-33 to exempt urban transit authorities, already recognized and federally defined, from the scope and application of the bill. In particular, exempt UTAs from the newly defined terms "company" and "local railway company" and from the requirement to apply and qualify for a federal railway operating certificate.

We thank you for this opportunity to make these submissions. I'd be pleased to entertain any questions.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

On another note, and I'm going to go back to Mr. McCallum's question, because you diverted those to Mr. Miller and Mr. Wilson. I'm going to give you only one option. He met with the GO Train people this morning, and I have a similar authority, TransLink, in my part of the woods.

We all know that TransLink has an excellent record, and excellent accountability to the public as well, because it's another level of government. If I give you one option and ask you the question, would you support their recommendation for them to be exempted from Bill C-33? Would you support that?

[Glen Wilson]

CP is also a supporter of Bill C-33, and behind the submission you received is simply a desire to improve it further.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair. Thank you, of course, to our witnesses for appearing today in consideration of Bill C-33.

Mr. Miller, in one of your statements you said one accident is one too many. In 2009, according to the Transportation Safety Board, there were 1,038 rail accidents, including 68 main-track derailments. I'm going to submit that there's significantly more work to do, and our government believes, of course, that Bill C-33 goes a long way toward that. It was broadly consulted on. It responds to 56 recommendations made by the special expert panel doing a rail safety review, as well as 14 recommendations by this very committee.

Mr. Mackay, I hope I haven't discerned something more than is here, but I sense a subtle shift or an intention to shift the discussion to things like the government with respect to crossings, or municipalities with respect to municipal planning, when this bill responds to safety reviews about your member companies, CN, CP, and to a lesser extent VIA. When I say lesser extent, the expert panel had more favourable things to say about the safety culture at VIA than they did about the other two companies. So I'm hoping to talk about the bill.

We've had many witnesses here who have said, for example, that Bill C-33 is “the right thing to do”. I'm going to ask each of the companies, CP, CN, and VIA, whether they agree, broadly speaking, about Bill C-33, that it is in fact the right thing to do. Maybe we'll start with CN.

[Cliff Mackay, President and Chief Executive Officer, Railway Association of Canada]

Thank you, Mr. Chair.

Before I start, I should say one thing. Unfortunately, I have some health issues, so I may have to leave the room for a very short period of time a couple of times. I would ask the committee's indulgence.

The only other thing I would say is that I think it's very appropriate that we're meeting in this committee room.

Mr. Chair and honourable members, let me thank you for the opportunity to appear today to comment on Bill C-33, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.

The Railway Association of Canada represents 52 freight, commuter, intercity, and tourism railways that make up about 99% of all of the railway operations in the country. The railway industry contributes nearly $11 billion annually to the Canadian economy, and our direct employment is around 35,000 people a year.

With me today, representing the industry, are: Mr. Paul Miller, chief safety and sustainability officer with CN; Mr. John Marginson, chief operating officer with VIA Rail; and Mr. Glen Wilson, vice-president, safety, environment and regulatory affairs, from CP.

Mr. Chairman, we had hoped to have one of our three board members representing short lines here today, but unfortunately, with the short notice, they were all out of the country at the moment, frankly. I'd be quite happy to speak for them, but we would have liked them to be here as well.

Let me begin by saying that I had the opportunity to read the comments made by members during the second reading debate of Bill C-33, and I was frankly very pleased to see that everyone was on the same page with regard to the most important element of this legislation, that is, improving rail safety.

From the outset, I'd like to say that safety is a very high priority for our industry. I would point out that the railways have worked closely with Transport Canada, labour organizations, and other interested stakeholders to develop the action plans and recommendations flowing out of the 2007 Railway Safety Act review and the committee's reports on the same subject.

We are very supportive of the proposed legislation, and, as explained in detail in our written submission, we believe that more can be done to improve safety, even beyond what is on the table at the moment.

Without overburdening you with statistics, I'm pleased to say that the railway safety record in Canada continues to improve. Our track record might not be perfect, but it's impressive. For example, safety performance as measured by accidents per million train miles in 2010 was superior to results in 2009, as well as results when measured against the five-year average. These results were achieved at the same time that there was growing freight and passenger traffic, and we had the continuing pressure from increased exposure from urban sprawl and heavy traffic on roads.

Increased proximity between rail operations and everyday life in our communities across Canada is a risk factor that must be addressed to improve rail safety. We believe that Bill C-33 can be strengthened in this area. At the centre of these concerns involving proximity between railway lands and municipal development is the wide variation that exists across Canada with respect to land use planning regulations.

In recommendation 34 of its report, the advisory panel recommended that the Railway Safety Act be amended to require developers and municipalities to engage in a process of consultation with railway companies prior to any decision respecting land use that may affect railway safety. Unfortunately, Bill C-33 is silent on this issue at this time.

We believe that one of the most efficient ways of improving railway safety in this area is to give the Governor in Council the power to make regulations respecting notices that should be given to railways regarding the establishment of a local plan of subdivision, or zoning by-law, or proposed amendments thereto, where the subject land is within 300 metres of a railway line or railway yard. We believe the 300 metres is a distance that makes sense from a safety point of view.

Further, we also believe, as is done in the Aeronautics Act today, that power should be given to the Governor in Council to make regulations respecting the control or prohibition of any other activity in the vicinity of a land on which a line of railway is situated, to the extent that it could constitute a threat to safe railway operations.

Mr. Chair, we believe these two simple measures would go a great distance to reducing accidents and incidents involving railways and the general public.

Another simple measure suggested by the panel in its recommendation 35 is to limit to the extent practicable the opening of new level crossings in Canada. Bill C-33 does not currently address this issue. The current regime does not take safety into consideration in the decision to open new crossings. Presently the only criteria taken into consideration by the CTA when authorizing the opening of a crossing is the owner's enjoyment of the land in the case of private crossings. This does little to consider safety in the process. For that reason we would ask the committee to consider amending the Canadian Transportation Act via a consequential amendment to authorize the construction of crossings only when there is no other reasonable alternative and when the minister confirms that a formal safety risk assessment concludes that it would be safe to do so.

We hope you will agree with us that proximity and crossing issues require particular attention and consideration. Given the clear relationship that these issues forge between the railways and the public, the railways maintain that Bill C-33 will not result in sufficient improvement in rail safety without the inclusion of provisions addressing these issues. The railways believe that railway safety will be furthered as a result of these inclusions.

I should say, Mr. Chair, that these amendments have been consulted broadly. We have talked to the Federation of Canadian Municipalities. We've talked, of course, to the government, and we've talked to a number of other stakeholders and interested parties. While they are obviously our recommendations, we have not had negative pushback on these recommendations from other players.

In closing, I would say that if the proposed legislation did not go far enough, as the panel suggested, with respect to proximity in crossings, it went too far with respect to safety standards that railways should apply.

Recommendation 24 of the panel observed that improved safety management systems could be gained through better safety performance measures and increased focus on safety culture and a wide range of other recommendations. What it did not recommend or mention in any way was a particular measure for an acceptable safety standard.

That said, Bill C-33 extends beyond the panel's recommendation to introduce regulations that would force railways to implement, as a result of a risk management analysis, remedial actions required to maintain the highest level of safety. This proposed threshold creates a standard that may well be unattainable from a practical perspective. Put simply, it may hinder railways' ability to continue operating, a result that would create grave consequences, not just for the railways but also for the Canadian economy.

The question in our mind is, why reinvent the wheel? The question of a proper level of safety has been debated in the past, particularly during the development of the national transportation policy. I would refer you to section 5 of the CTA. In this instance, the legislation was wisely amended to include the highest practicable level of safety. The railways view a similar standard in the RSA context as both manageable and appropriate. This is one of our main recommendations.

We have other recommendations in our detailed brief that I will not go into today. I have spoken here to these three because we believe they are the three most important in advancing safety in our system.

Once again, on behalf of my colleagues and myself, I'd like to thank the committee for their attention. We look forward to working with you to improve safety in the future.

Mr. Chair, we would be pleased to answer any questions.

Thank you.

[The Chair, Conservative, Merv Tweed]

Thank you, and good afternoon, everyone. Welcome to meeting number 48 of the Standing Committee on Transport, Infrastructure and Communities.

In our orders of the day, pursuant to the order of reference of Wednesday, December 8, 2010, we have Bill C-33, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.

Joining us today we have Mr. Cliff Mackay, president and chief executive officer of the Railway Association of Canada. I'll let him continue with the introductions.

We welcome you. You've been here before, and I know you know the routine. I'll turn it over to you and then we'll move to committee questions.

[The Chair, Conservative, Merv Tweed]

Thank you, and we appreciate your comments and input. As we write this report, we'll be remembering what you've told us today. Thank you.

For the committee, we meet again today at 3:30, on Bill C-33, and I hope everybody will be there.

The meeting is adjourned.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

When we see that threat of dismissal. You brought in a good recommendation that we should probably make part of Bill C-33, that employees be able to report directly to Transport Canada. Do you think it would make a big difference?

Two, because you know how many complaints will be coming in, what cost in dollars will it create for Transport Canada?