Bill C-49 (Historical)

Transportation Modernization Act

An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts

This enactment amends the Canada Transportation Act in respect of air transportation and railway transportation.
With respect to air transportation, it amends the Canada Transportation Act to require the Canadian Transportation Agency to make regulations establishing a new air passenger rights regime and to authorize the Governor in Council to make regulations requiring air carriers and other persons providing services in relation to air transportation to report on different aspects of their performance with respect to passenger experience or quality of service. It amends the definition of Canadian in that Act in order to raise the threshold of voting interests in an air carrier that may be owned and controlled by non-Canadians while retaining its Canadian status, while also establishing specific limits related to such interests. It also amends that Act to create a new process for the review and authorization of arrangements involving two or more transportation undertakings providing air services to take into account considerations respecting competition and broader considerations respecting public interest.
With respect to railway transportation, it amends the Act to, among other things,
(a) provide that the Canadian Transportation Agency will offer information and informal dispute resolution services;
(b) expand the Governor in Council’s powers to make regulations requiring major railway companies to provide to the Minister of Transport and the Agency information relating to rates, service and performance;
(c) repeal provisions of the Act dealing with insolvent railway companies in order to allow the laws of general application respecting bankruptcy and insolvency to apply to those companies;
(d) clarify the factors that must be applied in determining whether railway companies are fulfilling their service obligations;
(e) shorten the period within which a level of service complaint is to be adjudicated by the Agency;
(f) enable shippers to obtain terms in their contracts dealing with amounts to be paid in relation to a failure to comply with conditions related to railway companies’ service obligations;
(g) require the Agency to set the interswitching rate annually;
(h) create a new remedy for shippers who have access to the lines of only one railway company at the point of origin or destination of the movement of traffic in circumstances where interswitching is not available;
(i) change the process for the transfer and discontinuance of railway lines to, among other things, require railway companies to make certain information available to the Minister and the public and establish a remedy for non-compliance with the process;
(j) change provisions respecting the maximum revenue entitlement for the movement of Western grain and require certain railway companies to provide to the Minister and the public information respecting the movement of grain; and
(k) change provisions respecting the final offer arbitration process by, among other things, increasing the maximum amount for the summary process to $2 million and by making a decision of an arbitrator applicable for a period requested by the shipper of up to two years.
It amends the CN Commercialization Act to increase the maximum proportion of voting shares of the Canadian National Railway Company that can be held by any one person to 25%.
It amends the Railway Safety Act to prohibit a railway company from operating railway equipment and a local railway company from operating railway equipment on a railway unless the equipment is fitted with the prescribed recording instruments and the company, in the prescribed manner and circumstances, records the prescribed information using those instruments, collects the information that it records and preserves the information that it collects. This enactment also specifies the circumstances in which the prescribed information that is recorded can be used and communicated by companies, the Minister of Transport and railway safety inspectors.
It amends the Canadian Transportation Accident Investigation and Safety Board Act to allow the use or communication of an on-board recording, as defined in subsection 28(1) of that Act, if that use or communication is expressly authorized under the Aeronautics Act, the National Energy Board Act, the Railway Safety Act or the Canada Shipping Act, 2001.
It amends the Canadian Air Transport Security Authority Act to authorize the Canadian Air Transport Security Authority to enter into agreements for the delivery of screening services on a cost-recovery basis.
It amends the Coasting Trade Act to enable repositioning of empty containers by ships registered in any register. These amendments are conditional on Bill C-30, introduced in the 1st session of the 42nd Parliament and entitled the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act, receiving royal assent and sections 91 to 94 of that Act coming into force.
It amends the Canada Marine Act to permit port authorities and their wholly-owned subsidiaries to receive loans and loan guarantees from the Canada Infrastructure Bank. These amendments are conditional on Bill C-44, introduced in the 1st session of the 42nd Parliament and entitled the Budget Implementation Act, 2017, No. 1, receiving royal assent.
Finally, it makes related and consequential amendments to the Bankruptcy and Insolvency Act, the Competition Act, the Companies’ Creditors Arrangement Act, the Air Canada Public Participation Act, the Budget Implementation Act, 2009 and the Fair Rail for Grain Farmers Act.

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you.

I want to come back to the issue of recorders, which have to do with the category of accidents related to human error. If such recorders were in place, the authorities could know whether the train had violated a specific rule or whether it was travelling faster than the speed limit, for example. Are the rules reviewed? Does Bill C-49 provide for a mechanism to monitor the evolution of technology in rail transportation or in any other mode of transportation?

[Sean Fraser, Liberal, Central Nova, NS]

An additional question back to the watch-list that came up during one of my colleague's lines of questioning, I believe the specific item has been on the watch-list since 2012 or roughly thereabouts.

I'm curious if there are things on this watch-list item that could be better done through Bill C-49, or does the text of the proposed legislation satisfy this watch-list item completely in your view?

[Kathleen Fox]

Again, some of these details will be worked out as part of the regulations.

Right now, under the provisions of Bill C-49 the information gathered as part of random sampling or resulting from an incident or accident investigation conducted by the railway company may not be used for disciplinary purposes, competence, or for judicial proceedings unless it involved tampering with the equipment or there were a threat to safety determined as part of that sampling.

What constitutes a threat to safety remains to be determined under the regulations. This is why we are emphasizing that those regulations and the powers of enforcement have to be strong to make sure there's not inappropriate use or misuse of the data by those who have access to it.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Okay.

I want to go back to the questions my colleague was asking concerning the permitted uses and the protection of workers and follow up your last response to him, which referenced what this information will be collected for in investigating incidents and accidents, but which also said it may be used to identify best practices.

I'll just observe that I'm going to be interested in seeing how you marry the random sampling of data by companies with the fact that for the protection of the workers there will not be continuous monitoring. I don't know how you capture best practices and those kinds of things if you're not actually monitoring continuously. I'm looking forward to seeing how that plays itself out in the regulations.

I want to follow up on the fact that you commented on the watch-list. You said that this was something you had identified many years ago on your watch-list. Is there anything else on your watch-list that perhaps should have been included here in Bill C-49 or that you would have liked to see included?

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you once again, Madam Chair.

When we study a bill that is as comprehensive as Bill C-49, we can make amendments to its content. We can also say what the bill is missing and talk about amendments that should be part of it.

I understand your position on voice and video recorders. However, last year, a study on aviation safety showed that many recommendations issued by the TSB remained without a response.

When it comes to rail transportation, or any other mode of transportation, as Bill C-49 is broad in scope, are there two or three priority issues—aside from voice and video recorders—you would like us to add to such an important bill as Bill C-49?

[Kathleen Fox]

If we look at the use by the railway companies, they can use it in two specific circumstances under Bill C-49. One is to investigate an incident or an accident that is not being investigated by the TSB.

The other is that on a random-sampling basis, as part of their safety management system, they can do samples to look at how crews are operating the train. During that period, they may identify procedural deficiencies or training deficiencies, on which they could then take action on a systemic basis to reduce risk.

[Robert Aubin, NDP, Trois-Rivières, QC]

Do you see those automatic measures in Bill C-49 or not?

In this era where means of transportation are increasingly intelligent—our vehicles can recognize a potential accident—instead of having a recorder, would it not be more important to adopt measures or have technology on locomotives that makes it possible to intervene and not only to determine where the error was after the fact?

[Robert Aubin, NDP, Trois-Rivières, QC]

That gives me a good opening. For the incidents that represent 42% of all accidents, to what extent could voice and video recorders have helped prevent what I consider the greatest factor in accidents involving human error, namely, conductor fatigue?

In such cases, could a digital recorder change anything at all? Does Bill C-49 fail to provide sufficient clarity? It does not contain any measures to prevent conductor fatigue and, unfortunately, we will not know until after the fact that nothing could have been done.

[Jean Laporte]

Yes.

Under the new legislation, under Bill C-49, in the case of LVVR, we would be able to work with Transport Canada. Also, Transport Canada would have enforcement powers under the Railway Safety Act.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

We heard from the department officials from Transport Canada that they had undertaken extensive consultations on everything that we see before us in Bill C-49. Was the Canadian Transportation Safety Board involved in those consultations on this specific issue?

As an observation, the main union representing train engineers has historically been opposed to LVVRs. Can you tell us what has been done to ease their concerns with this measure that is included in Bill C-49?

[Kathleen Fox, Chair, Canadian Transportation Accident Investigation and Safety Board]

Thank you, Madam Chair.

Good afternoon and thank you very much, Madam Chair and honourable members, for inviting the Transportation Safety Board of Canada to appear today so that we can answer your questions regarding Bill C-49.

As you know, this bill introduces changes to the Railway Safety Act and to the Canadian Transportation Accident Investigation and Safety Board Act, and these changes would require a mandatory installation of voice and video recorders in locomotive cabs operating on main track and would expand access to those recordings to Transport Canada and the railway companies under specified conditions. You may also know that these kinds of recordings have been in widespread use on board ships and aircraft for many years.

I bring with me today three colleagues who offer a wealth of experience.

Mr. Jean Laporte is our chief operating officer. He has been with the TSB since it was created and has extensive knowledge of our mandate and processes.

To my left, Mr. Mark Clitsome is a former director of investigations for the air branch and has been working closely with Transport Canada on the proposed legislative changes as well as those changes proposed to our own act.

On my far right, Mr. Kirby Jang is our director for rail and pipeline investigations and was heavily involved in the study on locomotive voice and video recorders that was released last year.

I'll keep my opening remarks brief today so that we can get to your questions quickly. In fact, there are just four key points I would like to make.

Number one is that at the TSB we need voice and video recorders in locomotive cabs to better conduct our investigations.

This is so critical that we have made two recommendations to this effect and put it on our Watchlist of key safety issues. Without locomotive voice and video recorders, or LVVRs, our investigators do not have access to all the information that they need to find out what happened—information that we need to help make Canada's rail network safer.

Let me give you an example.

On February 26, 2012, a VIA Rail passenger train derailed near Burlington, Ontario, killing the three crew in the cab and leaving dozens of passengers injured. The event recorder on board gave us some data, which is how we know that train was travelling 67 miles per hour on a crossover with a maximum speed of 15 miles per hour. What we were never able to determine with certainty was why. Did the crew not see the signals telling them to slow down, or did they see them but somehow misinterpret them? We just don't know, and we never will. An in-cab voice and video recorder would have provided a better understanding of the operational and human factors affecting that crew and would have helped point investigators toward safety deficiencies that could then have been mitigated.

This brings me to my second point. The information obtained from voice and video recorders must remain privileged. It must not be shared publicly. It must remain protected so that only those with the authority and the direct need to use it for legitimate safety purposes may do so.

Third, the information from selected voice and video recorders should be made available to railway companies for use in the context of a non-punitive, proactive safety management system.

Railway companies should be able to review the actions of their employees, for example, to see if track signals are always being called out, or if a train's limit of authority has been exceeded—actions that on their own might not directly cause an accident, but which could still indicate areas where safety can be improved.

This should not be for the purposes of discipline but rather to identify and correct systemic issues, which might lead to improvements in operating procedures or training. I stress, though, that this must happen in a non-punitive environment, which is why I make my last point. Notwithstanding the fact that we want railways to be given some access to these recordings, appropriate safeguards must be built into the legislation and the regulations to ensure that this information is not used for disciplinary purposes, except in the most egregious circumstances.

This final requirement may ultimately prove to be among the most challenging, in part because it relies on the existence of something called a “just culture”. This can be defined as an environment that draws a clear distinction between simple human mistakes and unacceptable behaviour, one that does not immediately blame the worker but seeks first to find systemic contributing factors.

Canadian railways, however, have often demonstrated a very rules-based punitive culture. While progress is being made to improve that culture, the TSB nonetheless understands employee concerns about the use and possible misuse of this kind of data.

Transport Canada should also have access to these recordings for safety oversight and should be able to use these recordings when taking action against an operator, but not against individual employees.

The proposed legislative changes are a departure from the way things have always been done, but as transportation evolves, so too must the way we do our work. There is little doubt that the information contained in voice and video recordings can be a valuable tool when used for legitimate safety purposes. The legislation and its implementation need to achieve the right balance between the rights of employees and the responsibility of operators to ensure the safety of their operations.

Thank you. We are prepared to answer any questions you may have.

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you.

My question pertains to the Federal Railroad Administration, which is also opposed to voice and video recorders. In the report, they say the recorders are detrimental to staff relations.

I raised the following question when I spoke earlier. I wonder whether recorders are really the solution or whether Bill C-49 should instead introduce every measure possible to prevent accidents. Consider the transportation of dangerous substances, for example, which is barely mentioned in Bill C-49. This refers to transporting all kinds of substances by rail. Yet Bill C-49 does not include the development of a transportation mode for the future or specific features for dangerous goods. These include inflammable products, for example. Since trains are getting longer and longer, the risk of rail crashes is even greater.

Have these issues been considered or are recorders being offered as the answer to everything?

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

One of the questions I have then is with regard to long-haul interswitching rate setting. I know that in Bill C-49, paragraph 135(3)(b), in setting an LHI rate the CTA has to have regard for the rates of comparable traffic for the distance over which the traffic is moved. However, in the “frequently asked questions” document that was circulated last week, it is noted that this does not mean that an LHI rate would be a simple pro-rated amount for the LHI short-haul based on the total distance from origin to destination of the long haul.

Will the total distance from origin to its ultimate final destination and the rates for comparable traffic for these distances be taken into account when setting an LHI rate? Really, it's based on what is perceived to be two different explanations by Transport Canada.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Madam Chair.

I just want to follow up on some of my colleague's questions around long-haul interswitching as it goes to the extended interswitching that was in Bill C-30. I thought I heard you say that some of the measures in Bill C-30 have been carried over in Bill C-49, but in fact there are no measures in place right now when it comes to interswitching or long-haul interswitching or extended interswitching because that legislation was allowed to sunset on August 1, before this legislation has received royal assent. So right now our shippers are without any ability to do any kind of long-haul or extended interswitching. Is that correct?

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you.

I would like to draw some more comparisons. For a bill as important as this one, as for any other bill, I think it is important to compare ourselves with others.

You used this approach earlier in answering Mr. Fraser's question about the 49% maximum. For my part, I would like to go back to the two points I mentioned earlier, locomotive voice and video recorders and the passenger bill of rights.

It appears that voice and video recordings are not taken into consideration in Canada, unlike European countries, New Zealand and Australia. As to the passenger bill of rights, those same countries, and in particular European countries, have a much stronger bill of rights than what is proposed in Bill C-49.

There will be consultations. Why isn't Canada doing what is being done elsewhere? That is my main question. In the upcoming consultations on the passenger bill of rights, would it not be helpful to draw on a specific example rather than broad philosophical principles?