Transport Committee on Dec. 12th, 2006

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I want to tell Mr. Julian and other members of the committee that noise was a huge issue for me in particular and for other members of our caucus. We heard it a lot, not just from members here but from everybody. We've had three or four meetings with the department already on this particular section. We've changed it quite a few times, and we've talked about some compromises with Mr. Julian, the Bloc, and the Liberals.

Many of the Conservative members were concerned, until we started to talk about what they were actually planning to do. In the old days, before the 2000 judgment, when they got a noise complaint they would sometimes go into the yard and say they couldn't do shunting there any more, or they had to do shunting over in another part, or maybe they had to build a berm or weld those tracks because there was too much noise vibration.

The agency goes on site and makes determinations about particular things that can be done for different sites, because they're all dramatically different across Canada. So this is the first time we've had legislation on noise and given power to the agency. That's why there's flexibility in it. Unless there are any other comments—

[The Chair, Conservative, Merv Tweed]

Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

The legislative drafter confirmed that this was not against the law and that it was in order. So I didn't look into the issue of noise. My motion reads "must minimize any nuisance". Yours talks about unreasonable noise. I already have a problem with the expression "unreasonable noise". Personally, I would have been more stringent. I have a legal problem here.

I was able to take further steps and I will be receiving confirmation regarding this action a little later, by e-mail. My problem is that I'm working on something else. In other words, I did not focus on the word "noise". You talk about "unreasonable noise", and I feel that this is not adequate. Witnesses suggested the expression "as little noise as possible". I would opt for the expression "minimize the noise". The expressions do have significance.

I am not comfortable. You did not change the expression "unreasonable noise". In other bills, we have said "as little noise as possible". Later on, I will try to table the e-mail which states that this was in compliance. You can do what you like with it. You could reject my motion. That is not a problem, Mr. Chairman. I have more of a legal issue. I am not at all pleased with the House of Commons' legislative drafter, I can tell you that. This is not going very well.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Perhaps Mr. Langlois can respond.

[The Chair, Conservative, Merv Tweed]

Mr. Langlois.

[Alain Langlois, Legal Counsel, Legal Services, Department of Transport]

The word "unreasonable" was chosen because it is currently used by the agency. With expressions such as "as little noise as possible" or "minimize", I can foresee a legal problem. For instance, the word "minimum" is very subjective. What do we mean by "minimize noise"? It must be understood that regardless of what the agency does, clause 95.1 establishes a standard that the railway company must take into account in its operations. The standard must be clear and comprehensible to the company. The word "minimum" would cause a legal problem because it has a broad, ambiguous meaning. It may be very difficult for a railway company to determine what is the minimum level of noise possible.

We are aware of the fact that the expression "as little noise as possible" was in the previous bill. The problem with this expression is that Canadian jurisprudence has but few decisions, if any at all, dealing with the meaning of the expression "as little as possible". This concept is not used frequently to establish a standard, whereas "unreasonable" is a concept found in nearly every existing federal law. Furthermore, it is a concept that the agency must apply on a daily basis. It is included primarily in air transportation provisions.

There is abundant jurisprudence dealing with what is meant by the word "unreasonable". When this bill comes into effect, it will be easy for the railway sector to determine whether or not it is respecting its obligations. There will be no ambiguity. At the same time, when a complaint is filed, the agency will not have any difficulty determining whether or not something is unreasonable. That is why the word "unreasonable" was used.

[The Chair, Conservative, Merv Tweed]

Mr. Julian.

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

Thank you, Mr. Chairman. According to tradition, you of course have the right to inform the committee of your opinion, namely whether something is in order or not; however, it is in fact up to the committee to make the decision. Mr. Laframboise will therefore decide whether or not he wishes to appeal the decision, but we can at least say that there are two different interpretations. There is some ambiguity regarding this matter. I think that the committee should take that into account.

I agree with Mr. Laframboise. Although there is some improvement and certain aspects that I'm pleased to see in the wording used in Mr. Jean's amendments, I feel that they are not as effective as the wording use in the Bloc's amendment. I think that is important.

We heard from several witnesses who said very clearly that we had to deal with the issue of noise and every aspect that had an impact on the people living beside these railway centres. So I think that if Mr. Laframboise wants to appeal, we should consider everything, including the Bloc's amendment.

[The Chair, Conservative, Merv Tweed]

Mr. Bell.

[Don Bell, Liberal, North Vancouver, BC]

Clearly, the thing that concerned me when we had the telephone witnesses in particular.... We had some witnesses from the Quebec area, as I recall, and then we had those who came in by telephone from British Columbia--Langley, New Westminster, Richmond. As I recall their statements, I think the witnesses indicated that their problem in the past had been that the railways had not been cooperative in terms of addressing noise issues, particularly the shunting and switching in the yards.

I understand the problem. I think it was pointed out that in one case in New Westminster, British Columbia, apartment buildings had been built within 100 yards of the railway lines. I see here in amendment NDP-13 a reference to 300 metres, which is about 1,000 feet.

The concern I have is that as in North Vancouver, noise problems have been substantial and they have continued. They're serious problems for a residential area. Whether it's high density or even residential...and I can refer to the Norgate neighbourhood in North Vancouver, where both as mayor and as MP I have had calls in the past from residents concerned about the shunting.

The intensity of the noise seemed to change, number one, with the change of ownership of the railway to some degree. That was where BC Rail switched over. Part of the noise came from the requirement at that time for whistling at crossings. When it was a provincially regulated railway, municipal councils were able to pass resolutions instructing the railway not to whistle, if the municipality chose to make that instruction, which they did through West Vancouver; they did in North Vancouver.

When it became a federally regulated railroad, the municipal bylaws no longer had any effect. The municipal motions no longer had any effect. And not only did the whistling start again, but the shunting complaints went up as well.

So I understand the importance, the obligation, to provide service for the railways. We have a letter from SkyTrain talking about urban rail transit, and another proposal that's later on, and it talks about the conflicts with its operational practicalities.

I just wonder whether or not the term “unreasonable”.... I'm happy to see proposed paragraph 95.1(d), the reference in here to the potential impact on persons residing in properties adjacent to the railway--which is new, I presume. So it does acknowledge that.

We talked before about health. Some of the presentations we had from witnesses talked about whether we could use a World Health Organization or a European standard for noise. I don't know if the department has done any research on that, but it seems to me that we need to put an emphasis on.... The goal should be to create the least noise possible while still operating a railway, rather than leaving the railways with the ability to say they have to run a railway; therefore, they don't need to seriously look at the noise question.

I think whether it's more modern technology, new couplers, different kinds of wheels, or track, or lubrication, or even policies as to how they do things within the yards, whether it's welding the rails, as you said in one example, or others, the goal has to be to reduce noise to the lowest possible level, recognizing that they have to run a railway.

I don't know if that's implicit in this, and that's my concern.

[Helena Borges]

You have raised numerous issues, and I'll try to address them.

I think Monsieur Langlois' response to Monsieur Laframboise about the word “unreasonable” is true. It is true that in a previous version of the bill we had the minimal noise possible. When the drafters went back through the bill, as they normally do when they have the time.... Most of the bills we have use the word “unreasonable”. If you want more on jurisprudence, he can give you more.

The word “unreasonable” is the word that is traditionally used. That onus is on the agency. The agency will have to determine whether the activity and the noise is unreasonable. The railway is told not to make unreasonable noise. It is the agency that's going to determine that. They have the ability to go on the site, check what's happening, and order the solutions to the problem. The agency will be the interpreter of that. They will have the flexibility to deal with those issues.

You raised the issue of train whistles. I think you heard from some of the witnesses that whistling is in fact a federal requirement under the Railway Safety Act. Again, it is a safety rule.

There are already measures in place, where a municipality can work with the railway to eliminate whistling at crossings. There is a process, and I'll outline it quickly for you. Basically, the municipality contacts the railway to look at what the crossing issues are. The two parties--the municipality and the railway--conduct a safety assessment. If both parties agree that whistling can be minimized or eliminated, they send the report to our rail safety inspectors at Transport Canada.

Our rail safety inspectors look at what is being proposed. Often, technologies are put in at the crossing. You have systems, such as flashing lights, bells, arms, and all those kinds of things. Normally the federal government helps to pay for those. We have a railway crossing program, and we pay for up to 80% of the cost of those improvements.

Those things are already there. My safety colleagues are working, now, to look at a new way of whistling. Right now it's based on distance. So rather than basing it on distance, they are looking at basing it on time. The U.S. has already gone in that direction. They are currently looking at the new rule. That should help eliminate how many times the train has to whistle--depending on how far back it is. Hopefully that will alleviate some of the concerns.

I think you also heard, by phone, from Mayor Fassbender in Langley. Again, his issue is whistling. As you know, I deal with Langley closely; I am working very closely with them. The issue there is that the train track goes right through the middle of the town. There are very few grade separations in that town. They're building one now.

We are currently finishing a study on the rail corridor from Deltaport to Abbotsford, to priorize the crossings in terms of the volumes of traffic, and looking at crossings that need to be grade separated because of the traffic volumes and ones that may be closed in an effort to deal with the whistling issue. It's more a whistling issue there than in fact a safety issue.

We're hopeful that early in the new year we'll be able to announce a series of those projects--working with the municipalities, the province, TransLink, and the railways--and that this will be a mutual effort that everybody agrees to.

I can tell you it's going to be very expensive. Grade separations are very expensive. But to us, it's an improvement in terms of reducing the noise from whistling, improving safety for both car and train traffic, and improving the efficiency of movements in an area that is fairly congested. There are seven municipalities that are going to benefit from this.

There are a whole variety of measures we are undertaking that are not just happening there. We are starting similar efforts in the Toronto region, in Montreal, and even in places such as Winnipeg. You'll see more and more grade separation activity starting to happen. We recognize there is a need to make those improvements.

[The Chair, Conservative, Merv Tweed]

Mr. Blaney.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you, Mr. Chairman.

I am pleased to say something as an observer. I simply wanted to tell the committee members that I share the same concerns with respect to the bill and I have understood, further to Mr. Langlois' intervention, that the wording "unreasonable noise"...

Are you a lawyer, Mr. Langlois?

[Alain Langlois]

Yes.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

You are clearly telling me that the words "unreasonable noise" provide you with more flexibility than any other expression such as "as little noise as possible", and that there is no jurisprudence. You are clear on that matter.

[Alain Langlois]

This is terminology that has been interpreted thousands of times by the courts. It is readily understandable to everyone.

The day that this bill comes into effect, the railway will have an obligation to meet the standard. So it's easy for the railway, given the wide range of existing jurisprudence, to know what constitutes an "unreasonable noise". It will also be easy for the agency, should there ever be a complaint, to determine whether or not the railway met its obligation, because the jurisprudence establishes what is meant by unreasonable noise.

As for the other expression, it's not that it would be impossible for the agency to decide on whether or not a complaint was warranted if we use the words "as little noise as possible", it's just that there would be a little bit of uncertainty for a period of perhaps one, two or three years, namely, the time it will take for the agency to establish jurisprudence on the significance of the expression "as little noise as possible".

So that would create certainty which did not exist in the previous bill.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Essentially, our objective to give the bill more teeth will be respected if we refer to "unreasonable noise", because there will be less uncertainty. Is that what you are telling me?

[Alain Langlois]

There is less uncertainty. I will try to ensure that I am not interpreting what that means for the agency, but the word "unreasonable", according to the way it has been interpreted by the courts and if we were to put ourselves in the shoes of any reasonably informed individual... Is the railway company making as little noise as possible or is it making noise that is unreasonable, more noise than it should be making?

As Mr. Bell said, does the concept of unreasonable noise include implicitly the fact that the railway company must make as little noise as possible? Implicitly, yes. If the railway company does not make as little noise as possible, the noise becomes unreasonable. Since the expression "unreasonable" has been interpreted many times, it is easy to understand the consequential obligation.

[The Chair, Conservative, Merv Tweed]

Mr. Bell, did you want to—?

[Don Bell, Liberal, North Vancouver, BC]

I have one final comment for Ms. Borges in particular. The other hat I wear is as critic for the gateway, and part of the Pacific gateway initiative involves, hopefully, increasing the volume through our ports on the west coast, and that implicitly means increasing both truck and rail traffic.

Currently, we expect to see perhaps a 50% increase in container traffic. We're looking at going from 9% to 14% or 17% of west coast trade, so we can see maybe a 50% increase in our container traffic. Containers move on both trains and trucks.

Part of the gateway initiative that we had started as a Liberal government, and which is being carried on to some degree through the Conservative government's gateway corridor initiative, was to have rail grade separations, particularly in the Fraser Valley. Certainly there should be money available in that program. You mentioned they're expensive. There is a benefit not only of reduced noise but increased safety, and also a reduced number of conflicts.

We saw, for example, during the bus strike in the greater Vancouver area a year or two ago the impact of the congestion on the road on the movement of goods and services. Everybody was taking their car to work, and vehicular trucks that could make maybe five deliveries in a day--40-foot semis going to grocery stores and things like that--were limited to one or two deliveries a day. So there was a cost, an impact on the economy. It had an impact on the movement of goods and services.

I recently reviewed the gateway file again and am on top of it, and it's important to know that there is money in that program. It was targeted, and we should make sure it's being accessed. There could be a benefit with regard to noise and inconvenience as well.

[Helena Borges]

In fact, the study I refer to is the study that was announced as part of the Pacific gateway initiative. You will probably have noticed that in the announcement by the current government--the previous government had set $30 million aside for grade separations--the amount has been increased to $50 million. That money will be leveraged from other parties because the federal government cannot pay 100% of these costs. I think it would be at least reasonable for us to assume that that will get tripled, if not quadrupled. If we have all the parties at the table working together, and if everybody can match the federal government's share, it should provide quite a lot of money for numerous grade separations in that corridor.

We agree with you fully: grade separations are becoming probably the most useful piece of infrastructure, particularly in urban areas, to avoid conflicts and improve efficiencies, and to support the growth envisaged under the Pacific gateway initiative.

[The Chair, Conservative, Merv Tweed]

Monsieur Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I wanted to go back to what Mr. Langlois said about the term "minimize" which, according to him, would not be the one usually used in bills. That may be true, but it is the expression that we find in the current Transportation Act. In referring to railway companies, section 95(2) of the Transportation Act reads as follows:

(2) The railway company shall do as little damage as possible in the exercise of its powers.

That is already part of the current legislation, and we have just amended or lowered a requirement that is already contained in the act.

[Alain Langlois]

It must be pointed out that section 95, in its current form, does not refer to noise. Noise was completely excluded from this section. This is what the 2000 decision was all about, when the agency lost jurisdiction in the area of noise. The agency used this provision to assume its responsibility with respect to noise, and the Court affirmed that this position had nothing whatsoever to do with noise. It deals with other damages that can occur.

In addition, I can tell you that we have absolutely no jurisprudence under this section.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

If there is no jurisprudence and since this section was valid for any other nuisance with the exception of noise, it may also be valid for nuisances caused by noise.