Transport Committee on Feb. 8th, 2011

[Luc Bourdon]

It was done in the States by the U.S. Congress, not by the FRA. For us, it would be either through regulations or rules. We have all the power in the current act to do it, if we wanted to do it.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Trost.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

Thank you, Mr. Chair.

Mr. Minister, when you were giving your opening remarks, you described a little bit of what the government had done for consultations in preparation for this legislation. Is there anything more you would like to add to that? Is there anyone else whom the government consulted, other than those you noted in your opening statement?

[Rob Merrifield, Conservative, Yellowhead, AB]

I think it's important. In our consultation, players all had input...that they buy into this piece of legislation. If you're going to change the culture, everyone has to be part of it.

That's really the true intent of the bill. It's not to say “I caught you” because you didn't comply with something; it's about changing the culture and saving lives and equipment and so on and protecting our environment.

So we consulted widely. Stakeholders included the railway companies, industry associations, railway employees, the unions, railway customers and their associations, municipalities and their associations, provincial and territorial governments, aboriginal and environmental groups, emergency response groups, the public, Transport Canada, and other federal departments and agencies. I don't know whether I've missed anyone in Canada, but I think that covers pretty much everyone.

We have a tremendous amount of user support and interest support. In fact, I don't know anyone who is saying this is a bad idea, that we shouldn't be going here. The consultation is one thing. It is extensive and it is broad, but what is really most important is that people and both railways and those using the railways are saying that this is something that is overdue and that we should implement.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

This legislation introduces some new oversight tools. Can you give us a brief summary of what you feel the main ones are and why they were included?

[Rob Merrifield, Conservative, Yellowhead, AB]

Yes. The first of the oversight tools is the operating certificate. This certificate is a compulsory part in the act. If you don't have it, you're not running. It is very important that we make sure it's complied with.

We also make sure that it's complied with on a risk-based analysis, so that the two major railways in the country are not going to have a problem getting an operating certificate, that they are going to comply. They are large enough to be able to handle that. We are going to have to make sure that all the other railways that have less risk, short lines, are not disadvantaged too terribly and yet still comply with an operating certificate that meets the risk.

Those are things that are here in the act. If you can improve them in any way as a committee, take a look at it, but this is certainly something that I think will go a long way towards dealing with oversight.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

There's a difference between oversight and enforcement. It's not just in oversight that the bill makes a certain number of changes; it also gives certain new enforcement tools.

Can you provide the what and the why for the new enforcement tools?

[Rob Merrifield, Conservative, Yellowhead, AB]

The enforcement tools are very important. There are not only administrative penalties but also judicial penalties. If you are not going to comply with this, you're going to pay a price.

It's not that it's not tested. It's tested in the aviation and in the marine sectors. These penalties apply similarly to those in these other modes of transportation: $50,000 for an individual, $250,000 for a corporation. That's for each day of non-compliance; it adds up in a hurry.

The second thing is that on the judicial side it's been there for 20 years, but we're talking about $1 million for a corporation or $50,000 for an individual for each day of non-compliance, so it adds up in a hurry as well.

Some people may say these are too strong. Well, I don't think they're necessarily too strong, because they're not the first thing that will happen. The first thing that will happen is that the inspectors will say you're in non-compliance and that such and such needs to take place for you to comply. It will be when there's resistance to making certain that the safety issues are addressed.

So it won't be “I gotcha”; there will be a fair amount of negotiation between the user and Transport Canada before Transport Canada will actually impose the penalties. But the penalties will be imposed, and imposed aggressively, if non-compliance is there.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

One of the interesting things I saw in this bill—you mentioned it in your remarks, too—was that there would be an executive in each company who is responsible for safety. I don't know whether I have ever seen that in anything else. Again, I'm fairly new to this committee; this is the first year. I've been on it since the fall.

What was the reasoning behind it? And could you elaborate a little more on what this executive would be responsible for? Is it for all companies, even short lines—everyone involved?

[Rob Merrifield, Conservative, Yellowhead, AB]

I actually think this is one of the—perhaps you're right—more unique tools in the bill, but the one that I think will actually make the biggest difference. If you're that executive and your neck is in the noose, you're going to make sure it's complied with.

It's not just that the corporation and those who run the rails will say, okay, we have to comply with the certificate. That's one thing, but when you have named an individual who is an executive of that railway and that individual is personally held responsible, I believe you'll get better compliance. This is really what this is all about.

It's interesting. I was there first-hand at the Wabamun spill. Just to give you an idea of how difficult it is, if you don't have a plan and have not well thought out what emergency situations can present themselves to the corporation, when I was there.... Railway is a Transport matter. But once you have a fluid move off the railway site into a lake—once it's between the railway and Lake Wabamun—well, that's Environment. And once it gets into the lake, well, that's Fisheries and Oceans. And once it gets to the other side of the lake, that slick is in first nations territory, which is Indian and Northern Affairs. And this is the same provincially as federally.

So the stalemate was, whose jurisdiction was it to deal with this thing? There was no plan. I remember sitting in the back of a pickup, after I had just gone for a helicopter ride over Lake Wabamun. We came down, and they said, what do you think we should be doing here? I said the water skiers should be moved off the lake so that they don't disrupt all that oil slick. They said, we don't have jurisdiction.

These are the kinds of things that have to be corrected before a disaster. You have to have a plan in place; you have to make sure that everyone understands it. You have to know that you have the boom material there, and so on.

At any rate, it is very important that we have a plan in place, that it's complied with, and that we have a culture of safety taking place.

[The Chair, Conservative, Merv Tweed]

Thank you, Mr. Minister.

Mr. Dhaliwal.

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

Thank you, Mr. Minister and associates.

Minister, my question to you is this. Why are the urban transport authorities being impacted by this bill so concerned when they have a stellar safety record? That's my first question .

And how are you going to protect the taxpayers by the inclusion of urban transit authorities in this bill?

[Rob Merrifield, Conservative, Yellowhead, AB]

If your question is, when it comes to urban.... Is this what you're saying, that they weren't consulted?

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

Yes.

[Rob Merrifield, Conservative, Yellowhead, AB]

Actually, that's not true. When we announced this piece of legislation, we did it down in Oshawa, because Oshawa, Ajax, Pickering, and Whitby were very concerned about this, because they had just had a major spill.

We consulted with them and with all the mayors across the country. It's very important that they have the input and make sure that this culture of safety is something they're very concerned about, because when it comes to their urban dwellings, there is a lot at risk. All of these trains go through these urban centres.

I don't know exactly what, further, you're talking about. Maybe I missed your question exactly.

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

My particular question is this. I come from the greater Vancouver area. When we consult TransLink authorities, why are they so concerned about this bill, if you have already reached out to those authorities and have consulted with them? Isn't it that this bill impacts taxpayers in a very negative way? When it comes to TransLink, they have a great safety record in the system.

[Rob Merrifield, Conservative, Yellowhead, AB]

What you're asking is why they would have to comply with a certificate. Is that what your question is?

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

Right.

[Rob Merrifield, Conservative, Yellowhead, AB]

They will comply if they're intersecting with federal track, as was just described. If you're hauling passengers on a federal track, why would you think you'd be exempt from safety? In fact, you would almost think they would be the first ones who should be there, and not the ones who should be exempt. That will be worked out.

I don't know, Luc, if you have anything further to add to that.

[Luc Bourdon]

For us it's an issue of accountability right now. We don't think it's going to cost money to do it. Right now they have to comply with the rules of the host railway. The railway operating certificate will basically tell us which rules apply to them. We'll give them the ability as well to ask for exemptions, to have a regulatory regime tailored to their own operation. Right now, for instance, as an example, when one of their cars has some wheels that are not in compliance, we have to go after CN or CP. We have to take the enforcement measure on the host railway so they get the commuter rail to fix these wheels. The railway operating certificate would allow us to go directly to the railways that are in non-compliance and ask for the situation to be fixed.

The second thing is that the railway operating certificate will be determined by a regulation, and at the time of that regulation, all the stakeholders will be consulted, and therefore the urban transit authority will have a chance to talk to us and let us know how we can adapt that tool to their own operation. We've been very clear to all the provincially regulated railways, such as the transit authority, in saying that we would listen to them and try to have a tool that would suit their operation.

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

So when you say that it's just a matter of accountability and there are no additional costs, are you certain?

[Luc Bourdon]

There shouldn't be. That's part of doing good business. Some of these urban transit authorities have already developed a safety management system, and they have them. Some of them are inviting us to do audits on their property, although we can't at this time because they're not regulated. It shouldn't cost a lot to do it, and I think it's part of good safety business to have these tools in place.

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

So when we move different types of cargo on different tracks, would there be different regulations in place? How are you going to balance moving goods efficiently and being economically competitive with the other ports, such as ports in the U.S., while at the same time we have those safety standards?

[Luc Bourdon]

As far as we're concerned, regulations apply to all railways. The same rules can be adapted to the type of operation, but everything is done from a risk-based perspective so there's nothing that will conflict or that will put one railway against the other and make it less safe than the other. That's all taken into consideration the way we're doing it.

[Rob Merrifield, Conservative, Yellowhead, AB]

About the only cost would be if you had an operating certificate. To get that, you would have to change something to comply with safety. There might be a cost, but that would be in their best interest as well.