Transport Committee on Feb. 15th, 2011

[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.

[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 very much.

Mr. Dhaliwal.

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

Thank you, Chair. I would like to thank the panel members for coming here.

When I come here, I come with mixed emotions. When we talk about railways, I'm a great champion of the Pacific gateway. The railways will play a key role in its success. Yet I have a clear message for you here.

I don't think the safety effort is perfect, but you say it's great. The people I talk to, whether they're workers or members of the public, feel that it's not good enough. Over the past five years, you have averaged 139 main-track derailments, 24 of which involved dangerous goods. Many of these accidents were preventable. Too often I hear that your operations are attended with mistrust instead of collaboration, with good equipment but poor training, and with concern for profit over safety. This culture needs to change. CP Railways will not only be better for the environment, the public, and its workers, but they will also be more profitable for shareholders.

There's one incident in B.C. that no one can forget—the spill of caustic soda into the Cheakamus River, which killed over 500,000 fish. Two years later, the Transportation Safety Board warned CN that improvements were still not enough to prevent another similar incident.

Have you finally addressed all the problems that led to that spill?

[Cliff Mackay]

Go ahead.

[Paul Miller, Chief Safety and Sustainability Officer, Canadian National Railway Company]

Thank you, Mr. Dhaliwal.

You mentioned, first, the main-track accidents, and Cheakamus was a main-track accident. The accident subsequent to that, at Lillooet, was also a main-track accident. And that's something that we've been focused on at CN.

Main-track accidents tend to have either a mechanical or an engineering cause—a broken wheel, a broken rail, things of this nature. We've invested tremendously over the past several years to increase the density of our wayside inspection network. We have also increased the frequency of inspections for rail flaws, as well as the number of times we inspect our track for track geometry issues. Accordingly, our 2010 main-track accident experience has been the best on record. Of course, one accident is too many, and we continue to focus on improvements in this regard.

With respect to your comment about safety culture, we used the Railway Safety Act review and the study of this committee as a catalyst. We worked much harder and in a more collaborative way with our union leadership and our employees to develop our safety culture. Based on the catalysts provided by those two studies, we've undertaken a number of initiatives over the past several years, especially since 2007, to work on safety culture. We're pleased that a number of the initiatives we've undertaken at CN, in cooperation with my colleagues at VIA and CPR, have been adopted as best practices in publications that Transport Canada has recently put out on safety management systems and on safety culture.

It's always a work in progress, Mr. Dhaliwal. One accident is one too many. Can I stand here and tell you that we won't have any more accidents? I'm afraid I can't, but it's something we're tremendously focused on. Nothing is more important to us than operating safely.

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

Thank you, Mr. Miller.

Mr. Miller, last week we heard from one of the witnesses that one of the employees—a railway employee—was either fired or questioned for not tying his shoes right. When I was out in the railway yards in Ludlum, the workers asked why I was there talking to them. I was just doing my outreach as an elected member of Parliament.

Given this culture of fear among employees, would you support creating an anonymous whistleblower line to Transport Canada?

[Paul Miller]

Mr. Dhaliwal, we certainly support anonymous reporting. I had this discussion, actually, with senior union officers at the last meeting of the minister's Advisory Council on Railway Safety. Unfortunately, if we put all our eggs in anonymous reporting, then we've kind of missed the boat on safety culture, because of course as part of safety culture, what we want to develop is that relationship between our employees and the front-line supervisors--we're not there yet, and we have more work to do, without question—so that our employees can talk to our front-line supervisors and say they have a concern, they have an issue, and the front-line supervisor can then react appropriately.

As part of that, we've developed a program that we call SaFE, which just stands for safety for everyone, in which management is not directly involved at all. The employees do the observations of their fellow employees. We give them training in terms of how to interact with employees when they're doing something well and also when they're doing something that needs to be corrected. Then those committees, the SaFE committees at each terminal, gather the data and report on trends and look for things they should investigate.

In terms of reporting to Transport Canada, sir, our employees have every right now to report any concern they have to Transport Canada. All we've asked is that we be given a chance. I've said it myself to our policy, health, and safety committee: if you think we're doing something wrong, if you think we're not giving the employees every opportunity to bring concerns forward, or if you think we've been too heavy handed in how we've dealt with an employee, if you're not getting satisfaction anywhere else, call me. Call me personally and I will get involved. But in terms of reporting to Transport Canada, sir, I would suggest that they certainly have that right now, and they use it.

[The Chair, Conservative, Merv Tweed]

Thank you.

We'll go to Monsieur Guimond.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

It seems to me that the unions are in favour of this bill. Is that true?

[Cliff Mackay]

That's our understanding.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

However, they are in favour of enhanced safety measures. But if I remember their testimony from last week correctly, they were very critical of companies involved in construction projects or road repairs. They did not use the term “climate of terror” as such, but they seemed to suggest that that was the feeling... I did not bring the transcript of what they said with me as I am just coming from another meeting, but I remember that they were critical of labour relations and the unequal discussions with the employer regarding health and safety. You probably heard their testimony.

[Cliff Mackay]

I'll ask my colleagues to comment. But with regard to what we're dealing with today, sir, you should be aware that the unions have been fully involved in everything that has seen the light of day as a result of the 56 recommendation and the other work that's gone on that has led to these hearings. They signed off on the new guidelines on the safety management system, just as we did. They sit on the steering committee I sat on, along with the ADM from the government, to ensure that all the processes are working. So I can tell you that there was no lack of consultation when it comes to what we're considering here today.

I'll let my colleagues speak to the question of the cultural issues.

[Glen Wilson, Vice-President, Safety, Environment and Regulatory Affairs, Canadian Pacific Railway]

First of all, I want to return to the point that Mr. Dhaliwal made about the questioning in his presence by employees of why he was present in a rail yard, and I'm going to relate this to the culture question as well.

At Canadian Pacific, we've done a great deal of security awareness training among all of our employees, and you have to recognize that rail yards are an open environment. People who are present who are not usually present, or who may not have proper safety protective equipment identifying them, should draw questions in our environment.

That's something that I'm actually relieved to hear, that employees and managers are questioning the presence of outsiders, either to look for their safety, the safety of the operation, or the security of the facility. How that links to the safety culture is that we're trying to promote an awareness among all employees at Canadian Pacific of the importance of safety and the importance of security in their workplace.

The position put forward by the union referred to, I believe, 6,000 grievances. I had that looked into at Canadian Pacific. There are 400 outstanding grievances. Most of them were late-to-work rules. So I think you'd agree, in a work force of 12,000 unionized employees, that's really not a bad number.

I try to remove a lot of the rhetoric that comes from labour relations and look purely at the facts. We have 80% of employees telling us, as a result of surveys that we do, that they feel their workplace is safe. That number has gone up with every single survey that we've done at Canadian Pacific. We have reporting processes that allow employees to report, anonymously if they wish, through a confidential hotline, any safety concerns, or they can report them to their manager by filling out something called a safety hazard report.

The benefit of the safety hazard report is that it requires the manager to answer the employee as to what corrective action, if any, was taken in response to the report. We find that the vast majority of employees prefer the safety hazard reporting process, even though they must identify themselves. They prefer that because it gets them an answer. If you know the identity of the individual, management can answer as to what corrective action was taken in response to the safety hazard.

We have a multitude of processes available. As Mr. Miller said, can it be improved? Absolutely, safety and effective management is about continuous improvement.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Don't take all of my time. If the committee wants to give me two more hours, I will let you have the floor.

I am surprised to hear you say that 6,000 grievances for 12,000 employees is not very much. I would like you to tell me what you would consider to be a lot of grievances, what would the threshold be? Would it start at 6,001, 6,002, 8,000, 12,000, 15,000 or 20,000? That is my first question. In a previous incarnation I worked in labour relations, for 16 years. I have discussed, settled, arbitrated grievances. I was not an arbitrator, but I did argue and defend some of them in the course of the 16 years I spent in the pulp and paper industry.

Could the three companies that are before us ask their human resources people or labour relations team to provide us with a breakdown of grievances by subject? I have a lawyer's training. When a lawyer asks a question, it is because he already knows the answer. This exists and I would like to have the breakdown of grievances by topic. In other words, of the 6,000 grievances from the 12,000 CP employees, how many deal with safety in the workplace? Some of the 6,000 grievances may concern the interpretation of call-back provisions, overtime, etc.

When I was director of personnel, we had a very militant union that had filed a grievance asking that we support a campaign to boycott California grapes and bananas from Angola. That was one grievance. I saw a certain number of grievances. My vice-president in Montreal used to climb the walls when I would come in and tell him that I had more grievances on that.

And so I do not agree with you when you say that 6,000 grievances is not very many. I would like the three companies to tell us how many health and safety grievances they have pending currently. I want to know whether we are talking about a real issue. If we are talking about 15 or 20 grievances for 12,000 or 15,000 employees, there is no health and safety issue.

[The Chair, Conservative, Merv Tweed]

Merci, Monsieur Guimond.

What I might ask—

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Please convey that to the clerk.

[The Chair, Conservative, Merv Tweed]

—is that you would forward it through me to the clerk. We'll distribute it amongst the membership.

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thanks, Mr. Chair.

Thanks to the witnesses here for the reports you've given and the time you've taken to inform us individually on some of your issues.

I want to go after the rail crossing issue first because it's one that I feel is very much not represented in this bill, much as you think. First of all, I want to talk to you about the statistics you presented here. There was a fairly significant downturn in the number of crossing collisions, say, between 1992 and through that decade of the 1990s. We saw a pretty steep downturn. Could you tell me how that was accomplished? How did that come about?

[Cliff Mackay]

We ran a major program with the government during that period of time, which was a part of an ongoing program called Operation Lifesaver. It is a public awareness program that tries to make the public more aware of the dangers of trespassing on railway property and railway crossings and these sorts of things. We still run it, but we topped that program up with government help by about 100%. In other words, we doubled the effort of the program.

We did a lot of work in schools. We had public announcements on radio and this sort of thing. It targeted very much the younger people. It made a difference. Basically over 10 years it cut the number of fatalities and whatnot in half. We believe there's more we could do.

As we said, one of the things we believe we should be doing is being more aggressive in trying to close crossings that really aren't necessary and also slowing down the rate of new crossings being opened.

[Dennis Bevington, NDP, Western Arctic, NT]

Your amendment would speak to opening new crossings, but it really wouldn't deal with closing crossings.

[Cliff Mackay]

No, that's correct.

[Dennis Bevington, NDP, Western Arctic, NT]

The minister has presented that the government has put $21 million into these crossings. We have heard evidence that there are 44,000 crossings in Canada. Do you assign grades...or levels to these crossings?

I've got to get away from those terms.

[Cliff Mackay]

I understand what you mean.

[Dennis Bevington, NDP, Western Arctic, NT]

Do you give them certain positions in a safety chart? Could we have that information given to us, where we would understand how many of the 44,000 crossings have been brought up to a certain standard? How many of them should be brought up? Which ones represent real safety concerns? What should we be doing with the ones that may not be as serious a safety concern but still need some upgrading? Is that information available?