Evidence of meeting #61 for Transport, Infrastructure and Communities in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was shippers.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Richard Paton  President and Chief Executive Officer, Chemistry Industry Association of Canada
Fiona Cook  Director, Business and Economics, Chemistry Industry Association of Canada
Pierre Gratton  President and Chief Executive Officer, Mining Association of Canada
Roger Larson  President, Canadian Fertilizer Institute
Jim Facette  President and Chief Executive Officer, Canadian Propane Association
Claude Mongeau  President and Chief Executive Officer, Canadian National
François Tougas  Representative, Lawyer, McMillan LLP, Mining Association of Canada

4 p.m.

President and Chief Executive Officer, Canadian Propane Association

Jim Facette

No big deal.

I'll talk a little bit about the industry in Canada and our involvement in the rail freight service review process, which was extensive. I'll also briefly touch on our views on the act.

The association has over 350 members across Canada. Our membership covers the entire spectrum of the industry—producers; wholesalers; retailers; transporters; manufacturers of appliances, cylinders, and equipment; and associate members of applied services.

Annually the propane industry contributes about $10 billion a year in terms of impact on the Canadian economy. It generates over $900 million in taxes and royalties and employs more than 30,000 Canadians. More than half of the propane in Canada is shipped to the United States. Approximately 3.5 billion litres of propane are shipped using Canada's railways.

Just to give you a little bit of insight—this slide is not in your deck—one propane railcar holds about 30,000 gallons of propane. That's 113,700 litres, to be exact. It takes about three trucks to unload a railcar. Again, about 3.5 billion to 4 billion litres a year find their way onto Canada's railways.

We have railways here in Ontario, with unloading racks in Sarnia. A new rack was just put in there; Sarnia was most recently affected by some work. Primarily in Canada the propane finds its way out of western Canada, comes into Sarnia, is offloaded onto trucks or rail, and finds its way east. It also finds its way on CN's lines out of the west, straight into the Toronto area, and then goes east from there.

We've been an active participant in this process since 2008. Recently, towards the end, we had a representative on Mr. Dinning's rail freight service process facilitation group.

Our stated positions were these. We support commercially based legislation that contains the right to a level of service agreement as a way to address the market imbalance between the railways and the shipping community. We support the right to access an appeal mechanism if a service-level agreement cannot be achieved. And legislation should provide for the rights of shippers to levy penalties in the same way as against the shippers.

We believe this piece of legislation hits all three marks. It provides a very good balance between railways and shippers. We're not coming today with any changes at all. Finding a balance is very, very difficult.

It provides a tool to improve freight service in Canada and it makes the level of services more predictable. It respects the commercial nature of the relationship between the railway and the shipper. We have members that use level of service agreements and we have some that do not. It strikes a balance. It's their choice.

This legislation, in our view, is an option to be exercised if you think the need is there. For us, it contains all the mechanisms and measures we requested some years ago: a right to a level of service agreement, an arbitration process, and administrative monetary penalties.

Mr. Chairman, we'll leave it right there. We'll stop and allow time for others.

Thank you.

4 p.m.

Conservative

The Chair Conservative Larry Miller

Everybody has it.

Continue, Mr. Facette.

4:05 p.m.

Conservative

The Chair Conservative Larry Miller

Thank you very much.

The last presenter is Mr. Claude Mongeau, president of Canadian National.

4:05 p.m.

Claude Mongeau President and Chief Executive Officer, Canadian National

Thank you, Mr. Chair.

Thank you for having me today.

I did not join the Coalition of Rail Shippers, but I'm pleased to be with my colleagues from a range of sectors.

I will take every minute that Mr. Facette has not used, if I could, Mr. Miller, and go through a quick presentation.

4:05 p.m.

Conservative

The Chair Conservative Larry Miller

I can't do that. You have a maximum of 10 minutes.

4:05 p.m.

President and Chief Executive Officer, Canadian National

Claude Mongeau

I'm joking.

I run CN, which is the largest Canadian railroad, and I believe it is the true backbone of the Canadian economy. I believe the rail industry is absolutely essential to our country's prosperity. We have long distances in Canada to cover and rail is a very important part of the economic fabric of this country.

In fact, CN alone touches about $250 billion worth of goods every year. We helped Mr. Gratton this year hit a new record in terms of exports in the mining industry. Our potash movements are surging at 155%. As we speak, we are moving more propane to more markets than at any other time in our history.

If I look at 2012, every month in 2012 was a record in our history. We are well above any volume of shipping we've ever had in the history of the rail industry. That's because we are not only doing what we are supposed to do in terms of serving the Canadian economy, but we're also gaining market share against other modes of transportation at a very fast pace, which is indicative of pretty good service and a well-functioning rail industry.

It was not always like this. Twenty-five years ago, the railroad industry in North America was in dire straits. CN and CP were not different. We had two carriers in Canada that were heavily subsidized by taxpayers. We had railroads that were not profitable enough to reinvest in their equipment and infrastructure. We were lagging in safety and in innovation and service. In fact, CN was worse than CP in this regard at the time. We were a crown corporation, a heavy burden to the Canadian taxpayer, and not particularly innovative in any aspect of our operations. That was 25 years ago.

Fortunately, through successive good government policies, started under a Conservative government and continued with Liberal governments over many different leaders, we had a slow but gradual deregulation of the rail industry that allowed for a remarkable transformation of the industry, which leaves us in an enviable position today. I believe that Canada has one of the best rail systems in the world. We clearly have the lowest rates of any OECD country in terms of freight rail, which is important for Canadian shippers given the distances. We have, overall, very good service, and I will come back to that.

CP is the leader in the entire rail industry for safety. CN is the most profitable railroad of any rail carrier in North America. Both CN and CP are serving their customers and shareholders very well.

It took 25 years of good public policy and a lot of hard work by the two rail carriers, in partnership with their customers, to get to where we are. It would be very important for this government to give a lot of attention to maintaining the condition of that success and not turn the clock backward in the direction of re-regulation.

Personally, I believe that good public policy starts with evidence. I do regret that many of my colleagues and partners, customers and associations, are letting their advocacy get ahead of them and are not always following the facts.

I would ask you to turn to page 3 in the short document I submitted in both languages, and I will tell you a little about CN's service record.

We can measure this in many ways, but if you look at it in a few very important ways, perhaps the most important dimension of service in the rail industry is order fulfillment. I'm talking here about order fulfillment for merchandise traffic such as propane, chemicals, forest products, the concentrate or metal sector in the mining industry—things that move in one car. Our order fulfillment, which is measured in terms of unconstrained demand, has gone, over the last couple of years, from 88% to 95% on average.

The rail sector is not as flexible as trucking. To achieve 95% of unconstrained demand is world-scale performance. There is no question that we can always do better, but the hard facts, which I have for any of my customers in any one of the sectors in any one of the geographies, are that we achieve, on average, in excess of a 90% order fulfillment.

Meeting an order is one thing; bringing the car at the right time of the day is another important dimension, which is something we did not even measure three years ago. Today we actually measure it. We call it switch window performance or timely placement of cars. We were at 84% in placing the cars in the window we promised to customers last year.

Spotting, which is for the grain sector...in the countryside we are at 82% to the day. A few years ago, we were measuring ourselves to the week. Today, we have a scheduled grain plan and we actually have a fixed service every week. We come in every week at the same time during the day, and we meet that threshold within the day 82% of the time.

Some have said, and I heard some say yesterday in front of this committee, that our cars are not of good quality, that as much as 20% to 50%, depending on the day when they quote the statistics, of our cars are not functioning well. The reality is that our car reject last week was 2.1%. We had 64 cars in our entire network last week that were rejected by customers. We don't agree that every one of those cars needed to be rejected, but the total, if we take it at face value, is 2.1% of our cars that are rejected.

Mr. Chairman, the important point is that we have good service. It's not perfect. As we speak, we are going through a very difficult winter, and our service is very difficult. But service matters, because if we don't have good service we lose the business. The hard reality—and that's been another key element of the advocacy of the association, trying to portray railroads as monopolies or somehow that the market for rail services is not balanced. The reality does not at all follow those statements. Railroads in fact for decades have lost market share. I will give you one statistic. Forest products were a very prominent group advocating that railroads have an unfair advantage or abuse their position. More than half of forest products in this country don't even move by rail; 55% don't move by rail. Of the 45% that move by rail, about 40% are dual-served by two carriers. For the rest, which is less than 20% of all movement of forest products, you could argue whether it actually has a competitive option or not.

In fertilizer, close to 100% of potash shipments are served by two carriers. In chemicals, more than 65%, unlike in the U.S., actually have dual access, two railroads serving them. In coal, in distant mines where we are lucky to have one railroad, of course, there is one railroad, but it is a bit of an irony to say that when you're lucky to have a railroad serving your line, you are somehow becoming a captive shipper. We have mines all over this country at the moment that would like us to build rail lines to serve them. I sometimes tell them, how ironic would it be if I agreed to build a rail line and the next day you said “I am captive to you”?

The reality is, there are competitive options. When we serve Teck out of Quintette next year, or out of their mines in southern B.C., we're competing with Australia; we're competing with other countries. If we don't have a good mining product and a good service product with railroads, we simply don't ship the coal.

We are competing every day, Mr. Chairman. We have a well-functioning rail industry, and we have 25 years of gradual and slow deregulation that has made an industry in this country that should be the envy of the world.

You should beware of regulation, because it is a very fine balance. I would prefer that we protect the commercial framework. I would prefer that we avoid regulating and that we keep a watchful eye on the railroads and make sure they continue to improve. But if we are going to need a new regulation, I would ask you to be very wise, to follow the evidence, not the advocacy, to be mindful of unintended consequences, and to protect the network nature of the business.

I'll finish by saying that I was appalled yesterday to hear the Coalition of Rail Shippers say that we should exclude the word “network” from this legislation. Railroads are not a taxi service. We cannot switch every customer who is first on the rail line. If we don't take into account the operational and the network nature of our business, we might just create a very slippery slope that will not be good for Canada.

You should focus on those customers who actually have no choice. If a customer has no choice, maybe there's a need for regulation. If he or she already has choices, you should let the market play. You should start with mediation, and you should make sure that the arbitration is done by the CTA because they are the only ones who have the experience to do it right.

Thank you.

4:15 p.m.

Conservative

The Chair Conservative Larry Miller

Thank you very much.

We will now start questioning.

Ms. Minh-Thu Quach—I hope I've pronounced that right. My apologies if I didn't.

4:15 p.m.

NDP

Anne Minh-Thu Quach NDP Beauharnois—Salaberry, QC

It's okay, Mr. Chair.

Thank you very much.

I want to thank the witnesses for joining us today. It enables us to get a much clearer picture of the situation.

Although I'm not usually on this committee, I have a number of questions. I will start with Mr. Paton.

As we know, railway transport can give rise to delays. Are there transport services where that's not an issue? Are there services that would allow you to operate plants more safely, so you wouldn't have to store large quantities of chemicals in your facilities, for instance? Services that would allow for better production planning?

4:15 p.m.

President and Chief Executive Officer, Chemistry Industry Association of Canada

Richard Paton

We don't really store chemicals. We store chemicals...as in Roger's example, we have a lot of cars that our companies own, and the production goes right into the cars and then they are shipped. So there is very little tolerance...when we have a rail strike, for example, as soon as that car fleet comes back and can't get filled up, we have to close the plant.

The tolerance, just-in-time shipping, works exactly for us. There's a reason for that. Storage is not something you want to do in communities with large chemical products, and we're very cautious about endangering our communities. Storage is an issue that we just don't deal with. We don't have storage.

4:15 p.m.

NDP

Anne Minh-Thu Quach NDP Beauharnois—Salaberry, QC

Very good.

Two companies control the network, so they have a virtual monopoly. You talked about the available services. In fact, a number of you talked about more competition. What would you recommend in terms of improving competition and thus the services?

That question is for everyone.

4:20 p.m.

President and Chief Executive Officer, Chemistry Industry Association of Canada

Richard Paton

It's a very big country, so I think it's unlikely that we will change the network structure dramatically in this country. We will be left with some competition and sites, especially if you think of Pierre's sites, mining sites that are going to be very remote, and even more remote if we do Plan Nord and the Ring of Fire.

I think competition is probably not going to increase dramatically, and not even among sectors, because most of our stuff can't be transported by truck. That's why we focus on service agreements, having a rationale, a framework.

Maybe I could just add a point here. Many of the things you mentioned, Mr. Mongeau, that you have used as a basis for saying that you have improved service, which is true, are the very things that we would just see as a normal part of a service agreement. For that reason we don't really understand what the problem is. Why don't we just include these things if these are the basis upon which we work? We don't call that regulation. We call that a framework for commercial agreements.

4:20 p.m.

NDP

Anne Minh-Thu Quach NDP Beauharnois—Salaberry, QC

Very good.

This question is for Mr. Larson.

You said that most of your fertilizer goes to farmers. There's a lot of talk about the economy, job creation and exports to the U.S.

How do delays affect those farmers and the country's economy?

4:20 p.m.

President, Canadian Fertilizer Institute

Roger Larson

The consequences for our members are the most severe. Obviously, there is no alternative but to move the volumes of product. I asked one of our VPs at transportation once why they didn't switch, and they had a mine that was actually quite close to the port in New Brunswick. I asked if they couldn't move some of it by truck, and he said to move the product by truck would require a semi-trailer every 34 seconds going down Main Street. That's not feasible.

We move 70% of our product to farmers in 70 days. We have a very compressed season and it started in January. For North America's farmers, we need to be able to deliver across North America something in the order of 50 million tonnes of fertilizer in order to grow the crop that is going to be produced this year, and that is critical to the world's food supply because half of the world's food supply comes from commercial fertilizers.

The consequences of not getting those products to farmers are that we would lose our food production capacity.

In terms of the consequences to our members, we do deal in a very competitive environment, and as Richard said, these plants operate pretty much with the cars having to be loaded as it's produced. We're exporting those products to the United States, by and large—we also sell to eastern Canadian farmers and Quebec farmers, but the bulk of our product goes to U.S. agriculture—and if we have to shut a plant down in Canada because we cannot get rail service and we can't move the products, the consequences would be that we would lose that business in Canada and it would be imported from other countries.

4:20 p.m.

Conservative

The Chair Conservative Larry Miller

Thank you. Your time has expired.

Mr. Goodale, seven minutes.

4:20 p.m.

Liberal

Ralph Goodale Liberal Wascana, SK

Thank you very much, Mr. Chairman. I appreciate the opportunity to have another panel of witnesses before us on a very important topic.

When you listen to the testimony, particularly as we've heard today from some of the shipper organizations and from one of the railways, it's really a case of black versus white. You often wonder if the ships are just passing in the night.

The government obviously conducted a rail review process. The result of that process a couple of years ago was to agree largely with the shipper perspective that there was an imbalance, and that imbalance needed to be corrected. So we have before us Bill C-52, and we have six amendments to Bill C-52 proposed by the Coalition of Rail Shippers.

I have three questions in particular that I'd like to ask the shippers, perhaps the Mining Association, the fertilizer people, and the chemical people.

The coalition amendment number one talks about a better, clearer, more specific definition of what adequate and suitable accommodation and service obligations really mean in the language of the law. Those phrases, “adequate and suitable accommodation” and “service obligations”, have been in the legislation for a long time. There's still a great deal of ambiguity about what they mean, even after years and years of usage, so the shippers are suggesting an amendment to bring some precision to the use of that language.

If the amendment is adopted by the committee and by the government and by Parliament, you'll get the precision you're suggesting. What if the amendment is not adopted? Will the legislation fix the problem or will the ambiguity continue and the problem will not be solved? That's question number one. How vital is this amendment in providing greater definition of service obligations?

Secondly, what are the service levels you are experiencing now? When the rail review process was conducted a few years ago, they reported a pretty difficult situation. The information provided by Mr. Mongeau would suggest that some of those performance levels have improved, at least in the last two or three years. What is your experience right now with service from the railways? And when I say “right now”, I want to include specifically the period of time since the legislation was tabled. Have you noticed any change in the level of service that is being experienced right now?

My final question is on this issue of administrative monetary penalties versus liquidated damages. The legislation obviously provides for AMPs. It doesn't provide for an expedited way to proceed with actual practical damages.

If you have only the monetary penalties in the legislation and no access to liquidated damages, does that really fix the problem from the shippers' point of view? The AMPs money goes to the government; it doesn't go to you. So what's your preference in terms of remedy?

4:25 p.m.

President and Chief Executive Officer, Mining Association of Canada

Pierre Gratton

I'll start with the last question and then ask François to speak to your first one.

On the administrative penalties, our own view—and maybe Mr. Mongeau would agree with us on this one—is that I don't think they do anything. I don't think they address the heart of the issue at all. If there is an administrative penalty, it would probably find its way back to the shippers through rate hikes, so the shippers would be paying the government for some service issue. You could call that an indirect tax. So I don't think that's a particular feature of the legislation that we think is of any use.

François.

4:25 p.m.

François Tougas Representative, Lawyer, McMillan LLP, Mining Association of Canada

On the first question, which I took to mean the six issues raised in the final report of the service review panel, those are the provisions that we were surprised not to see in the bill. They were very clear, stark recommendations.

Again, I'm not even sure the railways disagree with this point, and I would be interested to hear about that, but the definition in the act to address what is the suitability of the service provided for particular traffic has been there for a very long time. It is the same suite of provisions we had during the entire service failure period that gave rise to the service review in the first place.

That isn't being addressed either by the amendments to this bill or by any other change proposed to the act. You have a market structure that is not changing. It's no different today than it was then. You have no change to the statutory provisions that allowed those service failures to occur.

That's why we say if you can provide definition to “service obligations” and to what the phrase “adequate and suitable accommodation” for traffic means, we think you could alleviate the burden of having a bunch of processes appear in front of the agency. At least the parties would know when they're negotiating what is a legitimate point of commercial contracting and what is not.

Frankly, I'm in the business of disputes.

4:25 p.m.

Liberal

Ralph Goodale Liberal Wascana, SK

Some would say so are we.

4:25 p.m.

Voices

Oh, oh!

4:25 p.m.

Representative, Lawyer, McMillan LLP, Mining Association of Canada

François Tougas

Right.

I foresee no shortage of business coming my way as a result of any purported change in service levels. Anything that's looked at episodically like that, such as talking about what's happened in the last two months, to me is not really an indication of what the larger problem is. We had a very long service failure period. The economy changes, so service levels change within that economic structure we have, and we can go back to a congestion period during which we had a lot of service failures. Any number of things can happen, as they do frequently in winter.

If we have these proposed changes to the act, our pretty strongly held view is that we could avoid a lot of disputes over what is a legitimate level of service and element of service that should be offered by the railways.

I tried to grab both your questions in that answer.

4:30 p.m.

Conservative

The Chair Conservative Larry Miller

Thank you.

Mr. Poilievre, you have seven minutes.

4:30 p.m.

Conservative

Pierre Poilievre Conservative Nepean—Carleton, ON

Well, the reason we can't define adequate and suitable service in every single incident within the legislation is that it's impossible for a bill to adapt itself alone to each circumstance. That's why we have regulation, and in this case it's why we have arbitrators who can look at the particulars of a given case and interpret what that service adequacy and suitability should be.

I want to come back to the debate over administrative monetary penalties versus liquidated damages. Are you suggesting, Mr. Gratton, that the administrative monetary penalties should be removed from the bill?

4:30 p.m.

President and Chief Executive Officer, Mining Association of Canada

Pierre Gratton

I'm saying that they don't really do anything, so we're indifferent to them.

4:30 p.m.

Conservative

Pierre Poilievre Conservative Nepean—Carleton, ON

Earlier, you said it would be a cost to the shipper. Is that your view?

4:30 p.m.

President and Chief Executive Officer, Mining Association of Canada

Pierre Gratton

Yes, so it's not really achieving the objectives that I think the government—