Transport Committee on Oct. 3rd, 2017

[Helena Borges]

Yes, perhaps just to address the point of why we're making the LVVR data available to the company as well as Transport Canada, and not just to the safety board. Really, this comes from the recommendations the Transportation Safety Board made, those being that safety is paramount, and that in the rail system there are three parties that have a big role in safety.

One is the safety board, because it provides recommendations to us on how to improve safety, based on the accidents that happen. The other one is Transport Canada, because we set the legislative and regulatory regime for rail safety.

The third party is the actual railways themselves, and they have these safety management systems that help build a culture of safety. The LVVR data is considered a key input in that, and if we don't make that data available to them, they may have practices in place that are actually jeopardizing safety. It would be good for them to benefit from the data.

It is for this reason that the amendments propose access for the three parties: so that each party can use the information gathered to improve the part of the safety mandate that each one of us plays in the system.

[The Chair, Liberal, Judy Sgro]

Ms. Block.

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

Madam Chair, I have a question for you. It's my understanding that we received a letter from the Privacy Commissioner in regard to this issue. Do you recall the substance of that letter?

[The Chair, Liberal, Judy Sgro]

Does anyone remember that particular piece of correspondence?

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

I don't.

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

You weren't here.

[The Chair, Liberal, Judy Sgro]

I'm sorry, we don't.... The clerk would have to try to bring it up.

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

Okay.

[The Chair, Liberal, Judy Sgro]

Maybe we can continue with the questions while she tries to locate it.

I have Mr. Hardie next.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Today in the House I sought an undertaking from the minister on this issue, because I am concerned that from the time legislation passes until the time regulations come into effect, there can be a lot of vague situations created where people really don't know what's coming. I got the undertaking from him today that the use of this equipment for disciplinary purposes would not be allowed—

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

We also said that SIN cards would never be used by banks to verify opening of accounts.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Well, the fact is—

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

I'm just kidding.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

—that you can easily see a scenario, though, where an LVVR captures some pretty egregious conduct in a cab and I think a right-thinking, reasonable person would want some kind of discipline. This is where I believe the regulations will have to be as watertight as possible to ensure the right thing is done the right way.

The testimony by Ms. Fox, who has been calling for the use of this technology for quite some time, clarified that in an environment of trust, or in a just environment, you can easily see how this could be a very productive measure, but she also left unsaid the fact that especially in the union they don't consider it to be a very just environment.

There have to be some protections, but at the same time we have to meet the overarching need for public safety. I think things will certainly come clear in the regulations. It's something that we would need to keep a very close eye on.

[The Chair, Liberal, Judy Sgro]

Monsieur Aubin.

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

Thank you, Madam Chair.

I found Mr. Hardie's presentation particularly eloquent. He spoke about an environment of trust, and that's precisely what is lacking.

All the situations in which voice and video recorders cannot be used are being listed, but we are told that we are going to define them later in the regulations in order to specify them. We are against that. In any case, we aren't necessarily working on safety. If we really wanted to work on safety, it would have been good for Bill C-49 to propose measures against train operator fatigue. We had to face the same problem in aviation safety.

In our view, voice and video recorders are tools that allow the TSB to measure, after the fact, that is, after the accident, unfortunately, what was lacking or not. If we really want to talk about safety, we must review all the measures that affect events before an accident happens. Voice and video recorders do nothing to prevent accidents

Personally, I wouldn't want a voice and video camera installed in my office to monitor my daily work. I guess the Prime Minister and Mr. Hardie wouldn't like that either. Yet that is what we are offering to train drivers. We tell them that whenever they enter their office, meaning their locomotive, their actions will be recorded on a voice and video tape.

[The Chair, Liberal, Judy Sgro]

Mr. Badawey.

[Vance Badawey, Liberal, Niagara Centre, ON]

Madam Chair, I have to say this emphatically, because I heard it throughout the testimony we heard that week, from everyone in the industry, that this is about safety and about being proactive, not reactive. We are trying to use this—when I say “we” I mean the companies, the government—video footage to prevent accidents and prevent people from getting hurt. That's what we're in the business of doing in government. It's to put that mechanism out there to enable those in the business to prevent accidents and save lives. I believe that LVVR can do that. Instead of being reactive and looking at a tape of what happened, we can be reactive and use it as a tool to teach, to learn, and of course to continually prevent accidents.

This is new information that we've learned through the testimony we received. This is the value of LVVR for training. We recognize that.

Last, the TSB doesn't want the information. They don't want to be the sole owners of the information. They would like and are encouraging the companies to in fact be proactive in using this footage for training, saving lives, and preventing accidents.

[The Chair, Liberal, Judy Sgro]

At this particular moment, I have Mr. Fraser, then Ms. Block, and then Mr. Hardie.

[Sean Fraser, Liberal, Central Nova, NS]

Madam Chair, this is one of the issues that I struggled with in my deliberations on the bill, perhaps more than any other. I take privacy rights, my own and everyone else's, very seriously, and I have some concerns, particularly with the testimony from one of the railways that talked about potentially using this information.

When I was thinking of how we actually do this the right way, I considered that on the flip side of the coin, people's lives are literally at stake, and I think there's a potential to save lives by having LVVRs used properly. My recollection of the testimony—and I believe it was with department officials—is that the regulation was intended to be used in limited circumstances for a systemic audit to identify systemic safety concerns. Unless there was a specific accident that was not being investigated, it was limited to that scope. Provided we received honest testimony during our hearing, it is not possible for a company to use this for punitive purposes, except maybe in the extraordinary case where a systemic audit is being undertaken and an auditor happens to catch egregious behaviour, which is highly unlikely.

Can you confirm for us that the regulations will, beyond a shadow of a doubt, be limited to that systemic audit for safety concerns that are not about the individual, but are about what's happening in the system as whole, so we can implement policies to save lives?

[Helena Borges]

You're correct. In fact, I would point to page 43 in the bill, where it speaks about the information that can be accessed by the railway company. It's proposed subsection 17.91(2), which is in clause 62. It indicates that the information can only be randomly selected. That precludes the day-to-day watching of an employee for how they're performing, so that they can't do that. Based on that information, which goes to the next subsection, if they were to find through the use of the information a threat to safety of railway operations and if in accessing that randomly selected data they found something that was considered a prescribed safety threat, which is defined in the act, then they could use that for disciplinary purposes, if that were the case. However, that would be, I'll say, a very rare and egregious situation.

There are limits as to how the data can be selected. We will be enforcing that. The regulations will have how the data has to be treated. Somebody mentioned the Privacy Commissioner. As part of the development of the regulations, we have to develop a privacy impact statement that would show how the regulations would impact the privacy of an individual. We are working with that and we are contacting the Privacy Commissioner, as we need to make sure that we're doing it properly.

There are limits as to how the data can be accessed, limits as to how the data can be used, limits as to how the data will be retained. There are a lot of controls for that data.

[Sean Fraser, Liberal, Central Nova, NS]

Does the privacy statement that you've referred to include any analysis about how this is being implemented for minimal impairment?

[Helena Borges]

That's exactly it, as well as how it will be protected. For example, how the data has to be stored, who can access the data in the company, how the data has to be signed, I'll say in and out, so to speak, when the data has to be deleted, all of that will be included in that.

[Sean Fraser, Liberal, Central Nova, NS]

Is there further consultation with affected parties as you develop the regulations? In particular, I'm thinking of the unions representing the workers whose privacy rights could be affected.

[Helena Borges]

Totally. We deal with the unions, the railways, and other parties. We also deal, for example, with the commuter operators and the transit operators with VIA Rail as well, so there are various parties that we would be consulting with.