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Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 21 - Evidence

OTTAWA, Tuesday, March 16, 1999

The Standing Senate Committee on Transport and Communications, to which was referred Bill C-58, to amend the Railway Safety Act and to make a consequential amendment to another Act, met this day at 5:40 p.m. to give consideration to the bill.

Senator J. Michael Forrestall (Deputy Chairman) in the Chair.


The Deputy Chairman: I must apologize for keeping the witnesses waiting. The Senate, like the House of Commons, tends to go on and on. Had we known that, we would have made other arrangements. We look forward to having Mr. Jackson, Mr. Chapman and his staff and directors with us today. I wish to welcome the witnesses here. Please proceed.

Mr. Ron Jackson, Assistant Deputy Minister, Safety and Security, Department of Transport: I am very pleased to have the opportunity today to appear on behalf of the Minister of Transport before this committee as you deliberate on Bill C-58.

First, I should like to acknowledge the work of the special committee that you chair on Transportation, Safety and Security. I would like to express my appreciation for the interest that you and your subcommittee have shown in this bill. This bill brings forward amendments to the Railway Safety Act, which we believe will strengthen a regulatory regime that has served Canadians well since its inception a decade ago.

In 1989, a new piece of legislation, the Railway Safety Act, provided legislative authority to the federal government to set and enforce rail safety standards and made the railways responsible for meeting those standards. Since then, two in-depth reviews, one in 1994 and the most recent in 1997, have confirmed the validity of the underlying principles of that act. In both cases, the overall safety of the rail industry was acknowledged as well. Each of these reviews also identified opportunities for changes to legislation aimed at building on this effective safety framework.

You may recall that an earlier bill to amend the act, Bill C-43, was tabled in the House of Commons on May 30, 1996, but died on the Order Paper when the 1997 election was called. Bill C-43 was developed in response to the 1994 review of the Railway Safety Act and contained provisions to do the following: streamline administrative processes; provide greater involvement for interested organizations in rule making; minimize disruption caused by train noise in communities; strengthen and clarify federal powers at grade crossings; simplify and improve provisions for ensuring that appropriate safety measures are in place; and clarify and strengthen the powers of railway safety inspectors.

Additional provisions were added to the bill as requested by the House of Commons Standing Committee on Transport concerning testing exemptions, whistling cessation, medical examinations and nomenclature.

The Minister of Transport announced in September 1997 that he was delaying the reintroduction of amendments as represented in Bill C-43. This was to allow for a departmental review to improve the Railway Safety Act. A review committee was established to examine other possible improvements to the legislation as well as mechanisms for overseeing safety and regulatory compliance. Bill C-58 was the result and this bill was tabled in the House of Commons on November 5, 1998. This bill reflected the recommendations made by the review committee.

The new bill, C-58, which was referred to this committee on February 11, 1999, incorporates most of the provisions contained in Bill C-43 but adds the following additional amendments: the safety policy statement; legislative authorities for safety management systems and the reporting of information needed to monitor railway systems safety performance; increased authorities of safety inspectors; strengthened federal powers at grade crossings; reduced disruption caused by train noise in communities; a new enforcement tool for safety management system deficiencies; further improvements to the consultative process; and streamlined administrative processes.

In addition to the proposed amendments addressed above, Bill C-58 includes an authority to make regulations restricting emissions from the operation of railway equipment. There is at present no such authority federally and the proposed Canadian Environmental Protection Act excludes railway equipment.

Honourable senators, further amendments were made to Bill C-58 as a result of comments made by stakeholders to the Standing Senate Committee on Transport and Communications. These were subsequently approved by all parties in the House of Commons on February 1, 1999.

These further amendments included the following: a new clause 20.1, which states that "users of a road shall give way to railway equipment at a road crossing if adequate warning of its approach is given."

This provision had not been included in the original amendments as there had been a number of concerns as to how this could affect other rules in force. However, these concerns have now been addressed and we are confident that this amendment will complement others for crossing safety. The proposal to reintroduce a right-of-way provision in the proposed Bill C-58 has obtained widespread support from the railways and employees.

Clause 23 was amended by adding, in the English version, the wording "security measures", which will allow for appropriate inspectors' powers in the event of security measures being declared. Clause 27 was also amended for clarity purposes by adding the wording "...determined by regulations made under paragraph 18(1)(c)(iii) or by any rule in force under section 19 or 20."

I should now like to take a bit of time to describe the most significant amendments in more detail. A new declaration contained in clause 1 clarifies the objectivity of the act as well as the roles and responsibilities of all interested parties relevant to railway safety. This declaration was agreed to and supported by labour unions, railway companies, and other organizations such as the Federation of Canadian Municipalities, the Canada Safety Council and Transport 2000.

The amendments also include an authority to require railways under federal jurisdiction to implement safety management systems that are designed to provide a consistent basis for monitoring company safety performance, including compliance with existing requirements.

The department would have full authority under the legislation to ensure that railways comply with this requirement and to take effective action as required to ensure full compliance.

This program is expected to improve railway safety by reducing public and employee fatalities and injuries, property damage resulting from railway accidents, and the impact of accidents on the environment. It is also expected that management systems will promote a safety culture within railways, enable railways to demonstrate their commitment to safety, and show that they comply with regulatory requirements.

The proposed amendments extend the existing consultation process to exemptions from safety rules similar to the process established in sections 19 and 20 of the act, whereby an obligation exists for railway companies and the minister to consult interested organizations and inform these organizations of any decision with respect to changes to the terms and conditions on which a rule was approved.

I would like to point out that all railway unions are considered relevant organizations under the act and have full rights to consultation to ensure that employees have a voice.

Honourable senators, a new provision will allow communities to cease train whistling at railway crossings where certain safety standards are met. I should like to note that these standards will build on current established and proven safety guidelines. The new provision will also ensure that communities consult with the railway companies and unions as part of the process. I should like to emphasize that the minister will have all the powers needed to ensure that required safety standards are adhered to and that safety is not compromised.

The new amendments will also give the minister the authority to grant exemptions from the application of certain regulations after there has been an opportunity to consult with labour unions and other interested parties. An exemption will only be granted if it is not likely to threaten safe railway operations.

Clarification of federal powers in matters such as the installation of appropriate signage on road approaches to crossings is also provided for in these amendments. A new provision will enable road authorities to fulfil their shared responsibilities with railway companies for ensuring safety at crossings by, for example, ensuring that approaches to crossings are safely engineered and maintained. The issuance of notices and orders to persons using road crossings will also be authorized under the new amendments.

The amendments also establish additional authority for regulations. All regulations developed under this legislation will be developed in full consultation with all interested parties, including railway management and their employees, in accordance with the government's regulatory policy and standards. All regulations are gazetted publicly as proposals, followed by final publication in the Canada Gazette, Part II.

Honourable senators, more than 70 per cent of these changes were carried forward from the previous Bill C-43. The newer changes built on these and, as before, included extensive consultation with the railway industry, railway unions, the Federation of Canadian Municipalities, the Canada Safety Council, Transport 2000, provincial officials and other interested parties who have all greatly contributed to make this new and improved legislation.

As I mentioned previously, a high level of comfort with the bill exists among the varied stakeholders. Many witnesses came forward to voice their support for what they feel is a good piece of legislation. Stakeholders indicated that they had appreciated having the opportunity to voice their concerns and to see that these concerns had been integrated in this improved legislative package. They also commended the process by which this legislation had been developed.

Although the current bill has been strengthened through additional consultations involving all stakeholders, the amendments are designed to allow the general public and interested parties to have a greater say on rail safety issues. These consultations resulted in a number of improvements such as those for medical standards, where all agreed that new requirements are needed for persons in critical positions of safety. These amendments provide for a modern regulatory framework to introduce changes.

Honourable senators, the department has carefully noted the special Senate committee's interim report observations on accident trends and would like to provide some additional updated information in this regard. The department took action starting in the spring of 1996, with industry addressing the upward trend in main track derailments. This resulted in a number of initiatives such as more frequent track inspections and increased use of technology to detect faulty equipment. This has brought about a significant reduction in these occurrences.

According to the Transportation Safety Board preliminary occurrence statistics, released on January 28, 1999, the number of railway accidents reported represents a significant decrease over the previous five-year average. Further, the rail industry's accident rate has also shown a decrease, and main track derailments have declined considerably from 175 in 1997 to 111 in 1998, representing a 37 per cent decrease. More recently, as a result of our monitoring of accident and incident trends, we are targeting industry performance in the area of non-main track derailments and anticipate a positive change in related accident and incident trends as a result.

Direction 2006 is a national initiative that is contributing to increased safety at crossings and reductions in trespassing casualties. This program was established in October 1995 and aims to reduce the number of highway railway grade crossing collisions and trespassing incidents on railway property by 50 per cent by the year 2006. This program encourages partnership with provincial and municipal governments, railway companies and their unions, law enforcement agencies, and other safety organizations. Since this program's inception, a number of priority actions were identified jointly resulting in a variety of initiatives in awareness, enforcement and education.

We are pleased to note that crossing accidents declined by 10 per cent in 1998 from 1997 levels. Further, trespassing accidents decreased by 19 per cent in 1998 from the previous year's numbers.

The department believes this program to be an excellent example of all the parties collaborating to deal with complex safety concerns. Honourable senators, the department has and will continue to work closely with and encourage collaboration by the industry and all affected parties to ensure that safety is maintained and improved. The minister reaffirmed on March 18, 1998, the department's commitment to establish a permanent consultative committee comprised of departmental officials and rail safety stakeholders. We believe that this initiative will complement and strengthen the existing consultative efforts that have evolved since the act was introduced in 1989.

In conclusion, I can assure this committee that Transport Canada is committed to a safe and sustainable transportation system in Canada. These amendments to the Railway Safety Act, which include the views of all those concerned in providing for a safe system, will result in a modern regulatory framework as we move into the next century.

My colleagues and I now look forward to responding to any questions the committee may have.

The Deputy Chairman: Thank you very much. You gave us a lot of information in a short time.

Senator Roberge: You said on page 22 of your brief that recent "consultations resulted in a number of improvements, such as those for medical standards where all agreed new requirements are needed for persons in safety-critical positions." Does that include mandatory drug abuse and alcohol testing?

Mr. Jackson: No, it does not include mandatory drug testing.

Senator Roberge: Is it your intention to study that aspect further?

Mr. Jackson: About nine or ten years ago, the Department of Transport undertook an initiative to explore the policy of substance abuse testing. A major initiative was undertaken surveying industry, and so on. With respect to drug and alcohol testing, there are several aspects to the issue. For-cause testing and post-accident testing are done as a matter of course. The issue that becomes somewhat contentious is random testing and pre-employment testing.

There have been a number of Charter challenges to the right of companies or others to do such tests. Some of these are before the courts as we speak. Currently, it is our view that companies have, within their current programs for drug and alcohol programs and under the provisions of this statute, all the tools they need to provide for a substance-free workplace.

Mr. Terry Burtch, Director General, Rail Safety, Department of Transport: Under the existing Canadian regulations there is a provision that essentially states that no employee in an operating position shall be impaired in any manner, whether it is by alcohol, drugs, medication or anything else. Railway companies have had to comply with that rule for a number of years.

In order to comply with it, companies had in place a significant number of initiatives, some of which include medical testing or what might be called voluntary drug testing. If there is for-cause testing, they will ask people to submit to drug tests. Most employees do. Provisions exist to remove people from service if they suspect problems. In addition, if someone has been impaired by alcohol, they can be charged under the Criminal Code of Canada.

Thus, there are a significant number of regulated requirements or statutory requirements in place. The industry has been working quite assiduously on those over the past decade.

Senator Roberge: Clause 15 allows railway companies to apply to the minister for the exemption of certain regulations dealing with either rail crossings or other matters. What criterion is to be used for that?

Mr. Jackson: In terms of the granting of exemptions, an equivalent level of safety must be maintained. The exemption from a rule or regulation must put in place alternate measures to provide for the level of safety that was provided for by the rule for which the exemption is being granted.

I suppose there are examples that we could give. However, the long and short of it is that if an equivalent level of safety cannot be provided, the exemption would not be granted.

Senator Maheu: My question concerns clause 18. It arises from my personal experience with crossings and a yard that hustles wagons in the middle of the night. Clause 18 applies to whistle blowing. Is that all it applies to or can wagons bumping in the night be stopped under clause 18?

Mr. Burtch: Clause 18 refers to whistling, which is usually required at crossings. Section 95 of the Canadian Transportation Act provides that anyone who feels that a rail operation constitutes a nuisance can raise the issue with the railway company. If they are not satisfied with that response, they can raise it with the Canadian Transportation Agency. Once it is raised with them, the agency has 90 days to respond to the complaint. The agency has all the powers necessary to forestall an operation, if they deem it to be causing a problem.

Senator Poulin: It is very interesting that we are discussing this bill today after the accident that we all heard about and read about this morning. It reminds us of the care that we can see you took, Mr. Jackson, with regard to the amendment.

With regard to whistle blowing, I would like to better understand the process that the municipalities will have to go through because there will always be different schools of thought on this issue. Could you explain to us the process that a municipality will go through?

Mr. Burtch: This provides for a fairly formal process in that a municipality has to pass a by-law to deal with it. In other words, a person cannot do it, it has to be a municipality. As part of that process, they must ensure that they have consulted with the railway company concerned. They must allow the operating employees, the unions, to also be informed of their intentions. The people who also bear the brunt of crossing problems are the locomotive engineers and conductors. They are often the ones at the scene when someone is killed or injured.

The process has been a full and transparent one. Once the municipality has done that, and assuming the location meets conditions that are prescribed in the regulations, which, of course, are not yet in force, then the railway must stop whistling. In the event of a dispute, if for some reason someone feels that there are special circumstances or outstanding safety problems, then parties can appeal to the minister. The minister can make a final decision. That is the process.

Senator Poulin: Mr. Jackson, in your presentation you spoke about a joint committee of transport officials and the railway industry. Could you elaborate on that joint committee? Do joint committees exist as we speak?

Mr. Jackson: There has been a committee on the books that meets on an ad hoc basis. For example, in the development of this legislation, a series of meetings took place with all the interested parties, that is, the railway companies, the unions, the associations and other stakeholders, such as the provinces and the Federation of Canadian Municipalities, et cetera. Under the aegis of this particular development, we are formalizing that structure. We will establish a railway consultative committee that will be chaired by my colleague, Mr. Burtch. It will have representation from all these parties.

Subordinate to the overall committee, there will be a series of technical committees established to deal with specific railway safety issues. They will work the issues through and then table the results at a plenary meeting. We hope to establish this as an integral part of the regulatory process. Any rule or regulation that would be developed would be put through this consultative committee process. All parties will be given a voice in its development.

I think it is safe to say that the inaugural meeting of this body will be held in about one month's time.

Senator Adams: You have reduced accidents in 1997-98 from 175 to 111. Do those include all accidents, including accidents at railway crossings?

Mr. Jackson: The accidents that I referred to in the presentation were main track derailments, which is a subset of the total number of accidents that occur. Main track derailments were identified as problematic in 1996 because the numbers had increased considerably at that time. Thus, specific attention was paid to it. Through measures that the railways have taken, as well as our own inspectors, we see that a considerable decrease was achieved. These are main track derailments, not crossing accidents, trespassing accidents or yard accidents.

Senator Adams: Do you now have better technology, such as these heat sensors?

Mr. Jackson: A combination of measures was taken. Some were technological on the part of the railways in terms of assessing the quality of the track and the functionality of the railway equipment itself, along with increased inspections and increased vigilance in terms of detecting problems before accidents happen.

It was a combination of many things, including, I dare say, more emphasis on everyone's part in terms of being mindful of the consequences of these accidents.

Senator Adams: As I remember, at the beginning of our subcommittee hearing we heard some witnesses say that some parts, such as bearings, are not available in Canada and must be obtained from the States. Do you know of a better system for obtaining the equipment needed for operating and maintenance?

Mr. Burtch: Mr. Jackson referred to the main contributing factors. The equipment itself has not changed enormously, but the railways have focused more attention on it. They also asked their health and safety committees to look into why accidents were happening, so they started to bring their employees more into the problem-solving loop. The net result was to focus more attention on problems before they happened. They started to act more quickly when they received indicators of concern. Some railways, for example, increased the number of hot box detectors, the detectors that pick up axle heat. They put in twice as many. As a result of that, they were noting problems much earlier. All of those things in total reduced the likelihood of something burning up and causing a derailment.

Senator Adams: You mentioned straight crossings where the cars cross the railway. Are you doing anything to improve them? I have been through a few where, until you get to the railway track, you do not have any warning that the railway is coming up. How will you improve that? I was at a crossing a few weeks ago, with the trains coming in from Montreal. By the time I got to the crossing, the red light suddenly came on, and I had the choice of either hitting the gate or speeding up. How can you improve that? There must be some kind of warning. In some places along the highway, a little warning sign lets you know that you are getting to the railway.

Mr. Jackson: We can do a series of things to reduce the number of crossing accidents. Engineering improvements can be made in terms of putting technology in place to warn vehicles of the impending crossing of a train on the road. In addition to that, awareness programs increase people's consciousness of the safety hazard that exists for not being vigilant when you approach a crossing. No one single measure will result in the kind of safety improvement that we are seeking to achieve, which is a 50 per cent reduction in the number of accidents. It must be a combination of all things: technology, engineering improvements, clearing of sight lines, education and promotion. Altogether, we hope and are confident those things will achieve the reduction we are looking for.

Mr. Burtch: On the question of technology, most of the systems are designed based on assumed train speeds and road speeds, and sometimes we find that those assumptions are not correct. Either people were used to driving at a higher speed or the train speeds may be changing. In those cases, we will often force a change in one speed or another, and the companies will normally react to that immediately. We try to adjust the system to ensure that they respect the way people actually use the crossing.

Mr. Jackson: I could also add that we have a grade crossing improvement program where the federal government contributes up to 80 per cent of the cost of putting technological improvements into crossings to protect crossings that are considered to be high risk. This contribution program is an important facet of achieving the improvements we are looking for.

Senator Adams: Of course, some accidents are suicides. Some people want to die and just wait for a train to run over them. I do not know how you can deal with that.

Senator Roberge: This act gives many new powers to the safety inspectors or railway inspectors. Is there an appeal process? If not, should there be one?

Mr. Jackson: At this point, there is not a formal appeal process. There is always an appeal from the decision of the inspector to the minister or to higher levels in the organization. There is currently discussion ongoing with the industry and all stakeholders on the feasibility of establishing a tribunal to which an inspector's decisions or regulatory decisions of one kind or another could be appealed. There currently is such an organization under the Aeronautics Act, and sanctions given by a civil aviation inspector can be appealed to something called the Civil Aviation Tribunal, where the matter is considered and is either stayed or left in force. If we provide these existing enforcement tools to inspectors in other areas, whether marine or rail or whatever, then procedural fairness requires that there be an appeal tribunal of some sort. The matter is being actively considered at this time.

Senator Fitzpatrick: As we know, the Canadian railway industry is extending itself into the United States. I am wondering how we reconcile our safety requirements in Canada with those in the United States and if you are aware of any real disparity.

Mr. Burtch: For the most part, this is a North American industry, and it has been for a very long time. Organizations such as the American Association of Railroads have quite extensive interchange rules. In effect, the equipment can move from one company to another and must still meet safety requirements and all those things. We have had an active program under the North American Free Trade Agreement of working with our U.S. counterparts at borders to do joint inspections and look at where there are possible deficiencies or problems. To date, we have not found anything significant. You can go back and forth across the borders.

We are more likely to find a problem if crews go for extensive lengths into the United States or into Canada. Usually they take a train across the border for 10, 15, or 20 kilometres, and at that point we also usually recognize each other's rules. If the train was to continue beyond that, there might be some small rules changes where we would have to work more closely together. At present, it is not a major drawback.

The Deputy Chairman: I am tempted to inquire what we are doing about illegals entering the United States via the bridges and the rail system. Is this a longstanding problem? Has the tragedy that recently occurred caused us to take any new initiatives to prevent this?

Mr. Burtch: I am afraid I am not aware of the incident you are referring to, Mr. Chairman.

The Deputy Chairman: I am absolutely amazed and stunned. An incident occurred on the Amtrak about three or four weeks ago. There were four or five people involved. A woman lost her life. She was an illegal immigrant to the United States who was piggybacking on an Amtrak that was crossing on an international bridge from Canada into the United States. Frankly, I am somewhat amazed. Mr. Jackson, could you respond to that?

Mr. Jackson: I was not aware that it happened on a train. I know it was at a border crossing but I thought it was on a truck.

The Deputy Chairman: It was a truck, was it?

Mr. Jackson: I think so.

The Deputy Chairman: I stand corrected, then.

Mr. Jackson: The major Amtrak catastrophe that I thought you were referring to was the tragic passenger accident to which Senator Poulin referred that occurred today.

The Deputy Chairman: No. This was an illegal crossing where there was a death.

Mr. Jackson: I stand to be corrected.

The Deputy Chairman: I thought it involved a train. I thought it was rail related.

Mr. Jackson: We will look into it for you.

The Deputy Chairman: Earlier in your remarks, Mr. Jackson, you used the world "culture" two or three times. As you may well know, we are very concerned about the development of a culture for safety.

Could you tell us whether there is anything in this first run at the act that recognizes the importance of the development of a culture for safety in Canada? Among our schoolchildren, we first started with kids crossing train tracks and obeying the instructions by crossing at the right places and under the right circumstances after the usual signals and everything else. In other words, children are being taught that there is a process that will produce safety if they follow it.

To your knowledge, are the railways doing anything to promote this? I know the department is interested in safety and you are interested in speaking to schoolchildren and before other venues. Could you talk to us for a minute about your attitudes with respect to the development of safety?

Mr. Jackson: I will touch on three safety culture issues, and then my colleague Mr. Burtch can amplify if I have left something out.

A longstanding program called "Operation Lifesaver," a joint program that the railways and ourselves are involved in, takes the safety message to the general public by focusing on young people. This program is quite longstanding and has much improved safety awareness on the part of the general public.

The program I mentioned in my remarks, Direction 2006, which aims to cut crossing and trespassing accidents by 50 per cent by the year 2006, is largely based around promotion and awareness. It engages all the parties that can help bring that message to those who need to receive it, whether it be police forces, municipalities, the railways, the railway police, ourselves, and so on. It focuses on getting the safety message out there and improving people's safety awareness.

Under the provisions of this act, when we talk about safety management systems, part of that is bringing a safety culture into the company boardrooms, where safety information will become just as important to the company's management as financial information. It is something that should be part of the day-to-day considerations of the management of the company when we fully flesh these safety management systems out and have the regulations, and so on, in place. Only then will we ensure that we have available the kind of information that decision-makers need to anticipate safety problems and take right decisions.

We see the safety culture issue as being important not only to the general public, including young people, but also to the railway companies and their employees.

Mr. Burtch: Mr. Jackson has covered the main points. The other facet of that is the concept of consultation and ensuring that all parties are engaged in the development of safety.

The act includes a number of areas that improve the consultation with rail companies and other people. This set-up of a new consultative committee, which includes everyone who is interested in rail safety, means that they will be involved in the up-front development of safety requirements. Consequently, they are more likely to respect them and deal with them. We believe all those things are working towards more awareness and consciousness of safety.

The Deputy Chairman: The Environmental Protection Agency Act excludes an area of rail activity that is re-addressed in this bill. Are the proposed amendments in accord with officials and the environmental protection area of work? Are they happy with it?

Mr. Jackson: Yes. With this amendment, which includes rail emissions in this bill, rail, aviation and marine emissions will be part of Transport Canada's safety legislation. It is consistent with the department's views on that.

Senator Roberge: In this act, the minister has the power to make regulations pertaining to road construction and maintenance. Roads are a provincial jurisdiction. How do you go about that?

Mr. Burtch: The regulatory power that is being proposed is for road building and road construction only insofar as it directly affects the safety of a rail operation. It would only be to the extent that we could demonstrate by regulation that we had to have some impact on the way a road approach was designed or the type of signing that was used. It does not extend so far down the road that we can start setting design standards. It would only be to the extent that we can show that it affects the safe operation of the railway company.

The Deputy Chairman: The act responds to a requirement to review at the end of five years. There have been some minor slippages -- understandable ones, and with good reason. Does that bring to an end any requirement that we may now have to revisit this act? Once we approve this, are we in the position that the reopening or revisitation of the act would have to come about at some future date as a result of a major amendment? How do we revisit this act in the future?

Mr. Jackson: There is no provision as it stands for a mandatory review at a period in time. I would suggest, however, that as part of ongoing regulatory renewal inside the department, we will be revisiting these acts periodically.

A lot of the provisions that will be providing the safety framework for the industry will be done by regulation, according to this act. Regulations are reviewed periodically and the regulatory process, which will bring about new, amended or cancelled regulations -- and, this will happen as situations change -- will bring a focus on the safety framework. There will be scrutiny.

The Deputy Chairman: How will the general public focus?

Mr. Jackson: The consultative committee structure that we have established will be the prime way of doing it. The general public is often difficult to identify. However, we do feel that by having a number of non-railway groups involved, such as the provinces, the Federation of Canadian Municipalities, the Canada Safety Council, Transport 2000, et cetera -- groups that are not focused just on railway business -- will bring the view of the public at large to bear at the table.

The Deputy Chairman: Thank you very much, gentlemen.

Mr. Ballantyne, would you join us at the table, please, and proceed when you are ready?

Mr. Bob Ballantyne, President, Railway Association of Canada: Mr. Chairman, it is always a great pleasure to address this body, a privilege that I have had in the past.

The Railway Association of Canada thanks the Standing Senate Committee on Transport and Communications for this opportunity to express our views on both the Railway Safety Act and Bill C-58. The RAC believes that the Railway Safety Act is good legislation and that the passage of Bill C-58 will, in general, make the act even better.

When the RAC appeared before the House of Commons Standing Committee on Transport on Bill C-43 early in the fall of 1996, there were 32 member railways of the RAC. Today, there are 49 member companies.

The member companies include Class 1 railroads -- that is, CN, CP and VIA -- regional, and shortline railways, which offer freight, intercity commuter and tourist passenger railway services in both Canada and the United States.

Canadian railways carry about 5 million carloads of freight and containers, and some 45 million rail commuters and passengers every year. In terms of revenue-tonne kilometres in intercity freight, railways carry more than the combined total of trucks and ships. Freight traffic in 1997 was at an all-time high, at 304 billion revenue-tonne kilometres.

Canada's railways, which employ some 46,000 workers, are among the safest railways in North America, and we would say in the world. They are also getting safer. Last year, for example, both CN and CP had no employee fatalities, the first fatality-free year for employees ever. The main accident index, that is, accidents per million train miles, continued its downward trend from 13 per cent in 1988 to 9.2 per cent in 1998.

Of our 49 member companies, 29 are federally regulated and 20 are provincially regulated. Alberta, Ontario, New Brunswick and Nova Scotia have adopted the federal form of railway safety regulation and are under agreement with the Government of Canada to have Transport Canada's railway safety inspectors ensure compliance with the national railway safety requirements. Transport Canada also has an agreement with Quebec under which that province can request Transport Canada experts to assist in inspection activities.

The safety regime in other provinces is also informally based on the Railway Safety Act, something that we encourage.

The reality is that all railways want and need to operate safely for the benefit of employees, customers, communities and shareholders. The Railway Safety Act and any amendments will apply to virtually all railways in Canada, not just the major carriers. The application of the act and the development and enforcement of regulations need to reflect this broad application.

The RAC was involved extensively in the consultation process, along with many other interested parties, in bringing forth the Railway Safety Act in January 1989. We again had the opportunity to consult with the Railway Safety Act review committee in the period from 1994 to 1996. The report of this committee translated into proposed amendments as Bill C-43.

The RAC, and virtually all affected stakeholders, strongly supported Bill C-43. As Mr. Jackson mentioned, the bill, unfortunately, died on the Order Paper.

The RAC and industry stakeholders were consulted in the 1998 Transport Canada regulatory review, which resulted in adjustments and improvements to the previous bill now tabled as Bill C-58.

The railways generally endorse the amendments contained in the bill. The RAC offers the following comments and suggestions, which we feel will further enhance the application of the act.

The RAC, Canadian National Railways, Canadian Pacific Railway, the unions and other stakeholders made representations to the House of Commons Standing Committee on Transport. As a result of that consultation, the Commons made some amendments.

The RAC does not recommend any further changes to Bill C-58. In this submission, the RAC will focus on two particular issues. They are grade-crossing safety and safety in shortline railways.

The railway industry has a vested interest in grade-crossing safety and trespassing. Obviously, crossing issues are strongly linked to public safety. In this matter, the railways and all three levels of government are partners. The public must be educated in the risks associated with traversing grade crossings and fully understand that trains take substantial distances to stop and that they cannot take any evasive action.

Operation Lifesaver, the national public safety program co-sponsored by the Railway Association of Canada and Transport Canada, already has an excellent record of reducing accidents, fatalities and injuries at grade crossings. The program has helped reduce rail-highway grade-crossing accidents by 60 per cent over the past 17 years. The industry is also very active in Direction 2006, which Mr. Jackson mentioned.

These programs and others sponsored by individual railway companies have, over the years, contributed to a steady decline in crossing accidents and fatalities. However, according to the Transportation Safety Board, there were still 276 grade-crossing accidents in Canada in 1998 compared with 691 in 1982. In 1998, there were 42 people killed and 42 people seriously injured.

In virtually every case, the accidents were caused by drivers or pedestrians who put themselves in the wrong place at the wrong time. While fatalities increased last year compared with 1997, the number of crossing accidents is the lowest in the last 17 years. This is a remarkable achievement considering that the motor vehicle population continues to grow and rail freight traffic is at historic high levels.

The majority of such collisions occur at crossings equipped with active warning devices. In about one-third of them, it is the vehicle that drives into the side of the train.

Many accidents are caused by drivers underestimating the speed of the train in trying to cross the tracks ahead of it. Large objects always appear to be moving somewhat slower than they really are.

In light of these continuing problems of driver perception and behaviour at grade crossings, the railway industry, with the strong support of various labour organizations, made a recommendation to the standing committee during the 1996 review of Bill C-43 to amend the act in such a way as to address this safety issue.

The industry recommended that a clause be added to the Railway Safety Act that provided railways with right-of-way at grade crossings, similar to legislation adopted in New Zealand.

It has been historically accepted that marine vessels have the right-of-way over trains at canal crossings and that trains have the right-of-way over motor vehicles at road intersections. This historical acknowledgement was based on the physical principles of stopping the vehicles in each of these three modes. Therefore, including such a reference in Bill C-58 makes the laws of Canada compatible with the laws of physics.

The industry was disappointed in the removal of this clause in the preparation of Bill C-58, and it was certainly pleased that the House of Commons saw fit to amend it as a result of the Scott consultations. Clause 20.1 in Bill C-58 now successfully addresses this issue.

Trespasser accidents were a growing problem in the 1990s. Through Operation Lifesaver, the efforts of the railways and Transport Canada are starting to pay off in this area as well, with declines in accidents, fatalities and injuries over the past three years. The penalty provisions in clause 31 of Bill C-58, which amends the appropriate sections on penalties in the act, will assist both railway police and the civil police in their efforts to reduce trespassing.

Concerning safety on shortline railways, the passage of the Canada Transportation Act in mid-1996 streamlined the process for restructuring railway operations in Canada and simplified the process for creating new and locally managed shortline railways which could be more responsive to the local customer's needs and service requirements.

This initiative has been very successful. Currently, an average of one new railway a month is being established in Canada. Not only is rail service to many communities being maintained, but business is actually growing. This has been achieved by attracting business that rail had lost over the decades to trucking and by gaining new traffic that had never moved by rail. Some shortlines have in fact increased their traffic volume by as much as 300 per cent over the past three years.

Because they interchange traffic with the mainline carriers for furtherance and final delivery, the shortline's safety performance and standards have to match that of their mainline competitors. Shortline operators are developing strong and cooperative partnerships with the major freight carriers, CN and CP. These partnerships extend not just to marketing opportunities but also to safety. With the industry dedicated to delivering seamless freight transportation services, it is essential that all segments of the freight transportation network provide safe and damage-free services.

The Class 1 railways are active in providing appropriate assistance to shortlines in the areas of technical expertise, resources, and training materials. At the Railway Association, we also are providing many safety-related services to our member shortlines, including access to rules, regulations, standards, industry guidelines and circulars, various workshops and seminars, and access to the technical committees of the RAC and also to our working groups. The RAC has the advantage of having Class 1, shortline, and passenger railways all as members of the same association, thereby facilitating an industry-wide approach to safety management.

In spite of these safety efficiencies, shortlines generally do not have the same support staff and associated resources as the major freight carriers to support a high level of dialogue with the government. In essence, it is our view that it must be recognized that shortlines can attain excellent levels of safety performance, similar to the Class 1 railways but delivered in simpler forms with less administrative effort.

The implementation of new regulatory oversight mechanisms now being considered in Bill C-58 should reflect this transportation reality. New regulations to support the proposed amendments in the act and the related enforcement activities must provide a balance in due consideration to the business realities for these small railways. This is essential, particularly in light of a more stringent regulatory regime that exists for railways, including shortlines, than exists for our competitors in the trucking mode.

Finally, regarding safety management systems, clause 47 of Bill C-58 outlines the requirements for railways to implement and monitor safety management systems, and clause 32 provides for ministerial orders for corrective measures related to these systems. The RAC believes that safety management regimes should apply to all railways, large and small, both federally and provincially regulated. Railway rolling stock moves between railways big and small and across all borders in the NAFTA countries, and it is therefore vital that there be as much consistency and compatibility between the various regulatory regimes as possible.

The philosophy of the Railway Safety Act requires certain safety objectives to be met but acknowledges that a large transcontinental railway operating at high speeds with high-density traffic will meet these objectives in a significantly different manner than a low-speed and low-density shortline operator. Bill C-58 retains this basic premise. As the regulator will now require all railways to implement safety management systems, it will be necessary that Bill C-58 and supporting regulations and the staff at the Transport Canada Rail Safety Directorate be sensitive when applying the proposed sections of the act to shortline and small terminal switching railways. The RAC is not recommending changes to these clauses in Bill C-58 but is providing a word of caution in their application.

In summary, the Railway Safety Act is good legislation. It provides protection for the public and it directs responsibility for managing safety to railway officers. Bill C-58 generally enhances the current Railway Safety Act, and the RAC supports its adoption with consideration of the above-mentioned suggestions in its implementation.

The Deputy Chairman: Thank you, Mr. Ballantyne.

Senator Fitzpatrick: I appreciate that you have monitored this legislation carefully and support it. I presume that you have given consideration to the cost of these amendments and that you find them cost-effective because of the safety benefits that would be received from them.

Mr. Ballantyne: Yes, we have, senator. Every decision that every agency makes, government and private, has a cost implication and, as such, they always should be considered. It is certainly our view that this will enhance safety and that it will do it in a cost-effective way.

Senator Adams: Since shortlines have been taken over from some of the private railways, we have not heard anything about Bill C-58. Will improvements need to be approved by Transport Canada? How will the system create more safety for railway crossings?

Mr. Ballantyne: If I understand your question properly, Senator Adams, you are asking whether Transport Canada will have to approve changes that are made by shortline railways.

Senator Adams: Yes.

Mr. Ballantyne: If a shortline railway makes some changes that fall within the regulations and the rules that have already been developed under the Railway Safety Act, I do not think Transport Canada would necessarily have to approve that. However, in the normal course of the inspections by Transport Canada inspectors, they would certainly notice any deviations from the accepted standard or standards within the regulations and rules under the Railway Safety Act. If the inspectors noticed any deficiencies, they have strong powers under the act to force the railway company to make changes or, in the worst possible scenario, to shut down a railway company if it is not operating safely.

Senator Adams: My question was about safety. Does Transport Canada provide any money to improve safety? A shortline railway company could say, "We do not have money to do that." Public safety is important, but the operator could say that it has no money to ensure public safety and therefore is shutting it down.

If Bill C-58 does not include private shortline operations, it is only concerned about the safety of the railway.

Mr. Ballantyne: Bill C-58 will apply directly to any railway company that operates under federal regulation. It will also apply to any railway company operating under provincial regulation -- certainly in four provinces by agreement. The safety requirements must be met.

This has not happened yet, but if a small railway were to get into financial difficulties, all parties and stakeholders involved would somehow or other have to reconcile the economic cost or harm that would result to small industries, for example, if that shortline railway were shut down. Clearly, the safety implications must be considered very seriously.

I do not see Bill C-58 causing any particular problem to shortline railways from that point of view. Most of the shortlines have been very successful in actually increasing the amount of business that they have been able to generate when the management has become very local and the service has become very local in its provision on those shortlines.

Senator Poulin: Mr. Ballantyne, we appreciate not only your presentation but also your support for this bill and the fact that you were involved in the process of review.

In your presentation, you spoke about Operation Lifesaver and the fact that grade-crossing accidents have been reduced by 60 per cent over the last 17 years. I imagine you would agree that even one accident is one too many. Could you talk to us a little more about Operation Lifesaver and the tools you use to bring that about?

Mr. Ballantyne: Yes, I would be glad to do that. The program has now been operating since 1981. It is funded jointly, on an even basis, by Transport Canada and the railway industry through the Railway Association of Canada. Operation Lifesaver has three elements. They call it the three Es: education, enforcement and engineering.

The main focus has been on the educational side. There is a program of getting information out in various ways to the public, very broadly, by the use of advertising from time to time, displays in shopping malls, and a lot of presentations, especially to young people before they actually become drivers. Much work is done with school children, from small children up through to the teenage years. That work is augmented by video tapes and various kinds of posters. There are posters that focus on particular trespassing problems such as snowmobiles on railway rights-of-way and all-terrain vehicles, and kids who go fishing off a railway bridge, and so on. A lot of effort is put into that side of it.

More recently, we have stepped up the enforcement activity in two ways. We have an overall advisory committee. As well as having industry and Transport Canada direct involvement, the RCMP is involved, as is the Ontario and Quebec provincial police, some of the bigger municipal police forces, and the railway police. I could not say enough good about the railway police. CN and CP police do a magnificent job in this area of visiting the schools and getting out the safety message to children as well as to the community at large.

The railway police and the civil police forces are becoming more aware of the problems. We have instituted a program we call Officer on the Train, where we will make a special train run, with provincial or municipal police riding in the locomotive, so that they can actually see what motorists do at level crossings. In some cases, where a railway knows that a particular crossing has historically had problems, we will also have a police cruiser sitting at the crossing. When the train passes that particular crossing, if a motorist engages in a dangerous act, the officer in the car will give the motorist a warning or a ticket. The enforcement activities have been stepped up.

On the engineering side, I do not have anything more that I can add to the comments that the officials from Transport Canada made. A lot of effort is put into looking at the physical characteristics of crossings to ensure that, as much as possible, they meet the requirement of good sight lines and good surfaces, and that sort of thing.

The Deputy Chairman: Thank you, Mr. Ballantyne. I join with my colleagues in echoing their sentiments about the role of the railway association over the years in the development of this.

This might be of some interest to the committee, and it will give you a chuckle, I am sure, Mr. Ballantyne. I am looking at a Transport Canada information release entitled, "Railway Safety Act." This was tabled in the House of Commons, and it states, "Ottawa. Transport Minister John C. Crosbie today tabled a railway safety bill for first reading in the House of Commons."

The date of that article was January 18, 1988. We certainly move. We could not have done so without the help of Mr. Ballantyne and scores of dedicated people across the country. This is a large industry and we appreciate your contribution to it.

Mr. Ballantyne: Thank you very much. It is always a pleasure to appear here.

The Deputy Chairman: Honourable senators, is it agreed that the committee move now to clause-by-clause consideration of this bill?

Hon. Senators: Agreed.

The Deputy Chairman: Shall clauses 1 to 3 carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall clauses 4 to 17 carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall clauses 18 to 20.1 carry?

Hon. Senators: Carried.

The Deputy Chairman: Shall clauses 21 to 29 carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall clauses 30 to 37 carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall clause 38 carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall clause 39 carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall the preamble carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Shall the title carry?

Hon. Senators: Carried.

The Deputy Chairman: Carried.

Is it agreed that this bill be adopted without amendment?

Hon. Senators: Agreed.

The Deputy Chairman: Is it agreed that this matter be reported to the Senate tomorrow?

Hon. Senators: Agreed.

The Deputy Chairman: Thank you, honourable senators. I am sure Senator Bacon would want me to say on her behalf how pleased she is to see this tidied up. It deals with safety and we have no mandate to interfere with safety. This is a good piece of legislation.

The committee adjourned.

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