Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 13 - Evidence - May 8, 2007
OTTAWA, Tuesday, May 8, 2007
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-11, to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other acts, met this day at 9:35 a.m. to give consideration to the bill.
Senator David Tkachuk (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: We are here today to look at Bill C-11, which would amend the Canada Transportation Act and the Railway Safety Act, and to make consequential amendments to other acts.
We have with us today, representing the City of Ottawa, Bob Shouldice, from Borden Ladner Gervais, and two other gentlemen.
Bob Shouldice, Outside Legal Counsel, City of Ottawa: I am pleased to introduce to my immediate left, Barry Townsend, Manager of the Light Rail Implementation Division for the City of Ottawa, and to his left is John Jensen, Manager, Transit Support, with the City of Ottawa. Both gentlemen have been involved with the recent light rapid transit project that the City of Ottawa was considering, and both have been involved in the consideration of this particular bill.
We will be brief this morning. Thank you for the opportunity to present the City of Ottawa's views on this particular bill this morning. I thought we might give you some context as to why the city has an interest in this particular bill and in a particular provision of the bill.
Until recently, the city contemplated proceeding with a light rapid transit project in the city. As most of you may be aware, that project was cancelled by the current city council in November of last year. However, the city continues to consider the possibility of a light rapid transit project. It is not clear at this point in time whether anything will proceed. A task force has been struck by the city that will continue to consider a number of different options for the city's transportation needs. That task force, as well as other processes that are in place, will report to the mayor and to council sometime over the next year to 18 months.
At some point, it is a possibility, but not a certainty, that a light rapid transit system may come back into the picture and the city may proceed with something.
With that as a possibility, the city continues to have an interest in this particular bill, and in particular, in the provision that deals with the possibility of the federal authorities or the federal minister delegating certain regulatory jurisdiction or regulatory authority to a provincial authority or to, in this case, the municipality of Ottawa.
The city has an interest in that provision because, as you may know, the city's transportation system is currently a federal undertaking. The reason is that, as a component of the transportation system, the city runs buses on a regular or continuous basis across the border into the municipality of Gatineau. It is not a large component of its transportation system. It is, in fact, a small component of its transportation system. However, it is regular and it is continuous. The city provides a daily service.
Because the transportation system crosses the border, the transportation system is a federal undertaking and therefore subject to the federal railway regime under both the Canada Transportation Act and the Railway Safety Act.
The city's plans with the light rail system were originally to make it an integrated part of their overall transportation system. That plan of course is logical. It makes sense to have a coordinated transportation system.
The light rail system was intended to be an integrated part of the whole, which would make the light rail system a federal undertaking as well. Therefore, the light rail system would be subject to the federal regulatory regime.
That jurisdiction would make the city unique in Canada in the sense that no other urban light rail system in Canada is subject to the federal regulatory regime. It would also make the city somewhat unique in North America because other municipalities that operate and regulate urban light rail systems do so on their own. They are not subject to state, provincial or federal oversight jurisdiction.
That somewhat anomalous situation caused the city to consider carefully what they thought might be the most appropriate regulatory regime for the light rail system. What made the most sense for them was a regulatory regime consistent with or similar to other municipalities across Canada. They explored with Transport Canada the possibility of finding a way to avoid a dual system where both the city and the federal authorities would regulate together. That discussion led to the provision in Bill C-11 under consideration, which contemplates the possibility of a delegation agreement being entered into between federal authorities, under the authority of the minister and the city, where the city would be given the authority to regulate and administer the regulations applicable to the light rail system.
Those background circumstances have led to the city's interest in this particular part of the bill and explain why the city supports that particular provision.
In terms of outlining the rationale for that support, it is not solely because the city wants to be like every other municipality. The city sees substantive or persuasive reasons for going to a municipal regulatory model, and that is reflected by a number of points.
First, it occurs to the city that it would provide for greater regulatory efficiency and economies by reducing or eliminating the need for dual regulation. The city has the ability and legal authority to regulate its transportation systems. It already has an infrastructure and resources in place to regulate transit systems: It does so today. In addition to its bus transportation system the city also operates a heavy rail system, the O-Train. The city is already well equipped to adopt appropriate construction, engineering, operating and public safety standards that would apply to a light rail transit system. The city believes it would be not only an appropriate, but also an efficient regulator of this particular system.
I mentioned that the city is an appropriate authority. It has the legal capacity and authority, under its enabling legislation, to regulate passenger transportation systems of any kind or type. That regulation would extend to a light rapid transit system in addition to the transit systems it currently operates.
The city has all the necessary internal and external resources. The external resources that the city is able to call upon include its membership in various rail associations, which are meaningful in this context.
For example, it is a member of the American Public Transportation Association, APTA. All municipal transit systems in Canada are members of that association. It has been around for over 100 years. The association takes a responsible approach to transit systems: urban transit systems, public safety and public operations. It has a well- developed, sophisticated system of annual safety audits adopted by members of that association. The association is well staffed, well funded and well resourced. It is capable of carrying out safety audits and providing ongoing resources to its members such as new technology, public safety standard developments and sharing experiences with respect to operations of similar systems.
The city is also a member of other associations, the Canadian Urban Transit Association and the International Safe Transit Association, which provide for similar resources and similar support to transit authorities like this one.
The city also has access to external resources. In the light rapid transit project that had been contemplated, the city planned to work with experienced contractors that have built and operated light rapid transit systems in many different locations. The contractors would be able to provide the city with further expertise and resources it might need to properly construct and operate a system like this one.
A further rationale for the city's support of this particular provision of the bill and for a delegation arrangement is its observation that the federal regulatory regime is not designed to address urban light rapid transit systems. The city, because of its somewhat anomalous circumstances, would be the first urban light rapid transit system to be subject to federal regulation.
The current set of standards, regulations and rules under the federal regime are not designed for a light rapid system. New rules and standards would need to be adopted, administered and enforced. The city's view is that it would make most sense if the city were to set up that regime that rather than to engage the federal administrative regime to do that.
We can go into more detail in terms of the city's current planning or the planning that had developed to the point when the project was cancelled This planning illustrates the city's diligence and thoroughness in terms of the engineering and construction standards to be adopted and the regulatory framework to be adopted to ensure appropriate standards and public safety interests were properly addressed. We can perhaps best address that information through question and answer, if that is what the committee would prefer.
I will conclude by saying that the city had not yet fully developed the terms of a delegation agreement contemplated between the city and the Minister of Transport at the time the previous north-south light rapid transit system was cancelled. However, we had started a framework for a delegation agreement and we are prepared to sit down with Transport Canada and ensure that within that delegation agreement, appropriate terms and principles relating to ongoing public safety, and operating and construction standards, would be addressed.
We would pursue that in the future should the city decide to proceed at some point with some kind of light rapid transit project. At this time, that is uncertain, but it is a possibility.
With that, I will conclude. My colleagues and I are open for questions.
Senator Munson: Is the O-Train now under the Railway Safety Act?
Mr. Shouldice: The current O-Train is subject to the federal regulation, both the Railway Safety Act and the Canada Transportation Act.
Senator Munson: We are always concerned about safety at the committee. Are the standards of the American Public Transportation Association similar, better or tougher than the Railway Safety Act? I understand you will come under this new American association.
Mr. Shouldice: We have not done a rigorous comparative analysis between the American Public Transportation Association standards and the federal standards, perhaps for a couple of reasons. As I mentioned, the current federal standards are not designed to address a light rapid transit system.
Senator Munson: Can you tell me why?
Mr. Shouldice: First, there is an absence of applicable standards. The current federal standards are intended to address conventional heavy-rail systems. The federal system has not needed to address urban light rapid transit yet, so it has not needed to adopt specific standards for a light rail system yet. It is more a case of the standards currently not being there.
The other observation is that most light rapid transit systems develop, to some extent, their own unique set of standards. Each light rapid transit system is a little different than another. They have a lot of common standards, but each urban system uses a somewhat different technology and operates in somewhat of a different environment. Therefore, the standards are not entirely the same across the board.
Senator Munson: In your presentation, you talk about the future. As transportation people, and since we are talking so much about the environment these days, does it not make a lot more sense today to construct a light rapid transit system? Even though some money was withheld recently, should you not sit down and do all your planning, even though city council voted against it? I can never understand why they did; we are in the day and age where it is a no- brainer that we should have this kind of system.
Mr. Shouldice: That observation is fair. That was one of the factors that the city applied when it first adopted a light rapid transit system. Undoubtedly, it will continue to be a factor that the current city council and mayor will take under consideration. It is one of the reasons why light rapid transit is still under consideration by the city.
Senator Munson: How do the officials feel about it?
Barry Townsend, Manager, Light Rail Implementation Division, City of Ottawa: Currently, a task force will report back to the mayor on transportation within the city. We are undertaking a review of the official plan over the next 18 months. All of that work will give us guidance as to what we would use in our transportation in the future.
Senator Munson: We have listened to a lot of testimony on Bill C-11 dealing with reasonable amounts of noise by CN and other rail lines. Can you tell us what kind of dispute mechanisms we would put into place for a city if Bill C-11 passes under its present form?
Mr. Shouldice: First, the city currently deals with the noise complaint situations with its bus and O-Train operations. It has a process and a protocol that it applies. That same process and protocol would apply to the light rapid transit system, should that be adopted.
The city is responsive to noise considerations. I will defer to my colleagues to describe further the protocol that is in place. I am not sure it is a particularly formal one. I think the process is more informal by which the city responds in a prompt and diligent manner to complaints it receives.
In going forward and planning the light rapid transit system, noise was part of the consideration in terms of the technology chosen. The city is aware of the noise factor — it must be addressed with any system one adopts.
Mr. Townsend: Within the design and construction aspect of a project, we always enter into an environmental assessment. Noise is a factor that is reviewed through any environmental assessment for a project. We look at various mitigation measures and we listen proactively to the concerns of the public.
For example, in the plan that we had for the north-south light rail, we proposed noise barriers in some locations. We actively follow that. I believe Mr. Jensen has a protocol in place on the operations side.
John Jensen, Manager, Transit Support, City of Ottawa: On the operations side, we are always cognizant of the noise bylaw in the City of Ottawa, which governs noise within the city for all use types. Then we have the political process in place, where citizens can approach their councillors. There are a number of opportunities for citizens to be protected in terms of noise.
Senator Munson: Can a city such as Ottawa or other cities that we have seen — for example, Vancouver — operate, build or expand a light rapid transit system without federal money? Does cost always need to be a three-way split to build these things? Can the city design and build something on their own without coming to Parliament Hill or to the government of the day to seek money to build or expand? I am thinking of Calgary, Montreal, Vancouver and all these other cities that have these systems.
Mr. Shouldice: Theoretically, it is not absolutely necessary. Practically, I think that is another question. As some of you probably observed over the last five to six years, we have seen somewhat of an advent of public-private partnerships in this country. Some of those partnerships are used as a model to support urban transportation projects.
Under those models, private money is introduced into the equation. It is conceivable that in one of those arrangements, because of these other sources of financing that may come into play, federal money may not be required. We will see. Time will tell.
Senator Zimmer: Mr. Shouldice, for the historians here, I want to mention the fact that in 1973, when I went to the Canadian Football League games in Ottawa, Hap Shouldice sat right behind me. He was the Referee-in-Chief for Canada. It was great to sit near him because he would make every call before the referees did. I know they have a reunion every five years. When you do, would you please pass on my best regards to his family?
Second, I will never go duck hunting with Senator Munson because he picks off all the questions.
In clauses 35 to 42 of this bill, would it make it easier for the municipal government to secure former railway rights of way for passenger services? Are there other railway rights-of-way that the City of Ottawa would wish to acquire for passenger rail service?
Mr. Shouldice: I will undertake to get back to you with the answer to that question. I would need to consult with the city and I am not sure my colleagues necessarily know.
I can tell you that under the project that had been considered previously, the north-south rail project, the city had acquired the necessary rights-of-way. I do not believe any further rights-of-way were contemplated. As the city looks forward and continues to consider its options — and that may include an east-west project or other different projects — it is possible the city may need to acquire other rights-of-way. However, at this point I am not familiar with exactly what their requirements may be.
Senator Zimmer: Can you let the committee know what you find out?
Are there any areas in this bill where you would recommend the committee make amendments?
Mr. Shouldice: No, the city is pleased with the bill in its current form and has no requirements for any further modifications or amendments, and has no proposals for any additions or any other modifications.
Senator Merchant: My question is not precisely in your area, but this seems to be an issue of passing authority over the rail lines and others in similar circumstances. My concern is that there might be some unintended consequences of these changes. I come from Saskatchewan. Will these changes in the bill affect short line railroads? Will there be an impact upon the largely farmer-owned grain transportation system?
Mr. Shouldice: From my perspective, I do not think the changes will have those sorts of implications. They are not anything the city had contemplated resulting from this amendment. I am sure others who considered the bill and drafted the bill are more equipped to respond to that question.
This particular provision was intended to address what are unique and anomalous circumstances. It is not to say that this provision cannot possibly be applied at some point in the future to some other circumstance, but the safeguard that is built in is that it can be applied only with the minister's authority. It can be applied only after careful deliberation and consideration of the circumstances at hand.
Senator Merchant: This seems to be a jurisdictional kind of change. The people who operate a short railway line outside Ogema have been involved with that change. They are now dealing with the federal government. If the provincial government and municipal governments get into the act, will that complicate the circumstances? Sometimes there are unintended consequences when changes are made to a bill.
Mr. Shouldice: It is a fair and appropriate question. My understanding in terms of the process that has been followed by the Transport Canada officials, its legal advisers and others, is that they carefully considered all the upstream, downstream and cross implications of a provision like this. Again, I feel the appropriate safeguards have been built in. As long as the provision is applied with prudence and diligence, there should not be any unintended consequences.
Senator Mercer: As a one-time resident of Ottawa and as someone who still owns a home here, I have all kinds of transportation questions but I will try to stick to the agenda.
I want to go back to Senator Munson's first question because I do not think we received an answer. Should we not really know now, before we go any further, if the standards of the American Public Transportation Association are as good as, or better than, the Railway Safety Act?
Mr. Shouldice: That is a fair question as well and I will explain and perhaps elaborate.
I maybe should have been more assertive in saying that the American Public Transportation Association standards are better in the sense that they have been adopted over many years to address light rapid transit systems. As I mentioned before, the current federal regime does not address light rapid transit systems because it has never needed to.
From that perspective, the standards that the city would look to as a base for the standards they would adopt would certainly be better. That is not to say that the federal authorities, the Transport Canada officials, are not capable of developing their own standards and addressing light rapid transit. It is only a case that they have not, to date. In terms of deciding who the most appropriate authority is to adopt those standards, the city's view is that the city, as the appropriate authority, makes the most sense for the reasons we described before. Other cities have, and this city should be just as capable.
Senator Mercer: I understand that, but I envisage a time in the future where something goes wrong. There was an accident on the Toronto Transit Commission, TTC, recently where a worker was killed and other public railways have had other accidents in the country — none of them major of course.
My concern is if we have an incident, and safety is called into question, then the transit company, whether it is OC Transpo, the TTC or, if we ever get a rail network in Halifax, the Halifax Regional Authority, says they have referred to the American Public Transportation Association safety rules. They will then look to the government and say that those are rules that the government did not adopt itself. It is like buying this information off the shelf instead of doing the work ourselves. I am concerned we have not given those rules the acid test that applies to Canadian standards. I am not saying they are wrong. We have not had someone tell us that the comparison works in Canadian terminology, or maybe we should ask the federal Department of Transport to come back with rules and regulations that either mirror or are better than the American Public Transportation Association.
Mr. Shouldice: First, I mentioned that the American association rules are only a base from which the city will work. The city will, in a rigorous way, adopt its own standards and rules, as other municipalities in Canada have — Vancouver, Edmonton and Calgary. Those cities have adopted their own set of engineering standards, construction standards, operating standards, public safety rules, requirements and so forth. They did so in relation to the particular system that they operate in and the particular environment in which they operate. Each municipality, such as the City of Ottawa, is a public body that is accountable to the public, and is experienced at the mandate and the responsibility that it has to the public in making sure that the right rules and standards are adopted. Hopefully, that is what would give you the necessary comfort and confidence that the right standards and rules will be adopted.
The second observation is that in the delegation agreement that would exist between Transport Canada and the city, there is the ability to have mechanisms in place that would give Transport Canada ongoing visibility into the standards that are ultimately adopted and applied by the city.
Senator Mercer: One provision that some people have expressed a concern about is under the complaints and investigations provisions where it talks about the agency and reasonable noise and vibration provisions. As an operator of a light rail transit, are you concerned that this provision is too open-ended? If I live next to the O-Train and I am a chronic complainer who makes unreasonable demands, could this provision be used to force Ottawa transit to make changes that are perhaps unreasonable and may be unnecessary and obviously costly?
Mr. Shouldice: I do not think so. Maybe in theory, delegating to the city the authority to adopt its own standards and rules gives the city an open-ended discretion to do what it wants, and maybe that translates into potentially lower standards when it comes to noise levels. The reality will be that, because the city already regulates a transit system and because it is a public body accountable to the public, and must respond to the citizens and to public complaints, the city has a need to be rigorous to ensure that appropriate noise standards are followed, as we outlined earlier. In fact, if the city moves forward with a light rapid system, as a basic point, that should be positive to overall noise levels. A light rapid transit system will be less noisy than the bus or O-Train system. From a big-picture perspective, the effect on noise levels should be positive.
Senator Mercer: Would it be less noisy than the VIA Rail system that currently goes through some residential neighbourhoods, such as Billings Bridge?
Mr. Shouldice: I would only speculate that it would. We have not done a comparative analysis, but it seems logical that it would.
The Deputy Chairman: In the Gatineau situation, the transit system crosses borders. Otherwise you would be like all those other cities such as Vancouver and Toronto. It opens the door for Lloydminster and Flin Flon to govern their own cross-border and light rapid transit system.
If there are no other questions, I thank the witnesses. I think all senators appreciated this session. As a matter of fact, I did not know this provision was in the act.
Mr. Shouldice: Thank you for the opportunity.
The committee adjourned.