Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 28 - Evidence - January 30, 2018
OTTAWA, Tuesday, January 30, 2018
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-49, An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts, met this day at 9:30 a.m. to give consideration to the bill.
Senator Dennis Dawson (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Honourable senators, this morning, the committee is continuing its study on Bill C-49, the Transportation Modernization Act.
[English]
We have two panels of witnesses today. In the first panel, I would like to welcome Andie Andreou, Vice-President, Corporate Affairs and Chief Financial Officer, Canadian Air Transport Security Authority, or CATSA; Mr. Neil Parry, Vice-President, Service Delivery, Canadian Air Transport Security Authority and Mr. Scott Streiner, Chair and Chief Executive Officer, Canadian Transportation Agency, or CTA.
[Translation]
Thank you for being here, Mr. Streiner. I invite you to make your presentation. Afterwards, I will give the floor to Mr. Parry.
Scott Streiner, Chair and Chief Executive Officer, Canadian Transportation Agency: Thank you Mr. Chair. Honourable senators, thank you for the invitation to appear today. I have the privilege of serving as Chair and Chief Executive Officer of the Canadian Transportation Agency, or CTA, the country’s longest-standing, independent, expert tribunal and regulator.
[English]
Bill C-49 touches on several of the CTA’s most important responsibilities, including consumer protection for air travellers and remedies for disputes between railway companies and shippers.
Now, we all know that air travel has become integral to modern life, and usually it unfolds without any disruptions. But when it doesn’t, the experience can be very frustrating for travellers. Passengers often feel that they have little control over events that can significantly disrupt family visits, vacations and business trips.
[Translation]
Bill C-49 mandates the CTA to make regulations setting the minimum obligations of airlines to passengers for matters such as flight delays and cancellations, denied boarding, lost or damaged baggage, tarmac delays, and travel with children or musical instruments. These regulations will ensure that airlines’ obligations are written in plain language, are easy for passengers to find, and provide for fair and consistent measures to deal with air travel issues.
We know Canadians will want to see these new passenger protection regulations developed as soon as possible, and we also know they will want to have their say, so we plan to launch consultations on these regulations within three days of Royal Assent for Bill C-49, should it be passed, and to complete those consultations within three months. Once the consultations are done, we will move quickly to finalize effective and balanced passenger protection regulations.
After those regulations come into force, we will work to make sure that Canadians are aware of them because experience shows that passengers want to know what their rights are and what recourse is available to them if they believe those rights haven’t been respected.
The numbers tell the story here. During the years 2013, 2014 and 2015, the CTA received about 700 to 800 air travel complaints every year. In the fall of 2016, we undertook modest public information efforts to help ensure that passengers knew what their rights were and that they could turn to us if there was an issue. Once we did that, the complaint volumes started to grow. This month alone, in January 2018, we have received close to 700 complaints — as many complaints in one month as we used to receive in a full year.
Let me turn now to Bill C-49’s freight rail provisions. Of the various amendments that the bill makes in this area — and as you know, there are many — one of the most significant is the introduction of a new mechanism called long-haul interswitching, or LHI. LHI will give shippers who are served by only one Class I railway the ability to have that company move their cargo to an interchange 1,200 kilometres away, or half the total haul distance in Canada, for transfer to a different railway company.
Our role at the CTA will be to order that the local railway company provide this service if certain conditions are met and to set the rate for that service based on the rates for comparable traffic. We know that shippers and railway companies will be watching closely as we adjudicate LHI applications.
Shippers want more choice; railway companies expect to be fairly compensated. Given the complexity of the matters we will need to assess and the 30-business-day timeline for reaching decisions, we’ll be implementing a tightly managed LHI process. Our decisions on LHI applications, as in all cases, will be based on the law and the evidence before us because these factors and these factors alone are what we consider, as a quasi-judicial independent body.
While there are many other elements of Bill C-49 with implications for the work of the CTA, I’ll conclude my remarks here in the interests of time. I look forward to answering your questions.
[English]
The Deputy Chair: Thank you.
Mr. Parry, it’s your turn to make your presentation.
[Translation]
Neil Parry, Vice-President, Service Delivery, Canadian Air Transport Security Authority: Good morning, honourable senators, ladies and gentlemen.
[English]
My name is Neil Parry, and I am Vice-President, Service Delivery, for the Canadian Air Transport Security Authority. I am joined here today by my colleague, Andie Andreou, the Chief Financial Officer for CATSA.
Thank you for the opportunity to speak on Bill C-49 today. CATSA is an agent Crown corporation funded through parliamentary appropriations. We are accountable to Parliament through the Minister of Transport. The organization is mandated by the Government of Canada to protect the public by securing critical elements of the air transportation system.
CATSA, as the national civil aviation security authority, is regulated by Transport Canada, Canada’s designated national civil aviation security authority.
In this context, CATSA’s mandate outlines its four core responsibilities: the pre-board screening of passengers; the hold baggage or checked baggage screening; non-passenger screening; and administration of the restricted area identity card program.
Given the nature of today’s meeting examining Bill C-49, the Transportation Modernization Act, my remarks will focus on the associated amendment to the CATSA Act. Specifically, this relates to cost recovery of security screening operations in airports across Canada.
In that regard, Bill C-49 contains two changes to the CATSA Act. These changes formalize policy authority for cost-recovery initiatives for designated airports — for example, those that strive for expedited passenger screening — and cost recovery for other, or non-designated, airports. Such services would otherwise be beyond CATSA’s mandate and would require authorization from the Minister of Transport.
Under the direction of Transport Canada, CATSA has undertaken cost-recovery activities with two trials. In 2014, the Greater Toronto Airport Authority sought approval of the Minister of Transport to directly purchase additional screening hours or labour from CATSA for pre-board screening operations. Generally speaking, this cost recovery trial has had a positive impact on passenger wait times at Toronto Pearson Airport. A similar cost recovery agreement or trial began June 27, 2017, between CATSA and the Vancouver Airport Authority.
In 2015, Transport Canada amended regulations to allow non-designated airports to enter into cost-recovery agreements with CATSA for the purpose of attracting new commercial routes and consequently enhancing economic development in those communities. These airports would need to meet the same security standards as other Class 3 airports in Canada. CATSA has conducted consultations with 12 non-designated airports to date, and while discussions have been productive, there have been no agreements signed as of today.
I would be happy to answer any questions you have relating to CATSA providing screening services on a cost-recovery basis. Thank you.
Senator Plett: I was actually looking at the witness list. I wasn’t quite sure whether the question on interswitching was appropriate for this panel, but since it has been addressed, thank you. It is a concern that I have.
The current wording in proposed subsection 129(1) has to do with giving a shipper access to the nearest competing rail line. But this would be of little to no value if the nearest interswitch takes traffic in the opposite direction of its final destination. If the nearest interchange does not have the capacity to take on the size of the shipment, or if the nearest competing rail company does not have rail lines running the full distance to the shipment’s final destination, Bill C-49 stipulates in proposed paragraph 129(3)(a) that a shipper may not obtain a long-haul interswitch if a competing rail line is within a distance of 30 kilometres.
Sending a shipment in the wrong direction is cost prohibitive, which makes that interswitch in this case useless. We have had grain companies talking about that.
Would it be possible to amend this bill to add the wording “in reasonable direction of the traffic and its destination” to both sections? This language already exists in the legislation in proposed section 136.1 for other purposes and could easily be applied here so that we would not have shipments going in the wrong direction if there was something, even if it’s 40 kilometres away as opposed to 30 kilometres.
Mr. Streiner: You are correct that the bill as drafted indicates that where a shipper has access to an interchange within 30 kilometres, then they would not have access to the long-haul interswitching provision and does not contain the reasonable direction provision in respect of that constraint as it does in the other clause you noted.
I should say, senator, that when it comes to questions of policy and whether the legislation could be amended in certain ways, those are questions that are most appropriately directed to the Minister of Transport and his officials from Transport Canada. The CTA, as the administrator of the legislation, will implement the law as ultimately passed by Parliament, whatever the restrictions in the law are.
I don’t think I can offer you a full answer in the sense of providing a policy answer on whether the law should be amended. I can say that if the additional provision you’re talking about — reasonable direction — were to be introduced, then the CTA would apply it in the same manner as it would apply other sections of the law.
Senator Plett: I appreciate that. I read the question off of the paper because that was the question I asked the minister. The minister wasn’t open to any amendments, but I think you have at least told me, if not everybody else watching on television, that this would not be an unreasonable thing to do. You didn’t use those words; I used them.
I have one more question, and it has to do with passengers’ rights and airlines. It’s for whoever wants to take it. Witnesses in the House of Commons raised complaints that Bill C-49 proposes to double acceptable tarmac delay from the current Canadian standard of 90 minutes to three hours. In light of the Air Transat incidents and others, why would we be increasing acceptable wait times from 90 minutes to three hours? It seems we’re going in the wrong direction.
Mr. Streiner: Perhaps I can offer a point of clarification on this. The current law, as I’m sure you and the other honourable senators are aware, doesn’t have any specific provisions in respect to tarmac delay but rather requires that each airline have a tariff that deals with a number of issues. It’s absolutely correct to say that many of the airlines have chosen to put into their tariffs — their terms and conditions of carriage — terms that relate to 90-minute tarmac delays. But that 90-minute provision is something the airlines have chosen to do; it’s not something the law currently prescribes.
Bill C-49 would mandate the CTA to make regulations in respect of tarmac delays of three hours or more. Those minimum standards or treatments that would be established through the regulation wouldn’t preclude any airline from having additional provisions in their tariff to kick in at 90 minutes. I see you smiling. Whether the airlines would choose to do so is a question best directed to the airlines.
It’s just a point of clarification. The perception that the law somehow currently says 90 minutes and it goes to three hours isn’t quite accurate. The law currently says to have a tariff. Many of the airlines have conditions that kick in at 90 minutes, but the law will now say that there will be regulations that apply from three hours on.
Senator Plett: I understand that. The minister did state that as well. But, logically, if the airlines are happy with 90 minutes, why would the government come along and say, “Well, let’s make it three hours”?
Mr. Streiner: I’ll leave it to you to address that question to the government.
Senator Plett: Thank you.
The Deputy Chair: We will have the minister back at the end of the debate so you will have the opportunity, Senator Plett, to ask him directly.
[Translation]
Senator Boisvenu: My question goes to Mr. Streiner. A travellers’ charter must have a serious basis. That includes the quality of the services provided to the travellers.
In my office, I get reports of examples of difficult situations. There are cases, for example, of families travelling abroad who are faced with tragic events like a death. My observation is that those travellers have a lot of difficulty obtaining information about repatriating the body and are often left on their own.
In these extreme cases, should airline companies be responsible for providing their clients with information on the procedures to follow when a family or a couple unfortunately have to deal with a death when they are travelling. Situations like that are more and more frequent, given the number of older travellers.
Should the airline be responsible for informing families about the process of repatriating a body?
Mr. Streiner: The short answer is yes. These are sad, and somewhat extreme, situations. However, even in less extreme situations, it is important for travellers to understand their rights. The bill contains a provision that deals with the requirement to provide information.
[English]
The CTA’s experience in administering the current law shows that one of the key issues is simply passengers knowing what their rights are. There has been a significant amount of attention with respect to Bill C-49 on the minimum compensation and standards of treatment that will be established through the regulations for various events. There has, perhaps, been a little less focus on the provision that relates to the provision of information to travellers. As I said, our experience suggests that travellers knowing what their rights are and understanding what is available to them in different situations is perhaps as important as actually establishing those minimum standards.
The regulations will do both: The regulations will establish minimum standards and minimum levels of compensation for various events, but they will also outline an airline’s obligation to inform passengers in clear, plain language what their rights are in a variety of situations. Communication between airlines and passengers is fundamentally important to these rights being meaningful and for passengers to have appropriate treatment in situations like the very tragic one you described.
[Translation]
Senator Boisvenu: Every month, in my office, I receive calls from families asking me who can help them in specific situations like those I am telling you about. Should this type of event form an integral part of the charter rather than being considered a more general concept? In that way, families and couples who are travelling would know that, if an unfortunate event were to happen, the airlines would be required to help them.
Mr. Streiner: The regulatory framework in the bill does not contain that specific aspect. It includes the obligation to communicate with the travellers and explain their rights and the various processes. However, the specific category in which the regulations would be in effect does not include those specific events.
[English]
That means that carriers would have an obligation in general to communicate to passengers their rights and the processes in various situations, but the regulations would not specifically address the tragic one you described.
Senator Boisvenu: But is the charter going to be specific on that kind of event?
Mr. Streiner: It wouldn’t be because, as currently written, the bill identifies the different areas in which the regulations will establish minimum standards and compensation.
Senator Boisvenu: If we bring an amendment, is that kind of amendment one that you can support?
Mr. Streiner: Senator, with respect, in general, I wouldn’t express support for or opposition to any amendment. That’s the role of Parliament and the government. If Parliament chooses to introduce an amendment like that, then we will make regulations in that area. We will administer and implement the act as you pass it.
Senator Griffin: I’ve been reading your briefing notes and listening with care as you made your presentations. Basically my questions are for CATSA. What are the baseline service standards? A recent news report says airports pay millions for extra security as passenger wait times grow. Does this mean that airports will be paying additional costs to what was previously deemed to be the standard of service?
Mr. Parry: First, we don’t have a mandated government service level standard. We determine the service level based on the parliamentary appropriations that we receive. For the last three years, we have targeted a national service level of screening 85 per cent of the passengers in less than 15 minutes at the class 1 airports. We have met or exceeded that target for the last three years. Currently, we are trending to approximately 88 per cent of the passengers waiting 15 minutes or less. That’s based on the appropriations we receive.
What this proposed legislation will do in amending our act will provide the option for airports who wish to supplement that amount of service that we deliver through purchasing directly from us incremental or supplemental screening services. Those airports will not be obligated to do so. It is an option that will be available to them.
We are currently doing it, as I mentioned in my opening remarks. We have two agreements in place on a trial basis to work out the mechanics of how this could be applied beyond those two airports. Again, that was the choice of those airports. They were not obliged or obligated to enter into those agreements. So it would permit other airports beyond the trial who may wish to purchase additional service or additional capacity, which in turn should provide for a better service level, i.e., reduced wait times with more screening capacity.
Senator Griffin: How much money has the air traveller security charge brought in in the last fiscal year? Is this fee considered general revenue or is it dedicated revenue for CATSA?
Andie Andreou, Vice-President, Corporate Affairs and Chief Financial Officer, Canadian Air Transport Security Authority: We have not received information about how much that fee is. That is a fee charged to the passengers. It is collected by CRA. It goes into the general fund. From there, we receive appropriations as established with Transport Canada and Finance Canada.
We understand that part of that fee also pays for other services, if you will. There are some RCMP fees that I believe are included in there, as well as some fees to Transport Canada for policy and to CATSA. But we don’t have access to that information.
Senator Griffin: Okay. And you certainly don’t receive the full fee.
Mr. Parry: We don’t.
Ms. Andreou: We do not.
Senator Griffin: If you are in discussion with Transport Canada to increase performance and delivery, why should airports and therefore passengers have to pay for the additional service standards?
Mr. Parry: That would be a policy decision of the Government of Canada. We don’t have a position on whether they should have to or not. What we do understand is that this mechanism would enable them to have that opportunity to purchase.
Senator Griffin: Okay. Thank you.
[Translation]
Senator Cormier: Thank you for your presentations. My question goes to Mr. Streiner. You say that the Canadian Transportation Agency is mandated to make regulations setting the minimum obligations of airlines to passengers and that those obligations would be written in clear and simple language. My question is about the government’s responsibility for the official languages. There is no mention of obligations in terms of the official languages, either in the bill or in your speech. Can you tell us a little about those obligations?
Mr. Streiner: Simply put, the existing legislation and the bill contain no reference to the official languages. So, under the legislation, it is not part of our mandate.
[English]
As I said in response to one of the earlier questions, as the administrators of the law, we would implement the legislation that Parliament passes. Official languages are not part of the Canada Transportation Act now, nor are they included in Bill C-49.
[Translation]
Senator Cormier: Should we not consider the Official Languages Act in order to ensure the safety of travellers and the equality of services in the country?
Mr. Streiner: I see that as a policy issue. It would be more appropriate to ask the minister.
Senator Gagné: My question goes to Mr. Streiner. The Supreme Court ruled against the agency as to the unreasonable use of its discretion in determining the admissibility of a complaint. The agency has adopted a limited approach for complaints filed by third parties or public interest organizations.
If section 17 of the bill is passed, travellers’ rights organizations would no longer be able to file complaints because, from then on, and I quote:
... a complaint ... may only be filed by a person adversely affected.
The Delta Air Lines v. Lukács decision gives the impression that the agency would like to limit those types of complaints. Does the CTA want an amendment of that kind and why do you want to limit complaints like that?
[English]
Mr. Streiner: The Supreme Court’s Delta decision did two things. On the one hand, it overturned the decision of the Federal Court of Appeal and indicated that the CTA has the discretion to determine whether or not to deal with particular complaints and that it can apply a range of criteria in doing so. But of course, as you say, the court also indicated that in this particular case, the criteria applied by the CTA were too stringent. It asked us to reconsider and review the decision in respect to the particular complaint while confirming that we have the discretion to determine when to deal with the complaint, based on considerations like resource constraints and public interest, et cetera. That’s in terms of the Supreme Court decision.
In terms of the specific amendment you talk about, we don’t take a position on whether or not it’s the right amendment. I’m not, honourable senators, trying to dodge your questions. I’m simply deferring to the minister and to the government on questions of policy, because they are the ones who bring forth the legislation. Where we have experience administering the current legislation that is relevant, of course, I’m happy to share that. But I don’t think it’s appropriate for the chair of the agency to provide commentary on specific policy choices made by the government in the crafting of the legislation. So we don’t take a position as an organization on whether the specific provision you have alluded to is the correct provision or not. We will apply our discretion consistent with whatever the wording of the legislation is when it’s ultimately passed.
I must make a clarification concerning the Supreme Court decision.
[Translation]
Senator Gagné: You mentioned the number of complaints that you receive per year and per month. How many of those complaints are filed by third parties or travellers’ rights organizations?
Mr. Streiner: That is a good question. I have no answer at the moment, but I believe that the number is very small. Most complaints are filed by individuals. I can send you an answer after my presentation today.
Senator Gagné: In terms of language rights, do you have an idea of the statistics on complaints from travellers that have to do with the official languages?
Mr. Streiner: I know there are not many, but for us, if we receive complaints of that nature, we cannot deal with them.
[English]
Knowing that the committee had raised questions in its previous discussions around official languages, I asked my officials to see if we could come up with a number. They’re still looking at it, but it appears to be a very small number. A certain percentage of the complaints we receive are what we call “out of jurisdiction.” People turn to us and we have to simply say that that’s not a matter we have jurisdiction to deal with. That includes official languages. I’m not sure that we can get a precise number, but staff were clear, when they did an initial review of the files, that it is a very small number of the total number of complaints we receive.
[Translation]
Senator Gagné: Can you get those statistics in a relatively short time?
Mr. Streiner: Yes, we will try.
Senator Gagné: You are able to send them to us, correct?
Mr. Streiner: Of course. If we have the statistics, we will send them to you.
The Deputy Chair: To our clerk.
Mr. Streiner: Yes, to your clerk.
[English]
Senator Mitchell: My first question addresses the 90 minutes versus the three hours. It strikes me that there’s a qualitative and quantitative difference. Right now, the 90 minutes in the tariff is determined by the airlines, and there is no automatic penalty if they don’t adhere to the obligation that they’ve established. On the other hand, under the new regulation of three hours, they will be penalized. Is that correct? If so, that’s a fundamental difference. You could see where you would want to give a little more lenience to go from 90 minutes to three hours if for sure you are going to be penalized, whereas now it may or may not happen because CTA may decide not to do it.
Mr. Streiner: Under the current regime, if an airline didn’t respect its own tariff obligations in respect of the 90-minute tarmac delay, we would have to know in order to take any action. If no one brought forward a complaint or there was no evidence brought before us, then, as you indicate, there would, by definition, not be any repercussions for the airline that would come from the CTA or any corrective action.
Under the new regulations, because we’ll have clear, consistent regulations that apply across the industry, that will facilitate compliance monitoring and enforcement by our staff. It doesn’t mean that every time there is a tarmac delay, it’s necessarily something that the CTA will pick up on. But it’s clear that having a consistent set of rules that apply across the industry will be an important tool for the CTA in monitoring compliance with obligations and in taking corrective action where those obligations aren’t respected.
Senator Mitchell: Because you’re enhancing the rigour and the consequences, you’re giving a bit of leeway on the other side.
Mr. Streiner: Again, the choice to give a little more leeway is a policy choice that lies with the government, but certainly consistent regulations mean greater rigour and more effective implementation.
Senator Mitchell: My second question is with respect to the inter-switching and the reasonable direction of traffic. We know that the long-haul inter-switching is for captured shippers, producers who don’t have competition, but the regular 30-kilometre one is for any shipper.
Mr. Streiner: Any shipper.
Senator Mitchell: Right there is a qualitative market difference. Why would a railroad insist on shipping it the wrong way for those 30 kilometres? Is that because for a period of time the train is running that way? It’s not like you have trains going both ways every day. Is it something to do with the efficiency of the railroad? It’s not like a bus where you can just turn around and go the other way.
Mr. Streiner: Senator, I assume you’re referring to the matter raised by Senator Plett.
Senator Mitchell: Yes.
Mr. Streiner: This is perhaps a question you might wish to direct to witnesses from shipping interests or from the railway companies. I’m not sure that the suggestion has been that the railway companies insist on going one direction or another. If I understand correctly, the concern that’s been raised is that the legislation would not allow a shipper who would otherwise have access to long-haul inter-switching to do so if there is an interchange within 30 kilometres, even if, as Senator Plett noted, the shipper viewed that interchange as not being appropriate to their needs because it’s not in the right direction.
That is the policy concern that’s been raised by shippers. Whether or not there is a relationship to the direction of traffic that the railway company is choosing to send goods is a question you might wish to direct to shippers.
Senator Mitchell: That’s an important distinction.
Senator MacDonald: Thank you for being here this morning. It’s good to have CATSA here, so I want to take advantage of some observations I have with regard to travel.
One of the biggest complaints travellers have are the lineups and the time going through security at airports. You said you’re pleased with some of the improvements, but I think I speak for most of the people around the table — we spend a lot of time in airports, and certainly Halifax, Ottawa, Toronto, Montreal, I spend a lot of time in those airports — and over the past number of years, I haven’t seen any marked improvement.
What I have seen, though, travelling through the states, I have a NEXUS card and Global Entry. I can get TSA-approved and I can get through the lineups in the U.S. very quickly. I can get processed more expeditiously through the U.S. than I can in my own country. I find this troubling and unacceptable. Why can’t we develop a system similar to the TSA system in the U.S. and apply it in Canada?
Mr. Parry: We do have a Trusted Traveller program in Canada, and it is regulated by Transport Canada. In terms of why or what could be done to change that, I would have to defer to our regulator.
I can say we have had marked improvement in overall passenger experience. We certainly support any initiative that continues to improve the overall passenger experience, including reductions in wait times, where feasible.
As I mentioned earlier, we don’t have a mandated service level standard, and so we target one based on the appropriations we have, and we measure it. We’re one of the few countries in the world who have a very sophisticated measurement system. In our view, our data is quite reliable in terms of the wait times experienced particularly at the class one airports. It can be busy, I agree, senator, particularly during peak periods where all of the flights tend to depart within the same small sphere, and we deploy as much available labour as we can. We have seen process improvements over the years that have resulted in a higher processing rate for passengers.
We also measure the passenger experience through intercept surveys on a quarterly basis, and the data we’ve collected is that 85 per cent of passengers have indicated that they are overall satisfied with their screening experience. That doesn’t mean it can’t be better and that we aren’t committed to improving it.
We do, as I mentioned, have Trusted Traveller lines in Canada where, through certain criteria — for example, a NEXUS card — you can access that line for a unique screening experience. We also have a number of new technologies that we’ve been deploying across the country to try to speed up the passenger experience. We have something called a CATSA Plus, which is an automated screening line, with some additional features that would allow faster passengers to leapfrog those passengers that require more time to get through.
Can we continue to get better? Absolutely. Have we gotten better? Yes. The data shows clearly that things have improved, but certainly we welcome any other initiatives that would improve that experience.
The Deputy Chair: A question for CATSA: Why not implement CATSA Plus in a more accelerated fashion in more airports?
Mr. Streiner, on the locomotive voice and video recorders, had you had the provisions now proposed in the bill, how would past accident analyses been done? How can it be used, if so, for prevention of future accidents? I would like you to give us examples.
Mr. Parry: So the question is: Why not move faster?
The Deputy Chair: What are the impediments to moving faster?
Mr. Parry: One is available capital. We are self-funding the CATSA Plus initiative through efficiencies and savings that we’ve achieved through our existing capital budget. We have currently deployed the CATSA Plus technology at four airports: Calgary, Montreal, Toronto and Vancouver.
The second challenge is that we’ve got to identify those airport locations that would best suit CATSA Plus. It does require a relatively large footprint of space. We’ve had some great partnerships with airports in Canada that we’re working with to identify best available space. We have to be patient and appreciative of the challenges that the airports face. Space is at a premium, obviously, at all airports, and so we’re collaborating quite closely with them. We know they’re keen and we’ve had a lot of dialogue with other airports.
We do have more deployments taking place this year, including continuing to expand in Montreal and Toronto, and into next year as well.
Again, we have to take out the existing technologies. We have to identify changes or modifications to the space that fall within the purview of the airports. They’re working very hard with us, as well, so you will continue to see more airports and more checkpoints receiving CATSA Plus over the next three years.
Mr. Streiner: The issue of voice recorders really is one for the Transportation Safety Board, who I think you’re hearing from later today. The mandate of the Canadian Transportation Agency relates to economic regulation and accessibility for travellers, while safety and security issues fall within the purview of the Transportation Safety Board and Transport Canada. My colleague, when she appears before you, might be able to respond.
The Deputy Chair: I will address the question a second time.
Senator Plett: Mr. Streiner, when I asked you the question about the delay, you said that this was now going to become a law, and I don’t want to misquote you, but before, I believe you indicated that the airlines were doing this of their own volition.
I want to read into the record, and for your comment, from the code of conduct of Canada’s airlines:
If the delay exceeds 90 minutes and circumstances permit, the airline will offer passengers the option of disembarking from the aircraft until it is time to depart.
So that is the code of conduct of all Canadian airlines, and not individual airlines. Now, maybe you meant that when you answered my first question, but I understood that it was just airlines trying to be nice in doing this. They do have a code of conduct, and if I can’t disembark in 90 minutes, could you please tell me, again, what my options are now? And are they not getting a little worse with the bill?
Mr. Streiner: The code of conduct is not law, and I think that’s the reason for the distinction that I drew. I wrote the words down when you said them, and I’m not sure I would say it is of their own volition. The airlines, under the law as it’s currently drafted, have the flexibility to establish tariff conditions — to establish terms and conditions of carriage at their tariff — based upon their best judgment without there being legally binding minimum standards and minimum compensation. That’s what changes with this law. The code of conduct is still a non-binding instrument. The difference is that the passenger protection regulations that we will make, if and when Bill C-49 is passed, would be mandatory. They would be binding. That’s the distinction.
Senator Plett: Thank you. I’ll leave that there.
Mr. Parry, in answer to my colleague Senator MacDonald’s question about the speed at which we get through lines at airports, I happened to come home from Orlando yesterday and experienced what I would believe is the equivalent of our NEXUS line. It was a pre-clearance line that I had the privilege of entering, and it was pretty quick.
I believe our NEXUS lines are pretty quick, but I’m from Winnipeg. Maybe I’m addressing this to the wrong people entirely, but I’ll address it anyway: Our NEXUS line in Winnipeg seems to be closed half the time. Then, when they do open it, they allow everyone else to enter that NEXUS line, which kind of defeats the purpose of the NEXUS line.
Senator Gagné is often on the same flights that I’m on, and there we are in a different line somewhere other than the NEXUS line, and while we’re in a different line, they open the NEXUS line. When I complain to the airport authority, they say they have nothing to do with it and it’s Transport Canada that regulates that. Am I speaking to the right person? If I am, what can you do to speed traffic up in my lovely city of Winnipeg?
Mr. Parry: I believe you’re speaking to the right person. I’ll start with that.
Senator Plett: Good.
Mr. Parry: It’s a fair comment, and it’s a common comment, and let me give you some perspective on some of the challenges in operating Trusted Traveller lines in Canada.
In certain parts of the country, Winnipeg being one of them, the volume of actual Trusted Travellers who meet the criteria to go through those lines is quite small. It may not seem like that when you’re in the line, but the overall volumes of passengers who could access a Trusted Traveller line is small.
To dedicate that line full-time, 12 to 14 hours a day, only to Trusted Travellers is a significant inefficiency in terms of the number of passengers screened per screener. So what you would have is a line that is open all the time, all day long, with very few passengers going through it. One of the challenges is that there is the other 95 per cent of the passengers who see that line open and can’t use it.
The regulations do allow us to do something called a managed inclusion, which is to keep that line productively busy when there are not sufficient numbers of Trusted Travellers accessing that line. What that helps do is alleviate some of the other wait time concerns that were voiced here today for all other passengers waiting in line. We’re dealing with a finite amount of labour and screening capacity, so we take great care — maybe not always to the satisfaction of all passengers — to apply that labour as efficiently as possible and to process as many people through as we can.
What that means, senator, is that you are correct that there are times when passengers from the main queue are included, through some additional screening procedures, in that Trusted Traveller line to make maximum use of the resources to drive the efficiencies we’ve been asked to drive over the last five years.
Second, there is often confusion in the queueing space at checkpoints because there are a number of VIP-type queue entrances for those who have premium memberships with air carriers or other rewards programs. Those are not manned by CATSA. They’re not our programs. Sometimes there is confusion as passengers go through those lines and redirect themselves to Trusted Traveller lines on the assumption that they are Trusted Travellers because they are in a premium queue. It’s something on which we’ve worked closely with airports to try to rectify, and they’ve been helpful in that regard, but that is one of the challenges as well. You get confusion among passengers as to who is truly a Trusted Traveller and who is not.
Senator Plett: Very briefly, let me comment on that and use an illustration of what our good friends in Halifax were doing, at least. I’m not sure if they still are. If I recall, in Halifax they had a NEXUS line starting out, but then when you get to the actual security they don’t have a dedicated NEXUS line, so when they get to that juncture, they take the Trusted Traveller to the front of the line. If we don’t want to staff that NEXUS line in Winnipeg, why could we not do the same thing? A Trusted Traveller comes along and they get escorted to the front of the line there.
The other comment I have is that as a businessperson and as a taxpayer, I certainly don’t want us to have staff that isn’t doing anything. But I stand there waiting in the long lineup, and I see six or eight staff standing on the other side of security, visiting, and the NEXUS line is closed. I’m sure they are being paid while they’re standing there. Maybe they could stand in the NEXUS line rather than standing on the other side of security.
Mr. Parry: I’ll take the first question first. In terms of the experience you referenced in Halifax, which is a queue-jumping, you’re correct. That is available and should be available, and I would be happy to look into your specific screening experience after I excuse myself from the committee at the end.
Senator Plett: Thank you.
Mr. Parry: But, yes, queue-jumping should be made available, and if at times it’s not, we’ll certainly look into that.
There is a misconception driven by passenger perception, and I see it myself because I travel quite a bit. We often have staff at the end of a checkpoint. The training requirements for a screening officer are quite rigorous and ongoing. There is a significant amount of shift briefing and recurrent learning that takes place so they stay current with both evolving security threats and also changes in the regulatory framework.
We don’t have training space all over the place. We’re not renting a significant amount of training facilities, so we do a lot of our training right at the checkpoint. It is a challenge because it often looks like there is a group of screening officers huddled around the supervisor, and when you’re standing in line, you think, “Why aren’t they on the line?” Some of them are not yet certified to be on the line. They’re doing their on-the-job training or are being briefed on those changes.
If they’re there and they’re able to work, I can assure you that we deploy them on the line.
Senator Plett: Thank you. I want to say that it has improved tremendously overall right across the country over the last year or so, so thank you for your work.
Senator Mitchell: It’s quite quick in Edmonton, but we would like to get that extra package too.
My first question is to Mr. Streiner. You made the case that it’s not for you to develop policy. I don’t mean to be argumentative, but just for the sake of argument, the advocates like Mr. Lukács would seem to want to present to you — and he’s had some success of about eight times where he has been successful in changing policy as an advocate.
How does that work? He makes his case to you, and somehow you make it to the minister, or do you actually have — you clearly don’t have policy initiative, but there are other ways that Mr. Lukács and other advocates can have policy-related input. It would seem to me they don’t have to go to your organization to get that, because you would argue you can’t provide it anyway.
Mr. Streiner: To clarify my previous comment, when it comes to the policy choices around what’s in the legislation, that’s a matter for the government, it’s a matter for the minister, and then Parliament will ultimately decide what is in the legislation. The CTA is happy to share its experience administering the current law to help inform the choices the government and parliamentarians make. In that regard, we are not policy makers. You, the minister and the government are policy makers.
But we do have the authority under the current law and under the law after Bill C-49 to assess the reasonableness of airline tariffs. It’s in that context that some of the decisions you’ve described have been made.
We actually can do two things under the current law when we receive complaints against airlines around air travel experiences. We can determine if the airline actually implemented its own terms and conditions of carriage. Did it respect its own tariff, for instance? We can also determine if those tariff terms and conditions are reasonable. If they’re not reasonable, we can order a change.
It’s in that regard that we have been able to have what you call policy impacts. We’ve been able to say to airlines that what they’re providing by way of compensation for delayed boarding, delayed flights or denied boarding is inadequate, so we can order a change. You saw us exercise both of those authorities in the Air Transat inquiry. After the lengthy tarmac delays, we used our authority in the law to initiate an inquiry on our own motion. We have that authority with respect to international flights, but we do not have that authority with respect to domestic flights. We used the authority and initiated an own-motion inquiry. We heard from witnesses, and then we exercised both of those powers. We found that the airline had failed to implement its own terms and conditions of carriage appropriately. We also found that some of those terms and conditions were unreasonable, and we ordered changes to them. That’s the sense in which we can actually, if you like, make “policy.” That is different than the choices around legislative wording, which are yours and the government’s to make.
Senator Mitchell: I guess you could argue again that because there is going to be greater rigour in the specification of rights, that there will be less necessity for this kind of advocacy, but even if there is a need for advocacy, they could phone Senator Plett, me or their MP. There are lots of ways to advocate for this, but that just won’t be one of them.
Mr. Streiner: In the areas where we’ll make passenger protection regulations pursuant to Bill C-49, if it’s passed, we would presumably no longer be adjudicating around the reasonableness of tariffs because the law will already say, “This is what your tariff must contain,” period. We would retain the ability to make rulings on the reasonableness of tariffs in other areas, such as the one raised earlier. We could still look at reasonableness in areas where there aren’t legislative minimums, but we would no longer be in the business of looking at reasonableness where there are legislative minimums; there, we would be engaging more in compliance monitoring and enforcement.
Senator Mitchell: Would advocates be able to appear in cases that aren’t legislated?
Mr. Streiner: When you say “would advocates be able to appear,” do you mean “would people be able to bring forward concerns”?
Senator Mitchell: Without having had it happen to them? That’s sort of the point here.
Mr. Streiner: So you’re back to the question asked by Senator Gagné.
Senator Mitchell: Yes, so now we have two categories. The legislated category will be excluded for sure in this act, but those that remain unlegislated, as is now the case — would they be excluded for that?
Mr. Streiner: The language in Bill C-49 relates to the bringing forward of complaints in general, not a particular class of complaints. Passengers will still be able to bring forward complaints on matters covered by the regulations and on matters that aren’t. Reasonableness decisions by the agency would apply only in those areas where there aren’t regulated minimums.
As for the extent to which advocates could bring forward complaints as opposed to passengers, Senator Gagné has already noted that the language in the bill references people directly affected, so when the agency exercises its discretion, which the Supreme Court has confirmed we have, to decide whether to receive a particular complaint, if the bill is passed in its current form, that would inform the exercise of that discretion.
Senator Mitchell: This bill will give you greater authority or a greater role in mediating or arbitrating disputes between shippers and producers. Could you give us a couple of highlights how that is going to change?
Mr. Streiner: Sure. I’ll give you a few highlights. First of all, I should state that we currently have mediation and arbitration powers in respect of disputes between shippers and railway companies. Those powers already exist, but the bill does a couple of things.
First, it codifies a role for the CTA in providing guidance and information to shippers and others about their rights under the law, so we will ramp up our efforts to make sure people are well informed. It confirms we can engage in informal dispute resolution, even before we get to a mediation. We can make some phone calls and see if we can resolve matters. That’s similar to what the Surface Transportation Board in the United States is empowered to do. The Surface Transportation Board is an agency like ours but mandated to only deal with rail.
Then, with respect to arbitration specifically, the bill makes a few changes. With respect to arbitrations on rates disputes, it raises the threshold for us to engage in expedited or summary arbitrations, and it allows shippers to ask that an arbitrated rate apply for a two-year period instead of a one-year period, which is how it applies now.
With respect to service arbitrations — there are two kinds of arbitrations we can undertake: rate or service — the bill confirms our ability to lay out in regulations the operational terms to be covered by those arbitrations. That was part of Bill C-30. As you know, Bill C-30 sunsetted, so this reinstates our ability to pass those regulations. It also confirms that arbitrated decisions in respect of service can include reciprocal penalties and a dispute resolution mechanism.
So there are a number of changes that help enhance the arbitration of both rail and service disputes.
The Deputy Chair: Thank you, Ms. Andreou, Mr. Parry and Mr. Streiner, for your presentation. We will be preparing in three or four minutes for the next panel. If you’re going to be having private meetings on issues that have been raised, I would appreciate if you do it in the antechamber.
We are continuing our study on Bill C-49. I’m pleased to introduce our next witnesses. From the Transportation Safety Board of Canada, we have Ms. Kathy Fox, Chair, Executive Office; Mr. Jean L. Laporte, Chief Operating Officer, Executive Office; Kirby Jang, Director of Investigations, Rail and Pipeline Investigations Branch; and Mark Clitsome, Special Advisor to the Chief Operating Officer.
Kathy Fox, Chair, Executive Office, Transportation Safety Board of Canada: Good morning, honourable senators. Thank you for inviting the Transportation Safety Board of Canada to appear today so that we can answer your questions regarding the portion of Bill C-49 pertaining to the installation of locomotive voice and video recorders and the use of these recorders for safety purposes.
You have already identified the three colleagues that I bring with me who can answer various details on specific questions you may have.
As it has been some years since the TSB has come before this committee, I’d like to start with a very brief description of what we do. The TSB’s mandate — our sole purpose — is to advance transportation safety in the air, marine, rail and pipeline modes of transportation that are under federal jurisdiction. We do this by conducting independent investigations, by identifying safety deficiencies, causes and contributing factors, by making recommendations and by reporting publicly.
[Translation]
Put more simply, when something goes wrong, we investigate to find out not just what happened, but why. Then, we make public what we’ve learned so that those best placed to take action, the regulators and the industry, can do so.
[English]
It is also important to clarify what the TSB does not do. We are neither regulator nor court; we do not assign fault, nor do we determine civil or criminal liability.
We operate at arm’s length from other government departments and agencies. This lets us be impartial, free from any real or perceived external influence. But independence on its own isn’t enough. We must also be credible. That’s why we strive for a standard of excellence, making sure our findings are based on solid science, rigorous analysis and cold, hard facts.
That brings me to our purpose today. As you know, Bill C-49 introduces changes to the Railway Safety Act and to the Canadian Transportation Accident Investigation and Safety Board Act. The bill would require the installation of voice and video recorders in the cabs of lead locomotives operating on main track and it would permit access to those recordings to Transport Canada and to the railway companies, but only under specified conditions.
I would like to make four key points today. First, at the TSB, we need voice and video recorders in locomotive cabs to better conduct our investigations. To be frank, these are essential tools we need to do our job. Locomotive voice and video recording systems are something we have been asking for since 2003. This is information that has been available to us for years or even decades in other modes.
Too often, we have found that without this sort of critical, context-providing information, we have been unable to conclude why an accident took place, why lives were lost. That’s unacceptable.
Let me give you an example. On February 26, 2012, a VIA Rail passenger train derailed near Burlington, Ontario, killing the three crew in the cab and leaving dozens of passengers injured. The event recorder on board gave us some data, which is how we knew that the train was travelling 67 miles per hour on a crossover with a maximum speed of just 15 miles per hour. But what we were never able to determine with certainty was why. Did the crew not see the signals telling them to slow down? Or did they see them but somehow misinterpret them? We just don’t know, and we never will. An in-cab voice and video recorder would have provided a better understanding of the operational and human factors affecting the crew and would have helped point investigators toward safety deficiencies that could then be mitigated.
This is part of why we added on-board voice and video recorders to our watch list in 2012. It’s now time to stop the studies and move forward to provide the TSB with these tools.
I’ll note too that there is a difference between having audio recordings alone and having voice and video. I want to stress this because it’s the combination of the two that best allows us to address crew, operational and human factors. I’m talking about identifying things like crew interaction, task saturation, workload management, stress, fatigue or distraction.
In fact, we would like to have video in other modes. In the United States, for instance, video recordings are already in use in locomotives and there are currently some video recorders on the bridge of some ships, although these are not mandatory. Moreover, some aircraft manufacturers are also offering video recorders as an option on new aircraft.
The second point is that the information obtained from voice and video recorders must remain privileged.
[Translation]
The information must not be shared publicly. It must remain protected, so that only those with the authority and the direct need to use it for legitimate safety purposes may do so. The act that created the Transportation Safety Board of Canada currently provides such privilege and this protection will remain in place.
[English]
The third point is that the information from selected voice and video recorders should be made available to railway companies for use in the context of a non-punitive, proactive safety management system. Why? Because railway companies have the ultimate responsibility for the safety of their operations. They need to be proactive in identifying risks and taking measures to prevent accidents.
For example, following an incident that the TSB does not investigate, companies should be permitted to use the recordings to do their own analysis of the event. This would enable them to identify some lessons learned and to take preventive actions to avoid similar incidents in the future.
Similarly, the review of randomly selected recordings could enable a company to identify some weaknesses in their operational procedures or in employee training and to take corrective measures before an accident or an incident happens. Knowing how crews interact with each other and with their equipment allows companies to flag areas for improvement. That’s the idea at the heart of proactive safety management: giving companies the tools to identify and correct systemic issues before bad things happen.
The fourth point is that, notwithstanding that we want railways to be given some access to these recordings, appropriate safeguards must be built into the legislation and regulations to ensure that this information is not used for disciplinary measures, except in the most egregious circumstances.
This may prove to be challenging because it relies in part on the existence of something called a “just culture,” but it is nonetheless critical. Canadian railways have often demonstrated a very rules-based, punitive culture, and although progress is being made to improve that culture, the TSB nonetheless understands employee concerns about how this data might be used or misused.
At the TSB, we believe the legislative framework can help to create an environment that draws a very clear distinction between simple human mistakes and unacceptable behaviour — one that does not immediately blame the worker, but seeks first to find systemic contributing factors. With the right safeguards in place, we think employees could collaborate with management to identify risks and implement measures that enhance safety.
[Translation]
Transport Canada should also have access to these recordings for safety oversight and should be able to use these recordings when taking action against an operator, but again, not against individual employees.
[English]
I’ll conclude by saying the proposed legislative changes are a departure from the way things have always been done, but as transportation and technology evolves, so too must the way we work. There is little doubt that the information contained in voice and video recordings can be a valuable tool when used for legitimate safety purposes. The legislation and its implementation need to achieve the right balance between the rights of employees and the responsibility of operators to ensure the safety of their operations.
Thank you, Mr. Chair. We are prepared to answer any questions you may have.
[Translation]
Senator Gagné: Welcome, and thank you for your presentation, Ms. Fox. You explained that it is important for railway companies to have access to audio and video recordings because, and I quote a passage from your presentation:
... the review of randomly selected recordings could enable a company to identify some weaknesses in their operational procedures or in employee training.
Does the Transportation Safety Board have the power to identify weaknesses in the operational procedures and employee training of those companies?
Ms. Fox: When we investigate an incident or an accident, we examine all the operational, organizational, and regulatory factors in order to find out the role that those factors may have played in the incident or accident. During the investigation, therefore, if we identify that training or operational or oversight procedures reveal weaknesses, we can draw conclusions and even make recommendations, if required.
Senator Gagné: Do the employers have to respond to their systemic shortcomings, to the weaknesses you identified?
Ms. Fox: Our report has a section entitled “Safety Measures Taken.” We expect the operators or the regulatory organization to inform us about the measures taken as the result of the accident, our conclusions, or any investigations they may have conducted during our investigation.
[English]
Senator Griffin: I’m from Prince Edward Island. We have two ferry boats that cross from the island over to Nova Scotia, and they both have voice recorders on them. They are on a loop. Why couldn’t we have a similar thing with these video and voice recorders that are proposed for the railways — have them on a loop?
Ms. Fox: Typically, voice or video recorders have a certain capacity for recording data. For example, in the air, it could be anywhere from 30 minutes to two hours of a recording, after which those recordings are overwritten. The technology standards haven’t been developed yet for LVVR, but it would certainly be the plan to have a certain capacity of recording but also to have that overwritten after a period of time.
Senator Griffin: So the future will bring the capacity, is what you’re saying.
Ms. Fox: There are two aspects. One is that, in air, for example, it used to be that only the last 30 minutes of recordings were retained, and then they would be overwritten. That’s not sufficient often when you’re looking at the circumstances that led to an accident, which is why the international standard now calls for a two-hour recording capacity, after which it’s overwritten. Those standards have not yet been defined for voice and video recordings on locomotives where the trips can be quite long. That’s something that would be looked at if this legislation is passed.
Senator Griffin: Okay, great.
In your brief, you indicated that the railways wouldn’t be using the information that’s recorded to take action against individual employees but that it would be useful for you to have it to take action against the railways. How comfortable would you be subsequent to that that the railways themselves would not take action against individual employees?
Ms. Fox: We included in the package we sent to you a fact sheet that explains the permitted uses of voice recordings. If you are talking about the use by companies, they would be able to use recordings to investigate reportable incidents. Those are incidents reportable to the TSB — and there are regulations — but which we are not investigating. They would be able to use those recordings to identify safety issues and deficiencies, but not for disciplinary purposes.
Transport Canada would also be able to use recordings to investigate reportable incidents that are not being investigated by the TSB. If they found something, they could take action, as the regulator, against the company but not against an individual employee. The privilege under our act specifically prohibits use of recordings for any disciplinary or legal proceedings, unless approved by a court in the latter instance.
Senator Griffin: Okay, so the answer to my question is that you are comfortable.
Ms. Fox: Sorry, yes.
Senator Griffin: Thank you.
Senator Plett: Thank you for your presentation. I’m sure you probably know already that, even on this committee and certainly in the Senate, there are differences of opinions as to whether this should be allowed. I’m one of the people who very strongly support this. I quite frankly think it doesn’t go far enough. Let me ask you a couple of questions in that regard.
You say it must not be shared publicly; it must remain protected. I’m looking at the fact sheet you sent us and the position of the cameras. I think it’s very well done. So something criminal is happening inside the locomotive — and God forbid that doesn’t happen very often — but there is an accident, and we find out that somebody has been drinking in the cab or whatever the case may be. Would you not believe that should be able to be shared, at least in the courts? Should action not be taken as a result of what happened, or is this only to determine the cause of an accident and nothing beyond that?
Jean L. Laporte, Chief Operating Officer, Executive Office, Transportation Safety Board of Canada: The CTAISB Act already provides a clause that deals with court cases. When there is a need or requirement to use a recording in court, there is a process by which the judge may consider allowing the use of a recording if the proper administration of justice outweighs the privilege that is normally accorded to those recordings. There is a test that has been established through jurisprudence over the years that the judge must apply in each and every case.
If there was a criminal activity and charges were laid, the prosecution could apply to the court to use the recordings. In these cases, typically the law requires the TSB to be notified. We would appear in court. We would make sure that the judge clearly understands the legislation and the intent and make sure that the test is properly applied.
We have a number of cases where the judge has allowed the use of recordings, but we have asked that a publication ban be imposed by the court so the recordings do not become public but can still be used for the criminal proceedings. We have other cases where the judge has ruled that other evidence was available and those recordings should not be used.
Senator Plett: In your fourth point, you say “to ensure that this information is not used for disciplinary purposes, except in the most egregious circumstances.” Who determines what is egregious? And what is egregious?
Ms. Fox: That’s something that will be looked at in terms of the regulations, but in terms of defining what sort of behaviour might warrant disciplinary measures, there is the provision for prescribed threat to safety where companies can take action to address them. There may be some cases, even if there is not a threat to safety, where things come to the forefront that clearly, when you look at it, would lead a reasonable person to conclude the behaviour was egregious and therefore that some form of disciplinary action may be warranted.
Senator Mitchell: Thank you very much for your presentations. Ms. Fox, at one point you said that the proactive information could be used to identify systemic problems or issues. One that seems to appear in the reading that I’m doing is a continual problem with missing signals. Is that one of the kinds of systemic problems? Isn’t that at the root of what happened in Burlington?
Ms. Fox: If I may start with the Burlington case first, we know that the signals were working properly and we know that the signals were conveying to the crew the need to slow down in anticipation of this crossover to another track. We don’t know whether they saw them or not or whether they simply misinterpreted them.
Yes, there have been a number of cases over the years involving missed signals. In some cases, we have a crew and, in some cases, we don’t have a live crew. We aren’t always able to identify what the reasons were. Having a voice recorder and a video recorder combined gives us a lot more information about what was happening at the time. Where were they looking? Were there other distractions in the locomotive cab that may have caused a crew to miss a signal or misinterpret a signal?
Senator Mitchell: I would like to ask you a question about reportable incidents. There are two implications of my question. One is that it hasn’t been stated, but I think in a sense, to the extent that companies will have access to this information for review of incidents, they are defined rigorously as reportable incidents. They can’t be willy-nilly, saying that was an incident and we are going to look at it. There is a very strict definition of what a reportable incident is. Is that not the case?
Ms. Fox: That is correct. The definitions of reportable incidents are included in the TSB regulations, and by limiting the company’s access to these recordings to reportable occurrences that are not investigated by the TSB prevents or limits the opportunity to target specific employees or groups of employees.
Senator Mitchell: You have made the point — or it certainly it has been made — that about 1 to 3 per cent of reportable incidents are reviewed by your organization after the fact. That would mean that as many as 99 per cent of defined reportable incidents aren’t being reviewed, certainly not with this information. You would now get this information. Even the unions argue that you should get it. But even if you got it, 99 per cent of reportable incidents that would be reviewed by the company wouldn’t be reviewed using the information but for this act being passed. So that would be my first question about the volume.
But also, given that they wouldn’t have access to proactive, there really wouldn’t be anybody thinking about the other potential incidents that could be avoided — is that right — using this information?
Ms. Fox: Just for clarity, we receive a number of reportable occurrences per year. I think it’s in the range of — correct me if I’m wrong — about 1,200 reportable occurrences in the rail mode. Of those, we investigate about 2 per cent. When I say we investigate, that means we do a full investigation with a public report. But we assess all of them. We document all of the data. That may or may not involve listening to recordings at the time.
The point is that if we don’t conduct a full investigation, there is still valuable information that maybe the railway companies could learn from if they conduct their own internal investigation and may identify systemic issues they can take action on to either change procedures, improve training, review supervision, et cetera.
Similarly, if this legislation passes, railways would have the opportunity for random sampling using appropriate protocols. Through that kind of sampling, they could also proactively identify weaknesses, safety deficiencies, before they have led to a reportable incident or accident.
Senator Mitchell: With respect to random sampling, this information will be accessible only with proprietary codes or proprietary computing analysis. There will be an electronic record of that access, so it’s randomness will be establishable, if I can use that word?
Kirby Jang, Director of Investigations, Rail and Pipeline Investigations Branch, Transportation Safety Board of Canada: Obviously the technical specifications for these systems have not yet been established, but certainly in discussions, our understanding is that encryption would be included in the system. In terms of audit trail, tracking, monitoring, every time a data set is accessed, it would be recorded. Monitoring of those audit trail records I believe is important, and established protocols will be in place for that.
Senator Mitchell: Thank you.
Senator MacDonald: Senator Plett said earlier there is a wide range of opinion on this. I’m one of the people who are completely against the installation of video recorders in the cabs of locomotives. Black box technology and audio recordings are available now in the cockpit of airplanes and the wheelhouses of ships. The railway workers have made it clear that they have no objection to this type of surveillance. If this standard is acceptable for these two modes of transportation, why isn’t it sufficient for locomotives? Why is there a double standard being applied here?
Ms. Fox: The reality, senator, is that the TSB has called in the past for image recordings in cockpits. I’m going to ask Mr. Clitsome to give you an example of the types of information we can get from video that we can’t get from audio or flight data recordings.
Mark Clitsome, Special Advisor to the Chief Operating Officer, Executive Office, Transportation Safety Board of Canada: Yes, there have been a number of investigations we have conducted over the years where, if we had had video recordings, we would be able to determine better what the cause of the accident was. For example, you remember the Swiss Air accident, 1998, Peggy’s Cove. The crew had a cockpit voice recorder on board that aircraft. That’s all we could use, up to the point we lost the information five minutes before a crash. But during the conversation as they were conducting their emergency drills, one of the pilots indicated, “Look, there is smoke right there. Can you see it?” We didn’t know where “there” was. We didn’t know where it was coming from. If we had had a video recorder, we would have been able to determine much better and make sure the investigation had concluded a lot faster.
Senator MacDonald: If I can make a point on that, I recall that accident quite well, and they did change the regulations to tell the planes to go directly to the closest airport. Whether you had a video recording of what occurred in that cockpit, it wouldn’t have made any difference in the fate of that plane.
Mr. Clitsome: Well, not in that particular case, but we would have been able to determine sooner what the actual cause of the accident was in order for us to be able to get our safety message out. In the end, after almost five years of investigation, the board put out recommendations on the insulation on board that aircraft, because it burned and it was supposed to be fireproof. If we had known a couple of months after, when we had the video recorder, we could have put that recommendation out years earlier.
Senator MacDonald: But again, you’re not asking for this technology right now on planes and ships. You’re only asking for it on locomotives.
Ms. Fox: The opportunity with this legislation, which is going to require the installation of voice and video recorders, is such that this is the right time to consider the expanded use of these recordings for proactive safety management purposes.
I know this is something that the railway companies themselves have been pressing for because they feel that they’ll get a better return on their investment if they can also use it for proactive safety management. Our study on voice and video recorders, which we conducted and released in 2016, indicated that the potential safety benefits of expanded access to voice and video recordings on very prescribed terms, not only by the TSB when we investigate but also by operators and Transport Canada, show there is a greater bang for the buck, so to speak, if they can be used by companies.
Now, with respect to video or image recordings, ICAO, the International Civil Aviation Organization, has signalled that it intends to move forward with a standard for video and image recordings in cockpits. It simply hasn’t made its way into the international forum yet, but it’s on their horizon for sure.
Senator MacDonald: Just because they signal it doesn’t make it either a fact or appropriate. The Privacy Commissioner supports my position on this. The Privacy Commissioner says this is an invasion of privacy in the workspace. Are you saying the Privacy Commissioner is incorrect?
Ms. Fox: What we’re saying here, senator, is that having voice and video recorders together will allow the TSB and other parties to have a better appreciation of the operational and human factors at play that either have led, or can lead, to incidents.
We absolutely concur that there has to be a balance between the rights of workers and employees with the responsibility of operators to manage the safety of their operations, and we believe that framework can be put in place either under the legislation as proposed or supplemented by the regulations that have yet to be determined.
[Translation]
Senator Boisvenu: My question goes to one of the four witnesses. I thank them very much for being here.
Road and rail transportation raise great concerns when events like the one in Lac-Mégantic happen. People wonder what standards Canada has in place to adequately protect them.
In section 6 of Bill C-49, there is a reference to the United Nations model regulations on the transport of radioactive material. The bill references regulations adopted in 2013, whereas the United Nations adopted or amended their regulations in 2015 and 2017.
Why does Bill C-49, in section 6, not reference the latest version adopted by the United Nations? We would then be sure that the regulations are up to date, but, as they currently stand, they are based on a version from 2013.
Ms. Fox: You would have to ask the Department of Transport.
Senator Boisvenu: If an incident were to occur, you would conduct an investigation, would you not?
Ms. Fox: Yes.
Senator Boisvenu: Your investigation would be based on applicable standards, would it not?
Ms. Fox: Yes.
Senator Boisvenu: But this standard is from 2013, whereas the United Nations revised it in 2017. As an organization that applies standards, you might be expected to have the best possible standard. However, we are four years behind the United Nations, which has updated this standard. I am surprised that you would tell me that the question should be asked to the Department of Transport. When something happens, you are the government’s official investigators. You conduct your investigations based on applicable standards. Canada is about to adopt Bill C-49 with standards from 2013, whereas the standards were revised in 2017.
Mr. Laporte: The first part of my answer is this. We do not apply the standards, nor do we have any authority over the implementation of the regulations. Our mandate is limited to conducting investigations and identifying all contributing factors. If the standards are part of the problem, we describe the problem in our reports, draw the appropriate conclusions, and formulate recommendations.
Senator Boisvenu: I am going to turn the question around. You are an organization that applies standards. In one of your submissions, should we not have seen a recommendation stating that the standard relating to the transport of radioactive materials, which are indeed dangerous, should reflect 2017 standards and not ones from 2013? Did you not see this gap in the legislation?
Mr. Laporte: Our role is not to revise the law or make recommendations in that regard.
Senator Boisvenu: You can identify weaknesses in it, however.
Mr. Laporte: Our role is to base ourselves on specific incidents to identify weaknesses to improve acts, regulations, procedures and operations. If there is no incident involving those kinds of regulations, we will not intervene because we do not have the mandate to do so. However, a number of recommendations have been made, specifically to address problems with regulations, as well as to update and improve regulations. In certain cases, we fall behind international standards, and we demand that Transport Canada update their standards. We have a watch list that identifies the main challenges related to security in the transport industry. One of them is the fact that it takes too long to process some of our recommendations.
Earlier, we were talking about the example of flight deck voice recorders. Right now, we are not following international standards in this regard, as you have mentioned when discussing dangerous goods. During our investigations on aviation accidents, we made recommendations, and we are still waiting for concrete results. We have been pushing for annual re-assessments on this issue. This may be something that committee members could take up with the Department of Transport; that is, the reasons why delays are so long, and the reasons for citing outdated regulations.
Senator Boisvenu: Suppose there is an incident tomorrow involving a spill of radioactive material. You arrive on the spot and realize that, if the 2017 standard had been applied, the incident would not have occurred. Will we be blaming bureaucracy for lack of action?
Mr. Laporte: We describe facts, do the report, and draw the appropriate conclusions. We also make recommendations when necessary.
Senator Cormier: My question is for Ms. Fox. While going deeper into our study, a number of us have been concerned by the language issues surrounding Bill C-49. Is it possible for passengers or employees to use either of the two official languages?
In your investigations, you mention contributing factors. Has it ever occurred to you to identify language issues as a factor that could have contributed to an incident, whether at the level of signage, communications between employees, or even instructions?
Ms. Fox: If you are referring to rail transport, I am not aware of any investigations that have cited language issues. However, in other sectors, such as marine transport, we have flagged certain anomalies in communications, for example, between a vessel’s crew and a pilot. If we identify language issues or communication problems caused by a difference in language, we will cite it in the report.
Senator Cormier: Should the bill take these language issues into consideration when it is implemented?
Ms. Fox: We really have no opinion on that. When we investigate and find a problem due to language, we will mention it. To date, we have not made any recommendations on this subject.
[English]
Senator MacDonald: I want to go back to the example you used of the past train derailment in Burlington. I want a little more information from you. Was there a comprehensive, up-to-date black box on that train, and how much had that technology changed in the past five years? You asked for an in-cab voice and video recorder. Was there a voice recorder on that train?
Ms. Fox: There was a locomotive event recorder on the train which did permit some data to be collected. There was no voice recorder.
I would ask Mr. Jang to respond in terms of how the technology may have changed in the last few years and what we learned from the LVVR study.
Mr. Jang: Since 2012-13, technology for all recording devices has advanced. In terms of the locomotive event recorder, perhaps additional elements would have been added to it. I don’t have the list of those right now.
One of the advancements in technology is the use of Wi-Tronix, where certain types of alarms could be monitored and sent remotely to a control station for input.
Now, having said that, with regard to our 2016 safety study, we looked at the technology that was available at that time. Some of the railways were actually in the midst of doing their own trial installation, so it was actually very good timing. Technology relating to audio and video recorders of various types and models was looked at. We were fortunate enough to assess four specific configurations, which included audio only, video only, and a combination of audio and video. In the report, we document some of the conclusions from it.
Basically, the overall conclusion is that, yes, there is meaningful information that’s available if it’s audio only, and certainly there is meaningful information available if it is video only, but it is a combination of the two that gives you the full picture, the understanding of what happened in the cab, the type of interaction that occurs within the cab.
Senator MacDonald: In this accident, the train was obviously going too fast, and that caused the accident. I would assume that the black box technology in the cab would be able to determine whether or not there was an effort made to brake the train, slow the train down. Surely that capacity is in there.
Mr. Jang: I’m sorry, the capacity to automatically slow the train down?
Senator MacDonald: To determine whether or not there was an effort made to brake the train, to slow it down.
Mr. Jang: Absolutely. In terms of when braking was applied, that information was available.
I think the key thing that our investigators looked at is obviously there was an inappropriate response to a series of signals. The key thing is trying to understand why and what happened. We looked at many different options and scenarios. At the end of our review, we could not conclusively determine, in a meaningful, definitive way, what actually did happen.
Senator MacDonald: I have to be convinced on this. I’m not convinced yet.
I saw what happened in the United States a few weeks ago. That train was going far too fast for the infrastructure there. They know that. They also know that a system that would have automatically made that train drop its speed failed. These are systemic problems and infrastructure issues. I haven’t seen any evidence to date that watching somebody in the cab after the fact is going to do anything to prevent these things.
Ms. Fox: What I would like to say to this, senator, is that by the time a crew takes action to do something, in some cases it’s too late. That was the case in Burlington.
In order to improve the safety of the system, we need to understand the root causes. We need to understand what is going on in a locomotive cab, in a cockpit, on the bridge of a vessel. A lot of that interaction is non-verbal. We won’t capture it on an audio recorder. We need to see, as Mr. Clitsome said, when they’re talking about smoke in a cockpit, where was it coming from? That allows us to pinpoint and really identify what the real cause of this accident was and what needs to be done to prevent this from happening again.
We won’t have that information if we don’t have audio recordings, preferably supplemented by video, to get a more complete picture of what was going on. We can’t fix what we can’t determine in terms of what was happening, the sequence of events and why. Why were those decisions made and those actions taken?
The Deputy Chair: Thank you, Ms. Fox.
Senator MacDonald, this is the first of many meetings on this bill, so you will have many opportunities to readdress the issue, I’m quite sure.
[Translation]
I would like to thank the officials for their participation today.
[English]
Honourable senators, tomorrow we will hear from the Competition Bureau of Canada; Innovation, Science and Economic Development Canada; the Office of the Privacy Commissioner; and Agriculture and Agri-Food Canada.
(The committee adjourned.)