Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 30 - Evidence - February 13, 2018
OTTAWA, Tuesday, February 13, 2018
The Standing Senate Committee on Transport and Communications met this day at 9:31 a.m. to examine 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; and in camera, for the consideration of a draft agenda (future business).
Senator David Tkachuk (Chair) in the chair.
The Chair: This morning, the committee is examining Bill C-49, the Transportation Modernization Act.
We have, today, two panels of witnesses. For the first panel, I would like to welcome François Tougas, Co-Chair, Transportation and Competition, at McMillan; Jean-Paul Rodrigue, Professor, Department of Global Studies & Geography, Hofstra University; and Béland Audet, President, Institut en Culture Sécurité Industrielle Mégantic, appearing by video conference. Thank you for being here.
I invite Mr. Tougas to start his four-minute presentation, which will be followed by Mr. Rodrigue and Mr. Audet. The floor is yours, sir.
François Tougas, Co-Chair, Transportation and Competition, McMillan, LLP: Thank you very much for the invitation to appear before the committee in connection with this bill.
I am here in my capacity as one of few counsel to shippers and railways. I have been counsel on more than 60 negotiations with railways where the shipper could not do the job on its own. Some of them have led to processes under the act, some of which are played on by this bill today.
Transport Canada consulted me extensively on several occasions and asked for my written submissions before introducing Bill C-49. Unfortunately, the bill leaves some shippers less well off than they are now and some without viable remedies to deal with the market dominance of CN and CP.
Rail dominance is a well-recognized occurrence in Canada and the United States. It is not new. However, it makes Canada less well off as industrial output is limited by uncompetitive rates and levels of service.
I have been around for many, many years, and the act over time has been eroded. My submissions address access to rail carrier data and agency authority. They are supported by many shippers in Canada. I know you heard testimony previously from other associations supporting the same things that I am talking about today. I am there to backstop what they have said.
These shipper industries, by the way, are not small. They’re huge. They represent a majority of the volume and revenues of Canadian rail shipment. They have a lot of backing behind them. They also represent valuable Canadian export earnings, taxes and well-paying jobs.
I emphasize that you’re not on the knife edge of a balancing act. The market structure is imbalanced as between carriers and shippers in many parts of railway systems. I don’t want to overstate that. There are many parts of the two rail carrier systems that are competitive, but there are many parts that are not. It is that part that I am trying to address, and that’s why we have remedies in the act. They’re there to bring some relief, for some time, for overwhelming railway market power.
I have been involved with the last six rounds of amendments to the act. Every round, I hear how the remedies will be fixed next time. It just never seems to happen, so I am hoping it’s going to happen here.
With respect to costing data, CN and CP provide far more costing data to shippers in the United States than they do to shippers in Canada, much to our economy’s disadvantage. I will give four examples.
Shippers in the States have access to detailed rail costing data to calculate a carrier’s costs of transporting goods for their own shipments. Not in Canada.
CN and CP are required to report detailed financial and statistical data in the States, available on a public website. Not in Canada.
Shippers in the States can, by more than one means, assess the freight rate competitiveness of CN and CP American operations. Not in Canada.
The Canadian Transportation Agency has a rail costing system that does the same thing as the U.S. system. Shippers in Canada, unfortunately, are routinely denied access.
I have a proposal that is written out in the materials I sent you about how the act could be amended to deal with that problem. I am not going to read it into the record, but you do have it in your materials.
One other area has been addressed by groups before me. It has to do with the authority of the agency to exercise its own motion powers. The reason why that’s there, principally, is to address the problem that many shippers have of not wanting to stand out alone in trying to address their own problems for various fears, including fears of retribution.
In this way, by granting the agency some power on its own to assess systemic railway service failures, and not individual problems, the agency could, with its own expertise, address those problems and come up with viable solutions for a host of shippers, a particular region or a segment of a line, whatever the problem might be.
I have some language in my brief that would help to amend the act in a way that would grant the agency the kind of authority it does not have now. It is a complaint-based system.
I will leave it at that for now, and I will make myself available for questions.
Jean-Paul Rodrigue, Professor, Department of Global Studies and Geography, Hofstra University, United States, as an individual: Thank you for this invitation. I don’t represent any specific stakeholders or interest. I would like to say I am, therefore, slightly unbiased. I am a professor at Hofstra University in New York.
I have been looking at the industry for 25 years or so. Since I don’t represent any stakeholders and I don’t want to push anything, I am relatively ambivalent or neutral regarding the legislation. I have decided to tell you the current status of what I perceive to be rail in North America.
We have a common misrepresentation. They are not Canadian carriers. They are North American carriers because CN and CP have very big stakes in the United States in terms of their railway network. I’ve provided maps to give an idea of this. It is a very complex system of terminals, links with roads and links with ports. That’s an issue.
Based upon where the industry is going, I mentioned in my brief that it has a horizontal past and a vertical future. What do I mean by that? In the past, it was about integration. It was about mergers and acquisitions when CN and CP purchased some segments, for instance, in the United States. This era is over. You cannot purchase large segments because of regulatory issues. Last time, it failed because of market power concentration. This will not happen.
Under such circumstances these days, the railways are trying to better connect their networks together with large intermodal facilities. Now they’re looking vertically. They’re looking at logistic zones in what we call inland ports, a very important aspect of their railway development.
Wherever you look these days at major intermodal rail terminals, they are partnering with local real estate developers, whether they be a private or public entity. They develop logistical facilities to anchor the business. That model is replicated everywhere in the world. The whole China strategy, for instance, in Central Asia is based upon rail, logistics and vertical integration. That’s a very powerful turn in this industry.
Another important aspect in terms of vertical integration for the future is the use of IT, which does not appear to be talked about too much here. We are on the verge of a very significant revolution in the processing of transactional data within the shipping industry. It has been talked about for a long time. When we talk about electronic bills of lading, we will call it block chain.
Forget about all the bitcoin hype and all that nonsense in some ways. In the future, you will be able to have basically a traceable efficient chain of IT. I call it digital intermodalism with which you will be able to recreate and trace all the transactions. This will be very important for competitiveness, depending on how this system is established. It will enable you to look at what I’ve been doing, where the product is coming from, where it was and under what circumstances. Because of that, the transactional costs will decline very substantially, in my opinion. That’s something you have to bear in mind.
Finally, Canadian law will be on par with American law regarding the repositioning of empty containers. I double-checked with the folks at Maritime Administration in the United States. This anti-repositioning law was established in 1958. Finally, we will get on par with the repositioning of empties. That is relevant because we have huge imbalances in trade and flows. Any issue or any attempt that tries to make this easier will create benefits, irrespective of what the benefits are for shippers. It will be easier for them to reposition empty assets.
Last but not least, it’s becoming almost impossible to build infrastructure in North America because of massive NIMBY, or not in my back yard. Whatever project I’ve been advising on in the United States, it’s getting close to insane. In Canada it’s even worse. Whatever we do, we have NIMBY and it delays projects significantly. It’s becoming a PR issue, a pathological problem of people being afraid of everything.
Any infrastructure project is perceived negatively at its start because people don’t understand what a supply chain is. They see a truck and they think the purpose of a truck is to block traffic. They don’t understand or connect in their minds the added value. I prefer to see a bridge full of trucks than a bridge full of cars because I know that trucks add value while with cars it could be debatable. That’s about it.
The Chair: Mr. Audet, please.
Béland Audet, President, Institut en Culture Sécurité Industrielle Mégantic: Good morning and thank you for giving me the opportunity to discuss this bill with you. I would like to give you a brief explanation of the ICSIM, the Institut en Culture Sécurité Industrielle Mégantic. This institute was created by a group of business people in the Lac-Mégantic region following the tragedy on July 6, 2013. I think you are all familiar with it. During a brainstorming session, Maurice Bernier, a former head of the Granit MRC, floated idea that Lac-Mégantic should become the Davos of safety. We started with the idea of creating this institute in order to bring out the positive aspects of this tragedy. It was important for us to give the people of Lac-Mégantic something positive again following this tragedy.
CN was one of our first partners in this venture. It managed the tragedy from the first morning, even though it wasn’t a CN line. We know that the Montreal, Maine & Atlantic Railway, or MMA line, at the time, was a former CP line. As a national leader, CN took charge of the management of this tragedy and always works with us, and has for the last five years. I wanted to mention that.
We added partners after that: three educational institutions, including the Université de Sherbrooke, the Beauce-Appalaches cégep and the Hauts-Cantons school board. It’s unprecedented for three educational institutions to come together to create this kind of institute.
This institute has a local, regional and national scope. We also have potential partners. We have other partners, including IPIQ, the Institut de protection contre les incendies du Québec, in Laval, which trains firefighters in Quebec. We also have the provincial government, which has been quite involved since the beginning of this great initiative. However, we still have expectations of Transport Canada, which turning a deaf ear almost five years after the tragedy. It is taking its time getting involved in this institute. I think it’s a tragedy that has affected many Canadians. We have experienced something distinctive in Lac-Mégantic and we would like the 1,200 cities in Canada that the railway runs through to benefit, to some extent, from this review. It is very important to analyze the facts that occurred during the tragedy.
As for the Université de Sherbrooke, we want to create a research chair on governance and on the participatory and safety strategy. We will analyze the tragedy, namely, the management of the crisis, the post-crisis and rebuilding. We will analyze all the facts and will highlight the positive and negative sides of this tragedy. Then, we will be able to train municipal leaders, first responders, and government and environmental stakeholders and have good relationships. I think we will be able to train these people.
In June 2016, the Standing Committee on Transport, Infrastructure and Communities recommended that Transport Canada work with the City of Lac-Mégantic to establish the Lac-Mégantic Canadian Centre for Training and Certification for first responders and teams of interest. We are still awaiting a response from Transport Canada about this.
One of the crucial points we want to raise is the training of first responders following a railway tragedy. In the eastern U.S. there is no teaching institution dedicated to rail safety training. The only institution that provides this type of training is the Justice Institute of British Columbia —JIBC— in Vancouver. There is absolutely nothing provided in the east and, in Canada, no program is offered in French. We hope to create an institution like this in Lac-Mégantic, which will be bilingual — French and English — to serve Eastern Canada.
Plans are under way to set up two training sites in the downtown core to help to rebuild this part of the city that was destroyed as a result of the tragedy, with a classroom training site in downtown and another in the industrial park.
We also want to address training for the general public. We all know that we all have a role to play in the Canadian community, which is to work to foster a safety culture. We want to work with railway industries, first responders and the general public to train and educate the general public.
So that is what ICSIM is all about. You all have a copy of the brief we submitted. Our two main recommendations are, first, that Transport Canada standardize and make mandatory the training of conductors by accredited organizations and, second, that Transport Canada standardize and make mandatory specific railway risk training for first responders of railway crossed locations, which numbers 1,200 communities. It is an advantage for Canada to have this kind of training, and that is what we are requesting here this morning.
The Chair: Mr. Tougas, you said you were consulted or Transport Canada had talked to you when they were putting this bill together.
Of the things they missed, what would be the prime change or prime result you would like to see in the act?
Mr. Tougas: Let me start with the last one. What I would like to see is a system where every shipper who is captive or experiences some degree of captivity has access to a viable remedy.
There is some effort in the current bill to create the new LHI system to address a problem that was perceived in the act. There are some shippers for whom that will likely be of benefit.
There will be some other shippers excluded by it and actually made worse off as a result. That’s not a reason to kill the LHI idea, but it is a reason to make it work more effectively.
However, for some shippers it will never be useful. For those, I would focus on the final offer arbitration mechanism currently in the act. That has been there since 1987. It has gone through a few amendments.
Transport Canada consulted me extensively on final offer arbitration: what I would do to make it work. It has fallen into some disuse. It is severely under attack and eroded, I would say. The simple answer to that problem is to allow a shipper, that cannot get a competitive option, that cannot compare its rates to others and that has no means of transporting its goods in any other way, access to the costing power of the agency to be able to get the cost for the shipment it is putting into dispute in the final offer arbitration process, to compare that against the rates that it proposes in a final offer arbitration, and to allow the arbitrator to compare it to the offer presented by a railway.
It used to be that railways would always consent to the shipper’s desire to go to the agency and to have it cost the particular movement in dispute; but the railways have both figured out that all you have to do is never consent and that remedy is almost useless as a result.
It’s a very simple amendment. I have it in my materials. It’s two lines long. I have talked with Transport Canada about it. I am continuing to talk about it. It’s a mechanism that would address what many shippers in Canada experience, which is an inability to obtain a competitive alternative that is answered by a resolution they can address themselves.
They can put their rates to a final offer arbitration to be determined by an independent third party arbitrator, and that arbitrator would be able to compare the cost to the railway of transporting the shipper’s goods to the rates being proposed by the shipper and by the carrier.
That’s what’s missing. It’s a very simple fix. It used to be available. We have to get back to a place where that remedy works.
The Chair: The clerk tells me that should have been distributed to all the senators.
Senator Gagné: My first question is for Mr. Audet. I would like to thank you for your presentation and also the other witnesses for your excellent presentations.
Mr. Audet, you have identified the lack of employee training as a major element in several accidents that have occurred in recent years. You recommend that Transport Canada standardize and mandate the training of conductors by accredited organizations. Which organizations are accredited in Canada for providing conductor training, and what obligation do companies have currently for this training?
Mr. Audet: Railroad training is offered by the railways right now. CN and CP train their own staff, and no certification is available in Canada. The level of training at CN and CP is very high. In contrast, 50 local railway companies in Canada have no training, and their employees are trained by retired CP or CN employees. Since it is their own company offering the training, it leaves something to be desired. For example, at the time of the tragedy that took place in Lac-Mégantic, the people of MMA were neither trained nor accredited.
Senator Gagné: The Department of Transport says that random sampling of audio and video tapes can help companies identify ways to improve the training of their employees. Based on your comments and your brief that state that there is an uneven corporate culture, do you believe that more regular inspections by Transport Canada are a better solution?
Mr. Audet: Conducting regular inspections would be a step further, but we do not really believe in using videotapes. In Lac-Mégantic, for example, what would have been the outcome of using videotapes? That would not have prevented the tragedy. Since these tapes are only viewed after the fact, it does not prevent or improve rail safety. This only serves to analyze what happened to make changes in the future.
In the United States, a new positive train control technology is available. It is certainly very expensive to implement this kind of management system, but with this technology, the United States is one step ahead of us. Despite all the technologies available on the market, we decided to use videotapes in Canada, and I think that decision puts us in the rear of the train, if I can put it that way.
Senator Bovey: I thank all of you for your presentations. I have one quick question for Mr. Audet, and then I would like to address a question to Mr. Tougas.
Do you feel your recommendations are important to add to the legislation, or are they regulatory?
Mr. Audet: I think they should be included in the act. We are recommending that the training be included because it is part of our vision. If it’s a regulation, it should be something inclusive in that respect.
Senator Bovey: Thank you. Mr. Tougas. I am intrigued with your information that CN and CP provide far more costing data to shippers in the States than they do in Canada.
If that information can be given in the U.S., why not in Canada? Why the difference on either side of the border?
Mr. Tougas: We have two pretty different systems for resolving shipper/carrier disputes. It grows out of the regulatory structure that has happened. Confidentiality can’t be a reason because they already do it in the States.
There has been a point about there being only two railways in Canada, so they would be able to see each other’s information. That’s not true either. That is a red herring. The costing information is only provided to the shipper and to the carrier by the agency. There is a confidentiality requirement in the final offer arbitration mechanism that compels the agency and arbitrator to keep that information confidential.
I know of no case where that information has been revealed publicly, so I don’t think that’s a reason. Whatever the reason is that we’ve kept it out, what has actually happened is that there has been a change. Final offer arbitration came into effect in 1987. It really wasn’t used in a significant way until after the 1996 amendments. Even then, we’re talking about two per year. This is not some gigantic thing.
There is a band of shippers that have access to no other remedy whatsoever and it has been eroded during my time in practice, which really starts in 1996.
That remedy has been eroded largely because the railways refuse to consent to go to the agency for a costing of their shipments in dispute. All that needs to happen is for the agency to be required to provide that costing and for the arbitrator to determine what to do with it. The act doesn’t tell you. Not even my amendments propose to tell the arbitrator what to do with that information. It’s just one method of comparison.
Senator Bovey: But that information is already being given when requested south of the border.
Mr. Tougas: Yes, in four different ways. That is right, yes.
Senator Mitchell: Mr. Tougas, I am interested in the point you make. Certainly, you are strong about confidentiality being a red herring. There are those who would argue that releasing too much information is a competitive disadvantage. Not to be provocative, but probably some of your shippers wouldn’t want to release all that much.
Could we find a compromise to the extent that railroads wouldn’t be able to just say no, that it would be up to the arbitrators to specify whether or not they wanted to make that decision, and that the costing information required of the train companies would just go to the arbitrator?
I know you say there has never been a release, but if you are president of CN or CP anything is possible. You might be concerned about that. Could you not solve the problem by taking away the veto, as it were, and by adding in the restriction that the information would just go to the arbitrator and the arbitrator could be trusted to make the decision?
Mr. Tougas: I’ve heard both of those. Let me just deal with the first one. What actually happens inside an arbitration processes is not unique to final offer arbitration. It happens in arbitration of all kinds.
Arbitrators are trained not to go against the objection of another. They want to have consent by all the parties to a particular mode of operation within the arbitration process. That’s why I am saying you have to give a right to the shipper to be able to get it.
The shippers might not exercise it, but they are the ones at disadvantage in this process. They’re the ones that are having a rate imposed on them.
No choice whatsoever. Ship at this rate or don’t ship. These are not real options. To resolve the problem you are talking about, you really have to make it obligatory that the arbitrator would go to the agency to get it or that the shipper has a right to go to the agency to get that costing information.
To be very clear, though, I would not advocate a system that tells the arbitrator what to do with that information. I would just leave that silent. Let the parties argue about its relevance.
I have heard both railways talk about the relevance of that number. You can imagine what they say, and you can imagine what a shipper would say about the relevance of that number. That’s just advocacy. We can leave that to the parties to determine.
On the second point about only leaving it to the arbitrator to look at the information, here is the difficulty. How does an arbitrator know what to do? Most of them are lawyers who are arbitrators. They’re refugees from math. They don’t know what to do with that information. The parties need to be able to tell them. What are you to do? Will you give them a calculus model to help them figure out what to do with the information?
It is a red herring to talk about a breach of confidentiality. It just can’t happen. It is a statutorily confidential process. It is not even just by agreement. It is statutorily confidential and actionable. There have been no actions taken. If there were a problem here, we would have seen action, because I can tell you the railways will contest every motion possible in a final offer arbitration.
I know they are sitting behind me there. They know what I am talking about. They’ve done it. They watch me. I watch them. It’s a beautiful relationship.
Senator Mitchell: I am interested, Professor Rodrigue, in your point about the evolution of digital information, the block chain and the possibility of it having comprehensive information about costing and variables that relate to the rail industry and the shipping of goods.
Who would implement that system? Would that be government or would that be railroads? Who would get that information depending on the answer to the first question?
Mr. Rodrigue: Right now it is just starting. There are a few projects. At this point the maritime shipping lines are starting these because they have problems with bills of lading. You need something like 200 pieces of information to import a container from one country to the other along the chain. It’s coming from the maritime shipping lines.
There is a big push as this opens up the transparency of the process. Maybe other carriers will start to implement it as some type of competitive edge. I suspect, eventually, it might permeate to the railway industry. When this happens, it changes the rules of competition a bit.
I am not too sure regulation is necessary if the system will be a bit more open because of this type of technology. Again, you point out a very valid issue. Who takes control of this could have an influence on it, but at this point it will be the major shipping lines and carriers.
A lot of it, right now, is hype. Because it’s technology, it’s on top of unrealistic expectations at this point. When all this clears up, we will find out. My suspicion is that it could be, I would say, significant in its impact in terms of the rules of competition as people would like to trace the supply chain or to verify if the product is certified in an environmental fashion. Again, it will lead to interesting results.
The Chair: Are they using block chain technology? Is that what they are using.
Mr. Rodrigue: They’re starting to implement this under specific lines. They are experimenting with it. They want to see what will happen.
The Chair: So, no one controls that technology.
Mr. Rodrigue: At this point, not necessarily.
The Chair: That’s a good thing, right?
Mr. Rodrigue: That’s the purpose of it. You actually open it in some ways. Again, you have to have some access. That’s the beauty of it.
It cannot be compromised. It does not belong to anybody. You have to find what are the rules. That will be a lot of hassle for a lawyer’s friend there. That’s where it’s heading because consumers will demand maybe some regulation.
How can you certify the carbon footprint of that good? Here is the block chain of it, and you know exactly what happened.
Senator Plett: I have one quick question for Mr. Audet and then two brief ones for Mr. Tougas.
Mr. Audet, you said a video recording has no preventive effect. Yet, at the same time, you said that if we’d had them at Lac-Mégantic we would have seen what went wrong. We wouldn’t have prevented the accident, but we would have seen what went wrong.
Does it not have an effect on preventing an accident in the future if we know what went wrong in the last one?
Mr. Audet: Of course, we are able to prevent an accident in this way, I agree with you. However, we will not avoid the accident as such. We can analyze the accident and what happened for the future. In the United States, positive train control, or PTC, is a different technology. There, it is possible to anticipate an accident, mechanical breakage and all kinds of things that can happen when a train is moving. It is then possible to avoid an accident. With the recorder, accidents can’t be prevented, and the accident as such can’t be avoided.
Senator Plett: Predicting future accidents is pretty important, in my opinion.
Mr. Tougas, you have said quite clearly that Transport Canada consulted with you and asked you for written submissions. You testified at the House of Commons, and yet it appears that nobody listened.
I want to ask two questions, so I’ll ask them right away. Why did nobody listen to you? Who is worse off with long-haul interswitching?
I have a real concern about Western Canadian grain farmers. Are they worse off or better off with long-haul interswitching?
Mr. Tougas: Let me deal with the second one first. Largely what is happening with LHI is that it is meant to replace, the loss of the zone 5 interswitching rate for the ag industry.
It was also largely connected to the former competitive line rate mechanism that had fallen into disuse largely because, as was found by the National Transportation Act Review Commission in 1992, the railways had refused to participate in it.
When you look at the LHI remedy, which is advocated by the ag industry, some people, many of whom are my clients, will really want to have this remedy because of the loss of the zone 5 interswitching and because of the perceived need to fix the CLR remedy. I think that group will find out, through use, just how useful it is.
I wouldn’t want to disparage the idea of the LHI remedy because it could be useful to some people. We will see. Groups are left out because of the exclusion zones in the corridors and the many hurdles of being able to use that remedy.
I was not a big fan of the old zone 5 interswitching mechanism because it had a market distorting effect to it. Some shippers had access but those beyond 160 kilometres had no access. By its nature it discriminated between shippers. I sm afraid that is what is happening with the LHI. I sm convinced that is the case, by the way. However, that is not a reason to say you shouldn’t help those that you can. I am saying that every shipper in need of a remedy should have a viable remedy.
Why didn’t they listen to me? That’s what my wife says. I don’t know. They consulted me at length. It was three sessions over 13 hours that I spent with them and numerous written submissions. They learned what I know. That’s it. They made their own judgments about it. I think they are wrong about many of the judgments they made. That wouldn’t be the first time, by the way. It happens; these things are all compromises.
There is a distinct need for every shipper to have a viable remedy. The opportunity in this bill is to try to do that. Every last round of amendments has failed to deal with those problems as they are arising. This is a slow process. You guys are in it. You know. It’s slow to use legislation to correct real-time problems in the industry. This is a chance to get it done, and I am saying get it done.
Senator Mercer: I have one question for Mr. Tougas. You talked about giving things to the agency to review. One of the things we haven’t talked about is the ability of the agency to meet those demands.
If we were to send all the data to the agency, do they currently have the budget and the personnel to do the job?
Mr. Tougas: Yes, we do. They already do it. They do the costing exercise already for the interswitching remedy in the act. They must get the information from the railways. They do get the information from the railways. They then turn it into variable cost determinations. They calculate cost of equity.
They are very capable. This agency is an expert body. Just like the Surface Transportation Board in the United States, they can do the same job. We are talking about whether or not a shipper gets a right to access that information to use it in a final offer arbitration to compare its final offer against those costs.
There is nothing else to compare it against because the shipper does not have access to other shippers’ rates. It can’t compare itself. It cannot say if I trucked when I can’t truck I can’t use some other mechanism. There is no other railway. We are talking about a captive circumstance here.
The agency has it. They can do it. They have done it. Over time the railways have determined to stop consenting to letting the arbitrator go to the agency to get that information.
Senator Mercer: That’s one agency, and we have talked about the Transportation Safety Board. There have been discussions around this table about sending all the data collected from the video recorders in the engine area to the Transportation Safety Board of Canada.
Is the Transportation Safety Board equipped with the budget and the personnel to be able to monitor that information and to be able to provide the necessary feedback to the railways to correct any problems that might arise?
Mr. Tougas: The next time an agency of government says they have enough money and enough people will be the first time.
Senator Mercer: I appreciate that. That’s why I am asking you. I know what the answer is when I ask them but I am asking you.
Mr. Tougas: I think the agency has the expertise. There is no question about that. I think there has been erosion at the agency in terms of budget and resources.
We can always say there are cheaper, faster ways to get things done more efficiently. I am not in the best position to assess that, but I sense that it is hard for the Canadian Transportation Agency, and maybe the Transportation Safety Board, to get their various jobs done.
Let’s face it. The agency has a task with the airlines. They have the coasting trade and certain railways functions. These are big jobs for an agency, but on the costing side they have a costing department.
Do I wish it was that much stronger? Sure, I do, but I have no reason to believe they can’t get that job done. They have done it. They continue to do it and they should continue to do it.
Senator Boisvenu: Welcome, gentlemen. Mr. Audet, your testimony particularly touches me. I am from Sherbrooke, and I am quite familiar with the Mégantic region. I know how much this tragedy affected the entire population, not only of Mégantic, but also of the Eastern Townships.
When you appeared before the House of Commons, you said that Bill C-49 proposed very few measures to prevent tragedies like the one that happened in Lac-Mégantic. The only proposed change to the bill is the addition of cameras, which would be more of a responsive than a preventive tool, much like cameras in businesses. Often, they will be consulted when a crime is committed. These cameras are very rarely used for prevention.
Are you proposing more preventive rather than reactive measures in Bill C-49?
Mr. Audet: Certainly we would have thought that the Canadian government would be moving toward technology like the PTC. We know that the PTC is now in use in the United States. We know that 60 per cent of CN and CP locomotives and equipment already have this system on their equipment. So, we believe that implementing such a system in Canada would have been a great step towards a higher level of security. That was not Transport Canada’s position. They went to the video recorder, as you stated so well earlier. It is a reaction to tragedy, not prevention. While a tool like the one in the United States is prevention. That’s what we thought Transport Canada would choose.
Senator Boisvenu: I was surprised to see that we were going to adopt the United Nations standards of 2013 when the United Nations has changed its standards twice since then, especially for hazardous materials.
Have you not been surprised that this bill is not up to date with safety standards?
Mr. Audet: Yes, certainly. We had noticed this too. Like many measures following the Lac-Mégantic tragedy, which the Transportation Safety Board of Canada had focused on and which were not respected in this bill.
Senator Boisvenu: Mr. Tougas and Mr. Rodrigue, in your opinion — and I will try not to harsh — is this bill not a missed opportunity? Are we missing an opportunity to modernize railway regulations? Should this bill not have a future perspective on modernizing the regulations rather than plugging the holes we’ve seen in recent years?
Mr. Tougas: Probably. But I am hesitating, because I am legal counsel for the railway that bought the Mégantic route, and I have no instructions. I would like to recuse myself from the question, if possible. We have the opportunity to modernize the act. Why not take the time to do so, and do so correctly?
Mr. Rodrigue: From what I saw, the act mostly plays catch-up. I was surprised to see “empty containers.” When I looked at the United States, I told myself that we are catching up. As an academic and a researcher, I cannot research railway transportation, because I have practically no data.
With marine transportation, I’m working on something else. I see the problem indirectly. It is frustrating, because it weakens research that can sometimes produce interesting ideas.
Every time I speak with stakeholders in railway transportation, I get no data on intermodal terminals in Canada. I am told that these are confidential commercial data. So I move on to something else.
Senator Boisvenu: This means that, if another tragedy were to occur a few years from now, we would find ourselves in the same committee asking what could we do better?
Mr. Rodrigue: Perhaps. Let us look at the bigger picture though. Some tragedies happen because the transportation was done wrongly, and because of a lack of other options.
You want to build a pipeline, and you are told, “Not in my backyard.” You must then use roads or railways to transport goods, and accidents happen. Sometimes, these are the indirect consequences of other actions. You believe that you are solving a problem, but without providing the real solution.
Senator Dawson: Mr. Audet, first of all, congratulations. I encourage you in your efforts. However, I am not sure that your two recommendations are appropriate at this step in passing the bill. If you need support for training in the future, you can count on us.
When you talked about blockchains, you mentioned that Canada and the United States do not have the same rules, but that blockchains will do away with the rules. Does this unfettered collection of information play in our favour, or in the Americans’ favour? Our government is traditionally a little more interventionist than the government of the United States.
Mr. Rodrigue: It is still too early to predict the consequences. This kind of situation often produces unexpected consequences. For example, we have heard a lot about bitcoin recently. However, this currency has had several serious setbacks. I just finished reports for the Organisation for Economic Co-operation and Development on this issue, and it is all very speculative. All I can tell you is that there could be impacts. However, this tool will give more power to users over suppliers. We can say that it is a kind of Uber freight.
Senator Dawson: Don’t get me wrong. Whether you like it or not, block chain technology is coming down and it will happen. Like our automated cars, whether you like it or not it will happen. I wanted to keep an attitude of trying to protect the interests of Canadians.
The pursuit of perfection often gets in the way of progress. I see your resumé, and the number of interventions you have made on the bill. You have some influence, but little success.
If we answered yes every time witnesses asked us for something, we would be set back by a year and a half, and we would have to restart the process. Committee work is not perfect. If there are measures that we can take, we will take them. However, we cannot say yes to both you and the gentleman over there, because we would be contradicting ourselves.
I want to encourage you to voice your concerns, but do not expect us to acquiesce to everything you ask of us.
I believe in the video aspect and I think, Mr. Audet, that it does help in prevention. If they have surveillance, people will be more attentive than if they don’t have surveillance.
Mr. Tougas: If I may, it is incorrect to say that we are asking for a million things. We are not. I started out with a gigantic list. I pared it down to two for my brief and one in my oral. That one is asked for by more than half of the industry using the Canada Transportation Act for a remedy. More than half of the shipments in Canada by revenue and by volume are asking for this remedy.
This is not an all over the place kind of thing. If you fix this one thing, you will fix something for a large group of people. They are all asking for it. It’s not just a one-off.
The Chair: Colleagues, after the next group, we will have a five-minute in camera meeting. It will not be a long time. There are only two small issues to deal with.
Thank you very much to the witnesses today.
I would like to welcome the next panel, Hassan Yussuff, President, Canadian Labour Congress, accompanied by Chris Roberts, National Director, Social and Economic Policy; Don Ashley, National Legislative Director, Teamsters Canada Rail Conference; and Bruce Snow, National Rail Director, Unifor.
Thank you for attending our meeting. I will ask Mr. Yussuff to start his four-minute presentation, followed by Mr. Ashley and Mr. Snow. Please proceed, sir.
Hassan Yussuff, President, Canadian Labour Congress: I have very limited time to make our opening comments. Therefore, I will restrict myself to the parts of Bill C-49 that require railway operators and installers to operate locomotive voice and video recorders, or LVVRs, in locomotive cabs.
When it comes to rail safety, no one has more at stake than engineers and operating employees. Our members are at great risk of death and injury when an accident occurs on the railway. They pay the highest price for unsafe railway operations.
Union support proactive measures that help prevent accidents, save lives and reduce injuries. However, it is not clear that LVVR technology will achieve these objectives.
It is clear, however, that technology will violate the privacy rights of employees. We are concerned that Bill C-49 allows the railway companies to monitor randomly selected LVVR data on an ongoing basis.
It is true that LVVR information could not generally be used against employees in disciplinary or other legal proceedings. However, railway companies will be permitted to monitor randomly selected LVVR data on an ongoing basis. This information will inevitably be used to exert discipline over employees.
Bill C-49 provides some protection for the privacy interests of workers. However, Bill C-49 does not require railway companies to ensure secure storage or transmission of LVVR data. Nor does Bill C-49 provide any guarantees of the integrity of the data when a Canadian locomotive leaves our country.
Bill C-49 will deprive railway employees of important privacy protection under the Personal Information Protection and Electronic Documents Act that other workers enjoy.
Locomotives in Canada are already equipped with black boxes that record locomotive data for use in the event of a railway accident. By increasing the stress levels experienced by those in the cab of the locomotive, LVVR may actually reduce safety without greater mandatory legislative protection for employees.
There will be no way to ensure the on-board recording does not create a disincentive or chilling effect on communication between crewmates. This will have a potentially negative impact on safety.
There is no consensus between railway companies and employees on the adoption of the technology. Unions are not convinced of the necessity and appropriateness of LVVR technology. We therefore make the following recommendations.
Bill C-49 should be amended to omit any mandatory requirement on railway operators to introduce video recording technology in locomotive cabs.
Only the Transportation Safety Board should have access to voice recording data. The TSB should have access to this data only for the purposes of rail safety, namely, as part of an investigation into a railway accident that led to an injury or fatality.
While the TSB should have access to voice recording data, at no time should this information be shared with railway companies.
Thank you for your attention. I look forward to any questions you may have.
Don Ashley, National Legislative Director, Teamsters Canada Rail Conference: Teamsters Canada Rail Conference is the largest rail industry trade union in Canada, representing over 16,000 employees, including all of the running trades employees at Canadian National Railway, Canadian Pacific Railway, VIA Rail, and dozens of smaller rail lines and commuter rail operations.
As I provided everyone with a copy of our detailed submission, rather than reiterate those points I would like to highlight a few of them and take this opportunity to comment on some of the points that have been presented by previous witnesses to the committee in the limited amount of time we have here.
I will start by stating that rail safety is of the utmost importance to our members. They are hard-working professional Canadian railroaders. They are on the front line when it comes to safe rail operations. We support all proactive safety measures to improve rail safety for our members and all Canadians, including the installation and use of locomotive video and voice recorders, provided that they do not infringe on the privacy rights afforded to all Canadian citizens.
This can be achieved by restricting access to this data to the Transportation Safety Board only under the current legislation which already provides for protection of the personal information captured by this intrusive technology.
You’ve heard the concerns in previous testimony that the TSB only investigates 2 per cent of all rail accidents, but this is by choice, not by mandate. The TSB has the ability to conduct five different levels of investigations, and they are not limited to post incident. They have the ability to conduct proactive random sampling of the data while maintaining the privacy of Canadian railway workers. They also have the ability to include Transport Canada and representatives from industry to take part in these investigations as special investigators bound by the privacy protections contained in the CTAISB Act.
The other night you heard from an executive from one of the country’s major railroads state they would use this data, but it is still protected under section 28 of the CTAISB Act and the provisions of PIPEDA, but he failed to mention that section 28 of the CTAISB Act only prescribes how the TSB will safeguard the data, not the railways.
This bill, as proposed, specifically exempts railway companies from the statutory limitations under PIPEDA, defending the purpose of that legislation and circumventing the legal tests for the use of this intrusive technology, thus precluding Canadian railway workers from the privacy rights afforded to all Canadians.
The existing technology currently installed in today’s locomotives includes outward-facing cameras, black box recorders detailing all the locomotive operations including brakes, speed, throttle position, horn, whistle, et cetera, GPS location tracking devices and cellphone detection systems, all of which are currently live streamed in addition to the recorded radio conversations. It would be difficult to meet the legal tests established and required by PIPEDA to use LVVR if the bill didn’t exempt it.
The bill is also silent on the issue of cross-border operations. The two largest freight railways in this country have extensive operations in the United States. The locomotives do not get exchanged at the border like the crews. They continue on the train. What happens to the private personal data of the Canadian crews captured on a locomotive when it crosses the border and is no longer subject to the protection of Canadian laws?
What we have here is a piece of legislation that mandates the installation and expanded use of LVVR technology that is clearly worded in the bill, and then a lot of talk about balancing the privacy rights of workers with safety. The legislation is silent on how that will be achieved. Rather, it clearly exempts portions of PIPEDA legislation designed to protect the privacy rights of Canadians.
What the minister is asking for is a bill to be passed into law that will provide a blank cheque to the bureaucrats to determine what is right and what is wrong, essentially taking law-making out of the hands of the law-makers and surrendering it to the departments, providing no insight into what that will look like or how it will be achieved.
There’s a big difference between installing cameras in public locations and installing cameras in confined, captive workspaces. This will have a chilling effect and create a sterile environment in the locomotive, more likely to compromise safety than to achieve its desired outcome.
We ask you to amend this bill and protect the privacy rights of working Canadians. The bill could be the beginning of a slippery slope leading to the disintegration of the privacy rights of all Canadians.
Limit the access to the TSB only and mandate scrubbing features that erase data when a locomotive crosses an international border. Put that in the legislation and don’t leave that up to regulation. This is too important to Canadians to be determined in a regulation that we have no control over.
Thank you. I would be happy to answer any questions you may have.
Bruce Snow, National Rail Director, Unifor: Unifor represents more than 9,000 Canadians in the rail transportation industry. On behalf of these members I welcome to the opportunity to share Unifor’s view on Bill C-49.
Of the proposed amendments to the bill, the change that has the biggest potential impact on our members, all railway workers and ultimately Canadian workers, is the introduction of a requirement that all railway companies install the use of locomotive voice and video recorders. In our view this is at the cost of waiving the privacy rights of Canadian workers, the right of protection of their personal information.
Unifor members are outraged that this government would introduce legislation that revokes the rights of Canadian citizens. As Canadians, we believe our rights must be protected. The bill in its present form would allow railway companies to monitor randomly selected LVVR data on an ongoing basis. The legislation, as currently drafted, does not allow railway companies or government bodies to take any specific action to secure LVVR data.
This exposes Canadian workers to ongoing surveillance without, at present, the knowledge that the information collected is secure.
Unifor submits that there is already technology being used by rail companies that can collect data for the purposes of monitoring train and locomotive safety: the black box which is capable of monitoring all operator controls, and real-time business intelligence which monitors locomotive functions in real time and can send communications to railway officers, alerting them to irregularities in the operation of the locomotive.
Unifor submits there is another less evasive technology available called positive train control, an advanced system designed to automatically stop a train before certain accidents occur.
In particular, PTC is designed to prevent train-to-train collisions, derailments caused by excessive train speed, and train movements through misaligned track switches. Why is this government willing to violate privacy rights but not take a proactive approach to rail safety by mandating PTC as has the United States?
Unifor submits the answer lies within the TSB and its desire to implement LVVR. In June 2016, the Standing Committee on Transport, Infrastructure and Communities released a report on safety. The report recommended the use of voice and video recorders by railways. However, the recommendation provided that the data gathered by the LVVR ought to be used only by the appropriate government authorities during TSB accident investigations or subsequent criminal investigations to which they directly relate but not by the railway companies themselves.
In other words, the TSB wants LVVR. However, initially the rail companies that sit on the advisory council for rail safety were opposed to it. Why? It is because the companies would have to foot the bill. TSB’s compromise to the rail companies was simple. They pay so they get access. No mention of PTC. Why? The cost of implementing proactive technology would be significantly more than LVVR.
In the September 12, 2017, letter of the Privacy Commissioner of Canada to the Standing Committee on Transport, Infrastructure and Communities regarding the study of Bill C-49, he stated the following concerns in part:
Our underlying concern is that proactive safety management is a purpose that could be broadly interpreted in practice, potentially encompassing employee output measurement or other performance-related objectives. Train operators have pointed out that certain rail routes are extensive and could result in drivers being recorded continuously over 60-70 hours, while operating the locomotive. In our view, allowing rail companies to have broad access to audio and video data for non-investigatory purposes has greater impact on privacy, and could open the door to potential misuse of the data or function creep.
The protection of personal information is the cornerstone of the right to privacy for Canadians. In Unifor’s view, this bill has not met the test regarding the reasonableness of electronic monitoring in the workplace. Furthermore, we are extremely concerned where this proposed erosion of privacy rights will lead to with other employers in Canada.
Nonetheless, if LVVR must remain in the bill, Unifor recommends and submits that only the TSB should have access to the LVVR data, and only then for the purpose of rail safety, and only as part of an investigation into a railway accident that led to an injury or fatality. While the TSB should have access to the LVVR data, at no time should LVVR information be shared with the railway companies for any reason. Thank you.
The Chair: I would like to start off with a question. We’ve had the question of privacy rights before us since the meetings started. I am a little puzzled. I haven’t made up my mind yet on how I feel about it.
This question is for all of you. I am not sure what privacy rights are being threatened here. If you work in a restaurant, in a bank, in a mine or almost anywhere there are customers, you’re always in public. You have no privacy.
The people who work at the mall over here are working all day long and they have no privacy rights. There are cameras everywhere. Customers are coming to see them. They’re being watched all the time they are at work, constantly. At a construction site you have people building homes or high-rises. Managers are there all the time watching you work. The only time there’s privacy is hopefully in your own home.
Even if a plumber comes to my house, I am watching him. He doesn’t have any privacy when he comes to my house or to the construction site. He has none. The only time he has privacy is when he goes from one job to another. The manager knows he’s going from one job to the other, so he knows where he is.
What privacy is being protected by the person running the train? What rights does he have there that are being threatened?
Mr. Snow: First, senator, it’s our position that the camera is this far from him. It’s in his face as well as the conductor’s. Between the two employees in a 10 by 10 space it’s not so much that they’re being videoed, but all the dialogue and all the engagement between the two of employees for 12, 14 or 16 hours is being recorded. There’s nothing sacred between the two of them.
As a matter of fact, for any of our colleagues who are women also engaged in this type of work, this 10 by 10 spot is not just their working place but their lunchroom and their change room. All aspects are being continually monitored during the entire run of that locomotive. In our view, that’s an invasion of somebody’s privacy.
Mr. Ashley: To add to that, my brief provides more detail on this. There are differing levels of expectation of privacy. There’s a legal test to meet the use of this technology in the jurisprudence and decisions made out of the privacy commission and through various arbitrations and court cases that establishes workers have a reasonable expectation to privacy in their workplace.
The cameras you see in banks and in stores are there for security reasons. They’ve met the test to be there to provide security against theft. They’re not there to monitor employees and they’re not used to monitor employees. These cameras aren’t in public locations. These cameras are in the confined work space of the cabin of the locomotive, with the sole purpose of monitoring the activity of employees. That is a different scope on how the privacy legislation has allowed cameras to be installed in public locations.
The Chair: Can’t you shut the camera on and off? Can’t you negotiate where the engineer who’s being recorded says, “Okay, I am changing now?” Click, and then they go and do whatever they’re doing privately. They have their lunch and then put it back on when they’re back at work. They’re not working when they’re changing. They are not working when they are having lunch.
Mr. Ashley: That’s not defined anywhere. We don’t know.
The Chair: But you could do that.
Mr. Ashley: Furthermore, like everything on the locomotive, like the black box and everything else, it will be defined as a safety appliance and you won’t have the ability to turn it on and off. It will be determined as a safety appliance and cannot be touched, altered or adjusted in any way.
Senator Gagné: I am sure my colleagues will pursue the line of questioning pertaining to LVVR and probably proactive technology.
I would like to discuss training with you. Mr. Béland Audet from the Institut en Culture Sécurité Industrielle Mégantic was here as a witness. He stated in his presentation that training plays a large and important role in preventing accidents, and that training should be standardized, certified and mandatory.
I would like to have your view on this issue. Do you think training should be regulated?
Mr. Ashley: I absolutely think training should be regulated. It is to some extent. The problem with the regulation that deals with training is that it is very outdated. That specific regulation is in need of update.
We’ve taken those concerns to Transport Canada. They’re looking at that regulation, but the railways do provide robust training programs for all running trades employees when they hire on, but there is some need for work in the regulation to tighten that up.
Senator Gagné: Should they be certified? Should it be taken out of the railway companies and offered throughout another system?
Mr. Ashley: I don’t know if that necessarily would achieve any more intent than the training that is presented now. They do have locomotive engineer certification in the United States that we don’t have here, but I wouldn’t necessarily say the training is any better there than here just by certification.
Senator Bovey: I am going to come back to the LVVR. I want to clarify what I am hearing. If it were agreed that there was absolutely no access by the railway to the LVVRs, and that the only agency that had access to them was the TSB with regard to safety, this would not be an issue.
Mr. Snow: That’s correct.
Mr. Ashley: That is correct. That has been our position since we first started discussions on this bill.
Senator Bovey: I wanted clarification of that. I have a question with what goes on in Britain. I understand LVVRs are on British trains. I am afraid I am not clever enough to know whether they’re on trains on the continent. You probably do.
I would be interested to know what access there is to the LVVRs in the instance of the railways in England.
Mr. Ashley: Actually I can’t speak to England because I didn’t get a response from them, but I did speak to the Irish regulator for the railways in Ireland who said they had no intention of using LVVR equipment. They thought it was too intrusive. They didn’t find the value of having that equipment on their trains for the information they get through regular sources.
Senator Bovey: I have heard no complaints out of the British system and have been asking. Whether I am asking the right people or not is another story.
I wonder if any of the other panellists are aware of the regulations and laws around LVVR in England.
Mr. Snow: I couldn’t tell you. I don’t know what they are in England. Initially, when these studies that took place in the ACRS committee, I know there were no other railways that had adopted LVVR.
Going back to one of the earlier questions in the panel, there are railways in this country right now that have voluntarily installed LVVR. To my colleague’s points, you cannot touch that piece of equipment. You would be subject to discipline and discharge. You can’t turn it on and off.
The Chair: You could if it was agreed upon. If you turned it off, the railroad would know you turned it off.
Mr. Snow: Again, our position is that with the way the bill is drafted now we don’t have any insurance of that nature.
The Chair: I understand that.
Senator Bovey: This is just a yes or no. Is anybody aware of what’s going on, on the trains on the European continent? Are there LVVRs?
Mr. Snow: Not that we’re aware of.
The Chair: We could ask the Library of Parliament to get information for the next meeting.
Senator Bovey: We should look into that because I think there are many aspects of this bill that tie into that.
Senator MacDonald: I want to go back to the way we run trains in Canada compared to the way they are run in the United States. We operate under an integrated, cross-border system. Trains are coming across both borders.
I am intrigued that positive train control is now mandatory in the U.S. I am curious how much you have brought this matter into discussions with the Canadian government. Why is there such reticence in adopting or embracing that in Canada when PTC obviously prevents accidents as opposed to looking at what occurred after an accident has occurred.
I am curious. What sort of response have you got from CN, CP and the government when it comes to this issue?
Mr. Snow: These discussions took place during the recent railway safety review. From the union’s perspective, we believe this technology would assist in proactive management for safety. However, as I said in my presentation, the companies are absolutely opposed to it primarily because, we believe, of the cost to install.
Senator MacDonald: Do you have any idea of the cost of installing this in Canadian service? It must be substantially more than the United States to install it in terms of cost.
Mr. Ashley: We don’t have the exact cost, but it would be in the hundreds of millions of dollars. The ACRS committee, the Advisory Council on Rail Safety, had a working group to explore positive train control systems here. There are concerns because the railways here don’t have the same density. They’re so vast and remote in some places that it’s cost prohibitive for the companies.
A lot of the concern was from the smaller railways and short lines absorbing the costs. The two major carriers are already implementing positive train control technology into their systems in the U.S., so they would be more likely to expand that into Canada than the smaller rail companies.
Senator MacDonald: They are required by law to do it in the U.S. and that’s why they are doing it.
Mr. Ashley: Yes, but their fleet is interchangeable, so they will have that technology already on the locomotives.
Senator Manning: As I am sure we’ve heard from other witnesses, and I am sure we’re all concerned about safety, but I have a concern about the erosion of privacy.
In the development of this bill, what consultation process was held with any of your groups from a government perspective on the proposed changes coming forward?
Mr. Snow: The only consultation we received was a breakdown of the LVVR aspect of the bill by Transport Canada as well as, again, a consultation by the Transportation Safety Board.
Unifor didn’t have the opportunity to give input. We were just given a brief.
Senator Manning: After the fact.
Mr. Snow: After, yes.
Senator Manning: Anyone else?
Mr. Ashley: We participated in some discussions with Transport Canada and presented our position, but we were basically told it wasn’t really a consultation. It was more information provided to us that this is coming.
We also had a meeting with the TSB saying that this is coming. Again, it wasn’t really a consultation. It was more of an information session for us. We also participated in the safety study that the TSB did on the equipment. However, I don’t know if I can comment on it.
The Chair: You can say whatever you want.
Mr. Ashley: I was part of the safety study and signed the privacy agreements. The safety study was more geared to which technology would be most effective, whether it was video voice or a combination of video voice, and what parameters had to be on that equipment as to its usefulness. It didn’t really dive into what could be achieved by having that equipment, so it was a little misleading.
Mr. Yussuff: It was after the fact. Fundamental questions still come back to how this will enhance rail safety. The TSB is unable to answer that question. If you can ask somebody under the blue sky what they would like, there are a lot of things they would like.
What is necessary to improve rail safety? The department has yet to tell us how this will improve rail safety. The data currently collected in the black box provides enormous information with regard to accidents or incidents once the TSB chooses to use that information to investigate.
It is not yet clear what this new LVVR will do to improve rail safety. If you look at the sheer volume of incidents happening in the rail industry there’s no demonstration, this will improve rail safety one iota.
There is also one misnomer that somehow it has been presented that the workers who work in the railways don’t give a damn about rail safety. It is quite the opposite. It is our members who die on the front lines if a train should derail. There is no regard that we care about safety. Of course we value safety.
There is so much information currently collected, but the department is unable to provide how this will change or improve rail safety. This information should be provided in the legislation right now.
Senator Manning: I would find it difficult to believe the engineer at the front of the train wouldn’t be worried about safety. I find that hard to believe.
I am trying to find what suggestions can be made. I understand from what has been said that the information gathered would only be common to the confines of the TSB.
Even if we agree to that as an amendment from our committee, the information is collected in the locomotive. I just don’t understand. I don’t pretend to understand. How would you guarantee that protection, even though we can say here that only the information gathered through the process of an investigation into an accident would happen?
The information is gathered. We have this cross-border issue that they talked about earlier. I am wondering what mechanism you would put in place that would guarantee the information collected would be kept private. Even if we agree with the suggestion put forward, I still have in my mind a grey area of how you keep that protected.
Mr. Yussuff: The law should be very explicit that only the Transportation Safety Board should have access to the information and no one else. To do so would be illegal. The railway company takes it or it ends up in U.S. hands when they are not entitled to do so. Once the train crosses the border, you press a button like you do on an airline right now and it starts over from scratch.
Mr. Ashley: The data could be encrypted. There is a lot of encryption technology. The TSB could be the only ones with the encryption key to render the data useful. In aviation they have the ability with some of their equipment. Once they have clearance they had a clear trip free from incident, they have the ability to scrub the data and then the recorder starts over again.
The Chair: How difficult would this process be? If they were receiving videotape at the National Transportation Safety Board from every railroad trip every day, how many tapes would that be? How much information would that be? I shouldn’t use the word “tapes.” You don’t need tapes. How much information would they be receiving? How could they even look at it? It would be hundreds for the day.
Mr. Ashley: I am sure they wouldn’t be getting every train for every trip. Of course, they would be getting stuff on a reportable incident that they need to investigate. As for random, they could select or request specific trips for that.
The objective would be to have it on a loop that erases itself after a period of time. If there is no incident, there is need to view the data, right?
The Chair: I don’t know. I am asking you. It would be like an audit. Is that what you are suggesting?
Mr. Ashley: Yes, a random audit.
The Chair: They wouldn’t be getting all the information. They would just be getting the audited information that’s important.
Mr. Ashley: Right. Then that limits the amount of privacy information that could be potentially leaked or misused. Then it would only be to the TSB, which has safeguards in their legislation to protect the privacy of that information.
The Chair: Are you not worried about the National Transportation Safety Agency if you are talking about privacy issues such as people changing and all that stuff? Are you not worried about that stuff being sent over to a government agency that has no responsibility to anybody?
Mr. Yussuff: We can hold them accountable if they breach the law. They can go to jail for doing so.
The Chair: Can’t you hold the railroads accountable?
Mr. Yussuff: You had them before your committee. Did they give any indication they were going to live up to their responsibilities?
The Chair: Yes.
Mr. Yussuff: I think it is a fundamental difference as to how the railroads see and use this information. They see it in a very different light versus the need that it should be only used in regard to safety in the investigation of an incident or an accident, not for disciplinary purposes. That’s the fundamental difference we have in regard to the railroad view of this data versus the National Transportation Safety Board.
The other side is that the National Transportation Safety Board contracts out their responsibility to the railroad companies in regard to public safety. They should not be doing that because it’s easy to let the railroad investigate an incident rather than the National Transportation Safety Board doing their job because they said that they can trust this body to do the investigation.
Yes, sometimes there needs to be a joint investigation, but the Transportation Safety Board should be taking responsibility for its own commitment to protect public safety and no one else.
Senator Manning: I am going back to a question that the chair asked earlier. Given the scenarios of cameras at banks, cameras on us in here and everywhere, the fact is that a conversation between two people standing in line at a bank is not recorded. The cameras are there for security reasons.
We go back to Supreme Court decisions that have been made in the past where employees have a legitimate expectation of privacy. I have a concern of safety and I have a concern of people’s privacy, especially if you are working from 8 to 10 or 12-hour shifts. We all say things in the run of a day that maybe we didn’t want the world to know that we said them.
My concern is how we protect the privacy of individuals at the same time as protecting the safety of the people on that train. I am not comfortable with some of the things in the bill that give me a level of satisfaction that safety is the number one concern. I fail to see that in some parts of the bill that have been put forward so far.
I am looking for someone to give me some idea. I am concerned by the lack of consultation with people that represent 25,000-plus employees, if my numbers are correct, and the lack of consultation with your groups versus the consultation that seemed to be held with other people who have come forward to us here. In Newfoundland and Labrador we say it’s the tail wagging the dog because it seems to be a bit of a situation.
Could I hear from either one of you on the fact that when you open a door to allow LVVRs in the cab, the door is open? Are you aware of any other jurisdictions in the world that use this technology that we could go to, to get the best practices from and learn from, as Senator Bovey mentioned earlier? I haven’t heard of others. Is there anyone who can come forward?
Mr. Snow: No. If it was that universal, you would have heard it by now. I would also like to comment that of the two large railways, one is poised and has cameras in every facility which are presently cloaked. They are waiting for this type of opportunity and this erosion of privacy to expand and monitor every employee, every single day. That’s unacceptable to us, senators.
Mr. Ashley: To expand on what Mr. Snow has said, in the railway we already have forward-facing cameras on every locomotive which capture everything that happens outside of the front of the cab. We also have cameras on poles in all the yards that monitor the yards. The expectation of privacy doesn’t exist in those public places. We know they’re there. They’re there for a purpose.
In the cab of a locomotive you are talking about capturing a crew that is there for 12 hours, everything they do and everything talk about. We hear about fatigue in the rail industry. A lot of fatigue countermeasures are conversations with your crewmates, alertness checks and such. That will no longer exist. We have senior employees and junior employees that may question each other’s judgment or application of a rule. That conversation will not exist if it’s videotaped. They will not incriminate themselves.
I think the detrimental effect of this in the cab of the locomotive will be far greater than the potential benefit from this technology.
Mr. Yussuff: Currently you have voice recording on the trains already. Engineers talk to each other on a consistent basis, and that is there for good reasons. The public needs to be assured this information is there to ensure that if there is an accident or incident the Transportation Safety Board can have access to that information.
We learned from a previous accident that took place on VIA Rail that this was something that was lacking. The first people came forward and said, “Hey, we want to work with the department to ensure they have access to voice recording on the locomotive.” They did not oppose it because we have that, of course, already on airlines. Pilots do it all the time. It’s a normal thing.
The department has yet to produce any study on how this is going to improve rail safety. Not a single proposal has been put forward. We would like to have it, but besides that have you done a study? Have you actually sat down and said, “How will this really improve the safety of railways in this country?” More important, maybe that’s one of the things that can be done. Maybe we could take this out and say to the department, “Maybe you need to conduct a long-term study to see the viability of this technology and how it will improve rail safety.” If it’s not going to change anything, why are we doing it?
By the way, we do have laws in this country to restrict and protect people’s privacy. There is legislation provided. The Privacy Commission has come here and made their own presentation, so we don’t have to speak to that. I think we’re coming from a perspective that we value public safety. Our members value the job they do on behalf of the railway.
We don’t think this technology will change one thing with regard to improving the safety of the railway and, plus, it will invade the privacy of workers.
Senator Manning: Is there any other jurisdiction that you’re aware of in the world today that uses this technology that we could reference as a committee to learn best practices from?
Chris Roberts, National Director, Social and Economic Policy, Canadian Labour Congress: We will certainly do our best to find those best practices and provide them to the committee.
Senator Mitchell: My first question is with respect to the analogy that people are drawing to airplanes. You are saying that somehow voice recordings in the cockpit of a locomotive would be detrimental. The logical extension of that would be to take voice recordings out of the cockpits in discussions on airplanes.
Mr. Yussuff: I am saying quite the opposite. I am saying we recognize there is value in voice recordings in the locomotive. At one time that didn’t exist. Now it does exist and it’s in the black box.
Senator Mitchell: It’s only voice recordings of external conversations. It’s not internal, among the workers. The logical conclusion of what you are saying is that we should take it out of airplanes because the junior officer might be restrained from saying something because they are being recorded. We have had them for decades in airplanes, and I don’t think you would want to argue that.
Mr. Ashley: No, and I am not arguing that. We’re saying that is fine because that’s currently under the Transportation Safety Board Act now. I know you heard, I think it was, the deputy minister say that this has been in aviation for years, and there is no protection on that equipment.
I talked to my brothers and sisters at ALPA, and they said, “Of course it’s protected. It falls under the same protection of privilege that you are seeking under section 28 of the TSB Act.” The data is privileged data. We’re saying that we expect the same. We expect the same. They don’t have expanded use of the data. It’s protected by the TSB, and we want nothing different.
Senator Mitchell: But the train companies get the black box data now.
Mr. Ashley: They do but that is not intrusive. That doesn’t have personal information on it, personal information of images and conversations. That is the speed of the train, the brake pressure, when the brake was applied and where the train is. We’re saying that’s fine. We are not objecting to that. We are saying it already exists. A lot of that takes away the need for what they are seeking now.
The Chair: It is like radio and TV.
Mr. Ashley: Right.
Senator Mitchell: On the argument that there isn’t precedent for this, there is. Metrolinx is using it in Ontario right now and it’s being used in the U.S. right now. If I could go one step further, the PTC case hasn’t been working for Amtrak, but maybe it’s just not adequately applied yet.
Mr. Ashley: Metrolinx is using it right now. They’re using it under the current law, with which we agree. They can’t access the data. They are not viewing the data or monitoring their employees. They are capturing the data. If there is an incident, the TSB will have access to the data only.
We’re saying that’s fine. Metrolinx is using it and they’re abiding by the current law. CN and CP both have some equipment with that technology installed on it. It’s protected under the current law. We’re saying the current law is the way it needs to be protected.
They do have it in the United States, and in the United States they have no privacy legislation. They don’t have the same protections that we as Canadians have here. I can tell you because my union is part of an international union, and hat international union represents rail workers in the U.S. It’s not being used in the U.S. the way they are saying it will be used here.
At least one of the major carriers in the U.S. does use it for employee monitoring and has issued discipline for minor policy infractions unrelated to safety. That’s where a lot of our concerns come from. It is from talking to our counterparts in the U.S. where this is ongoing now.
None of our professional Canadian railroaders hired on to the railway to have fewer rights than regular Canadian citizens, and we are asking that you protect their rights.
Senator Mitchell: With respect to protection, you haven’t really addressed the fact that there are a number of ways to address a grievance or to address a problem.
First of all, you have a grieving process.
Second, there are huge fines for companies that would misuse this: $50,000 for an individual and $250,000 for a company that would misuse it.
Third, I understand your unease about regulations, but the regulations will follow and you will be consulted on that regulatory process. It’s not like the unions are weak. You are significant, powerful unions, and you have significant, powerful impact on the management of your own railroad. It seems to me there is lots of redress if this information were ever to be misused. You are not completely vulnerable to that by any means.
Finally, I would say that a lot of your argument is premised upon the idea that government should be responsible, that TSB should be responsible for safety. Do we really want to have a railway system where we absolve the management of the railway companies of its responsibility for safety? The companies will be responsible for safety right up to this point, but not up to this point. I mean I don’t want to have a company running a railroad that is in any way limited in its responsibility for safety and that government would somehow be better at doing that than them, particularly if they are doing it in parallel or if they are doing it at the same time.
Mr. Yussuff: Let me make two points. First of all, we’re simply saying that this legislation was sloppily drafted by the drafters. I think your job, as senators, is to say, “We have enough presentation that makes that point. The government should fix the legislation.” That’s what the Senate is here to do. We are not trying to tell you to do anything else but that.
Second, yes, the railway companies have a fundamental responsibility to operate the railways safely, but when there is a breach in that it is the Transportation Safety Board’s responsibility to investigate and do what is necessary to ensure they meet that requirement.
Our members understand that the Transportation Safety Board is an independent agency to protect the public interest. We’re not saying that railway companies don’t have a responsibility to operate safely. When there is a breach, it is their job to investigate and use the collected data in an adequate way to ensure the rights of employees are protected and to ensure how to fix it and to make sure it doesn’t happen again.
I think that’s a basic responsibility, but that’s not to say the railway companies are absolved of safety. Of course they have a fundamental responsibility for safety.
Senator Mitchell: There is a public interest in safety as well, you’re saying. One thing that is being forgotten also in this debate in the last 45 minutes is the idea that somehow we are discounting the importance of proactive use of information.
You are quite happy with having the information used after the fact of an accident, but the logic of it is that we would want to know if there are systemic things occurring so that we could, therefore, avoid or prevent accidents. It seems to me to be a fundamental, logical premise of safety in operating some pretty intense and significant equipment.
Your concern is that it might be misused but, if you look at this act, I don’t agree with you that it has been written poorly. I think it has been written very tightly. The act is rigorous about how it will restrict the use of any of the data. It will be encrypted and it can’t be accessed arbitrarily by the company. It isn’t real time streamed.
Finally, on the idea that once it goes over the U.S. line it is a problem, how often has that been a problem with airlines? Thousands of airlines go over thousands of borders every day.
Mr. Snow: All the data gets erased. Once they have tied up at the terminal and it has been concluded there has been no incident, all the data is scrubbed. It’s gone. Presently, the way the legislation is drafted, the companies will have access to it on a random basis. We don’t think that will lead to any proactive approach of management.
With regard to grievances and the power of the unions, we’re speaking on behalf of thousands of members expressing our concerns on privacy issues that we believe you have the power to change. As far as grievances go, when I first came back into rail about 10 months ago in this position I was faced with 1,400 cases that were registered for arbitration with one company.
We don’t have a lot of opportunity because the right to grieve has taken away a proactive way of dealing with these issues.
Mr. Ashley: When we talk about proactive, the TSB has the ability to do those proactive random audits now. When you say you want the government to have the ultimate responsibility for safety, who has the ultimate responsibility for all Canadians? It is the government, and they should have it.
We’re not saying to absolve railways of their obligations under safety, but we’re saying when it infringes on something as fundamental as privacy rights there needs to be some protections around that. The best people to protect are the government, the TSB. They have had these protections for years and they are the best ones to handle that.
You talk about remedies for violations. Tell that to an individual that has had their privacy rights violated and the humiliation and everything else. You can fine the company but you can’t fix that individual. You can’t take that back or rewind the LVVR tape, as such.
Senator MacDonald: I guess it’s fairly obvious that Senator Mitchell and I completely disagree on the approach to this in principle. We talk about a proactive position to prevent accidents. Again, the PTC technology is a proactive way of approaching this. Sure, it’s costly, but if you ask the people who saw the centre of Lac-Mégantic incinerated and the families who lost 47 members what cost they would pay to undo what was done there, I am sure the costs would be more than justified.
If this is the technology of the future, why are we waiting 20 years to implement it in Canada? It should be done now if this is the way things are going. Send something out into cyberspace, anything. Say something that’s a little radical and send it out to cyberspace and try to get it back. Good luck. Once it’s out there, it’s gone and you will not get it back.
I don’t care if it is encrypted or who is in charge or supposed to be in charge of privacy of it. I don’t trust government with any information. I don’t trust these promises that we’ll protect your information because in the end somebody can get at the information.
To me it’s a principle of privacy. It is a slippery slope. If I thought there was a large return on LVVRs in a cab, then maybe they could do something in terms of encryption. I think the return, what they would glean from this information, would be so marginal over the long run that it would not justify the compromising of people’s privacy rights.
The Privacy Commissioner was here. He made it clear to us that this was a very broad intrusion into privacy rights. There were two small, narrow intrusions. As I said to him that day, how many intrusions do you make in the privacy act to the point where it eventually becomes meaningless and you have no privacy act? You have to draw a line somewhere, and I am strongly of the opinion that we should draw the line on this.
The Chair: I am not sure if he’s testifying with you, but I think he wants you to comment, so please do.
Mr. Yussuff: The one area where I think senators would be very helpful is that railway safety is fundamental for our members. They are on the railway every day. They carry millions of freight across this country. They value what they do. They don’t want a derailment to happen. Nor do they want to compromise their responsibility on a train and lose their life. They are the first to go, by the way. When the cabin goes they are the first to go.
Not once has there been recognition about the fundamental role the workers play in the safety of railway. It’s true that legislation can improve lots and voice recording that went on the railway has added a new dimension for the Transportation Safety Board to use in regard to the investigation of accidents and incidents.
This is very intrusive. What the department has not been able to demonstrate is how this will improve rail safety at the same time as compromising the privacy of workers in the process.
We are not the United States. We’re Canada. There are fundamental differences about how we see things. We have a Constitution. We have a responsibility to ensure we don’t simply shirk our responsibility. This is the moment to say to the department they didn’t get this right. Perhaps they want to sit down to talk about how we can study this to demonstrate to workers that there is some value in this technology. Every day our members go on the front line working with the railways. How can we improve the railways that are operating on a day-to-day basis?
They do it without someone holding a gun to their head. They do it because they care about the safety of the railway on a day-to-day basis. I concur with what you’re saying. More important, I think this is crossing the line. You don’t need to hear from us. The Privacy Commissioner came before you have and told you. We’re simply repeating the same thing. I think there is a way to fix this bill to allow it to do what the government would like it to do but not intrude on the privacy of our members.
The Chair: We will suspend and go into a very short but important in camera meeting.