Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 2 - Evidence

OTTAWA, Tuesday, November 25, 1997


The Standing Senate Committee on Transport and Communications, to which was referred Bill S-2, to amend the Canadian Transportation Accident Investigation and Safety Board Act and to make a consequential amendment to another Act, met this day at 4:20 p.m. to give consideration to the bill.

Senator Lise Bacon (Chairman) in the Chair.

The Chairman: Senators, I wish to welcome Mr. Bob Ballantyne, President of the Railway Association of Canada.

Mr. Bob Ballantyne, President, Railway Association of Canada: We appreciate the opportunity to make the views of the Railway Association of Canada on Bill S-2 known to the Senate committee. The RAC is the trade association of the railway industry. Its membership now numbers 41 railway companies. Our membership is continuously growing. Six new railway companies have been formed which have not yet joined the association, but we expect them to join in the next few months.

The RAC is the focus for the industry's collaborative efforts to ensure that all railways in Canada, whether federally or provincially regulated, follow industry-approved safety procedures and practices. On safety issues, the RAC maintains close liaison with the Transportation Safety Board, Transport Canada, both the Railway Safety Directorate and the Transportation of Dangerous Goods Directorate thereof, and also with the appropriate provincial agencies with regard to those railways that fall under provincial regulation.

The Transportation Safety Board usually makes its recommendations to the Minister of Transport, but on several occasions it has made recommendations directly to the RAC.

Canada's railways have conducted thorough and professional internal investigation of accidents and have always cooperated with those government agencies that have had responsibility for investigating rail accidents on behalf of the public interest. We continue a high degree of cooperation with the TSB. As part of this program of cooperation, we arrange for site visits for TSB board members and staff, we meet on a semi-annual basis to discuss issues of mutual concern with TSB staff, and we also meet with TSB people on an ad hoc basis related to specific accidents and incidents.

It is in the public interest and in the interests of the carriers that accidents and incidents be investigated with a view to improving railway safety. It is also in the public interest and the interests of the carriers that accidents be investigated by an agency that is independent of either the carriers or the government departments responsible for regulatory oversight. The TSB fills such a role and does so with skill and professionalism.

We do not always agree with the findings of the board. In this regard, the railway companies are forceful in presenting their views where there are disagreements with TSB conclusions. However, the independence of the TSB is central to its role and its success.

In this submission we will limit our comments to those issues that relate to the railway industry. We will comment specifically on clause 4(2) related to full- and part-time board members, clause 8 which repeals the provisions for a board quorum, clause 11 related to the authorization of the board to enter into agreements with the provinces, and clause 15(3) related to the protection of representations made to the board.

Our main comments will, however, relate to the omission of any role for the TSB related to interprovincial and cross-border commercial highway transport, which includes both trucks and buses.

Dealing first with clause 4(2) and clause 8, the RAC has no concern about whether board members are employed on a full- or part-time basis. It is important that board members be available to carry out their duties on a timely basis. If that can be done by part-time members, this would appear to be cost-effective approach to the review and publication of TSB reports. Whether full or part time, it is our view that board members are crucial to the success of the TSB. It is important that they be independent of TSB staff when it comes to reviewing the findings and developing recommendations; that they maintain a high degree of objectivity; and that they be appointed based solely on their knowledge of, and expertise in, the transportation industry.

Clauses 4(2) and 8 do not make it clear how the board will carry out its functions. It appears that the chairman or any other individual board member could solely carry out board functions. It is our view that it would be preferable to retain section 12(2) of the act, which requires a board quorum of three members, so that the final authorization of TSB reports and recommendations is not left to the judgment of only one person. In summary, the RAC has no objection to clause 4(2) of Bill S-2 but recommends that clause 8 of the bill be deleted.

I will now turn to clause 11 of the bill, which deals with agreements with provinces. Transportation operates interprovincially and internationally on an integrated basis and it is important that there be consistent treatment across political jurisdictions. We have, in the past, encouraged provincial agencies to enter into agreements with the appropriate federal agencies and to adopt federal statutes and regulations. The amendment made by clause 11 will facilitate agreements between the TSB and the provinces with regard to rail, air, marine and pipeline modes. In summary, the RAC supports this amendment as far as it goes.

Clause 15(3) deals with protection of representations. It is fundamental to the TSB mandate that they uncover all possible facts and all relevant information in the course of an investigation. Only in so doing will they be able to prevent recurrences and, thus, improve transportation safety. The amendment proposed in clause 15(3) will afford greater protection to individuals and will thus encourage people to be more forthcoming with the facts.

The proposed new section 24(4.4), as proposed in clause 15(3) of Bill S-2, would limit the ability of railway companies to use these privileged representations in normal company disciplinary proceedings. While in most situations statements would be taken by company officers before any employee subject to discipline had made a privileged representation, there may be instances where such information would come to the company's attention only when representation was made to the board. It is the view of the railways that they should have access to such information for disciplinary action. In summary, the RAC supports this amendment but recommends that the word "disciplinary" be removed from the proposed section 24(4.4).

The main portion of my submission relates to issues concerning commercial highway transport. From a railway perspective, there are two issues of concern here: one is public safety; the other is modal equity. The federal government is responsible for all interprovincial and international transportation under our Constitution. This responsibility with respect to commercial highway transport was delegated to the provinces at a time when most trucking was local in nature and before the great post-war highway construction programs. The conditions at the time of the federal delegation no longer exist, and in some areas -- certainly safety -- it is time for the Parliament of Canada to take back the responsibility.

With deregulation in recent years, trucking has become more continental in nature and rigs of the large Canadian and U.S. truckers are now seen all over the continent. In addition, ease of entry and exit means that there are a large number of owner/operators in this business, many of whom have neither the knowledge nor the resources to maintain their vehicles to an appropriate level of safety.

To give some idea of growth compared to the railway situation, consider that railway freight traffic was at an all-time high in 1996, yet rail's share of rate revenue has declined from over 80 per cent in 1955 to under 40 per cent in 1995. While our traffic has grown, the trucking traffic has grown at a substantially higher rate.

With respect to truck safety, we will focus only on those issues that relate to TSB activities and whether that board should have a role in investigating highway transport occurrences.

To give you some idea of the problem, I will introduce a few statistics. In 1995, 3.5 million commercial vehicles were registered in Canada. These include not only big trucks but also small trucks and buses. In recent safety blitzes in Ontario, approximately one in three tractor trailer trucks stopped under safety blitzes were found to have a serious safety defect. Such unsafe performance in the other modes of transport would never be tolerated by the regulatory authorities.

According to Canadians for Responsible and Safe Highways, CRASH, there were 578 fatalities in Canada involving big trucks and approximately 12,000 injuries, from a total of 3,347 road fatalities and 241,800 injuries.

To put that into perspective, the table that is contained in our brief shows that the total number of fatalities in Canada as a result of big truck accidents was twice the number of fatalities of all other modes of transport combined. If you look at the number of injuries, 265 to 12,000, they are not even in the same ballpark. Approximately 117 of the 120 fatalities associated with railways were road-rail crossing accidents and trespasser accidents.

Twice as many Canadians were killed in big truck accident in 1995 as in all other modes combined. These statistics show that in terms of public safety, society's resources are not being appropriately allocated to where improvement is most needed. Those modes where movement is centrally controlled and where public access is largely limited are subject to safety regulation and TSB investigation but the mode that shares public thoroughfares is not.

The rail and aviation modes are, by regulation, required to have in their vehicles black boxes that monitor vehicle performance and handling characteristics. By law, the TSB has access to the data contained in these event recorders. There is no comparable requirement for big trucks. Public safety in Canada requires that the TSB mandate be expanded to include interprovincial and international commercial highway transport. In terms of modal equity, this has both safety and economic consequences, and they are intertwined.

There are a number of issues that tilt the playing field in favour of the highway carriers. One of these is the oversight of safety and investigation of accidents and incidents. Canadian railways are among the safest in the world and are subject to substantial safety regulation and investigation. The comparable oversight of trucking varies from province to province and enforcement is neither rigorous nor consistent. Anyone who has shared the highways with big trucks has firsthand experience that their drivers do not comply with highway speed limits. Clearly, the risk of being caught and the severity of the penalty are no deterrent to the truckers' chronic disregard of speed limits.

In the rail mode, trains are equipped with black boxes. These black boxes house recorders that keep track of speeds, as well as other vehicle handling activity. That data is available. Because safety oversight is so lax in the highway mode, this has an influence on the relative costs of the two modes. Artificial cost advantages of the trucking mode are factors in diverting freight from rail to road.

Truck transport is important to Canada and has a place in the transportation spectrum. But is society well served by diverting substantial amounts of freight, including dangerous commodities, from rail to truck? Is society well served when the TSB has no mandate to investigate accidents in the mode that kills more people than all others combined? Is society well served when traffic is diverted to a mode which contributes so much to fuel consumption, air pollution and road congestion?

In summary, the railway industry supports Bill S-2 as far as it goes; but it is our view that there is a major gap in the role of the TSB in that interprovincial and international commercial highway transport is not included. We do not underestimate the difficulties in expanding the TSB mandate. It is our understanding that this is within the constitutional authority of Canada but we realize that it would require discussion and the cooperation of the provinces. It is also evident that the TSB would require an increase in resources to undertake this responsibility. Nevertheless, we think that these are insufficient reasons to delay making changes to the TSB mandate.

Bill S-2 contains revisions allowing the TSB to enter into agreements with the provinces related to rail, aviation, marine and pipeline. These revisions provide for appropriate financial arrangements between the provinces and the TSB. Perhaps this could provide a model for negotiating an agreement with the provinces for commercial highway transport.

The RAC strongly recommends, in the interest of public safety and modal equity, that Bill S-2 be amended to include interprovincial and international commercial highway transport in the TSB mandate.

I would be pleased to answer any questions that you may have at this time.

The Chairman: Thank you.

Senator Forrestall: First, I wish to thank you for a thoughtful presentation. It is very helpful to us.

Could we start with your very bland statement, which surprised me a bit, namely, that the RAC has no concern whether or not board members are employed on either a full- or a part-time basis? It would be important that they are available to carry out their duties on a timely basis.

I have a concern that going from full- to part-time members is taking us away from a capacity to deal with the responsibilities that this board will have somewhere down the road. The term "part-time members" is a statement that is a far cry from the level of participation that Canadians want from their regulatory and investigative authorities in Canada.

You are going about this in a backward way to achieve something else. Could you let us in on your thinking with respect to your conclusion that it does not matter whether the members are full or part time?

Mr. Ballantyne: It is certainly important that the members have the right qualifications and that they be available when they are required. Perhaps I am not familiar enough with their day-to-day activities in terms of whether they really need to be there day in, day out.

Over the past four or five years, some board members have resided in other parts of the country. In fact, my understanding was that they were operating somewhat on a part-time basis and that they came to Ottawa when required to deal with the various reports and recommendations that were being put before the board by the TSB staff.

Senator Forrestall: Are you familiar with the system in the United States?

Mr. Ballantyne: I am not familiar with the details of how the NTSB's board members actually operate, but I know something about the NTSB.

Senator Forrestall: Of 2,600 air incidents, the Transportation Safety Board looked at 100. If someone were to ask me how I would describe a board that acted like that, I would not describe it as an investigative board or a transportation safety board. It is at arm's length. It is an academic adventure involving the findings of highly skilled technical and professional people out in the field looking at the incidents presumably ordered by this board. It is my belief that a member of the board should be a member of every investigating team out in the field. I believe very strongly in that and some day we will come to that finding.

Staying with what we have now, though, that depth is not possible with three or four part-time members and only one full-time member. You cannot even begin to investigate the accidents. All you are doing is reinforcing the academic view that, given 17 different conditions, you are likely to have a disaster. Would you comment on that view?

Mr. Ballantyne: There is obviously a philosophical underpinning which you bring to your question regarding the role of the board members and their relationship to the staff.

Most investigations of transportation accidents require a high degree of technical knowledge to discover the facts of the accident. Skills are required in engineering and physics and chemistry, as well as in other areas. It has always been my understanding that the board members take the technical results as described by the professional accident investigators and provide an oversight, a broader view, taking into consideration other issues related to the incident. However, the board members are not to be quite so focused on the technical issues and on the technical causes of the accident.

If it is their role to provide that kind of dispassionate oversight, then there is something to be said for keeping some separation between the board and the professional accident investigators.

Senator Forrestall: Then you would not attach the same level of importance to investigation; selective investigation perhaps, but not a general, broad investigation?

Mr. Ballantyne: Under the existing TSB legislation, the purpose of investigating the accidents is not to find fault, not in any legal sense. Rather the purpose of the investigation is to determine the cause of the incident so that future safety can be enhanced and improved.

The board and the professional investigators will not necessarily investigate every accident. They investigate accidents where it is judged that there are some safety lessons to be learned.

It is our view that it is extremely important that all accidents be investigated at some level. Whether that necessarily entails an investigation by the independent accident investigator is another matter. Every accident is tragic and every accident is important. For example, in a level-crossing accident, there may not be much to be learned if it is determined that simple inattention by the motorist caused the accident, but it is important that all accidents be investigated as thoroughly as required. That does not necessarily require the board members' involvement. That may be where we have a difference of opinion.

Senator Forrestall: Where does the public disposition come from if it is not covered by the board? I have difficulty reconciling the two matters.

We have heard some pretty damning testimony with respect to the board and I would like to correct it. I do not like to leave it standing. I am one of the people who fought hard to separate the regulatory body from the investigative arm.

I am pleased to see the thoughtfulness which has gone into your paper. I am struck by your concern for interprovincial matters and the suggestion that perhaps now is the time for Parliament to take another look at these matters in concert with the transportation ministers and to nurture some areas where it is impossible for the provinces, either independently or jointly, to act. I am pleased to see that. Coming from your voice, this certainly carries weight.

The Railway Association of Canada is to be commended for their very high standards of work, as we have seen in our subcommittee. They have achieved a high degree of excellence in recent years.

Senator Roberge: Mr. Ballantyne, would you not feel more comfortable with having dedicated, efficient, full-time members? It seems to me that part-time members would have less hands-on experience and less dedication to the subject-matter.

Mr. Ballantyne: The more that people are involved, the more their experience will grow. There is certainly something to be said for that. As their experience grows, their judgment will be become better. To that extent, in full-time work, their experience would grow that much faster.

We are more concerned about the qualifications of the appointed members than whether they are full-time or part-time members.

Senator Roberge: If we are going to be making amendments to this bill, perhaps we should make an amendment that we should have more full-time members than part-time members, based on that response.

You have an interesting point about the quorum. It is important that a quorum not be subject to one individual's judgment but be subjected to a group judgment.

Mr. Ballantyne: Yes.

Senator Roberge: That point is well taken.

You made some comments about encouraging the Transportation Safety Board to enter into agreements with the provinces to investigate railway accidents. To your knowledge, have there been any discussions or final agreements reached?

Mr. Ballantyne: Yes, there have. As far as I know, there is an agreement in place between Ontario and the TSB. I am not absolutely certain, but there have been discussions and I think they have reached the stage of agreement. The Ontario legislature passed the Shortline Railway Act in 1995 which facilitated, from a provincial point of view, entering into agreements between the provincial agencies and Transport Canada for safety regulation and, also, to some extent, with the Canadian Transportation Agency on the economic regulation matters.

There may also have been discussions with some of the other provinces as well, but I am not sure exactly where they stand.

Senator Roberge: Madam Chairman, is it possible to get some information from the ministry about those agreements or discussions?

The Chairman: Yes. We will follow up on that question.

Senator Poulin: Thank you very much for your excellent presentation and for sending in your brief early enough so that we could read it before coming to the meeting.

My question is a follow up to the question of Senator Forrestall. If I hear you correctly, you are advocating a certain independence between the appointed members and the public servants who form part of the staff of the board. Based on your experience, could you give us an example of the process? When the accident happens, what happens?

Mr. Ballantyne: As far as we are aware, the staff investigators will carry out their investigation, they will complete their findings, and they will prepare a draft report. Ken Johnson, the executive director, takes the draft report to the board, and the board reviews it. The board then either sends it back to the staff, or it makes amendments or ask for clarification.

When the board has agreed, they will send a copy of the draft report to the principals who are involved in any accident, but without the recommendations, to ensure that all factual information has been properly covered. In other words, the draft report that is sent to the principals involved does not contain any TSB recommendations. It may contain conclusions but no recommendations. The report is then returned to the board, at which time they will make their final conclusions. The board will either confirm the recommendations or make some changes.

Senator Poulin: Is it traditional to have a meeting between the board members and the principals, as you were indicating?

Mr. Ballantyne: That may happen in some instances. I cannot recall any instance where a meeting has taken place between the principals and the board prior to the board publishing a report, but it would seem to me that it would make sense for there to be meetings to discuss the factual issues that have been set out in the report in its draft phase.

Senator Poulin: We know that several federal agencies are looking the possibility of having the choice of appointing either full-time or part-time members. I was led to believe that the reason for this choice is simply to widen the pool from which a government could choose specialists or experts. As we know, a member who is chosen to sit as a full-time member must, for practical purposes, move to Ottawa; whereas, part-time members can continue to reside in their region of residence, travel back and forth.

Do you feel that this choice is benefiting the Canadian public in terms of Canadian transportation, accident investigation and safety questions?

Mr. Ballantyne: If one must make a choice between whether a member is full time or part time and getting the right kind of qualifications, it is better to have part-time members with the right qualifications.

Again, among the first appointments to this board was Admiral Hugh MacNeil, the former vice chief of the naval staff, who brought a marine perspective to the job. Board members also included people with a background in aviation, the law, and so on. In my opinion, the most important consideration is to have board members with the right skills to do the job.

Senator Spivak: I am delighted that you brought up the issue of truck safety. This is a grave problem, one that is besetting Canadians at this time. In the west, where I come from, there has been a change in the grain hauling situation as a result of removal of subsidies. Consequently, there are huge trucks travelling on roads that were not built to accommodate such large tractor trailers.

The current situation is that, having taken away the subsidies for railways to transport grain, the provincial authorities are asking for subsidies to improve roads. This will not fix the situation at all.

What is your comment on the provincial ability to enforce whatever safety regulations there are now? What is your comment as to what safety regulations there are? What is your feeling as to the status of what is happening now in these fragmented jurisdictions?

Mr. Ballantyne: Like any other traffic issue, it is left to the police forces to investigate. Most police forces in Canada are stretched pretty thin and have a hard time policing the heavy trucks.

Senator Spivak: Are there no provincial boards in any province?

Mr. Ballantyne: I am not aware of any specific provincial agencies comparable to the TSB. Within some of the ministries of transport, there are agencies that will stop trucks and investigate the physical characteristics of the truck.

I was mentioning the blitz in Ontario where not too long ago one truck in three had a serious safety defect. Much of the time brakes are the problem.

Various jurisdictions do try to do what they can within the limits of their resources. However, there are other issues. There is no requirement for trucks to have any kind of an event recorder, as there is in both the rail and aviation modes of transportation. In the event of an accident, such a device would give an investigator some indication of the speed, gearing, and so on, of the truck at the time of the accident.

The safety requirements for new highway vehicles are within the existing purview of Transport Canada. In any discussions I have had with Transport Canada, they seem to feel that event recorders are not directly a safety device, as are brakes, for example. However, in my view, even recorders clearly have a role in improvements in safety.

Senator Spivak: The federal government in your estimation, even though it is delegated the responsibility, I presume, for implementation for safety inspection, still has the authority to legislate. The federal government could legislate that all trucks must have these recorders.

What capacity do you think this agency, as it is presently constituted or as it is contemplated, has to extend its mandate and to do a proper job? It seems to me that it is not just putting in place regulations; it is actually enforcing them. That is the big deal. Would the provinces not still enforce them?

Mr. Ballantyne: There are two matters to be considered here. The first is regulation or enforcement. For example, in the rail and aviation modes, it is the role of Transport Canada to carry out enforcement. In the highway mode, it is the role of the provincial authority, usually the police, to enforce highway codes. The role of the transportation board is not to enforce regulation. The role of the transportation board is to investigate accidents. Even if there were no change in the regulation, if the TSB had a role in investigating only accidents involving carriers involved in interprovincial or international transport, then that would be a start. Presumably, they would then work into a role with the provincial governments in investigating the accidents that actually take place.

Senator Spivak: Can the province not ask the board to do that now? I think we heard earlier that they can request the transportation board to investigate an accident. That is not happening.

Mr. Ballantyne: The arrangements are in place for it to start to happen in rail, aviation, marine and pipeline. I am not aware that it is in place for trucking. If Mr. Johnson made that comment when he was here, I would certainly defer to what he had to say.

Senator Spivak: How should this come about? Do you think it should be included in this piece of legislation; or should it be a recommendation that there be these sorts of arrangements in the same way that there are for marine? What is your suggestion as to how this should be brought about? I suppose it is up to the board to choose which accidents it investigates, but there are so many horrendous ones there would not be a lack of choice.

Mr. Ballantyne: They would have a great deal of choice. My preference would be to see it included in Bill S-2. This would be a requirement that the TSB would have the authority to investigate accidents or incidents in the highway mode regarding interprovincial or international commercial transport.

Senator Spivak: Is there a national trucking association which is comparable to your association?

Mr. Ballantyne: They have restructured and it is now called the Canadian Trucking Alliance. It used to be called the Canadian Trucking Association. It is an alliance of the various provincial trucking associations.

Senator Spivak: What do you think their attitude would be to such an inclusion?

Mr. Ballantyne: There is no question in my mind that they would be against it.

Senator Spivak: It would not be very popular.

Mr. Ballantyne: The same would be true with regard to the issue that there be event recorders in their vehicles. I am sure they would be against that, as well.

Senator Forrestall: As the bill is now written, it states that the board shall make recommendations based on its findings. However, the board does not find anything, it reviews. Someone else will find things. You suggested, and I agreed with you, that there should be a separation between the members of the board and the investigators. God knows that I am not one to allow any conflict of interest to raise its head anywhere. You left me with the impression that, in your mind, the investigators would be public servants and there was a potential for conflict of interest. If that is the case, it is something I have been struggling with, without even recognizing it, since the amendments first came forward some time ago. That is a reasonable assessment, is it not?

Mr. Ballantyne: Yes.

Senator Forrestall: I do not know where in my own mind I will go from here. I am unalterably opposed to the continuation. I see it now as a conflict of interest. That is why I want to change it.

Should we be considering setting up something that is entirely at arm's length and call upon them, or the present board, to make recommendations that accidents be investigated under the following circumstances, thus separating them entirely? We have the continuing problem of investigators writing reports, only to have those reports sat on or rewritten. We have evidence that a report was rewritten to such an extent that the author of the report, the individual who did the accident investigation, did not recognize his own report. I am sure you are familiar with that case. That is my concern.

I do not think we are going in the right direction. Much of what is in this bill is super, and I am pleased to see it there. It should have been there in the beginning. However, there are some other deficiencies.

Senator Poulin: Having chaired an agency in the past, I was under the impression -- and perhaps Mr. Ballantyne can help me here -- that this is what we commonly call enabling legislation. It is there for the board to function and to take on the responsibility of making recommendations and validating reports that are prepared by public servants who are simply the infrastructure of the board. Where is the possibility of a conflict of interest, Mr. Ballantyne?

Mr. Ballantyne: It is not so much a conflict of interest on the part of the public servants. In fact, Senator Forrestall made this point, and I probably should have commented on it at that point. However, our feeling is that the professional investigators investigate the accident based on their technical expertise, the results of which they bring to the board. In effect, they report up through the executive director who reports to the chairman. The chairman also has these other three, four or five board members who are off to the side and apart from his role as an administrator. It is one thing for the investigators to do their work and to come to their conclusions on a technical basis. However, if the board is not to bring some sort of broader judgment, hopefully, based on expertise, to the role of the investigators, then why have a board? If you are going to have just the investigators, then they can make a report and report up through the executive director and that is it.

We feel that there is a role for the board, which is to bring some other judgment to bear, that is outside the role of the investigators who are so close to what it is they are investigating. After all, they are human. They will be affected to some extend by what they see and what they perceive when they do an accident investigation.

It is not so much conflict of interest as their judgment. As human beings, they will certainly be affected by what they see.

Senator Poulin: I thought I heard you say in your previous statement that, because of a certain autonomy between the board members and the staff, the staff, who are very close to the investigation technically and who bring the report to this group of sober second thought, can take that step back and determine that is how, technically, an accident happened. How can we prevent such an accident from happening? How can we make sure that appropriate procedures are in place to prevent such an occurrence?

Mr. Ballantyne: I agree with that. Their role is to bring that judgment to bear. My understanding is that the board spends a lot of its time on the recommendations themselves. It is in a sense developing an answer to the question: How can we prevent this from happening again? That is what they do.

Senator Forrestall: The potential for conflict is very obvious. There are only two areas in Canada from where this adequate training and expertise can come, either from the Canadian military or the industrial base itself. We are such a small community that it is virtually impossible for anyone skilled in one of these disciplines not to know. There cannot be anything wrong with it, except that inherently it is wrong. It is up to us as legislators to remove that potential for conflict of interest. However, this is a discussion we can have at a later time.

Senator Roberge: In your view, what are the qualifications needed to be a good board member?

Mr. Ballantyne: Board members need to be people who have had some experience in the transportation industry or some branch of the transportation industry. The main reason is so that they can bring some judgment to bear on the findings of the investigators. Of course, you want people who you feel will be objective and independent, and clearly people of good judgment.

Senator Roberge: I missed the last meeting, when Mr. Johnson attended, but I find it very difficult to believe that in this area we cannot find anywhere in Canada people who could come to Ottawa on a full-time basis with experience in the transportation modes. That is far-fetched in my view.

Mr. Ballantyne: I do not know the answer to that, senator.

The Chairman: Thank you very much for your presentation and the answers to our questions.

Our next witnesses are representatives from the Air Traffic Control Association, Mr. Tony Rushton and Mr. Peter Barnacle.

Please proceed.

Mr. Barnacle, Legal Counsel, Air Traffic Control Association: I wish to apologize for not having our brief reach the members of the committee sooner. Unfortunately, there were other claims on our resources, because we are in the middle of collective bargaining with NAV CANADA, and have been for the last number of weeks; so we did not have time to get everything together as quickly as we would have liked. We also have the pleasure of beginning collective bargaining with our former employer, too, the Treasury Board, since we have about 30 members left in the public service, twelve of whom are active. So we will be a very busy group for a while.

I am here on behalf of the Canadian Air Traffic Control Association; my name is Peter Barnacle, and I am their legal counsel. Mr. Rushton, who is vice president on the technical side, and I would like to thank you for the opportunity to present our brief. We are hopeful that we will have a good opportunity today to exchange views on what we see as significant improvements to the Transport Safety Board's powers and at the same time raise one particular concern that the union has with certain amendments to section 29.

The Canadian Air Traffic Control Association represents approximately 2,300 civilian air traffic controllers, the bulk of whom are employed by NAV CANADA. As I mentioned, only about 30 individuals remain in the employ of the public service. NAV CANADA is the new not-for-profit entity charged with providing air navigation services in this country. Our membership handles tens of thousands of aircraft operations daily from seven area control centres, 41 control towers and one terminal control unit, which happens to be located here in Ottawa. Their area of responsibility extends from the North Pole to the Canada-U.S. border and for more than 100 miles off the West Coast to midway across the North Atlantic.

Senator Forrestall: How do you get from the North Atlantic to the West Coast? Are you are going over the North Pole?

Mr. Barnacle: Yes, we go over the Pole.

The Canadian Air Traffic Control Association, CATCA, was formed in 1959. It is one of the incorporated unions in this country; we were incorporated in 1962. Our mandate is threefold: To promote safety and efficiency in air traffic control; to promote the conduct and welfare of our members; and to promote the status of the air traffic control service. Each day our members make a significant impact on the world-class operation of Canada's air navigation system.

In line with our mandate, we recognize the importance of the Canadian Transportation Accident Investigation and Safety Board. It is imperative that such a body have the power and resources -- and I wish to emphasize that this will be a recurring theme of our submission -- to properly oversee the system and provide policy makers with the crucial information required to maintain and increase the level of safety expected by Canadians.

CATCA and its members have participated fully in all of the investigations conducted into air traffic services by the Transport Safety Board and its predecessor, the Canadian Aviation Safety Board. We have also been participants in investigations conducted by other parties, such as the minister's task force on aviation matters and the Dubin Inquiry.

Bill S-2 proposes changes aimed at increasing the emphasis on the identification of safety deficiencies through Transport Safety Board investigations. We concur wholeheartedly with any amendment that promotes safety, including increasing the protection of "witnesses" who give information to investigators. We believe it is appropriate to consider what has come to be known as "whistle-blower" protection. Since the provider of Canada's air navigation service is now a private company and not a government department, and in light of the comments by the Auditor General in his 1997 report, individuals reporting alleged safety deficiencies to the Transport Safety Board should be protected from disciplinary action by the employer.

Our members are encouraged to utilize the board's confidential safety reporting system. We are, however, concerned about the level of support given this type of program. With the limited resources presently available to the Transport Safety Board, it is easy for this type of program to become a data gathering exercise only. Rather than seeing information used for prevention purposes, you see detailed analyses of reports occurring only after a significant accident or incident. For the Transport Safety Board to properly fulfil its mandate, it must be adequately staffed and funded. While this concern is not directly related to the issue before you, we believe it is worthy of your consideration.

At this point I will refer you to some of the special investigations which the board or its predecessor have undertaken in the past, and of which we have been very supportive. These were reports or special investigations with a proactive or preventive theme; they did not arise from a specific accident but from a pattern of incidents or concerns that had been raised and into which the board conducted an investigation and made detailed recommendations.

For example, there is a 1987 report on a special investigation into the risk of collisions involving aircraft on or near the ground. It is a fairly thick document. As background, in 1985 the board had been gathering data with respect to near collisions on or near the ground and, as a result, announced a public inquiry in 1986. This report came out in 1987 and contained a long list of recommendations for improving air safety, essentially dealing with collisions on or near the ground, or what we often refer to as "runway incursions."

Another report of which we were very supportive was the report on the special investigation into air traffic control services in Canada, which was published in March 1990 by the predecessor board, the Canadian Aviation Safety Board. That report arose as a result of the board's noting that there had been a series of "losses of separation," as it is referred to, in air space around Pearson airport in Toronto in late 1988.

There were 217 occurrences over a time period and the board determined that that was a matter that justified some investigation, again without waiting for an accident. Lengthy discussions and hearings were held and recommendations were made.

Our concern with reports of the Safety Board in the past has been that the recommendations were not carried out in toto by Transport Canada. Some recommendations would be implemented and some would not. We have just had occasion to go through a nine-day hearing before an arbitrator with respect to a brakes issue, which had to do with a recommendation of the safety board in 1990 that was not implemented by Transport Canada.

Our concern has always been with what happens to the recommendations, but we have been supportive of this type of process of the board, and we are very hopeful that the board will continue to be able to do that. However, in this day and age, when government services are continually under attack, we are concerned that this type of preventive investigation may become less frequent. That goes along with our concerns about the confidential safety reporting system, which is essentially a telephone or e-mail line that can be used to raise concerns. We are concerned that those issues will go nowhere because of the potential inability of the board to investigate them.

Bill S-2 introduces a civil penalty which can be levied against any person who "fails" to provide information to an investigator, but the bill protects any representations to the Transport Safety Board on confidential or draft reports by persons who have a direct interest and are asked to review the report. We are pleased that this bill gives the Transport Safety Board teeth to investigate, but caution that the flip side to these added provisions must be thoroughly examined to ensure that persons are not unduly penalized or coerced because of their involvement in situations. That is a companion to the whistle-blowing perspective from our employer.

CATCA's concern lies predominantly, however, with ensuring that all information extracted from various sources remains protected. Section 28 of the current legislation provides protection for the use of on-board recordings. Subsection (1) defines those recordings, but it fails to include those used in air traffic control. Controllers, in performing their duties, use a number of different communication systems, each of which is recorded and can be used in Transport Safety Board investigation.

As it now stands, section 28 of the act, dealing with on-board recordings, refers to the cab type: the aircraft flight deck, the locomotive cab, or the bridge or control room of a ship. The proposed amendments under section 28 would add a pipeline control centre or operations room and would also make some modifications to subsection 28(2) to incorporate video recordings.

Our concern is that our air traffic control facilities, the towers as well as the centres, also have what the previous witness referred to as "event recorders", which continually monitor the communications of the facility. They are not under the control of the individual air traffic controller. They are permanent recording devices on all telephone land lines, on the radar scopes and on the data information that is displayed in front of the controller, and on all frequencies used by the control personnel with aircraft or other units. As a result, there is a complete record of everything that occurs at that position dealing with air traffic control through those various forms of communication.

In the existing act, section 28 deals with the on-deck type of approach and section 29 specifically refers to air traffic control communications as communication records. Our concern is that, with the proposed deletion of subsections 29(3), (4) and (5), which provide for limitations or restrictions on the use of air traffic control records, a gap may be opened up in the legislation which would result in less protection being provided to these types of communications than was previously provided, particularly in the case of land line or telephone related communications as opposed to broadcast or public domain communications.

Recognizing that the drafters of the amendments have expanded section 28 to deal with the operations type of centre, such as a pipeline operations room or control centre, we propose that it would be appropriate to include aviation control facilities as another group or centre within section 28(1). We would propose that section 28(1)(a) be amended to include the following subsection:

(v) a control facility for aviation operations

That would require some consequential amendments, first, in section 28(1)(b) to include an aviation facility, and then in the main body of the paragraph underneath section 28(1)(b), where there is a reference to the various types of locales, such as flight decks and pipeline control centres.

This amendment would ensure that internal air traffic control communications are afforded the same treatment as other operations. That would also reduce any concerns over the elimination of the specific protections set out in section 29(3), (4) and (5). The amendment to section 29, which covers air traffic control communications, has the potential to reduce what protection is afforded those communications unless they are incorporated into section 28.

Our association hopes to continue its long-standing relationship with the Transportation Safety Board and with institutions that, like the Senate, deal with proposed legislation that has potential to affect us all. It is important to recognize that all modes of transportation, air travel in particular, are predicted to dramatically increase into the year 2000 and beyond. It is through committees such as this that our contribution to the Canadian air navigation system can be voiced to assist in the establishment of legislation that will respond to those demands.

Subject to any questions or comments committee members may have, we would like to take this opportunity to thank you for allowing us to present our concerns to you today.

Senator Roberge: I have a few questions based on safety. I wanted to take advantage of your visit here to ask you about some matters which are not entirely related to Bill S-2. For example, what are the hours of work for an air traffic controller?

Mr. C.A. Rushton, Vice-President Technical, Canadian Air Traffic Control Association: In our collective agreement it is 34 hours per week. We work five days on and four days off. Usually, it is an eight and one-quarter hour shift, but that can vary.

Senator Roberge: Are there any rest periods in between?

Mr. Rushton: We get them when they are available. If traffic is light, we get more breaks than if it is heavy, which, unfortunately, is not the way you want it. The busier the traffic, the more people have to work.

Senator Roberge: In trucking, studies were made which evaluated the length of time for which individuals can work without becoming overtired. The attendance of an individual is limited to a number of hours of work. After that, the worker becomes less alert. Have any studies like that been done for air traffic controllers?

Mr. Barnacle: Yes, senator. There has been a major study on shift work, which is now in its third phase. It has examined the effects of shift work and of different shift schedules on controllers, and it has reviewed the issue of taking breaks away from an operating position. While it recommended that such breaks be incorporated on a more formal basis, it did not actually specify the amount of time that an individual should spend in a control position before having a break. The Transportation Safety Board in its 1990 report made a similar recommendation that there should be restrictions on the amount of time spent at a control position without a break.

This whole issue is one that is very much alive as between the union and our present major employer, NAV CANADA. I mentioned that we have just completed a major case on the issue as to what are the current requirements under the collective agreement for such breaks. We have not yet received a decision on that matter, and we will not for some months. Beyond that, I do not know how much more we can say about what is currently in place, except that it is a point of dispute as to what the term "operational requirements" actually means.

Senator Roberge: There is a subcommittee of this committee which deals with safety in all modes of transportation across the country. Could you send us some of the studies that have been made on that subject? That would be helpful to us.

Mr. Barnacle: We would be pleased to do that. The first two phases of the study have been completed. It was a cooperative effort in which we participated with Transport Canada as well as other private agencies.

Senator Poulin: As you can understand from our comments at the beginning of these proceedings, as well as from our questions, we are most concerned about the support that you bring to your employees, because of the role they play in our country's safety and in the safety of all Canadians as they travel back and forth. We have all read the studies in the last 20 years that say that your job is probably one of the most stressful in this country.

What kind of support do you bring to your members to ensure that they can operate at their best as professionals during their 34-hour work week?

Mr. Rushton: I am also an operational controller. I am only involved part time in the union as vice president; so that is an important question to me.

One of the most important things to us is the hours of work. To survive 35 years in this job, you do not want to be working long hours and long weeks, and we are working pretty hard toward that in the collective bargaining process. There is a lot of overtime in our profession right now, which is another thing that we need to get under control.

You can work nine days in a row before taking a day off. That is a lot. We have been short staffed since I have been there, which is 11 years. Personally, I would like to see our pensions changed so that we could retire a little sooner after working at a busy centre. I think that is something we will work toward in our next collective agreement.

We also have a very good occupational health program that we support, along with the employer. In Vancouver, for instance, a lady, who is part of a consulting firm and works with us, travels across the province taking part in discussions and setting up field trips, and things like that. She talks about cancer and heart disease.

We also have critical-incident stress debriefers. We have trained a number of people in each unit. In theory, if you have a critical incident, something quite stressful, you are pulled off work right away and you are given a debriefing by one of these people.

Senator Poulin: Have the association and the employer agreed on an employee assistance program? All of us have personal situations with which we have to deal in our lives. Personal situations can sometimes affect the performance of employees.

Mr. Rushton: One of the first things NAV CANADA did was to get us a very good employee assistance program through a private firm.

Senator Forrestall: In the last paragraph on page 1 of your brief you state: light of the comments by the Auditor General in his 1997 report, individuals reporting alleged safety deficiencies to the TSB should be protected from disciplinary actions by their employer.

Is that not covered to your satisfaction in the present bill?

Mr. Barnacle: I am referring there to the "regulation of safety" section of the Auditor General's report, which starts at section 19.99. It refers to the system as a performance-based review, or a performance-based monitoring system, in that it is a system which requires assessment of performance in order to determine whether safety is being met. However, that assessment does not come from specific investigation by Transport Canada, the regulator. It comes from monitoring.

What we are saying is that, given there is an emphasis on reporting, whether it is to the safety board or to the regulator, Transport Canada, then that is how the system will be subject to evaluation for safety purposes.

We believe we will need the protection for our members that is commonly known as whistle-blowing protection. We do not currently have that. Just as with any other employer, there can be an issue as to breach of confidentiality in releasing information from a work location.

Senator Forrestall: Are there models, Mr. Barnacle, that might be applicable to your case and which we could examine?

Mr. Barnacle: I cannot point you to specific provisions of other acts, and I realize that that is not supportive on our part. I apologize for not being in a position to give that to you today. Obviously, we can do that ourselves through our collective agreement with our current employer. Also, that can be done through legislation given that there are protections in this act for the use of information.

Under section 32, for example, there is protection for an informant or for certain witnesses to the board. We would want to ensure that, from our perspective, it is broad enough to cover our members using the confidential reporting system or acting as any other kind of voluntary witness to the board.

Senator Forrestall: Is it sufficiently important that resources should be devoted not only to solving the problem but to putting the mechanisms in place?

Mr. Barnacle: Yes. It is our concern that we will have a great house but there will be no furniture inside.

Senator Forrestall: A great data collection system could be in place but it would not be producing any comfort.

Mr. Barnacle: We certainly want to see the safety board as being very active. That is a prime objective of the Canadian Air Traffic Control Association. Frankly, we would like to see the regulator, Transport Canada, being more active, but that is not before you.

The safety board needs not only to examine past events but also to conduct investigations, as it has done before, in areas where patterns of activity suggest a developing problem for the future.

Senator Forrestall: That makes sense. Another area you mentioned, and it startled me a little bit, was the excessive overtime. Could you take me through the Toronto terminal, so to speak?

Mr. Rushton: No, but I could take you through Vancouver East Side. I started working in that airport in 1989. Then it was quite common to work seven days on and two days off. That would probably be normal. Through the summer you would work a little more and through the winter a little less.

Most of us like it to an extent for the first few years, and then we discover that we really need a life with family and we want to work less. The problem is that, if you do not work that shift, you do not get summer leave because you have to cover for your buddies. Also, you come to work short-staffed, which is much more tiring than having to work the extra days.

Some people work substantial amounts of overtime. Some people do not work any. The employer is relatively good about not forcing you to work overtime unless he is really stuck.

Senator Spivak: Why should anyone work overtime?

Mr. Rushton: The easiest answer would be the salary increase, but we have been told that, if we do not work the overtime, we cannot have leave. They need five people sitting down on the East Side each morning. That means they need seven people physically there so that one or two can be on a break.

Senator Spivak: Has this changed since the transition? What was it like before?

Mr. Rushton: The staffing is the same. They have been training full steam since I got there. I was the first person hired after a long break. They have not stopped training since.

Senator Forrestall: We were told by NAV CANADA that this would come to an end two years ago. That is why it surprised me that you used not only the word "overtime" but the word "excessive." That is scary. I serve notice that they will be hearing from us.

Senator Johnson: Is it my understanding that nothing has changed since NAV CANADA took over the operation?

Mr. Barnacle: That is fair to say.

Senator Johnson: They spoke to us about this in committee. Colleagues may recall that they mentioned something about looking at this issue.

Mr. Rushton: Last March, it looked like there was not much overtime. All of the people who liked to work overtime were wondering if they would have to sell their houses.

Senator Johnson: I discussed this on a plane with an air traffic controller who was travelling to Ottawa a couple of weeks ago. He told me he was worried about the safety of Canadians flying in this country now. Was he being dramatic? He was coming to attend union meetings here.

Mr. Barnacle: Certainly, the association has made it a prime objective in this round of collective bargaining to find a way to reduce overtime. The association does not support overtime. We do support the concept that individual air traffic controllers, who have been subject to a wage freeze for the last seven years, should be entitled to translate their earnings into regular hours and not have to rely on overtime in order to maintain their standard of living.

However, there are a number of institutional barriers as well. Mr. Rushton, for example, is an IFR controller in an area control centre, and air traffic controllers in his area must be qualified for a very specific section of air space. As a result, there have been continual problems in having enough controllers in the areas where they are needed. The Winnipeg area control centre, for example, is only 77 per cent staffed. Staffing has been as low as 63 per cent and has never gotten above 79 per cent.

Senator Forrestall: Is your area 90 per cent staffed, Mr. Rushton?

Mr. Rushton: It is approximately that, 90 per cent of the numbers that the employer feels are correct.

Mr. Barnacle: Yes, those are percentages of the numbers required by the employer and not necessarily the higher numbers we feel they need.

Senator Johnson: What costs would we be looking at in order to come to a meeting of minds on this as between the employer and yourselves? What kind of increase are we discussing?

Mr. Barnacle: It is not a question that we are disagreeing with the employer that more controllers are needed.

Senator Johnson: But where is the meeting ground so that safety and the financial side are both satisfied? I do not feel very safe in the air after having that chat with that person, and, from what you are telling me, things are getting worse. How can we improve this situation? NAV CANADA was supposed to be the answer to a lot of these problems.

Mr. Barnacle: I have to say that, as tempting as it may be for us to dump on NAV CANADA at every opportunity, that is not our goal. It has only been here for a year. It inherited a system that had been operating for many years prior to that. To turn it around in one year would be very difficult.

Senator Johnson: Did Mr. Copeland not resign after about six months?

Mr. Barnacle: The vice-president for labour relations resigned, too, or was not there after September. We have no knowledge about the mechanics of the situation. Certainly, it is a situation which we are endeavouring to address from CATCA's perspective.

Senator Forrestall: Let me try another perspective. How many flights were you having daily say in Vancouver in 1989?

Mr. Rushton: Our traffic has increased by approximately 50 per cent since I started.

Senator Forrestall: Traffic has increased by 50 per cent and you were about 90 per cent staffed in 1989.

Mr. Rushton: We were a little lower staffed back then. They have been catching up to some extent in the last 10 years. Having only 10 years in, I am in the top third of the seniority list across the country.

Senator Forrestall: That speaks volumes. You mentioned Winnipeg. Do you have any numbers for that airport, off the top of your head?

Mr. Barnacle: Are you asking about the number of flights?

Senator Forrestall: Can you compare what was being asked of these men and women in, say, 1990 with today?

Mr. Barnacle: I could not give you numbers in terms of movement. I can tell you that the employer determines that it needs or believes it needs 162 controllers in that centre. I believe 134 are currently there. Again, you could do the math. I know it is operating at 77 per cent capacity, because that was a number I happened to glance at.

Senator Forrestall: Is this a national shortage that comes about as a result of the absence of adequate training?

Mr. Rushton: It started with the hiring freeze in 1986. As I say, they have been training non-stop since I started in 1987. There has never been a day I have gone to work that I have not been training someone or that someone beside me has not been training.

Senator Forrestall: How long does it take to train?

Mr. Rushton: Almost three years.

Mr. Barnacle: The failure rate is quite high. Depending on the area, if someone is coming off the street as a potential trainee, they will spend six months at Cornwall in the training institute there. If they come through that, then they will end up in a training period for up to three years. Along the way, there are many opportunities for them to be "cease-trained" and to be released from the system. Depending on your numbers at each of the IFR centres across the country, you could have a rate of anywhere from 40 to 60 per cent failure, or even higher at different times. It takes many people coming into the system to be able to generate the number at the other end.

The other side of it is that we have a significant number of members who are reaching the point at which they will be leaving the system. It is a problem of constantly training to replace as well as to catch up. It is an extremely difficult situation.

I should point out that the shortage we are dealing with is with the IFR controllers, the instrument flight reading or radar controllers. The tower controllers are at staff. In some cases, they are over-staffed because they put trainees there while they are waiting to find a seat for them in the local centre for training. So they may be over-staffed. IFR control is where the primary shortage is. Of our total membership of just over a 1,000 controllers, about 600 are tower and then there are a number of members who are non-operational.

Senator Forrestall: We have touched on Vancouver and Winnipeg; what about nationally?

Mr. Rushton: Nationally, we are at about 88 per cent manned across the country.

Senator Poulin: Mr. Rushton, referring to the proposed amendments to section 28. Including the amendment that you are suggesting to us, which changes section 28 in terms of a definition of on-board recording, how do your members feel about the fact that a recording from a control facility could be brought to the board?

Mr. Rushton: They would not have a problem with that. Our members have always been open about investigations. We have internal investigations from NAV CANADA. We have Transport Canada investigations and we have the Transportation Safety Board. Our members are professional. They do not balk at the investigation process. It is a safeguard to them to have everything recorded so there is no doubt of what has happened.

We have land lines, hot lines, telephones and frequencies. They are all recorded in the back room by a piece of equipment that we do not touch.

Senator Whelan: I come from Windsor, Ontario, an area that is serviced by Detroit air traffic control. It is being suggested that Windsor operate without any air traffic control officers. How could the airport operate that way? It is the 11th busiest airport in Canada.

Mr. Rushton: That is a loaded question for me. We are in the process of responding to NAV CANADA's aeronautical studies of seven facilities to decide whether to keep the level of service or to reduce it. Obviously, we feel that air traffic control is terribly important in those centres.

Senator Whelan: When you fly a plane from Toronto, you switch over to Cleveland; when you get to Dresden, you switch over to Detroit. I do not think there is any other place like that in Canada.

Mr. Rushton: It is a corner, yes.

Senator Whelan: I am appalled when I see this kind of condition. When I was the most travelled minister in Canadian history, I rarely saw an airport without an air traffic control officer.

Mr. Rushton: We do not believe there will be significant cost savings for them, because they have to replace two controllers with three or four of the flight service specialists.

Airports often end up putting in a tower because they have had an unfortunate accident. The reverse is also true, and Castlegar is a good example of that. They had a tower for 10 years and had no accidents so they decided maybe they did not need the tower anymore.

Senator Whelan: I am talking about the safety part of it. I cannot believe you can run an airport that busy without it.

Mr. Rushton: We do not believe you can either. We are making representations to NAV CANADA right now, talking to the users of the airlines.

Senator Whelan: I would have thought they would increase the numbers, with air traffic doubling by 2003 or 2005. I find it difficult to accept that the direction would be towards fewer air traffic control personnel.

Senator Roberge: Can you take us through a simulation? For example, you have a 747 coming into Vancouver, and it has two engines off. What is the situation in the air traffic control room with respect to safety and security? Is there a list of items you have to follow up?

Mr. Rushton: This is an emergency situation in which they have lost the engines?

Senator Roberge: Yes.

Mr. Rushton: The first thing we do is coordinate with all the other traffic control centres which the plane will be passing through to advise them of the situation. We, of course, give the aircraft priority handling, moving other aircraft out of the way, if we must. We try to get the plane as straight to the airport as we can. The airport is in charge of crash, fire and rescue services. We would also advise the airline, of course. We pass on information and assist as we can. However, other than giving them priority service, there is not much more we can do.

Senator Roberge: You move everything else aside?

Mr. Rushton: If it would cause a delay, yes.

The Chairman: Mr. Rushton and Mr. Barnacle, thank you very much.

The committee adjourned.