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Standing Committee on Transport, Infrastructure and Communities



Thursday, March 10, 2011

[Recorded by Electronic Apparatus]



    Welcome and good afternoon, everyone, to the Standing Committee on Transport, Infrastructure and Communities, meeting 55.
    Our orders of the day, pursuant to the order of reference of Wednesday, December 8, 2010, are for an examination of Bill C-33, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.
    Joining us today as witnesses from the Department of Transport are Mr. Luc Bourdon, director general of rail safety, and Carla White-Taylor, director of the rail safety secretariat.
    I'm not sure.... You don't have a statement, but are just here to offer advice as we go through; is that the case?
    Saying that, we will move into clause-by-clause on Bill C-33.
    Pursuant to Standing Order 75(1), consideration of clause 1 is postponed to the end.
    We are now on clause 2. There are no proposed amendments for clause 2.
    Shall clauses 2 and 3 carry?
    (Clauses 2 and 3 agreed to)
    (On clause 4)
    The Chair: We have several amendments on clause 4.
    Monsieur Laframboise, do you have a point of order concerning this?


    Yes, based on the advice of the legislative counsel, who is near you, Mr. Chair, our first amendment, BQ-1, which involves the definition of railway company and asks that an urban transit authority be excluded, deals with clause 10 directly. I don't know how you wish to proceed, but I wouldn't want to put aside clause 4 or to vote on clause 4 without going through clause 10. Perhaps it would be better to discuss clause 10 right away, given that these clauses are interrelated in terms of the amendments that we proposed.


    So, in discussion, there are some amendments to clause 4 that impact the outcomes in clause 10 but actually have to be dealt with in a reverse order.
    Would it be fair if we put this on the back table and moved forward with everything else, and then we'll come back to clause 4 after we have completed...?
     Is there agreement?
    (Clause 4 allowed to stand)
    Thank you.
    (Clauses 5 to 7 inclusive agreed to)
    (On clause 8)
    The Chair: We are at government amendment two on page 6.
    Mr. Jean.
    Mr. Chair, I apologize.... I'm trying to keep track, but I'm wondering in particular what we've done with clause 4, with all the amendments.
    There's an amendment in clause 10 that impacts amendment BQ-2, so Mr. Laframboise has asked that we defer clause 4 until the end.
    That's perfect. I just wanted to make sure. I thought that's what I heard, but I didn't really understand it exactly at the time.
    So we're talking about amendment G-2 on clause 8.
    This particular one is asking for a professional engineer to be involved, such that the standard of work that is done must be done in accordance with sound engineering principles.
    I think you'll find that all parties would agree that it would make the most sense in a safety bill to have the people necessary to do the design, construction, evaluation, maintenance, alteration, and other works that are necessary.
    Certainly, I think it would make total sense to all parties. We haven't really had an opportunity to discuss this with the Bloc or the NDP, but if they had submissions, I would be more than happy to entertain them.


    Are there any comments?
    Mr. Julian.
    I thank the parliamentary secretary for presenting the amendment.
    I'd like to ask our witnesses the difference between the clause in the bill as it is worded, which says that the work “shall be done under the direction of a professional engineer” and the clause that's offered by the government, which talks about the engineering work being “approved by a professional engineer”.
    First, the amendment was to be in line with the drafting instruction, which was only to cover maintenance on top of what we were doing. The change you're referring to is that we recognize the fact that you cannot always have an engineer on the spot, so it would have to be done in accordance with an engineer, as it reads in the act right now.
    So what we're actually seeing is a weakening, then, of the standards, not a tightening of standards.
    No, because for some of the short lines, it's almost impossible to have an engineer on site all the time. So as long as it's done according to work that has been approved previously by an engineer and carried out by the people from the company, then it's being inspected according to that.
    But it does mean that the requirement that the work be done under the direction of a professional engineer would be diminished. The work could be done, and engineering work “relating to railway works” would have to be approved by a professional engineer.
    I just doubled-checked with our counsel, and it was exactly what I just told you. For a short-line railway, it would be almost impossible to have engineers on site all the time. We want the work to be approved but not be carried out with an engineer on the spot all the time.
    Mr. Godin.
    You're okay? All right.
    Mr. Dhaliwal.
    This is good thinking.
    Mr. Trost.
    Both Sukh and I are....
    I think you're an engineer, aren't you?
    I'm an engineer.
    So we've both done this sort of stuff.
    An hon. member: He's a better engineer.
    Mr. Brad Trost: He's a better engineer; I'm a geophysicist.
    Just to answer a little bit concerning where Mr. Julian was going, sometimes you won't have a professional engineer on site. You'll have an engineer in training or an engineering technologist or someone who works under them. The professional engineer still has to have their stamp to sign off on these sorts of things, so they're still legally liable for the people who will be working underneath them. So the standards don't change; it's just that someone working on behalf of the engineer will do it, but he still has his legal neck on the line.
    Although I never quite got the seniority to sign off on other people's work, neither I nor I'm sure Sukh or any other professional engineer is going to put our stamp on anything, because that's legal liability, the same as for lawyers and various other professions. So effectively an engineer controls this, even though someone else is working on it. That's the understanding from our professional background. The lawyers might explain it differently.
     Fundamentally, the professional engineer is controlling this, even though someone else may be working. It may be someone who has three years of engineering experience, an “EIT”, or engineer in training, but they still need.... They may have more experience, actually, than the PEng who signs off for them, but that person may be miles and miles away and may have shipped the instructions to them on site and may actually just be signing off on their work.
    I've had senior engineers, senior geoscientists, sign off on my work before, and they just double-checked to make sure I had done everything right.
    That's my understanding of what this permits, and that's what the witnesses are indicating.
    Is there any further comment?
    Mr. Julian.
    It's just a question, Mr. Chair. I thank Mr. Trost for his addition to the explanation.
    Was there a request by witnesses before this committee to make this change?
    Mr. Jean, was there a request by witnesses to make this change?
    I don't remember. My understanding is that it was to confirm—I might be corrected on this by the people who have been working on this file for a long time—and make sure that there wasn't substandard work being done under the act in relation to rail safety. If a crew went out and did work on site, if they had, exactly as Mr. Trost said, somebody who works on it and is in training, they would then provide what has actually been done by drawing or by specifics, and then it would be sent back to be signed off by a professional engineer, just to make sure that the quality was up to the level necessary.
     I think it was a departmental recommendation, not brought up by a witness, but I did speak to one particular witness who thought it was good.
    I would like to hear from Mr. Dhaliwal.


    I certainly agree with Mr. Trost. I've been in this profession for the last almost 20 years, and the way I see it, there are always opportunities for other people, junior engineers or engineers in training, to do the work, and engineers take full responsibility. We also are responsible to our peers as well.
    The engineers do the work to the highest standards, so I would certainly support Mr. Jean's recommendation.
    Mr. Jean.
    I'm just going to say that no one would guess that Mr. Dhaliwal was an engineer based on that tie, because I don't think there's any order at all.
    But it's a beautiful tie, Mr. Dhaliwal--a great tie.
    Is there any further comment?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 8 as amended agreed to)
    (Clause 9 agreed to)
    (On clause 10)
    The Chair: Monsieur Laframboise, we are dealing with Bloc amendment BQ-3, on page 7 in your set of amendments.


    Subsection 17.1(1) of clause 10 reads as follows:
    17.1(1) No person shall operate or maintain a railway, or operate railway equipment on a railway, without a railway operating certificate.
    Paragraph (2) states the following:
    (2) Subsection (1) does not apply to a person exempted under paragraph 17.9(1)(c) or to a municipality or road authority that maintains a crossing work.
    The Governor in Council is the one who could provide an order-in-council exemption.
    The following would be added: "or to an urban transit authority." The reason is that the railway operating certificate is not mandatory for an urban transit authority.


    Mr. Jean.
    Thank you, Mr. Chair.
    Mr. Laframboise and I have worked for years together on this particular committee, and with great respect to his position on this one, I just can't agree to it. First of all, with respect to the evidence relating to what they are seeking, it is an exemption from being required to operate a track with a certificate from the federal government, which in essence means to be exempted from this legislation to be safe.
    From my perspective, when I was listening to them ask to be exempted, I thought to myself that they were asking for the safety of the act to apply to transportation of products—desks from Montreal, or furniture from Montreal, or clothing or vehicles, or whatever the case may be to be covered by the Railway Safety Act—but not people, and it just did not make any sense to me. The most precious cargo we can carry on the rail system is people, and they are asking to be exempted from it because they're carrying people, which to me just doesn't make sense.
    Specifically, the evidence they produced was not substantial enough to warrant excluding them from federal authority. In fact, one witness particularly said that something in the neighbourhood of 50% or 60% of their operation was on federal tracks. My understanding is that if this is adopted as well as amendment BQ-1, it will create an environment that would mean they would not have to comply with the federal authority on this track just because they're running people. There is no logic to that for me.
    My understanding, and I'd like to be corrected if I'm wrong, is that even though they may be exempted, the company they rent the track from on which they operate the train would still be required to maintain the federal obligations.
    In essence, even though the owner of the track is obligated to maintain that safety level, exempting the operator of it first of all confuses the law, I would suggest, and second does not make any sense whatsoever, because although as a transit authority I certainly don't want to be under federal jurisdiction, it doesn't make sense that we would allow people to be exempted from safety when we are requiring product and goods to abide by the safety regime of the federal government.
    Mr. Bourdon, I know, has vast experience on this, and I'd love to hear his position.



    I would like to provide a bit of an explanation to Mr. Laframboise about the context. In the panel recommendation, which has been determined and which we knew about, it is that, right now, before a railway begins operating, there are no criteria that would allow us to determine whether it is safe or not. So, when someone wants to start operating a railway, that person goes to the Canadian Transportation Agency and gets a certificate of fitness. The only thing that's checked is whether the operators have enough money to cover a derailment or an accident. Checks are made to determine if they have insurance or enough money to cover that.
    What the panel recommended, and what was demonstrated, is that it would be useful for us if each railway operating on federal tracks were to obtain this operating certificate, which would show us everything they have put in place to ensure safety. At that point, it would become a tool available to our inspectors, who would then have a document that would indicate exactly which rules apply and how those railways are operating.
    If we do not adopt this certificate, we are still going to transfer the accountability to the railways, such as Canadian Pacific and Canadian National, and each time something is not consistent with the standards, it will be necessary to go to the other railway to ask that repairs or corrections be made by the urban train.
    You are giving an answer about why the urban train operators are afraid. If they are required to have the operating certificate, whomever they rent the tracks from will transfer part of the bill to them. That's what they've feared from the beginning. Anyway, when it comes to certification, you know, they are operating at a rate of 90% on railways run by rail carriers. So the battle is still about fees and costs. If they also manage to raise a problem relating to the certificate, in other words, to make a complaint and ensure that the operator of the urban train is responsible, that would mean that, if the operator is responsible, he would have to pay. Otherwise, the operator will not have the certificate. Right now, what you are telling me, is that, if there is a security-related complaint, the owner of the track would have to do the work.
    Yes, but…


    It's true that the owner of the track does the work. What you're going to do is you are going to take away the operating certificate from the operator, the one transporting passengers. You are going to tell him that there's a problem with his certificate. You can go that far, you can go so far as to take away the certificate.
    No. We met with the urban train operators and spoke with them. First, using a class 1 railway track, if we're talking about CN and CP, pertains to a contractual agreement that they have with them. We were very clear. In the railway operating permit for an urban train, for example, track maintenance is the responsibility of the track owner, and not the urban train. So, if there is a problem with the railway track, it's CN or CP that will be responsible. But there have been situations in the past where cars with defective wheels were used on urban trains, and corrective action had to be taken against Canadian Pacific and Canadian National to get them to come back and get the railway that should have been accountable to do the repairs. This is what the certificate will allow us to do.
    But we mustn't think that, because they have an operating certificate, they are going to become responsible overnight for all the work on the tracks. These are contractual agreements that they have together, and we have nothing to do with it. What I want to know is what rules are going to apply.
    The other advantage for the urban trains that some of us promoted and that they mentioned to the panel is the possibility, with the operating certificate, of being able to set out their own rules, which will be made in accordance with their operation, rather than adopt the rules of a railway that transports merchandise. It's an important point. So, this certificate will let them make their own rules and be exempted from existing rules, which they cannot be exempted from right now.
    Mr. Bourdon, if it was so good for them, they would have said yes to you. Do you understand? You are telling me that they are the ones who asked for all of that. So why are they asking us to be exempted? There must be a problem with your panel.
    All I can tell you is that, from where we stand, it's a tool. It would be extremely useful to know exactly what their safety profile is. As Mr. Jean mentioned, they transport 65 million people every year. So, we are going to ask some small shortlines that transport wood or minerals to have an operating certificate, but we are going to tell urban train operators that transport 65 million people that they don't need one.
    It still depends. What you are telling me is that you are going to set the criteria.
    By regulation, in consultation with them. When we had the presentation from the urban trains here, the gentleman who…
    Except that you will make the obligation of having the certificate effective immediately. You still haven't established…
    No, not at all, Mr. Laframboise. In the bill, there is a grace period of two full years.


    I think I'll come back to Monsieur Laframboise. I have Mr. McCallum on my list, Mr. Trost, and Mr. Julian.
    Mr. McCallum.
    I would support this amendment on the grounds that we've heard: safety should trump. I think the details can be handled through regulations in terms of how these companies are treated.
    Mr. Trost.
    Thank you, Mr. Chair.
    I'm trying to see if I understand this correctly. If BQ-3 were to pass—the amendment we're talking about here now—the only real way for federal safety regulation to be put onto these urban transit authorities would be by pressuring CN and CP because they have federal tracks. They would then pressure the transit authorities. We'd be trying to do this in a sort of domino fashion to get what we were looking for on safety rather than dealing directly with the urban transit.
    Am I understanding you correctly?
    Yes. Actually, it wouldn't be the word “pressure”; the way it works is that we can inspect for compliance but we can't enforce. If we inspect one of the urban transit authorities and we find something is in non-compliance with the rules or the regulations, we have to go to CN and CP and impose a corrective measure on them. They in turn go back to the urban transit authority and get it repaired. So there's no real accountability there.
    Okay, I understand it.
    Wouldn't that be more complicated than dealing directly with them? Ultimately we're going to get the same result, assuming that CN and CP follow through. With the provisions in this law, they have to have a safety officer who is legally responsible. That person is going to be very, very inspired to make sure that all the subcontractors do it.
    They become accountable.
     I don't get why the urban transit authorities are so opposed, other than.... It doesn't make sense what they're pushing for.
    I have Mr. Julian, Mr. Watson, and then I'm going back to Monsieur Laframboise.


    Thank you, Mr. Chair. I have two questions for Mr. Laframboise about his amendment. I apologize, but I am at a bit of a disadvantage because I wasn't here for the testimonies on this matter.
    Which urban train operators requested this exemption? I think I have a good understanding of the two-year process. Why do the urban trains not want to adhere to this two-year transition process?
    First, these operators, such as the AMT, the Agence métropolitaine de transport, report to the Government of Quebec, just like all metropolitan transport agencies report to the provinces. So it is wrong to say that there aren't any safety standards.
    What you are telling us, Mr. Bourdon, is frightening. You are saying that there are no safety standards.
    No, that isn't what we said.
    These people must report to their authorities, which are the provinces, and they have their own safety standards.


    We never said that they don't have safety standards. What we said is that these people must comply with the standards of Canadian Pacific and Canadian National. They do not have their own standards. They are required to follow the rules that have been approved by the minister responsible for Canadian National and Canadian Pacific.
    Right now, we are talking about a matter of accountability. When something doesn't work the way it should, we cannot blame the group at fault, we need to blame another one.
    But you cannot blame them for the simple reason that they didn't ask for your permission. They got their authorization from the authorities responsible. As you said, they must respect the standards of CN and CP, and if they have a problem later, they resolve it with CN and CP.
    When these agencies operate on federal tracks, clearly, we can have authority over them. Everyone who is currently operating on those tracks will be required to have an operating certificate.
    To answer the question you asked a little earlier, if the act is amended and we have the power to adopt the regulations, we must first, as part of our internal process, sit down with all the stakeholders, including the Agence métropolitaine de transport, GO Transit and the West Coast Express. Mr. Julian had asked for more information about those three agencies.
    Once the regulations have been adopted, people have two years to comply with them. So, everything is in place so that people can be consulted properly, and they can have an opportunity to share their concerns with us. Once the regulations are in effect, we give people two years to submit what needs to be submitted.
    The regulations also make it possible to adapt the operating certificate to their type of operations and even to exempt them completely. For example, if the three commuter transporters show that they use very good rules and that they use the North American criteria of APTA in the United States, they might be exempted from having an operating certificate because reassurances have been made. In fact, we have spoken with them, and we see that everything is in place to ensure that this works.
    That's not what I was told. That's why this poses a problem. These people are asking us for exemptions because they don't want to be required to produce another certificate. They are already subject to their legislation. They already have safety standards. They must be able to comply with the safety standards of CN and CP. They do so already, but they are imposing on them the requirement of an additional certificate. That's what they don't want. You could exempt them from it, just like you could require them to have it, just like you could take away their certificate. Is that true or not?
    It's a matter of safety. We know that their operations are safe, but this allows us to have this dialogue with them. When they operate on federal tracks, they must comply with all the rules and all the regulations.
    Who asked you to do that? Was it the railway companies?
    Not at all. I can tell you that there was…


    I'm sorry, I just missed that exchange. It wasn't caught, and that part was very important. Mr. Laframboise asked a question and it was answered before I could hear it in translation.


    Who asked you to subject them to this standard?
    The group of experts.
    Who was in this group of experts?
    You were there at the time. There was Mr. Doug Lewis, Mr. Martin Lacombe, Mr. Pierre-Marc Côté and Mr. Gary Moser. They presented a report to you. You were there; I was there too.
    That's right.
    They made 56 recommendations. During the discussions, they realized that there were no previous safety criteria for operating a railway in Canada imposed by the department or approved by the department. You go to the Canadian Transportation Agency, you get a certificate of fitness, and you start operating. But we have seen in the past that these people sometimes can't operate very effectively. So, from that, they determined that it was…
    This isn't the case of metropolitan transportation agencies, which must obtain authorization from their provincial government.
    It's like any other railway company in any other province. Between 50 and 60 railway companies will be affected by this. When these companies, which have always operated on provincial tracks, arrived at federal tracks, they had to comply with federal legislation. Now they are going to have to provide us with a certificate that will show what applies to them.
    During the consultations conducted by the group of experts, some of these agencies asked the group for permission to make their own rules and to be able to request exemptions to certain rules. When they travel on federal tracks, the only way to do that is to subject them to our regulations. They can't get what they are asking for, unless they ask CN and CP for it. In some cases, these railways are going to give it to them. Now, they are going to be able to do it and have the rules adapted to their type of operations, for example, train inspections.


    In any case, they surely misunderstood something. You're telling me that they do not understand. Perhaps it's that you explained some things poorly or that they did not understand. This is what you are saying.
    Mr. Laframboise, I was told certain things. I was told that we were going to start regulating ticket-vending machines and parking lots. We have been regulating VIA Rail for ages, but we have never set foot in the parking lots. We have never gone to see ticket-vending machines. To be quite honest, I don't know where these things may come from. We aren't concerned with those things.
    But those are not impossible things either, since they... It is not out of the question that you would deal with things like that either.
    The way we operate is by taking risks. The real risk is whether the train will stay on the tracks or not. Between you and me, the parking areas, the ticket machines...
    But the problem is that this is a bill on safety. If you get a complaint, you will have to do something about it. That is why they already have a jurisdiction to which... Anyway, I am really...
    That's currently the case for all railways under provincial jurisdiction in the country. They are all going to say that they already have a jurisdiction that governs their operations. Yet, no one came to ask us... Some even told us that this is a good thing.
    Since they are opposed to it, I am going to keep my amendment . You just haven't convinced me.


     Mr. Watson.
    Thank you, Mr. Chair.
    This comes to one of the most interesting meetings we had here, I think. If these transit authorities operated on 100% provincial track, this wouldn't be a matter considered under legislation.
    We heard in testimony, I think, that the average of federal track usage was about 90%. I believe the witness from Quebec said they operate 95% on federal track. GO, I think, was the lowest we heard, at about 60% federal track use and 40% provincial.
    So if I understand this correctly, they're only accountable to the province on provincial track, and not on federal track. On federal track when they're operating, they prefer to have their contractual relationship with CN and CP as their means of accountability rather than directly to the federal government.
    I know that Mr. Laframboise was part of the review this committee did on rail safety, which was done simultaneously while the minister's rail safety review was being undertaken. That rail safety report ultimately came out from the expert panel. I think Mr. Laframboise will recall that CN, on their culture of safety, was rated one out of five, one being the worst and five being the best. CP was rated at two out of five.
    Now, I don't know about Mr. Laframboise, but I don't feel comfortable with anybody preferring a contractual relationship with two railroads that don't rank better than a two out of five, instead of being directly accountable to Transport Canada.
    The other curious argument raised by the transit authorities in their testimony was that they enjoy their relationship with Transport Canada, but somehow, when I asked why not just simply shorten the relationship and make it direct, well, they didn't really have a compelling argument; they just preferred that arrangement.
    So if we're going to take a step forward with respect to safety...and quite frankly, if they already think they're compliant anyway through their contracts with CN and CP, I don't see why there's an issue with them directly coming under federal regulation. Compliance won't be an issue, or shouldn't be an issue.
    There wasn't, in my estimation, any compelling testimony given why they should not; they just seemed to have a preference for not being regulated additionally by the federal government.
    As I think Mr. Bourdon has said, if an issue occurs on a federal track, I think the public will ask why the transit authority wasn't directly accountable to Transport Canada. They're going to look to the federal government and say, “What happened?” So I think the responsible step forward is the way the legislation has been presented here in the bill to bring them under that authority.
    That's just a bit of background commentary on what happened at the particular meeting.


    Mr. Mayes.
    There's one thing in this that to me is kind of complicated. I see two liabilities here. I see the liability of the track and the right-of-way, and I see the liability of the operator and the machinery that goes on the track. So my challenge is this: have you separated that, or is the obligation...for instance, the obligation on the track and right-of-way owned by the rail company? Do they assume the obligation of those who travel on their track that they have to have safe equipment to go on that track?
    With that, as Mr. Laframboise was saying, if that's the case, that it's the one who owns the track and the right-of-way who should be the ones who secure the operator, if they take their running licence from their transit authority to say that it's safe, would that be acceptable?
     I guess I'm having a challenge separating those two burdens of liability and in the act. Have you separated that?
    The railway operating certificate will be defined by regulation. The regulation will clearly define the way it's going to be laid out and what they need to have in place.
    There's already a provision under proposed paragraph 17.9(1)(c) that allows us to exempt persons or class of railway from the operating certificate. So there's already a possibility that if, for whatever reason, depending on what is being brought before us, we could say a certain class of railway.... For instance, maybe urban transit authorities do not need to have a railway operating certificate because we do have a level of confidence that they're operating very safely. On the other hand, the rest of the act would apply.
    As Mr. Watson said, when some of the urban transit authorities testified, they said they enjoyed their relationship with Transport and they had no issues for us to inspect them, to audit them. I told them about the possibility of administrative monetary penalties that we would have to give to CN or CP, and in turn CN and CP would go to them, they told me, “No problem, give it to us right away.” But we can't do that without this tool.
    Somehow, it seems that they are willing to comply with everything we have in place, but not the railway operating certificate.
    I agree with the parliamentary secretary that because they're dealing with people and not just cargo, it's important that safety regulations be in place, and I think it has to be covered. I guess it's just who is going to be responsible for covering that? That was my question, whether it would be the ones who own the actual track or the ones who are operating the rail.
    I think, as you've said, what you've done is try to incorporate it so there will be a definition of who will be covered and the responsibilities for various aspects of that transport.
    Mr. Colin Mayes: Okay.
    Thank you very much.
    No further comment?
    Mr. Laframboise.


    It's true that there are negotiations between CN and CP about using the tracks. But now, urban transit authorities will be forced to get the certificate. If there are discussions on the quality of the tracks, for example, they will have to refer directly to the contract negotiations with the operators, because the operators don't have the same responsibilities. An operator carrying or transporting wood does not have the same responsibilities as an operator transporting people. Their responsibilities are currently bound by a contract. So, if you are ever questioning a certificate because you find there is a problem with the track or whatnot, the parties will be forced to go renegotiate the contract.
    What urban transit authorities are afraid of is the cost. They are not necessarily afraid of getting that, but rather of who is going to pick up the bill. Ultimately, they are going to be the ones paying. And you are well aware of that. There is no choice when it comes to transporting people; it must be done every day and if, at some point, work has to get done, some of the risks will be transferred over. You are about to transfer the burden to the transit authorities. That is not your intent, but I am telling you that is what is going to happen...
    ...because their operating certificate is going to be questioned. You are going to question them, they are going to have to fix it quickly and it will come out of their own pockets. That's what is going to happen.
    No. Mr. Laframboise, what I can tell you is that, even as we speak, slow orders have been given to the CP on tracks used by AMT, which were considerably slowing down the AMT trains coming into the Lucien-L'Allier station. The CP is responsible for solving this problem. Of course, they have contractual agreements. If they have service standards to comply with, they will have to comply with them. However, their contractual obligations for track maintenance should not be confused with a permit telling Transport Canada what the list of regulations for their operations is. They will be providing that document, which will then govern the Transport Canada audits and inspections. And that's what is going to happen. What you are saying is already happening. As to the Canadian Pacific Railway, I am not familiar with the contract, but I suppose there are service standards. If the Canadian Pacific Railway decides not to repair the track and that the speed limit has to stay at 40 miles per hour for 20 or 30 miles, we, at Transport Canada, are not going to get involved as long as the train is safe when it travels at 20 or 30 miles per hour.


    That's fine, but now, you are going to get involved because they are going to need their certificate. You are going to get involved with the commuter trains.
    No, because their certificate will not change the fact that it is safe at low speed. That is not going to change.
    Thank you.


    Mr. Jean.
    Just very quickly, I want to say that nobody can operate a track without a contractual obligation to keep the track in good repair so that the operators can operate it. There's a contractual obligation on all the track owners to do so. I would think that's the case between the privity of contract between the operator and the owner.
    I think that would take care of that issue as well, from my perspective.
    Is there no further comment?
    I will advise the committee that this amendment must be adopted if amendments BQ-2 and BQ-3 are to be admissible.
     Mr. Watson has a point of order.
    We moved past clause 4 to deal with this, because—
    We're on amendment BQ-3, but you said this amendment has to be approved in order for “BQ-3” to be admissible.
    I'm sorry. This amendment must be adopted in order for BQ-1 and BQ-2 to be admissible.
    So it is BQ-1 and BQ-2.
    The Chair: Yes. I apologize.
    Mr. Jeff Watson: No, that's fine. Thank you.
    I just wanted to make sure the committee knew that.
    Shall the amendment carry?
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 10 agreed to)
    There are no amendments put forward to clause 11.
    Shall clause 11 carry?
     Mr. Chair, are you not moving back to clause 4?
    I thought I would move through this. None of the previous amendments to clause 4 impact the rest of the bill. That was the only one, clause 10. That's why we asked to have it moved to the end.
    We can go back there, if the committee chooses.
    I'd propose that, Mr. Chair, just for the simple reason that it's easier to shuffle the paper if we're doing it in sequence.
    Is that the will of the committee?
    Some hon. members: Agreed.
    The Chair: Then we are going to move back to clause 4.
    (On clause 4)
    The Chair: Amendment BQ-1 is no longer admissible, and amendment BQ-2 is no longer admissible, so we will deal with amendment G-1 on page 2 of your package.
    Mr. Jean.
    Thank you, Mr. Chair.
    I think this is self-explanatory. What we are doing here is defining the highest level of safety and what it means. In this particular case it means “the lowest acceptable level of risk as demonstrated by a risk management analysis”.
    We heard from the witnesses in particular that they liked this. I don't know whether Mr. Bourdon would like to make any comments on this, but I think it's self-explanatory.
    The bill did not define what “the highest level of safety” meant. We thought it would probably be appropriate to have a clear definition. I can say that all the stakeholders we talked to during our briefing agreed that this was a clear definition that would at least allow us to clearly define what we mean by it.
    Mr. McCallum.
    I previously made the observation that it had to be defined or it didn't really make sense, so I think this is good.
    Is there any further comment?
    (Amendment agreed to [See Minutes of Proceedings])
    The Chair: This now moves us to amendment LIB-1, and, I'm going to say, amendment NDP-1. If you look at them, they're very similar. I would think the committee might want to either address them both at the same time and/or accept one over the other through a subamendment. They're very similar.
    We will take amendment LIB-1.
    Mr. Watson, do you have a comment?


    The only difference between them is the additional word “human”; is that what I'm to understand?
    That's my understanding.
    In the English version, that is correct.
    Are they the same on the French side?
    Mr. Jean.
    I was just going to say that I have no difficulty with either one. But I was just wondering whether, from Mr. Bourdon's perspective, “human” detracts there. Does it make any difference?
    I mean, with “fatigue”, I don't think we're going to be looking at animal fatigue or train fatigue. But I just want to make sure, does it, in your...?
    Either way it's okay.
    And, I'm sorry, Mr. Bourdon, are you a lawyer, a drafter,'re an expert with safety?
    I'm...yes, I have spent most of my career with—
    Now, isn't it right that Ms. White-Taylor is the lawyer and drafter with expertise?
    Oh, my goodness.
     We have too many lawyers at the table already.
    Voices: Oh, oh!
    Does that meet with your approval as well? Does it seem to be appropriate?
    We have our lawyers here, so....
    It's just to know whether it means—
    Oh, I see; of course. You were blocking the light before. I can see him behind you now.
    Could he just add a perspective on whether or not the word “human” would make sense in terms of legal precedent?
    He has to come to the table, if he's going to speak.
    If you wouldn't mind, would you just introduce yourself into the microphone and make your comment, please.
     Good afternoon. I'm Alain Langlois from Transport Canada legal services.
    Bearing in mind that I'm not a drafter but spent considerable time in a drafting room drafting this legislation, let me say that the notion of “human” adds some clarity to the notion of “fatigue”, so in that sense it's probably of benefit.
    Thank you.
    Mr. Jean.
    I was just going to mention that the French version seems to identify “human” in both the Liberal and the NDP amendments, so it would seem that “human” would make more sense, if that's all right with Mr. Julian and Mr. McCallum.
    Mr. Julian, I'm not sure you heard Mr. Jean's comment.
    I apologize, Mr. Chair.
    Mr. Jean, would you care to repeat it?
    I just mentioned that the Liberal amendment already had “human” in the French version. I think, based on that, I'd prefer your version.
    Thank you, Mr. Chair. I'd like to share the credit with the Liberals, though; I think we've both come up with the same amendment.
    If everybody is comfortable, we will accept the NDP amendment, which talks about “human fatigue” as opposed to just “fatigue”. Is everybody comfortable with that?
    Some hon. members: Agreed.
    The Chair: Okay.
    Then I would ask whether the NDP amendment carries.
    (Amendment agreed to [See Minutes of Proceedings])
    Mr. Bourdon.
    I just want to add something. The definition of “fatigue”, I believe, was included as an amendment because it makes reference to another amendment that makes reference to rules on scheduling.
    Yes, that's right.
    But there are no rules on scheduling.
     No, that's what I say. It will only be good if amendment LIB-3 passes.
    It's amendments NDP-5 and LIB-3, I believe.
    Amendment NDP-3 has to do with clause 19.
    It's clause 37.
    Clause 37 would read: “systems must conform, including the principles of fatigue science which must apply to scheduling rules”.
     I guess that's why you wanted to define fatigue science. However, there are no scheduling rules in place, and we do not have the authority in the act under section 18 to create a rule on scheduling. The reference to SMS would not be a rule; that's the issue. A “rule” really means...what it is. So that's an issue.


    Is it an issue we can deal with when we get to the clause, or do we want to address it right now?
    Yes, when we get to the clause, I think, is okay. It makes sense.
    That's for clause 37.
    (Clause 4 as amended agreed to)
    The Chair: Now we're going to move back to clause 12.
    (On clause 12)
    Mr. Chair, it may be simple for Mr. Julian to go backwards, but it threw me right off.
    We finished off on clause 12 when we reverted to clause 4.
    We finished clause 11.
    Yes. We're doing clause 12.
    Clause 11 was carried, and then Mr. Julian made his intervention and we went back to clause 4. We've addressed that, so now we're moving on with clause 12.
    There are no amendments for clause 12.
    Shall clause 12 carry?
    (Clause 12 agreed to)
    The Chair: I do appreciate all the help of the committee members.
    Some hon. members: Oh, oh!
    (On clause 13)
    The Chair: We have amendment NDP-2, on page 8 in your package.
    Mr. Julian.
    Thank you, Mr. Chair.
     What this would do is simply add that in making regulations around level crossings under subsection 18(2), “the Governor in Council shall take into account, as a primary consideration, the safety of the public and personnel.”
    I'm just speaking on behalf of Mr. Bevington, our transport critic. He mentions that there continues to be an issue around level crossings and ease of access across railway tracks. He references the railway safety report, Stronger Ties, saying that crossing accidents comprised 23.6% of total accidents in 2006 and that since 2001 an average of 84 people have been killed or seriously injured annually as a result of crossing accidents.
    So this would make sure that primary consideration is the safety of the public.
    On behalf of Mr. Bevington, I so move.
    Are there comments?
    Mr. Trost.
    I'm not quite sure what to make of this. I understand what Mr. Julian said, but forgive me; isn't it already implied in just about everything we do on a safety bill that safety is the entire purpose of this legislation? I know that when I'm saying “safety”, I don't have to put the word “human” in front of it—maybe in the French translation, but....
    I'm just not following why this would be necessary. Does it actually add anything whatsoever?
    It doesn't, really, because this is already included in the act's objectives at the beginning, in section 3.
    Also, all of our regulations follow those principles as well as the cabinet directive on streamlining regulations, so we would be looking always to safety.
    Coming from rural Saskatchewan, where sometimes certain animals are viewed as more valuable than some humans--like politicians, say--you'd still take care of us first.
    Thank you.
    Mr. Jean.
    I have literally no problem with is--I think it's a repetition--but I was wondering whether I could ask the gentleman in the back, the legal expert, in relation to the words “primary consideration”, what the legal ramifications would be.
    I apologize; I promise not to put you on the spot too much.
    I enjoy it.
    I think, practically speaking, it's not going to make a huge difference. I firmly believe it's completely redundant; it's already in section 3 of the act.
    By virtue of saying that the primary consideration has to be that, it must be that when you enact the regulation; your first focus has to be on that. But it doesn't meant that has to be the only focus. It adds a twist to what you're actually going to consider when you enact the regulation, but it's stuff you're already looking at, so it wouldn't change anything, essentially.
    But it is redundant. I mean, there's no doubt about that.
    Is there further comment?
    Can I just add one more thing, Mr. Chair?
    We're currently developing some crossing regulations as we speak, and one of the things we had to do was come up with how many lives we believe we're going to save, and how much property damage.
    The only way we can bring that regulation forward is to justify that we're saving lives and saving some dollars, so it's already accounted for in the process we have to use. If there is no saving, it's very hard for us to push that.


    Mr. Julian.
    My final comment, Mr. Chair, is to say that obviously this isn't going to hurt in any way, and if it adds an extra level of pressure on the government for safety standards, I don't see what the harm in adopting it would be.
    Thank you.
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 13 agreed to)
    (On clause 14)
    The Chair: We move to amendment G-3, on page 9.
    Mr. Jean.
     Mr. Chair, I'm going to ask Mr. Bourdon to specify this.
    My understanding is that this part of the act allows third parties to do work in respect of it, but because I don't have the whole section in front of me, I was wondering whether he could speak to amendment G-3 to clause 14, in particular to the “formulation or revision of standards or rules under section 7”.
    I don't really understand, to be honest. I read it a couple of times and I was briefed on it, but I just don't—
    Do you mean the addition of “standards”?
    It was an omission. It's already in the act, but we forgot, when we drafted this, to include “standards”.
    Okay, perfect.
    Are there any other comments?
    Mr. Julian.
    Mr. Chair, either there's an error or perhaps I'm misreading it. It says “section 7”, replacing “sections 19 and 20”.
    Am I reading that wrong?
    You're right; there's a mistake between the French and English.
    Very good. I didn't even notice that, but there is a difference between the French and the English versions, actually.
    You're right, Mr. Julian; it's sections 7 and 19 to 20. I don't understand that. Thank you for pointing it out.
    Well, if we could go further, what do sections 7, 19, and 20 impact, then? I'll ask the government, what was the intention; was it to bring section 7 in?
    I think the amendment itself was to....
    Oh, I know why, Mr. Julian, if I may—
    Just for the clarification of why it says—
    It is because the French version is different.
    It is two lines, and the English is only one line.
    Yes, exactly. That is exactly why. That's why the French version has those words in it: in order to amend it properly for the legislation, the lines in the French version are longer. When they delete a line and add the new line, it has to be a complete version.
    It makes sense.
    I understand that, but I just want to know the concrete impact of adding section 7.
    It's not adding section 7. The only word that has been added here is “standards”. Because it already exists in the current legislation.... My understanding is that the current legislation says “formulation or revision of rules under section 7” and that what we're trying to add is “standards”. I thought that was what the witness indicated.
    I have it in front of me, Mr. Julian. Let me just....
    The way the bill is currently worded, it says “sections 19 and 20”. The amendment would add section 7.
    I certainly understand the explanation around the lines. In French and English, the lines are lining up differently. But there is an addition of section 7, so I would like to know what the impact of adding section 7 is.
    Mr. Bourdon.
    It's because they added the word “standards”, and therefore they put “section 7”, because this is where it is.
    Standards are found in section 7.
    Mr. Luc Bourdon: Yes.
    Mr. Peter Julian: Okay.
    Shall amendment G-3 carry?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 14 as amended agreed to)
    The Chair: There are no amendments for clauses 15 and 16.
    (Clauses 15 and 16 agreed to)
    The Chair: Mr. McCallum.
    [Inaudible--Editor]...those clauses.
    Yes, I will, once we get into the bulk of them.
    There are no amendments for clauses 17 or 18.
    (Clauses 17 and 18 agreed to)
    (On clause 19)
    The Chair: We have an NDP amendment on clause 19, amendment NDP-3 on page 10.
    Mr. Julian.


    Thank you, Mr. Chair.
    Currently the act reads that
The Minister may designate any person whom the Minister considers qualified as a railway safety inspector or a screening officer for the purposes of this Act
    What Mr. Bevington is proposing is that it be changed to read “employee,”—of the crown—“as defined by section 2 of the Government Employees Compensation Act” and that only employees of the crown would be railway safety inspectors.
    Mr. Bevington reminds us, and you will recall, Mr. Chair, that the Union of Canadian Transportation Employees came forward and stated their concern about having inspectors who could be appointed who were employed by the railways, which creates a conflict of interest. This would very clearly stipulate that employees of the crown—government employees—are the only ones who could be safety inspectors and thus remove that potential conflict of interest that exists.
    On behalf of Mr. Bevington, I will move that.
    Mr. Trost.
    My understanding is that this would then prohibit outside contractors, outside independent experts, or even retired personnel who had previously worked as employees but had maybe gone consulting or something, from being included. That's my understanding.
    Would that be correct from your perspective?
    Unless someone can convince me otherwise, my gut tells me I will be voting against this. The question I have is that I don't understand why we wouldn't look for the absolute best person. I suspect there are not tons of people outside the government who are qualified for this, but there may be, and why wouldn't we go for the best?
    I'll ask the first question to the witnesses.
    Are you aware whether there are many people outside the government, number one, who would be qualified to take these positions? I know it is the minister's judgment, but would there be, and what sort of ranks would they come from?
    It never happened in the past. Usually, when people come on board with us on a contract basis, they work for us. If they've got the qualifications, we may qualify them as railway safety inspectors.
    The only issue I have with the way it's worded now is that it makes reference to “screening officer”, who are not under the purview of the rail safety directorate. They're under security. So I could not accept something like that without at least consulting with them to see what it means, whether they have security officers who would be impacted by that. They don't report to us.
    Are you saying this would then take the ability...? Not that the minister necessarily would do this to put a screening officer, but instead of having some of the technical expertise of safety, in theory you could have someone who had more security expertise, then, be put in charge. Am I understanding that correctly?
    No, the thing is that the Railway Safety Act, the way it's worded now, is what we use to determine who's going to be a rail safety inspector, who reports to my directorate, but it also covers screening officers who are under the security directorate, which is another branch in Transport Canada. We got that yesterday afternoon, so they've never been consulted on that. I don't know what the impact would be for them, on screening officers, on their ability to qualify screening officers. I can't provide any information on that.
    So we'd sort of be flying blind if we voted for this, not knowing the consequences.
    It could be, yes.
    I'm not comfortable, then. Again, to your experience, basically everyone who's ever done this job has been a government employee.
    Working for us either on a.... I mean, we have people who are hired full time with us, but we do have to bring in people part time.
    So this amendment would then be dealing with a theoretical possibility that's not happened yet.
    It could happen, yes.
    Okay. So we might want to be precluding some unique circumstances.
     Thank you.
    Mr. Jean.
    I was just going to say that this brings me back to what happened with the underwear bomber. What if we got a threat in relation to trains, or particular trains, and all of a sudden we had to have 50 RCMP officers out there doing inspections for screening? I can't imagine that happening, and I sure hope it doesn't, but if in an emergency situation, if we get a threat from somebody like that, I think that would be a situation where you might say, okay, immediately we have to get 50 RCMP officers on a train and they have to be Transport Canada employees or whatever the case might be.
    Would that be a situation that might...?


    I don't know, because again, it's a security situation. We don't deal with security. We don't even deal with safety. From a safety standpoint, every inspector who carries out the function of an inspector needs to be qualified as per our own criteria. We do have training programs they need to follow; then they will get their inspector card. Everyone we've got now is a Transport Canada employee, but we do from time to time, because there's a shortage of people and it's hard to find someone...that we will hire someone who has all the skills and bring them on board for six months.
    Mr. Julian.
    Thanks, Mr. Chair.
    I don't have as part of the amendment, of course, the definition in the Government Employees Compensation Act, but it includes, “any member, officer or employee of any department, company, corporation, commission, board or agency established to perform a function or duty on behalf of the Government of Canada who is declared by the Minister” or “in the service of Her Majesty”. That's how it's defined in the Government Employees Compensation Act. I think the scenario that Mr. Jean raises is dealt with in the definition of federal employees under the Government Employees Compensation Act.
    I certainly do respond to the concerns around screening officers, and I'd entertain a friendly amendment if the will of this committee was to exclude the impact of this amendment from screening officers. The intent was to ensure that railway safety inspectors were government employees.
    I don't see anyone coming forward. The “ask” has been put.
    Is there any further comment?
    All right.
    Shall the NDP-3 amendment carry?
    (Amendment negatived [See Minutes of Proceedings])
    (Clauses 19 and 20 agreed to)
    (On clause 21)
    The Chair: We are on government amendment four, on page 11.
    Mr. Jean.
     Yes, Mr. Chair.
    I beg to be corrected if I'm wrong, but I understand that what we're doing in this case is adding the word “company” so that it would specifically state that it would be a “company supervisor”, and not, for instance, as Mr. Julian might put it, the ability to farm out.
    We want to make sure--under both (a) and (b)--that a company supervisor is the person doing the work that is necessary.
    Is that correct, Mr. Bourdon?
    This was simply an oversight. “Company” has to be included so that it's specific.
    Seeing none, I'll ask, shall amendment G-4 carry?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 21 as amended agreed to)
    The Chair: Shall clauses 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 carry?
    Up to clause 36.
    I was just going to do it by the page.
    Shall clauses 22 to 31 inclusive carry?
    Mr. Jean, go ahead.
    Just to clarify, there are no changes on any of those?
    There are no amendments.
    (Clauses 22 to 31 inclusive agreed to)
    The Chair: Shall clauses 32, 33, 34, 35, and 36 carry? There are no amendments.
    (Clauses 32 to 36 inclusive agreed to)
    (On clause 37)
    The Chair: We have several amendments here.
    We will start with Liberal amendment two. Again, I would suggest that it and the NDP amendment, NDP-4, are identical. One or the other can take the lead on it.
    Mr. Jean, go ahead.


    Chair, I just have a point of clarification.
    Was there a coalition between you two guys on these amendments? I'm just totally curious here. They're identical.
    Great minds think alike, or...?
    Just intelligent thinking, that's all it is.
    Thank you.
    I'm not afraid to say it, Mr. Chair: yes, there was a coalition.
    Mr. Dhaliwal, do you want to take the lead?
    Thank you, Mr. Chair.
    We heard from the workers that there is always a fear of reporting to Transport Canada. We also talked to Transport Canada when they were here, and they had no problems if we included this particular amendment to the act.
    That way, their employees will be able to report directly to Transport Canada instead of to the Transportation Safety Board, which is responsible for investigating accidents. It doesn't take a proactive approach to prevent accidents.
    Does anyone have any comments?
    Go ahead, Mr. Jean.
    I know it comes as a surprise, but I do have a comment on this.
    We did hear from witnesses who indicated that the TSB already has a system set up to receive complaints, but as a government fully transparent and accountable, we want to make sure...and I think it's a good amendment, but what I'm suggesting is maybe making a friendly amendment to it, to allow them to report to either Transport Canada or the TSB, or both, because both of them have a system.
    I wanted to let you know as well that we did a little research on this to make sure that we could report back to the committee properly. I discovered that in the 2009 budget, our government, the Conservative government—
    The Harper government?
    Yes, you're right. Thanks for the correction.
    The Harper government put a significant amount of money into the budget so that complaints through Transport Canada could be more accurately and better dealt with.
    Mr. Bourdon, I don't know if you know that exactly, because I didn't get that information from you, but is that your understanding as well?
    Yes, but there's one thing that the current bill was trying to do under SMS. It has tried to change the safety culture in the company, and get the company and the employee to try to resolve their issues first, before they come to us, and have the company put in place a non-punitive reporting system.
    I think it's important that, before they report to us, there's an opportunity to try to fix their differences. We cannot ask the government to be involved in disciplinary measures with the companies. I'd say more than 99% of these workers are very professional, and I don't think anyone in the morning wakes up to get involved in an accident or in a derailment. But from time to time, you may get some negligence. It's not because someone comes to Transport right away and says “I'm going to report what I've just done, then I won't be disciplined for it.” I think they have to resolve these issues first at the company level and then, if it fails, they can come to us at any time, which they're doing right now.
    Mr. Jean.
    I do want to respond to this, Mr. Bourdon. First of all I agree, I think your department does an excellent job—I really do. But at the same time, I think we've heard evidence somewhere that suggests one company in particular has had over 6,000 complaints and another company has had 500 complaints.
    I do understand that it should be resolved first at the company level, as with all companies. At the same time, I also believe that if you are the regulator, as Transport Canada is—the Transportation Safety Board is separate from that.... When people are working on something as important as rail, especially when you're transporting you've seen, we've had that amendment come through, which I think is a much better thing. I think they should have the opportunity to address the issue with the company first, but then they should have the ability through Transport Canada...which, of course, we've given more money in the 2009 budget, and the TSB, which already has a 1-800 tips line set up.
    After speaking to the opposition in particular, speaking to some union members, and hearing the evidence, I think they should have the options. Although I don't think the disciplinary measures should be doled out by Transport Canada in regard to this, I think the making you aware of it is very important. I think we've heard clearly that they want your involvement, because you are very good at your job, and you get results.
    Bluntly, then, I think it has to be in there. I would welcome any comments from anyone else. The options are necessary, and it gives Canadians options.
    I would also suggest, if I may say this to the department and those people listening, it would be a good idea for people to know they can call. Honestly, I think if TSB would have had that 1-800 tips number...a lot of witnesses came before us and they didn't realize they could actually tell the TSB. Maybe it's communication, but whatever it is, it's not working.
    That's why I'm suggesting this friendly amendment. I think we want to make sure that everything works, and this will make it work.


    I accept that amendment.
     If the subamendment is accepted, then we want to make sure that the whole committee agrees.
    Is there more discussion? Do we want to work on the subamendment?
    I have three people left to speak.
    And I need to know the exact wording.
    I can read it out.
    If you would, that would be good.
    It would say:
reporting and confidential reporting to the Transportation Safety Board or Transport Canada by employees of contraventions
    The reason I've proposed the elimination of “Transport Canada Rail Safety Directorate” is that we're putting it in legislation, which is very restrictive, and the regulations will deal directly with how it is done, but if there is a change of name, for instance, of the rail safety directorate, then of course the legislation would have to be changed. If it's Transport Canada, the regulations will specify to whom it goes and what their job is, once the complaint has been made.
    Mr. Chair, I'll read it one more time, if I may:
reporting and confidential reporting to the Transportation Safety Board or Transport Canada by employees of contraventions
    That's a good amendment. It strengthens it even more.
    So everybody's comfortable with that?
    Mr. Sukh Dhaliwal: Yes.
    The Chair: We'll deal with the amendment as it's been amended.
    I'll go to Mr. Julian.
    I think everyone accepts the amendment by Mr. Jean, which is very helpful. I want to reinforce my support for the amendment that is offered by the Liberals.
    The teamsters put forward the concerns about being able to report these confidential issues that come up. It seems to me to be incumbent on the committee to have a confidential reporting structure so we can have whistle-blowers working in a climate that allows them to raise these concerns.
     I support the amendment.
    Mr. Laframboise.


    I am going to support the amendment and the subamendment, but I have a question for Mr. Bourdon.
    You seem to have some fears. Are you afraid that the current system is not working?
    No, not at all. There is one thing in the safety management system that we are trying to push a bit. To the extent that it is possible, we want the companies to try and sort out their differences, and make an effort to improve employee communication and culture. If that doesn't work, they should come to us, just like local health committees do.
    This is what it says in what he submitted: you prepare an internal report or you can...
    Yes. We don't really have a problem with that. The TSB already has a program called SECURITAS. I would suggest that they perhaps report to Transport Canada in order to avoid having two groups running after the same files.
    That's the gentleman's subamendment.
    If it were possible to limit it to ourselves, it would be easy, given that there is already a program in place.
    He is adding the Transportation Agency. You personally wouldn't want him to add the Transportation Agency.
    It's because they already have a program in place, a well known program that is not in the legislation. If we want to have it in ours, I think we should make sure that everything that is reported under the Railway Safety Act goes to one agency only, so that we don't have complaints from both sides and have two separate groups...
    I am having trouble with this. You are not getting it. I told you earlier that urban transit authorities certainly don't want to have to report to two authorities. In Quebec, they are already reporting to the Quebec government, and they will now have to report to the Canadian government. I am just pointing that out.
    No, the TSB has authority when something happens on federal tracks.


    Mr. Watson.
    Thank you, Mr. Chair.
    I have one important clarification: it was the Harper as opposed to Martin government.
    With respect to the friendly subamended amendment—I don't know if we can call it that or what terminology would apply to it—I think it's actually a step forward with respect to worker safety. I think the consensus emerging around the table, for the benefit of course of our witnesses who are here today, embodies the fact that there's little confidence yet that there's been a measurable improvement in the safety culture with respect to some rail companies, the same lack of confidence in those same companies that was expressed in the expert panels review and by this committee at an earlier point.
    To correct Mr. Jean on one other thing, these aren't complaints that have been registered at the companies; these are grievances more specifically. We heard that at CN it was more than 6,000 grievances that have been unresolved. At CP it was more than 400 unresolved grievances. The CP number was actually confirmed by CP. CN did not refute. Although it had opportunity to refute the number, it didn't.
     Leaving this simply to CN and CP to resolve at this particular point I don't think is workable. I support the concept of safety management systems as that additional layer of safety. Perhaps that will evolve a little further at some point when CN and CP show measurable improvement in their safety culture. You may see the committee willing to accept that at some future point, if this is ever reviewed again by the committee. But as it stands right now, I'm not sure, in good conscience, I could simply leave it to the safety management system at this point.
    That's why I'm supporting the sort of “friendly amended amendment”.


    Mr. Dhaliwal.
    Thank you, Mr. Chair.
    In fact, making this amendment to the amendment, which we proposed here on this side, strengthens it. Right now, if we look at it this way, the Transportation Safety Board operates under the regulations. Including that into law would strengthen it even further.
    Mr. Jean.
    I will just be very quick, Mr. Chair, and I appreciate that.
    I do want to clarify a couple of things.
    First of all, we have--and I think you know this--an excellent relationship, on this side of the table, on the Conservative side, but I know with many the other members, with some of the unions that have come forward, especially.... Actually, I'd like to show my appreciation of Phil Benson of the teamsters, in particular, who has helped us with some of these amendments.
    But to make it clear, for the record, the TSB and Transport Canada are two separate entities. After dealing with Transport Canada and the TSB for some period of time, I know they take great pride in the fact that they don't report directly to Transport Canada and they're not accountable to you. I think this gives employees the opportunity to let both parties know.
    I looked, quite frankly, very considerably at your amendment, and this particular one, but I think we need to give that option. It clearly identifies, as Mr. Watson said, that CN and CP have to get their acts together in relation to these grievances and in relation to their employees. I think it's very important.
    But in no way do we want to take away the fact that they should be dealing with the company at first instance, and make sure, in relation to that, when the regulations are drafted, I think, to reflect that, because I think that is the will of the committee. It makes good business sense as well. Certainly any employee who has grievances that are not answered should be able to go to the next step, but before that they should deal with the company and solve it. I think that's clear.
    As you say, 99% of them are very professional and will do that, but for that 1% who may not, well, we're going to suss those people out, or you will suss those people out in time.
    I would like to move forward with this amendment and try to get this wrapped up today, if we can. I think it quite frankly is a good amendment.
     Mr. Trost.
     Perhaps I can just summarize quickly.
    Your concern with this amendment is that it will undermine a more positive safety culture that you're hoping will develop through internal mechanisms at these companies. Do I have that right?
    No, we don't believe it's going to undermine; the only thing we want to make sure is that there is an attempt to resolve it at the company level first, and that if it can't be resolved then they come to us. So if there is an opportunity first to fix it at the company level, and then they come to us, we have no problem with that.


    Okay, so then let me try to summarize again. Your concern is that it will short-circuit the company resolution processes, which would be a better way to handle the bulk of the questions initially.
    When we get a complaint, the first thing we do is investigate. Obviously what we would hope to find was that they had tried to resolve it first. If we contact the company and they say, “You know, we never heard about this complaint--”
    Do you have concerns that if this goes through it could overload you, because there'd be more going to you than through the company?
    We honestly don't know.
    Right now when someone reports something to the TSB, most of the time they send us a letter and ask us to investigate.
    Mr. Julian.
    I agree with the subamendment and the amendment as offered, and I don't really see the objections around confidential reporting to the TSB. I've been listening very attentively, but I have to agree with committee members who are saying this just provides a very specific option for confidential reporting.
    Mr. Jean.
    I might have to re-evaluate my position now that the NDP have agreed with me.
    Mr. Jean is a very wise man in this particular case, and I support him 100%.
    He could be part of the coalition, Mr. Chair, if he wanted to cross the floor.
    Voices: Oh, oh!
    Are we ready? Okay.
    Shall amendment LIB-2 carry? We had agreement that we would add the subamendment, so we don't need to deal with that.
    (Amendment agreed to [See Minutes of Proceedings])
    The Chair: Now we're going to move to two other amendments, NDP-5 on page 14 and LIB-3 on page 15. They're virtually identical--not exactly--but should the amendment NDP-5 carry, amendment LIB-3 cannot proceed.
    Mr. Dhaliwal.
    Where amendment LIB-3 has “may”, amendment NDP-5 has “must”.
    We all heard that fatigue is a major cause in railway accidents, and it can only be prevented through scheduling rules that are best decided on between management and labour. If it cannot be decided there, then we should have an option to take it to the other level.
    So instead of “must”, we should insert “may”. That will fit better.
    Before I proceed, we have two amendments, and amendment NDP-5 was in the order of precedent received....
    I would need Mr. Julian to move the motion, and then if you want to amend it to include “may” as opposed to “must”, that would be part of the debate.
    Mr. Julian.
    Thank you, Mr. Chair.
    I will move the motion for the amendment, understanding that Mr. Dhaliwal may move a subamendment.
    But first, we had started to talk about the issue of receivability. I would appreciate it, before I speak, if our witnesses would perhaps follow up on what they were beginning to say on that. I think that would help.
    I'm sorry, I was reading this. Can you repeat the question, Mr. Julian?
    You had raised concerns around any amendments that touch scheduling rules, and so--
    The definition...I think it was defined in orders, or later on in the amendments, we would talk about fatigue science in the context of scheduling rules. The issue is that there are no rules about scheduling, as we speak, and we have no authority currently in the act to force the industry to develop rules on scheduling.
    May I ask you, is it legal to have an engineer work for 72 hours straight?
    Then you're falling under what we call the “work rest” rules that we have in place that give the maximum time that someone can be on duty and the time being provided for rest.
    This one talks about scheduling, about having better knowledge as to when they may be called again. My point is not that we are against what is being said here. What I'm telling you now is that when you talk about scheduling rules, they don't exist as we speak. That's the point.


    No, but we may be talking about semantics, right? What we have is a regulation--
    No, no, “rules” are a regulatory instrument under section.... The authority comes under section 18 of the current RSA. There are no provisions to allow us to do rules on scheduling. That's the issue.
    Well, okay, so we're looking at proposed section 47.1:
The Governor in Council may make regulations respecting safety management systems including, but not limited to, regulations respecting
    We've gone through a number of the list points, and the final one would be with both the NDP and the Liberal amendments talking about principles of fatigue science that must apply or may apply to scheduling rules.
    You're not disagreeing with that. You're simply saying that the regulations around safety management are a separate portion of the act.
    That's correct.
    Okay. So how do we fix that, then?
    If you really want to fix it, the way would be to--
    Because you understand the principle that we're approaching.
     It would be to amend section 18 to provide the authority to make rules on scheduling. That would be the way to do it.
    Mr. Jean.
    But this amendment will allow that, will it not?
    If I may, I think I'll ask Mr. Dhaliwal...because maybe your amendment might carry that.
    Yes, it might carry that.
    Will you present it and then we'll kick both around?
    In discussing Mr. Julian's, I'd like you to discuss yours--as opposed to “must” and “may”.
    The way I see it is that...because in this one, it's “which may include scheduling rules consistent with the principles of fatigue science”.
    Perhaps I could just interject for a moment.
    The government's position is that we are in favour of Mr. Dhaliwal's amendment. My difficulty is I know we have seven minutes before the bells go, and if we do not pass this, we have a break week and another time. I don't know if the Liberals and the coalition are going to pull us down or not, but I'd like to get this done today.
    So unless there are specific questions that relate to this that wouldn't solve the issue, I would really prefer to try to deal with it.
    We've in favour of this amendment. We think it's good, and we're in favour of whatever else we need to do in order to give effect to this amendment.
    Mr. Watson.
    Just briefly, I imagine if you ask the witnesses, it's the same issue between NDP-5 and Liberal-3, and that is that nowhere is there a concept of what “scheduling rules” are. So how do we give effect to that?
    An hon. member: They told us that already.
    Mr. Jeff Watson: Oh. Okay.
    Why don't we deal with this one and then make that amendment? Can we do that? Can we vote on this and then take the suggestion on the amendment?
    Mr. Julian.
    Mr. Chair, I think with the unanimous consent of the committee we can extend beyond the bells starting. I think we need to take just a minute or two to tweak this.
    I'm still unclear as to why “must” clearly takes us to another section of this act but “may” doesn't. It would seem to me that either they're both problematic or neither of them is.
    Mr. Bourdon.
    An hon. member: Can you repeat that question, Mr. Julian?
    I don't understand why “must” would take us to a different section of the act and “may” doesn't. The two of them are the same problem.
    They're the same.
    They're the same thing, yes.
    So it's not the “must” versus “may”.
    No, it's the fact that we don't have any authority to do scheduling rules--not that we're against your amendment; the authority doesn't exist at this time to create scheduling rules.
    Within SMS.
    Yes, or anywhere, actually, in the act. I think the power to make rules are under section 18 of the current act, and there's nothing for scheduling.
    And that's where we could recommend that we include the authority.
    I'm going to go to Mr. McCallum.
    I'm wondering if it would be possible to pass this as it is, and then perhaps have report stage amendments that would make it work.
     I think we all want to do it.


    Mr. Bourdon.
    If you want to have something within SMS that could work, we did have some wording prepared that we can provide you.
    Mr. Julian, we're in favour of this, just to put it on the record, and we're in favour of the wording that Mr. Bourdon is suggesting to make it so we can have scheduling rules. But if we can deal with Mr. Dhaliwal's first, and then the proposal from the floor, with unanimous support from this side, to hear Mr. Bourdon's proposal in relation to bringing it in so there can be scheduling rules, then we're prepared to do that.
    I have Mr. Laframboise.


    Mr. Chair, you understand that we would like the wording to be clear, and the French version to match the English version. We seem to have a problem with semantics in the two texts. The French wording is also very important.


    Mr. McCallum, do you have a comment?
    No, I've already had mine.
    Then we will go back to Mr. Bourdon,
    You have language for us.
    We have two options here that we can propose.
    Before you do that, we're using this in reference to the motion presented by Mr. Julian.
    There is one, if you want to include something into SMS. However, that will not be scheduling rules.
    What is being proposed here is as follows:
the criteria to which the safety management system must conform as well as the components, including the principle of fatigue science applicable to scheduling, that must be included in a safety management system
    Monsieur Laframboise.


    You are talking too fast; there is no simultaneous interpretation. Take your time so that we can understand you clearly.
    I'm sorry.


    It is as follows:
the criteria to which the safety management system must conform as well as the components, including the principle of fatigue science applicable to scheduling, that must be included in a safety management system
    Are there any comments?
    I support that.
    If we're in agreement with this amendment, it can't be presented by Mr. Bourdon. It has to be presented by a committee member.
    So moved.
    Mr. Watson would move that, and I would ask if there's comment on that.
    Monsieur Laframboise.


     Mr. Watson, could you please read it?


    I think what we're doing, Mr. Chair, is that if we all agree on this amendment, I guess I'll be withdrawing the NDP amendment and Mr. Dhaliwal will be withdrawing his amendment. Then we will have cleared the deck.
    And we'll use the wording that Mr. Bourdon recommended, as moved by Mr. Watson.
    What I am proposing is that we will eliminate the amendments that were put forward, by the withdrawal by the NDP and the Liberals, and we'll substitute the amendment Mr. Watson proposed.
    Shall that amendment carry?



    Mr. Chair, I'm sorry, but we weren't able to hear it.


    I have it in front of me. If you want, I can share it with Mr. Watson.
    No, you read it into the record, please.
    It would be as follows:

the criteria to which the safety management system must conform as well as the components, including the principle of fatigue science applicable to scheduling, that must be included in a safety management system.
    Is that okay?
    Mr. Julian.
    I'd like to withdraw my amendment.
    Yes. Thank you. Your amendment has been withdrawn--
    Mr. Sukh Dhaliwal: Mine as well.
    The Chair: --and so has Mr. Dhaliwal's.
    Shall Mr. Watson's amendment carry?
    (Amendment agreed to)
    The Chair: Now we will move to Liberal 4 amendment, on page 16.
    Mr. Dhaliwal.
    Thank you again, Mr. Chair.
    This amendment will give parliamentarians the authority to review the regulations created by Bill C-33 if needed. We had similar amendments done in this committee for Bill C-6 and also for Bill C-9.
    Are there any comments?
    Mr. Jean.
    Mr. Chair, we've heard clearly a couple of times that this is good, and we're prepared to support it.
    Mr. Sukh Dhaliwal: Thank you.
    Before I ask for any more comment, the bells have started. I would need a motion and unanimous agreement that we would continue.


    We are not giving our consent.


    We have two options: we can suspend and come back, or we can adjourn.
    Can I have one minute, please, Mr. Chair?
    You can.
    I will ask again. If the bells are ringing, we need unanimous consent to continue.


    Yes, Mr. Chair, as long as we make it in time for the vote, because the vote is on the Bloc Québécois opposition motion. I hope that won't take more than...


    Agreed. Absolutely; I want to be there as well.
    Thank you, Monsieur Laframboise.
    Shall Liberal amendment L-4 carry?
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 37 as amended agreed to)
    (Clauses 38 through 44 inclusive agreed to)
    The Chair: Shall clause 1, the short title, carry?
    Some hon. members: Agreed.
    The Chair: Shall the title carry?
    Some hon. members: Agreed.
    The Chair: Shall the bill as amended carry?
    Some hon. members: Agreed.
    The Chair: Shall I report the bill as amended to the House?
    Some hon. members: Agreed
    The Chair: Shall the committee order a reprint of the bill?
    Some hon. members: Agreed.
    The Chair: Thank you.
    Good work, to the committee.
    The meeting is adjourned.
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