Bill S-2: An Act to amend the Canadian Transport Accident Investigation and Safety Board Act and to make consequential amendment to another Act (LS299e)

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	28 May 1998	First Reading:	30 September 1997
Second Reading:	5 June 1998	Second Reading:	21 October 1997
Committee Report:	12 June 1998	Committee Report:	2 April 1998
Report Stage:	12 June 1998	Report Stage:	6 May 1998
Third Reading:	12 June 1998	Third Reading:	27 May 1998

Message sent to the Senate: 12 June 1998 Concurrence in House of Commons Amendments: 16 June 1998 Royal Assent: 18 June 1998 Statutes of Canada 1998, c.20 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

On 30 September 1997, Bill S-2, An Act to amend the Canadian Transportation Accident Investigation and Safety Board Act and to make a consequential amendment to another Act, was introduced in the Senate by the Hon. Alasdair Graham, Leader of the Government in that Chamber. The bill is identical to Bill C- 86, which received first reading in the House of Commons on 6 March 1997 (2^nd Session, 35^th Parliament) and subsequently died on the Order Paper with the dissolution of Parliament.

The Canadian Transportation and Accident Investigation and Safety Board Act (CTAISB Act) was enacted in June 1989 and proclaimed in force in March 1990. The Act established an independent federal agency, the Canadian Transportation Accident Investigation and Safety Board, commonly known as the Transportation Safety Board (TSB), to investigate accidents and incidents in the marine, rail, pipeline and air modes of transportation. Two key features of the Act are the TSB’s independence from the regulatory bodies and other government departments and the common approach to occurrence investigations across all four transportation modes. The sole object of the Board is to advance transportation safety; its activities are separate from the courts; the findings from its investigations do not constitute the determination of fault or of civil or criminal liability.

The Act required that a review of its operation be initiated in January 1993. That review was undertaken by the CTAISB Act Review Commission, whose report was tabled in Parliament in 1994. Meanwhile, the Moshansky Commission of Inquiry into the March 1989 aviation accident at Dryden, Ontario, had completed its work and made recommendations pertinent to the Act. The proposed amendments in Bill S-2 are the result of consultation through an interdepartmental committee representing all affected federal departments and agencies. The committee used those recommendations of the Review Commission and the Moshansky Commission of Inquiry that were accepted by the government, as well as incorporating input from departments and agencies involved and from informal consultation and correspondence with the transportation industry.

The departments and agencies involved in the interdepartmental committee were as follows: Transportation Safety Board; Transport Canada; Fisheries and Oceans (Canadian Coast Guard); Natural Resources Canada (including the National Energy Board); National Defence; Environment Canada; Human Resources Development Canada; Privy Council Office; Department of Justice; and Solicitor General Canada.

Clause 1 would remove the definitions of "commodity pipeline" and "commodity pipeline occurrence" from section 2 of the CTAISB Act and replace them with definitions of "pipeline" and "pipeline occurrence" in the same section. The bill that subsequently became the current Act had originally used the expression "commodity pipeline" to refer to pipelines that transported commodities other than hydro-carbons (oil and gas); however, during the legislative process involving that bill, the definition of a "commodity pipeline" was widened to cover pipelines carrying any commodity. The new term would express this concept more simply.

As well, clause 1 would result in a technical amendment to the definition of "aircraft" in section 2 to make it clear that the term would include a rocket.

Section 3(3) of the present Act, perhaps as the result of an oversight, provides for the Board’s authority to investigate only "marine occurrences" related to the exploration or exploitation of the continental shelf. Clause 2 would therefore replace section 3(3) of the Act to make it clear that the Board would also have authority to investigate "pipeline occurrences" related to such activities.

Section 4 of the Act currently provides for a Board consisting of not more than five full-time members appointed by the Governor in Council. Under clause 3, the government could appoint either full-time or part-time members to the Board, whose composition could not exceed the existing maximum of five members. Provision would also be made in section 4 for remuneration, fees, expenses, etc.

The current Act uses the term "occurrence" both in the context of a "transportation occurrence," as defined in section 2, and in a totally different context in section 5(5). To avoid confusion, clause 4 would replace the word "occurrence" in the latter section with references to the situations it covers; i.e., "absence, incapacity or vacancy."

Clause 5 would result in administrative changes to the Board’s object statement in section 7(1); there would be no intended change of substance or effect. A change to section 7(1)(a) would make clear that a public inquiry constituted by the Board would be part of an independent investigation and not a separate process. Also, " transportation occurrences" would be modified by "selected" to make clear that the Board would not investigate all the approximately 5,000 occurrences reported to it annually. Section 7(1)(e) of the current Act, which states that the object of the Board is to advance transportation safety "by initiating and conducting special studies and special investigations on matters pertaining to safety in transportation" would be repealed. This repeal is primarily in response to concerns that the intent might be lost over time so that future Board members might impinge on the jurisdiction of the safety regulators. The remaining four subsections of section 7(1) would be re-ordered so as to list the functions of the Board chronologically.

Section 8(1)(g) currently states that the Board members, at meetings of the Board, shall make such recommendations as they "see fit." Clause 6 would replace the words "see fit" with "consider appropriate."

Under clause 7, in an amendment consequential to clause 1(1), the "Director of Investigations (Rail and Commodity Pipelines)" in section 10(1)(a) would become the "Director of Investigations (Rail and Pipelines).

Section 12(2) of the Act, which currently stipulates that three members of the Board constitute a quorum, would be repealed by clause 8 since the issue of the quorum applicable to the Board is now covered by section 22 of the Interpretation Act.

According to section 13(1), "the head office of the Board shall be in the National Capital Region as described in the schedule to the National Capital Act, or at any other place in Canada designated by the Governor in Council." Clause 9(1) would amend the section by stating that the head office would be in the National Capital Region, presumably the most operationally suitable location. Clause 9(2) would amend section 13(3) to change the basis for the Board’s annual report to Parliament from a calendar year to a fiscal year. A new section 13(3.1) would stipulate that the fiscal period of the Board would begin on 1 April of one year and end 31 March of the following year; this would achieve a matching of activities and costs (clause 9(3)).

Where other departments or agencies and the Board are both involved in a transportation occurrence investigation, section 14(3) of the current Act gives the Board exclusive jurisdiction with respect to causes and contributing factors. Clause 10 would amend section 14(4)(a) to make it clear that nothing in section 14(3) would prevent a department from conducting an independent investigation into aspects of the occurrence not being investigated by the Board.

Under the wording of the present Act, the Board’s mandate applies only to operations falling under federal jurisdiction. Clause 11 would add a new section 15.1 to the Act to provide the Board with the authority to enter into agreements with the provinces on the specific issue of transportation occurrence investigations involving means of transport within the legislative authority of the provinces. Under such an agreement, the province would have to undertake to be liable to the Board for all reasonable costs the latter incurred in the investigation. The need for the provision has arisen because the recent dismantling of some parts of interprovincial railways (under federal jurisdiction) into shortline railways (under provincial jurisdiction) has led several provinces to seek guidance and assistance from the Board. Some of the provinces that do not have the infrastructure or expertise to exercise their investigative authority over shortline railways have asked the Board to conduct investigations into shortline railway occurrences on their behalf.

The Board’s obligation under section 16 to take all reasonable measures to ensure that its investigation procedures and practices in relation to transportation occurrences are compatible with those of the police would be removed by clause 12. Section 16 would continue to require the Board to take all reasonable measures to enter into agreements with the provinces regarding the compatibility of its practices and procedures with those of provincial coroners. The reason for the proposed amendment is that the Board is neither a judicial nor a quasi-judicial body; it does not render decisions that affect the rights of persons, entertain litigation or enforce any Act, regulation or program. Rather, it employs co-operative processes and relies on information given in candour and confidence to enhance its non-adversarial mode of operation; as a result, the Board need not follow the same strict rules of evidence as the police and other enforcement agencies. Reference to "coroners" would remain in the provision since coroners have a mandate similar to that of the Board, i.e., to determine the circumstances of fatalities in order to advance safety, and not to apportion blame or liability. The redundant words "and the Directors of Investigation" in section 16 would be deleted.

The concept of "exigent circumstances" has been developed by jurisprudence and need not be codified in the Act. Consequently, clause 13(1) would delete certain words in section 19(2)(b).

Clauses 13(2) and (3) would replace the terms "document" and "evidence" in sections 19(9)(a) and (10) with other terms. It was felt that the present term "document" is too restrictive and should best be replaced by a more generic term such as "information." The present word "evidence" bears a court-like connotation and implies that the Board is acting in a judicial or a quasi-judicial capacity. The purpose of section 19(9)(a) is to obtain, in addition to information otherwise provided, oral declarations or statements from individuals appearing before an investigator. Generally, such statements or declarations are not taken under oath (unless, due to the particular circumstances of the matter, the investigator decides that they should be). Therefore, replacing the term "evidence" with the term "statement" would better reflect this more relaxed context.

A new section 19(15.1) would be added by clause 13(4) to provide the Board with an additional means of obtaining vital information that could not be obtained in time, or only with difficulty through other means. The new provision would allow the Board to seek assistance from the Federal Court of Canada or a Superior Court of a province to look into a refusal to disclose information to an investigator; where this was not successful, contempt could be ordered by the Court.

Clause 13(5) would repeal the definition of a "document" in section 19(16) since, as noted above, that term would now be replaced by the term "information" which, by virtue of clause 13(6), would now be defined in section 19(16).

Section 23(1)(a) currently requires the Board, where it is notified of a transportation occurrence, to provide particulars to the Minister of Transport and to any Minister responsible for a department having a direct interest. Under clause 14(1) the explicit reference to the Minister of Transport would be removed, encouraging the free flow of privileged safety information to the Board by making it less accessible to the regulator. The revised wording would better reflect the fact that several Ministers can have a direct interest in transportation occurrences. Consequently, clause 14(2) would repeal section 23(2)(a).

Clause 15(2) would amend section 24(4)(a) to allow the Board to receive representations on its draft reports in any manner it considered appropriate; this would increase flexibility and permit the use of new technology for communications. Currently, the Board is required to receive representations only orally or in writing, as it sees fit.

Clause 15(3) would add proposed new sections 24(4.1)–(4.4) to the Act. Proposed section 24(4.1) would privilege representations to the Board on its draft reports; however, this privilege would not apply to representations made by a Minister for a department having a direct interest in the findings of the Board. The present Act is silent on the status of representations made to the Board regarding draft reports, notwithstanding the fact that such reports are confidential. The amendment was considered necessary as transportation industry members have notified the Board on numerous occasions that they would be less forthcoming with information to the Board unless they could be assured that their representations would be treated confidentially.

According to proposed new section 24(4.2), the Board could "use representations as it considers necessary in the interests of transportation safety." This prerogative is found in the Act and applies to other privileged information, namely "on-board recordings" and "statements."

Coroners fulfil a mandate similar to that of the Board in that they are asked to determine the causes and contributing factors of a fatality and are not empowered to apportion blame or determine civil or criminal liability. Proposed new section 24(4.3) would therefore allow coroners conducting an investigation into the same occurrence to have access to representations made to the Board.

Proposed new section 24(4.4) would disallow any person, other than a coroner for the purpose of an investigation, from using representations in any legal, disciplinary or other proceedings. Representations in the form of comments and observations made to the Board on a draft report are considered as "statements"; hence, their use would have to be prohibited in the same way as use of statements would be under proposed section 30(7).

Clause 15(4) would remove the explicit reference to the Minister of Transport in sections 24(5)(a) and (b) of the Act, recognizing that the Minister of Transport is but one of several Ministers who might have a direct interest in the Board’s findings. Reference to safety deficiencies the Board had identified would be added to section 24(5)(b), so as to increase the emphasis on that aspect of the Board’s work. Hence, on completion of an investigation of a transportation occurrence, the Board would be required to notify in writing any Minister or person who, in its opinion, had a direct interest in its findings as to the causes and contributing factors, the safety deficiencies identified, and any resulting recommendations.

Section 25(1)(b) provides that the Board must, on a confidential basis, provide an interim report on any significant progress and findings of an investigation to any peace officer or coroner investigating a transportation occurrence that involved a fatality. The interdepartmental working group recommended removal of this reference to "any peace officer" in order to ensure the public perception of independence of the Board; this would be done by clause 16.

A number of changes to section 28 of the Act would result from clause 17. The definition of an "on-board recording" for purposes of the section 28 would be altered, to provide for the future availability of information from video recorders (in addition to voice recorders). The provisions of the Act would be extended to include such information if it became available in pipeline operations. This would enable the Board to make use of video technology if it became available and would also achieve consistency across all modes of transportation in the Board’s mandate. For all transportation modes, the application would be limited to recordings made with equipment not intended to be controlled by the operating personnel, since such equipment (for example, personal portable recorders) might not provide a complete and impartial record.

Clause 17(2) would amend section 28(4) to add reference to "the identification of safety deficiencies" within the Board’s prerogative to make use of on-board recordings. The proposed change is one of several intended to increase the emphasis on the identification of safety deficiencies within the Board’s mandate.

Clause 17(3) would repeal section 28(5)(a), which currently requires the Board to make available any on-board recording obtained under the Act to a peace officer authorized by law to have access to it. Section 28(5)(c) currently requires the Board to make available any on-board recording obtained under the Act to any person carrying out a coordinated investigation under section 18 or designated as an observer by the Minister of Transport under section 23(2). Reference to this observer would be deleted by clause 17(4). These proposed amendments would enhance both the actual independence of the Board from the police, other enforcement agencies and Transport Canada, and the public perception of such independence. Members of the crew of a means of transport who were subject to on-board recordings would also be more disposed to disclose important safety information.

Clause 17(5) would amend section 28(7) of the Act to include pipeline operations personnel in the list of persons against whom an on-board recording could not be used in disciplinary proceedings, proceedings relating to the capacity or competence of an officer or employee to perform his or her functions, or in legal or other proceedings. Such protection would thereby be extended to all modes of transport covered by the Act, including pipelines.

To section 29(1) of the Act, which defines a "communication record" for purposes of the section, clause 18(1) would add a new subsection (e) to make the section applicable to pipelines, thereby ensuring consistency for all modes of transportation in the Board’s mandate. Current sections 29(2)-(6) would be replaced by a single new provision to provide that a communication record obtained under the Act could not be used against any person referred to in section 29(1) in any legal proceedings (as opposed to only criminal proceedings as at present) or (subject to any applicable collective agreement) in any disciplinary proceedings (clause 18(2)). The proposed amendment would be in line with those proposed for other sources of information requiring additional protection, namely representations made by persons having a direct interest in the findings of the Board in its draft report, on-board recordings and statements.

Clause 19(1) would amend section 30(1) by adding a reference to section 19 of the Act so that the definition of a "statement" in section 30 would make reference to section 19, dealing with the powers of an investigator, including the powers to take statements.

Section 30(4)(a), currently requiring the Board to make statements available to peace officers authorized by law to gain access thereto, would be repealed by clause 19(2); in the same way, clause 19(3) would repeal the portion of section 30(4)(c) that requires the Board to make statements available to an observer designated by the Minister of Transport. The proposed changes would enhance both the current independence of the Board from the police, other enforcement agencies, and the Minister of Transport and the public perception of that independence. It would also encourage witnesses to be more forthcoming to the Board.

Section 30(7) at present provides that a statement shall not be used against the person who made it in any legal proceedings or any proceedings other than in civil proceedings, a prosecution for perjury or giving contradictory evidence, or a prosecution under section 35. Clause 19(4) would amend this section to extend the privilege already accorded to statements to include any legal proceedings. This would allay the law community’s concerns over the limited protection afforded to statements under the current Act. The amendment would also overcome the reluctance of some witnesses to disclose information to the Board lest it should be used against them in civil proceedings.

Clause 20 would replace sections 32 and 33 of the Act. Section 32 would now provide that, except for proceedings before and investigations by a coroner, an investigator would neither be competent nor compellable to testify in any proceedings unless so ordered for special cause by a court or body before whom the proceedings were conducted. All reference to affidavits would be deleted. The proposed amendment would minimize the threat to the independence and objectivity of the Board that results when investigators are drawn into the assignment of blame and liability and would help to keep the Board and its investigators distinct from litigation.

Section 33 of the Act currently provides that an opinion of a member of the Board or an investigator as to any person’s fault or civil or criminal liability is not admissible in any proceedings. Experience has shown, however, that this can be easily circumvented by well structured examination or cross-examination of the witness. Experienced lawyers have been successful in bringing investigators, indirectly and inadvertently, to apportion blame or determine liability. Section 33 would therefore be changed to provide that any opinion of a member of the Board or an investigator would not be admissible in any proceedings.

Clause 21(1) would replace the word "parties" by "persons" in section 34(1)(c) to avoid a court-like connotation and would add the words "for the purposes of an investigation" to section 34(1)(d) to clarify the limits of the authority of the Board in its regulation-making powers. Clause 21(2) would delete the words "of evidence" in the expression "rules of evidence" in section 34(1)(g) in order to give the Board the flexibility to adopt rules of practice or any other rules not necessarily dealing with evidence in conducting public inquiries.

Clause 22 would replace the word "evidence" by the word ‘information" in section 35(1)(c) to be consistent with other similar amendments to sections 19(9) and (10) resulting from clauses 13(2) and (3).

Clause 23 would repeal section 63, providing for a review of the Act, since the review has now been completed.

Consequential to proposed changes to sections 2 and 3 of the Act, clause 24 would replace the expression "commodity pipeline" with the word "pipeline" in various sections of the Act. Likewise, clause 25 would replace the expression "commodity pipeline occurrence" with the expression "pipeline occurrence" in various sections of the Act. As the result of a consequential amendment to section 127(2) of the Canada Labour Code, "commodity pipeline" would be replaced by with the word "pipeline" (clause 29).

A transitional period would be established by clause 27 for the proposed change to a fiscal year basis for the Board’s annual report to Parliament.

Clause 28 would continue the office of the Director of Investigations (Rail and Commodity Pipelines) under the title of the Director of Investigations (Rail and Pipelines).

The proposed changes to the Canadian Transportation Accident Investigation and Safety Board Act are the result of consultation through an interdepartmental committee representing all affected federal departments and agencies. The proposed amendments reflect those recommendations of the CTAISB Act Review Commission and the Moshansky Commission of Inquiry that were accepted by the government, as well as input from the relevant government departments and agencies and the transportation industry.