Decisions

TATC File No. H-4181-99
MoT File No. RSIG-1287816

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Canadian National Railway, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.), subsection 31(2)


Review Determination
Gary Drouin


Decision: October 12, 2016

Citation: Canadian National Railway v. Canada (Minister of Transport), 2016 TATCE 30 (Review)

Heard in: Vancouver, British Columbia, on June 8-9, 2016

REVIEW DETERMINATION AND REASONS

Held: The Minister has not proven on a balance of probabilities that the issuance of an Order to the applicant under subsection 31(2) of the Railway Safety Act was justified. The matter is therefore referred back to the Minister for reconsideration.

I. BACKGROUND

[1] On October 26, 2015, Ms. Susan Boan, Railway Safety Inspector – Operations, Transport Canada (TC), issued to the Canadian National Railway (CN) a Notice and Order which included the following:

Operating crews are being required to report for duty in advance of their on-duty time to allow for deadheading and/or transit to the rest facility at the away from home terminal. As well, operating crews are being taken off duty prior to arriving at the rest facility, an undetermined distance from their away-from-home terminal reporting location. As a result, operating crews are at risk of exceeding their maximum duty times due to deadhead and/or transit time at the beginning and end of their shift not being included in their on-duty time. This leads to incorrect calculation for mandatory time off duty (MTOD) reset as well as making operating crews use this time towards resetting their 12 hour clock under the Work Rest Rules. This is occurring at multiple locations across CN within British Columbia including but not limited to Prince George, Smithers, Terrace, Williams Lake and Kamloops.

[…]

I therefore order that Canadian National Railway:

Shall include all deadheading and transit time to and from the rest facility at the away-from-home terminal into operating crews on-duty time.

Pursuant to subsection 31(7) of the RSA, an order contained in a notice under this section has effect

(a) in the case of a railway company, when the company receives the notice or a railway company supervisor or employee receives a copy of it, whichever occurs first; or

(b) in the case of another person, when they receive the notice

[…]

Notice and Order Appendix

Since June 2015 I have been attempting to bring CN into compliance regarding the practice of requiring crews to report for duty in advance of train call time and taking operating crews off-duty prior to arriving at the rest facilities. I have completed a number of reviews of CN's operating crews on-duty hours and issued multiple letters of non compliance. CN's response has been that travel time between the rest facility and station does not count towards on duty time. On January 15, 2009 CN had received correspondence from Luc Bourdon, Director General Transport Canada advising of the requirement to including deadhead and/or transit time to and from the rest facility into operating employee's hours on duty.

During my review of operating crew's duty times, I have found many instances of excessive hours of service due to deadhead/transit time not being calculated into time on duty. In one case, an operating crew working from Prince George to Smithers had to secure their train at mile 85 of the Telkwa sub due to nearing their 12 hour maximum time on-duty. The operating crew then taxied to the station at the away-from-home terminal approximately a one hour drive. Upon arriving at the station the crew was informed that all the rooms at the current rest facility in Smithers were full and they would have to taxi to the next available rest facility in Houston, BC. The crew taxied one hour to Houston but this time was not calculated into their on-duty time. The next day the operating crew was called to be on duty for 1230 but was required to be in a taxi at 1130 in order to arrive at the station in Smithers for their call time. The one hour travel time was not included as on-duty time. The operating crew then worked until 0003. As a result, the crew was on duty for 12 hours and 33 minutes exceeding their maximum duty time by 33 minutes while in care and control of a train. This is just one example of how the transit time is adding to the operating crews fatigue on an ongoing basis.

CN is transporting employees to rest facilities that are some distance away due to overloaded rest facilities and/or no acceptable rest facilities near the reporting location. As well, I believe that CN is avoiding counting the time towards on duty time as at least two of these locations are operated as ‘double sub'. As a result of operating over two subdivision some of these operating crews may not in some cases be physically able to make it over the subdivisions with this travel time added in to their on-duty time. As a result, it becomes an operational requirement for CN to not include this deadhead/transit time into the on-duty hours.

I have received many complaints from operating crews who are concerned with their increased level of fatigue they are experiencing due to extended hours on duty as a result of this time not being included in their on-duty time. Also while en-route to the rest facility, deadhead and/or transit time is being used to reset the operating employee's maximum duty times which results in the crews not receiving sufficient rest.

As a result, after a further review I believe that CN's current practice creates an immediate threat to railway safety as it is creating excessive fatigue to accumulate which is leading to reduced necessary alertness in operating crews while they are while in care and control of trains.

II. STATUTES AND REGULATIONS

[2] The Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA) states:

31(2) If the railway safety inspector is satisfied that the threat is immediate, the inspector may, in the notice, order the person or any company whose railway operations are affected by the threat, to take the measures that are specified in the notice to mitigate the threat until it has been removed to the inspector's satisfaction.

3(4.1) For the purposes of this Act, a threat is a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property, and a threat is immediate if such a situation already exists.

III. EVIDENCE

A. Minister

[3] The Tribunal admitted into evidence the Notice and Order, and the Notice and Order Appendix, both signed by Inspector Susan Boan and dated October 26, 2015, as Exhibits M-1 and M-2.

(1) Ms. Susan Boan

[4] Ms. Boan has been a railway safety inspector for Transport Canada for the past 18 years. She was previously a rail traffic controller with CP for seven and a half years.

[5] Ms. Boan confirmed that the Notice and Order, and the Notice and Order Appendix, were issued by her.

[6] Ms. Boan explained the process and rationale leading to the issuance of the Notice and Order, and the Appendix. She explained that since June 2015, she had made efforts to bring CN into compliance regarding the practice of requiring operating crews to report for duty in advance of train call time and taking operating crews off duty prior to arriving at the rest facilities.

[7] Ms. Boan continued to explain that she had completed a number of reviews of CN's operating crews' on-duty hours and issued multiple letters of non-compliance.

[8] Ms. Boan explained that CN's response was that the travel time between the rest facility and station does not count towards on-duty time. A January 2009 letter to CN from Mr. Luc Bourdon, Director General, Rail Safety, Transport Canada, advised CN of the requirement to include deadhead and/or transit time to and from the rest facility into operating employees' hours of duty.

[9] Ms. Boan provided an example of one case when an operating crew working form Prince George to Smithers had to secure their train at Mile 85 of the Telkwa sub due to nearing their 12-hour minimum time of duty. The operating crew taxied to the station at the away-from-home terminal, approximately a one-hour drive. Due to the unavailability of rooms, they had to transit to Houston, B.C., which was a one-hour drive, and this time was not calculated into their on-duty time.

[10] Ms. Boan provided additional examples and complaints from Mr. Bryan Lintick, employee of CN and also co-chair for the Smithers Health and Safety Committee.

[11] Ms. Boan explained that Mr. Lintick had communicated with her, as he had numerous complaints about the time to and from the rest facility at the away-from-home terminal not being included, and he had a letter from Mr. Bourdon stating that it should be included.

[12] After communicating with Mr. Norm Hart, Superintendent, B.C. North, CN Rail, Ms. Boan testified that his response was that ¨this on-duty time, that this was not included in the on-duty time and it was never intended to be included, that they were not doing it”, which lead Ms. Boan to issue a letter of non-compliance (Exhibit M-4),

[13] Ms. Boan provided a brief summary of the mandatory rest Rules (Work/Rest Rules for Railway Operating Employees) which include both the home terminal and the away-from-home terminal. If a crew arriving at the home terminal has worked over 10 hours, they get eight hours off plus a two-hour call. If they are arriving to the away-from-home terminal and they worked over 10 hours, they are required to take six hours off plus the two-hour call that the employee is not to be disturbed.

[14] Ms. Boan provided a summary of her interpretation of the response to her letter of non-compliance, from Mr. Don Watts, Senior Manager, Regulatory Affairs, CN (Exhibit M-5). In his letter, Mr. Watts confirmed that he was a member of the working groups that initially developed the Work/Rest Rules between 2001 and 2003, and subsequent revisions in 2005 and 2009, and there was absolutely no intention of taxi time from a rest facility to the on-duty location being considered deadheading. The letter continued to provide the definition of deadheading, which is an established concept in the rail industry. It is the transportation of employees from their normal booking-on location to another location, to address crew allocation issues or to rescue a train. Deadheading in this manner is considered on-duty time.

[15] Ms. Boan provided a summary of her “Insufficient Corrective Action Letter” (Exhibit M-6), indicating that the intent was to let CN know that the corrective action they had sent her was insufficient and that CN had to take corrective measures as per the Work/Rest Rules.

[16] Ms. Boan read a letter dated January 22, 2009 from Mr. Bourdon of Transport Canada (Exhibit M-7) that addressed correspondence between Mr. Walter Carlson, Director, Equipment and Operations, Transport Canada, and Mr. Paul C. Miller, Chief Safety and Transportation Officer, CN, concerning the issue of Work/Rest Rules. The letter stated, in part, the following:

Subsection 5.2.2 states: “at the home terminal, mandatory off-duty time shall commence at the point where the operating employee goes off duty, and at other than the home terminal, mandatory off-duty time shall commence upon arrival at the accommodations provided by the railway company”.

And subsection 5.3.1 states that “deadheading at the commencement of a tour of duty is included in the total on-duty time in subsection 5.1.1”.

As stated in the Rules, “Deadheading” means the authorized transportation of operating employees from one location to another, but does not include travel allowances when paid for commuting to a reporting location.

[17] When Exhibit M-8 was tabled, Ms. Boan indicated that the response was very similar to Mr. Watt's previous response on the same subject matter; that when the Rules were written, they were never intended to include the time between the booking in room and the rest facility, and return into on-duty time.

[18] Ms. Boan explained that she had requested the work history for Smithers crews at the away-from-home terminal (Exhibit M-9) with the purpose of verifying how long the trips were between Smithers and Prince George, and return and transit times. She determined that CN was not including transit times in their calculations.

[19] Ms. Boan continued to explain that the excerpt of the Prince George Terminal Operating Manual, dated September 15, 2013 (Exhibit M-10), also demonstrated that transit time was not included in the on-duty time.

[20] In the various documents provided by CN to Ms. Boan, she determined that several crew members were exceeding the number of hours of work, since CN did not include transit times in their calculations. Ms. Boan therefore issued eight letters of non-compliance to CN (Exhibit M-11). During her testimony, Ms. Boan went through each letter identifying the rationale of determining non-compliance with the Rules.

[21] With regard to CN's reply to the eight non-compliance letters (Exhibit M-12), Ms. Boan explained that she received one reply from Mr. Watts to her eight letters of non-compliance. She described the response as being the same as the previous responses; that deadheading was never to be included as on-duty time when the Rules were written, and that they disagreed with her interpretation. In Mr. Watt's letter, he did not dispute the fact that deadheading is considered on-duty time, however taxi travel from a rest facility to the on-duty location is not deadheading. He continued to indicate that deadheading is a well-established concept in the rail industry as well as other transportation industries such as airlines. It is the transportation of employees from their normal booking-on location to another location to address crew allocation issues or in the case of railways, to rescue a train.

[22] Ms. Boan referred to the Risk Assessment, Work Rest Rules for Operating Employees and the RAC Request for Change (Exhibit M-13). She explained that the assessment was done by Transport Canada following a request from the Railway Association of Canada (RAC) to change or amend some sections of the Work/Rest Rules.

[23] Ms. Boan spoke to a letter sent from Mr. Luc Bourdon (TC) to Mr. E. Harris (CN) (Exhibit M-14) in which Mr. Bourdon provided TC's interpretation of the Work/Rest Rules, and definitions of various words from the Webster and Oxford dictionaries. Ms. Boan described different opinions between TC and CN, in that six hours can be interpreted to mean that they can take a four-hour call after four hours off-duty. TC's opinion is that they cannot. Ms. Boan continued to explain that CN is maintaining that prep time does not count towards on-duty time and TC is of the opinion that it does count towards duty time, as per the key phrase “required to report for duty”, which to TC means to command a person, as per Mr. Bourdon's Oxford Dictionary definition of the word “require”.

[24] Ms. Boan explained that following the number of complaints she had received from CN train crew, the correspondence from TC to CN, and the replies received from CN, she determined that there was an immediate threat to rail safety. She completed the TC mandatory checklist, Exhibit M-15, “Ms. Susan Boan's Decision-Making Checklist”, dated October 21, 2015.

Cross-examination by Mr. Landry, CN Rail

[25] Ms. Boan confirmed that the letter to Mr. Harris from Mr. Bourdon (Exhibit M-14) was in reference to prep time and not taxi or transit time being included as on-duty time to and from the rest facility.

[26] Ms. Boan was asked to read the definition of on-duty time from the Work/Rest Rules (Exhibit M-3), which states that “on-duty time” means the total elapsed time from when an operating employee goes on-duty until the time when an employee goes off-duty but does not include preparatory time, final time, travel allowances and other arbitrary or allowance payments. Ms. Boan then confirmed that prep time is not included as on-duty time.

[27] Ms. Boan agreed to the statement made by Mr. Landry that in Mr. Bourdon's letter (Exhibit M-14), he was under the impression that prep time was not to be included, although there have been revisions since to the Work/Rest Rules. In addition, what Mr. Bourdon objected to or the interpretation he had made back in 2003 was ultimately amended or his opinion was not in line with the industry in terms of revision in the Work/Rest Rules as per the on-duty definition presented at the hearing.

[28] Ms. Boan also agreed with Mr. Landry that the Risk Assessment report (Exhibit M-13) does not speak in any way, shape or form to the inclusion of taxi or transit time between the rest facility and the away-from-home terminal.

[29] Ms. Boan explained the process used to gather information and confirmed she had e-mail correspondence with Bryan Lintick. She added that this was standard procedure for a railway safety inspector. She also confirmed that she was not aware that Bryan Lintick was the son of a railway safety inspector based in Alberta.

[30] Ms. Boan provided her definition of deadheading as being in a cab or on a locomotive when you are not operating a train. You can deadhead on a train or you can deadhead in a cab, going from one point to another. Ms. Boan also confirmed that the terms “deadheading” and “taxi time between the terminal and rest area” can be interchangeable.

[31] At the request of Mr. Landry, Ms. Boan reviewed Exhibit A-2, Tab M of the Compendium of Evidence (screen shot), and confirmed that she was not aware that although the off-duty time indicated 2200 and the crew did not arrive at the rest facility until 0030, the screen shot indicated a “rest changed” and the crew had requested an extra two-hours rest.

[32] Ms. Boan confirmed that when she drafted the e-mail (Exhibit A-3, Tab J of the Compendium of Evidence, e-mail from Ms. Boan to Brynn Lintick), it was not her intention at that time to issue a Notice and Order to CN. In relation to her notes (Exhibit A-1, Tab K of the Compendium of Evidence), Ms. Boan did confirm that she was looking at an AMP (Administrative Monetary Penalty) as a regulatory measure. She also confirmed that she had just been recently made aware that her e-mail had been posted on the Union website.

[33] Ms. Boan, in reply to Mr. Landry's question regarding rest time, confirmed that an employee who has 10 hours of service is automatically on mandatory rest and is entitled to six hours undisturbed rest at the away-from-home facility. Ms. Boan confirmed Mr. Landry's statement that “taxi time to and from the rest facility would interrupt the six hours”, to which she added that “coming back into duty, it would add to the time that the employee had on duty”.

[34] Ms. Boan agreed with Mr. Landry's statement that an employee can request personal booking or rest time if they feel fatigued.

[35] When asked by Mr. Landry if she had considered the option by the crew to book rest, Ms. Boan's reply was that this option is not in the Work/Rest Rules. Ms. Boan added “there's nothing written in there saying that an employee can book rest. So I consider it that the employee, if they're fatigued, they could book rest, but they would be in a cab while they're on rest”.

[36] Ms. Boan confirmed that she did not consult nor was she aware of the content of CN's Fatigue Management Plan. She did agree that it was the responsibility of the employee to report fit for duty.

[37] Although Ms. Boan agreed that if an employee feels tired he has the option of booking personal rest, she did not agree that this personal time would break the pattern of fatigue because when they are coming back into duty, the travel time is added to their time at the beginning of their on-duty time.

[38] Ms. Boan stated that what she was told by a CN employee (Brynn Lintick) and the people who complained to her was that this was causing the fatigue over a long period of time. They complained about this because it was causing them fatigue. They don't just get to the rest facility and get a room right away; they have to stand around and wait for a room to be available, and they are on rest at the time or they are supposed to be resting, and they can't get that rest.

[39] Ms. Boan confirmed that she was familiar with Transport Canada's Fatigue Management Plans, presented as Exhibit A-4, Tab C of the Compendium of Evidence.

[40] Ms. Boan read the six key risk factors for fatigue as requested by Mr. Landry:

  • The total length of the work shift exceeding 14 to 16 hours
  • Continuous hours of wakefulness beyond 19 hours
  • Working between the hours of midnight and 0600 a.m.
  • Obtaining less than six hours of continuous sleep in a 24-hour period
  • Break times that do not permit reasonable recuperative times over eight hours
  • Continuous work beyond 64 hours in a seven-day period

[41] Ms. Boan agreed that the taxi ride was not part of these six key factors identified by Professor Sherry from the University of Denver, a world expert on fatigue management. Nevertheless, Ms. Boan did add that depending on the total number of hours worked plus the taxi time, this could have an impact.

[42] Ms. Boan provided a definition of “care and control of a train” by stating that “care and control of a train means being on a train with it unsecured, running the train, or just sitting on it when it's no handbrakes”.

[43] Mr. Landry asked Ms. Boan if Mr. Bourdon was on the committee that developed or that participated in the drafting of the Work/Rest Rules, to which Ms. Boan responded that she was not sure and that she didn't know.

Re-direct

[44] Mr. Villemure had no further questions for Ms. Boan.

B. Applicant

(1) Donald Watts

[45] Mr. Watts, Senior Manager, Regulatory Affairs, CN (retired), provided a quick overview of his 36 years employed at CN. His résumé was also provided (Exhibit A-5). Mr. Watts added that the most recent 20 years (1996-2016) were spent in the Regulatory Affairs group as either Manager of Regulatory Affairs or Senior Manager of Regulatory Affairs.

[46] Mr. Watts explained that the main function of Senior Manager, Regulatory Affairs, was to be the primary liaison between CN and various regulators such as Transport Canada, the Transportation Safety Board and Labour Canada, providing internal advice on rules and compliance, answering questions from regulatory bodies, and participating on working groups and forums.

[47] Mr. Watts confirmed that he was part of the original working group on the Work/Rest Rules, from 1999 to the last meeting that was held a few years ago.

[48] Mr. Watts provided a chronology of the development of the first Work/Rest Rules. He explained some details on how it became the industry's responsibility to develop the Rules and provide them to Transport Canada for approval as per the Railway Safety Act that came into effect in 1989.

[49] Mr. Watts provided the definition of deadheading, saying that it is a well-established process under both Canada and U.S. rules and not limited to the rail industry; it is also practiced to some extent in other industries such as aviation. Mr. Watts provided two examples of deadheading: the first was to rescue a train for which the crew has reached the maximum duty time. The second example was for reallocation of manpower. If you have too many crew members at one location and a shortfall at another location, CN would deadhead crew to ensure sufficient manpower at the second location. Mr. Watts added that the taxi ride from the terminal to the rest area was not considered deadheading and had never been part of the discussion in the working groups under the Work/Rest Rules.

[50] Mr. Watts explained that crews that are called for deadheading will arrive at the booking-in room and then taxi to a certain location where they will take charge of the train and bring it back to the terminal. In this case, as per the Work/Rest Rules subsection 5.3.1, the tour of duty will start from the terminal to the location to rescue the train, which will include the taxi ride and controlling the train back to the terminal.

[51] Mr. Watts referred to an extract from the United States Federal Railroad Administration's Hours of Service Compliance Manual (Exhibit A-6, Tab O of the Compendium of Evidence), indicating that one-way travel time of 30 minutes or less is considered off-duty time in the U.S.

[52] Mr. Watts provided a definition/explanation of subsection 5.2.2. and stressed that it falls under section 5.2 “Mandatory Off-Duty Times”. At the home terminal, mandatory rest with hours undisturbed will begin at the point that they go off-duty at the home terminal. At other locations, the mandatory rest period will begin upon arrival at the accommodation; the six hours undisturbed will only begin once the person arrives at the rest facility.

[53] Mr. Watts brought clarification to when an employee is on-duty and off-duty, and at what point either or begins. During transit time, they are neither on-duty nor off-duty. The employee will become on-duty at a booking-in location. They will be off-duty once they have reached their destination, tied up, and gotten off the train; therefore the off-duty will begin at the terminal.

[54] When asked if CN had ever adjusted their system to include the taxi ride from the terminal to the rest facility, Mr. Watts replied that CN had made many changes to the system form changes to the Rules, but there was never any consideration that taxi timewould be counted as on-duty time.

[55] Mr. Watts mentioned, contrary to Ms. Boan's testimony, that when the first version of the Rules came into effect, within a month or two it became clear that there were differences of interpretation over three different items. Transport Canada had issued letters to the railways and the Railway Association of Canada expressing Transport Canada's views. The Railway Association of Canada filed proposed changes.

[56] Mr. Watts continued to say that none of the proposed changes dealt with mandatory rest. The original Rules stated very clearly that it was eight hours exclusive of call at home and six hours exclusive of call away from home, and there was never any thought of changing that.

[57] In reference to Exhibit A-7 (Tab N of the Compendium of Evidence, CN response to Mr. Bourdon dated January 26, 2009), Mr. Watts confirmed that there were no amendments to the Rules as a direct result of this correspondence with Mr. Bourdon.

[58] In 2009, a working group was established to look at the Work/Rest Rules and address a recommendation from the Railway Safety Act review panel held back in 1996. During the meeting that included the rail industry, Transport Canada, and the railway unions, the issue of transit time was raised but the group (including Transport Canada) preferred to focus on the Fatigue Management Plan.

[59] A Fatigue Management Plan was developed between 2009 and 2010 with the assistance of Dr. Pat Sherry from the University of Denver, a world expert on fatigue management.

[60] Once the plan was developed, which included six key risk factors and a score card, Transport Canada requested that all railways redo their fatigue management plans in accordance with the newly-developed Fatigue Management Plan and file them with Transport Canada. In reference to Exhibit A-8, Tab A of the Compendium of Evidence, CN's Fatigue Management Plan Revision 2005, Mr. Watts confirmed that CN scored an 84 per cent for its plan, the highest of any major railway in Canada.

[61] Mr. Watts confirmed that taxi transit time did not in any way measure into the key factors identified by Dr. Sherry, as the travel time, even in an extreme case, could be one hour and that would not put the crew into a 14 to 16-hour continuous work shift.

[62] Mr. Watts confirmed that he was very knowledgeable of the 2012 revision of the Fatigue Management Plan for CN (Exhibit A-9, Tab B of the Compendium of Evidence) as he was the main drafter of the document. He added that minor changes were made from the 2009 version but also provided examples of significant changes:

  • Determining the preferred location for a rest facility is a balancing act between the desire to avoid noisy environments such as rail yards, and a third party facility that minimizes travel time from the on/off duty location.
  • A second example, that in the event of situations where travel time is deemed to be excessive, they (CN and the Union) will work together to develop appropriate fatigue mitigation measures.

[63] Mr. Watts added that the Union was involved through the Health and Safety committees in helping CN assess problems with facilities and if changes were to be made.

[64] Mr. Watts quoted a section of CN's Fatigue Management Plan (Exhibit A-9) on page 10 which states:

…CN's collective agreements provide employees with the ability to voluntarily elect up to 24 hours of rest at home and up to 8 hrs at away from home terminals and en-route upon trip completion. In addition employees can elect to take discretionary time off of up to 48 hours each time an employee accumulates a certain percentage of their monthly mileage maximum. In addition, Personal Leave Days (PLDs) may be used in many cases to increase off-duty time. These can be used to help address recovery from lengthy periods of wakefulness.

[65] Mr. Watts added that in addition to the provisions provided to employees in CN's Fatigue Management Plan, an employee, for example, that was up all night with a sick child or spent the night at the hospital, can book personal rest time up to eight hours at the away-from-home terminal and up to 24 hours at the home terminal. If they feel they cannot work, they can also take 12 personal leave days.

[66] Mr. Watts did confirm that although he was not an expert in fatigue management, he did have considerable knowledge in this area having drafted CN's Fatigue Management Plan, having worked on the working group pertaining to fatigue management, and also having had training in this field.

[67] Mr. Watts provided specific and general explanations and details pertaining to a seven-day work history (Exhibit M-9) that he had provided Ms. Boan. He explained each column and their definition (ie; CO = Conductor, Yellow = employee could not provide a full 12-hours duty etc.)

[68] Mr. Watts provided specific examples with employee Mr. Busch, who started at 6:30 a.m. and went off duty at 6:45 p.m. He was “relieved of care and control” of the train at 18:30 but was still on duty because he was doing some work in the office. He stated that the additional 15 minutes is not considered having control of the train, therefore not a threat to rail safety.

[69] Mr. Watts continued by providing examples from Exhibit M-9, showing that Mr. Busch took 50 hours and 40 minutes off-duty time, as another crew member took 10 hours, and another took 13 hours and 40 minutes, pointing out that crews are taking advantage of the extra hours as allowed under the collective agreement.

[70] In 2009 when Mr. Bourdon issued his letter, Mr. Watts spoke with other stakeholders in the industry such as the Railway Association of Canada, CP Rail, and Rail America, to enquire how they were interpreting the rule regarding the taxi time to and from the rest facilities. All the stakeholders had the same interpretation as CN. When Mr. Watts received the letter form Ms. Boan, he did another consultation with the same stakeholders to inquire if something may have changed without him (Mr. Watts) being made aware. The conclusion was they were all not aware of any changes made or changes in the interpretation of the rule.

[71] With respect to the one-hour 15-minute taxi ride to the rest facility, Mr. Watts explained that this was an exception. He also commented that he heard in Ms. Boan's testimony that this situation was going to be more recurrent. He did confirm that the number of reserved rooms was reduced due to the downturn in the economy. Nevertheless, this could be readjusted quickly. Mr. Watts also added that remedial action was taken in Smithers where taxi availability was limited. CN negotiated with the rest facility and they will provide transportation to and from the yard to the rest facility.

[72] Mr. Watts pointed out that in the case of the one-hour 15-minute taxi ride, the crew returned by taxi at 11:42, and were likely called at around 9:30, which provided the crew nine hours of rest, which is one hour more than requested.

[73] Mr. Watts added that under the Railway Safety Act, all of the information pertaining to train crew hours is made available, and that he has complied with such requests in the past.

Cross-examination by Mr. Villemure

[74] When asked by Mr. Villemure why CN had not taken the initiative to raise the transit time interpretation with Transport Canada, Mr. Watts confirmed that it was raised with Transport Canada in 2009, but they declined as they wanted to focus on the Strategic Measurement Plan.

[75] When asked by Mr. Villemure as to why Mr. Watts did not follow up with Ms. Boan to find out the underlying problem, Mr. Watts explained that the letter addressed non-compliance with Rule 5.2.2 and the definition of deadheading, and did not talk about safety. Had reference been made to safety, Mr. Watts confirmed that he would have engaged in further discussions with Ms. Boan.

IV. ARGUMENTS

A. Minister

[76] Mr. Villemure stated that the objective of the Railway Safety Act is to provide for the “safety and security of the public and personnel, and the protection of property and the environment in railway operations”.

[77] The Minister's responsibility is, amongst other things, as per section 3.1 of the RSA: “to promote railway safety and security by means that the Minister considers appropriate”.

[78] In this case, the Minister considered it was appropriate to issue a Notice and Order to promote railway safety.

[79] Mr. Villemure stated that “a threat is defined as a hazard or a condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill, or damage to property could happen”. He added that he could never put enough emphasis on the “could reasonably be expected to develop”.

[80] Mr. Villemure added that Mr. Watts testified that there were not enough rooms in certain locations and that CN had to reduce the number of room reservations. Although this appeared to be an isolated occurrence, Ms. Boan's findings indicated the potential of it happening again because of room reductions.

[81] He said that Ms. Boan “made a finding that the conditions that existed were conditions that could reasonably be expected to develop into a situation which could be a threat”.

[82] Mr. Villemure quoted a decision from the Supreme Court of Canada – Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, to which:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[83] Mr. Villemure provided in his own words a résumé of Ms. Boan's testimony: “The Notice and Order speaks for itself. It's very clear in the Notice and Order the safety issue Ms. Boan is trying to address pertains to fatigue. In the appendix that was attached to the Notice and Order, it's even again clearer that the issue she's trying to tackle is fatigue”.

[84] Mr. Villemure mentioned that a tour of duty operating in any class of service is 12 hours. You can re-set the clock by allowing someone to go back on duty to do a 12 or 18-hour shift. If an employee is at his away-from-home terminal, the employee could benefit from six continuous hours off duty exclusive of call time in accordance with the Rules.

[85] In regard to mandatory off-times, what was clear in the Rules was that the home terminal mandatory off-time shall commence at the point where the employee goes off duty. And at other than the home terminal, mandatory off-time shall commence upon arrival at the accommodations provided by the railway company.

[86] Therefore, when Transport Canada takes the position that the Rules should be interpreted to include transit time, it should be written in the Rules that the rest period starts “upon arrival at the accommodations provided by the railway company”.

[87] Mr. Villemure quoted section 2.2 of the Rules:

Railway companies shall establish and maintain working conditions that allow:

a) operating employees sufficient opportunity to obtain adequate rest between tours of duty; and

b) alertness to be sustained throughout the duty period.

[88] Mr. Villemure noted Ms. Boan's testimony, and the back and forth between Transport Canada and CN on each other's position of the interpretation of the Rules. Transport's position was that those taxi times/ transit times should be included when you're at the away-from-home terminal. CN's position is that they never really wanted that when the Rules were drafted and that was not the intent behind the Rules.

[89] Mr. Villemure stressed that this situation has been going on since 2003, and on some occasions, especially in January 2009, Transport made it clear to the industry that its own interpretation was that these taxi times should be included in duty times.

[90] Mr. Villemure referred to the evidence Ms. Boan offered, that the crews reported to her that they were fatigued. Mr. Villemure added that he does not dispute the fact that CN has a plan. Also, he does not dispute the fact that CN scored 84 per cent on their plan. He does, however, submit that there are still issues pertaining to fatigue, and the crews specifically reported to Ms. Boan that this fatigue arose from the fact that these five, ten, fifteen-minute taxi rides, when added together in the long run over a week, a month, a year, or five, ten years, has an effect on them.

[91] Mr. Villemure alluded to the fact that when the Rules were drafted in 2003, the industry believed they were cast in stone and they would be good for the rest of everyone's life. He continued to say that freezing the Rules in time does not make sense.

[92] After 13 years of the Rules being in place, Ms. Boan came to the conclusion that, the way the Rules were being applied, there was an issue with safety. CN refers to their Fatigue Management Plan to solve the issue, but the underlying fact remains that some employees are fatigued and it is fatigue that has accumulated over 13 years.

[93] Mr. Villemure drew our attention to the Risk Assessment report (Exhibit M-13). He said that according to report, “fatigue builds over time, bits and pieces over time; it's not an eight-hour break or an eight-hour rest period that will break all this accumulated fatigue”.

[94] Mr. Villemure continued that the inspector was able to determine and consider amongst the evidence she had that fatigue still existed. Some crews were not in a position to be alert, sharp, and focused while at the care and control of a train. He added, “these guys are coming down mountains, six thousand-ton train on brakes. Got to be sharp. They can't be tired. Got to be focused”.

[95] Mr. Villemure mentioned that it is important to realize that whether or not Transport was right in its interpretation of the Rules, the underlying issue remains the safety issue. If Transport is wrong, perhaps the Rules would have to be revised accordingly, through the mechanisms it has under the Railway Safety Act.

[96] Ms. Boan, under her authority as a railway safety inspector, concluded there was an immediate threat to rail safety and took action by issuing a Notice and Order.

[97] Ms. Boan took into consideration the documents presented under Exhibits M-1, M-2, M-9, M-13 and M-15, and that CN was not going to change its interpretation in the near future to ensure rail safety.

[98] Mr. Villemure explained that Ms. Boan could have looked at what was being done in the United States or elsewhere; she could have looked at a million things and taken three years to do so but she did not, as she saw an immediate threat. With her professional expertise and experience, she had enough to reach the conclusion she reached and issued a Notice and Order.

[99] Ms. Boan considered it appropriate to challenge CN on its interpretation of the Rules. She considered it relevant to say that Transport Canada has a clear departmental position that has been in place since 2009, as issued by the top senior executive of Railway Safety, which says that transit times need to be included.

[100] Mr. Villemure stressed that Ms. Boan has significant experience in dealing on a daily basis with a complex administrative scheme, and with a complex statute that deals with safety issues. He submits that over the years, she would have developed a considerable degree of expertise, and at least field sensitivity, to the imperatives and the nuances of this scheme.

B. Applicant

[101] Mr. Landry made the statement that he found it strange to argue at the hearing that this was not about compliance or non-compliance, but about safety. Mr. Landry stressed that in fact it is about compliance, right until the issuance of the Notice and Order on October 26.

[102] Mr. Landry mentioned that the employees have a tool kit. They have options and they will report for duty rested. The proposition that employees are feeling excessive or cumulative fatigue is a nice allegation, but there is no evidence of that.

[103] Mr. Landry quoted a Supreme Court of Canada decision, R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, which states:

When the courts are called upon to interpret a statute, their task is to discover the intention of Parliament. When the words used in a statute are clear and unambiguous, no further step is needed to identify the intention of Parliament. There is no need for further construction when Parliament has clearly expressed its intention in the words it has used in the statute.

[104] Mr. Landry confirmed that the industry drafted the Rules. It was said that the industry should amend the Rules to make them clear. He submitted that the industry is clear; Mr. Watts told the Tribunal that he spoke with representatives of CP, the RAC and other members of the industry and they all share Mr. Watts's and CN's interpretation that taxi time should not be included as on-duty time.

[105] The industry drafted the Rules, which are approved by Transport Canada, and because industry drafted the Rules, they are in the better position to provide the interpretation and meaning of the Rules as they were drafted. Mr. Landry continued to say that Mr. Watts participated in the drafting of those Rules. He sat on the committee from their inception to his retirement. It was clear in Mr. Watts's testimony that taxi time should not be included.

[106] Mr. Landry brought to the attention of the Tribunal the Canadian Railway Office of Arbitration and Dispute Resolution case in which the locomotive engineers wanted to have the taxi time included as their on-duty time to and from the rest facility at the away-from-home terminal. Arbitrator Michel Piché wrote “I am compelled to agree with the Company (CN) that the language of the foregoing provision reflects the parties' understanding that time travelling to and from accommodations is not to be considered as ‘on duty' time”. Mr. Landry made an association that this situation of the Notice and Order stemmed from a complaint that Ms. Boan received from Mr. Brynn Lintick, Union Representative.

[107] Mr. Landry argued that Ms. Boan, by her own testimony, did not challenge the information received from Mr. Lintick before issuing the section 31 Notice, the trigger being the one-hour taxi time between Smithers and Houston. With the power Ms. Boan has, she did not consider challenging, verifying or asking CN, through her powers as a railway safety inspector, if the information provided to her was accurate.

[108] The inspector's Notice and Order was not reasonable because CN was compliant with the Rules. Taxi time was never intended to be part of on-duty time. There was no credible evidentiary basis for the excessive fatigue claim and the conclusion made by the inspector.

[109] Mr. Landry mentioned that Ms. Boan was misled by the complainant. She was provided inaccurate, incorrect, untruthful information. Smithers to Houston was shorter than what the Rules provide. The crew received 11 hours of rest before the taxi went to the rest facility and they came back to the yard office. Mr. Landry suggested that Ms. Boan relied on biased information that was a “collateral attack” on the arbitrator's decision that he presented.

[110] Mr. Landry added that Ms. Boan did not turn her mind to the tool kit that employees have in order to report fit for duty. Ms. Boan never looked at the eight hours of personal rest, at the personal leave, at the possibility that an employee could book unfit, and at CN's Fatigue Management Plan.

[111] Mr. Landry drew our attention to the crew hours details (Exhibit M-9), in which two of the employees referred to in the letter of non-compliance in fact got 50 hours of personal rest, suggesting that is a good way to break the alleged fatigue pattern. It is also in accordance with the study made by Professor Sherry, which suggested that 50 hours of rest is sufficient to report fit and rested for the next train tour.

[112] Mr. Landry added that reliance was not placed on relevant consideration. It was placed on a complaint from a union representative and two other crew members who provided untruthful information. Mr. Landry continued to say that Ms. Boan had a duty, a serious and heavy duty, to challenge, to validate, and to confirm the information she was provided. She never did that.

[113] Mr. Landry quoted Dr. Sherry's study to assess the Fatigue Management Plan and the resulting list of six key fatigue factors. One of the key risk factors was working long hours, between 14 and 16-hour shifts. Mr. Landry added that even with the one-hour taxi ride, they are not coming close to those 14 to 16-hour working shifts.

[114] Mr. Landry added that in the Railway Safety Act, for a threat to be immediate, a condition must exist. He continued by saying that Ms. Boan was provided unchallenged information about a condition that did not exist and that was not an immediate threat.

[115] Mr. Landry concluded by saying that essentially all the information provided during the two days of the hearing was based on the away-from-home terminal. In regard to the at-home terminal, employees can drive 45 minutes to an hour and more from their home to the terminal. CN does not approve locations where its employees may reside; the company only requires that employees report fit for duty.

Reply by the Minister - Mr. Villemure

[116] Mr. Villemure cautioned the Tribunal not to be sidetracked by the decision taken by the arbitration process, as this pertained to an employer/employee relationship and the interpretation of a specific provision in the collective agreement.

[117] The decision of the arbitrator was to determine whether or not the collective agreement provided for the payment of the taxi ride.

[118] Although the complaint came from Mr. Brynn Lintick, the evidence came from the Health and Safety Committee.

[119] Mr. Villemure added that it was not for Ms. Boan to question the credibility of the information that was provided to her, and it is not the responsibility of the railway safety inspector to evaluate the probative value of information that is provided unless they have reasons to believe it is not credible.

V. ANALYSIS

[120] By issuing an Order under subsection 31(2) of the RSA, the Minister alleges that there is the existence of an immediate threat to railway safety. The RSA defines “threat” and “immediate threat” in subsection 4(4.1). A threat is “a hazard or condition that could reasonably be expected to develop into a situation in which a person could be injured or made to be ill or damage could be caused to the environment or property”. However, in the case of an immediate threat, the situation already exists; there is no expectation that the hazard or the condition could reasonably be expected to develop into a situation; the situation (hazard or condition) in which a person could be injured or made ill or damage could be caused to the environment or property, already exists. As per the Minister's submissions, the situation and safety issue that prompted the Order was cumulated fatigue among operating crews from allegedly reduced rest availability, due to not counting transit time as on-duty time. Therefore, the Minister has to prove that there was an immediate threat to railway safety due to the omission by the applicant to count transit time as on-duty time which reduced the mandatory off-duty rest time, creating cumulated fatigue, and that this condition already existed such that the person could be injured or made to be ill, or damage could be caused to the environment or property.

[121] The Minister's main witness believed the applicant was in non-compliance in their calculation of on-duty time, but one particular element prompted her to believe there was an immediate threat: the alleged one-hour 15-minute taxi ride from Smithers to Houston. In cross-examination, it was demonstrated that the Minister had failed to consider that the one-hour 15-minute taxi ride was compensated by the applicant by providing additional rest time that went over the mandatory off-duty time, and that off-duty time started to run only upon arrival to the accommodations. The Minister did not prove that this particular incident, or any other where transit time was not counted as on-duty time, had reduced the mandatory rest time, creating a situation where a person could be injured or made to be ill, or damage could be caused to the environment or property.

[122] The evidence also demonstrated that the applicant makes available to train crews options to ensure they are rested prior to returning for a tour of duty. Such options include: booking personal time from 8 to 24 hours (depending if they are home or at the away-from-home terminal); they can report they are unfit for duty; they can take up to 12 personal leave days; they can take employee-off-duty time, etc.

[123] Considering that some information provided to Ms. Boan appeared to be inaccurate or did not include the hours of rest that the train crew had received and considering that CN clearly demonstrated thorough exhibits/screen shots, such as Exhibit A-2, that train crews were receiving the allocated rest time, the Minister did not prove there was reduced mandatory rest off-duty time. There was neither direct evidence nor science-based evidence that crews were suffering from cumulated fatigue, putting railway safety at risk. In Ms. Boan's testimony, she was mainly reporting what the complainant had reported to her. This complainant was in turn allegedly reporting what other people had said.

[124] Although Ms. Boan acted in a professional manner, it would appear that the information she received from the complainant regarding hours of work and rest time was not accurate, as demonstrated in the exhibits provided.

[125] The evidence showed that the language/jargon used and accepted in the rail industry appears to have differing definitions in traditional dictionaries, and this may have caused confusion to both parties who engaged in arguments over whose definition was right. For the purpose of considering if there was an immediate threat to railway safety due to fatigue related to the non-compliance of the Work/Rest Rules, the Tribunal considered the evidence that all mandatory rest as per the Rules was respected and notes that there was no evidence that mandatory off-duty time was not respected, and that Transport Canada accepted the Rules submitted in 2009 by the industry, and that their interpretation and application was only challenged seven years later through Ms. Boan's Notice and Order. The RSA provides that the Minister may require a company to formulate rules regarding hours of work and rest periods to be observed by persons employed in positions that are critical to safe railway operations (paragraph 19(1)(a) and subsection 18(1) of the RSA). Subsection 19(4) also states that the Minister shall consider without delay the rules that are filed by a company and approve them if he is satisfied with the rules after having regard to current railway practice that those rules are conductive to safe railway operations; the Minister can also refuse to approve if not satisfied. The evidence shows that the Rules were approved by the Minister, and that the railway practice, interpretation and application of deadheading and transit-time was not addressed until 2015.

[126] Considering that in Mr. Bourdon's letter to CN to include deadheading and/or transit time to and from the rest facility into the operation employee's hours, the Minister did not demonstrate that Transport Canada challenged the industry and/or tried to modify the proposed original rules.

[127] Considering that the industry offered to meet and review the travel time issue with Transport Canada, but the department refused the opportunity, the Minister did not prove that the railway practice and application of the Rules since 2009 was an immediate threat, and that issuing a Notice and Order under subsection 31(2) of the RSA was the effective way to deal with their disagreement in the application of the Rules. The RSA provides the mechanism whereby the Minister can issue an Order under subsection 19(1) of the Act to revise the Rules and have them submitted within a specified period for approval.

[128] I am therefore of the opinion that the Minister has not proven on the balance of probabilities that there was an immediate threat to railway safety caused by cumulated fatigue.

[129] The parties made submissions regarding the interpretation of the rule 5.3.1 of the Work/Rest Rules for Railway Operating Employees; more precisely, they submitted different interpretations regarding the meaning of deadheading and if this constituted on-duty time. For the purpose of determining if the Order under subsection 31(2) of the RSA was justified, the interpretation of this term is unnecessary since the evidence shows, as mentioned before, that there was no immediate threat to railway safety that justified the Order. Whether deadheading and transit time should be considered as on-duty time at this point, after considering that there was no immediate threat to railway safety, seems to be more an issue related to labour law between the parties, which is not the jurisdiction of this tribunal.

VI. DETERMINATION

[130] The Minister has not proven on a balance of probabilities that the issuance of an Order to the applicant under subsection 31(2) of the Railway Safety Act was justified. The matter is therefore referred back to the Minister for reconsideration.

October 12, 2016

(Original Signed)

Gary Drouin

Member