Evidence of meeting #19 for International Trade in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was european.
A recording is available from Parliament.
February 25th, 2014 / 11:55 a.m.
Conservative
Ed Holder Conservative London West, ON
I'd like to thank our guests for being here.
Frankly, if those public consultations had been in the great riding area of Mississauga, obviously my colleague would have been part of that as well.
I might say, Mr. Onuoha, that if for any reason Mississauga doesn't fulfill all your requirements, the great city of London, Ontario, the 10th largest city in Canada, which is just down the road, would be more than pleased to absorb any excess R and D that you do.
Mr. Van Harten, welcome back to our committee.
You remind me a bit of my Cape Breton mom. In a real sense, my thought of her was that no matter how much she knew about a subject she had an opinion on it. That was my mom. You have a lot of opinions. The reason I bring that up is you said that without the text you can't say much, but my God, you sure said a lot.
I have a couple of questions, if you'd allow me, please.
I found it very interesting and very reasoned in terms of your approach, at least the tenor of your dialogue, but something you said actually quite surprised me. It's not the part where you said that you'd like to eliminate non-tariff barriers. Quite true. I might add there probably isn't one guest of ours, one witness who hasn't come forward that would say, “We'd love to eliminate non-tariff barriers.”
That always becomes the tricky part, because what we can do at the legal end, if you will, and the contractual end is do those kinds of things, and if we don't have some kind of a dispute settlement mechanism to try to reduce the impact of those non-tariff barriers...because those are the most insidious ones I think for any country, frankly, and for any business that's trying to do business. I say this as a business person; it's the most challenging part.
The question I have for you is on something that probably struck me most of all. You were talking about dealings with claim arbitrators. You made reference to challenging their judicial independence in your first series of comments and questions. You said because they were appointed the way they were that there was a bias in their judgment. I think this is really critical, as it gets to the credibility of arbitrators. Do you have any specific proof? I ask this as a sincere question to you. Do you have any specific proof that arbitrators have biased their judgments on a claim because that arbitrator was appointed? Do you have a specific reference you can make to that?
11:55 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
With judicial independence, the concern is to remove reasonable perceptions of bias.
11:55 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
We want to ensure confidence of the parties and the public.
11:55 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
On actual bias, I never allege actual bias. That's not the requirement from the point of view of judicial independence, because to establish actual bias, you really require an admission from the person. We don't put judges on the stand and ask them, “Are you biased?”
11:55 a.m.
Conservative
Ed Holder Conservative London West, ON
Why did I get the impression, sir, and I don't imagine that I'm alone here, that somehow in the comments that you made—and we can go back to the testimony to be clear. I think I'll want to do that; I'll go back to the blues and your comments—I got the very distinct sense that you were challenging the credibility of arbitrators, that their judgments would be biased because they were appointed? I understand the principle of potential for bias. That's why I ask you the question.
Do you have a specific reference where you have seen, or that has been established, that because an arbitrator was appointed, that has somehow biased their judgment?
11:55 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
We can test—
Noon
Conservative
Ed Holder Conservative London West, ON
That's a yes or no answer, though, first, and then you can go into it. Is that a yes or a no?
Noon
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Can you repeat the question, please?
Noon
Conservative
Ed Holder Conservative London West, ON
I'll try, if I can add to my time, Chair.
Do you have a specific example of an arbitrator who was appointed, that as a result of their appointment, their judgment was biased in the resolution of a claim? I'm saying it slightly differently, but it's the same.
Noon
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I've never alleged.... I assume all arbitrators come at this without bias.
Noon
Conservative
Ed Holder Conservative London West, ON
Then you don't have the issue that because they're appointed, that would somehow bias their judgments. That's not the issue.
Noon
Associate Professor, Osgoode Hall Law School, York University, As an Individual
There is empirical research, including some I've done, that looks at systematic trends. It's social science research. It doesn't prove causation; it proves correlation. But there is evidence to support concerns—
Noon
Conservative
Ed Holder Conservative London West, ON
I have a degree in philosophy, which means I went into the insurance business. I understand causal connection. I even actually understand nihilism, not that it relates to anything that we're talking about today—well, actually it might relate a lot to this, Chair.
I'll take that as a no. You have not seen a specific claim of bias because a judge, an arbitrator, was appointed, notwithstanding the theory of it.
Noon
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Parties make that claim themselves, investors and states. They challenge individual—
Noon
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Oh, no.
Noon
NDP
The Vice-Chair NDP Don Davies
I'm sorry, Mr. Holder, your time is up. I'm going to give the witness a brief opportunity to respond to those riveting questions.
Noon
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Basically, the problem is we should have the usual institutional safeguards of judicial independence in the final resolution of public law. These arbitrators are deciding whether or not the public should pay potentially billions of dollars because a government passed legislation.
All I'm saying is that should be decided in a judicial process. I don't like to go in the direction of casting aspersions on individuals. I trust individuals are committed to doing a good job.
On the other hand, if you look at the record of Canadian investors dealing with the United States, I'm not the only one to say Canadian investors have not done very well in the hands of these arbitrators.
Noon
Conservative
Ed Holder Conservative London West, ON
That's like saying, “You're cute, but...”. Okay.
Thank you, Chair.
Noon
NDP
The Vice-Chair NDP Don Davies
I'd like to thank both witnesses for appearing before the committee. Your testimony is very helpful.
We're going to suspend now as we end this session and get ready for the next witnesses.
12:05 p.m.
NDP
The Vice-Chair NDP Don Davies
We're going to commence the second part of our meeting, continuing our study of the Canada-European Union comprehensive economic and trade agreement.
We have with us two witnesses, Mr. Arsenault from Association des fromagers artisans du Québec, and Mr. McInerney from GreenField Speciality Alcohols Inc.
I understand, Mr. Arsenault, you will go first. You have the floor for 10 minutes, sir.