Transport Committee on Dec. 5th, 2006

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

There seems to be a conflict between the position of the Competition Bureau and the position of the Canadian Transportation Agency or the Department of Transport. The government's proposal seeks to allow the minister to establish and publish guidelines.

Now what is the problem? Is it the great difference between guidelines, or between the requirements of the Competition Bureau and your requirements? Is the difference so great, or does the commissioner absolutely want her name in the report so that she can intervene and create work for herself?

[Helena Borges]

There is no difference. The commissioner says that we must prepare guidelines which must not be redundant with the Competition Bureau's guidelines. We agree on that. We will prepare guidelines in consultation with the commissioner.

There are two aspects, two things to be examined: competition is covered by the Competition Bureau, and public interest involves the minister or someone designated by the minister.

We collaborate with the Competition Bureau to avoid redundancy, but even so, there still might be some. In her letter, the commissioner emphasized this. She noted that there might be a bit of redundancy but that the two parties are not looking for the same information. We need one kind of information whereas the bureau needs another kind of information. This is what we want to explain in the—

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Nonetheless, you have not said that you would prepare them with the Competition Bureau. There is nothing in writing that says that the guidelines would be prepared together with the Competition Bureau. You did not put this in writing, but I must put my trust in you. Is that what you are saying?

[Helena Borges]

Yes, that is it. Both organizations are involved in the process, namely, the Department of Transport and the Competition Bureau. We have to work together. The minister must personally consult the Commissioner of Competition before making a final decision.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Why did you not say, for instance, in subsection 53.1(2.1): "The guidelines referred to in subsection (2), developed in collaboration with the Competition Bureau, shall include factors that may be considered to determine whether [...]".

Why are you not stating this? Why do you not want to add this to the text?

[Alain Langlois]

Because it is implicit. According to the current provisions, the Competition Bureau will give its input to the minister with regard to competition. The system is meant to allow the Competition Bureau and the minister to work together in determining the public interest.

Obviously, the legislation states that public interest is the standard whereby the minister must approve transactions. Public interest is a very, very broad concept that includes, of course, the other office concerned, because competitiveness is in the public interest. Thus, to avoid redundancy, provisions were made to allow the Competition Bureau to share its expertise with the minister.

All the provisions reflect an obligation on the minister's part, after receiving the Competition Bureau's reports, to consult the Competition Bureau to make sure that there are no conflicts, or, should there be any, to see how they can be resolved.

Do we have to state that when the minister develops the factors, he will have to take public interest into account and consult the Competition Bureau? In other words, is there any need to consult the Competition Bureau? We are aware of the Competition Bureau's criteria. They are enshrined in their enabling legislation.

Now obviously, the minister will try to avoid redundancy, but it is extremely difficult to add a provision excluding any redundancy with the factors that the minister develops. The Competition Commissioner even admitted in her letter that there could be conflicts between factors considered by the minister and factors considered by the Competition Bureau. However, the process has been planned with a view to avoiding a duplication of effort by the Competition Bureau and the minister.

Thus, it is clear that the minister in developing his factors does not want to repeat the requirements established by the Competition Bureau pursuant to the Competition Act. This is why it has not been spelled out that the minister must consult the Competition Bureau, and likewise, that the Competition Bureau must not consult the minister when the minister is studying competition issues in the transportation sector. We want to keep these two procedures separate, even if they involve a great deal of collaboration.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Does the Competition Bureau have a role to play vis-à-vis the criteria?

[Alain Langlois]

The minister is under obligation to seek advice from the Competition Bureau.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

But can the Competition Bureau intervene regarding the criteria? Can it issue recommendations and so forth when making competition-related decisions?

[Alain Langlois]

Are you talking about the process of establishing guidelines and determining which factors are to be considered?

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Yes.

[Alain Langlois]

Absolutely.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I am talking about compatibility with its own criteria.

Will the Competition Bureau have to study this law within the context of its own activities? Will it have to analyze these criteria when acting in competition matters?

[Alain Langlois]

The Bureau must apply the factors set out in the Competition Act.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Very well.

[Alain Langlois]

As for the minister, he will apply the factors set out in the Canada Transportation Act.

Basically, what I am saying is that there can be a degree of overlap—it is impossible to have a cast iron separation between the two. Overlap is best avoided and the whole process, through the way in which the provisions are crafted, aims to avoid it.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Okay, that is fine.

[The Chair, Conservative, Merv Tweed]

I'm going to recognize Mr. McGuinty on the last point, but I do want to advise the committee that the friendly amendment that has been proposed, due to the differences in nature, will be considered as a separate amendment. We will be voting on Mr. McGuinty's amendment as a stand-alone and the government's amendment as a stand-alone, not as a subamendment.

Mr. McGuinty, please say a final word, and then I'm going to close it off. We'll then continue either tomorrow night or Thursday.

[David McGuinty, Liberal, Ottawa South, ON]

I just wanted to very briefly respond to Mr. Langlois.

Mr. Langlois, if indeed the bill imposes an automatic obligation on the minister to consult with the Competition Bureau and work with it, why were you unaware of the memorandum that was sent by the bureau?

If indeed it is not clearly specified, and you were not aware of the Competition Bureau's concerns, then I understand Mr. Laframboise's call for greater precision in the exercise when decisions are made. That is exactly why I am pleased to be having this discussion—your department was not even aware of the bureau's concerns.

How then can you expect us to share your confidence that the two officers will in fact work cooperatively?

[The Chair, Conservative, Merv Tweed]

Before I ask you to answer that, if you indeed want to, I would take the responsibility. It was sent to the clerk's office and then to me for distribution. If they didn't get it, I will take the burden of that. I'm not saying that doesn't dispel that there should be more conversation, but—

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Chairman, there's a separate matter here. I don't think you're responsible for this at all.

[The Chair, Conservative, Merv Tweed]

It was sent through the office.

[David McGuinty, Liberal, Ottawa South, ON]

But as legislators, we're trying to get a sense of confidence that the Competition Bureau is in fact working hand in glove with your department as we seek to vest...your wording, Mr. Langlois, was “extraordinary or unusual powers” in the minister when it comes to mergers and acquisitions.

For clarification, I wasn't implying that your distribution had anything to do with this. It had to do with the internal workings of the Government of Canada and the fact that the transport minister and the transport department weren't even aware that there were concerns from the Competition Bureau. They should have been brought to the transport department before they were even sent to you.

[The Chair, Conservative, Merv Tweed]

For time, Mr. Julian, we are going to ask the committee whether we want to meet tomorrow night, Wednesday, to continue with clause-by-clause. We have the space booked and we have the time booked. Unfortunately, it won't be infrastructure. It will be this bill if we choose to meet.

Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

We have “extracurricular” activities tomorrow evening.

No, it's okay.