Transport Committee on Dec. 5th, 2006

[Alain Langlois]

When we talk about major licensees here, are we talking about Canadians?

Again, if you look at it from the domestic market perspective, you may have two or three carriers that hold 80% to 85% of the market share, but the agency gets complaints on an international basis too. They get complaints with respect to American airlines, European airlines, and Asian and Pacific airlines. What would be a major carrier?

Domestically, you may be able to come up with a standard, but on an international basis, how do you define what is a major carrier? You may have one complaint in respect of one carrier in Europe a year, but it's a major complaint. Where do you set the standard? Once you start creating exceptions for one carrier, where do you stop? Where do you put the limit? That's a concern I would have if we start putting the size of carriers—

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Since you've asked me the question, I'll answer it. The American airlines already compile this information, so we're not talking about a difficult or an onerous task for them. But I'll leave Mr. McGuinty to decide how to proceed on that.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I would propose that we have the question, Mr. Chair. We've exhausted this for thirty minutes.

[The Chair, Conservative, Merv Tweed]

All right.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Merv Tweed]

With that amendment carrying, amendment L-3 moves off the table.

(Clause 25 as amended agreed to)

(Clause 26 agreed to)

(On clause 27)

[The Chair, Conservative, Merv Tweed]

On clause 27, we move to page 20.1 in your workbook, reference 2512384, amendment L-3.1.

I would ask Mr. McGuinty if he as the mover would speak to it.

[David McGuinty, Liberal, Ottawa South, ON]

Thanks, Mr. Chair.

The import of this is to move from the wording “may”—that is, “The Agency may...make regulations”—to “shall”, in order to bring federally regulated carriers, who are increasingly selling directly to the travelling public, up to the Ontario and Quebec standards that we heard put to us by a selection of witnesses from the travel industries in Ontario and Quebec, and B.C. as well, if I recall. It provides some certainty and ensures that governments will follow through. I think we should be looking at pages 20.1 and 20.2 in combination.

[The Chair, Conservative, Merv Tweed]

Unfortunately, we have to deal with them independently.

[David McGuinty, Liberal, Ottawa South, ON]

We do, yes.

So that's basically what it deals with, Mr. Chair, in terms of advertising prices and transparency. It will bring federally regulated carriers up to the same standards as those of provincially regulated transport industries, as we heard from our witnesses, at least from Ontario, Quebec, and I think B.C.

[The Chair, Conservative, Merv Tweed]

Are there any comments?

Monsieur Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I am in favour of Mr. McGuinty's amendment. The clause in the bill is too fuzzy. The words "The Agency may, on the recommendation of the minister, make regulations, [...]" leaves too much room for uncertainty.

With this amendment that says "The Agency shall make regulations, [...]", we at least know where we are heading. So we will be voting in favour of the amendment.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

At first blush, I thought the same. Quite frankly, I liked Mr. McGuinty's amendment until I started to think about it, and I thought, what does “advertising in all media” mean?

If you would think about the ramifications of this, first of all, everyone here, I think, understands the law, and anyone can seek an order of mandamus compelling a minister to do something. And I think, Mr. Scott, as a former minister, you would agree that most of the legislation we have in Canada already deals with “may, on the recommendation of the Minister”. Most of it does, especially in circumstances such as this. As to “advertising in all media”.... There's no question that the intent of the government in this particular case is to regulate, especially in relation to air fares, especially in relation to the Internet and other things. But if you look at the legislation, including that, it could become a position, firstly, that would be very onerous for the government and that would in fact be one that would see civil liability flow to the Canadian taxpayer.

If you look at Ontario and Quebec legislation, I think you will find that it has the word “may”. I don't know that for certain, but I would suggest it would. Most of the legislation I see gives the flexibility to the minister, gives the flexibility to the government to impose that type of thing. As well, I think it safeguards the government in allowing them to pick the instances in which it is appropriate to have legislation, and in which it is not appropriate, and then they don't have to legislate in those particular instances. It does give the minister flexibility.

So the first thing I would suggest is that it should stay as is.

Certainly the minister is under an obligation to do so from a government perspective and also in accordance with the will of the House, but secondly, it gives him or her flexibility to determine which pieces of media need to be regulated and which don't need to be regulated. I think “media” is a pretty broad term.

So I would leave that with the committee for discussion.

I think I could probably provide a couple of compromises that the government would be prepared to live with, but I think if you look at the phrase “in all media”, it does leave us open to some orders of mandamus and, quite frankly, some civil liability that might not be looked at by this committee at this stage.

[Alain Langlois]

Of all the motions that were filed, from the legal perspective, there are two that really give me heartache. This is one of them and also the one that follows. They're the same in nature.

A regulatory power that's mandatory, to me, is a paradox. When you grant someone the power to regulate or the power to legislate, whatever it may be, it implies that you give the authority discretion to do it. A regulatory power is like a legislative power; it's a discretionary power to do or not to do something. If you don't trust that body to regulate, you don't give them the power. By nature, a regulatory power is a discretionary power.

If you look at all the acts that Transport Canada is administrating right now, the most important ones, the Railway Safety Act, the Transportation of Dangerous Goods Act, the Aeronautics Act, deal with very serious matters. Mainly, they deal with security and safety. Nowhere in these acts is the regulatory power that is given to the Governor in Council a mandatory power.

I would submit to the committee that there's no more important matter in terms of public interest than safety and security; yet in those instances nobody compels the Governor in Council to actually regulate. Why would you force the agency, or the minister, as the case is here, to regulate? If you don't trust someone to actually regulate, don't give them the power. As a principle, that's usually how regulatory powers are given.

In terms of consequence, the main reason you don't force someone to regulate, as Mr. Jean said, is that as a government you open yourself to an action in mandamus. Somebody may claim that what the government, or in this case the agency, has done doesn't go as far as they believe it should have gone. An action in mandamus could be initiated against the agency to force them to regulate. That's one consequence.

The other consequence is in terms of civil liability. I'm in no way an expert on civil liability, but I've asked some people within the Department of Justice who actually do this kind of work. While it doesn't affect the duty of care that may be owed by the government to a third party, if there is a duty of care, it affects the second branch of civil liability as to whether there's been a breach in the standard of care that's owed by the government.

So it has implication in terms of civil liability. Also, it may have implications--I'm not saying it does--in terms of mandamus. Frankly, again, I go back to my first point: if no one trusts the person we're proposing to give the regulatory power to, then we should not be giving that power, in this case, to the agency.

[The Chair, Conservative, Merv Tweed]

Mr. McGuinty.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you, Mr. Chair.

I understand the mandamus concern, and I understand some of the other concerns. In fact, as Mr. Jean himself said, we should look at the provincial experience. I did.

Here's my problem. In 2002, three cabinet ministers from the Conservative government in Ontario, who are now in this government, brought in precisely this change. It wasn't done in the first year, it wasn't done in the second year, and it wasn't done in the third year. In fact, it wasn't done by the government at all. It took a change of government to actually implement the standard and to bring in the airfare for advertising clarity.

So my fear is precisely based on experience. I know the Ontario language does speak about “may”--the use of the word “may”--but it took three and three-quarter years to get it done by a separate government, not the one proposing it. So I think you can understand the concern.

This is of such importance to Canadians right now. There's a huge amount of confusion from a consumer protection perspective--huge. We're going into the biggest, most popular travel time of the year, and we're still seeing effectively fraudulent advertising.

We need to move on this, and we need to move on it quickly. With respect to assurances provided by the government, I don't know if they'll do it. I think this is something that requires us as legislators to act on and to act on decisively.

I cannot believe, Monsieur Langlois, that in the full panoply of legislative instruments that the federal government exercises that there are no other instances where a regulatory power is put in the hands of a minister without the word “shall”.

[Alain Langlois]

Very, very, very, few.

[David McGuinty, Liberal, Ottawa South, ON]

But they do exist.

[Alain Langlois]

In exceptional circumstances.

[David McGuinty, Liberal, Ottawa South, ON]

This is an exceptional circumstance. Let's tell Canadians what's going on with their airfares. Let's tell them. Let's get the job done.

[The Chair, Conservative, Merv Tweed]

Mr. Laframboise.

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

I'm sorry, Mr. Langlois, sometimes I understand you, but in this case, you are comparing security and advertising, and I see a major problem with that. The two are not at all the same.

When it comes to advertising, we want the airlines to clearly understand that they must not underestimate the intelligence of the flying public. It's pretty straightforward. The clause states: "[...] may, on the recommendation of the minister, make regulations [...]". We have to put a stop to this. Enough money has been wasted to the detriment of citizens who have had problems figuring out how much their air fare would cost them. Enough is enough. It's time to quit fooling around, and, in my opinion, the Liberal amendment would put an end to all this nonsense.

If it is a first, then so much the better, Canada's Parliament will have instrumental in introducing this. Airlines will be forced to be transparent in their advertising. I think that the agency should get involved and there should be no way around it.

That is why the position that we share with Mr. Carrier is so simple. We don't want the airlines to continue to get away with it by saying that the minister does not, cannot, or did not want to act. They will not have any choice, since they will have to comply.

[The Chair, Conservative, Merv Tweed]

Mr. Langlois, did you want to comment?

[Alain Langlois]

I simply wanted to explain that when I mentioned security, I was referring to the fact that the obligation to regulate is not incumbent upon the governor in council in legislation dealing with safety and security. There is no area that is more important than safety and security. Therefore, if the governor in council is not forced to regulate in an area as important as safety and security, then I don't know why we would do it in this bill.