Evidence of meeting #95 for Transport, Infrastructure and Communities in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
7:50 p.m.
Liberal
The Chair Liberal Peter Schiefke
What people are voting on is whether they think I did not follow the rules and whether what I did was not in order. That is what we are sustaining—
7:50 p.m.
Conservative
Leslyn Lewis Conservative Haldimand—Norfolk, ON
Okay, so we are voting whether or not section 116 was followed by you. That's what we're voting on.
7:50 p.m.
A voice
Just call a vote.
7:50 p.m.
Conservative
Leslyn Lewis Conservative Haldimand—Norfolk, ON
What do you mean, just call a vote? I need to know what it is we're voting on.
7:50 p.m.
Liberal
Annie Koutrakis Liberal Vimy, QC
You challenged the chair. You don't know why you're challenging the chair?
7:50 p.m.
Conservative
Leslyn Lewis Conservative Haldimand—Norfolk, ON
Right. I challenged the chair. I told you exactly what I'm the challenging the chair for.
7:50 p.m.
Conservative
Leslyn Lewis Conservative Haldimand—Norfolk, ON
I'm challenging the chair on section 116, that it was improperly invoked, so I don't want to hear that we're taking a vote on whether or not the chair shut down Mr. Strahl's right to speak. You can ask Mr. Strahl if his right to speak was shut down. That is something you can ask him.
What I'm voting on is the procedural matter of whether or not section 116 was properly invoked. That's what I thought we were voting on. I don't know what's so difficult about that.
7:50 p.m.
Liberal
The Chair Liberal Peter Schiefke
We're voting on the ruling of the chair, Dr. Lewis. That's what we're voting on.
For that, I'll turn it over to the clerk.
(Ruling of the chair sustained: yeas 7; nays 4)
Thank you, Madam Clerk. We will now—
Yes, Dr. Lewis?
7:55 p.m.
Conservative
7:55 p.m.
A voice
You're out of order.
7:55 p.m.
Conservative
Mark Strahl Conservative Chilliwack—Hope, BC
Mr. Chair, I believe that the witness was going to talk to me about judicial oversight—
7:55 p.m.
Conservative
Leslyn Lewis Conservative Haldimand—Norfolk, ON
Did I say I was the chair? You're out of order yourself.
7:55 p.m.
Liberal
The Chair Liberal Peter Schiefke
Colleagues, colleagues, I would just like to remind everyone that the only person who is permitted here to give the floor to anyone is the chair.
I would also like to remind you, Dr. Lewis, that the only person who can give the floor to anyone is the chair.
With that, I will turn it over to Mr. Strahl, who had his hand up waiting patiently.
Mr. Strahl, the floor is yours.
7:55 p.m.
Conservative
Mark Strahl Conservative Chilliwack—Hope, BC
Thank you, Mr. Chair.
Perhaps before the witness answers, I want to give a verbal notice of two motions.
The first is,
That Transport Canada provide the Committee with all documents relating to the cost estimate for the TGF project and for a possible project allowing high-speed trains to run, free of any redactions; that these documents be sent to the Clerk of the Committee, in both official languages, no later than January 12th, 2024.
The second notice of motion is that,
That VIA HFR/TGF Inc. produce to the Committee all documents relating to the cost estimate for the TGF project and for a possible project allowing the circulation of high-speed trains, free of any redactions; that these documents be sent to the Clerk of the Committee, in both official languages, no later than January 12th, 2024.
I just wanted to give verbal notice of those.
Then I wanted to go back to the witnesses. I believe we were just going to get an answer as to the judicial oversight provisions that perhaps constrain....
Sorry; I kind of forget where we were there. Ms. Read was going to turn it over to a colleague who was going to expand on her answer about the constraints on the minister's power or the minister's order-making power under this section.
7:55 p.m.
Manager and Senior Counsel, Transport and Infrastructure Legal Services, Department of Transport
Thank you.
Thank you for the question.
As with any ministerial order power, it must be exercised by the minister. Therefore, the threshold that's indicated, which in this case is that “an imminent harm to national security, national economic security or competition that constitutes a significant threat to the safety and security of persons, goods, ships or port facilities or the security of supply chains” is the threshold that has to be met.
That's a determination that is made by the minister based on the facts available at the time and based on expert evidence if necessary, and it's made in accordance with the interpretation of the law at that time, given the facts that have arisen to require the potential use of the ministerial order power.
Once the ministerial order is issued, if any affected persons were to take issue with whether that threshold was met, for example, then on judicial review, a court would review whether the power was properly exercised by the minister. We've previously discussed the thresholds at which judicial review takes place, meaning these two thresholds are court-established standards of review: reasonableness and correctness.
On judicial review, a court looks at the minister's decision in light of the power in the act, and that would include the threshold and the facts available to the minister at the time the decision was made.
A “correct” decision is the only right answer in light of the law and the facts, and a court will find that the decision meets the correctness standard if the court would have made the exact same decision in the same circumstances, whereas a “reasonable” decision has to be logical in light of the law and the facts. A court will find that a decision is reasonable if the decision is one of a range of potential decisions that could have been taken under the circumstances, based on the law and the facts known at the time, even if there's potentially another reasonable decision that also might have been taken by the court.
8 p.m.
Conservative
Mark Strahl Conservative Chilliwack—Hope, BC
In the review and with the correctness standard in the judicial review, is the minister's authority here absolute? If the port authority or the person in charge of a port facility disputes the minister's order—for instance, if they say that a ship needs to be allowed to dock or unload....
The example that was given would be a port authority saying, “You cannot unload”, and the minister saying, “Oh yes, they can”. Does the legislation allow for an immediate appeal mechanism, or is the only appeal then to seek a court order outside of the legislation to overturn the minister's authority? Is that the only way that a port authority or a person in charge of a port facility could dispute a ministerial order?
8 p.m.
Manager and Senior Counsel, Transport and Infrastructure Legal Services, Department of Transport
Yes, that's correct, Mr. Strahl. It would be by way of judicial review, so the port authority or facility in question, if they disagreed with an order to take a corrective measure, would have to seek judicial review of that order.
8 p.m.
Liberal
The Chair Liberal Peter Schiefke
Mr. Strahl, my apologies. I don't mean to cut you off once again, but we have reached the eight o'clock mark, and I just want to respect everybody's time. Also, we have no resources past 8 p.m.
Colleagues, we will resume on Wednesday.
Before we do so, I just wanted to ask whether there was any objection to providing our four witnesses with the same ability that we have to join us virtually. There are extenuating circumstances. For those of you who are not aware, there's a strike in Quebec that is affecting hundreds of thousands of parents. I don't know which one of our colleagues or witnesses appearing here is affected by this situation, but I would like to award them, if possible, the ability to join us virtually with no objections from members of this committee.
I don't know if that'll happen. I don't know exactly if they're allowed to do that, but I just wanted to state categorically that we are in favour of your joining us virtually if at all possible for Wednesday's meeting.
With that, we are adjourned.