Debates of Feb. 1st, 2013

Oral Questions

[The Deputy Speaker, NDP, Joe Comartin]

The chair will look at the record as well.

Port of Nanaimo

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I have two petitions to present today.

The first petition is signed largely by people from Nanaimo who are calling on the Prime Minister of Canada, the Premier of British Columbia and first nations to stop the privatization of the Port of Nanaimo, by withholding the approval of agreement between the Nanaimo Port Authority and the Pacific Northwest Marina.

Food and Drugs Act

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, in the second petition, petitioners are calling on the House of Commons to put forward an act to amend the Food and Drugs Act. The petitioners point out that Canadians have a right to make informed choices about the food they eat by having adequate information provided on food labels. Therefore, the petitioners ask that the Food and Drugs Act be amended around mandatory labelling for genetically modified foods.

The Environment

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, I am pleased to present this petition regarding climate change and extreme weather events.

Both 2011 and 2012 proved to be years of extremes. In 2011, the United States experienced four extreme weather events that caused losses of $1 billion U.S. each. We have also had climate change wake-up calls in Canada: the 1996 Saguenay flood and the 1998 ice storm.

The petitioners call on the government to accept the signs of climate change, table a comprehensive climate change plan and determine the impacts of the changing climate on extreme weather events and the projected cost to climate-proof assets.

Housing

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, Canadians across the country know that Canada needs a housing strategy. I am therefore pleased to present a petition signed by people from Regina, Saskatchewan, asking all parliamentarians to vote in favour of Bill C-400.

Animal Welfare

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I have two petitions to present today.

The first petition is from people who are very concerned that every year hundreds of thousands of dogs and cats are brutally slaughtered for their fur in a number of Asian regions. The petitioners call on Canada to join the U.S., Australia and the European Union in banning the import and sale of dog and cat fur. The petitioners call on all of us to support Bill C-296 from the 41st Parliament.

Pensions

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, the second petition is from residents who are very concerned about old age security. The petitioners want to ensure that the age of eligibility for collecting OAS remains at 65 and that the OAS keeps pace with the cost of living and is available to everyone.

Questions on the Order Paper

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I ask that all questions be allowed to stand.

[The Speaker]

Is that agreed?

[Some hon. members]

Agreed.

Access to Information

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I would like to respond to the question of privilege raised yesterday by the hon. member for Ottawa—Vanier.

I listened to his question of privilege, which he raised to remind the House about his ability to access information from the government and government officials, which was being prevented by some sort of decree from the Prime Minister's Office suggesting to all civil servants, or at least the ones he was dealing with, that they could not respond directly to an inquiry from a member of Parliament.

The reason I have some sympathy for this is that I have had the exact same experience. I have approached the Department of Fisheries and Oceans or the Department of Transport to seek some basic information on behalf of constituents and been told that they are not allowed to speak to me. They say they must go through the Prime Minister's Office and that the Prime Minister's Office must first vet my question as to whether or not it is appropriate, and then vet the response as to whether it is appropriate as well. That takes the idea of civil servants into a whole new realm of definition, as if they work predominantly for the Prime Minister's Office as opposed to the Canadian people.

As a representative in the House, my friend has raised a question of privilege suggesting he is unable to perform his work and duties as a member of Parliament if the government has a policy and directive that prevents him from gaining the most simple and basic information required to answer questions on behalf of his constituents. I want to be clear: We are not talking about state secrets here, but basic, simple information that Canadians have paid for, because they in fact fund the civil service. It is not the privilege of the Prime Minister's Office to direct where those answers should go.

There are some struggles, though, that we find with this as a question of privilege. I will first quote from O'Brien and Bosc from page 109 of House of Commons Procedure and Practice, who explain:

In order to find a prima facie breach of privilege, the Speaker must be satisfied that there is evidence to support the Member’s claim that he or she has been impeded in the performance of his or her parliamentary functions and that the matter is directly related to a proceeding in Parliament.

I think the last sentence is important for all members. The test is that our work here in Parliament must be what is impeded by the actions of the government.

On May 15, 1985, Speaker Bosley gave a ruling regarding the question of privilege raised by Douglas Frith, then the hon. member for Sudbury, Ontario, who claimed that his ability to serve his constituents was being infringed or impeded by a departmental directive restricting the release of information about a government program. In his ruling, Speaker Bosley explained the following:

...it has been recognized many times in the House that a complaint about the actions or inactions of government Departments cannot constitute a question of parliamentary privilege.

He added:

...the purpose of parliamentary privilege is to protect our speech in the House, the institution itself, and the institution and Members from threats, obstructions and intimidations in the exercise of our duties.

...I would have great difficulty in finding this matter to be within the realm of parliamentary privilege.

In Speaker Bosley's ruling and also in the guides we as parliamentarians use, while this case has merit in terms of what the government is doing to members of Parliament and as a result to Canadians, it is difficult to find the exact question of privilege the member seeks.

There was a similar case on October 9, 1997. Speaker Parent gave a ruling regarding a question of privilege raised by the hon. member for Wild Rose, I believe a then Reform member and later Conservative member, concerning information allegedly denied to him by an official of the Department of Indian and Northern Affairs. Speaker Parent went on to explain:

In order to fulfill their parliamentary duties, members should of course have access to the information they require.

He continued:

The Chair is mindful of the multiple responsibilities, duties and constituency related activities of all members and of the importance they play in the work of every member of Parliament. However, my role as your Speaker is to consider only those matters that affect the parliamentary work of members.

He went on to say that:

I have concluded that this case constitutes a grievance on the part of the hon. member, but since this situation has not actually precluded the hon. member from participating in a parliamentary proceeding the Chair cannot find that a case of a contempt of parliament has occurred.

By saying this I do not want to diminish the nature or seriousness of the complaint raised by the hon. member for Ottawa—Vanier. I believe he may have a real cause for grievance. If the government is indeed purposefully withholding information from this member, it is putting him in a situation where he is not fully able to defend the interests of the constituents he has been elected to represent.

As I said yesterday, many of my colleagues also faced obstructions from civil servants who have previously been quite open to allowing members access to information that the public has. MPs are referred to the Prime Minister's office or the PCO in such a way that it becomes impossible for them to obtain information that is essential to their work.

This is a very serious situation and one that continues to get worse, not better, but it needs to be addressed through other means available to us.

I do want to point out that in determining whether the question raised by the member for Ottawa—Vanier is a question of privilege, we have to examine the effect the incident or event had on a member's ability to fulfill his or her parliamentary duties. In this case, I think members will agree that although this is, without a doubt, a deplorable incident, the member's ability to fulfill his parliamentary duties likely has not been affected.

[The Deputy Speaker, NDP, Joe Comartin]

I would advise the member that there may be other interventions on this issue. Once those are completed or it is clear there are no further ones, there will be a ruling from the Chair.

The House resumed consideration of the motion that Bill C-52, An Act to amend the Canada Transportation Act (administration, air and railway transportation and arbitration), be read the second time and referred to a committee.

Fair Rail Freight Service Act

[The Deputy Speaker, NDP, Joe Comartin]

There remain five minutes of questions and comments for the member for Gatineau.

Are there any questions or comments?

The hon. member for Skeena—Bulkley Valley.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, a question that has been raised in this debate—we listened to the minister speak earlier, just to remind people because we have had a bit of a break in the debate—is that this is an attempt to have some sort of balance of power between the shippers in Canada, which are seeking to move their products, of which 70% in Canada are moved by rail, and the railway companies, of which there are predominantly two. As the minister himself said, it is a competitive duopoly. In many parts of the country, it is not even a duopoly; it is a monopoly because there is only one service available.

So, in achieving some sort of balance of power between these two groups, the minister has suggested that there would be a tribunal of sorts, a way for dispute resolutions to be worked out.

However, when we look into details of the bill, we are now discovering that the dispute resolution mechanism, that way of solving those problems when the rail cars do not show up and the contracts are broken, will only be available to new contracts that are signed, as opposed to existing contracts.

I do not know how the minister can feel so confident that his bill would allow the Canadian economy, which relies on that freight being shipped, to progress in a better way if all those problems that have been existing for many years cannot get solved because the resolution is not offered to any contract that is already in existence.

I wonder if my friend could illuminate where that might be a problem in solving the real challenges we face.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank the hon. member for his question.

As the English would say, he is right on the nail, direct. That is one of the major problems with the bill.

I repeat, for those who did not hear the speech either from my colleague or myself, that we will be supporting the bill at second reading to be sent to committee; hopefully, to solve those types of problems, because this is a major issue.

I was saying in my speech that it is a matter of carefully balancing everyone's interests. The hon. member mentioned it. In some places, there is basically a monopoly. The use of a dispute resolution mechanism that involves a tribunal is not necessarily a good idea when the balance of power favours one side.

That is not necessarily most conducive to solving the problem.

I do again hope that the other side of the House will be able to listen for once, because it does not happen too often. We do bring up those issues in order to ameliorate the situation.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, as chair of the Conservative forestry caucus, I have been following this rail service issue for quite some time and talking to the various sectors that use the rail line.

When we came up with the package to introduce this legislation, it seems to me that we had unanimous support for the bill and its contents from the shipper coalition across Canada and almost every, if not every, sector. To listen to the member for Skeena—Bulkley Valley and the member for Gatineau speak, it would appear that they do not agree with the shippers, the very ones the bill would affect. The shippers support it wholeheartedly and want us to get it through. However, the two opposition speakers appear to be saying that this is not what the shippers want. To whom are they listening? Are they listening to the shippers or to some secret voice in their caucus?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I appreciate all the work the hon. member has done.

I think we have been talking to the same people. When they talk to the government or government officials, everyone agrees that this is a step in the right direction. However, let us not pretend that the bill is perfect and does not need some slight adjustments.

The message that the official opposition is sending to the government is that it supports the bill. The bill will be examined in committee, but that is just for show. We want to ensure that the stakeholders support the bill. However, they too would like to see some changes made to it.

[Ralph Goodale, Liberal, Wascana, SK]

Mr. Speaker, I am happy to participate in the debate this afternoon on the second reading of Bill C-52, dealing with the issue of the level of railway services across the country. The House has been waiting for this legislation for several years. More importantly, shippers across the country have been waiting for this legislation for a very long time. I am sure we are all very happy that it is finally here.

The Liberal caucus intends to support Bill C-52 in principle at second reading because the shipper community is anxious to get the bill into the standing committee for detailed examination of the precise meaning, from a legal and a practical point of view, of all of the provisions in the bill. Shippers want to ensure, and we need to ensure, that their needs would actually be satisfied by the legislation.

The shippers coalition supporting level-of-service legislation, as it has become known, is a very broad and comprehensive coalition. It obviously involves agriculture, and that is a big and important part of the shipper community, but it goes far beyond agriculture. It also includes the forest products sector, minerals and chemicals, potash and fertilizer, manufactured goods and much more. They have all had common issues and a common problem, which is substandard service from the railways in shipping their products and commodities to market.

The intense debate about railway service levels has been raging across the country since about 2006. In 2007, specific requests were made by the shipper community for a legislated solution. They asked for a legislated solution because a commercial solution did not appear to be available. In 2008, the Government of Canada promised a formal review of railway services. It was not until a year later though, 2009, when the government finally appointed a panel to conduct that review of railway services. The panel worked for about a year, and by October of 2010 it had finished its work and had written its report. In that report the panel confirmed that service levels provided by the railways were seriously deficient.

To give just one example, and there are dozens referred to in the panel's report, farmers could typically count on getting the service from the railways that they needed, that they ordered and that they paid for, only about 50% of the time. That is obviously not an adequate level of performance by the railways. Similar troubles affected most other shippers right across the broad spectrum of the coalition. The details differed from one industry to another, but the bottom line was the same: the shipper community was being badly served. That is what the panel concluded in the report it wrote in the fall of 2010.

The review panel said that the problem was a serious imbalance in clout and power in the marketplace, an imbalance between the railways on one side and the shippers on the other. The shippers are mostly captive, as I said in the House earlier today. They do not have competitive options for moving their products. They are captive to one particular shipper at any given moment in time. That is what the panel concluded. It said there was little genuine competition, that shippers have no realistic commercial alternatives and that they also have no legal recourse to address the problem.

For the most part, they do not even have access to enforceable contracts that set out both their obligations and the railways' obligations, which are then binding and enforceable on both sides. That would be one's normal commercial expectation. The parties doing business would write up a contract and they would fulfill the terms of the contract or there would be consequences one way or the other. That practice seems to be missing in the relationship between the railways and the shipper community.

According to the panel that was appointed by the government and which reported in the fall of 2010, the playing field is totally tilted in the railways' favour. The panel said that if that imbalance is to be remedied it would be preferable to do it by commercial means. However, if a commercial solution is not readily available, and that is obviously the case by this long process that has gone on since 2006, then the review panel said that there should be legislation and regulations to fix the problem. That is, there should be legislation to require the railways to provide their shipping customers with service level agreements that are readily enforceable.

The railways have said, “That was then and this is now” and claim that things have improved. I think objectively a number of shippers would say that indeed there have been some service improvements over the course of the last three or four years, especially service improvements by CN. Even CN notes that the controversy about bad service and the suggestion of some new legislation or new regulations coming down the pike have, at least in part, brought about that improvement. In other words, there has been a threat hanging in the air that there may be legislation or regulations and the railways have pulled up their socks a bit. It was in response to that threat of legislation, the speculation in the community that there would be legislation, that has in fact contributed to the level of service improvements.

The review panel's report was done in October of 2010. The government then waited six months before committing to implement its recommendations. That commitment finally came forward in the spring of 2011, ironically just on the eve of the calling of an election.

After the election, action was once again postponed. Instead of bringing the legislation forward in the late spring or early summer of 2011, which was an imminent possibility, the government waited another six months. Then it launched a second review process, this one to be conducted by Mr. Jim Dinning of Alberta. That process started in the fall of 2011 and ran until the spring of 2012, again trying to find this elusive commercial solution to the problem. Unfortunately, Mr. Dinning's efforts were largely for naught and there were no significant results from that process, except for another six month delay. The government then waited another six months, until this past December, to finally table the legislation that we have before us today, Bill C-52.

This has been a painfully long wait. The discussion began back in 2006 and we are now in 2013, so it has been a seven-year process. The shippers are anxious now for action, at long last, to become promptly tangible. I think the House owes them that. We should have a sound debate at second reading on Bill C-52, but it does not need to be a protracted debate. We should discuss it properly and efficiently in the House and then move Bill C-52 as quickly as we can to committee so that we can hear from shippers and others and, on the basis of their evidence and testimony, determine if Bill C-52 is in fact good enough to get the job done.

I hope the government would ensure that there are no restrictions put on the transportation committee in hearing the witnesses that will want to be heard on this very important matter. The shipper community has been waiting a long time. Now that the bill will soon be at committee, the very least that Parliament can do is to give the shippers the opportunity to be heard fully so that all of their comments, recommendations and advice can be taken into account.

The preliminary reviews of Bill C-52 have been reasonably positive. That is encouraging. It would appear that the legislation does provide all shippers the right to have an enforceable service level agreement with the railways without discrimination among different tiers or categories of shippers. If that proves to be the case when we have the opportunity to legally and comprehensively review the legislation, then that would indeed be progress.

The legislation also appears to specify at least some of the mandatory content that each service level agreement must cover. It also appears that it would provide robust penalties if the railways fail to perform up to an acceptable standard.

The shipper community has been quite explicit about the kinds of things they want to see in these proposed service level agreements. It readily admits that with each particular shipper or sector within the shipper community there would be variations from agreement to agreement. Each one would not be an exact cookie-cutter copy of the others. There are logical differences that would need to be taken into account and there is a commercial negotiation process that would need to take place here. However, shippers have specified six subject areas that they think every service level agreement should deal with. It is important to put these on the record so that when we get to the committee we can examine the legislation to see if these six areas would be adequately covered.

The shippers say that each service level agreement that the railways would be required to provide in negotiation to their shippers should include the following. First, it should include a section covering the services and the obligations. They should spell out what each side is supposed to do to have a successful contract between the carrier and the shipper.

Second, it should include communications protocols so that when they are trying to work out their commercial relationship, or if things go wrong in the relationship, they would all know exactly what they are supposed to do to communicate with one another in an effective way, rather than two ships passing in the night that never quite get around to connecting with each other.

Third, there would need to be performance standards specified in the agreements. What is the acceptable performance to be expected in the circumstances? Fourth, there would have to be performance metrics. In other words, how do you measure the performance against the standards laid out in the agreements?

Five, there would need to be consequences for non-performance. There are obviously penalties provided in the legislation. We will have to examine as to whether they would be appropriate and sufficient to achieve the kind of behaviours that the shippers want to see. Finally, there would need to be dispute settlement mechanisms included in the agreement.

Those are the six areas that the shipper community mentioned. It is important for the committee to examine in detail whether Bill C-52 would cover those areas adequately from the point of view of the shippers.

Finally, I will mention four or five other areas, beyond the nature of the contract that I have just described, where the shippers have said they are not clear about what the legislation seeks to accomplish and whether it would get to the result that the shippers want.

First is the issue of train movement into the United States. To what extent would a service level agreement in Canada also affect the kind of service that is provided across the border by the carrier, in some cases the same railway, when that carrier is operating in the territory of the United States? What would be the impact of service level agreements on cross-border shipments of product? Of course, between Canada and the United States, that is a huge volume.

Second, what would be the relationship between the service level agreements that apply to the main line rail carriers, basically CN and CP, when the product being shipped may originate on a short-line branch railway? Would the service level agreements have any implications for short-line rail operators and their relationship with the main railway operations?

Third, there is already a section in the Canada Transportation Act, section 113, that provides some description of service requirements imposed upon the carriers. Is there anything in Bill C-52 that diminishes the value or the effect of what is already in the act in section 113? The shippers are very anxious to have that clarified. Obviously they, and we, would not want to see the beneficial impact of section 113 diminished.

The fourth question that shippers have asked is on the matter of practical access to the process. The way the legislation is set up it basically says that the parties should go out and negotiate a contract. If they cannot, then the shipper can go to the CTA and get an arbitrated solution that will then be imposed by regulation. The question from the shippers is whether there will be practical access to that process or whether the process will be so complex, costly and slow that only the biggest shippers will be able to participate in the proposed arbitration proceedings. As a result, the smaller shippers will just find it too complicated, expensive or time-consuming to be able to avail themselves of an arbitration procedure. We will need to examine the practicality of how Bill C-52 will apply to make it accessible to all.

Finally, there appears to be a section in the act that says that if a shipper already has some kind of existing contract with a railway, if they have gone out and tried to negotiate something and put it in place, then the shippers do not have access to the provisions of Bill C-52 unless and until that existing contract expires. That needs to be clarified as well. To what extent are shippers impeded from having any benefit of Bill C-52 because they have already tried in some way to have a contract and have negotiated something, whether or not it lives up the standards of Bill C-52? Would they be prohibited from trying to get a Bill C-52 solution if they already have a contract in place?

Those are some of the questions that I have heard from the shipping community. By and large they are anxious to see the legislation proceed. They are looking forward to the committee hearings because they want to be heard and they have a number of questions to ask. I think it is incumbent upon the government and upon the House to make sure that we get into those hearings as quickly as possible and that we ensure that every shipper across the country that wants to be heard can have the opportunity to present their questions and their observations to the standing committee.

I welcome the debate this afternoon. I am anxious to see progress on this subject. Everybody has already been waiting far too long. Let us get on with it and try to make a tangible difference in the level of service that is provided to the shipping community, and therefore make a tangible contribution to the well-being and success of the Canadian economy.

[Steven Fletcher, Conservative, Minister of State (Transport)]

Mr. Speaker, I would like to thank the member for Wascana for his remarks, although I am curious why he feels the challenge between railways and suppliers started in 2006.

I believe it started around 1783 when Liberal Alexander Mackenzie was elected. Things got better with John A. Macdonald. Then they got worse when Sir Wilfrid Laurier was elected. It got better under Diefenbaker. It got worse with Pearson and Trudeau. It got a little better with Mulroney. It got bad again with Prime Minister Chrétien. If the member wants to talk about the speed of the process, why did his government not do anything in their 13 years, or basically anything in the 20th century, to fix this problem?

Having said that, I am pleased that the member is positive about the bill. I can assure him that all the stakeholders were consulted. I wonder if the member would say, if he is satisfied, that his party will not put up any unnecessary filibustering at committee. This is the best possible bill. I would hate for the opposition parties to try to change it just for the sake of change.

[Ralph Goodale, Liberal, Wascana, SK]

With all due respect, Mr. Speaker, I do have to suggest that the hon. gentleman's recollection of history is just a little faulty. Alexander Mackenzie was not the prime minister in 1783. It was 1873 that he was the prime minister and he discovered on his desk the first day he walked into the office the Pacific scandal about the railway that was handed to him by Sir John A. Macdonald.

It is a bit of a waste of time to debate those ancient Conservative scandals. It was about the time that Louis Riel was becoming the member of Parliament for my district of the country. In any event, those historical references are fascinating, but it is more important for us to get on with the task of actually dealing with the circumstance today.

The major debate, as the hon. gentleman will recall, before 2006, was not about level of service agreements; it was about a costing review and whether railways were overcharging. There were in fact legal actions going on during the 1990s and the early part of the last decade that resulted in some major refunds to farmers because the railways had been caught overcharging for the freight rates they imposed for the services they were delivering, as substandard as those services were.

Until the middle part of this last decade, the issue was a costing review. In the latter part of the last decade, the issue shifted to this whole discussion about level of service, which brought about the seven year process that I talked about.

The hon. gentleman can be assured that we have no intention of delaying the legislation, either in the House or in committee, with this one caveat. We want to hear what the shippers say. If the shippers' expectations are properly and adequately addressed when we hear the testimony going through the committee, then we will be most anxious to see the legislation passed with whatever subsequent modifications the shippers might recommend.

[Steven Fletcher, Conservative, Charleswood—St. James—Assiniboia, MB]

Mr. Speaker, on a point of order, I misspoke and the member for Wascana is correct. I should have stated the date as 1873. I hope the member understands I am relatively new here and as far as I know, the member for Wascana was part of Alexander Mackenzie's government. I appreciate the correction.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

On a more serious note, Mr. Speaker, my Liberal colleague briefly mentioned penalties. This bill would enable the federal government to collect fines of up to $100,000. Does he think this would deter a company like CN, which made a profit of $2.7 billion in 2012? Is this kind of measure one of the amendments he would like to make to the bill?

[Ralph Goodale, Liberal, Wascana, SK]

Mr. Speaker, on that question and many others, we need to hear what the shippers have to say, because they are the ones who have paid the penalty for bad service up to now.

It is clearly important for any penalties in this kind of legislation to be adequate so they can actually change the behaviour about which the shippers are complaining.

In some of the provisions of Bill C-52, the penalty provisions appear to be significant. In others, they do not. Quite frankly, the question the hon. member raised should be looked at very carefully in committee. Will the enforcement mechanisms, including those penalties, be adequate to solve the problem?

The best solution for all concerned would be for the legislation never to have to be used, that it was there setting the legislative framework, but that the parties were able to find commercial results and not need to have recourse to the legislation. However, the legislation needs to be strong and robust enough to ensure that if it has to be used, it actually does achieve the result the shippers want.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, I am sure the hon. member for Wascana already knows this, but I would like to assure him that Bill C-52 was crafted based on mountains of consultations with shippers all across the country. That is how the bill was formed. I am sure the member will appreciate hearing the shippers' applause for the bill as their input helped to put the bill together. The member and his party will be able to support it wholeheartedly.