Agriculture Committee on May 5th, 2014

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

It's whoever is contracting with the railways, yes.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

Whoever has been adversely affected—

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

—companies—

[Mark Eyking, Liberal, Sydney—Victoria, NS]

—once that has been determined.... In our previous clause, it's the determining. Once that is determined, what is going to happen next? That's why you need this, to finish it up.

[The Chair, Conservative, Bev Shipley]

In that it talks about the company, and then at the bottom, the amount to the shipper.

Mr. Hoback, go ahead.

[Randy Hoback, Conservative, Prince Albert, SK]

Thank you, Chair.

I agree with Mr. Eyking in a lot of ways. I want to make sure that the farmer gets compensated and I want to make sure it is done in a timely manner. That is something I definitely want to see come out of this review when it comes forward, but what makes this really confusing and awkward is that some things are related to the Canada Grain Act and some things are related to the Canada Transportation Act. For example, an agreement between Viterra and CN would have its own labour dispute settlement mechanism in the Transportation Act. It would be part of what will probably be considered in this upcoming review on that type of compensation and how that compensation should flow and the amounts, and how they negotiate it in their level of service agreement.

When I do a contract from the farm, I come under the Canada Grain Act. It's a different act, and the minister has already brought in some considerations for that in this piece of legislation right now. So, when I do a contract with Viterra, for example, and they don't take delivery of my grain, then there is some compensation after a period of time. There is some interest paid and maybe some storage paid—I'm not sure. I don't want to prescribe that here, but I think that concept has been embedded in what the minister wants to do in this piece of legislation.

Where it gets confusing is when you flip it over now to the transportation side and Viterra doesn't have that proper level of service agreement in place. It's one thing if CN and CP are responsible and they have to pay a bill and then that bill trickles through Viterra and gets paid off to the farmer so that everybody gets—the appropriate party pays for not meeting its commitment, so whether it's the grain company not meeting its commitment or the railway not meeting its commitment, that cash flows through to the appropriate person. I think that's there. It's just done in two different acts. One is yet to be done, and the other one is actually in the process in the Canada Grain Act with what we're doing here.

I don't think putting this in there is going to help things. It is just going to confuse it that much more. Correct me if I'm wrong, but any changes we make can only be done in this meeting with the Canada Transportation Act—is that right?

[The Chair, Conservative, Bev Shipley]

Right.

[Randy Hoback, Conservative, Prince Albert, SK]

So you're looking at things that would actually have to involve changing it in the Canada Grain Act, which I think we've already done anyway. This is really confusing and awkward to try to do here at this point in time.

[The Chair, Conservative, Bev Shipley]

We have Mr. Allen and Mr. Eyking next.

I didn't know, Madam Duff, if you had any comments, or if Mr. Langlois had any comments in terms of—because we are dealing with it this morning—the Transportation Act only.

Mr. Langlois.

[Alain Langlois]

To comment on the last portion of the comment that was made, the CTA regulates the dealing with and the relationship between the railway and whoever has a contractual or operational relationship with the railways. So it's either the shippers under whoever is paying the bill of lading, or it could be a terminal. The agency has ruled in the past that a terminal could complain even though there's no contractual relationship. So you need either a contractual or operational relationship for the person or the entity to have the right to complain to the agency under section 116 of the CTA.

Once the agency makes an inquiry, once the agency issues an order under the new power that you have just passed through the amendments, the agency has full flexibility to order the railway to pay the amount in x period, I mean 30, 40, or 60 days. The agency in the other modes routinely do pay it, and if they believe that the carrier's not going to pay in a timely fashion they will pay the amount within 30, 40, or 60 days. So you can monitor whether or not there's been compliance. Often the agency will ask the railway—or not the railway because they don't have the power yet—but the air carrier or the other modes to confirm that they have complied with the order.

Now the question is what happens if they don't comply with the order? You can't remove the court process and the ability of a railway, an air carrier, or any other transportation mode to actually challenge an administrative decision. Even if we set a compensation scheme in an order of the agency there's still an appeal process embedded in legislation. If there wasn't an appeal process you can still file judicial review against any administrative action that has been issued by government. That's my first comment.

My second comment is there's already a power in the act right now, in section 33, that clearly stipulates that if somebody who was ordered to do something by the agency doesn't comply, then the current scheme calls for the agency to make its order an order of the federal court, and use the federal court rules as the means to enforce the order against the industry to get them to do something. How do you do that under court rules? You can first of all directly issue a contempt procedure against the company hat has failed to comply with a legal order and that entails penalities to the company as a punishment for not having complied with an order.

The court has a process in its rule that would allow you—like any other rule, like any other court—to actually make enforceable an ordered award of money so that you could seize assets of the company. You could go after bank accounts. I mean all of these.... It's a good thing that the courts normally have to get an order to get things enforced. My first thought is that if the agency put in its order a mechanism to enforce.... My question is, I don't know what a mechanism is and assuming that the mechanism was clarified, that mechanism would still be subject to appeal. It would still be subject to judicial review. You need to go the extra step. I understand that your concern is when do you know that the legal process stops and the payment's been made? My response to that, and I've testified before on this and so has [Inaudible—Editor], is that I'm not aware of the railway, unless they appeal a decision because they have the right to do so, never complying with an order of the agency.

I've been doing this for 16 years and I've never seen it. Now if they disagree, they'll appeal or file a judicial review, but if they don't disagree they will comply. They don't pay because the agency has no ability to order payment right now, but if the agency has ordered them to do anything they comply. In a nutshell that's the comment I can offer the committee.

[The Chair, Conservative, Bev Shipley]

Thank you very much.

I don't know, Madam Duff, if you had anything to add to that in terms of transportation.

I want to now move to Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Let me thank Mr. Langlois for his clarification. My question was simply going to ask him to explain to us the difference between the agency in a timely manner, and a shipper-in-order which is actually in it. You've actually done that for me so I no longer have a question. You sort of beat me to the punch there, Mr. Chair, thank you.

[The Chair, Conservative, Bev Shipley]

It happens once in a while.

Are there any other comments?

Mark.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

I'm not in a dispute with Mr. Hoback. I don't think I've ever disagreed with anything since both of us landed here. It's just on the point you made, that this falls under the privy of the Department of Agriculture. Well, apparently it doesn't, because this whole thing is going to be under Transport.

What you stated is that if there is a wrongdoing and it's determined to be a wrongdoing, and there are losses—whether to the shipper and eventually to the farmer, whatever—the ruling would be made by Transport. Transport would make it to the rail—if it's the rail, of course. You guys have the stick, and they usually comply when Transport.... Yes, they can go to court, but they're technically going to court against Transport Canada, not the farmer and the shipper, because you guys made the ruling.

Is that clear?

[Alain Langlois]

The Canadian Transportation Agency would issue the ruling. And if a carrier...and it's not just railway. I'm not aware of a freight railway ever having not complied with an agency order. But if the agency becomes aware that an order has not been complied with, they will table their order through the Federal Court, and then enforcement action to get the industry to comply with the order commences through whatever tools the Federal Court has. Normally when you file an order of the agency in Federal Court, it gets the industry's attention.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

So on that point, Chair, I have no problem pulling my amendment out of here if Transport Canada is saying to me that my amendment is not needed because they do have the stick to go after the railroads to make sure the money flows through to the farmers and shippers, or whoever is involved.

You are stating that the mechanism is going to be there as it has always been there for Transport Canada.

[Alain Langlois]

It's already there. There's an appropriate mechanism for industry. I'll use the example of a shipper, in this case a shipper who has been granted an order for the railway to pay him compensation. If the railway fails to pay there's an ability to enforce that order through the court system right now, as with any other decision of any court around the country.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

That gets back to Mr. Allen's comment about the big stick. When you look at this whole thing at the end of the day, the big stick is going to be Transport Canada. Under this clause we're sending back, or this amendment, they're going to have the big stick to go after them to comply or they are going to get the wrath of Transport Canada.

I'm not withdrawing it.

[The Chair, Conservative, Bev Shipley]

Well, that was my question.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

I still want it on the record.

[The Chair, Conservative, Bev Shipley]

Okay.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

If I may finish, if it fits well with what's already there, I can't see any reason why government wouldn't vote for it. It fits well with the process that's already in place, so there's no big change happening in the scheme of things.

[An hon. member]

[Inaudible—Editor]

[Mark Eyking, Liberal, Sydney—Victoria, NS]

Well, I think it's necessary for us as a committee to stay the summers.

[The Chair, Conservative, Bev Shipley]

Is there any more debate? I don't see any.

We have a motion in front us, put forward by Mr. Eyking. Do I need to read it? I'm assuming not.

(Amendment negatived [See Minutes of Proceedings])

I will now move on, folks. Thank you very much.

(Clause 6 as amended agreed to)

(Clause 15 as amended agreed to)

Shall the bill be carried as amended?