Canadian Heritage Committee on April 26th, 2021

[The Chair, Liberal, Scott Simms]

Mr. Ripley, if you'd like to take a few more seconds to collect your thoughts on the question, you can do that, if you wish.

[Thomas Owen Ripley]

What I would say is that the law is specific, generally, wherever it grants the CRTC the power to impose terms or conditions.

Our view is that even if you struck it—again, because there are other instances in the act, I think, wherein it explicitly references terms and conditions—the reading would likely be that it doesn't include it here.

That said, I think it increases the ambiguity about whether the CRTC would or would not have the power to impose terms or conditions. I think it would be a more ambiguous outcome.

[The Chair, Liberal, Scott Simms]

I have Mr. Shields.

Mr. Shields, is that your legacy hand from before?

[Martin Shields, Conservative, Bow River, AB]

I do want to speak.

[The Chair, Liberal, Scott Simms]

There you go.

Ms. McPherson.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I will not put that subamendment forward, but I do have another subamendment that I would like to put forward, if I could.

[The Chair, Liberal, Scott Simms]

The floor is yours.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you.

Proposed subsection 9.1(7) reads in part, “The Commission may facilitate those negotiations”.

I would like it to say, “The Commission may facilitate those negotiations of the parties to the negotiations”, or even just to end it at “negotiations”. I haven't got it in my head yet.

What I'd like to remove is “at the joint request”. I don't think that's required or necessary.

[The Chair, Liberal, Scott Simms]

Okay.

You've put out a couple of options. Do you want to put that to the department to see which option you'd like?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

That would perhaps be the best thing to do.

[The Chair, Liberal, Scott Simms]

I'm sorry, Mr. Ripley, I have to go back to you again.

Do you understand what was just proposed?

[Thomas Owen Ripley]

I do, and I will probably defer to Mr. Méla on the drafting.

To clarify, there would indeed be a substantial change. Right now, as drafted, facilitation could only be invoked at the joint request of the parties, meaning that if one party wanted facilitation but the other party didn't, you wouldn't meet the test for engaging the facilitation.

My understanding is that Ms. McPherson's change would allow one party or the other to potentially engage in a facilitation.

[The Chair, Liberal, Scott Simms]

Ms. McPherson, I hope that clears up the intentions of what you hope to do.

For my sake, and for Mr. Méla, which option would you like to propose for an amendment?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Having had a few more seconds to look at this, I could subamend by just removing “joint”, so it would read “at the request of parties to the negotiations”. I would remove the word “joint”.

[The Chair, Liberal, Scott Simms]

So that everyone is clear, what Ms. McPherson is proposing as a subamendment is to subamend proposed subsection 9.1(7) to say:

The Commission may facilitate those negotiations at the request of the parties to the negotiations

The proposal is to remove the word “joint”.

I now have Mr. Shields.

[Martin Shields, Conservative, Bow River, AB]

To clarify, you're talking about binding arbitration.

Is that what you're moving to? Will it be binding arbitration by doing that?

[The Chair, Liberal, Scott Simms]

Ms. McPherson, I'm going to take a couple of questions.

Mr. Housefather may also have some questions for you.

Let me just go to Mr. Housefather and Mr. Champoux, and then I'll come back to you, Ms. McPherson, at the end.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Mr. Chair. I want to thank Ms. McPherson.

I actually think the right way to say it would be “at the request of either party”. What you want to do is to allow one party, the weaker party in the negotiations, to have the right to do this. I think I support that.

I want to ask the department, in the context of these negotiations—and Mr. Chair, you can allow that question to go to them whenever you think it's appropriate based on the sequencing of the order—would there be any problem with allowing—presumably one side is going to be a weaker party here—that one side, the weaker state, to ask for the CRTC's intervention?

I cannot see a trade risk in doing it that way. I just want to check to make sure that the department also doesn't see that this would be a trade risk.

I think the right way to word it, if Ms. McPherson agrees with me, would be “may facilitate those negotiations at the request of either party to the negotiations”.

Thank you so much, Mr. Chair.

[The Chair, Liberal, Scott Simms]

Yes. I think given your question and the relevance, I'm going to go to the department first to respond to that. I think that would serve us well.

Mr. Ripley.

[Thomas Owen Ripley]

Thank you, Mr. Chair.

Thank you for the question, Mr. Housefather.

While I won't comment on the trade risk, what I would say is that the effect of this would be to allow either party, one or the other, to request facilitation, and it would prevent, as you pointed out, a party from signing the process by refusing to go to facilitation.

With regard to the concerns you've raised about whether this risks increasing trade tensions, I would say the outcome would require, again, online undertaking to submit to facilitation at the request of the other party. It would take a little more of an interventionist stance, but I would highlight—and perhaps this is actually responding to Mr. Shields' question—that the outcome of this process is not binding arbitration. What the government has put on the table is very explicitly a facilitation exercise and is different from binding arbitration, which does exist in the current environment, whereby the CRTC actually has the power, at the end of the day, to impose a deal.

What this amendment drives to is slightly different in the sense that it is trying to help the parties reach a mutually good deal, so to speak. Again, if ever there were an instance of a party engaging in bad faith or not engaging in good faith, that is backed up by the CRTC's ability to respond to that bad faith behaviour by imposing administrative monetary penalties on the party that may not be playing fairly, so to speak.

[The Chair, Liberal, Scott Simms]

Mr. Champoux.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Ripley partly answered my question by saying that the CRTC could be more restrictive, if required.

[The Chair, Liberal, Scott Simms]

Thank you very much.

Ms. McPherson, do you want in on that? Some of the issues there were brought your way. We are now on your subamendment, so go ahead.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I would, only to say that I appreciate Mr. Housefather's intervention. That wording makes more sense. It's always a challenge to try to write these things in our heads as we go, but his legal background has helped me out there. I still think it would make a lot of sense to make sure there was a more equitable ability to request the negotiations. I do like the subamendment put forward by Mr. Housefather that says “the Commission may facilitate those negotiations at the request of either of the parties to the negotiations”.

[The Chair, Liberal, Scott Simms]

Ms. McPherson, unfortunately I can't move that right now because we're dealing with yours. Normally we have to dispense with the subamendment already moved.