Finance Committee on May 28th, 2019

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Okay.

[The Chair, Liberal, Wayne Easter]

Does that clarify that?

Mr. Dusseault, go ahead.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

I understand that we have the discretionary possibility to review an invoice. However, will the date of the proper invoice have to change?

For example, if a proper invoice is sent on April 1, the parties revise the invoice and a revised proper invoice is submitted, what date will be used to determine the beginning of the time in which the invoice must be paid?

[Christopher Meszaros]

That would be the consideration. It would be unlikely that they'd want to change the date of the invoice because you want to maintain the payment frequency so that everybody down the chain would know when to expect their payments. Any discretion that would be exercised would probably remain within the payment scheme and the timing already established.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

You have just clearly identified the problem: it's a discretionary decision.

We suggest that the proposed legislation include the possibility of revising an invoice, but without changing the date of the current proper invoice. That way, there will be no discretion. This will not allow Her Majesty to negotiate a new invoice in order to extend the payment period or defer the duty to pay.

This amendment has merit, although Mr. Sorbara thinks it is unnecessary. If we always rely on ministerial and government discretion, we can sometimes be very disappointed. It is better to include it in the proposed legislation to ensure that the discretion granted will not be misused.

[The Chair, Liberal, Wayne Easter]

Any further discussion on NDP-31?

(Amendment negatived [See Minutes of Proceedings])

The next amendment is NDP-32.

Mr. Dusseault.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

We continue to review the proposed legislation in order. We now look at prior verification, which is discussed on page 349.

Witnesses have stated—again, I am not making this up—that the terms used in the construction industry and those used in the proposed legislation should be more in line with each other. They should be more in line with the practices and habits of the construction industry. Attention was drawn to the word “verification” when it comes to prior verification. Some witnesses said that the term is not common in the construction industry and that it is better to use the word “certification” instead.

I hope to get my colleagues' support on this issue, so that the terms used in this legislation reflect those used in the sector, instead of using terms that less accurately reflect the reality of the stakeholders affected by the legislation.

[The Chair, Liberal, Wayne Easter]

Mr. Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

I thank the member for his comment.

Let me explain the difference between the terms “verification” and “certification”. In our view, certification is perceived as the process of providing a person with an official document attesting to a level of achievement, while verification is the process of establishing the veracity, accuracy or validity of something. The term “certification” is more limited in its application and may suggest that, even though an official certificate is not a condition for submitting a proper invoice, it may be necessary to verify that the work has been performed. The use of the term “verification” allows for more effective control over possible abuses of the provision.

[The Chair, Liberal, Wayne Easter]

Are there any further comments?

(Amendment negatived [See Minutes of Proceedings])

We are now on NDP-33.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Once again, we are continuing the study in order. We are now on page 352 of the bill, talking about the same proposed legislation.

The following clarification should be added:

(1.1) The dispute over the non-payment may include a dispute respecting the cost of services or materials in relation to a proposed change to the contract or change order.

As one witness told us, changes or corrections may be made while a contract is being executed. If clients want more or less, and want to change certain things in the contract, they can do so. Of course, the clients are the ones making those decisions. Disputes may arise because of non-payment related to amendments to the contract.

The idea is to clarify that the dispute may relate to the costs of an amendment to the contract. According to one witness, this clarification was needed. The purpose of the amendment is to clarify this point and provide certainty for stakeholders.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

I have a question for the officials with regard to how the subject of the dispute will be handled in the regulations.

Can you comment on that?

[Christopher Meszaros]

Disputes will be handled through adjudication. This will be one of several disputes that will be outlined in regulations.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

What would be the frame of reference at the federal level, since prompt payment legislation is something that's been brought in at the provincial level? How would specifying only one potential subject for dispute impact other measures from being disputed?

[Christopher Meszaros]

We have a larger list that would be put into the regulations. Including one here would change the reference and the order and the worth of the one particular dispute. We would probably want to deal with them all on an equal basis as opposed to having one carved out on its own here.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Okay, so this amendment could potentially devalue one dispute over another dispute, if I understand what the amendment proposes to do.

[Christopher Meszaros]

That would be our opinion, yes.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Mr. Chair, with that feedback I will be rejecting the NDP's amendment.

[The Chair, Liberal, Wayne Easter]

Is there any further discussion on amendment NDP-33?

(Amendment negatived [See Minutes of Proceedings])

The next amendment is NDP-34.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

We continue with the topic of disputes. This amendment deals with dispute resolution and experts who can make decisions on disputes.

Witnesses mentioned that they would like to be sure that experts can deal with a number of disputes involving the same parties and issues and bring them together into a single decision.

Witnesses noted that it is possible that several dispute resolutions may address similar or identical issues. In their view, the proposed legislation should recognize this and give experts the right to bring disputes together in order to make a single decision on all the issues raised in the disputes.

The amendment seeks to ensure that this is included in the text of the proposed legislation. Once again, this gives experts confidence that they will be able to do so. Some people will say that, in practice, it will be possible for experts to bring disputes together, but it is always better to write it into the legislation.

[The Chair, Liberal, Wayne Easter]

Thank you, Mr. Dusseault.

Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Once again, thank you to our colleague for raising the amendment and focusing on this issue. However, the subject is to be dealt with in the regulations. Therefore, I think the amendment that has been proposed should not go ahead.

[The Chair, Liberal, Wayne Easter]

Do officials want to make a comment on that?

[Shawn Gardner]

Very quickly, on the whole adjudication process, there are quite a number of items. This is a very important one and it would be dealt with in the regulations. Bringing it into legislation, as I said earlier, gives greater precedent to this one over the rest of the process that will be defined in the regulations, but it is a very important element that we do need to address.

[The Chair, Liberal, Wayne Easter]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

The last amendment on the bill is NDP-35 from Mr. Dusseault.