Finance Committee on Nov. 28th, 2016

[Steven MacKinnon, Liberal, Gatineau, QC]

Thank you.

[The Chair, Liberal, Wayne Easter]

Thank you, Mr. MacKinnon and Mr. Campbell.

Before I turn to Mr. Deltell, did your questions get answered in that submission, Mr. Ste-Marie? You'd asked the officials' opinion, and I slipped over it.

[Gabriel Ste-Marie, Bloc, Joliette, QC]

I would like to get the officials' opinions on three things.

First, if Bill C-29 is passed without our amendments, will the banks still be subject to Quebec's Consumer Protection Act, or will they be exempt from it somehow?

Second, will the banks have any control whatsoever over the hiring of the ombudsman? Will they be allowed to look at candidates' CVs? Will they be able to recommend people for the job?

Third, in Marcotte, did the Supreme Court indicate that certain aspects were already unconstitutional?

[The Chair, Liberal, Wayne Easter]

Mr. Campbell.

[Glenn Campbell]

To respond to the first question, the clarity is that federally chartered banks, under this legislation, should adopt and comply wholly with this comprehensive suite of consumer protection rules that exist here in the act. That is what they are being asked to comply with. Banks themselves need to manage to the extent to which other rules may apply that fall outside of that. That is my answer to your first question.

On the second question, to my knowledge, there are only two external complaints bodies that are authorized and regulated, certified, in Canada to perform the role. Our banks can choose only one of two. They both must follow the same rules and procedures, and meet the guidelines set out by the Financial Consumer Agency of Canada. They are independent corporations, corporate entities, that make their own decisions about staffing and hiring, but their roles are quite transparent.

[The Chair, Liberal, Wayne Easter]

And the third question?

[Glenn Campbell]

Could you repeat the third question? I missed the translation.

[Gabriel Ste-Marie, Bloc, Joliette, QC]

Certain aspects of Bill C-29 are already unconstitutional, are they not, given that they were described as such in the Marcotte decision?

[Glenn Campbell]

I'm not going to make any comment about constitutionality. I think that's beyond my remit. However, the court, in our reading, from a policy point of view, was pretty clear. The Government of Canada, through the Parliament of Canada, needs to express its intent and be clear in legislation over how it intends these rules to apply, particularly around the circumstances where there may not be direct conflicts with the provincial law, but they're close, or there may be gaps. We believe that is entirely constitutional.

The provisions that are here under what we call the three Ps—the preamble, purpose clause, and paramountcy—effectively reinforce long-standing interpretation. They just clarify Parliament's intent, subject to Parliament's voting, and that appears to be entirely consistent with asking an entity to follow one set of rules.

[The Chair, Liberal, Wayne Easter]

Mr. Deltell.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you, Mr. Chair.

Welcome to our witnesses.

This is an awfully interesting debate. I think we need to let two principles guide us in our analysis. First of all, we need to comply with the judgment of the Supreme Court and, second of all, we need to be effective. We can't do any more than that. The previous government passed legislation that was the subject of a challenge, and the Supreme Court ruled on the matter, taking a specific view.

As I understand your explanations in response to Mr. MacKinnon's and Mr. Ste-Marie's questions on the subject, your version of the bill meets the requirements of the Supreme Court's judgment. Therefore, it complies with the decision delivered by the court two years ago. Do I understand that correctly?

[Glenn Campbell]

Yes.

[The Chair, Liberal, Wayne Easter]

I don't think that came through on the record, Mr. Campbell. Yes?

[Glenn Campbell]

The suite of amendments that are being proposed here, in our opinion, respect the framework set out by the court.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

I would just like to be certain.

I'd like you to clarify something for me. When you talk about amendments, you are referring to the provisions in the bill and not the amendments put forward by my Bloc Québécois colleague.

[Glenn Campbell]

I'm responding to, holistically, the provisions that are here now, including the amendments that—

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

The amendments made by...?

[Glenn Campbell]

Pardon me. The government's amendments that are reflected in Bill C-29.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Okay, so not the opposition's amendment. This is a little bit different.

You are giving us assurance, then, that this respects the parameters of the Supreme Court's decision.

Now, we want to be effective. That was the second point I wanted to address. It's clear that all laws are made to be challenged. If we accept that, we know there will always be some lawyer somewhere who will find some aspect to challenge. As my colleague rightfully argued, however, the government could set off a never-ending guerrilla war, legally speaking. As lawmakers, we need to take steps to make absolutely sure that our laws are less vulnerable to challenges.

I am taking you at your word since you are the experts. You helped draft the bill so as to ensure it complied with the Supreme Court's decisions. I will tell you, though, that, in this particular area, it won't be some humble and modest lawyer from the country arguing the case. It could very well be highly competent authorities, such as provincial representatives, challenging the provision on the grounds that it doesn't comply with the Supreme Court's decision. We are talking about very well-equipped people.

In your view, how likely is a legal challenge stemming from this provision? I don't mean a challenge mounted by your average Joe but, rather, by a province?

[Glenn Campbell]

First, let me say that the legislation as amended, as proposed, is clear in its intent to have entities that are subject to the legislation follow the rules that are set out, and to know that these are comprehensive in their structure, such that they would be the rules to which those entities would follow pertaining to consumer protection in the realm of banks and banking, which is under federal jurisdiction as per the Constitution. That's clear. Even the provisions around paramountcy merely reinforce the clarity that this is a comprehensive set of rules, which we are asking our federal entities to follow.

There is no reference directly to what provincial rules may be structured, what they may do, and where they apply. They will still apply where they apply, and it may, downstream, take courts to determine that.

I can say to your latter point that even with this language, the intent going forward is collaboration, having more co-operation and collaboration between the federal regulator and provincial regulators to avoid these issues. Working with entities on both sides is clearly the path forward and the intent.

The Financial Consumer Agency of Canada, which is a new agency, is engaging and will continue to engage with provincial counterparts. The way it's designed to work is that if there is a federally chartered institution that does something in a province, a provincial regulator can go immediately to the federal regulator and have that issue addressed.

The plan going forward is for more co-operation and collaboration, recognizing that there is a dedicated regulator for those entities. I think everyone would be hopeful that this clarity makes returning to the courts for various disputes less likely.

[The Chair, Liberal, Wayne Easter]

Thank you both.

Mr. Deltell, go ahead.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

I'd like to get some clarification and make three comments.

First of all, we are understandably opposed to Bill C-29 overall, so naturally, we won't be voting in favour of this clause.

Second of all, does the clause, in its current form, satisfy the requirements set out in the Supreme Court's decision?

[The Chair, Liberal, Wayne Easter]

Thank you, Mr. Deltell. You're dealing with the clause, not the amendment to the clause.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

But I'm going there.

[The Chair, Liberal, Wayne Easter]

Okay.