Industry Committee on June 3rd, 2010

[Brian Masse, NDP, Windsor West, ON]

So there are random inspections taking place, and that's not new. So what will happen if we move forward with the proposal is the inspector who is authorized will go out to the pump, will maybe do maintenance on that pump, fix that pump and then inspect it, and get a paycheque from that company for doing both regular work on that pump and then later on inspecting it to be in compliance. Do you not see that as a conflict of interest?

[Alan Johnston]

No. As I say, we've had this in place both in the Electricity and Gas Inspection Act and the Weights and Measures Act for a number of years. We think that the oversight we have--i.e., if they were to adjust the pumps for whatever reason and it wasn't in compliance--we will be following up. I'll turn this over to Madam Roussy here in a minute to give you more details, but we would be following up. If we catch individuals doing that kind of thing, we have sanctions we can take against them. We can suspend them.

[Brian Masse, NDP, Windsor West, ON]

In terms of 1999-2007, when we found the problems there, how many fines were levied during that period?

[Alan Johnston]

We've had very few fines. First of all, the prosecution process is very lengthy and very expensive. Measurement Canada has had a progressive enforcement policy in place. Our objective is not necessarily to take everybody to court. Sometimes the punishment doesn't fit the crime. If you're prosecuted, if you're personally charged and convicted, you can obtain a criminal conviction.

[Brian Masse, NDP, Windsor West, ON]

Well, you're painting a different picture from the minister, who was on CTV pointing down and saying “We're coming after you”. That's what he did. You have 94% right now that we're guessing are in compliance, and 6% that aren't, and $20 million annually that people are being ripped off. We have a system right now where you're saying some were fined. Can we get the exact number? I would like the exact number of those fines. If you don't have them today, then they can be tabled with the clerk later on. But I would like to know how many and how much people were fined.

[Alan Johnston]

I have one only that I can recall, but I'll have to check my information.

[Brian Masse, NDP, Windsor West, ON]

So we've had probably hundreds of millions of dollars of gasoline that hasn't been provided to Canadian consumers over this time period, and there's only been one fine. Is that right?

[Gilles Vinet]

It depends what you mean by “fine“. We have--

[Brian Masse, NDP, Windsor West, ON]

Well, a “fine” is when you're caught doing something wrong you have to pay money for it because you did something wrong.

[Gilles Vinet]

The only tool we have for enforcement right now is prosecution. Over the last five years, we've had one prosecution by us, but also one prosecution by the Sûreté du Québec, because we started an investigation and we found there was a problem and we worked with the police and decided to prosecute under other legislation. So we had one prosecution case over the last five years, but many counts. That's why I was saying I didn't know what you meant by fines, but there were 12 counts, accusations, for that prosecution. Again, the problem with prosecution is that the amounts we get are very small. The amount of work is really big, and the amount of time is really big, and we end up with a $300 fine at the end.

[Brian Masse, NDP, Windsor West, ON]

That could actually be changed by regulations. It could be changed tomorrow by regulations. No, it cannot?

[Gilles Vinet]

No, it's set in the act, and Bill C-14 is changing that.

[Brian Masse, NDP, Windsor West, ON]

Sure, but it could be done on its own, not with other changes to the act.

Here's what I'm concerned about. We're going to add more private inspectors to a system and regime you already have. You are telling me right now that aside from following up with Measurement Canada people, we rely right now on the private inspectors to go forward out there to do the measurement, where we know we're having $20 million annually, approximately, of misappropriations of consumers' moneys, and we're going to grow that.

I'm really concerned about the fact that you have the companies that are going to employ people to work on a regular basis to do work at their company. That probably is a hefty part of their paycheque, versus that of the quick measurement check, which is $50 to $200. Then we're going to expect that it's all going to carry out in the wash and consumers are going to be protected.

What I'm really shocked about is that you describe that as the current regime. I assumed there was actually more oversight happening right now, but it appears there is less follow-up.

How do you reconcile the exact process of following up on those inspectors? Right now you have moved to a process of relying on the private sector to deliver this measurement process that's failing Canadians. We want to increase that. What is your mechanism to put more accountability? Because obviously it's not working right now and you want to build the regime stronger.

[Alan Johnston]

I think I'll ask Sonia Roussy to address that question.

[Sonia Roussy, Vice-President, Innovative Services Directorate, Measurement Canada, Department of Industry]

I'll take them one at a time, because there are a few points there.

Grow private inspections.... Just to be clear, the private inspectors are authorized service providers, and right now they only perform initial inspections. The point of the bill is to have them perform those mandatory inspections, which don't exist right now. Right now what happens are two things. The private inspectors are doing the initial inspection, which is the first inspection before a device goes into the marketplace. And Measurement Canada does random inspections. That's what is happening now. As a result of that, we have the situation we have with the $20 million.

Private inspectors are not doing anything else because there's no incentive for them to do it.

[Brian Masse, NDP, Windsor West, ON]

Obviously it's not working, because if you have that type of chronic problem, they're the ones setting up the faulty equipment right now.

[Sonia Roussy]

Well, what's happening is with the private inspectors there is follow-up, and the work they are doing is correct. But what happens with the equipment is that if it is set up and then left unattended, without the repairs, there are seasonal changes that impact on these devices and so on for a year or two, or longer. The device compliance is degrading, but there is no incentive for anyone to go back and do a repair because there's no mandatory requirement.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Masse.

Thank you, Madame Roussy.

You referred to prosecution, and I assume that's criminal prosecution.

[Alan Johnston]

That's correct.

[The Chair, Conservative, Michael Chong]

So I think the difference is that in the current legislation, the current law, the burden of proof is beyond a reasonable doubt on the part of the crown because it's criminal prosecution, whereas with the new legislation it would be civil prosecution, with administrative monetary penalties, where the burden of proof on the crown is the balance of probabilities, which is a much less onerous thing to prove.

[Alan Johnston]

Yes. We would maintain both.

[The Chair, Conservative, Michael Chong]

Yes, but you would obviously more likely pursue the administrative monetary penalties--

[Alan Johnston]

Yes, definitely.

[The Chair, Conservative, Michael Chong]

--rather than the criminal prosecution, unless it was quite egregious.

Mr. McKay.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Mr. Chair.

I'm not a regular member of this committee, so I'm a bit of a johnny-come-lately here.

I must admit that Mr. Masse's line of questioning is intriguing, in the sense that a private inspector has an inherent conflict of interest. I don't think a private inspector, versus a government inspector, in terms of inspecting the pump is going to do a substantially different job. But the private inspector has built in a conflict of interest, and that is, he wants to sell other services to the gas station owner. I don't know what all those other services might be, but it seems to me that this conflict of interest may be from time to time weighted in favour of the owner of the gas station, versus the consumer of the products at the gas station. Do you have an opinion on that matter?