In my view there are always ways to improve it. I think one of the problems with this particular case is that whatever faults, if any, the claimant in question had coming in, or whatever they brought to the table in terms of their own situation, it looks as though that aspect wasn't addressed in a unified way.
The provincial government took steps, and because of the international trade jurisdiction, the federal government was left with the problem. The problem was solved through a settlement, but the leverage back at the investor....
I've represented investors in these kinds of claims, and if you're facing a government that's negotiating with a kind of full-court press with everybody on the same page, then you have a discussion, you have a negotiation, and then you have the government side saying that if you're doing this, we can do this back.
What happened here was that it happened just like that--overnight, I think; I wasn't privy to the discussions. Then next the federal government was served with a notice of intent, a notice of arbitration; they were looking at a $500 million or $600 million liability. Whether it's right or wrong, I think it's not debatable that this is a liability on the federal crown.
There's no mechanism. People have written since this case that there ought to be one, and I think even the government officials talked about it being a subject for further discussion. There's no mechanism in place to create that kind of full-court press, right from the person who's having problems losing his or her job....
We have to really think of all of us. We're all Canadians. We're all individuals. We all have jobs. We all have to make a living.
I've been a trade negotiator. I've fought for the provinces in the liquor boards and the beer wars. We have to get it lined up so that we're on the same page and we're a team. If we're not a team, then it's simple: the other side says, “Hey, this isn't a team. We're going to go there because that's our best bet. When we go there, we don't have to worry about the people over there, or there, because they don't even talk to each other.”
Now, I know it's not that bad. The fact is that we live in a great country, and part of the greatness of our country is that we're able to live in different jurisdictions with different rules and sets of laws in different communities. However, when we're threatened by a case like this NAFTA chapter 11 case, the world is a tough place out there. I was a trade commissioner too, and I went to really tough countries. I tried to negotiate for Canada to win contracts, and if you're not working together....
There were famous stories—and it's not as bad as it used to be—when I was a trade commissioner, of two or three Canadian companies bidding against each other for the same product. There were 12 other bids, and every other country got their act together—in Brussels, Paris, Washington, New York—and they were all one single team.
We have our differences and we're always going to have our differences, but the great thing about Canada is we can have them. However, when we're hit by a big case, by a major liability, we have to figure out a way to work together. It's quite doable, and I've seen cases of it happeneing. The beer wars were an example. We got the provincial governments all together in a room. We fought for them. We talked to them about what our arguments were going to be at the WTO and the GATT and we worked together.
That can happen, and that should be happening more. I don't think it takes a new agreement. It doesn't take a constitutional amendment. It just takes good folks like you sitting in a room with counterparts and working it out.
