Evidence of meeting #51 for International Trade in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Philippe Méla  Legislative Clerk
Steve Verheul  Chief Trade Negotiator, Canada-European Union, Department of Foreign Affairs, Trade and Development
Mark Schaan  Director General, Marketplace Framework Policy Branch, Strategic Policy Sector, Department of Industry
Denis Martel  Director, Patent Policy Directorate, Strategic Policy Sector, Department of Industry

3:40 p.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Thank you, Mr. Chair.

3:40 p.m.

Liberal

The Chair Liberal Mark Eyking

Do you want to speak to your amendment PV-1?

3:40 p.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Yes. The “PV” stands for “Parti vert”.

3:45 p.m.

Liberal

The Chair Liberal Mark Eyking

Sorry, Ms. May, but before you go ahead, let me say that if PV-1 is adopted, NDP-4 cannot be moved, as they amend the same lines.

Go ahead.

3:45 p.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Thank you.

Of course, this is deemed moved under the terms of the motion that I objected to but which this committee passed and which requires that I be here. There are always conflicts; if I weren't here, I could be speaking to Bill S-4 in the House. That is one of the reasons that I find these provisions that require members of parties with fewer than 12 members to submit amendments 48 hours in advance and have them deemed moved not really a fair or equal opportunity, but it's the one I have. I appreciate that you've given me the floor, Mr. Chair.

The amendment here, just to situate you in the proper part of the bill, is to clause 11, which deals with approval and representation on the CETA joint committee, and specifically the powers of the minister under clause 11. You may recall the evidence of Professor Gus Van Harten from Osgoode Hall Law School, when he testified before the committee. He made a number of very quick points, but one of them was that under clause 11, in his words:

...the Minister of Trade is given the power to appoint members of the roster.... I...want to stress...this is a very significant power, because we could think of the members of that roster as, very simply, almost equivalent to Supreme Court of Canada judges in the extent of their powers to review the passage of laws, passage of regulations, and so on in Canada.

I won't read the rest of his testimony, but his point was that to have this solely vested in the trade minister without a broader consultation could leave some public interest matters.... No offence to any current or future trade minister, but these are very significant powers to appoint members of the tribunals. The amendment I'm proposing is in two parts, as follows:

(1) The Minister may, in consultation with the Attorney General of Canada,

It's just like appointing a judge. It's in consultation with the Attorney General, the Minister of Justice.

Then we add another line to ensure that, for the roster, the pool of potential nominees from which the minister, in consultation with the the Attorney General, chooses someone to be a member of the tribunals, should exclude any individual:

who has served as legal counsel in an arbitration proceeding in respect of an investment dispute.

Let me just say, as you may anticipate this, that we do know that the text of the comprehensive economic trade agreement specifically says that people can't be members of the tribunal if they have served or take up a position as an advocate in a CETA dispute. This amendment is to broaden that, so that we couldn't have people serving as members of a tribunal on CETA who had been, for instance, legal counsel under a chapter 11 suit, where they were representing a corporation against the Government of Canada, or under a bilateral investment agreement, such as we have with Ukraine, a one-off bilateral.

If you've worked in that investment climate as an advocate, the argument that I'm asserting is that you don't have the same neutrality that you really want for a judge. That principle of neutrality is enshrined in CETA, but they just kept it to the comprehensive economic trade agreement, not that whole other sphere of work of a very elite group of lawyers who have a pattern of, can we say, not necessarily fair or neutral arbitration.

I have put these before you. I hope you'll consider them. I'm certainly, at the chair's discretion, happy to answer any questions.

3:45 p.m.

Liberal

The Chair Liberal Mark Eyking

Thank you, Ms. May.

Are there comments on this Green Party amendment?

Go ahead, Ms. Ramsey.

3:45 p.m.

NDP

Tracey Ramsey NDP Essex, ON

Mr. Chair, I think you'll find that I have a similar motion coming forward in NDP-4. Again, it speaks to the sweeping powers that will be afforded to the minister, and I think the member for Saanich—Gulf Islands speaks well about the fact that it won't necessarily be the current minister, in that this is going forward in perpetuity.

It's important, I think, that we pause to look at the way these individuals will be named and who will potentially be sitting there, so that it's in the best interests of Canadians, and so we learn some lessons from what's happened in regard to chapter 11. I do support the spirit of her motion in terms of saying that we need to ensure that people who have sued us before under chapter 11 don't now find a window inside CETA to do the same thing.

3:45 p.m.

Liberal

The Chair Liberal Mark Eyking

Thank you.

Is there any more comment on this? All in favour of the Green Party motion?

(Amendment negatived [See Minutes of Proceedings])

It does not carry, and that being the case, we have to move on to amendment NDP-4, which is very similar. The NDP members have the floor if they want to explain it.

Go ahead.

3:45 p.m.

NDP

Tracey Ramsey NDP Essex, ON

In this amendment that we've proposed, we're adding some other people into the decision-making process so that it's not just at the hands of one minister and the government. We're proposing that:

The Minister may, following public consultations, propose jointly with the Minister of Justice and the Minister of the Environment the names of individuals to serve as members of the tribunals established under Section F of Chapter Eight of the Agreement.

Again, I think this speaks to solely the minister having that ability to appoint people. I think we do Canadians a service when we have a couple of different people looking at those who are proposed in terms of sitting in this court system that will be coming forward out of CETA, versus this being in the power of one particular minister.

3:50 p.m.

Liberal

The Chair Liberal Mark Eyking

Thank you, Ms. Ramsey.

Is there any more comment?

Mr. Ritz.

3:50 p.m.

Conservative

Gerry Ritz Conservative Battlefords—Lloydminster, SK

I'd just like a verification. My notes say that actually the ministers of finance, labour, and environment all have the ability to propose names. They come to the Minister of International Trade, but they all have an ability to put names forward.

3:50 p.m.

Chief Trade Negotiator, Canada-European Union, Department of Foreign Affairs, Trade and Development

Steve Verheul

When it comes to the dispute resolution process in the labour chapter, in the environment chapter, and in the financial services chapter, there's certainly input provided by those ministers, yes.

3:50 p.m.

Conservative

Gerry Ritz Conservative Battlefords—Lloydminster, SK

Yes, and we're a co-chair with the EU on the names that are put forward, so we would need to have the EU's consent to actually do this.

3:50 p.m.

Chief Trade Negotiator, Canada-European Union, Department of Foreign Affairs, Trade and Development

Steve Verheul

That's right.

3:50 p.m.

Conservative

Gerry Ritz Conservative Battlefords—Lloydminster, SK

Thank you.

3:50 p.m.

Liberal

The Chair Liberal Mark Eyking

Thank you, Mr. Ritz.

Are there any more comments on the NDP-4 amendment? If not, we'll go to a vote.

(Amendment negatived [See Minutes of Proceedings])

There is a note here that if it's defeated, the related NDP-12 will not pass either.

(Clause 11 agreed to)

(Clauses 12 to 38 inclusive agreed to)

(On clause 39)

We are on amendment NDP-5.

Is there any comment on NDP-5?

Go ahead, Ms. Ramsey

3:50 p.m.

NDP

Tracey Ramsey NDP Essex, ON

This was the request that came out of the generics group when they came. They spoke to us about the concerns they have. The pharmaceutical industry in Canada is highly litigious, and a lot of case law exists. That language could be impacted, going back to case law that already exists, so there is a bit of a change here with the preamble in order to reinstate the language of the Patent Act.

I want to be clear that the amendments here, and even this proposal, are not required by CETA. This is one of the pieces where we heard from the generics group that they saw, inside of the changes to the Patent Act, that we are going above and beyond the requirements of CETA.

I'd actually ask Mr. Verheul if he could speak to that, because this was something we heard after his presentation to us. We heard from the generics group that pieces of the legislation go above and beyond what is necessary for enforcement of CETA.

I wonder if you could speak to that. Perhaps you could speak to this particular clause and to whether we could go back to the reinstatement of the language of the Patent Act.

3:50 p.m.

Chief Trade Negotiator, Canada-European Union, Department of Foreign Affairs, Trade and Development

Steve Verheul

I will ask one of my experts from the Department of Innovation, Science and Economic Development to respond to that question.

Mark.

3:50 p.m.

Mark Schaan Director General, Marketplace Framework Policy Branch, Strategic Policy Sector, Department of Industry

Mr. Chair, in the balance of the agreement, on the pharmaceutical provisions and the intellectual property provisions, there were elements that were specifically in the CETA text, and then there were portions that were fundamental to the balance we struck for the Canadian implementation. One of them was actually ending dual litigation, which was a fundamental ask of stakeholders within the overall process.

Your motion reflects or expresses the views of CGPA, but our view is that it's overbroad. This is actually a necessary provision to allow for the ending of dual litigation. It's fundamental to the implementation as articulated.

3:50 p.m.

Liberal

The Chair Liberal Mark Eyking

Ms. Ramsey.

3:50 p.m.

NDP

Tracey Ramsey NDP Essex, ON

The proposal we have here is to reinstate that language of the Patent Act. Are you saying that it's necessary to go above and beyond that in order to prevent dual litigation?

December 14th, 2016 / 3:50 p.m.

Director General, Marketplace Framework Policy Branch, Strategic Policy Sector, Department of Industry

Mark Schaan

I'll actually turn to my other colleague on that.

3:50 p.m.

Denis Martel Director, Patent Policy Directorate, Strategic Policy Sector, Department of Industry

The purpose of the regulatory-making authority is to make sure that we can meet our obligations, and the first is to provide equal and effective appeal rights. We will do this by ending the practice of dual litigation, and this will be done through the regulatory schemes, through what we call the patented medicines notices of compliance.

To do these there are different features. One of the main ones is to turn what is currently a summary procedure into a full action to determine validity infringement. To do this, some of the regulations will need to change. The Governor in Council will need this extra regulatory-making authority to make sure that the regulations can come into force and won't be challenged down the road.

3:55 p.m.

NDP

Tracey Ramsey NDP Essex, ON

Specifically, the language that there's issue with is taking out the reference to “directly” or “indirectly”, which appears lower down on the page. It's referenced several times, actually, throughout the changes that I've amended here. There's a thought that this unnecessarily broadens the language, and it could introduce new concepts. Again, it's not that the generics have been clear in saying it is not required in CETA; they're concerned about the interpretation of the language being broadened by the usage of “directly” or “indirectly”.

3:55 p.m.

Director General, Marketplace Framework Policy Branch, Strategic Policy Sector, Department of Industry

Mark Schaan

Our view, in consulting and meeting with stakeholders, is that these powers are required for the regulation-making power that we believe is necessary for effective appeal rights, and in consequence, for the ending of dual litigation. It's fair to say that, as you indicated, this is a zone of particular litigation, and ensuring that we have effective regulation-making authority is a critical aspect of ensuring that we have the capacity to implement as we've set out.