Transport Committee on Dec. 5th, 2006

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Chairman, there are so many things that cannot be predicted, when it comes to safety and security, that we must allow the minister to have the discretion to act. We have no way of knowing what could happen in the future. If something terrible were to occur, the minister must be able to intervene and introduce new legislative measures. I don't buy your example. If there is one place where we must maintain the word "may", it is certainly in security.

However, when it comes to advertising, the airlines are past masters in defrauding the public; I think it is out-and-out fraud. They try to entice people with low air fares that are not accurate. We are simply saying that the time has come to put an end to it.

That is why I am saying that you can't compare it to security. Next time you need an example, you will have to find another one.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

First of all, this is a government of action, so I can appease Mr. McGuinty by saying that we will get it done right away, but it certainly won't be done for Christmas, unless he's going to promise me that he can get the will of the committee to push this through before that time, before the House recesses.

But the other thing is, Mr. Chair, this might go beyond the jurisdiction of the federal government. Take, for instance, that Air Transat sells a lot of tours provincially. That is provincially regulated. How do we force them to do so?

Is this a situation where our legislation itself is going to speak to something that is beyond the powers of the legislators? I would suggest it is.

Indeed, and back to Mr. Laframboise's point, I think the media is also something that is changing dramatically over the years. Maybe it's not as important as safety, and it certainly isn't, but it's a situation where we have the web today. We have American carriers, quite frankly, advertising on the web. I think most Canadians don't understand that there is a difference between an American web address and a Canadian web address. Indeed, we're going to find that you're going to have Air Canada next to an American carrier, and quite frankly, it's going to appear that the Air Canada carrier is more expensive. Will it drive down the sales of Canadian air travel? It may indeed do that.

I think what this does is it gives the flexibility to the minister, first of all, to not impose on provincial legislation, and second, to change with the marketplace.

In the fact that we've put this in with the legislation, the government is dedicated to this. We understand that it's necessary and we will get it done. It's just a matter of having the flexibility in the future.

What I would like to do, Mr. Chair, with your permission, is pass out a piece of legislation that proposes an amendment that may be acceptable to the Liberals, the NDP, and the Bloc, if that's possible.

[The Chair, Conservative, Merv Tweed]

Certainly you have the ability to make an amendment to the amendment. If that's what you're doing, then I would ask you to pass it out and proceed.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

What this does—

[The Chair, Conservative, Merv Tweed]

I'll ask you just to wait until everyone has the amendment.

I'll get you to explain it to the entire committee, if I may. I'm waiting to get a legal report here.

What I'm going to do on the recommendation is that the first, on proposed subsection 86.1(1), will be dealt with as a subamendment to Mr. McGuinty's amendment. The second part we will deal with as a separate amendment.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I think, Mr. Chair, what this does.... Actually, the only change you can see is from Mr. McGuinty--and I'm not sure if he left it out of there because, of course, the Liberals have had ministers in this particular job I think 86% of the time that we've been a country. All it does it is leave the discretion with the minister, but it forces the agency to impose regulations on it.

So in cases where it's beyond jurisdiction or it's not in the public interest--which, of course, the minister is obligated to do--it's a compromise. Indeed, I think it's helpful.

[The Chair, Conservative, Merv Tweed]

Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I would like to come back to what the parliamentary secretary said earlier about websites and the like.

That was a real eye opener. I hope I misunderstood what you were saying. You stated that companies from outside Canada could run contests on the Internet and award prizes. We have no way of knowing if what they are doing is always legal. So far, so good.

What I am wondering is whether or not the government's open skies policy will lead to a similar problem. If that is the case, it would mean that an open skies policy would allow competitors to attract business here with false advertising, by quoting air fares that are not accurate, etc. I have a problem with that.

I hope that is not the case, otherwise I might be tempted to support Mr. McGuinty's motion and make the other companies operating in Canada play by the same rules. With the open skies policy, if the foreign airlines want to compete with ours, then I understand why there is some reluctance, particularly if questionable advertising could be used to undermine our domestic airlines. So the problem involves both advertising as well as the open skies policy.

[The Chair, Conservative, Merv Tweed]

I have a list here: Mr. Scott, Mr. Julian, Mr. Fast.

[Andy Scott, Liberal, Fredericton, NB]

Thank you.

On the issue of the fact that we use the word “may” in the case of safety--the argument being that safety is more important--why would we compel them in a case that is less important? I think there's a reverse argument here. The reverse argument is that we're satisfied that in the case of safety it is compelling enough in its own right, and it is a decision as to whether to compel the minister to act about something less important, if you could say that.

I believe you've made a great distinction, but I think you've made it backwards. I hope you understand what I'm saying. You would have to compel the minister to do something that he may not otherwise do. I simply don't believe there's any likelihood that he's not going to do it on safety, but he may not do it on this. That's the reason I want to make that point, because I think this isn't to somehow choose more importance here than there. In fact, because it's less important, it's probably less necessary to compel, that's all.

[The Chair, Conservative, Merv Tweed]

Mr. Julian.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

In answer to Mr. Jean's question, “Who does this affect?”, it's very clear in proposed subsection 86.1 that we're talking about “prices for air services within, or originating in, Canada”. So the real question is whether we leave it to the minister's discretion or whether there is a mandate and an obligation to make those regulations. I think Mr. Laframboise and Mr. Scott have raised the point very effectively. There's no doubt the public wants to see regulations in this regard and there's no doubt that giving the option to the minister is a loophole. I think it's fair to say on this committee that what we want to do is close that loophole and make sure those regulations are made in the public interest. That's why I support Mr. McGuinty's amendment.

Getting back to the government's proposed amendment, which doesn't change anything, except, I imagine, to take a little bit of discretion away from the agency, it continues to provide the discretion to the minister. I think it's missing the point: we don't want to give discretion to the minister. We want the minister to put together the regulations that should be required under this act. That's why the word “shall” is being proposed in amendment L-3.1., and I think that's where we should be going.

[The Chair, Conservative, Merv Tweed]

Mr. Fast.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Chair, I think we as a committee of mostly non-lawyers are missing what could happen if in fact we changed the word “may” to “shall”. There seems to be an assumption here that if we use the word “shall”, we're going to achieve all those objectives Mr. Carrier, Mr. Laframboise, Mr. McGuinty, and Mr. Hubbard have enumerated. I don't believe that's so.

If you had a minister who did not want to pass regulations, he could comply with the letter of the law by simply passing a benign regulation, and he could say “I've done my job”. What it does is something much more dangerous. By changing the word “may” to “shall”, it introduces ambiguity into the section. It raises the distinct possibility, as has already been mentioned by Mr. Jean and by Mr. Langlois, that we are going to be attracting litigation that none of us had anticipated or expected. It may raise expectations of the public that none of us really wanted to meet.

On the suggestion that we should be regulating the whole area of fees and how they're advertised, I think you're going to find unanimity at this table. That's why the section is even in here. But the moment we introduce the word “shall”, those of us who have done drafting in the past know that it's an invitation to attract litigation that is spurious or that may actually impose costs on government that we never expected. l'm looking at the wording that was used in the initial draft, which is “the agency may on the recommendation of the minister”.

My guess is that if you asked Mr. Langlois, he would probably tell you that it's one of the most common phrases used in statutory drafting because it's been interpreted. It does provide discretion. It doesn't compel a minister to do something non-specific. This does. If we use the word “shall”, a member of the public could come forward, as has been suggested, and could say “Well, there's a compulsion to regulate. You haven't regulated the way I'd like to see it done, and I believe there should be an order of mandamus issued to compel you to act in my favour.”

We're asking for litigation. We're introducing ambiguity, and we're not achieving what Mr. McGuinty had hoped to achieve, which is to compel the minister to regulate in a specific way. It's not going to happen.

[The Chair, Conservative, Merv Tweed]

Mr. Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I would like to remind Mr. Fast that the amendment that replaces the word "may" by the word "shall" was moved by the government. You say that the word "shall" is ambiguous, but your government is the one that put it forward.

[Ed Fast, Conservative, Abbotsford, BC]

That's understood, Mr. Chair. However, there's still absolute discretion in the name of the minister. The minister has the ultimate authority, and understood in the amendment is that the minister still has the discretion. For the minister, it's still “may”; it's not “shall”.

It's a very significant distinction. I would be pleased to support the government's amendment. I would be pleased to do that, because it's not going to attract the litigation and the potential liability that the initial motion from Mr. McGuinty suggested. I'm serious.

[The Chair, Conservative, Merv Tweed]

Mr. Langlois.

[Alain Langlois]

Mr. Carrier, you are right in saying that in federal legislation, a regulatory power is very rarely granted to anyone other than the governor in council. That is a rare occurrence. In federal laws, most of the regulatory powers belong to the governor in council. In some exceptional circumstances, they would be granted to the minister, and on a very rare occasion, as in this case, they are granted to a federal body.

Therefore, if the agency is forced to regulate, upon recommendation by the minister, the discretionary power that is usually part of the regulatory power would be maintained. Therefore, if the wording is changed to read "The Agency shall, on the recommendation of the minister, make regulations [...]", it would not affect the discretionary nature of the regulatory power. For that reason, the department sees no problem with it.

[The Chair, Conservative, Merv Tweed]

Mr. McGuinty.

[David McGuinty, Liberal, Ottawa South, ON]

Monsieur Langlois, if the wording in the bill as it now sits, or in the proposed amendment the government has put forward, goes through and there's a discretionary power vested in the minister, and if on April 1 the airlines begin a major lobbying campaign to stop this, the minister can stop it, correct?

[Alain Langlois]

Yes.

[David McGuinty, Liberal, Ottawa South, ON]

Okay. Thank you very much.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.