Evidence of meeting #42 for Transport, Infrastructure and Communities in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was airport.
A recording is available from Parliament.
Director General, Civil Aviation, Department of Transport
That's not my area. I won't comment.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you, Mr. Chair.
I had questions for the witnesses, but I see that Monsieur Guimond has appeared, and I know he had some specific questions for some of the witnesses here tonight. I'm wondering if he's ready to ask those questions. If he wants the time of the government to do so, he's more than welcome to it.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
I would like to apologize, I was detained at Montreal airport.
My questions concerning noise were essentially covered by my two colleagues. However, I may have one on the Air Canada Public Participation Act.
Ms. Gravitis-Beck, we left each other last week when we were discussing your interpretation of that act. I would like to understand.
In your opinion, is the act that resulted in the privatization of Air Canada and that was adopted by the Conservative government in 1988 still in effect?
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Consequently, all provisions remain in effect.
Director General, Air Policy, Department of Transport
That's correct.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Do you acknowledge that paragraph 6(1)(c) requires Air Canada to maintain operational and overhaul centres in Montreal, Mississauga and Winnipeg? Is that correct?
Director General, Air Policy, Department of Transport
No, there is a nuance that I would add to your comment. The requirement is that Air Canada include in its articles of continuance the obligation to maintain the centres in the three areas you indicated. So it is an indirect obligation; it is not a direct obligation. The obligation is on Air Canada to include it in its articles of continuance, and that obligation has been met. The follow-through of that obligation rests with Air Canada and its shareholders and its management.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
I don't understand what you mean by "indirect obligations".
Director General, Air Policy, Department of Transport
In my introductory comments, I drew a distinction between direct obligations, such as official languages obligations,
and that is a direct obligation on Air Canada, which the Government of Canada is responsible for enforcing.
There is a different kind of obligation that exists with respect to inclusion in the articles of continuance. There are several elements under ACPPA that the government requested that Air Canada include in its articles of continuance. One of those elements pertains to the maintenance of the three operational and overhaul centres in the locations you have indicated. That obligation has been met, because the articles of continuance include those references, that requirement. But the follow-through of that requirement rests with Air Canada and its shareholders. It becomes a private governance issue that is between the corporation and its shareholders. So there is a distinction in terms of the obligation.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
I was not a member in 1988, since I was elected in 1993, but I followed an eminently political issue at the time. When the Crown corporation Air Canada was privatized, they wanted to keep jobs in those three places. In addition, pursuant to the other paragraph, the idea was to maintain headquarters. The act refers to headquarters in the Montreal urban community. Ultimately, that was to ensure the critical mass of very well paid jobs for skilled employees.
In your view, the Government of Canada has no obligation or no power to ensure that Air Canada complies with those provisions. That means that Parliament has spoken for no purpose. The same is true of the headquarters. If Air Canada decides that its headquarters is transferred to Flin Flon, you're telling me that the Government of Canada, by virtue of the obligation imposed by one of the acts democratically passed by Parliament, has no power. That makes absolutely no sense. I find it hard to follow you.
Director General, Air Policy, Department of Transport
I can only repeat my answer.
Because there is an indirect obligation, the obligation under the statute, which has to be respected, Air Canada must include in its articles of continuance the provisions that are articulated in section 6.1 of ACPPA. Those requirements include that its articles of continuance maintain the three overhaul and operational centres in the three locations. They also speak to the head office and to the foreign ownership provisions. All of those are in the articles of continuance.
The obligation has been met if the articles of continuance include those obligations, and they do. From a Government of Canada responsibility perspective, that obligation, as it is included in ACPPA, has been respected.
The follow-through of that obligation is a private governance matter between the corporation and its shareholders. It is up to the shareholders to determine if that obligation has been met and to bring a complaint if they so choose under the Canada Business Corporations Act.
Bloc
Conservative
The Chair Conservative Merv Tweed
Monsieur Guimond, excuse me, I have to stop you there. We'll come back.
Mr. Byrne.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Thanks, Mr. Chair.
To pick up on that argument, or that line of legal process, there is no obligation on the part of Air Canada to maintain its own facilities as long as it provides or awards a maintenance contract to any entity to perform those services for it. That's all that's relevant. Would that be a correct interpretation?
Director General, Air Policy, Department of Transport
The interpretation is that the articles of continuance, the wording in paragraph 6.1(d), are very general. It is that Air Canada include in its articles of incorporation the obligation to maintain operational and overhaul centres in the three centres. That is as general as the obligation is. Therefore, any interpretation of that obligation is a question for the courts, given that the legislation includes that kind of a reference.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
We do have a fair bit of jurisprudence on this issue.
The word “maintain” was a very contentious issue when it came to the disposition of constitutional jurisdictions with the operation of various transportation services. In effect, in B.C., for example, the word “maintain” does not appear in the operation of the transfer of railway services. It just simply says that Canada will assume ownership of transportation services. Therefore, that responsibility can be extinguished.
Where the term “maintain” is used in the constitutional language, that has been interpreted by the courts to establish an ongoing operational requirement. So the use of “maintain” in the statutory language of the Air Canada Public Participation Act, if we were to use that legal language as we have in the constitutional interpretation, would imply that Air Canada has the obligation to continue to operate Air Canada-based facilities, if my limited paralegal training would be correct.
Director General, Air Policy, Department of Transport
I'm not a lawyer either, and I will ask my colleague to supplement my comments.
Again, I would make a distinction in your interjection between the obligation that exists to include in the articles of continuance that the obligation has been met. That is all that ACPPA requires of Air Canada. The pursuant obligation rests with the shareholders and the arrangement between Air Canada and its shareholders.
In terms of the definition and interpretation of the legislation, once the legislation is in place, interpretation in terms of scope and meaning rests with the courts.
I cannot speak to whether or not there is already some jurisprudence in terms of that interpretation.
John Thachet Legal Counsel, Legal Services, Department of Transport
There are two different obligations, as Brigita mentioned. One is the obligation of Air Canada to the government, enclosed in the articles, that operational and overhaul facilities will be maintained in the three locations. Second is the obligation between Air Canada and its shareholders that those facilities are actually maintained.
So whether “maintain” includes the actual Air Canada operating those facilities or contracting out to a third party is an interpretation issue. We cannot sit here and interpret what that means. In our view, there are two distinct obligations. What also complicates this is if you really get into the interpretation business, then you have to look at what Air Canada was doing back in 1988 and whether that was in line with what was being done at that time.
Liberal
Conservative
The Chair Conservative Merv Tweed
Yes, your time is up, but I'm sure we'll have another round.
Monsieur Guimond.
