Transport Committee on Feb. 12th, 2013

[Ed Holder, Conservative, London West, ON]

I appreciate that.

In the legislation it reads that penalties would be up to $100,000. I'm trying to understand how egregious must non-compliance be to be a $10,000 penalty versus, say, $100,000. Has that been thought about, or is that going to be given totally to the arbitrator to determine?

[Annette Gibbons]

It would be the agency, not the arbitrator, because this will be after the agreement is in place and there is actually a breach to assess. The agency will have the discretion to apply the right penalty for each case and to apply a penalty that they believe is commensurate with the breach. I won't speak, because that really is within the agency's purview to determine how they will administer the administrative monetary penalty scheme. As a general rule, we understand that these administrative monetary penalty schemes tend to be enforced in a way that there is a certain graduation. If there's a first offence, you may be at the lower end.

[Ed Holder, Conservative, London West, ON]

I did try to ask that before. Do you think these administrative monetary penalties are sufficient to get the end that is being sought?

[Annette Gibbons]

The $100,000 amount, when you're setting an amount for an administrative monetary penalty scheme, you really are starting from the context of the act that you're working from, and the current maximum amount for breaches of orders of the agency under the act is $25,000. Again, it's a relative issue to factor.

[Ed Holder, Conservative, London West, ON]

I'm sure we'll pursue this more with the railways when we have a chance to talk to them.

Mr. Daniel, I know, has a question, please.

[Joe Daniel, Conservative, Don Valley East, ON]

I just wanted to follow up on my colleague's questions about trying to give a balanced view of the act itself.

If a shipper requests way more than he actually needs, is there any recourse for the railways to come back and say, “Look. You have actually disrupted our business by overestimating that in your agreement”?

[Annette Gibbons]

The railway will see what the shipper is asking for and have the opportunity to provide its own view of what service should be required, and then the arbitrator will make a decision.

There will also be in the process an opportunity for the two sides to question each other. The railway would be able in that kind of a situation to say, we've been serving you at this particular level for the last 10 years, and we don't understand you're now saying you need something different. It seems to work. That discussion could take place, and then the arbitrator would in the end, balancing everything, consider what makes sense.

[Alain Langlois]

One of the factors is the service that the shipper actually requires. That's meant to be objective. The arbitrator will look at what the shipper actually needs. It's not what they want; it's actually what they need. Then the arbitrator will do an assessment of what was proposed by both parties and make a decision.

[The Chair, Conservative, Larry Miller]

I made a mistake. I thought the bells for votes would start at 5:15; it's actually not until 5:30.

Ms. Morin, five minutes.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Thank you. I will share my time with my colleague, Mr. Aubin.

I have two questions.

You said that you got 140 requests from stakeholders. I would like to know how many of them were from small family businesses.

[Annette Gibbons]

That would be a question for the group that reviews requests. I cannot give you a very specific answer.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Could you give me an approximate number?

[Annette Gibbons]

I remember there were some.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

I would like to know how these stakeholders were heard. Arbitration costs a lot of money, and I am wondering how they were heard when they spoke about their concerns about that.

[Annette Gibbons]

I believe there were a few, but most of the requests came from ports and shippers' associations. There were some large shippers and some medium-sized ones. I remember some—

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, I just wanted to know if there were any.

I have another question. To ensure transparency, who will actually be the impartial and non-political arbitrators?

[Annette Gibbons]

The bill contains a clause on expertise and knowledge. It reads as follows: “Only persons who, in the Agency's opinion, have sufficient expertise to act as arbitrators are to be named in the list.”

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

So we could have the same problem as with the port authority boards.

[Annette Gibbons]

I don't quite understand.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

That means that we could have the same problem we see with port authority boards.

It's a very vague description.

[Annette Gibbons]

The agency will have to consult with stakeholders to establish who will be on the list.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

I will give the floor to my colleague.

[Robert Aubin, NDP, Trois-Rivières, QC]

I would like to know more about the arbitration process. According to an answer you provided to one of my colleague's questions, stakeholders will not have access to arbitration decisions. I would like to share the minister's optimistic view and think that there will be no need for arbitration, but I do have some concerns. Railway companies, which will always be the respondents, will have access to all previous decisions, and arbitrators will have access to the information through the Canada Transportation Agency. In the end, the only ones to not have access to the files will be the applicants, who will also be responsible for the burden of proof.

Can they refuse an arbitrator? Will arbitrators be imposed by the department?

[Alain Langlois]

Under the act, the arbitrator is selected by the agency. The agency appoints the arbitrator.

[Robert Aubin, NDP, Trois-Rivières, QC]

So it will be imposed.