Evidence of meeting #61 for Transport, Infrastructure and Communities in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was shippers.
A recording is available from Parliament.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Presumably you just want it removed, then, from the bill?
President and Chief Executive Officer, Mining Association of Canada
It would make no difference.
President, Canadian Fertilizer Institute
I would add, Mr. Poilievre, that we didn't ask for the AMPS. I'm not sure who did.
Also, we're not asking for the act to specify liquidated damages. What we're asking for is that a dispute resolution process be included in the act so that the customer and the railway can negotiate what the terms of their agreement should be, how they will meet the obligations they have committed to under the commercial contract, and what remedies they want to include.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Well, there's nothing that bans the railway and the shipper from doing that now.
President, Canadian Fertilizer Institute
There's nothing that requires the railway to do it, and that's the issue.
Director, Business and Economics, Chemistry Industry Association of Canada
The issue here is that we wanted consent—
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
All right. Well, that's different from what you said a moment ago. You used the verb “can” a moment ago, and they can do that right now.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
But can you name another arbitration process that requires a party to include a liquidated damage before any damage is done?
President, Canadian Fertilizer Institute
We're not asking for an arbitration policy that requires liquidated damage. What we're asking for is a dispute resolution mechanism within the agreement that will allow a party to enforce the terms of their commercial agreement.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
But how would the terms of that be determined? You said a moment ago that you don't want to leave it to the railway.
President, Canadian Fertilizer Institute
They would be negotiated. If they can't agree on what those terms will be in the negotiation, then it will go to mediation. If they can't agree through mediation, then it will go to arbitration under the agency, which is specified in the legislation.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Which brings us right back to the point I said earlier. You said a moment ago you didn't want it, and you came around to saying you do, that is, an arbitrated, predetermined liquidated damage before the damage is done—
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
—and that is exactly where you've arrived after you went around the circle.
President, Canadian Fertilizer Institute
No, that's not what we said. What we said was that we wanted a requirement that there will be the ability to negotiate, mediate, and arbitrate the performance of the contract terms that have been established.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Okay, the performance is one thing. We're now talking about damages.
President, Canadian Fertilizer Institute
We're not asking for damages; we're asking—
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
So you don't believe that an arbitrator should determine or impose upon the two parties a predetermined liquidated damage?
February 28th, 2013 / 4:35 p.m.
President, Canadian Fertilizer Institute
We believe the structure of the backstop should be one that will allow the parties to commercially negotiate the terms they need and to arrive at a contract through negotiation, mediation, and arbitration, if necessary, and that once the contract is set, either by negotiation or by arbitration, the parties be able to enforce the terms of that agreement. There's nothing asking for predetermined.... I'm not even sure if anybody knows what you mean by “liquidated damages”. I don't.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Well, it's pretty clear it can't be in the act, then, if you don't know what it means.
President, Canadian Fertilizer Institute
We're not asking for liquidated damages to be in the act; we're asking for a commercial dispute resolution clause to be added to section 169.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Okay.
I'd like to hear from Mr. Facette on why the propane industry pulled out of the coalition.
President and Chief Executive Officer, Canadian Propane Association
Sure, I'd be happy to, and we made everybody aware of that. We would never hide it.
The mere fact is this: legislation, by its nature, is prescriptive to some degree—the mere fact that it exists. In an ideal world, there's no legislation, the free market works everything, and everyone's happy. But we know that's not reality.
We felt that given the policy as set out by my board and our members, the path the coalition has chosen—they're free to do it, and it was fine—is to ask for a degree of prescriptiveness that has become too much. Our members recognized that they needed to have access to something if they chose to use it.
Just because it's there doesn't mean you have to use it. We will have members who will probably not use this legislation at all because what they're doing now is fine. That's okay. We have some who may try to use it. But we did not want a level of prescriptiveness that would get into the relationship...into the weeds between the railway and the shipper. That's between them. Let the free market take care of it. That's why we pulled out.