We recommend that the CTA first act as a gatekeeper and only refer a matter to arbitration if the railway and shipper have both demonstrated that they have made efforts in good faith to negotiate a service-level agreement by participating in a mediation facilitated by Transport Canada or the CTA.
Second, if that doesn't happen, we think the criteria to evaluate the steps the shipper has taken to enter into an agreement with the railways should be more fully fleshed out. As drafted, we don't believe that proposed paragraph 169.33(1)(b) establishes those types of criteria. The shipper simply just has to indicate that they made an effort, but it doesn't establish to what level that effort would be, which could be problematic if they really don't try hard enough.
Finally, with respect to the arbitration itself, we know that there are situations where an arbitration will occur. In that case, we think it is critical that the arbitral panel include expertise relating to the integrity of the supply chain, supply chain management, and also have expertise with respect to terminal and port operations to ensure that the entire supply chain, and the integrity of the entire supply chain, is taken into consideration when making a decision to impose a service-level agreement on the railway.
Finally, if there isn't sufficient expertise within the arbitral roster, the suggestion is that the panel have the ability to seek external advice and to consider that advice before making its decision. That advice could come from industry, from ports, from terminal operators.
Mr. Chair, those are my suggestions.