Evidence of meeting #66 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 shipper.
A recording is available from Parliament.
Director General, Surface Transportation Policy, Department of Transport
Yes, and it may be that one or more of those do not apply in a particular case. It may be that the condition of cars is not really a matter of great importance to a particular shipper because it doesn't matter what the condition is for the goods they're shipping. It may be the case that cycle times or dwell times really don't matter for a particular shipper. In that case, the arbitrator would say they're not going to rule on that and will rule on other matters that are more important to that shipper.
Liberal
Ralph Goodale Liberal Wascana, SK
To help us understand this practically, can you give me one example of where a dwell time or an estimated time of arrival or the condition of a car would be irrelevant?
Director General, Surface Transportation Policy, Department of Transport
Dwell time may be irrelevant if a shipper is not overly concerned about exactly when the goods reach destination. That may be an area where there's flexibility for that shipper, and they trade that flexibility to get something else that is more important to them.
Liberal
Ralph Goodale Liberal Wascana, SK
But by an overwhelming majority they told us it was important to them.
Director General, Surface Transportation Policy, Department of Transport
As a group, these are the types of things they're looking to see, but what I'm saying is for an individual case, it may not be a factor of great importance for an individual shipper.
NDP
Robert Aubin NDP Trois-Rivières, QC
Thank you, Mr. Chair.
I am trying to understand, because the answers so far have not been clear. If you look at the general wording of the amendment, before paragraphs (a) to ( f), you will see the words:
For the purposes of this Division and without restricting the generality of the term, “service obligations” includes obligations in respect of:
That does not mean we are putting a straitjacket on any potential arbitrator. If you will excuse the bad pun, we are laying the track so that situations can be clear before they ever get to a conflict situation.
I have a hard time seeing how one of these provisions could not apply in any given contract or could pose a problem. In that case, it could just not be used. Does the fact of including it in the bill create a problem in any future arbitration situation?
Director General, Surface Transportation Policy, Department of Transport
One of the things I commented on in one of my two other appearances before the committee is that the government's approach in this bill is more general in terms of the obligations and the way they are described. The approach used in new clause 169.31 mirrors the one in section 113 of the act. The decision was made to follow the same approach.
I think that my colleague, Mr. Langlois, wants to add something.
Alain Langlois Senior Legal Counsel, Team Leader Modal Transportation Law, Department of Transport
As I mentioned when I first appeared here on this bill, the first subsection of the clause, without restricting the generality of what follows, sets out what constitutes a service obligation. But courts currently consider that the title covers only the category included in the statements that follow. In the case of this clause, a court of law is going to consider the term “service obligations”, as found in the first paragraph, to be part of the category of the elements listed in paragraphs (a) to (f ), even if it is stated that it should not be limiting.
Clearly, the longer the list—and the case law on this is quite clear—the more the courts tend to think that it must form a similar category, given that Parliament took the time to create the list. Having a long list is a danger in legal terms. This list is quite long. For example, a shipper making a request that does not directly match what is in the list could be told, either by people from the railways or by a court of law, that what he is asking for is not covered by the term “service obligations”, precisely because of the list.
I can see another danger with this list. In paragraph (d), we find a formulation that is universally used elsewhere. It talks about the furnishing of adequate and suitable accommodation for the carriage, unloading and delivering of the traffic. Those terms are used everywhere in the act to refer to the railways' service obligations.
I feel that the legal problem that this provision creates is this. If what is in paragraph (d) is interpreted as a general obligation and what is in paragraphs (a),(b), (c), (e) and (f) is interpreted as a more specific obligation, it is considered that paragraphs (a), (b), (c), (e) and (f) do not include what is otherwise covered by paragraph (d).
If other provisions of the act refer to the overall obligation, a court of law is going to consider that Parliament is not talking for the sake of hearing its own voice and that, if it has put a shade of difference between what is in paragraph (d) and what is in paragraphs (a), (b), (c), (e) and (f), it is because the latter are not reflected in what is listed in paragraph (d). That can cause problems elsewhere in terms of applying the act. I am speaking more specifically about shippers who will transport their goods under the general service obligation set out in section 113 of the act, and not by contract as provided for in those provisions.
NDP
Robert Aubin NDP Trois-Rivières, QC
I just want to take advantage of your legal experience and ask you this question.
If we kept only the general paragraph, would the provisions that would have disappeared end up appearing in the case law as cases were dealt with?
Senior Legal Counsel, Team Leader Modal Transportation Law, Department of Transport
Yes, when the provisions set out a long list of elements, the choice that Parliament has to make is always a risky one. Do you prefer to define almost everything that you want to cover in a concept that you are trying to establish, or do you want to leave something else aside? That risk, which is political more than it is legal, must be assessed at the time the act is drafted. The risk will never go away.
NDP
Mike Sullivan NDP York South—Weston, ON
Can we go at it from the obverse? If the bill is left alone, could a shipper in an arbitration proceeding insist that dwell times be part of the service obligations required for the arbitrator to put into a service level agreement, or is it the subject of debate, as it is today? Because that's what the shippers are telling us: they have all kinds of difficulties with what is “adequate and suitable service obligation”. If they come to the arbitrator and say, “We must have a dwell time”, can the carrier say, “Well, it's not defined, so you don't get it”?
Director General, Surface Transportation Policy, Department of Transport
The shipper certainly could ask for that. We fully expect there will be cases where that kind of service obligation would be requested, and then the arbitrator in a decision, we believe, has the full authority to address that element of service. Now, whether the arbitrator chooses to in a particular case is up to the arbitrator, depending on the circumstances of the case.
NDP
Mike Sullivan NDP York South—Weston, ON
So the lack of definition doesn't actually restrict the arbitrator—
NDP
Mike Sullivan NDP York South—Weston, ON
—from taking one side or the other. That arbitrator could—and I'm glad you're saying this for the record—in fact insist that dwell times and estimated times, all of the things mentioned here, and I won't read them out loud, but we know what they are in the proposal, could all be part of a service level agreement and could be part of what the agency would consider appropriate items in defining “adequate and suitable service obligations”.
Director General, Surface Transportation Policy, Department of Transport
Yes.
Conservative
The Chair Conservative Larry Miller
All those in favour of the amendment?
(Amendment negatived [See Minutes of Proceedings])
We have amendment NDP-2.
Mr. Aubin.
NDP
Robert Aubin NDP Trois-Rivières, QC
Thank you, Mr. Chair.
If we have just rejected amendment 1 because of the fact that the general title is the best legal protection, the best way to avoid restricting the work, I imagine that, logically, we should accept amendment 2.
Actually, the term “operational terms”, which occurs in this bill, needlessly restricts the elements that form part of an agreement about levels of service. In my opinion, if we follow the same reasoning, we should give the agency or the arbitrator more latitude by using the word “terms” rather than the phrase “operational terms”. The latter seems clearly to restrict the jurisdiction.
Conservative
Mike Sullivan NDP York South—Weston, ON
If the previous discussion was that by making a smaller term, in other words, “adequate and suitable service obligations”, is better than listing them.... Here we've suggested that “terms” is better than “operational terms”. Can you explain to us why it's not? If broader is better, why is broader not better here?