Transport Committee on Oct. 17th, 2017

[Angelo Iacono, Liberal, Alfred-Pellan, QC]

Like my two colleagues, I don't think the Federal Court would accept the request. It would probably sent it back to the two parties for them to deal with it properly.

[The Chair, Liberal, Judy Sgro]

All right.

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

Then why would the Federal Court consent to examine the same right for the competition commissioner?

[Angelo Iacono, Liberal, Alfred-Pellan, QC]

You referred to Federal Court in your comment. Why would the consent be brought before that court when this occurs between the two parties?

[The Chair, Liberal, Judy Sgro]

Do we want any further comments from the department on this to make sure that everyone understands?

[Alain Langlois]

I would like to add something.

Once an agreement has been registered with the court, it is binding and becomes a court order. If a party to the agreement—it is never the minister—does not respect their obligations, there are contempt of court measures that may be taken under Federal Court rules. In cases of non-compliance, there are ways to apply or implement an order.

[The Chair, Liberal, Judy Sgro]

Thank you.

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

That is in keeping with what I just said. The consent agreement is already registered with the Federal Court. Clearly, if the minister or one of the two parties is given the right to rescind a consent agreement, the Federal Court will be informed and it will be up to the court to act. Rather than sending this back to the parties, it could very well order that the consent be rescinded and give the minister a choice of other measures.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Did you have something to add?

[Marie-France Taschereau, Legal Counsel, Department of Transport]

I don't want to speak to all of the provisions in competition law, but if you are referring to the consent that is used in merger cases, remember that the competition commissioner does not have all of the relevant information when he or she decides to sign a consent agreement with the parties. The purpose of the Competition Act is to determine whether the merger would lead in the future to a significant decrease in competition.

In the context of the Competition Act, it seems important to allow the commissioner or another party to ask for an amendment if the circumstances change in a way that was unpredictable when the agreement was signed. Here, when Transport Canada signs a consent agreement, the facts are established, and this allows each party to make the best decisions and to see what they will give up during negotiations that are appropriate, in the context of safety.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

I will call the vote on amendment NDP-9.

(Amendment negatived)

(Clause 14 agreed to)

(On clause 15)

On amendment NDP-10, go ahead, Monsieur Aubin.

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

The spirit of this amendment is very simple. It allows the governor in council, through regulation, to establish the form and substance of the automobile safety notices of violation. It is important that there be limits on the power of the minister, so as to try to eliminate potential political interference.

That is the essence of paragraph 16.1(e), which we add to the series of conditions. Its purpose is to:

(e) establish the form and content of notices of violation.

The governor in council already has a host of responsibilities, and we would like to add one that appears consistent in this context.

[The Chair, Liberal, Judy Sgro]

Is there any departmental comment?

[Kim Benjamin]

This is meant to show what types of headings, boxes, and types of information would be on the form, and that may change over time.

[The Chair, Liberal, Judy Sgro]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

On amendment NDP-11, go ahead, Mr. Aubin.

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

Thank you, Madam Chair.

I am going to say a few words about this amendment, the essence of which is similar to the spirit of another amendment which comes up later and concerns changes to the penalties.

According to the official wording on page 13 of the bill, the imposition of penalties is not punitive. That may be so, but a penalty remains the penalty. If the purpose of the penalty is not normally punitive, at the very least, it aims to deter. Consequently, the provision in question should deter companies from doing something that is not desirable. That would be the objective of the penalties we propose in amendment NDP-15, which we will submit later.

The purpose of this amendment is to change this somewhat easygoing approach. I understand the purpose of stating that the proposed provision is not intended to be a punishment, but it should nevertheless have some teeth, and its clauses should be a disincentive. That is why we are proposing this new wording.

[The Chair, Liberal, Judy Sgro]

Go ahead, Mr. Hardie.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

I'll demonstrate again that I am not a lawyer. The word “deterrence” signals—to me, anyway—that perhaps there's some criminality involved for which a penalty of some sort should apply, as opposed to somebody just doing the wrong thing. For instance, an administrative monetary penalty, if it was stiff enough, could do the job of deterrence, so that if you get nailed once, you get nailed again.

The idea is to make sure that the right thing is done. I think that if in fact there's an inference that deterrence might have to involve some test of criminality, that could complicate the matter.

[Alain Langlois]

The only comment I would offer is that administrative monetary penalties are well established. Now at least there's case law that recognizes and confirms that they're administrative in nature and not criminal in nature. If they were to be criminal in nature, charter protection would be attached to the process of issuing an AMP.

The notion of deterrence, or dissuasion in French, raises the question—and I'm not sure I have an answer to give—as to whether we're moving from an administrative to a criminal situation, which is something we should not be doing. I don't have a firm answer. I'm not sure I'm there yet.

[The Chair, Liberal, Judy Sgro]

Go ahead, Mr. Aubin.

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

I found Mr. Hardie's question entirely relevant.

I am not a lawyer either, but it seems to me that when we are talking about dissuasion, this does not automatically fall under the Criminal Code, for instance in cases where fines are very negligible. One witness, whose name I unfortunately don't recall, told us that if the fine imposed on a large manufacturer is not in the seven-figure range, it does not even impact their day.

This is something that is a disincentive and it is not a criminal matter. If a manufacturer does the math and sees that it costs less to break the law than to respect it, this means that the law does not have a deterrent effect, even if what he is doing is not necessarily criminal. I think that the deterrence refers to a criminal act.

Whatever the case may be, I would have liked a precise answer.

[The Chair, Liberal, Judy Sgro]

Go ahead, Ms. Block.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

When I look at how it is framed in the act, I guess the purpose of the penalty is to promote compliance. I find it interesting that we think we're promoting compliance by putting a penalty in place. The definition of deterrence is “the action of discouraging an action or event through instilling doubt or fear of the consequences”. That sounds to me like what a penalty is intended to do.

Here it says that the penalty is to promote compliance. To me, it's an interesting spin on the issue, and I'm not sure if even changing the word would make a difference, but I recognize what Mr. Aubin is trying to get at.

[The Chair, Liberal, Judy Sgro]

Next is Mr. Hardie, and then Mr. Fraser.

We have to keep our eyes on the clock, ladies and gentlemen.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Just a—