Transport Committee on Oct. 25th, 2023

[Graham Cox, National Representative, Unifor]

I'll take that.

We don't really represent a lot of workers working directly at ports. We represent mostly workers who are working in the marine sector trying to get goods from trains to boats, the folks who work for CNTL and Fastfrate for CP moving goods in the intermodal system. Then we also represent folks who are along canals and moving goods on the boats themselves, so we wouldn't have a lot of comment on the interaction with the ports themselves. We deal with them in employer associations when we are bargaining, and most of that is dealt with in B.C. through the coordinated bargaining and sector bargaining agreements that we have there.

[Churence Rogers, Liberal, Bonavista—Burin—Trinity, NL]

Thank you very much.

Mr. Wilson, you made reference earlier to ports having more nimble, market-based approaches in terms of how we structure governance, board chairs and so on. Of course, there are some different opinions on how that should happen.

Do you have any other comments on that, particularly how we should or shouldn't have a chair appointed by a board or a minister, or endorsed by somebody else?

[Duncan Wilson]

I think it's very important to keep in mind that for boards of directors of port authorities in Canada, once appointed to the board of directors, your fiduciary duty is to the port authority, not to the body that appointed you. Therefore, having the minister appointing over the top of that in a more political manner seems to be inconsistent with that approach. It also means that the chair would not necessarily enjoy the confidence of the board.

The legislation says that it will be done in consultation with the board of directors. From our perspective, different ministers will have different approaches, and having the chair appointed that way creates a significant leverage point.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Wilson.

Thank you, Mr. Rogers.

Mr. Barsalou‑Duval is up next.

You have the floor for six minutes.

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

Thank you, Mr. Chair.

Let me begin with you, Ms. Morin.

My question is about your main demand, which you outlined earlier.

You said an interpretation clause should be added to Bill C‑33, which we are considering right now. Certain clauses in the bill allow the minister to invoke powers to free up the supply chain, so to speak, or for safety reasons. There are various clauses that would allow the minister to intervene indirectly in port operations, of his own accord.

If that interpretation clause were not added or if we did not receive the legal opinion mentioned earlier, do you think the bill should be adopted nonetheless?

[Marie-Christine Morin]

I don't think so. We have heard a host of arguments about other shortcomings of the bill, in particular the potential for partisan appointments to boards of directors.

No parameters are provided, but I think they are necessary. Even if it is not the legislator's intent at this time, at some point in a few years, someone could use the discussions we are having today to arrive at a different interpretation of the bill.

It would be complicated and a positive outcome would not be guaranteed. It would be much simpler to have a clause or limit on the minister's powers. In the current bill, the minister's powers are very broad, and also lack transparency. The minister could decide of his own accord, based on certain information, that he does not have to publish the order. There is an override clause in the Statutory Instruments Act whereby government orders can escape parliamentary scrutiny.

The same is true for emergency injunctions, which have very serious consequences for people. When it is time to end a strike, employers and politicians alike can bring out the heavy artillery. There is no denying that the more even the playing field, the better. That is what labour law strives for.

It would be a serious mistake to provide further ammunition to limit the right to association, which is clearly a fundamental right. Yet this bill opens the door to providing that ammunition. This could undermine the union rights of all workers in the maritime sector, the rail sector and the transportation sector in general.

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

Thank you for your answer.

From my perspective, when a government has to take the blame for introducing special legislation in Parliament, the bill must be subject to debate before it is passed. On the other hand, if a minister simply wants to issue a ministerial order, he will not be answerable to anyone. He could do it from his basement and that would be the end of it. I think that would be rather problematic.

You said earlier that it might be helpful to set limits on ministers' powers in order to establish the way things are to be done. Bills often include the phrase “if the minister is of the opinion that”. The minister does not have to prove anything; he just has to be of the opinion that there is a need, an emergency or even a risk.

What limits would you like to see in the bill?

[Marie-Christine Morin]

As I said before, I think there should be an interpretation clause to ensure that the act does not apply to labour relations and upholds fundamental rights. Otherwise, of course, it would take more than an estimate. In fact, the minister would have to demonstrate that there is an emergency.

The other issue is that goods, things and cargo are protected. Does a crate of oranges in danger on a ship fall under the security of goods? Perhaps I am exaggerating, but it could be interpreted that way. As to the right of association, I think the idea behind essential services is that the right to strike can be exercised until there is a risk to health or safety: a direct and imminent danger to public health or safety, that is, the safety of individuals, not of a crate of oranges or a Canadian Tire shipment. It is unfortunate, but strikes are an economic weapon.

I am not talking only about strikes, since many other things can happen that would lead to bargaining or arbitration. As you noted, there are very few constitutional or democratic parameters in this regard that would allow for a process during which the various stakeholders could state their case. Apart from the minister himself and a deputy minister who might take a glance at it, no one can interfere. As a result, a constitutional challenge would be needed, but the damage would already have been done.

I think an interpretation clause is really the solution; such a clause would ensure that the bill would not apply to matters of labour relations.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Ms. Morin and Mr. Barsalou‑Duval.

Mr. Bachrach, the floor is yours. You have six minutes.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

Thank you to our witnesses for being with us this evening.

I want to start on the topic of port borrowing, which has been a focus of the discussion around this bill. I understand that the port authorities would like greater flexibility in the ability to borrow on private capital markets to finance infrastructure that's much needed.

I'm curious, though, as to whether port authorities are behaving more like a private corporation and whether they can also go bankrupt in a situation where they have insufficient revenue to service the debt they take on. Can the Vancouver Fraser Port Authority go bankrupt?

[Duncan Wilson]

I think a market-based borrowing regime protects against that, because the borrowing that would be available to the port authority would be directly related to its financial security and our earnings, our balance sheet and what we can afford.

Where financial requirements are beyond that, I could see it being reasonable for a port to need to get a special approval from the government on a borrowing limit that would go beyond that. My view is that the market, in the case of a port authority...and I can't speak for the other port authorities, but in the case of the Port of Vancouver, we're the most diversified port, with diverse revenue streams, so we are very low risk.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Right, but risk notwithstanding, there's a larger question here that applies to all ports.

If we look at the Port of Oshawa, for instance, they got into a position where they were in real financial trouble and their liabilities outstripped their assets by a significant level. I believe one auditor said that they were at risk of becoming no longer a going concern, which kind of sounds like going bankrupt, only port authorities can't go bankrupt because they're backed by the Canadian public, as public institutions.

I guess what I'm getting at here is that part of the trade-off for that flexibility is potentially increased risk in the case of a port that isn't as diversified or makes some bad decisions about investment down the road. How does the Port of Vancouver view that risk when it comes to the Canadian taxpayer essentially underwriting this borrowing that the port would take on?

[Duncan Wilson]

On the broader port system—and this is part of the challenge with the legislation that I mentioned in my remarks—it's a one-size-fits-all approach for Canadian Port Authorities, and it doesn't take into account those factors, and it probably should.

I expect that probably one of the reasons they're requiring additional financial reporting is because of some of those risks. While it is somewhat burdensome to have to do it, I can't speak to what the authors were thinking when they were doing that, but that seems to be trying to address that.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Turning to Mr. Kennedy and a discussion around rail safety, I think many members of the committee were disappointed that this bill didn't go further in addressing the many concerns related to rail safety that have been articulated by your union and others and in our own work at this table and the report we released last year. One of the things we heard from witnesses was that safety management systems have really become the primary tool for ensuring the safety of our railroads and that they're relied on more and more heavily, as opposed to more conventional rules and inspections. Is that a fair characterization?

[Joel Kennedy]

It is, yes. We're seeing a lot of reliance on detection devices and self-reporting.

The issue we're seeing there is that there's no regulation on self-reporting. There's really no regulation holding the employers accountable in that regard. We are seeing more reliance on self-reporting. As I said in my previous statement, what's happening in the Canadian rail industry now is a real case of the fox watching the henhouse. It is quite frustrating when we're being replaced with technology to inspect, because our members are really the counterbalance in Canada to understand what's being inspected, how it's being inspected, where it's being inspected and whether these employers are even complying with regulation. Essentially we're being cut out of the process now. We're being replaced with technology. We don't know what's going on. We don't know if the employers are even complying with the regulatory exemptions they're getting. We don't know where they're in compliance. We just hear sometimes that they're not complying. We're not reported to and we're not part of the process, and that's scary.

We were the counterbalance in Canada, and these employers are mainly large American employers now, and it's quite interesting when they re-regulate. They're bringing more accountability into the States, and now we have these large American employers trying to deregulate, and it seems as though it's a bit of a stomping ground for them. I absolutely agree with your comment. It is 100% on point, sir.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Mr. Kennedy, following on that, you described safety management systems as a black box. Would it be reasonable to require rail companies to make their safety management systems public?

[Joel Kennedy]

It would one hundred per cent. The public of Canada deserves that, especially when we have outside entities coming into Canada. We have only one chance to get this right with our environment. We've seen a lot of things happening in the States now as well with derailments in indigenous communities where medicines grow, in our water and on our land. It absolutely needs to be public. The public needs to know what's going on now, and it seems to be hidden a little bit. If the public actually knew the number of derailments that are happening in Canada each day, there would be a lot more people in Canada upset with what's happening today.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Kennedy.

Thank you, Mr. Bachrach.

Next we'll go to Mr. Strahl.

Mr. Strahl, I'll turn the floor over to you. You have five minutes. Go ahead, please.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you.

I'll go back to Mr. Wilson.

We've heard from railway companies in the past that have blamed their on-time performance struggles on the inability of grain ships to load in the rain in Vancouver. We heard at the last meeting as well, from people who are concerned about Gulf Islands anchorages, that those happen in part because we can't load grain in the rain in Vancouver. This has been a long-standing problem, and I understand the rulings, arbitration and situation that have gotten us here. Is there anything in Bill C-33 that would give us some hope that this issue is going to be resolved, or will it be resolved only when the terminal operators and the workers can either come up with infrastructure solutions or address the safety concerns that prevent that from happening? Maybe you can give us a bit of an update, if there is any, on how we can get ships loaded in the 170 days a year it rains at the Port of Vancouver.

[Duncan Wilson]

Thank you.

Yes, grain loading in the rain is, of course, an important issue. Our understanding is that we would probably increase capacity by about 7% if we could do it.

In terms of its effect on anchorages, though, I would say I think that's somewhat overblown. The biggest reason for relying on so many extra anchorages has to do with timing the cargos to arrive at the port at the same time as the ship. That's very much why the program I was talking about, the Connect+ program, which is all about supply chain visibility and digitalization, is so critical, because that's what's going to really help us unlock some potential in that area.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

I'm sure you've reviewed the testimony from the last meeting with your team about the concern about the Gulf Islands anchorages. We heard frustration in trying to get new anchorages in better locations—perhaps we can say it that way. This bill would give you some more authority over anchorages and how they operate, etc.

Can you describe some of the challenges with creating new anchorages and whether you believe Bill C-33 addresses them?

You're talking about a massive expansion at the Port of Vancouver. Removing anchorages doesn't seem to make any sense, but there are sensitive areas where, perhaps, they're not best placed.

Can you talk about the challenges with moving or creating new anchorages, which I think we'll need to do as the port expands?

[Duncan Wilson]

The largest issue with respect to increasing new anchorages would obviously be the concerns of local communities. There are places to create additional anchorages. The bill gives us additional authority, which is going to help us more with traffic management. We're comfortable with the bill in that regard.

There's a paradigm shift that we need to have in the port—which I think we're well under way on—that it's not just anchorages where you can tie up ships. You can have mooring dolphins, where ships could be tied up. You can also have single point moorings, which would reduce the amount of space that's required for anchorages and allow you to moor more vessels.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Finally, we've heard some testimony and a belief that perhaps labour representatives—and I know there are some others—who believe that active port users should be able to have active employees of their companies sit on the board.

Can you explain, from your perspective...?

You talked about the fiduciary duty. Do you see a conflict of interest if a person who's actively involved in labour at the port or actively involved in business at the port is given a seat at the table on the board of directors?

[Duncan Wilson]

We actually have a very high-profile Canadian labour leader on our board of directors currently, who was appointed by the Province of British Columbia.

I think having somebody who's actively involved in the port, working on the docks or in the business, would represent a conflict of interest. It would be very difficult for them to maintain their fiduciary duty when their core income is tied to the other side.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Strahl.

Thank you once again, Mr. Wilson.

Next, we have Ms. Koutrakis.

The floor is yours. You have five minutes.