Transport Committee on Dec. 13th, 2023

[Heather Moriarty]

The order power can be used in the case of, as you said, “risk of imminent harm to national security, national economic security or competition that constitutes a significant threat to the safety and security of persons, goods, ships or port facilities or the security of supply chains”. However, the order can be issued only to a Canada port authority or a person in charge of a port facility. Just coming back to what I stated earlier, that in itself wouldn't enable the minister to issue it to anyone other than the port authority or whoever is in charge of that port authority. If you were looking at it from the perspective of a labour group, it would not be applicable in those terms.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Ms. Moriarty.

Just to build on that a little, if I could, please, can you just give me a couple of examples, or just one example, of what would be an imminent threat? What might an imminent threat look like at our ports?

[Heather Moriarty]

As I said earlier, this is a part of a suite of tools to make sure that the minister has the ability to protect the safety and security of supply chains.

In terms of a threat, it could be anything. Remember, it's a threat to safety and security, competition or national economic security, so it's one of those three factors. A threat could be, for example, that a port shut down or that a terminal operator decided that—I believe my colleague used this example when she was here last week—it was no longer going to accept goods from a country, or something like that.

I think back to COVID and protective equipment and those sorts of things. Is that a threat? I don't know, but there are lots of threats that could happen in the transportation space. I could come back to you with one. We haven't yet encountered anything in that regard.

Again, I think about natural disasters on the west coast. There could be the pandemic itself. Depending on what the threat is, again, this is a measure of last resort and not something that would be meant to be implemented or used in a light fashion; it would be used in case of an emergency.

We would need to look at the situation and the instances, the factors at the time, do the assessment, work with our colleagues to see whether or not the threat is real, assess it and give the best advice to the minister, and then take it forward. This is something that neither the department nor the minister would be advancing lightly.

[Chris Lewis, Conservative, Essex, ON]

Okay, that begins some clarity.

I'm glad you brought up the COVID pandemic. I would assume that would potentially be an imminent threat. Whatever it's called in the future, that certainly could be determined to be an imminent threat, I'm sure.

Are there other ministries that have similar powers to what's being proposed here?

[Rachel Heft]

Certainly, there is federal legislation with ministerial order powers such as these to deal with urgent circumstances. The degree to which they are similar or different usually depends on the subject matter that they regulate. Generally, ministerial order powers are used for situations that are somewhat unpredictable in order to ensure that the federal government has the appropriate tools to respond when there are urgent threats.

[Chris Lewis, Conservative, Essex, ON]

Thank you.

I know that I am, somewhat, putting the cart before the horse, but I think it's important for this conversation. We know that we have Bill C-58 in front of us in the House as we speak, at least on the floor of the House. Again, just for clarification, would this supersede Bill C-58, if Bill C-58 did, indeed, get through the House without amendments?

I don't expect you to be looking at a crystal ball. However, would the minister's powers, so to speak, supersede what Mr. Bachrach is proposing here?

[Heather Moriarty]

I can't comment on Bill C-58. What I can share with you is that this applies only to Canada port authorities or those in charge of a port authority. It is very limited in terms of to whom it could apply. The scope of this is very narrow. I understand that Bill C-58 is on replacement workers in terms of legislation and those sorts of things. It's possibly quite different.

In terms of whether it would supersede or not, as I said, this is quite narrow. I don't believe there's anything in Bill C-58 for the Minister of Transport as it relates to protecting supply chains.

[Chris Lewis, Conservative, Essex, ON]

Thank you.

Are there other groups that have expressed concerns with the broad nature of this proposed subsection? If so, how will they be protected, or how might any future group not listed here, like labour, soon be enjoying the same level of protection?

[Heather Moriarty]

I think this committee has heard from some who were unsure of the process or what it actually meant. As part of our work, we didn't really hear anything in terms of concerns with respect to the ministerial order.

Once it is implemented, should the legislation pass, there will be quite a bit of rigour in terms of whether or not this actually gets used or implemented and in terms of the scenarios and situations and under which conditions it would actually be used. As I said, it won't be taken lightly. There are a number of factors and due diligence that would need to be undertaken before the minister would even consider whether or not they would even want to entertain the use of such an order.

[Chris Lewis, Conservative, Essex, ON]

Thank you.

I would be very curious with regard to what the unions, such as the ILWU, would be saying about this. Has there been consultation with any of the unions with regard to this?

I do believe that it's going to kind of contradict Bill C-58 to some extent. However, I do realize that it's very important that we have backstops in place if we have another COVID-19 or if we have a natural disaster, to your point. We still have to make sure that we have commerce coming in and out of Canada. That's important.

Have there been any discussions at all with the unions and/or skilled trades workers as to how this implementation could affect them?

[Heather Moriarty]

We did not have any conversations with the ILWU or any trade unions. I believe the committee has heard from that group.

What I can share with you is that, within the federal government, we have consulted with the labour department, the organization that really is responsible for working with labour groups and taking care of any sorts of labour actions. There were no concerns raised. I would say that, from our perspective, we did consult broadly across the federal sphere, and there were no concerns raised in that regard.

[Chris Lewis, Conservative, Essex, ON]

Thank you.

Also, I really want to say thank you for your very thoughtful answers. I appreciate it.

I have one final thought. In your opinion, should there be more consultation done with the unions, if they haven't had a chance to specifically be at the table? If I'm wrong that they haven't had a chance to be at the table, then I apologize, but do you think we should have more time to discuss this?

[Heather Moriarty]

I'm sorry. I'm here to answer questions related to the bill in front of us. I do not express an opinion at this time.

Thank you.

[Chris Lewis, Conservative, Essex, ON]

Thank you.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. Lewis.

I have Mr. Muys, followed by Ms. Koutrakis.

Mr. Muys.

[Dan Muys, Conservative, Flamborough—Glanbrook, ON]

Thank you for your testimony.

I'm trying to determine, from what I heard in your testimony.... I mean, we had a strike at the Port of Vancouver, and we had a strike at the St. Lawrence Seaway recently, both of which had a significant impact on our economy and our supply chains, which are of course what Bill C-33 is purported to help address—although, I would argue, insufficiently. I think what you're saying is that this provision would not actually apply in those two recent examples.

[Heather Moriarty]

That is correct.

[Dan Muys, Conservative, Flamborough—Glanbrook, ON]

Why is that?

[Heather Moriarty]

This order is only for a Canada port authority or somebody who is in charge of a port facility. In the relationship that exists from a labour perspective, Canada port authorities are not the direct employer of unions or anything like that. They don't have the ability to step in and intervene. It is the way the structure and the governance have been set up as it relates to Canada port authorities.

Again, this was never intended to address any sort of labour action. If anything, it was entirely competition, national economic security and national security as it relates to supply chain fluidity, and making sure that the minister has this in his or her tool kit as a measure of last recourse to protect supply chains and anything resulting from that, and not in any sort of a labour context.

[Dan Muys, Conservative, Flamborough—Glanbrook, ON]

Does this duplicate or how does does this work in congruence with other pieces of federal legislation that already deal with strikes and lockouts, notwithstanding Bill C-58, which we still have to...?

[Heather Moriarty]

I can't speak to other federal legislation that deals with strikes and lockouts, but what I can say is that given that this is for CPAs, or for those who are in charge of those facilities, it applies only to them and it is not in any way related to or intended to address strikes or lockouts in any scenario.

[Dan Muys, Conservative, Flamborough—Glanbrook, ON]

You just mentioned that it's not intended to address those situations. You've talked about various situations and scenarios and not taking this lightly. Maybe we can get granular and you can tell us how and why this is different from other limits that already exist on strikes and lockouts at ports.

[Rachel Heft]

The ministerial order power for proposed section 107.1 only allows the minister to make an order to require a port authority or a person in charge of a port authority to take any measure. In situations where there's an ability to order workers back or to order some form of arbitration, it would apply to those individuals, or even potentially to any person, if it were that broad.

This particular formulation states that the minister can only, by order, require a port authority or a person in charge of a port facility to take any measure. It's really not targeted at workers at all. It doesn't allow the minister to order unions or workers back to the table or to binding arbitration. It wouldn't relate to strikes or lockouts in any way. From that perspective, it is distinct from labour legislation, including Bill C-58.

[Dan Muys, Conservative, Flamborough—Glanbrook, ON]

If that's the case, what's the point? What's the point of this provision?

[Rachel Heft]

I'm not in a position to comment on the intent of the proposed amendment.