Transport Committee on Dec. 13th, 2023

[The Chair, Liberal, Peter Schiefke]

I call this meeting to order.

Welcome to meeting number 96 of the House of Commons Standing Committee on Transport, Infrastructure and Communities.

Pursuant to the order of reference of Tuesday, September 26, 2023, the committee is meeting to resume consideration of clause-by-clause on Bill C-33, an act to amend the Customs Act, the Railway Safety Act, the Transportation of Dangerous Goods Act, 1992, the Marine Transportation Security Act, the Canada Transportation Act and the Canada Marine Act and to make a consequential amendment to another act.

Today’s meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom application.

We left off at clause 122 of Bill C-33.

To help us with clause-by-clause consideration, we have joining us, once again, representatives from the Department of Transport, as well as our legislative clerks.

(On clause 122)

To address clause 122, I will open the floor.

Mr. Muys.

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

We'll pick up where we left off on that.

I have a question for the witnesses.

One of the things we heard quite frequently from numerous witnesses on this bill—going back to the end of September—was the concern about the expansion of ministerial powers under this bill, which many viewed as unwarranted and concerning.

Would the addition of this subsection after line 28 on page 78, in your view, put a limitation on ministerial powers?

[Rachel Heft, Manager and Senior Counsel, Transport and Infrastructure Legal Services, Department of Transport]

I'm sorry, but are you referring to the BQ amendment?

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

Yes.

[Rachel Heft]

Okay, thank you.

The proposed amendment wouldn't change the threshold with respect to what the minister would have to determine prior to making an order. Ultimately, given that it's a ministerial order, it would not change the views of the court on whether that threshold has been met. The one line itself does not significantly affect the use or potential for the minister to exercise the power.

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

What you're saying, then, is that in your opinion this does not address the concerns that were raised.

[Rachel Heft]

I would say that the line itself does not change the use of the power.

With regard to the standard of review that is proposed in the amendment, whether that is required to be reasonableness or correctness, the standard in Canadian judicial review courts is that ministerial orders are typically reviewed on a standard of reasonableness. It's looking at whether the minister's decision to exercise the power—given the facts known at the time, the evidence and the thresholds in the law, as well as the power set out in the law—was reasonable or was one of the reasonable decisions that could be made under the circumstances.

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

Is the language in this particular addition consistent with language in other Transport Canada acts?

[Rachel Heft]

The language in the proposed amendment would not be consistent with other Transport Canada acts. The ministerial order power proposed in Bill C-33 is generally consistent with other ministerial order powers found in other legislation.

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

Is that other legislation in other federal departments?

[Rachel Heft]

No, that's within Transport Canada.

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

I'm sorry, but could you repeat what you said previously? It's not consistent with—

[Rachel Heft]

The language in the bill is consistent with other ministerial order powers. The proposed amendment would result in a provision that is different from what is found in other transport legislation.

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

From your perspective, is that a concern?

[Rachel Heft]

I don't think I'm in a position to take a view on that.

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

All right, so there's an inconsistency, then.

Is there anything in the language here that should be modified or amended to make that clearer or to make that consistent?

[Rachel Heft]

With respect to the amendment for the ministerial order power itself, the power is consistent as it is now. The amendment would not lead to further consistency and would only serve to make it a novel or different exercise of power and a standard of review that would be different from how courts would traditionally review the exercise of a ministerial order power.

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

Okay.

We're talking here about judicial review. Has there been precedent or case law that has led to the need for this amendment?

[Rachel Heft]

The case law is voluminous on standard of review of ministerial orders or of any exercise of administrative discretion. It's very extensive at the Supreme Court as well as at other appeal courts and the Federal Court of Canada. Significant analysis goes into the determination of whether to exercise a judicial review on a standard of correctness or a standard of reasonableness. In general, a ministerial order power would be reviewed on a standard of reasonableness but for a legislative provision that says otherwise, and this would do that.

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

The language refers to a few different circumstances: “national security, national economic security or competition”. Do those make sense, from your perspective?

[Rachel Heft]

The threshold found in the proposed ministerial order power is really one of imminent harm. There has to be imminent harm to the subject matters you've listed: national security, national economic security or competition. That is a relatively high threshold, all things considered. It's not just in the interest of these subject matters, but there has to be, in fact, “imminent harm” caused by the circumstances to national security, national economic security or competition. It also has to constitute a “threat to the safety and security of persons, goods, ships or port facilities or the security of supply chains”.

There is already a relatively high threshold in the proposed provision in Bill C-33 that the minister would have to believe would be established or met by the circumstances—that is, the facts and the law—before any order could be issued.

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

You mentioned a high threshold. We're talking about three different factors. Are there other factors that maybe should have been considered that are, in your view, missing from this and that we should consider adding to the language of this clause?

[Heather Moriarty, Director, Ports Policy, Department of Transport]

We added those three elements. The ministerial order power is effectively part of a broader suite, I would say, which we've called the “investment framework”. The Minister of Transport released a policy statement at the same time that the legislation was tabled, which really sought to ensure that supply chains were protected.

Really, on the investment framework as it relates to port investment, there are three elements to it. The first one is that the financial thresholds under which transactions are reviewed under the CTA would be amended for certain trading partners. That would give the Minister of Transport and the department a greater line of sight into what was happening at ports. We then also looked at data and at making sure there was greater data availability so we could understand what was happening. There was a process by which the department could request data. Also, we would look at things from a gateway-level perspective. On the west coast, say, it wouldn't just be the Port of Vancouver; it would be, for example, the Port of Vancouver, Nanaimo, Prince Rupert, etc.

Part of this investment framework was also the ability to.... I call it “In case of emergency, break glass.” This is one of those situations where, if all of those other protections that have been added in a part of the investment framework are unable to protect the economy, competition or that other factor we considered, this would be a mechanism that the minister could use.

For example, in the early COVID days, the government didn't know what it would actually need, so this is meant to be that safeguard in case of extreme urgency, or in case of concern or issues with respect to protecting Canada's supply chain—for those three reasons. They were well thought out. On competition, obviously, Canada port authorities need to be competitive. It's part of their raison d’être. Also, there's national security. That's something the government considers all the time, but then there's also national economic security, which is something that obviously over the past couple of years we've been making sure of: that we're protecting supply chains and making sure there's fluidity and there are no impacts to the Canadian economy.

Those three elements were carefully considered. That was, again, a part of that broader suite. That was why those were brought into and are a part of this legislation.

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

On that “break glass in case of emergency” suite, is that something that is required in legislation? Would there not be tools that exist in other forms, whether that be through regulation, a ministerial order or policy directives from Transport Canada? There must be other tools that exist, so is this necessary?

[Heather Moriarty]

The answer to that is actually yes. We went through and did our work. We evaluated what was available and what currently would address any concerns. There are certain protections, and what is here is what we've assessed is actually needed to ensure Canada has a great line of sight into port infrastructure investment and has the ability to step in should it need to.

For example, I mentioned that financial thresholds exist under the Canada Transportation Act. One of the amendments under the CTA that is a part of this bill is about reducing those thresholds from $93 million to, in some cases, a lower threshold of $10 million, unless we're prohibited by our trade agreements. What that does is.... It exists, but we need to make a refinement to it so that we can see more, so that we're able to understand what happens at ports, because of the fact that they're critical infrastructure and they're important to Canada to make sure goods flow freely.

There are some. That's an example of what currently exists and a tweak that's needed. This is an example of something that's new. All this together is that suite of things that we're seeking to undertake.