Mr. Speaker, I thank the hon. members opposite, the hon. member for Kootenay West-Revelstoke and the hon. member for Mackenzie, for their kind words. I did meet with a large number of people who had concerns about this area of the bill and I did have a completely fresh look at it.
I concluded after that examination that the decision of the committee was the appropriate one. As my hon. friend from Eglinton North stated so eloquently a moment ago, it was a decision of the committee and all members of that committee.
They did take the time to examine potential alternate wordings in great detail and they came to a compromise solution which in my mind is a very appropriate one. After considering the representations made I decided the members of the House who took part in that committee discussion were correct in their assessment of what should be done.
Let me quickly go on to the issue in Motion No. 7. Section 27(2) of former Bill C-101 contained the words "significant prejudice" as a factor in the regulatory disposition of complaints. This subsection was the main target of criticism for most of the shippers. They viewed it as barring access to the agency rather than a factor in the agency's decision making.
Concerns also tended to centre on whether the meaning of the term significant prejudice was clear and precise enough in law. They were worried also that the section would be applied to final offer arbitration.
Section 27(2) was and is intended to give procedural direction to the agency and not to prevent people from getting before the agency. Section 27(2) applies to all agency decisions concerning rates and services, whatever the mode of transportation. It is an interpretive section. Its purpose is to assist the agency in carrying out its regulatory duties in an expeditious manner.
The provision as amended is consistent with objectives of the bill. One is to streamline the regulatory process to establish more commercially oriented relations between shippers and carriers. Another is to reserve regulatory intervention to cases where there is a lack of effective competition. Another is that economic regulation should always be a last resort and mindful of that policy backdrop but also of the need to respond to concerns about section
- It was amended by the Standing Committee on Transport in several important respects. I will deal with these briefly.
First of all, the term "significant prejudice" was replaced with the term "substantial commercial harm". The term, of substantial harm, is more familiar to the industry. Second, to add further precision, a new subsection 27(3) was introduced. It sets out factors that the agency is to consider when determining whether an applicant would suffer substantial commercial harm were the relief not to be granted.
The criteria introduced are: first, the market conditions relating to the goods involved; second, the location and the volume of traffic of the goods; third, the scale of operations connected with this traffic; fourth, the type of traffic or service involved and the availability to the applicant of alternative means of transporting the goods.
It should be noted that three of these criteria merit points now found in the policy statements at the beginning of the National Transportation Act and as such they are well grounded in law. While the criteria give the agency more precise guidance, the agency will still have discretion to consider any other matter that is relevant to a specific case. The wording of the subsection precludes any all-encompassing statutory definition since the agency's determination needs to be made in light of all the circumstances of each case. That is only fair to all parties affected by such an application.
Third, as originally worded, some argued that subsection 27(2) would require the agency to proceed with a two-step approach. The section was therefore also amended to address that concern and to make it perfectly clear that it was not a bar to access to the agency.
Furthermore, section 161 on final arbitration was amended to more explicitly stipulate that it does not apply to agency decisions such as section 27 on "substantial commercial harm".
While some may have preferred that the whole section simply be deleted, I believe the Standing Committee on Transport has done an admirable job in finding compromise wording that adds the precision wanted and yet at the same time respects the policy intent behind the new legislation, Bill C-14.
This motion which changes the word "shall" to the word "may" will allow the agency the discretion to consider the criteria set out in subsection 3 for determining "substantial commercial harm" where it considers it appropriate to do so.
In my mind, the bill, as amended, will continue to strike that appropriate balance among these competing interests.