Motion No. 7

That Bill C-14, in Clause 27, be amended by replacing line 45, on page 10, with the following:

"section (2) may include but are not limited".

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12:55 p.m.

Reform

Jim Gouk Reform Kootenay West—Revelstoke, BC

moved:

Motion No. 8

That Bill C-14, in Clause 27, be amended by replacing lines 9 and 10, on page 11, with the following:

"native means of transporting the goods; f ) the nature of the goods being transported; g ) the number of markets served by the applicant shipper; h ) the number of other potential carriers available to the applicant shipper; i ) the rate differential between potential carriers; j ) the competitive effects of a rate increase on the destination market, whether domestic or export; k ) whether a rate increase would impair the ability of the applicant shipper to penetrate or to expand into domestic and export markets; l ) the financial and competitive impact of the rate increase upon the short-term and the long-term viability of the applicant shipper; m ) any other matters that appear to the''.

Mr. Speaker, I would like to deal first with motion No. 6 which amends clause 27(2). Members of Parliament debate legislation in the House, they vote on it in the House and then the legislation is referred to a committee.

I have to accept that they do this for some reason other than the exercise of carrying the paperwork out of the House up to another committee room and then back down to the House. I have to assume that they have some rationalization for doing this.

Subject to being corrected by the Minister of Transport, who is no doubt going to speak to this, I assume that in committee, when this is opened up for discussion and when witnesses have been

invited to come forward, they are going to listen to what those witnesses have to say.

If 100 witnesses come in and five want this and seven want something else, then the committee has to make a decision.

If 100 people come in and a significant majority of those people tell you there is something in that bill that is catastrophically harmful to them, you have to listen to them.

If you do not, why did we go through the cost of transportation, costs of the meetings, the interpreters, the technical people, the research people, the clerk and tying up the time of the House and its members? Why do we bother to go through that exercise if we are not going to listen to the people who come before that committee?

The strong majority of people who came before the committee said section 27(2) is a disaster. We cannot have it. It will cause us a tremendous amount of harm. They talk now of significant harm. It started as significant prejudice and now it is significant harm.

They do not need to show significant harm later on by the actions of a rail contract, they are getting it from the government if section 27(2) goes through. I believe that section 27(2) is very divisive on the government side. There are many members who have said they are rethinking this and who have some problems with it.

That is why I tried this morning to find a face saving way for the government to take this off the table, take it back to committee in an all-party jurisdiction and agree to make these changes the majority of the witnesses who came before that committee asked for and then bring it back to the House. No holding their feet to the coals. No saying you were wrong, I was right, I forced you to do something.

That was not my intent. I made it very clear I will try to find the most palatable way for them to make this change in the interest of democracy and in the interests of the shippers right across the country. They rejected that offer.

I said I am not here to make political points. I am here to pass a bill that will satisfy the majority of Canadians affected by it. They did not avail themselves to that offer.

When Bill C-101 was taken from the Order Paper because of prorogation Moya Greene, an assistant deputy ministers in the transport department, one I have a measure of respect for, called me in British Columbia and asked whether I would agree to unanimous consent to bring Bill C-101 back on the floor. I asked if section 27(2) had been taken away. She said: "No. Why would you want it taken away?" I said it is not acceptable to the majority of people who came before the committee. She said: "But we fixed it. We made amendments to it and we fixed it".

I made her perhaps the most generous offer she has ever had as a member of Parliament: "If you believe you have fixed it, of all the numbers of people on record as objecting to section 27(2), if you can get me two or three who say they now accept it I will reconsider my position". Her response to me was: "I do not think I can do that". To which I said: "Then you have not fixed it". The government has not fixed section 27(2).

The new Minister of Transport has listened to people. They have come out of that meeting telling me they have some cause for hope that the government is to redress what is an intolerable clause in an otherwise generally good bill.

I hope members will take this opportunity not to make a partisan decision, not just to support the Reform Party, because we are not here to bring our agenda forward. We are here to represent the people who came before that committee, as I hope the hon. members on the other side are. If they are intent to do that I congratulate them. I hope they support the removal of section 27(2).

With regard to Motion No. 7, the Minister of Transport's motion, and Motion No. 8 which is mine, both dealing with section 27(3), in essence supplements to section 27(2), section 27(2) should be taken away but if it is not we should at least try to make it as palatable as possible keeping in mind these changes are not satisfactory to those witnesses who came before the committee and asked that section 27(2) be removed.

We will support in sequence each of these motions. The most important way is to remove section 27(2). Knowing the government can pass anything it wants, knowing that even if we vote against the entire bill because of section 27(2) it can still pass it, we will at least try to disguise the bad tasting medicine a little.

During the committee meeting one of the witnesses who came forward was from the National Transportation Agency. At that time section 27(2) was still called significant prejudice. It was the same thing but by a different name. I asked him to define significant prejudice. His response was that it would be argued by lawyers for years to come. One of the primary reasons section 27(2) must be removed from this legislation is to make it a better piece of legislation.

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March 22nd, 1996 / 1:05 p.m.

NDP

Vic Althouse NDP Mackenzie, SK

Mr. Speaker, I also had a motion similar to Motion No. 6 to pull section 27 out of the bill. I do not believe it has served users very well.

When the bill was introduced the minister at the time said that the old transport bill had been too much in the interest of shippers and that this piece of legislation would be the railways bill.

With the inclusion of section 27 it may not only be the railways bill but also perhaps the legal professions and negotiators bill. The activities will go on, meeting the requirements of section 27, to identify what a lot of those words mean, words that are not now identified in the bill or in the section describing what words mean. There is no mention of what the words commercial harm or substantial commercial harm mean. Yet that is the basis on which the agency is required to intervene on behalf of a shipper with the new wording of section 27(2).

Some of the shippers made it quite clear in a press release yesterday that sections 27(2) and (3) of Bill C-14 will significantly hinder the ability of shippers to use the shipper protections of the bill. They said the spirit of Bill C-14 is to create a more market oriented, efficient transportation system. "We strongly support that", said the president of the Alberta Wheat Pool, Alec Graham, "however, clauses 27(2) and 27(3) fly in the face of the whole purpose of the legislation".

The grain shippers made it abundantly clear that these sections would not increase competitiveness or financial viability of the railways and would not do anything for the shippers except impose extensive, expensive and lengthy legal battles over what is subjective language.

Given that, I suggest we spend a fair bit of time on this and that government members pause before bringing this one to a vote. The new minister has perhaps not had a chance to do the amount of background work and research necessary for him to make a decision on this. This should not be proceeded with at the moment. We should pause the debate at this stage and bring it forward after the weekend so that the minister can again have a chance to revisit this and to pay further attention to the concerns of shippers.

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1:05 p.m.

Eglinton—Lawrence Ontario

Liberal

Joe Volpe LiberalParliamentary Secretary to Minister of Health

Mr. Speaker, after an impassioned plea by the hon. member for Kootenay West-Revelstoke I have to remind the House that on clause 27(2) and his Motion No. 6 there was a lot of testimony before the standing committee. There were a lot of deliberations. After much debate the committee came to a unanimous conclusion about the best way to amend this section.

It is incumbent on the government to respect the unanimous decision of that committee and to incorporate it in the bill. I think all of his concerns are already incorporated in the bill. Therefore the government will not support Motion No. 6.

On Motion No. 8, keeping in mind what I have already said, we are talking about an unnecessary expansion of detail. Three of the existing criteria well known in legislative language are taken verbatim from section 5, whereas these proposals have no history of court interpretation and therefore lead to introduced legal uncertainties.

Long lists of criteria tend to be treated as check lists and increase the likelihood of rejections simply on the basis that an applicant does not meet the majority of criteria. This is something that was discussed as well in committee.

The legal obligation then to put forward evidence against a long list of technical points as required by this motion can be both costly and burdensome to the applicant and in the end acting as, if I might use a phrase, a chill against the availability of relief. For those reasons we will not be supporting Motion No. 8.

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1:10 p.m.

Victoria B.C.

Liberal

David Anderson LiberalMinister of Transport

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.

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1:15 p.m.

The Acting Speaker (Mr. Kilger)

Is the House ready for the question?