Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 15 - Evidence - May 16, 2007
OTTAWA, Wednesday, May 16, 2007
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-11, to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other acts, met this day at 6:15 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Senators, we will hear from officials at Transport Canada before proceeding with clause-by-clause consideration of the bill.
[Translation]
We are going to study Bill C-11, to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other acts.
[English]
From Transport Canada, I welcome Helena Borges, Director General, Surface Transportation Policy; Alain Langlois, Legal Counsel, Legal Services; and David Bailey, Director, National Air Services Policy. Some senators have questions about a few clauses in the bill and I am sure that our witnesses have the answers. The questions arise in the following clauses:
Clause 7, proposed section 36.1; clause 11, proposed section 52; clause 12, proposed section 53; clause 25, proposed section 85.1; clause 27, proposed section 86.1 and 86.2; clause 29, proposed section 95.1 and proposed section 95.2.
Those clauses amending those sections are where some of the worries are. They were in letters we received. As well, some members of our committee had concerns.
Senators, we also prepared observations, so we will deal with the clauses causing concern first and the answers from members of Transport Canada. After that, we can deal with the bill clause by clause and have a look at the observations we have prepared for you.
Helena Borges, Director General, Surface Transportation Policy, Transport Canada: Honourable senators, I propose that we address the provisions in reverse order. We will deal with clause 29 first, and then with clause 27, followed by clause 25. Then we will deal with clauses 11 and 12 together, the mediation being the last one.
We appreciate the opportunity to appear once more before the committee. We have attended these meetings so we have heard what some of the witnesses have said. We appreciate the opportunity to clarify some of what has been said. We will try to be brief in our remarks, but if you have additional questions, we are familiar with the bill and would be pleased to answer them.
I will start with clause 29 on the rail noise provisions. I emphasize, as I think the minister did when he was here a couple of weeks ago, that the House of Commons Standing Committee on Transport, Infrastructure and Communities spent considerable time and effort reviewing Bill C-11. The committee heard from 24 organizations and individuals. They appeared over a nine-day period and the testimony was compelling.
The committee spent six days going through the bill clause by clause and considered a total of 53 motions. Of those 53 motions, 11 motions related to the railway noise provision. These motions came from all parties. The amendments that were made to section 95 originated from a motion put forward by David McGuinty, who at that time was the Liberal transport critic, after more than an hour of debate on that section alone.
Given the extensive deliberations by the committee, we are sceptical that the House of Commons would be amenable to a revision that replaced the language in the noise provision with the language contained in the original bill. Indeed, there is a huge risk that if the matter is revisited, potentially there could be additional amendments with more adverse implications for the railways. We had all those motions and they were significant — some of what we asked to amend when we went through clause by clause consideration.
The noise provision contains four factors that the agency is to take into account in its consideration of rendering a decision upon a complaint. Two of those factors are favourable to the railways. I will repeat them. One of them is that they must take into account the level of service obligations that the railways have to shippers under sections 113 and 114. These obligations are considerable.
The second requirement is that the agency must take into account the operational requirements of the railway. That consideration is another important one and it is broad.
Before this noise provision — or decisions by the court were overturned when the agency used to look at noise issues before December 2000 — the agency resolved noise disputes based on the railway obligation stemming from what is currently section 95(2) in the Canada Transportation Act. The provision says:
The railway company shall do as little damage as possible in the exercise of the powers.
That wording is similar to what is in the proposed provision.
That is how the agency used to interpret any decision on noise prior to a challenge.
In applying this terminology, ``as little damage as possible,'' the agency issued several decisions, none of which jeopardized the operation of the railway company involved in the complaint, or departed from the principle of reasonableness, as is the case law that has been established. We have gone through all the decisions and we have pulled excerpts from them. If you care, we can provide some of those decisions to demonstrate to you that the agency was reasonable under that wording.
Our position is that the provision, which is in the law today, is repeated in this provision here.
In addition, Bill C-11 provides that the agency develop guidelines in consultation with concerned stakeholders. This provision will enable the railway companies to make representations and influence the guidelines that the agency will use in rendering its decision. Already, you heard last week from Cliff Mackay of the Railway Association that the Railway Association, together with the Federation of Canadian Municipalities, has developed guidelines on proximity issues, including railway noise. Both Transport Canada — one of my officials — as well as officials from the Canadian Transportation Agency participated in that steering committee and helped to define those guidelines. We believe this experience will bode well for the development of the agency's guidelines — that these guidelines will influence those guidelines.
Based on the preceding considerations, we expect that the agency will be balanced and reasonable, as it usually is, in interpreting the standard; and we do not expect decisions that are radically different from those it issued in the past under the original standard of causing as little damage as possible.
I will pass the floor now to my colleague, David Bailey. Do you want to stop here?
The Chairman: Yes, I want to ask the senators if they have questions for you.
Senator Munson: The only statement I have is that despite what you say, I will have an amendment to this provision. That is it.
Senator Zimmer: If we have an amendment, in the system we have, how certain can we be of what will happen in the other place? Would it kill the bill?
Ms. Borges: Our view is that it will. Of all the provisions that had quite a bit of debate in the committee, this was one of them. About three provisions had a lot of debate and this one took a lot of debate. There were a lot of witnesses, and the majority of them came to speak about railway noise.
As I said, there were few provisions that had amendments from all four parties. The settlement that came at the end was after a lot of discussion. Listening to some of the witnesses, even those witnesses who asked for the noise provision asked that the bill be passed as soon as possible. People have been waiting since the year 2000 for clarity on this matter.
Several motions have been presented in the House on this issue. The minister spoke to this issue many times. We fear that if the bill goes back, it will be referred back to committee, the outcome could be worse and it will delay the passage of the bill. I think you have heard from other stakeholders, in addition to those who support the noise provision — the commuter rail entities and others who have been looking forward to this bill being passed — that it will be delayed.
Senator Zimmer: When you say ``delay,'' could it come back to the Senate before the end of June to be passed?
Ms. Borges: I doubt it highly, because the committee is currently considering Bill C-6. They have started clause by clause review, and I think they would want to finish that review before taking on any other business.
Senator Zimmer: Would they need to start all over again or could they resume where it is at right now?
Ms. Borges: My understanding is they would want to finish the bill they have now. They have asked us to bring in the third bill of this trilogy, the freight bill. That bill should be tabled shortly. That bill is their next priority. If this bill arrives there, I fear there might be a delay until the fall or even longer, depending on how long Bill C-6 takes to go through.
The Chairman: It is difficult for the officers to discuss what will happen in the House of Commons. That discussion is highly political.
Senator Munson, do you have your amendments with you?
Senator Munson: Yes, I have one. Would you like to hear it?
The Chairman: Give it to the clerk. I was not aware that you had an amendment. I think we should give it to the clerk first and try to make copies.
[Translation]
Senator Dawson: I am never surprised to hear, either in committee or in the Senate chamber, that a bill will be killed if we amend it. These same witnesses told us that Bill C-3 was going to die on the Order Paper if it went back to the House of Commons. I must remind the members of the committee, as well as the witnesses, that it is the Senate's mandate to study bills, and, to the extent possible, to be the chamber of sober second thought.
Between the time when the bill has been tabled by the minister, studied and amended in committee, and passed in the other place, people suddenly realize —just like the railway industry representatives — that amendments have been passed along the way and they did not testify at the House of Commons committee because they were satisfied with the preliminary drafting. Now they want to be heard, or else they prefer to see the bill die on the Order Paper rather than live with it as written.
If any amendment at all prevents the bill from being passed, we have no need to do clause-by-clause study. We can pass the bill without discussion and pack up our things. If we take our responsibilities seriously, we must hear the evidence, note the amendments, including those of Senator Munson, and proceed to pass the bill. Passing the bill in its present form is better than having nothing at all. This bill has now been studied by four ministers of Transport.
I want the bill to be passed, let me be clear on that. It is better to pass the bill without amendment than not pass it at all. But it would be shirking our responsibilities as Senate committee members to say that we do not want to study it just in case it is not passed in the House of Commons. We have weeks ahead of us. I am not asking for many changes. I too have an amendment to put forward. It would be refusing to fulfill our responsibilities if we said that we are not going to make any changes.
[English]
It seems to me that every time a bill comes here we are told, if you amend it, it will die. I do not think that as a committee we should accept that argument as a given. I repeat, I want this bill to pass. It is long overdue. However, representatives of the rail industry have told us this bill is dangerous for their industry because it can put them in a stalemate where they are not able to operate other than between 9 a.m. to 5 p.m. because noise exists in this industry. If we define no noise as the criteria, they think that if they go to court, they will lose.
I have a lot of respect for the Department of Transport and a lot of the respect for the minister, but I also have a lot of respect for the industry. They live with this legislation. They want this legislation, but they want only a minor change to the definition of ``noise,'' which I think my honourable colleague will table.
To come back to the original comment, it is our responsibility to study these bills and it is our responsibility to amend them. I want the bill to pass, but I think we have enough weeks that we can frame it in a way that it will be sent to the House of Commons with a few minor amendments. If they are satisfied with the amendments, the bill passes. If not, they send it back to us.
Trust me — I am committing myself, I do not know about my colleague — but I will support the bill if the other place does not accept our amendments. If they do accept our amendments, the bill does not come back to us and we should be happy. We do our job, improve legislation according to our mandate, and the House of Commons considers it and accepts it. If they do not accept it, I am telling you, on my behalf, that I will live with whatever they send back to us. That is the amendment for the railway.
Airline industry: We have two major airlines in Canada. They came in front of our committee and said, you are putting us in a situation where all our competitors will have an advantage over us on the Internet, on pricing, because we must have Canadian-controlled pricing while all our competitors will be able to set their pricing according to their rules, which would not include the charges that are being imposed.
Let us understand each other here. These airline companies did not invent those charges that people say they are hiding. The Department of Transport, the government, decided to let those costs be included. The airlines are saying, we want to be treated on an equal footing with our agents that sell tickets and with our international partners that would be able to advertise tickets at a lower price than our own.
As a general comment, I think it is our responsibility to study these amendments and if there is a risk, I think we should try to change the bill. I am sure Senator Tkachuk can talk to his house leader and I will talk to my house leader. They will talk to their house leaders in the House of Commons and if they can arrive at an agreement, they can pass it. If we do not ask them for changes, definitely there will not be any changes.
Senator Segal: I want to make a comment and ask a question to the officials. The comment is — and I have had the same representations as my colleagues across the way have had — any time I hear a corporation's perspective, because of the small piece of the bill with which they are concerned, that they would be glad to see the entire bill lost rather than have them inconvenienced, I come to a conclusion about the social and corporate responsibility of that corporation, which is not positive.
A series of other interest groups have come before this committee to express strong support for the bill, for a whole bunch of reasons, and they have waited through four ministers of the Crown and for many years for this progress.
My question to the officials is as follows: In terms of achieving the legitimate concerns that colleagues have expressed about aspects of the bill, and taking into consideration that every bill requires regulations, and regulations must be drafted by officials, in terms of having actual impact on the reality within which the railways and the airlines operate pursuant to the passage of this bill in its present form, are we likely to have better impact on that reality through a report that suggests that regulations, when they are crafted, should respect the following concerns — I refer specifically to the concerns my two colleagues across the way have underlined — rather than amend the legislation and send it back to, at best, an uncertain circumstance?
My colleague, Senator Dawson, is optimistic about how that amendment might be managed. I notice, with respect to other bills — where the minority wants to make amendments, such as Bill C-293, where there is great concern that the bill will die instantly upon such change — it depends on the bill and the content.
In terms of the relationship between the specifics of the law, the regulatory underpinning, and then the interpretation of the law that the transportation commission must execute, what is likely to have the most significant impact on dealing with the issues as assessed by our two colleagues?
Ms. Borges: I will answer by saying that in both clauses we are talking about, clause 29 talks about guidelines, not regulation; clause 27 talks about regulation.
You are correct, Senator Segal; the regulation process is a consultative, intensive process, and all parties have an opportunity to be heard at that process and to shape. That is how the agency usually determines how it will be interpreted on a day-to-day basis. The industry is consulted, consumers are consulted and anyone who has an interest in the matter is consulted.
We heard last week, I believe it was the airlines, that said that these provisions could have a severe economic or competitiveness impact on them. We cannot get a regulation through the gazetting process without doing an economic impact assessment statement. In that statement, we have to be clear about the impacts — economic, competitive, social and environmental — and at that point that is how you shape them.
I agree that it is through that process — the definition of exactly what the agency will require and how the agency will interpret — that they have a better opportunity to influence the way the decisions will be made.
With the rail, it is the same thing. The guidelines must be established. Already we are working together with the rail industry and community groups, which is an unprecedented effort, because the federal government does not have jurisdiction over municipalities. For us to work together with the Federation of Canadian Municipalities and the rail sector to shape these regulations bodes well.
On top of that process, the law today has a provision in it that says ``as little damage as possible.'' If that phrase were to be interpreted in the way that the association was saying or that CN was saying, I venture to say the railways would have been out of business a long time ago, and they are not. The department has no interest, we have no interest, in stopping the railways. Quite the contrary; we want to see them grow and deliver more goods. We believe that the language allows that interpretation to be flexible and there will be no termination of rail operations. It is impossible.
Senator Tkachuk: Part of this discussion is a bit of a free flow of debate and I thank you, chairman, for allowing that to happen.
I want to take a minute or two to comment briefly on the points Senator Dawson raised. We are operating in a minority Parliament. In a majority Parliament, Senator Dawson, if the majority government tells me we will lose the bill if we send it back, I do take that information with a grain of salt.
In this particular case, the amendments will change the clauses back to the same position as the government originally intended with both the noise and advertising provisions. The noise provision was an NDP and Bloc Québécois amendment. You can imagine the negotiations that took place. The other two provisions the Liberals here want to amend were moved by Mr. McGuinty, your transport critic. He was transport critic when this bill was discussed.
Do you not think we would be happy to move it back to its original position and thank the members opposite for reversing all the amendments made by opposition parties by the house? We have an honest concern from our house leader that if this bill comes back, nothing will happen. There will be a game of ping-pong and this issue will not be resolved.
That is why we expressed this fear. I have been in opposition for a long time. I know the story. In this particular case, this situation is unusual where you move amendments back to the government's original intent when they introduced the bill into the House of Commons.
Parliament made these amendments, the Liberal, Bloc Québécois and NDP opposition. This bill will have a difficult time if you move these amendments to go back into the House in any reasonable amount of time. In my view, considering the transport's business in the House now, it will not happen.
The Chairman: Senator Munson, are your amendments translated into French?
Senator Munson: Yes, they are. I would like to have them back.
To be fair, this was the first time I moved an amendment. I realize a historical thing has happened in the past.
I echo what Senator Dawson said. What is the point of being part of this process if all we do is give lip service, window dressing, to a serious bill? We are all lobbied by various organizations. I have taken a serious look at this bill. On our Liberal side, with respect to the railway business, the House of Commons side, no one has an issue with what I propose. It is as simple as that.
I have been in the Senate for three and a half years, and this all comes to us as a great big bill. We have a legitimate role to sit back, study and look at it. From my perspective, this provision will box in the railways to be in court each and every day fighting off developers on noise issues and other matters.
I looked at it, consulted with a few people and put together a minor amendment. There are about 11 or 12 of us here. I propose it. We vote. I win or lose. It is not that complicated.
Senator Dawson: My amendment goes directly toward what Senator Segal has said. There is enough apprehension on the part of industry, both the railway and the airlines, that we should give them a second chance.
My proposal, if I may read it, is that clause 27 of the bill is amended to read that it comes into force on a day to be fixed on order of Governor-in-Council.
With that amendment, before this bill comes into place, the people from the industry will have a chance to sit down with the department and be obliged to ``avoir une écoute.'' I would rather have gone back to the original text written by the Department of Transport because their original text was good. As it stands now, I understand there was a debate in the House of Commons and there are apprehensions about the consumer groups and the pricing issue. I am not saying amend the provision but rather include this amendment which forces them to study it.
It is simple. It does not offend the Bloc, NDP, Conservatives or Liberals. This section of the bill will come into force by action of the Governor-in-Council. It means that the Minister of Transport, who had the original wording, will need to negotiate with the people he is working with to arrive at a consensus, and then the regulations will come into force.
It is not drastic, nor does it offend anybody. It is about as minor and non-aggressive as possible so it can achieve the maximum consensus. If that amendment is not acceptable, what are we doing here?
Senator Adams: I was surprised at Senator Tkachuk, when there were two witnesses here discussing amendments to the bill. There were representatives from the grain, forestry and shipping industries and they wanted changes. They were here two weeks ago.
Senator Tkachuk: Yes, I was chair.
Senator Adams: We are only talking about the House of Commons. Those witnesses were here and they did not receive an invitation to go to the House of Commons. I was not here when the airline witnesses were here last week. We only discussed the original bill, Bill C-44 I think it was. They wanted to see that clause back in Bill C-11. The department was discussing it over there, and I do not know how many people missed it.
Senator Tkachuk: I am confident these issues will be addressed in the third transport bill which is coming into force. That is why I support this bill.
As far as the airlines are concerned, there is enough protection for them. They are already dealing with it in Ontario and Quebec in the same fashion.
Senator Adams: I do not think those people understood that they would be left out.
The Chairman: A bill is in the works dealing with airlines. Is that right?
Ms. Borges: It is actually on rail freight. I think Senator Adams is asking about rail shippers.
Senator Zimmer: I want to reiterate what Senator Munson and Senator Dawson have said. I want this bill to pass. I have said that from the beginning. I do not want to it fail because it has been delayed far too long. There are too many developers and others waiting due to construction of the railways.
However, the two amendments that came forward with the air carriers and with CN were legitimate concerns and they do affect them. CN made a further adjustment to the amendment whereby it may be acceptable, but there is another issue we can play with whereby with clause 27, as Senator Dawson, indicated, with its coming into force. If that amendment allows the carriers time to bring the rest of the multi-jurisdictional provinces into play whereby they will have enough time to deal with the other eight provinces, then that is acceptable.
I want the bill to pass, but there are some issues and amendments here that I hope we would have assurances from the other side that it would go through and if it comes back we could pass it.
I want it to go through, but on the other hand these issues need to be addressed. I support the amendments being tabled.
David Bailey, Director, National Air Services Policy, Transport Canada: I want to clarify the points Senator Dawson made.
First, the regulatory process allows for a consultation period. Through that period, we can work with the airlines, consumer groups and with the CTA to come up with a balanced approach. We have no interest in seeing the airlines have difficulties economically or otherwise through various provincial jurisdictions where there are differences, but also on the international front. We think there was some erroneous discussion last week in regards to that issue.
If you go to any of the aggregator sites, for example, Expedia.ca, Expedia U.K., Expedia Germany, almost all the jurisdictions, in particular the European jurisdictions, are all-in pricing today. I think the question of the competitive advantage or disadvantage of the airline, in the context of how we have structured this legislation, would not lead to that problem. We are confident about that.
The legislation breaks down the pricing into two components. One is what I like to term the airline's direct cost, that is, the cost to the airline, their business operation costs. Another component I term indirect costs. Those costs are government charges, taxes and user fees.
It is not truly an all-in pricing system. Flexibility and balance is built into the legislation that we feel can come out through the regulatory process. It is in that context that we continue to support the current wording in the legislation, even though it is somewhat different from what we began with at the other stage. I think we can say confidently that the competitiveness question should not be a negative. Where there are potential pitfalls through the regulatory process, we can resolve those through the consultations we will have with industry.
Senator Dawson: The carrier providing the service is to indicate the advertisement, all fees, charges and taxes collected by the carrier on behalf of another person, irrespective of service. That is what the airline is obliged to do, but the agent selling tickets is not. We have a situation where the people selling tickets for Air Canada or WestJet can advertise a price on their website that is less than what the airlines are advertising. In addition, as you well know, those agents make a percentage on the sale.
We are putting a constraint on their capacity to compete internationally. I think there are still difficulties internationally because the policies on how they price something internationally — for example, they share a code and on the American side of it, American Airlines can advertise at a lower price than Air Canada — I think we are putting them in a situation where, as a result of taxes and charges that we invented, we are putting them at a disadvantage because we accepted an amendment that everyone agrees is not written correctly. You did not write it that way when you initially tabled it. I am not saying that we should debate the amendment. I am asking only for a reasonable amendment saying that it will come into force on a day to be fixed by order of the Governor-in-Council. That amendment gives the minister and the government the possibility to moderate the way they apply this regulation to not have negative consequences.
The two biggest players came here and said, ``We think it is bad for us.'' We know a lot of things about all kinds of things, but we need to have respect for the people running these industries. They say, ``You are putting us at a disadvantage.'' They asked for this legislation. They do not want the bill to die. Along the way, however, there was a distortion of the objectives of the bill. We are trying only to correct the distortion. We think the House of Commons will accept these reasonable amendments.
Senator Zimmer: I talked with the air carriers today. They indicated that to make a level playing field, the coming- into-force amendment that Senator Dawson mentioned, namely, permitting it to be fixed by Governor-in-Council, would allow the carriers and the provinces enough time to deal with the issue to make it a level playing field. Not only would Ontario and Quebec have legislation that deals with the agents but the other provinces would also be able to come into effect whereby they, too, would have legislation to deal with the agents also, making the playing field completely level. The agents, if advertising, would do it the same way as they now do, by jurisdiction of legislation in the provinces.
An amendment made that way, section 64 added at the end of that clause, would make that happen. They are comfortable that the carriers would be able to bring that into force equally across the provinces.
Ms. Borges: As a point of clarification to address Senator Dawson's amendment, the provision in the law says that the agency shall make regulations. Until the regulations are made, this amendment has no effect. That is what we are trying to explain. Before this amendment takes any effect at all, even though the law could be passed soon, a whole regulatory process must be put in place. These processes often take long because of the amount of consultation that must happen.
When you suggest that there be time, there will be time, but it will be time in the context of how the regulations are developed. That process could take possibly a year or longer. If the consultative process demonstrates that there is an opportunity for all sides to come together, the agency can then reflect that opportunity. It is written in here that they are obliged to take that time, develop the regulations properly and consult with all stakeholders. It must be gazetted the first and second time. There will be plenty of opportunity for people, provinces, airlines and travel agents to provide comments. It does not take effect immediately even though the law is passed. Regulations must be passed first.
Alain Langlois, Legal Counsel, Legal Services, Transport Canada: I also point out that under proposed section 86.2, also found in clause 27, one provision currently in the CTA, a regulation made under Part II of the act, including air price advertising, can be made conditional. If the government deems it to be appropriate to have the coming into force of the regulation be made conditional on something else, for example, uniform regulation of this matter throughout the countries, it is possible for the government to do that under section 86.2 of the act.
Senator Dawson: I already admitted that I did not want you to change the amendment. I want to go to the original wording. In that wording, it states that ``The Agency may, under recommendation of the Minister, drop.'' The minister is not involved anymore. The agency now says, ``The Agency shall make regulations.'' In the second paragraph, it used to be ``regulations may be made.'' The amendment now says, ``regulations shall be made.''
If you give yourself the opportunity of having a coming-into-force amendment, you free the minister from the ``shall'' and it gives back to the minister a responsibility to participate in the process.
Mr. Bailey: Senator Dawson, in practice, the way this process will unfold in terms of the development of the regulations is that the CTA will be tasked to develop the regulations. A large policy component will involve the minister and officials from Transport Canada in terms of developing those regulations. Even though the shell is there, that work must begin but it does not shut out the minister. The minister has a role, even though it is not explicit. I think that is why we are comfortable with the new wording. We also prefer the original wording. It is something we put in there, but we can work with that. The clause that Mr. Langlois outlined gives us flexibility to deal with the inconsistencies we have. We recognize what was raised by the airlines in terms of those jurisdictional problems. That flexibility will give us the time and ability to work with them to sort that out to see how the regulation can be crafted so it will not be detrimental to the airlines. It will strike a balance between the airlines' needs as a corporate entity and not to be put in a difficult situation balanced against consumers' needs for travel and air fares to be clear to them. We believe we can work that equation through these clauses, through what is in proposed section 86.2, as well as through the practicality of the function of the minister in a policy role in regards to this development. That is why we are comfortable.
The Chairman: Can we suspend the discussion on this clause and go to other clauses? We will then come back to this one.
Senator Tkachuk: Are we going to clause-by-clause consideration?
The Chairman: I asked some questions to the officers. Some clauses caused problems for some of us, and I was wondering if you can give us proper answers to the questions we had. After that, we will go to clause-by-clause consideration of the bill.
Ms. Borges: We have dealt with three clauses now. The other clause was clause 12, section 53 of the act. That clause pertains to the statutory review of the act. Some witnesses that appeared asked that the review be maintained at four years rather than increased to eight years.
This provision was not raised at all in committee. The committee, as we told you, held extensive deliberations and no one raised this issue. Some senators asked questions about whether the government can review any of the provisions at any time. Definitely, the government can. As an example, I will cite the airline provisions that were amended in 2000, whereupon the Air Travel Complaints Commissioner was created. That same year we conducted a separate review of the air freight provisions relating to grain transportation so within one year, two separate reviews of the same act took place at the same time.
The four-year requirement is for the whole bill, the operation of the whole act. The act is a huge piece of legislation. When we provide only four years to let amendments or the law unfold, it is not sufficient. We found that when the review was conducted this last time, the panel commented that there had not been opportunity for some provisions to unfold and they were beginning to unfold. We have seen that in the five years it has taken us to move this bill through the process from 2001 until today that the issues evolve. The issues change. What was an issue in 2001 is not an issue anymore. Airline competition was a big issue back then. Today it is not.
On the rail side, there is the same kind of thing. In 2001, we had issues such as running rights, for example. You heard a witness say last week, or two weeks ago, that running rights is not the issue. The issue is something else. We believe allowing for a longer review period is consistent with some of the other pieces of legislation. Most of them have a ten-year period. It is consistent with Bill C-3, which the committee passed recently. It does not preclude the government from making changes at any time to provisions depending on the requirements of the various components of the act.
The next clause is the merger review provision. I know it was a timing consideration. I will ask Mr. Langlois to address that.
Mr. Langlois: Concern was raised with respect to the 42-day period. The minister must advise parties to a transaction, whether or not it raised concerns to the public interest. The 42-day period included in this act is consistent with timelines found in the Competition Act. Under the Competition Act, where a party to a transaction prescribed long form information, the Competition Act prevents a party from closing a transaction for a 42-day period to allow the commissioner or the competition to assess whether the merger and acquisition provision of the act applies, and if it applies, then to enter into some discussion with the parties.
The 42-day period here is in line with what is in the Competition Act. Having said that, the 42-day period is a maximum period. It is not that the minister will advise parties every time at day 42. If the minister is advised early in the process or before the transaction whether notice is filed, the minister could issue a notice in a timely manner, within days after notice is filed.
Again, it is a maximum period. It is not the period that a minister will issue a ruling, as opposed to the Competition Act that basically freezes any possible transaction for a 42-day period.
The Chairman: Are there any questions, senators?
Please proceed to the next one.
Ms. Borges: This is the final clause, clause 7, dealing with mediation provision. Clause 7 contains two parts related to mediation. Proposed section 36.1 provides the agency with the legal authority to conduct mediation. We told you when we were here the first time that the agency has conducted mediation on a pilot basis for the last five years. It has been successful in resolving disputes through mediation. In that context, we want to provide the agency with formal authority to conduct mediation in an effort to solve disputes through mediation rather than through the regulatory approach.
The second part, proposed section 36.2, is an enabling provision to mediation. The first part, section 36.1, deals with its regulatory procedures. For any procedure that the agency has under its jurisdiction, it can undertake mediation. This section would allow the agency also to conduct mediation or arbitration on what I will call a commercial matter. If a shipper or a railway has an agreement in place and they want to try to solve a dispute on a commercial basis, they can contract the agency staff, cost recovered, to do that mediation for them rather than go to another private-sector mediator. It is facilitative; nobody is required to use it. It is there if they want to use it.
We have put this provision in there because last year, 2006, summer and fall, the railways and the shippers were in extensive negotiations about a commercial dispute resolution mechanism. In those meetings, some shippers asked that we provide that opportunity for the agency to serve as mediator. We have no difficulty doing that. It is an enabling provision. If they do not want to use it, they do not have to. It is there if it is needed.
The Chairman: Are there any questions, senators? It is clear to everyone.
Before we go to clause-by-clause consideration of Bill C-11, I suggest we have a ten-minute pause to allow you to talk amongst yourselves.
[Translation]
A break will provide us with a little wisdom and will allow us to think about what we have to do before moving to clause-by-clause study.
The committee suspended.
The committee resumed.
Senator Dawson: To put everyone's mind at ease, it is 0-0 at the end of the first period. If we move quickly, we will finish earlier and people can go and watch the game.
The Chairman: If you do not mind, Senator Dawson, we are going to take the time for study. I intend to continue the break so that you can look at the submissions that have been prepared for the committee. They will be distributed and you will have 10 minutes to go through them.
[English]
The Chairman: Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-11?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 7 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 9 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 10 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 11 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 13 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 14 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 15 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 16 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 17 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 18 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 19 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 20 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 21 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 22 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 23 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 24 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 25 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 26 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 27 carry?
[Translation]
Senator Dawson: I would like to repeat the comment that I believe this is not fair to Canadian companies. However, if the amendment that I am making is passed, I will live with the bill as passed.
[English]
The Chairman: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chairman: Clause 27 is carried. Shall clause 28 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 29 carry?
Some Hon. Senators: Agreed.
Senator Munson: I would like to move an amendment on clause 29.
The Chairman: Do you have amendments in both languages?
Senator Munson: I do not have the amendment in French with me — yes, I do now.
The Chairman: To be adopted, they must be in both languages.
Senator Munson: I thought I had it with me but I do not have it with me.
The Chairman: What is your amendment, Senator Munson?
Senator Munson: Do you want me to read the clause itself?
The Chairman: Only the amendment.
Senator Munson: The amendment should read:
That Bill C-11 be amended in clause 29, on page 20,
(a) by replacing lines 2 and 3 with the following:
``way, a railway company shall cause only such noise and vibration as is reasonable, taking into''; and
(b) by replacing lines 7 to 11 with the following:
``(b) its operational requirements; and
(c) the area where the construction or operation takes place.''
The Chairman: Is there further discussion on the amendment?
Senator Segal: I want to indicate why I will oppose it. Because of my great regard for Senator Munson, I know the bona fides of how he is trying to be helpful to the Canadian industry.
First, I believe there shall be sufficient time as the bill is now drafted, without prejudging what happens with Senator Dawson's proposal, for consultations to transpire between the railways and the officials so that the regulations that fall underneath that provision reflect the precise concerns that Senator Munson has outlined in a fashion that would not risk losing the bill when it returns to the House.
Second, when I look at some of the decisions made by the CTA where complainants have made precisely the kind of irrational and irresponsible representation about zero noise and all the rest, and I will make a reference to two cases: the Misurak case of 1999 and Mulhall case of 2000. In the Misurak case, the ruling noted that the agency is of the opinion that as this particular subdivision is a busy, single main line that provides local service in addition to being an international rail corridor, considering the close proximity of the complainant's business and property to the railway, some noise, fumes and vibrations are normal and are to be expected from such operation.
Subsequently, in 2000, the agency made a similar finding in Mulhall case. To the complainant's suggestion that the facility yard be shut down, the ruling of the CTC was that is not reasonable. Such a total shutdown of a railway operation falls outside the statutory requirement that the railway company do as little damage as possible in its operations.
For those reasons and because of what I think as the clear jurisprudence in the matter and the commitment to consult broadly on the regulatory framework that underpins this section, I do not want to risk the bill and I will vote, with great respect, against the senator's thoughtful amendment.
The Chairman: Are there any other comments?
Senator Tkachuk: This is difficult for me because I am defending Mr. McGuinty, while the Liberals oppose Mr. McGuinty. This is a full 180-degree turn from what Mr. McGuinty wanted and what he fought for in the House of Commons. I will quote from the clause-by-clause consideration when he moved the amendment that is now in the bill. He said:
. . . I want to refer back to the agreement between the Federation of Canadian Municipalities and the Railway Association of Canada. An MOU, Mr. Chair, was struck between those parties. It was long in its working out and was detailed in its scope. For those of you who may remember having read it, it does set out very specific decibel level tests on the question of noise in and around railyards. It goes as far as saying I think that if you're in your living room at nighttime and your windows are closed, there cannot be precisely more than 37 decibels of noise.
I think it would help Canadian citizens to have a higher level of comfort, in that the test that will be used to identify what is ``as little noise and/or vibration as possible'' will be informed with actual scientific criteria, as well as being balanced against
(a) its obligations under section 113 and 114, if applicable,
(b) its operational requirements;
(c) the area where the construction or operation takes place; and
(d) the potential impact on persons residing in properties adjacent to the railway.
I do not know if anyone remembers when I put this question to the Railway Association of Canada, but the answer was it was not required and that the committee and legislators should not try to go further into the details in terms of how we would measure noise or how we would test for noise.
It seems this was an important amendment by the Liberals in the House. Remember, these amendments were House amendments and not government amendments. It seems to me the Liberals in this place will vote for an amendment to replace a Conservative government amendment, and it can only be interpreted as mischief rather than trying to benefit the parties that they claim to benefit.
Therefore I ask members to think why we are here. We are here to make amendments when we feel they would improve the bill. I do not think this amendment will do anything. Although the Liberals voted for this amendment in the House of Commons, now the Liberals are voting against it. It can only be interpreted as mischief by those people who want this bill. I think it is something we should consider before proceeding with the bill.
Senator Adams: We are talking about politics, not who can make the amendment. Why are we always talking about the Liberals? We are concerned about the people who live there. They say the living room in their house is vibrating.
Senator Tkachuk: Mr. McGuinty moved this motion.
Senator Adams: Does he live next to a railway?
Senator Tkachuk: I do not know. He is concerned about those who do.
The Chairman: May I ask the senior officers what they think about the amendment. In the bill, the proposed section 95.1 has subsections (a), (b), (c), and (d). Subsection (d) is being removed with Senator Munson's amendment, if I read correctly.
Ms. Borges: In the previous version of the bill, the proposed section was pretty well identical to the amendment we received a few moments ago. As Senator Tkachuk said, there was a lot of discussion about this clause.
I suspect that if the amendment goes back into the House, we will have this discussion again, much like we are having it here. We believe that section 95.1 (a) and section 95.2 (b) provide a tremendous amount of protection for the railways in terms of taking into account their obligations to their customers and their shippers, as well as their operational requirements.
The other area where the construction or operation takes place, does it take into account the vicinity around them: Is it resident or business? That subsection gives them protection as well.
The one removed in the amendment, subsection (d), addressed some of the motions put forward that nowhere in this clause was there a reference to the neighbourhoods, the vibrations and the people living in those areas. Subsection (d) is an acknowledgment of that. We believe the provision, the way it is in this version of the bill, will provide the railways with sufficient protection and the agency will be reasonable in the exercise of its duties.
Senator Munson: Briefly, in response to Senator Tkachuk. I am not here to make mischief. I am here because I listened to both sides of the issue.
Senator Tkachuk: So did I.
Senator Munson: That is what democracy is about. Sitting here in the Senate and after looking at both sides of the issue, it seemed to me that my amendment is reasonable, as reasonable as I put it here today. At the end of the day, it comes down to this committee saying ``yes'' or ``no.'' Governments will not fall or win on this particular amendment, I can assure you of that. At the same time, I have an obligation as a senator to do what I must do here. I have sat on committees in the last three-and-a-half years and I have gone through this process where people have gone clause 1, clause 2, clause 3, et cetera, and approved them. I will not do that.
I stand beside this amendment. If I lose, there will always be the third period of the hockey game.
[Translation]
Senator Dawson: I would like to repeat my support for Senator Munson's amendment. The industry representatives have pointed out that this clause threatens their financial well-being. But I would like to clarify that we are not dealing with the original amendment from the Department of Transport, nor with the one from the House of Commons, but with a compromise between the two.
We changed the text. There is no question of saying that the House of Commons made a mistake. They were right to reject a part of the original amendment. I believe that the text submitted by Senator Munson is a case of reasonable men coming to a reasonable accord.
[English]
The Chairman: I will have a roll call for a vote on the amendment.
Adam Thompson, Clerk of the Committee: Senator Bacon?
The Chairman: Opposed.
Senator Adams: For.
Senator Dawson: For.
Senator Eyton: Against.
Senator Cochrane: Against.
Senator Merchant: For.
Senator Munson: For.
Senator Phalen: For.
Senator Segal: Against.
Senator Tkachuk: Against.
Senator Zimmer: For.
Mr. Thompson: Yeas six, nays five.
The Chairman: The amendment is carried. Shall clause 29 as amended carry?
Hon. Senators: Agreed.
The Chairman: Carried, on division. Shall clause 30 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 31 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 32 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 33 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 34 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 35 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 36 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 37 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 38 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 39 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 40 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 41 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 42 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 43 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 44 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 45 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 46 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 47 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 48 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 49 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 50 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 51 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 52 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 53 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 54 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 55 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 56 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 57 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 58 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 59 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 60 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 61 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 62 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 63 carry?
Hon. Senators: Agreed.
[Translation]
Senator Dawson: I have another amendment that would become new clause 64.
It is moved that Bill C-11 be amended on page 44, by adding after line 12 the following:
The Chairman: Where are you putting it?
Senator Dawson: It becomes clause 64 and is placed at the end of the clause.
The Chairman: We have not yet made a decision on clause 63.
Senator Dawson: I had understood that we had passed it. My apologies.
[English]
The Chairman: Shall clause 63 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
[Translation]
Senator Dawson: I repeat my amendment on clause 64.
It is moved that Bill C-11 be amended on page 44, by adding after line 12 the following:
``COMING INTO FORCE
Section 27 comes into force on a day to be fixed by order of the Governor in Council.''.
The Chairman: On page 44 of the bill, line 12, that would be a new addition.
[English]
The Chairman: Any comments?
Senator Segal: I want to be clear as to why I will oppose that. It strikes me that we have a kind of reverse conditionality that has been applied here in a fashion that allows the majority to lose the bill.
With the passage of Senator Munson's amendment, I think the prospects of this bill ever passing the House of Commons, the male lifespan being 82 years, is severely diminished.
The notion of Senator Dawson's helpful amendment with respect to giving the government more time, thereby providing a constructive period of time for consultation, is redundant. The result of the previous vote is a loss of this bill in the House, so to support Senator Dawson's amendment will add one more condition to be sure the bill is absolutely lost without any hesitation.
From the point of view of our side and from the good faith of the officials and others, it would not be good faith for me to support the proposal now. There was no conditionality with respect to Senator Munson's amendment relative to Senator Dawson's, when Senator Dawson said on the record in this committee that he would have a view with respect to various parts of the bill relative to how his amendment did at the end. That matter has now been obviated by his colleague's decision. Sadly, I cannot support it.
[Translation]
Senator Dawson: I would like to make a correction. In reality, for Senator Munson's amendment, and my amendment as well, we could have taken an approach that would change the drafting of the clause; but I found it better, in a spirit of collaboration, to take this approach. I would like to say to Senator Segal that if everyone takes the position that the bill will not pass the House of Commons and that no one on your side will try to find a compromise that will allow it to be passed, that attitude will certainly not help us pass the bill.
[English]
I am on the record and our critic is on the record saying we believe in this bill. We think it should be passed, and we will do everything in our power over the next few days so when it arrives at the House of Commons, it is adopted as amended.
We hope that since you believe in this bill, and I do not think you have any major considerations about the amendment tabled by my colleague, Senator Munson, that if both sides of this committee after adoption of the bill were to have a positive attitude in helping it pass, it will be more helpful than making it a dramatic situation in which there is a winner and a loser.
I think the winners here are the people who come in front of a committee and give us remarks that they think should be included in the bill, we arrive at the conclusion as a committee that these requests are reasonable, we put them in the bill and we will do everything in our power to pass the bill.
I want to reiterate that if anything makes me believe this bill will not be passed and it will be brought back here so we can adopt it, I would rather have it passed as is, but I think we improved it tonight. As a result of those improvements, we should make an effort to pass it.
Senator Tkachuk: Senator Dawson, no one on this side disagrees with doing the right thing. Remember, the amendments you are moving and the one amendment you have moved is back to it original state, which is the government's position. We say these things only because of how that bill finally passed the House, with some compromise, amendments and all the rest of it.
Now we are taking away the will of the House with these amendments because it was they who did it. In my view, we are not trying to scare anybody by saying it will not pass the House. We would love this thing to be passed as amended. It will not bother us any if it is passed as amended. That was our original intent.
Do not put words in our mouth as to what we want. We know what we want. We would love to have the original bill. Nonetheless, we also know what goes on in the other place.
Senator Munson: As a brief intervention, if both the Conservative Government and the Liberal Opposition agree with this bill and the amendments to try to enhance this bill, it will pass in the House of Commons.
Senator Tkachuk: What are the consequences of you not being right?
Senator Zimmer: I reiterate what my two colleagues have said in that I received assurances today from the Liberal side that they will do everything to pass this bill and ensure it goes through. We received that today, and hopefully it is correct.
The Chairman: Are there any other comments? We will have roll call. Yes, Ms. Borges?
Ms. Borges: I would like to raise one technical matter with respect to the amendment.
Section 95 contains several references to the wording proposed to be changed. If it is referred back to the House for a vote, then we need to ensure the wording is changed through the other sections of section 95 and will refer, in effect, to section 95.3 where the same wording appears. There is one more section.
Senator Dawson: What page?
Ms. Borges: It is on page 20, line 33. It says, ``to cause as little noise and vibration as possible.''
[Translation]
Senator Dawson: For concordance?
Ms. Borges: Yes, for concordance, it is essential.
[English]
The Chairman: We need to amend this as well, and we do not have amendments on that. We do not have a legal adviser present.
[Translation]
The Chairman: But we need still the concordance.
Senator Dawson: In this case, we can accept it.
[English]
You want it delayed. If there is no possibility of improving it, we will live with it as it is. Do you want to delay it? I do not mind.
The Chairman: May I suggest that an amendment to section 95.3 be tabled on third reading of the bill? We do not have an amendment here.
Senator Dawson: Does the critic agree?
Senator Segal: I am not troubled about the amendment coming forward on third reading. I think it would be a measure of good faith if, when that amendment came forward, the proponent of the amendment could stand in his place and indicate that he has prior indication from the other place of their intent to support the bill with that amendment in place. That measure would be completely consistent with what Senator Dawson has said, and it would allow us at that time to move together in a collaborative fashion and not see the bill unduly threatened, perhaps unwillingly.
Senator Munson: I agree. I am a man of few words.
The Chairman: We will refer section 95.3 to the Senate on third reading? We must vote on clause 64 as amended. Are you ready for the question?
Senator Tkachuk: Will this be understood or do we require a vote on having the amendment moved on third reading? How do we know it will happen? Who will undertake this action?
Senator Munson: The official only brought this up now.
Senator Tkachuk: They are right.
Senator Munson: They brought it up after the fact, after my amendment. I did not go back into that. Do not put me on the spot. If it comes to this particular thing —
Senator Tkachuk: I am not putting you on the spot.
Senator Munson: The officials came back. Let me find section 95.3, and we will walk through it tonight.
The Chairman: We do not have —
Senator Munson: I am a person of my word. If Senator Segal asked, I will go back, look at this issue, sort it out and speak to it. I am not doing this alone. I am assured on our side that we will pursue this whole bill. We support this bill, but there has been no pushback on my amendment. Therefore, I will go back and look at section 95.3.
Senator Segal: I will refer to my more senior colleague, but if that is a part of the record of our discussion and it is an undertaking made in good faith by my colleague, Senator Munson, with respect to how third reading would then proceed, then I am comfortable with that as part of the record of this committee with respect to the concordance amendment so there is consistency relative to the amendment already passed.
What I asked of Senator Munson, and what he was kind enough to embrace, was the notion that he would stand in his place when he moves that concordance amendment and also provide the house assurance with respect to support in the other place of the bill as amended so it could pass quickly upon being returned by the House with that minor amendment.
Senator Zimmer: If Senator Munson agrees, as critic of the bill I am prepared to take on that responsibility if that is what he wishes.
Senator Munson: Immensely.
Senator Zimmer: As critic, I will take that responsibility and make that guarantee.
The Chairman: Clause 64 was an amendment tabled by Senator Dawson, which says, ``Section 27 comes into force on a day to be fixed by order of the Governor-in-Council.''
Are senators ready for the question?
The Clerk: Senator Bacon?
Senator Bacon: I oppose.
Senator Adams: Yes.
Senator Cochrane: Against.
Senator Dawson: For.
Senator Eyton: Against.
Senator Merchant: For.
Senator Munson: For.
Senator Phalen: For.
Senator Segal: Against.
Senator Tkachuk: Against.
Senator Zimmer: For.
The Clerk: ``Yeas'', 6; ``nays'', 5; abstentions, 0.
The Chairman: The amendment is adopted, on division.
Shall the title carry?
Some Hon. Senators: Carried.
The Chairman: Is it agreed that this bill be adopted, as amended?
Hon. Senators: Agreed.
The Chairman: Does the committee wish to consider appending observations to the report?
Senator Tkachuk: We will deal with the observations.
The Chairman: You have copies of observations. Any comments, honourable senators?
Senator Segal: They accurately reflect many concerns addressed by companies and industry groups that appeared before the committee. We hope they will act as constructive advice to the drafters of the regulations and the officials who will work on the content. Therefore I support them.
Senator Munson: In terms of procedure, the first time I saw this draft was an hour ago.
The Chairman: It is the first time other members have seen it also.
Senator Munson: As a member of the steering committee, this is the first time I have seen this draft. Is that the appropriate procedure?
I am curious.
The last paragraph says, ``While your committee'' —
The Chairman: Senator Munson, you were not in Montreal. We were in Montreal. We worked until the last minute on the observations.
Senator Munson: I understand that. I am a member of three committees.
The Chairman: I hope you understand that too.
Senator Munson: I understand it well. I was also at a funeral for my best friend on Monday, so I am sorry I missed your committee. At the same time, I am a member of three committees and I do pay attention. The last paragraph says, ``While your committee passes this bill without amendment.''
The Chairman: We will correct that.
Senator Munson: What is the process about here? This is what I am doing. I am saying clearly that I agree with the whole part of this draft except for that word. It is on the record.
The Chairman: We will change the first paragraph to, ``with amendments.''
Senator Munson: Thank you.
Senator Eyton: Should the second-last paragraph not be changed as well?
The Chairman: We will correct the paragraph. If you agree, the steering committee will work on amending this last paragraphs, starting with, ``Finally, the House of Commons. . .''
Senator Dawson: I can accept snafus; section 95.3 is one of them. We live with those once in a while.
[Translation]
Not having a French copy, Madam Chairman —
The Chairman: We have just finished the English copy.
Senator Dawson: I understand completely, but if you will allow me, since you scolded me a little, I would like to do the same. First, I am as astonished as my colleague to see that a conclusion has been reached before the meeting is over. I understand that everyone thought that we were going to approve the bill with no discussion, and that we were not going to make an effort to do our work. I am insulted for the additional reason that it was assumed that we were going to pass a bill in this way. I am being put in a position where I must handle it in English in the hope that the French version will arrive shortly.
If we have the time to go and write a French version, Madam Chairman, I am prepared to wait five minutes so that we can write 95.3 in the way this lady wants to write it, and everyone will be happy!
The Chairman: The amendments were submitted this evening. I was not aware that there were amendments.
Senator Dawson: And I was not aware that there was a report saying that the bill passed.
[Translation]
The Chairman: It is normal —
Senator Dawson: If you have the time to translate it —
The Chairman: Can you listen to me? It is normal to make observations when we have observations on a bill. We have made them frequently. However, I was not aware that amendments were going to be submitted, as you did this evening.
Senator Dawson: I submitted them to the clerk of the committee. I thought that was the way things were done.
The Chairman: But you do not do that on the spot. You at least have to advise the Chairman.
[English]
Senator Dawson: I sent them to the clerk today.
Senator Tkachuk: His amendment or yours?
Senator Dawson: I sent them to the clerk today. I did not send them before.
[Translation]
I want this to be clear. If we have the time to get administrative services so that we can write a report during the evening, we should have the time to draft the amendment recommended to us by the Department of Transport.
The Chairman: The clerk tells me that we will not have it before tomorrow morning. It is not done.
Senator Dawson: I will go with the will of the group. It is not a language problem on my part.
[English]
I can live with the observations. Senator Eyton is making a proposal for an amendment. Senator Munson made one. I can live with them. I must reiterate that it should not happen. Maybe the chairman is right. Maybe we should not table the amendments a few hours before the meeting. However, comments are made only in English.
[Translation]
This is in fact a regrettable trend that we are noticing, the fact that French is losing ground. More often than my fair share of times, in order to be understood by this august body, I tend to speak in English in order to make things easier. That way, we end up understanding each other more readily. However, I want it to be duly noted that I agree to the text; the comments are acceptable, but from now on, I feel that these texts should always be tabled in both official languages.
The Chairman: They always have been tabled in both official languages. We went to Montreal on Monday and Tuesday. We had to work very hard to come up with a draft today, and that is the reason why we did not have the time to complete the translation; it is not finished.
Senator Dawson: With respect, Madam Chairman, if this is the time to scold each other, I had the time to prepare my amendments in both languages.
The Chairman: They are little shorter than the observations, Senator Dawson.
[English]
The Chairman: Should we refer this to the steering committee for tomorrow morning and prepare for it?
Hon. Senators: Agreed.
The Chairman: Is it agreed to report the bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
The committee adjourned.