THE STANDING SENATE COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
EVIDENCE
OTTAWA, Wednesday, May 9, 2018
The Standing Senate Committee on Foreign Affairs and International Trade met this day at 4:15 p.m. to study the subject matter of those elements contained in Division 8 of Part 6 of Bill C-74, An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: This is the Standing Senate Committee on Foreign Affairs and International Trade. We are here today to begin our examination of those elements contained in Division 8 of Part 6 of the subject matter of Bill C-74, An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, introduced in the House of Commons on March 27, 2018.
Before we turn to welcoming our witnesses, I’d ask the senators to introduce themselves.
Senator Greene: Stephen Greene, Nova Scotia.
Senator Housakos: Leo Housakos, Quebec.
[Translation]
Senator Massicotte: Paul Massicotte from Quebec.
[English]
Senator Cordy: Jane Cordy from Nova Scotia.
Senator Dawson: Dennis Dawson, Quebec.
The Chair: I’m Raynell Andreychuk from Saskatchewan and the chair of the committee.
We welcome to the committee today, from the Department of Finance Canada, Ms. Michèle Govier, Senior Director, International Trade and Finance Branch; and Ms. Léticia Villeneuve, Economist, Trade Rules, International Trade and Finance Branch.
And from the Canadian International Trade Tribunal, we have Mr. Jean Bédard, Q.C., who we understood was acting chairperson but yesterday was confirmed as chairperson. We welcome you in your new permanent capacity.
As you know, the bells are ringing. We’re obliged to stop approximately 15 minutes before to proceed to the chamber for a vote. If we are efficient, I think we can get the evidence and the questions that we need. So my opening statement is for everyone to be mindful of the bells, and I’m sure we can accomplish our task.
Welcome to the committee. We will start with Ms. Villeneuve. .
Léticia Villeneuve, Economist, Trade Rules, International Trade and Finance Branch, Department of Finance Canada: Thank you.
Division 8 of Part 6 proposes amendments to the Canadian International Trade Tribunal Act, or CITT Act, in relation to the appointment of tribunal members. The CITT is a quasi-judicial tribunal that conducts inquiries and hears appeals on various aspects of trade policy. Its mandate includes conducting injury inquiries for anti-dumping and countervailing duty or safeguard investigations in Canada’s trade remedy system, hearing government procurement complaints related to Canada’s free trade agreements, and adjudicating appeals on customs and excise tax matters.
The tribunal is composed of up to seven members, including a chairperson, who are appointed by the Governor-in-Council for a term of up to five years. As part of Budget 2018, the government announced its intention to amend the CITT Act to ensure that it continues to effectively deliver on its mandate.
[Translation]
Division 8 of Part 6 of the Budget Implementation Act proposes three amendments to the Canadian International Trade Tribunal Act. The first amendment provides for the creation of a vice-chairperson position. The total number of members would still be seven, but that number would now include a chairperson and a vice-chairperson. The second amendment clarifies rules concerning the members’ eligibility for re-appointment. It clarifies that members are eligible to be re-appointed for a second term of office, as per existing rules, whether or not their first term has ended. It also clarifies that a change in the functions to which a member is appointed during a given term of office — a regular member being named a vice-chairperson, for example — does not signal the start of a new mandate. The third amendment clarifies that the vice-chairperson will be able to act as the chairperson, if needed, and provides for the interim replacement of the vice-chairperson. These changes will help provide greater clarity, flexibility and efficiency in the appointment process.
[English]
We’re happy to answer any questions you may have. Thank you.
Jean Bédard, Q.C., Chairperson, Canadian International Trade Tribunal: Thank you, Madam Chairperson. I wish to complement what you have been told. I will not go back to the details of what these amendments are all about.
[Translation]
I would just like to mention that, indeed, in the last two years, when I was acting chairperson, under the current system, we had on two occasions to resort to ministerial orders and on two occasions to orders in council in order to continue the functions of the acting president at that time.
[English]
The amendments that will create the position of the vice-chair of the tribunal will clearly establish who will be the acting chairperson in the event of the absence or the end of a term of the chairperson. This will definitely make things much simpler within the tribunal.
Second, as was mentioned —
[Translation]
…the other important amendment clarifies the fact that the members can have their term renewed, even when the first one has expired. At the moment, a technicality in the act means that, if a term is not renewed before, or as, it expires, it is far from certain that renewal will be possible. This will give the government more flexibility to make appointments, and will let qualified people who have already had a term on the tribunal have a second one. That flexibility will be good for the government, given the experience we have.
[English]
I am also available to answer questions.
The Chair: That was certainly brisk and to the point.
Were these amendments as a result of the experience you’ve had in the past couple of years? Did you recommend them to the government in some conversations or consultations? Is that how this came about?
Mr. Bédard: I had no input into the amendments themselves. As I told you in my opening remarks, it turns out that they certainly fulfill a need. I think that the people in the government — and I’ll let people from the department speak to it — saw the issues that I may have identified.
Michèle Govier, Senior Director, International Trade and Finance Branch, Department of Finance Canada: Yes, I would say it was the result of certain concerns that had arisen over the years concerning the members’ appointment process and identifying improvements that could have been made.
[Translation]
Senator Massicotte: Thank you for being here. These are not a lot of amendments. It might even be said that it is easy to be in agreement when things are logical. After so many years, why the need to appoint a vice-chairperson to the tribunal? Did something happen? Has the lack of one caused a delay in the tribunal’s decision-making? Was someone absent? What is the motivation behind these amendments?
[English]
Ms. Govier: It really wasn’t related to a particular incident that occurred where there was a gap in service, for example, or where it was unclear how an acting chair would be fulfilled.
I would note two things. First of all, there were two vice-chairperson positions in the past that were eliminated as a result of a decision in 2011 as a cost-saving measure. It was recognized in the past that the role of chairperson could be one that is useful for the tribunal.
It was really just looking at the structure that there could be instances, for example, if the chair is absent for a prolonged period, it would be better to have a person who is clearly identified as the person in line who would fulfill that role if needed.
I’ll let Mr. Bédard speak to it -- this is more speculative -- but there might be other administrative functions within the tribunal where it would be helpful to have a second in command able to take on some of that work.
[Translation]
Senator Massicotte: You are saying that, in 2011, two vice-chairpersons were removed. Logically, something must have happened for people to say: “Oh, we made a mistake, let’s correct it, let’s add a person.” We do not create bills for the sake of it. They are created for reasons that I assume to be important. Do you have any comments on that, Mr. Bédard?
Mr. Bédard: First, no one is being added. There are still seven positions. Now, instead of having one chairperson and six members, there will be a chairperson, a vice-chairperson, and five members. As I said earlier, I was not part of the decision and I was not consulted. However, I must admit that, for the tribunal, having a line of succession in the case of the resignation or the prolonged absence of the chairperson would make things easier compared to what we experienced when the previous chairperson left and when we had to get permission from the minister.
Knowing from the outset who the acting chairperson will be will help to remove internal uncertainty. That said, I would like to stress that everything was done in a clear and harmonious way. Service was not interrupted in the two years when I was acting chairperson. However, it took two orders in council and two ministerial orders for the process to continue, and that was not necessary.
Senator Massicotte: Ms. Govier, you said that, in 2011, the two vice-chairperson positions were abolished for financial reasons. According to Mr. Bédard’s clarification, we are not talking about two additional people; there are still seven people. Two of them were vice-chairpersons, and those positions were abolished. You talked about cost-cutting measures. Were costs really cut?
Ms. Govier: Yes, but the cuts were very small. They were part of the deficit reduction measures.
Senator Massicotte: So we are giving titles to people who are already members of the tribunal.
Ms. Govier: Yes, but only the vice-chairperson goes up in level. There is a difference, but not a big one.
Senator Massicotte: Thank you.
[English]
Senator Cordy: The former permanent member of the CITT can be reappointed as a permanent member for an additional five-year term. Is that just one additional five-year term? Is there a maximum that board members or CITT members can sit?
Ms. Govier: There is a maximum of 10 years in total that a CITT member can sit. If they are five-year terms, it would be two five-year terms.
Senator Cordy: When you were explaining it, it seemed like it was just a little blip to clarify so that if your term had actually expired on Friday, you couldn’t be appointed on Monday.
What happens if somebody has had their 10-year term and then a year later it is decided they want them back on the tribunal, or is it maximum 10 years?
Ms. Govier: In terms of the permanent members of the tribunal, there is a hard maximum of 10 years. There are provisions in the act to allow a transition period. For example, if the member is working on an existing case, there is a transition time to allow them to complete their work.
There is the possibility of former members being appointed as temporary members. The law also provides that if workloads require, temporary members could be appointed. That would be the only circumstance where they would be potentially brought back.
The Chair: One final question. Do you look at other tribunals doing like jobs? Is there some sort of constant scrutiny from the government to see that we are in an updated position, not necessarily about these amendments? What is the background?
Ms. Govier: I want to make sure I understand the question. Are you asking whether we do an overview of different tribunals to make sure that all of them are effectively able to ensure that members are appointed?
The Chair: That could be one question.
The one I was asking is Canada has a caseload and we have a new chair there. What I want to know is to check — which would be your job, not Mr. Bédard’s job — that our structures are as developed and as appropriate for this time as they may have been in the past.
Ms. Govier: That is a good question. The caseloads and the nature of the work could change over time. Certainly there were previous periods that were very busy. There were other times not as much, I would say. Mr. Bédard can confirm that this is a busy year. There are flexibilities in the law as noted with the ability to appoint temporary members. Certainly I would say that Mr. Bédard, in his role, would keep the Department of Finance informed if there were any resource concerns or if any flexibility needed to be used. That’s his responsibility to make sure that the CITT can fulfill all of its mandates.
The Chair: I see no other senators wishing to ask questions. My admonition at the start to be very quick has turned out.
It wasn’t an invitation, Senator Massicotte, but if you wish to put a question, please.
Senator Massicotte: We’re going to have some witnesses on this legislation. For you, it seems like a slam dunk; there’s nothing there. But what would the critics say? What would their concern be with this? What if somebody could argue that you’re making a mistake or here is why you are doing it and they don’t agree?What is the possible negative?
Ms. Govier: I have to say, as part of our process in preparing for these, we do try to think about what the criticisms could be. On this one, it was difficult to come up with. I honestly don’t know. It is fairly straightforward, and I think from a logical perspective people can see the value in some of these clarifications.
Senator Massicotte: So all of your stakeholders are in agreement?
Ms. Govier: I’m not aware of any that are in disagreement. We have some active users of the trade remedy system, which is one of the important rules of the CITT. They are quite vocal when they have concerns, and they have not been vocal on this one.
The Chair: Thank you to the witnesses. We approached other witnesses and most declined and agreed with you. I do not think they need to appear tomorrow. Should something come out from other witnesses, we may have to approach you again.
Thank you for coming forward and efficiently laying out the parameters of what is happening with this in Bill C-74, the budget implementation bill.
(The committee adjourned.)