Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce
Issue No. 14 - Evidence - February 16, 2017
OTTAWA, Thursday, February 16, 2017
The Standing Senate Committee on Banking, Trade and Commerce, to which was referred Bill S-224, An Act respecting payments made under construction contracts, met this day at 10:30 a.m. to give clause-by-clause consideration to the bill.
Senator David Tkachuk (Chair) in the chair.
[English]
The Chair: Today the item of business on our agenda is clause-by-clause of Bill S-224.
Good morning and welcome, colleagues and members of the general public who are following today's proceedings of the Standing Senate Committee on Banking, Trade and Commerce, either here in the room or listening via the Web.
My name is David Tkachuk and I'm chair of this committee.
Today we're continuing our examination of Bill S-224, An Act respecting payments made under construction contracts. The bill was read the first time in the Senate on April 13, 2016 and referred to our committee on November 28.
Honourable senators, as you know, we've held four meetings and heard from a variety of witnesses — 24, to be exact — about this proposed legislation. We have also received a number of written submissions. We are now at the stage where we will begin going through the bill clause by clause. Before we do this, I would like to remind senators of a few points in terms of the mechanics of the process.
When more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause.
Some amendments that are moved may have consequential effects on other parts of the bill. We will endeavour to keep track of these places where subsequent amendments need to be moved and will draw your attention to them if necessary.
Although no notice is required to move amendments, I would like to thank the bill's sponsor, Senator Plett, for providing committee members with advance copies of his 10 amendments. Should further amendments be moved this morning with no notice, please keep in mind that there may be no preliminary analysis of the amendments. So, if any member wishes to propose an amendment, please allow your colleagues and our staff sufficient time to review them before opening the floor for debate.
Senator Plett has told me that some of the amendments are more like housekeeping items and some of them are of more substance, and he will speak to each one of them that he's wishing to make.
I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results. Senators are aware that any tied vote negates the notion in question.
Are there any questions on any of the above?
Senator Massicotte: Before we get involved with the procedures, if it is permitted, I would personally appreciate a discussion amongst ourselves about how we feel about the bill as amended in a generic sense and see where it takes us from there. I think it would probably be more productive.
The Chair: I'm not sure. This is our agenda item, Senator Massicotte.
Senator Massicotte: But I'm asking agreement of the committee to have a discussion about where we are with the bill, how we feel about it and, if we support the concept of the bill, in what sense would it be favourable to the bill.
The Chair: That's why we have clause-by-clause. Any time you have a problem with part of the bill, you can bring that up in public as we go through clause-by-clause.
Senator Massicotte: I would have liked a discussion about the nature of the bill and where we're going.
Senator Black: I would very much support that — a general conversation. Then we can get into the details.
The Chair: We've had — what did I say, how many witnesses have we had here? The Senate has voted on the principle of the bill. We're now here to do the clause-by-clause. I don't mind people discussing the bill. This is a perfect opportunity to do that, and it's public. I say we proceed with the bill and we'll do clause-by-clause. As the chair, I'll announce if it's carried or defeated.
Shall the title stand postponed?
Senator Black: Before we do that, in responding to your invitation for general comments in advance, I'm going to make some general comments before we get into it.
I think Senator Massicotte's suggestion was constructive and that we could have a view. Because, as you were going to point out, we've heard from a lot of witnesses and it's complicated. It's complicated, and I think that the committee could usefully have a conversation about where we are with it. But you're the chairman, and if you wish to move ahead with clause-by-clause, I respect that.
But I would observe a couple of things. The first thing is that the intent of the bill is admirable. There's no doubt there is a problem, widely agreed, about prompt payment that has to be addressed. That's not the issue here. That's my view, and we've heard that from everyone else, and Senator Plett is to be commended for bringing this matter forward, because it's an important matter. The question is: Is this the most effective tool to get it done?
I would observe that the constitutionality of this bill has been questioned. That's relevant: The constitutionality of the bill has been questioned.
The second thing is we have heard from the general contractors, and I'm sure everyone has now had an opportunity to review the letters that have been filed. Not having had the advantage of Senator Plett's conversations around his proposed amendments, there's no doubt that the contracting community of Canada is opposed to this bill. There's just no doubt about that.
The Chair: We had testimony to that effect?
Senator Black: We've heard from Aecon. That was pretty clear.
The Chair: What I'm going to do, Senator Black, if you don't mind, is I'm going to go to the first item: Is it agreed that the committee to clause-by-clause consideration of Bill S-224, An Act respecting payments made under construction contracts?
Some Hon. Senators: Agreed.
The Chair: I'm going to go to that. You can talk to this.
Senator Black: You're cutting me off.
The Chair: I'm not cutting you off. I'm saying you have an opportunity to discuss it under this item. I'm asking if it is agreed. All in favour?
Hon. Senators: Agreed.
The Chair: All opposed? Okay, continue.
Senator Black: Mr. Chairman, I think we all can disagree without being disagreeable, and that's what I think is very important to do. We're just trying to make points here because we want the best result for Canadians.
And then, I would observe that in Ontario, we heard from the Reynolds folks yesterday, and their work is commended across the sector, whether it's the contractors, the general contractors or, it appears, government. We should pay careful attention to the fact that they're drafting legislation that they feel is going to address the very problem that we're trying to address. I'm just not so sure why we wouldn't pause and why we wouldn't wait to see what Ontario does, and if we need to do something further, we do it. But it puts the Senate in the position, I believe, of looking informed and constructive as opposed to getting out over our skis.
So if we move ahead, I'm going to propose that we do a couple of observations to this around constitutionality and around my view that we should pause. That's not in any way to take away from the importance of the issue or Senator Plett's good work on this, and it is good work. But, as senators, I think that we need to be a little more considered here. That's it. Thank you, Mr. Chairman.
The Chair: Anybody else?
Senator Plett: Just in response to what Senator Black says about Reynolds and about general contractors, the fact of the matter is, I think — and I don't want to put words in his mouth — he said something with regard to the contracting community in Canada not supportive of this. I think he said something along that line.
Senator Black: General contractors, as we see from the letters, Senator Plett.
Senator Plett: As we see from the letters. And if we have read the letters, their reason is pretty much the same across the board. They say they should not be obligated to pay disputed work. That's pretty much the general tone.
One of them even referred to the fact that it would bring people that supply nails into this, and of course that isn't true. One of the reasons that the trades have brought this up to us is because they in fact need to pay their suppliers ahead of them being paid for their work, which would be somebody that supplies nails. So why that particular general contractor would want to use something as ludicrous as somebody who supplies nails would be included in this.
Nevertheless, the general concept of the general contractor's complaints was disputed work. That of course is clearly being addressed in the bill with the requirement for certified work. Certified work is not disputed work. Certified work is work that everybody agrees has been done. That's the only thing that would need to be paid.
The Reynolds report: The Reynolds folks were here yesterday. Once we go through the amendments, you will see that a number of the amendments, and it might even be half of them, are as a result of the Reynolds report. This legislation was in fact tabled before the Reynolds report ever came out. We saw the merits of the many of things Reynolds had, and so we have introduced amendments. The most significant one is as a result of not only the Reynolds report but Senator Ringuette raising this, and that was about adjudication. We heard from them last night and they supported what we were doing in regards to the adjudication.
So we cannot use Reynolds as a reason for us holding off. Reynolds was quite clear that they had read the bill and in essence they agreed that prompt payment needed to be there. Us enacting a bill with prompt payment in no way negates any province. This is what other countries have done. The federal government started and then the states or the provinces followed suit. That, in essence, is what we are trying to do here.
The last item, chair, constitutionality: We had people here who are supposedly constitutional experts when Justice officials came, and the best they could do is say it's questionable. Then we had somebody who has argued in front of the Supreme Court 100 times, 50 of them on constitutional issues, who said in his opinion it was constitutional.
Now, we've all been in different committees, and I've been on Legal and Constitutional Affairs for about four years. In the four years that I've been there, I don't think we ever received a bill that somebody wasn't in there arguing the constitutionality of that. Anybody who sat in any meetings with Legal and Constitutional Affairs would agree that on every piece of legislation that comes before that committee, there will be lawyers there arguing the constitutionality of that. That's why people go to the Supreme Court to question the constitutionality.
So although we are obligated to give things sober second thought and not frivolously pass legislation, there will be those that will determine whether this bill is constitutional. If this bill should pass the Senate and then subsequently pass the house, there will be people there. Certainly, if it passes the Senate, it will be in the house. We have passed legislation, colleagues, and I won't use them, that is a lot more questionable than this one. But in any event, the opportunity will be given.
So I think I've addressed the three items that Senator Black raised, and I certainly would support moving ahead. If Senator Black wants to put observations in at the end, of course he has that right.
Senator Wallin: I want to come back to the constitutionality thing, Senator Plett, because it really raised a question in my mind. I read Mr. Chipeur's evidence and he was very direct and his argument was laid out and that was all clear. The Justice Department lawyers were in a bit of a different bind, as he would have been if we had asked him about a specific case, because he said clearly he was in the middle of fighting one of those and for client privilege he obviously couldn't discuss it. The Justice lawyers, as I heard it, said the same thing. What I heard them doing was putting up a little wall poster saying, "This would be a legitimate policy concern/consideration for the Government of Canada to go ahead with this legislation because we believe it's challengeable.'' They said 55 times they couldn't say much more because of the issue of privilege, which obviously they're giving advice on this at this moment. But to me, that raised a huge red flag, which is why would we put forward legislation that the Justice Department has tried to explain to us might well be considered unconstitutional?
I'd just like to take a step back and say: Okay, can we look at that for another 30 seconds before we jump in here? I don't think it serves any of us to put forward legislation that's flawed in some way, because it consumes a huge amount of time if it's rejected and comes back and we go through that whole process. But I just think that even yesterday, if we had been able to hear them in a different order, it would have helped me clarify because I would have liked to hear the Justice lawyers react to Mr. Chipeur as opposed to vice versa, because his was pretty straightforward. I have a question mark there and I'm wondering if you do.
Senator Plett: No. I'm sorry. Were you asking me a question?
Senator Wallin: It's okay.
The Chair: Senator Ringuette.
It's an unusual situation. We have a member of the committee who is also a sponsor of the bill, so I'm going to try and keep this discussion as by committee.
Senator Ringuette: I would like us to understand that there is a difference between the down-the-road coming Ontario legislation. On the scope of that legislation, which will be for private and public sector throughout the Ontarian territory and is a completely different scope than what we're looking at with this bill, there is a growing concern and it will keep on growing.
If you look at the slate of letters that we got from different contractors, for instance, Pomerleau, office in Saint-Georges, Quebec; Montreal, Quebec; Levis, Quebec; Ottawa, Ontario; Bedford, Nova Scotia; Toronto, Ontario; St. John's, Newfoundland; Calgary, Alberta; Surrey, B.C., et cetera. Then you also have to look at Bird Construction, St. John's, Newfoundland; Halifax; Nova Scotia; St. John, New Brunswick; Wabash, Ontario; Montreal, Quebec; Toronto, Ontario; Winnipeg, Manitoba; Calgary, Alberta; Edmonton, Alberta; St. Albert; Alberta and Vancouver, B.C.
That scenario has been happening particularly over the last 20 years, where the big, major contractors are getting bigger and bigger and more powerful in regard to specifically how they deal with the slate of subcontractors and the relative power between these two groups.
Honestly, constitutionally, from my perspective, from the questions and the answers we heard yesterday, I tend to be of the view of the private sector lawyer who was before us simply because you will remember, not too many years ago, in regard to Bill C-377, the Department of Justice said that it was constitutional, while everyone else was saying the contrary.
I believe this federation has a shared jurisdiction, and the legislation in front of us applies to federal contracts for federally owned land. I would like to add to that. We know the dynamics.
But, all things considered, this is a good piece of legislation for the subcontractors, to try to bring some balance and have these people paid. That's my two cents' worth, and I appreciate, Senator Plett, that you've taken into consideration the very important scenario of adjudication. It has to be the first item to resolve the payment issue. So I thank you for taking that into consideration. That's my two cents' worth.
Senator Massicotte: I'm trying to be helpful because I agree with the objective of the legislation. The difficulty I have — and I'll tell you where I sit — is that the problem is that, when we do clause-by-clause, you'll find me voting against many clauses. I'll tell you where I sit.
I'm very much in agreement with the Ontario report that we should not be infringing upon the rights of two parties, being the GC, or the owner, and the subcontractor, to negotiate market terms. Therefore, there are some clauses in here where we sort of force agreement. If you look at the Ontario report, they basically start from the time an invoice is remitted. This sort of goes before then. It sort of defines how much time they have to submit an invoice, and I don't like that part.
From the time a decision is made — I think you've changed the time frames. I must admit that there are so many amendments, and I asked yesterday. I would have loved to see a new bill showing all of the amendments to make sure that I understand it right, and I'm not sure I do.
I'm much in favour, though, of adjudication, and I would emphasize that a lot. You've made some amendments. Maybe they're there. I'm not 100 per cent sure I understand all of the amendments. So that's where I'm at.
I would certainly disagree vehemently with allowing a sub-trade to walk off the job because he didn't get paid, without concluding the adjudication process because, in real life — Don, you know this, and I've seen this many times — the person who wins the contract thinks he won, but he often lost, usually because he made the mistake of his price being too low. If you give him half a chance to walk off, he'll walk off quickly, and you'll see that constantly. It should only occur after they really exhaust the adjudication process because these jobs — look at the construction on our Senate buildings — take forever. Imagine if subcontractors were walking off every week; it would never be complete. And the taxpayer would pay for it.
So I'm not sure the amendments satisfy that. If they did, I would be in favour. I share Senator Black's and Senator Wallin's comments re the constitutionality, but it would probably not stop me from supporting a bill if it satisfied what I just said. But I don't think it does.
The Chair: Anybody else?
Senator Greene: I would support an observation on the constitutionality of the bill.
The Chair: As you know, at the end of clause-by-clause, I would ask, as most chairmen do, if it is the wish of the committee to submit observations along with the bill.
We have a little bit of an issue here. We have to do the Senate's business. The Senate has referred the bill to us. We've heard all of the witnesses. I've got no more witnesses at the clerk's table. There are no more witnesses. We are kind of finished that. We have no other business. This is the business in front of us. We have to deal with it.
Steering met last week and decided that this was going to be clause-by-clause. The decision was made. I told everybody that, and now we're here doing clause-by-clause. So we can have a debate here, but that debate should be at third reading in the Senate, and you can make your points and do whatever. But we have to attend to the business.
If you don't want to vote for a clause, don't vote for the clause. But remember, we could defeat the bill here. If you want to do that, that's your privilege to do it. It doesn't happen that often; I have to say that.
Senator Greene: I think one of the problems I'm having — and I suspect other people are too — is that we have a lot of new amendments that we only got yesterday. Senator Massicotte's suggestion would be nice, to see them all in a bill to see how the parts played off against each other.
The Chair: What if the committee decides not to have an amendment? They may vote against the amendment and leave it the way it is.
Senator Greene: That's true.
The Chair: You can't prejudge that without a vote. The Senate has sent this bill over here.
Senator Greene: It's difficult to assess a single clause when you have other clauses in relation to it in the process of amendment.
The Chair: Okay. I got it, Senator Greene.
Senator Campbell: Just briefly, we haven't even had time to take a look at these amendments in the context of the whole bill. That's my problem. I'm not trying to delay this bill, and I don't know what would happen if we went away and had a chance to put these all together or got a document that put them actually into the shape of a bill where we would see how they would fit. I don't see that there's a huge time constraint on this bill. It's not like if we don't do it today — I would rather do the bill here and send it to the Senate. I'm not big on defeating bills in committee, quite frankly. I think it takes away from the Senate. But I think, if we're going to do proper observations, they have to be made in the context of amendments that we didn't see until yesterday. I'm prepared to go any way the committee wants, but I don't know what the rush is when we consider the issues that a lot of senators have on this.
The Chair: Senator Campbell, I'm in no rush whatsoever. I want you to know that.
Senator Campbell: That was not meant as a criticism, chair, please.
The Chair: I just want to work. We go to each clause. We'll have lots of time for discussion on each clause. If there's an amendment moved, I'm not about to curtail debate on a discussion on the amendment. That's not why we sit as a committee. So if we don't finish today, we don't finish. Then we finish as soon as we get back. But to not start doesn't seem to make any sense to me. It seems that we have to proceed with the business, and we have two hours. You can do a lot. We can have a lot of discussion in two hours; we could fall asleep.
Senator Massicotte: I share Senator Campbell's thought, and I say this to Senator Plett: Frankly, I'm quite convinced that, if you force the vote now, even I would probably vote against things maybe in error, not fully understanding the amendments. I'm okay with that game, but, if the objective is to pass the bill and get as much consensus as we can, additional time would help me, anyway, because you're going to find that I'm scared. Some clauses I'm reading quickly, reading this or that. I'm going to vote against them because I'm not sure. But if there were time and if there were a presentation made by Senator Plett to do a bit like they did yesterday, saying, "Here's what I'm proposing'' — The time starts invoice. How much time have you got to respond to the invoice? Is it 25 to 30? If somebody described to me again, in a generic sense, what is being proposed with the amendments, maybe I'm onside. But, at this point, I don't know if I am. I'm scared that I'm not, so I'm going to vote against a lot of stuff. Maybe it's a misunderstanding on my part. So more time, a revised bill showing what it looks like, along with a presentation of what these amendments provide for would maybe solve my problem.
Senator Enverga: I read it yesterday. I heard it loud and clear about the discussions with our lawyers and definitely our Justice lawyers. It doesn't have anything; it's just neutral there. It's just an assumption for him. However, the other lawyer was so direct and so concise, and he's so sure about that, almost sure about it.
At the same time, I also read the written submissions, and, if you look at it, those are the general contractors. This bill is about protecting our subcontractors, the thousands and thousands of our workers, the people who really work for the construction. So that's why I say that, if we delay this, it's going to be against those people, the small people. That's my two cents' worth here.
Senator Plett: The comment was made about what our rush is. Yesterday, in the chamber, people were talking again about people delaying legislation. So one minute we're talking about delaying legislation; the next minute we're talking about what the rush is. This legislation has been in the chamber; it was introduced in April. I wouldn't think that's exactly rushing through this. I have senators, right now, who are arguing for delaying, arguing that they want to put observations in, that came to me and said, "This is good legislation, and I'm going to support it.'' Today, they're saying, "I don't know whether we're going to support it.'' I find it very strange that that would happen. We have heard witness after witness after witness saying that something needs to be done, that, as Senator Enverga is saying, contractors are going broke. Then we have people just flippantly saying, "What's the rush?''
We have passed legislation — and I don't want to name the legislation — that is so much more flawed than this, and yet we just flippantly pass it and say let the other guys deal with it. Well, the other guys will deal with this legislation as well. If this is not constitutional, this is not passing the house. This is a private member's bill that is starting here. They will look at it over there and they will decide what they want to do with it.
Chair, clearly — and I say this with respect even though it may not sound like it — I am being held to ransom here today, with people saying they are going to vote against this if we do it today. In that spirit, I am going to suggest that we wait until after the break and we will do what has been asked. I have an explanation for every bill. Every concern that has been raised here has been dealt with in one way or another. The Reynolds issues have been dealt with; the general contractors that witnessed here have been dealt with. They have dealt with the lawyers that drafted the bill and they have satisfied their concerns.
Chair, I'm not going to take the risk of having people here vote against this because they feel they haven't been able to see it. I have an explanation for every amendment that I am proposing. Most of them deal around the issues that Senator Massicotte has raised and Senator Wallin has raised. Yet, they suggest that it's too much to read in one day. Well, maybe it is. If that's the case, chair, rather than taking a risk here, I'm going to suggest as well that we wait until we come back after the break. Hopefully, we can go to clause by clause at that time.
Senator Campbell: First of all, I believe we should take Senator Plett up on his offer that we take this up when we have time to study it.
I find it rich, Senator Plett, quite frankly, that you are accusing us of holding up your bill when you're doing exactly the same thing on another bill in the Senate. I wouldn't hold this bill up at committee. I just find it over the top that you think you're being persecuted on this when in fact you do exactly the same thing without expecting any ramifications whatsoever.
My suggestion is that we adjourn this meeting and we take this up after we've had a chance to take a look at it and put it into a document that we can understand.
I'm not voting against it. I don't think that's my position. I think the position to vote against it is at third reading. But as for us going forward without having all of the facts, well, I have huge respect for Senator Massicotte, and if he says he can't understand it, then we've got some difficulties.
Senator MacDonald: I want to make one point to my colleagues. I'm not as well versed in this as you all are around the table. The one thing I grow weary with in the Senate and in the committee are these constant references to the constitutionality of a bill.
We are not an appeals court. We don't have appellate jurisdiction. That's what the court is for. I only ask my colleagues, if they're going to oppose or support the bill, to make reasoned arguments. I find when the constitutionality argument is put forward, it's not really an argument; it's just a catchall phrase for someone who can't make an argument. I would encourage to us stick to the facts and stay away from the constitutional arguments.
Senator Ringuette: Do I understand correctly what Senator Plett is proposing regarding the current bill? That is, for the purposes of us understanding the implication of the slate of proposed amendments, either Senator Plett's office or our researcher could, as soon as possible, take the bill as it is currently drafted and integrate to some extent, with the blackline process, what the proposed amendments would look like within the bill so that we can move forward and understand?
I understand your concern, Senator Massicotte, in how all of these are going, and I appreciate that we may have the time to properly do this. I don't think that technically it's that complicated.
The Chair: I don't think so either.
Senator Wetston: Chair, forgive me for this comment, but as a Federal Court judge, I sat on four constitutional cases. Three of them went to the Supreme Court of Canada. Three of them were charter cases — actually four — one was a section 91, 92 case. They were the most difficult cases I decided except for the refugee cases, which were more difficult because the hardest decision was to send people back to countries where you knew they might be persecuted.
I'm only going to make this comment: We heard witnesses on the constitutional side. I accept the fact that they're professionals. I know Mr. Davis — I haven't seen him in many years. I don't know Mr. Chipeur, but I heard what he had to say. They talked about precedents in the Supreme Court and about what the Supreme Court may or may not accept. Frankly, from my perspective, I think you need to understand that the Supreme Court of Canada may have a very different view of the opinions of both of those gentlemen. That certainly has occurred with me, and it's occurred with much in the way of constitutional litigation. For me to be able to step back and say I accept the opinions of both and decide whether it's constitutional or not, I cannot do that on what I have heard.
My point here is this: The constitutional issue can be considered, in a way, to be something that we should be mindful of but, frankly, it is beyond our capacity as a committee to be able to determine whether or not this bill is constitutional. I certainly can't do that, and I've had a lot of experience on constitutional law, like many other experts in this area.
My point here, chairman, is that for me, the constitutional issue is far from merely a red herring. Believe me. But it's not something that's going to distract me from considering the merits of the bill and how we should deal with the bill. We all agree it's laudable in what it's attempting to achieve.
The questions that I asked of the constitutional experts were for a particular purpose. I didn't get an answer to what I was asking.
I made some comments about the Ontario bill because if the Ontario bill does go forward, it's better than nothing. It will help. It's certainly not something I'm hearing this committee say is a bad thing, obviously, for the industry, but it's not national.
I'm going to give you one example, if I may. I was an advocate in the Ontario government of supporting a national securities commission. I did it on behalf of the government. They asked me to support the initiative. I worked a bit with the constitutional advisers. We filed our brief in the Supreme Court of Canada. Many others filed their briefs in the Supreme Court of Canada on the constitutional issues. The Department of Justice gave a number of opinions on the constitutionality of a national securities commission. Guess what? The Supreme Court didn't agree. Many highly qualified constitutional experts — and, by the way, these constitutional experts were the most notable experts in the country on constitutional law — gave their opinions, but the Supreme Court did not agree. Only Ontario supported the national securities commission in the Supreme Court.
What is my point here? We have to step aside and understand that there may be issues constitutionally but that's not going to be the reason that I would not support this bill or believe that we should move forward with this bill because I truly believe, having sat on these cases, how challenging and difficult it is to make a decision on the constitutionality of a provision based on the Charter or 91, 92 of the act.
Chairman, I really feel that I need to step aside from the constitutional argument. I accept what they've said; they are both professionals. However, I have a lot to think about before I would say I agree with either individual about constitutionality or the lack thereof.
Senator Massicotte: I want to make it very clear. I gather there's a motion on the floor to delay it until we come back —
The Chair: There's not a motion yet.
Senator Massicotte: I would second Senator Plett's motion.
The Chair: He hasn't moved the motion.
Senator Massicotte: Having said that, I would move the motion. To make sure there's no misunderstanding, what I'd also like to see personally when we come back is not only in a revised bill black line, but it would also be handy if somebody knowledgeable and independent would describe to us the revised bill and what it means from a working and mechanical point of view. Because we can read the law, but I wouldn't mind hearing, "Here is what happens, here is the process and here is what this revised bill is doing for us.''
The Chair: Senator Massicotte, we can't make a new bill.
Senator Massicotte: I'm not talking about a new bill. I am saying take the amendments being proposed and we black line it and see the changes. I wouldn't mind someone knowledgeable in construction industry presenting to us in 5 or 10 minutes in a knowledgeable and independent way the process. It is common sense. You file an invoice, you get X number of days, and here is the consequence of the proposed bill. It's not a new bill. Just to ensure I understand exactly what this bill is doing. I would prefer —
The Chair: We did have a contractor here and we did have subcontractors here.
Senator Massicotte: The people from Ontario summarized for us very well yesterday what they're doing, which I kind of like. I'm asking, if possible, that somebody do the same with the proposed bill, as amended. I wouldn't mind getting that summary: The chain starts with the invoice, and in our case it starts a bit before. We basically force an invoice. I wouldn't mind hearing that you have 30 days to pay, and if you don't pay, you go to adjudication. How long to adjudication? Just tell me what the consequences are in an English way that's simple.
The Chair: I just want to deal with the bill. We've got an offer from Senator Plett to allow everyone to do their own independent study and their own work. You have 10 days. You can consult, Senator Massicotte, any number of experts that you want during that time. You have the amendments in front of you, and you have the bill.
What I would like is everyone to agree — so we don't have to go through this again — that on the Wednesday that we return, at 4:15, we do clause-by-clause. Do I have an agreement for that?
Senator Ringuette: Does that include the blackout scenario that I proposed to enhance our understanding?
The Chair: Yes, we'll have the documents here and we'll do clause-by-clause. You have 13 days to study the bill.
Senator Greene: Can we have a presentation from Senator Plett and Senator Ringuette on that Wednesday to describe from their point of view the impact of the amendments?
Senator Plett: That was going to happen today. I will explain every amendment, Senator Greene. I have the explanation and the impact that I was going to explain at clause-by-clause today. Certainly, I will do that whenever we come back.
Chair, I'm not agreeing to calling any more witnesses, as Senator Massicotte is saying. That's been done, colleagues.
Senator Wallin: I'm not sure that Senator Massicotte is asking for more witnesses and that we re-open this. I think he's suggesting that we have a couple of people, whether that's you as the proposer of the bill, but maybe a general contractor or some other person, and it could be an in-camera session. It is so that when we look at it and say that it be amended and "milestone'' means a portion of the construction work, and we look at someone and ask whether that is reasonable and how it's done and is "milestone'' the right word. I'm just making stuff up. It is so that we have someone to bounce this off of.
Senator Black: I agree with that. I would suggest that we recall — and it can be on an in-camera basis — that chap from Yonni Fushman. I found him extremely articulate and practical.
The Chair: So we want to bring back the witnesses; is that what you're saying?
Senator Greene: No, I'm not saying that. I'm saying we now have an amended bill.
The Chair: We don't have an amended bill. We have the bill.
Senator Greene: We have the bill that we're going to make amendments on and we're going to discuss.
The gentleman before was very helpful in understanding the bill as it existed. We're going to have an amended bill. I'd like to hear him again because he was very frank, clear and crisp.
Senator Day: Senator Plett has indicated that you have an explanation of each one of these. It would be very helpful for me, in reviewing your 10 amendments, if we could have your explanation before we return here.
The Chair: Do we want to do it right now?
Senator Day: I wouldn't mind having an opportunity to consider it. There are 10 of them. There is not just one.
The Chair: Do you want him to go through it?
Senator Day: No, I would like to have a copy of what he has indicated he has. He said he has an explanation for each.
The Chair: I know what you want, Senator Massicotte. I just find this very unusual because normally, in all the years I've been here, if I wanted to know something, I went and studied it myself. I figured it out, and I came here as a senator and I gave it my best shot. I didn't have an arbitrator decide for me what a particular amendment meant.
I'd like to have a decision here that we go to clause-by-clause the Wednesday following our return. Just tell me "yes'' or "no,'' and then we know where we're going.
Senator Plett: May I please address Senator Day's question, maybe to bring this to a close: First of all, I talked to the law clerk. He cannot, apparently, do entirely what Senator Black is asking for. We will make an effort in our office to do something along those lines. I know Jennifer is cringing, but we will make an effort in our office to do something along those lines.
I will send Senator Day the explanation for every amendment.
Senator Day: Thank you.
Senator Plett: I, with that, colleagues, expect cooperation that when we come back we do clause-by-clause. We're not calling Fushman back. He was a witness that was opposed to the bill. Then are we going to call people back in camera that were supportive of the bill? This is beyond the pale.
I will do that, colleagues. I will sit there, here, wherever and explain every bill. I'm the sponsor of the bill, and I will do my level best to explain it. We've had people explain it, and we've had lawyers here. If we want to call witnesses again, then let's open it up again. Let's not beat around the bush. Let's just open it up again and call more witnesses.
I think I've made a reasonable offer by sending the explanation out on every amendment. It gives you time. As Senator Tkachuk has said, you can call people. You can call my office. I'm happy to talk to you about each and every one of these amendments and what they do and why they do that. I will give you the number for Geza Banfai, the lawyer that was here. He will explain that to you, if that's the information you want.
But when we come back, colleagues, I would like on the record agreement that we go to clause-by-clause. If you can't vote for the bill then, then don't vote for the bill.
The Chair: Do we have agreement to go to clause-by-clause on our return?
Senator Massicotte: I can't be here that Wednesday, but I'm not suggesting we delay it for me. I want to be upfront that I'm not here that Wednesday.
The Chair: Then you should have a substitution. As long as I have a quorum, we have a meeting that Wednesday. Are we all agreed on that? Is there anyone who doesn't want clause-by-clause?
Senator Black: I hear Senator Massicotte can't be here Wednesday, I can't be here Wednesday, and I understand Senator Wetston can't be here Wednesday. Why wouldn't we do it the following Tuesday or whenever we meet?
The Chair: The Banking Committee meets on our return Wednesday and then it meets Thursday.
Do I have agreement that we do clause-by-clause next Wednesday? If you can't come, get a substitute. This should be a very unusual —
Senator Campbell: Can I suggest we do it on the Thursday?
The Chair: This is unheard of. I'm going to take it to a vote.
We're doing a roll call. The clerk is going to call it. I'm really trying hard. I'm doing my best here.
Lynn Gordon, Clerk of the Committee: We will start with the chair.
The Honourable Senator David Tkachuk?
The Chair: Next Wednesday, agreed.
Ms. Gordon: The Honourable Senator Douglas Black?
Senator Black: I would prefer the week after.
The Chair: "Yes'' or "no''?
Senator Black: No.
Ms. Gordon: The Honourable Senator Larry Campbell?
Senator Campbell: No.
Ms. Gordon: The Honourable Senator Joseph Day?
Senator Day: No.
Ms. Gordon: The Honourable Senator Tobias C. Enverga, Jr.?
Senator Enverga: Yes.
Ms. Gordon: The Honourable Senator Greene?
Senator Greene: No.
[Translation]
Ms. Gordon: The Honourable Senator Paul Massicotte?
Senator Massicotte: No.
Ms. Gordon: The Honourable Senator Lucie Moncion?
Senator Moncion: No.
[English]
Ms. Gordon: The Honourable Senator Donald Plett?
Senator Plett: Yes.
[Translation]
Ms. Gordon: The Honourable Senator Pierrette Ringuette?
Senator Ringuette: Yes.
[English]
Ms. Gordon: The Honourable Senator Larry Smith?
Senator Smith: Yes.
Ms. Gordon: The Honourable Senator Michael MacDonald?
Senator MacDonald: Yes.
Ms. Gordon: The Honourable Senator Pamela Wallin?
Senator Wallin: No.
Ms. Gordon: The Honourable Senator Howard Wetston?
Senator Wetston: No.
The Chair: Defeated.
(The committee suspended.)