Journals of the Senate
51 Elizabeth II, A.D. 2002, Canada
Journals of the Senate
1st Session, 37th Parliament
Issue 112 - Appendix "C"
Thursday, May 2, 2002
1:30 p.m.
The Honourable Daniel Hays, Speaker
OBSERVATIONS OF
PROGRESSIVE CONSERVATIVE MEMBERS
BILL C-23, AN ACT TO AMEND THE COMPETITION ACT AND THE COMPETITION TRIBUNAL ACT
The Progressive Conservative Members of the Standing Senate Committee on Banking, Trade and Commerce (PC Senators) recognize that framework laws, such as competition law, must remain modern and progressive. At the same time, however, the PC Senators believe in the supremacy of Parliament and that a periodic review of framework legislation is a duty and necessary. The PC Senators do not agree with Minister Rock that introducing a review requirement would ``hobble'' the parliamentary process. The Committee, by way of a letter, invited Minister Rock to commit voluntarily to appear before the Committee in two years to review the Competition Act and re-address some of the Committee's concerns. When asked how he would respond to such a request, Minister Rock stated he would ``treat it with the utmost seriousness'' although he believes ``a formal amendment ... is unnecessary and illadvised.'' Both the Committee letter and Minister Rock's response are appended to this Observation Report.
It is worthwhile at this juncture, to comment on the process by which amendments were made to C-23 in the Other Place. Amendments were made at committee stage in the Other Place including a provision for private access of small- and medium-sized businesses (SMEs) to the Competition Tribunal, and the imposition of an administrative monetary penalty, up to $15 million, in the case of an abuse of dominant position by an airline in Canada.
Regarding the private access amendment, the PC Senators concur that this modernizes the framework legislation. However, they also believe that private access would be further enhanced with additional provisions that: one, award damages to complainants, and two, remove the burden to gain leave before a case receives a hearing by the Competition Tribunal. The PC Senators are not persuaded that this will result in frivolous litigation.
The single most contentious issue discussed at length is the continued existence of Section 104.1 in the Competition Act. A great deal of discussion took place regarding the duty of the Commissioner, the role of the Competition Act and whether or not it is competition itself that is being protected, or the competitors. The PC Senators believe that the Competition Act is not an appropriate place to single out one industry, as is currently the case with Section 104.1. Airline policy should be coherent and exist in the Transportation Act. Clearly there is a legislative vacuum in this area. In addition, members of the House Industry Committee appeared before the Senate Banking Committee to discuss their recent report, A Plan to Modernize Canada's Competition Regime, in which they recommended, ``That the Government of Canada repeal all provisions in the Competition Act that deal specifically with the airline industry (subsections 79 (3.1) through 79 (3.3) and sections 79.1 and 104.1)''. This recommendation reflects the position of the PC Senators.
Therefore, the PC Senators recommend that appropriate amendments for private access and Parliamentary Review, and a repeal of airline specific clauses be undertaken by the Government as soon as possible.
April 25, 2002
The Honourable Allan Rock, P.C., M.P., Q.C.
Minister of Industry
235 Queen Street, 11th Floor East
Ottawa, Ontario
K1A 0H5
Dear Minister Rock,
Senator Tkachuk and I are writing to you, on behalf of all members of the Senate Standing Committee on Banking, Trade and Commerce. As you will recall, during your recent appearance before our committee with respect to Bill C- 23, An Act to Amend the Competition Act and the Competition Tribunal Act, and throughout the weeks of hearings into the Bill, members of the Committee raised a number of serious concerns they have with the Bill.
Three of the most pressing concerns for the Committee are the following provisions in the Bill:
- Those dealing with the airline industry and the powers of the Competition Commissioner to issue interim orders, namely sections. 103.3 and 104.1.
- Private Access to the Competition Tribunal.
- Mutual legal assistance with foreign jurisdictions.
While not limited to this, the primary concerns with respect to the airline industry provisions center on the powers given the Competition Commissioner, where he plays both the prosecutorial and judicial role, as well as the threshold which the Commissioner has to meet to obtain an interim order. An additional concern is the imposition of an administrative monetary penalty up to $15 million.
With respect to Private Access, the concerns are, inter alia, that while the new provisions enhance access for SMEs, these provisions should go further to, one, include an awarding of damages to complainants (there is precedence for this in US and Australian competition law provisions); and two, the burden to gain leave to bring a case before the Tribunal should be removed. The Committee believes these two changes would greatly improve the value of the private access provisions.
Finally, regarding Mutual Legal Assistance there is concern as to how, and how much, information, data and records would be shared with foreign jurisdictions, the process by which this would be obtained and the safeguards built in to the system. The Committee would like the Treaties that are to be signed to receive some kind of Committee legislative oversight, much like the Tax Treaties that are brought forward and require individual legislation before they can come into force.
Having said all this, we take your point that it will take some time to see the full impact of these provisions. Therefore, in two years time, the Committee will hold hearings into the above provisions and any other parts of the Competition Act it feels relevant in order to assess the impact of this Bill. The Committee, therefore, asks you to undertake that you, or your successor, will appear before it within two (2) years of the passage of the Bill to review the above provisions specifically, and the Competition Act in general. The Committee further asks that, when you appear, your senior officials, including the Competition Commissioner, accompany you. The Committee believes that key framework legislation, such as the Competition Act, must be subject to periodic review by Parliament, and thus it is essential that this review take place.
The Committee will await your response before commencing clause-by clause study of C-23.
Sincerely,
Original signed by
E. Leo Kolber
Chair
David Tkachuk
Deputy Chair
April 30, 2002
The Honourable E. Leo Kolber
Chairman
Standing Senate Committee on Banking, Trade and Commerce
The Senate of Canada
Ottawa, ON K1A 0A4
The Honourable David Tkachuk
Deputy Chairman
Standing Senate Committee on Banking, Trade and Commerce
The Senate of Canada
Ottawa, ON K1A 0A4
Dear Senators,
I am responding to your letter of April 25, in which you summarize your Committee's most pressing concerns with respect to C-23, An Act to Amend the Competition Act and the Competition Tribunal Act.
I appreciate the thought and thoroughness with which you and your Committee have approached this examination. I also appreciate the manner in which you have brought these concerns to my attention.
You have expressed concerns with three provisions of the Bill:
- Those dealing with the airline industry and the powers of the Competition Commissioner to issue interim orders, namely sections. 103.3 and 104.1.
- Private Access to the Competition Tribunal.
- Mutual legal assistance with foreign jurisdictions.
I have given serious consideration to these concerns and enjoyed being able to discuss these issues directly with you during my appearance on April 18.
I think your suggestion of hearings in two years time to assess the impact of the above-mentioned provisions is excellent. I would, of course, be pleased to undertake to appear before the Standing Senate Committee on Banking, Trade and Commerce with my senior officials, including the Competition Commissioner.
Yours very truly,
Original signed by
Allan Rock