INST Committee Meeting

STANDING COMMITTEE ON INDUSTRY, SCIENCE AND TECHNOLOGY

COMITÉ PERMANENT DE L'INDUSTRIE, DES SCIENCES ET DE LA TECHNOLOGIE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 16, 2001

• 0908

[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): I'm going to call the meeting to order.

Bill C-23, an Act to amend the Competition Act and the Competition Tribunal Act, is the reason we're here this morning. We do have a number of housekeeping items, which we can either do now or we can save until the end of the meeting. It's in the hands of the committee. If everyone's going to stay until the end of the meeting, we can wait.

We have a number of budgets we were going to review and we are going to talk about some future business. Let's keep it until the end of the meeting; we have witnesses waiting.

We're very pleased to welcome here this morning, from the Public Policy Forum, Ms. Anita Mayer, the vice-president; and appearing on his own behalf as an individual, we have Mr. George Addy, a lawyer from Osler, Hoskin and Harcourt.

I propose that our witnesses begin with opening comments, hopefully not too much longer than five minutes.

There are detailed presentations that I hope you've already received and read. We'll then go to what I'm sure will be a quite interesting round of questions.

So we'll begin with Ms. Mayer.

Ms. Anita Mayer (Vice-President, Public Policy Forum): Thank you.

I thank you for inviting me to speak before you today.

[Translation]

Thank you for inviting me to speak before you today.

[English]

As you probably already know, in the summer of 2000, the Public Policy Forum was mandated by the Competition Bureau to conduct consultations on proposed amendments to the Competition Act and the Competition Tribunal Act. It's in the context of that consultation that I'll be making my statement today. I do not intend to comment on the proposed legislation currently being considered, but only to explain the consultation process that we undertook and that formed the basis for the policy proposals. I will explain the mandate we received, the process we undertook, and its results.

• 0910

As a brief reminder of who the Public Policy Forum is, we're a not-for-profit, non-partisan organization aimed at improving the quality of government in Canada through better dialogue between government, the private and the third sectors, and the labour movement. We have over 150 members drawn from all these sectors.

Our members share the conviction that a healthy public administration is essential to the quality of life of Canadians, as well as to competitiveness in a global economy.

I'll go on to the consultations themselves. Our mandate in these consultations was to consult widely with all interested parties across Canada on the changes to the Competition Act and the Competition Tribunal Act as proposed in the four private members' bills that were then before this committee: Bill C-402, Bill C-438, Bill C-471, and Bill C-472. The then Minister of Industry, John Manley, had asked us to undertake these consultations in the hope of reaching a consensus on the proposed changes as a foundation for a government bill. Our goal for the consultation process was to encourage dialogue and search for common ground on the principles underlying the proposed legislative amendments, rather than on the technical application of those amendments.

We undertook a four-step process. In April 2000, a discussion paper prepared by the Competition Bureau was placed on our website, and interested parties also had access to information on the members' bills, the acts already in place, and the Competition Bureau. Letters were sent—approximately 2,000, I believe—to stakeholders and interested parties across Canada to invite them to submit written comments on the legislative amendments. We were inviting ideas and concerns, not legal briefs.

[Translation]

We posted each submission, about a hundred in all, on the Public Policy Forum website. We also completed and posted on our website an analysis and a summary of written comments.

[English]

The analysis and summary document was then used to inform the participants at a series of round tables held in August and September 2000. A dozen round tables were held with participants invited from consumer and trade associations, SMEs, large businesses, all levels of government, labour organizations, and not-for-profit organizations, and separately, tables were held with experts in competition law from among the legal, law enforcement, and academic communities.

In order to facilitate an open and frank dialogue, all discussions took place on a not-for-attribution basis and participation was limited to approximately 15. Some of them were a bit smaller than that. A summary of discussions for each individual round table was prepared and posted on our website. Finally, we prepared a report to the commissioner summarizing both the written submissions and the round tables in December 2000. The report was also posted on our website.

I know I have only five minutes and it was a 60-page report, but I'll try to summarize it as briefly as possible.

In our report, we sought to reflect all the points of view that were expressed concerning the principles underlying the proposed legislation in a balanced way that did not assume any particular position. The forum never took a position on these amendments. For each of the principles, we showed where there was common ground and where divergent points of view were expressed.

There are two parts of the report I would like to outline for you in particular.

First, there are some general observations on some of the aspects of the Canadian and global economy that were raised by the participants and influenced their reactions; and second, I'll give you a brief summary of the level and nature of support for each of the seven principles.

In terms of general observations, one of the things that affected how the participants reacted was the changing market structure. Obviously, it's changed a lot since the first Competition Act was enacted, and many of our participants, in particular the SMEs, were inclined to believe competition legislation should be geared to control new forms of dominance in the market. Others pointed out that the Competition Act, as a framework legislation, is considered to apply equally to any anti-competitive behaviour. Others also stated that competition legislation is intended to protect competition, rather than competitors, and that it appeared that competition is actually quite vigorous.

[Translation]

Information technology is changing ever more rapidly every aspect of business. People, especially in the larger enterprises, expressed concerns, particularly about the negative impact the amendments could have if the new technological components of business transactions were not taken into account.

• 0915

Globalization and harmonization. A number of our participants stressed the need for Canada to harmonize its policy with that of its trading partners, in particular, the United States and Europe, to ensure that by amending the Canadian policy, we don't reduce the competitiveness of Canadian firms or the attractiveness of doing business in Canada.

[English]

One of the most challenging aspects of this consultation for us was a sense of desperation expressed by small business owners, who have very strong concerns about their continuing ability to compete in the marketplace. There was even some fear expressed that their participation might bring reprisals from larger enterprises on which they depend for their continued existence.

On the other hand, we were also made aware of a sense of frustration among the larger enterprises, who fear that changes to competition legislation would impede their ability to compete on a global scale. The very large enterprises in particular are focused entirely on competing with their business peers. They see strategies that will support their position as necessary to ensure vigorous competition, even though the result may be to remove smaller competitors from the market.

During the consultation, these very divergent viewpoints on the meaning of competition translated into a wide gap in understanding between big business and SMEs and discussions that sometimes seemed at cross-purposes.

There were also discussions on the role of SMEs in the economy. SMEs often view themselves as the backbone of the economy since they form the lion's share of the business community and are traditionally seen as a source of innovation.

We were even reminded that part 1, “Purpose and Interpretation”, of the Competition Act, specifically addresses the protection of small and medium-sized business.

However, from their point of view, attention now seems to be focused on the meld between globalization and the knowledge economy and on the means of fostering the sectors of the economy that are most active in these areas. SMEs expressed concern that their needs would be neglected if the primary aim of amendments to competition legislation was to ensure Canada's competitiveness in the global arena.

Public understanding of competition legislation. Another challenge for us was that competition policy is an essential aspect of doing business and of our country's economic health. Yet a lack of understanding of the intent, scope, and limits of competition legislation among most of those who are affected by it—in particular, the SMEs—became very clear to us during the consultation process.

That posed two challenges for us. The first was in obtaining the participation of business representatives who were not lawyers charged with overseeing competition issues. This included even some of the leaders of some of the larger companies. They felt they were not well versed enough in competition legislation to express their opinions.

A second challenge was in ensuring that the intent and limits of the proposed legislative amendments were understood and in maintaining the focus of discussion on these specific issues.

However, we believe that in the total scheme of the consultation process a satisfactory balance was obtained, both in terms of participation and areas of discussion. This was obviously the first time that SMEs, big business, and all these organizations were invited to consult with each other about competition legislation.

Finally, to come to a summary of the discussions of the seven principles themselves,

[Translation]

let's take, first, Bill C-402. Given the difference of opinions about the proposal to amend the Competition Act by adding to the non-exhaustive list of anti-competitive practices under section 78 examples of such anti-competitive behaviour specific to the retail industry, in this case, we determined that a consensus was not likely, even if the wording were changed.

[English]

On Bill C-438 there was a large degree of support expressed by participants with respect to the proposal to prohibit sending deceptive contests by mail or by any other system of delivery, on the condition that the proposed amendment encompass the Internet more specifically so as to include electronic mail.

Facilitating cooperation between competitive authorities, Bill C-471. The proposal to provide a legislative basis whereby Canada would enter into agreements with other jurisdictions to enhance international mutual cooperation in the enforcement of non-criminal competition law received significant but qualified support from participants. It was qualified in the sense that there were concerns about confidentiality—protecting voluntarily provided information, for example, and ensuring that this information did not extend beyond the parties to whom it was sent. We determined that the initiative to enhance international cooperation could move forward provided that this area of confidentiality and certain operational issues were addressed.

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On private access, the proposal to permit individuals to have access on their own behalf to the Competition Tribunal for refusal to deal, exclusive dealing, tied selling, and market restrictions evoked divided views. We determined that consensus on this proposal could be achieved on condition that strategic litigation could be prevented.

[Translation]

Cost awards, references and summary dispositions. The participants generally accepted, in principle, the proposed amendments to broaden the Competition Tribunal's powers to include cost awards, summary dispositions and the use of references to allow for an early determination of some key issues, as this was perceived as improving the Tribunal's process. They also proposed other improvements.

[English]

Cease and desist powers. The proposal to introduce cease and desist powers to allow the commissioner of competition to deal with abuse of dominance was largely opposed on the basis that they did not believe the commissioner should have this power. However, there was general support for an interim relief power to be exercised by a judicial authority in respect of abuse of dominance, and a number of practical alternative procedures that could be explored were also suggested.

Facilitating strategic alliances and improving the investment climate. A desire for modernization of the Competition Act's provisions in relation to the conspiracy provisions was expressed. The two-track approach suggested in Bill C-472 was attractive to the majority of the participants in spite of their apprehension about particular aspects of this proposal. However, because these provisions are key to the act and because of the complexity of the issues involved, participants felt that more discussion, analysis, and consultation were needed to amend the conspiracy provisions of the act.

We believe that the consultation process we undertook provided the Competition Bureau and the Minister of Industry with valuable information on legislative changes that were being proposed. We made every effort to ensure that all interested parties were allowed adequate opportunity to express their ideas and concerns, and that our final report to the commissioner reflected all points of view as well as common ground that had been established.

[Translation]

I'd be glad to answer your questions.

[English]

I'd be glad to answer your questions.

The Chair: Thank you very much, Ms. Mayer.

I'm going to turn it over now to Mr. Addy, please.

Mr. George N. Addy (Individual Presentation): Thank you, Madam Chair. And thank you to the members of the committee for allowing me to address you today.

The Competition Act and its policies is an area that's near and dear. I've been working in the area for most of my working career in essentially three capacities: first as a lawyer and now again as a lawyer; secondly in the bureau itself running the merger branch and then eventually as head of the Competition Bureau; and thirdly as a businessman with a major telephone company in Canada ensuring compliance with the act. So I bring to my remarks today that perspective. I'm here to speak on my own behalf. I'm not representing any particular constituency before you today.

I've provided the clerk with copies of my submission.

[Translation]

A French version has also been provided to the clerk. I'll be glad, in due time, to answer any question committee members may have and to respond to their concerns in either official language.

[English]

My submission is broken into three parts. As to the written paper, in view of the time I'll just skim through the front part.

The first part deals with some comments on Bill C-23 as it currently exists and what I think are deficiencies, albeit not irreparable deficiencies. The second part of my submission addresses some additional provisions that the committee may or may not wish to consider adding. They are not currently in Bill C-23. The third part of the submission is a clause-by-clause appendix to the document. When you have the time—I know time is precious for you—and you proceed with the study of the bill, there is a clause-by-clause commentary attached to the back of the document.

I'll just focus my remarks today on the first part, namely the comments on Bill C-23 as presently structured. In that regard, let me first start with the mutual legal assistance regime. I believe the mutual legal assistance regime is a very good thing, so much so that in 1995 when I was in Mr. von Finckenstein's position in dealing with Minister Manley, we attempted to include mutual legal assistance in the earlier round of amendments. Due to the intervention of the Schreiber case and the uncertainty in the law, we had to shelve those provisions from that round. So I'm very glad to see it surface in this bill.

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You may find that most of the comments you'll hear address outbound information, if I can use that terminology. It's very important to recognize that mutual legal assistance regimes are exactly that, mutual. A cornerstone to these agreements is reciprocity.

It's very important, and I think worthwhile, for Canada to have that type of regime in place, because Canadians can be victims of foreign-based, anti-competitive activities. We want to have the tools available to address those and get the evidence for them. I'm a very strong advocate and supporter of the regime.

That being said, let's not lose sight of what we're talking about here. We're talking about—in the scheme as currently drafted—court-ordered compulsory action directed at Canadians at the request of a foreign government.

It's important to understand that all competition laws are not the same. All competition authorities aren't equally independent from various influences. In my view, one of the flaws of the bill is that they've taken the approach in the mutual legal assistance scheme that civil practices should be dealt with as if they were criminal. In other words, the commissioner should be entitled to go to the court and get a search warrant, use compulsory process, and compel production of information and documents without notice ever being provided to the victim of that order.

My main concern, frankly, with respect to the mutual assistance scheme as set out in the bill is what I consider to be that lack of balance. We are, after all, talking about civil practices. We are, after all, talking about using compulsory process against Canadians in relation to a request from a foreign government that may or may not be well founded.

I've constructed in my submission an example—a hypothetical example, I stress—involving Bombardier, and a complaint from the Brazilian authorities, and how that might be treated under the scheme as presently drafted. When you have an opportunity to review the example, I think you'll agree with me that it highlights the due process gap that I feel exists in the scheme as presently crafted.

Intervention by government for compulsory process should not be undertaken lightly. Even though from the competition perspective I might personally view some foreign conduct as offensive, given my love of competitive markets and the policies in the area, if it comes to a tradeoff between compromising the rights of Canadian individuals and companies or possibly allowing some foreign anti-competitive activity to continue in a foreign jurisdiction, I would let the foreign anti-competitive activity continue. I would not compromise the due process rights, which I think are core to our Canadian system, particularly for civil practices.

This isn't criminal law. This is dealing with issues that may be offensive, but we don' know and the other state doesn't know yet; they need to look at the evidence. It would not be considered criminal law; otherwise we'd be dealing with it under the Mutual Legal Assistance in Criminal Matters Act, which applies to criminal behaviour.

This notion of due process is not foreign. It's surfacing with increasing frequency in formal instruments signed and developed by the Government of Canada. The FTAA agreement has several clauses where due process and transparency are specifically included. It's on that basis that I think we need to address the issue of due process in the MLA, or the mutual legal assistance scheme.

The second issue with the MLA involves confidentiality. I read the transcript of Mr. von Finckenstein's examination or testimony here a week or so ago, and I differ with him as to whether section 29 requires modification. When we looked at this scheme in 1995 and went through the public consultation round, there was a recognition on my part at that time that section 29 needed amendments.

If I understood, and if Mr. von Finckenstein has been reported accurately in the transcript, he is indicating that section 29 is a difficult section to deal with, and therefore we shouldn't deal with it now.

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I don't think that's the right approach, frankly. Section 29 does not—underline “does not”—protect all information in the commissioner's or the bureau's hands and it does not—underline “not”—cover all information that may potentially be shared with a foreign authority.

From all my experience, I strongly recommend that the committee deal with that. There is a chill there, and it will, combined with the ex parte nature of some of the provisions in the bill, compound a chilling effect with respect to parties dealing with the bureau. Frankly, the tradition of the bureau is to seek voluntary cooperation from the parties as much as possible, and on that basis I think we need to address section 29 as well.

The other part of the MLA arrangement that is a bit troublesome, frankly—and I detail that in my submission—relates to existing agreements. Section 30.3—and as I read it, the draft treaty that Mr. von Finckenstein tabled here last week—indicates that the scheme doesn't affect any ongoing relationships. I would urge the committee to consider that if indeed the objective is to design a comprehensive code for information sharing, which is I think the way the commissioner has characterized it, then let's do that, and any agreements that are inconsistent with the MLA arrangement should be prohibited.

In summary, on the MLA side, I would suggest that the flaws are that ex parte applications are the norm, not the exception, and that's a violation of due process. Foreign requests are accepted without an allegation of breach of foreign law. That's in the bill, although I see that there was a clause to that effect in the draft agreement. It would be nice to have that reflected in the legislation as well.

There's no requirement for notice to the intended target. There's no requirement for an oral hearing to deal with objections. There's no right for a party who receives one of these search warrants or due process orders to have access to the underlying request that's in the commissioner's hands. I think that's a flaw as well. There is only a very limited right of appeal.

Lastly, there's no specific requirement in the process that, on a request by request basis, somebody ask the very fundamental question, is it in Canada's interest to respond to this request? That's done in other jurisdictions. There's some overriding legislation in the U.S. on national security that covers it.

Now, very briefly—and I know I'm droning on here, Madam Chairman—let me make a couple of other comments on some other sections of the bill.

On section 103.1, the interim order provision, this also is done on an ex parte basis. Fundamental to Canadian legal jurisprudence is that injunctive relief is an exception, not the norm, and in an exceptional case in civil matters I think notice should be given, and ex parte should not be the norm.

If there are circumstances that warrant applying on an ex parte basis, so be it, but that should not be the norm. In my experience in seeking orders from the courts and tribunals, it takes a few days for the bureau to get this thing together in any event—to get the affidavits and the pleading drafted. Ask them to give notice at the same time they're working on these.

The consent agreement—the changes to sections 105 and 106—I think goes too far one way. There are definitely some procedural issues to deal with on the consent order process. This process improvement, if I can characterize it that way, I think goes too far by eliminating any opportunity for third-party intervention by your constituents with respect to a draft order.

The Americans have dealt with this issue. They have a publication period where people can file comments and you get out of... It's sort of the middle ground: you eliminate all the procedural baggage around the tribunal process, but yet there is an opportunity for public input. They've done that in the U.S. under the Tunney Act, and I'd suggest we adopt a similar procedure here.

With reference to the tribunal—and this is the last section of the bill I'll comment on; that's concerning sections 105 and 106 again—I think the amendments to section 124.2 provide that the parties and the commissioner can apply to the tribunal for determination of an issue, or the commissioner can apply on his own for the determination of a question of law or other interpretation by the tribunal.

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I think individual parties should also have the right to go and ask the tribunal for a ruling on a procedural or substantive interpretation issue; that a unilateral right to seek guidance from the tribunal on an issue, which will expedite processes in my view, should not be limited to the commissioner.

[Translation]

This concludes my opening remarks, Madam Chair. I'd be glad to answer your questions. Thank you.

[English]

The Chair: Thank you very much, Mr. Addy.

We're now going to turn to questions.

Mr. Penson, please.

Mr. Charlie Penson (Peace River, Canadian Alliance): Thank you, Madam Chair, and I thank the witnesses for being here this morning.

Mr. Addy, it seems as if we're getting more into the international scope in competition law. Would it not be better to work within the framework of the WTO to get some type of international standards for competition law, so that for foreign governments or foreign competition agencies there would be some sort of measure putting everybody under the same standard, which might put a process in place that would address your concerns on this due process matter?

Mr. George Addy: The issue of harmonizing competition laws has been on the agenda of governments and competition authorities for a while now. A lot of work goes on around the OECD on that matter, and I think there's been some significant progress. Fifteen years ago you might have had a dozen countries, if that, that had competition laws. Now there are well over 100, so there is progress on that front. But standards differ, and getting people to agree on a common standard is very difficult and time consuming.

My concern with adopting a WTO-type process, frankly, is that process will take over, as opposed to the realization of substantive change. I think the efforts underway now with the OECD, the global competition initiative, and the global competition forum—which is a forum of competition authorities that meet on a regular basis to discuss core principles and harmonization—represent the way to go. I'd be frankly concerned, if you flip it over to the WTO, that it will be lost in process for decades.

Mr. Charlie Penson: Well, it seems to me that's the way we're moving more and more as there's more international competition. If there's anti-competitive behaviour, there's anti-competitive behaviour. The more we can get some kind of structure around this, the better chance there would be of dealing with some of your concerns.

Let me just ask you a question regarding due process. I'm sorry I haven't read your submission in advance. You've used some examples. But you're concerned that there may be a fishing expedition to get information that would give an edge to a foreign competitor: is that basically it?

Mr. George Addy: On your first question, countries don't even agree what anti-competitive practices are. There isn't even agreement amongst all the countries on what conspiracy or price fixing means. While some may notionally or nominally have competition laws in place, don't be under the misapprehension or misunderstanding that there's consensus on even some of the very core elements of competition law.

Mr. Charlie Penson: Can I just stop you there and ask you the question: wouldn't it be better where there is consensus, among whatever number of countries it exists, to at least have them start the process and let others join on?

Mr. George Addy: In effect, that's what's happening now. You have a series of bilaterals amongst countries that have competition laws, and they're going into trilaterals or a network of bilaterals. There is that core, and we're evolving towards a mutual, multilateral understanding of what competition law should do and be. So I think we're working that way. It's just that if you jump immediately to the WTO process, it would be lost.

With respect to the second part of your question on due process, that's exactly my concern. My concern is that a foreign-based request may be used for purposes I wouldn't consider to be legitimate. I've constructed an example in my paper involving the airframe business and Bombardier and a complaint in Brazil. I've demonstrated in that example the implications for seeking that order: the order being served on the company here, documents being sent abroad without an opportunity for the victim in my hypothetical scenario, Bombardier, having an opportunity to challenge the very emission of the order because there's no notice. The first time they'll hear about it is when the commissioner's representatives walk into the office on Monday morning saying we're seizing these documents. That's the due process for it.

• 0940

Mr. Charlie Penson: But even if they get notice, isn't the problem still the same?

Mr. George Addy: Then, at least, they're at the table, in front of the issuing judge, saying we need some protections here; we need more information from Brazil to ensure that is a legitimate request, that there is a proper basis.

As you know, there are legal thresholds in our legislation, reasonable belief, and so on. At least they will be at the table, when compulsory process is about to be foisted on them, to say the scope of this request is too broad; we'll provide you the information on these questions or these issues, not those; that's competitively sensitive, and we need to have some more assurances and guarantees of how they'll be handled. Or that's third-party data, one of my suppliers' information; how come you're taking stuff from my desk from one of my suppliers?

Mr. Charlie Penson: My last question—

The Chair: I'm going to have to move on.

Mr. Charlie Penson: —is a short one. On the private right of access issue, isn't it the same concern, that there may be frivolous actions or actions that try to undermine a competitor through getting information that they may not be able to get otherwise?

Mr. George Addy: Private access is a big issue. I'm in your hands, Madam Chair, do you want me to deal with that issue now? I suspect it will be raised by other members.

The Chair: If you can address it briefly...

Mr. George Addy: I'll try.

The Chair: He is already over his time. I'll give you 60 seconds to answer his question, and then I'll move on.

Mr. George Addy: Okay, great.

An hon. member: Way to go, Charlie.

Mr. George Addy: The short answer to your question is yes, strategic use of private access is a concern.

The Chair: Thank you.

Mr. Lastewka, please.

Mr. Walt Lastewka (St. Catharines, Lib.): Thank you, Madam Chair.

Ms. Mayer, I want to tackle the area of the larger enterprises competing globally to the detriment of the small businesses. I'm having a hard time understanding why we can't have it both ways. Could you enlarge on that?

Ms. Anita Mayer: That's a difficult question. I'm not sure I can answer that.

What we were told is that some of the practices that larger enterprises undertake are the same as their competitors undertake. So in fact, it's not anti-competitive from their point of view.

I can't go into detail about what those practices are, because they weren't explained to me in detail at the meetings, but these are the types of practices that allow them to be competitive on a global basis but in fact may have detrimental effect on their smaller competitors. They are saying, since they are competing with their peers and this is practice that's normally accepted among all the peers, it's not anti-competitive.

Mr. Walt Lastewka: I'm looking for examples of that.

Ms. Anita Mayer: I'm sorry, I can't provide you with any examples. We weren't given examples. People were not speaking about specific practices; they didn't want to reveal.

Mr. Walt Lastewka: I'm very interested, then, in a comment you made on small and medium-sized businesses in the economy. There were divergent views about the role of SMEs in the economy. Could you explain the divergent views?

Ms. Anita Mayer: Most of the SMEs consider themselves to be, as I said in my report, the backbone of the economy, since they form a large part of the economy and are traditionally seen as a source of innovation.

Some of the bigger businesses are saying that used to be true, but it's no longer so. Many of the innovations are coming now from larger enterprises. From their mergers, from their acquisitions, from the way they now function in business, they are the ones who are providing a lot of the innovations that are happening, and trying to protect smaller businesses just on the basis that they are the source of innovation is no longer true.

Mr. Walt Lastewka: I have a divergent view, then, on the large businesses, very much so.

If you could provide any other information on those two questions, I'd appreciate it. I'd be interested in receiving information from the larger companies that the view of the small businesses is not true any more. Those don't seem to be my findings, and I come from large business.

• 0945

On the other item, on the global situation, could you go back to your notes, or could anyone provide information? Here's an example that we're required to do globally at the insistence of small business. I would really like to see those examples.

Ms. Anita Mayer: I will take a look at my notes.

Mr. Walt Lastewka: On the other items, Mr. McTeague is going to read a couple of them.

Mr. Dan McTeague (Pickering—Ajax—Uxbridge, Lib.): Mr. Competition to you, sir.

Mr. Walt Lastewka: I'll stay away from a couple of his trampled areas.

Under private rights of access to competition, under Bill C-472, you made some remarks, in fact a number of them, that things could be done. I didn't see any information saying it was to preferably be done in this manner, as a result of all your workshops.

We determined that consensus on this proposal could be achieved on condition that strategic litigation could be prevented.

Could you expand on that? What are the pluses and minuses of the dangers you are trying to prevent? It will help the committee.

Ms. Anita Mayer: The concern was that larger enterprises in particular would use private access as a way of causing harm to their competitors. They would use it as a way to get information on their competitors plans. It would be a way of delaying a process, for example, if some of their competitors were looking at a merger. They would use strategic litigation to try to force the merger not to happen in a timely manner. Those were the types of concerns they were expressing.

Mr. Walt Lastewka: Thank you.

The Chair: Thank you very much, Mr. Lastewka.

[Translation]

Mr. Bergeron, please.

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Thank you, Madam Chair.

First, I'd like to thank the witnesses for their presentations this morning and for answering our various questions.

My first question is for Mr. Addy. In the brief you submitted, you state that, as Competition Commissioner, international cooperation to enforce the law was always one of your priorities.

I noticed earlier that, as you were answering one of Mr. Penson's questions, you did stress that, at the international level, the definition of unfair or anti-competitive practices is not exactly the same everywhere and that it varies a lot from one country to the next. You ask a very relevant question, I think, in when you write in your brief:

no one ever asks the question: Is it in Canada's best interests to respond to this particular request?

It is recognized that, generally, in the area of competition or international trade, Canada's interpretation of the rules is much stricter than that of other countries and so, our foreign trading partners are often more lenient and more open. It's the case, for instance, of such anti-dumping measures as countervailing duty.

In Canada, we find it very difficult to react to that type of situation. It's probably the same when it comes to competition. So I'd like to ask you a couple of questions about private access and the strategic litigations that could follow, to compare with what's being done elsewhere in the world. I believe you spent a lot of time in consultations and discussions about that with your counterparts in other countries when you were the Commissioner.

So what would you recommend that would allow us to take both relevant and necessary measures without hindering the Competition Tribunal in his work?

Mr. George Addy: I'll be happy to answer that. I could also provide the clerk with my recommendations if he doesn't have them yet. When the law I was responsible to enforce in 1995-96 was modified, an advisory panel was established. By the way, some of the amendments proposed at the time were dealing with this issue of private access to the tribunal. A number of meetings I attended then dealt with that.

• 0950

I actively participated in discussions about the measures that could be taken to prevent the strategic use of that type of right. I would suggest you read the report submitted in March 1996 by Mr. Ratushny, who chaired the advisory panel. If you wish, I'll provide copies to the clerk.

In this document, as in the discussions we had at the time, all kinds of issues were raised. Often, in Canada, in discussions about private access, we compare with what is done in the United States. We hear in the news about orders or decisions awarding billions of dollars. That's not what we had in mind in 1995, and I don't think that's what Bill C-472 is about either. First, I'd like to note that, in any case, there should not be any monetary compensation.

Second, applicants should not be able to ask for and obtain an order other than when the Commissioner applies for it.

Third, it has been suggested that, in those circumstances, an applicant be required to get the Tribunal's approval before bringing an action on the right of private access.

It was also suggested to restrict the provisions in the act to which this right could apply. There are a number of ways to limit the strategic use of litigation. Essentially, we have to determine what is the purpose of this private access power.

Frankly, in 1995, it was a question of money. We did not see any reason why the taxpayer should finance a dispute between two multinationals. Rather, we thought they could do it themselves.

Today, I believe the underlying principle to the right of access is rather that small and medium businesses should have a way to seek remedies and have some assurances that their claims are going to be dealt with and heard in a reasonable manner by the Commissioner.

The question is whether the right of access is the best way to fill the gap, if we recognize there is indeed a gap. There might be other ways to do that, for instance, require the Commissioner to issue reports or to respond to claim within a certain time limit.

So I always come back to this fundamental question: why do we want to introduce this remedy? When we have answered this question, we'll have to see whether there are other ways to fill the gap or deal with the problem as it is perceived.

[English]

The Chair: Thank you very much. Thank you, Mr. Bergeron.

We're running out of time here. We do have another group of witnesses scheduled to start, so I'm going to have to ask people to try to be a little briefer in their questions and in their answers. That last round took seven minutes just with one question and one answer.

Mr. McTeague, please.

Mr. Dan McTeague: Thank you.

Mr. Addy, good to see you again. Thank you, Madame Chair, and thank you, Mr. Lastewka.

Mr. Addy, I'm going to go to you very quickly. You have a considerable amount of experience in the area of private right of access. In fact, I think it's fair to say that you may have begun the ball in this area with your works as early as 1994.

I understand there had been earlier workings on that, but this issue, which has been kicked around the country, and certainly among members of the bar, and certainly among the various business communities for several years now, has been now crystallized into a form of legislation. There'll be a motion here before the members soon on the question of translating what is the private access contained in Bill C-472 into Bill C-23.

Given your background, given your knowledge of Bill C-472 and the safeguards that are within it... You alluded to the fact that some people like to compare private access to the United States and the slippery slope. I'm sure we'll be hearing from individuals who'll again try to present that as an argument. There are two or three restrained areas that we have contained this bill in, in terms of dealing with private access. Are the restricted areas just that? Given that they're limited to significant safeguards, what are your objections, if any?

Mr. George Addy: If I understand the bill, Mr. McTeague, it's limited to two provisions in the act, 75 and 77.

Mr. Dan McTeague: Correct.

• 0955

Mr. George Addy: I always go back, as I was mentioning to Mr. Bergeron, to the fundamental issue as to why you want that relief in place. My concern is that you may be creating a relief on the expectations that parties will use it. I'm not convinced they'll use it, and I'm not convinced they'll use it because of the cost of litigation, to be quite candid.

A small business person who wants to initiate a private access, a claim, before the Competition Tribunal, is going to face significant legal expense. There have been some studies done by the bureau as to how much it costs to prosecute a case before the tribunal and the figures are in the millions of dollars.

And so I get back to the issue as to what is your objective in introducing the relief? I think there may be alternative tools that would better suit your constituency if that's your target constituency. But to the extent that you do proceed with it, safeguards that will mitigate the possibility of strategic litigation are highly recommended.

Mr. Dan McTeague: And, Mr. Addy, in your experience as director, were there occasions where you were not able to detect potentially anti-competitive harms that didn't have a broad public interest that may have nevertheless been a question of a dispute between two parties, for which the concern you have of significant legal expense might have been put aside to the question of whether I could survive...

There are the comments that have been made by other members here, and certainly Mrs. Mayer's remarks, with respect to small businesses not necessarily always being able to exercise a certain future. Is it possible that during your time and the time subsequent to that... because we have comments here as well from other commissioners, directors, to the effect that this isn't the end of the world. More importantly, if the object here is to create a greater body of case law in this country, why would there be those who would object to this notwithstanding the cost?

Mr. George Addy: To answer the question about whether I was aware of a case while I was director, I can't recall any that would fit within your scenario.

But it's important again to recall that the nature of the legislation is it is framework legislation to protect the market interplay between various businesses regardless of size. And part of that is it really is a battle. To the victor go the spoils of the market. And the competitive process contemplates entry and exit of businesses. So the fact that a particular business may be pushed out of the market by a competitor isn't necessarily a sign that it's anti-competitive. It may be that the competitor has a more innovative product or is more in tune with the customer so—

Mr. Dan McTeague: Shouldn't the tribunal—

Mr. George Addy: —we just have to be careful of that balance. That's my concern.

The Chair: Last question.

Mr. Dan McTeague: Wouldn't you be concerned, Mr. Addy, that the tribunal isn't aware of whether that anti-competitive activity occurs or not, and that maybe, just maybe, there are opportunities here to demonstrate that people have access to institutions? But more importantly, the tribunal, which has very few contested cases before it, may have an opportunity to determine otherwise. Would you not want to take that to a further step in the interests of ensuring that there is no anti-competitive harm occurring in this country?

Mr. George Addy: I think increasing the workload of the tribunal and the jurisprudence from the tribunal is an excellent thing.

The Chair: Thank you.

Thank you very much, Mr. McTeague.

Mr. Strahl, please.

Mr. Chuck Strahl (Fraser Valley, PC/DR): Thank you, Madam Chair, and thanks to the witnesses for coming today.

When Mr. von Finckenstein came and gave his testimony he also brought with him a sample of the bilateral agreement that might be entered into, possibly, if we had another country that wanted to do that with us. Mr. Addy, did you have a look at that sample bilateral agreement? You were mentioning that you felt this is the way it inevitably has to go, a country-by-country as opposed to a broad-based thing. Is that bilateral agreement, that sample, the kind of thing that covers your concerns?

Mr. George Addy: There are two parts to answering your question, Mr. Strahl.

Yes, I have had a look at it very briefly. And I'm not in a position to provide you with detailed comments on it.

In what I have seen, the agreement has addressed a couple of issues that I raised in my brief. For instance, in clause 1 it requires that the requesting party cite the specific competition law issue and provision of its act. That's in the draft, but it's not in the bill. And I'm saying we should make sure this surfaces in the bill so we don't lose that.

But some of the concerns I have with the bill are mirrored in the draft as well. For instance, that the draft agreement would not displace any existing agreements between the competition authorities. I still have a fundamental issue with that. If we're designing a code, let's use it for all information flow between the agencies, as opposed to just the information flow that's triggered by the compulsory production process.

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Mr. Chuck Strahl: Okay.

Mr. George Addy: But I can look at it and send comments in to the clerk at a later point, if you feel that would be useful.

Mr. Chuck Strahl: I think it's useful in the sense that I share Mr. Penson's concern that what we seem to be entering into is a series of bilateral agreements, especially on the international aspect of this, and that, as you said, not everybody thinks the same way we do about competition. So you have a whole collage of efforts and various amounts of efficacy, I'm sure, around the world. On those bilateral agreements, it just seems to me that if that's the way it has to go, it's very important that we get that right.

The other thing I'm curious about is that you had asked the question, is it in Canada's best interest to respond? Once you enter into a bilateral agreement, it's not really up to us to pick and choose. It's like any international agreement, trade war, or trade agreement; you can't pick and choose once you enter into an agreement. That's what the agreement is for. You can't say, like Bombardier, why don't we just, hands down, protect Bombardier at every single possible step because, what the heck, it's every man for himself, so to speak. Once you enter into an agreement, that's just not possible.

Mr. George Addy: I guess the answer to that is, it depends what's in the agreement. The agreement may provide some relief on that basis.

The U.S. has several agreements... and I apologize, I forget the name of the legislation, but it has, in effect, a national security interest cloak. It covers everything the country does. Even in merger review, there's always that escape clause, if I can use that term, that overriding consideration that has to be brought to bear on everything, from merger filings to prosecutions to information exchanges.

My concern in this bill was, once the AG has determined that the requesting party has substantially similar laws, once the treaty has been entered into, that national interest check doesn't occur again, by my reading of the legislation. I think there's a gap there that we might want to address.

Mr. Chuck Strahl: You used the example of Bombardier, which is a good one, because of course it has been in the news and it's trendy.

You also mentioned that the lumber agreement could be used. That's more of interest to me, being from British Columbia, and the fact that I used to be in that industry.

Again, the United States has, I would think, fairly well-developed laws with which we'd be able to find bilateral agreement—and probably one of the first countries, since they're our major trading partner—but if that national interest clause or some senator seeking re-election down in the States can just trump the whole thing by bringing in a vexatious bill or anti-trade-dumping law, and it seems they can bring in almost anything at any time to override the competition aspect of it, what protection do we have? We try to be competitive, we try to play by the rules, but as soon as it gets into an election campaign or another problem, it's all out the window.

Mr. George Addy: That's why I think it's important to maintain some flexibility on our side.

Mr. Chuck Strahl: Yes.

Mr. George Addy: Maybe the process in responding to that question is, if it's the Attorney General, for example, who's given that task, if there are concerns on their part, they should enter into some discussions with the requesting state to ensure that our interests are protected. That may be the response.

Mr. Chuck Strahl: Thank you.

The Chair: Thank you very much, Mr. Strahl.

Mr. Savoy, please.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): Thank you very much, Madam Chair. I'll be very quick.

Thank you very much for your presentations.

Ms. Mayer, regarding your summary of discussion of the seven principles, I would like some clarification on the cost awards and summary dispositions. You say “Several other alternatives for improvement were also suggested.” Could you expand on that briefly?

Ms. Anita Mayer: I will have to go to my report. I don't remember it all by heart.

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Some of the participants wanted to expand it. For example, that proposed section 124.1 of the original proposal should apply to all mergers or proposed mergers and not just to notifiable transactions. Another suggestion, for example, was that other parties in addition to the commissioner should be able to ask for references or bring references or allow both parties to bring a reference to the tribunal. Some even suggested a third party with an interest in the hearing should be able to also bring a reference or be allowed to intervene.

In terms of cost awards, there was a suggestion that the tribunal be given the power to order the posting of security of costs. Another suggestion was to add criteria or a schedule of costs to make sure it doesn't get out of hand.

In terms of summary dispositions, an alternative proposed was to include lay members in the decision-making, not just judicial members.

Mr. Andy Savoy: Thank you very much.

In the PPF, what type of representation did you have from SMEs versus large corporations? What percentage would you say?

Ms. Anita Mayer: Probably about half and half.

Mr. Andy Savoy: About half and half.

Ms. Anita Mayer: Altogether. In some cases, we maybe had a few more SMEs than larger companies. In other cases, it was the opposite, depending upon which part of the country we were in. But I think in general it was about half and half.

Mr. Andy Savoy: Fairly good representation then.

Ms. Anita Mayer: Yes.

Mr. Andy Savoy: Third question. When you're talking about facilitating strategic alliances in improving investment climate, you talk about the two-track approach being attractive to the majority of participants in spite of their apprehension about particular aspects of the proposal. Could you expand on that briefly?

Ms. Anita Mayer: The two-track approach was the civil approach as opposed to the criminal approach. The concerns were about what would be criminal and what would be civil. They had concerns about where things would be placed eventually if there was a two-track approach.

Mr. Andy Savoy: Thank you, Madam Chair.

The Chair: Thank you, Mr. Savoy.

Mr. Rajotte, please.

Mr. James Rajotte (Edmonton Southwest, Canadian Alliance): Thank you, Madam Chair.

Thank you very much for coming in today.

I do want to follow up on the issue of private access. I'm not sure if I heard you correctly, Mr. Addy, but you said this is a decision for the committee to make. You didn't seem to want to get too involved in suggesting whether or not this should be in Bill C-23. You probably have more experience with competition and the Competition Bureau than anyone on this committee. If I could just ask you again, are you in favour of including some form of private access in Bill C-23?

Mr. George Addy: I'm on the record, Mr. Rajotte, in 1995 as advocating private access. I don't think there's any doubt on that.

Mr. James Rajotte: You do mention that there are alternative tools that could be used. Could you expand on what alternative tools you favour?

Mr. George Addy: The issue goes to why you want to think about private access today. In 1995, the concern I had was expending taxpayer dollars to fight a battle that is essentially a complaint between two multinationals. Why should the taxpayer pay for that? We were constrained for resources. That was the genesis for pushing in 1995.

The issue today, as I hear it, is that we want to create a tool for SMEs to be able to ensure that their complaints are dealt with. Either there's concern that the commissioner is not looking at them, or they're given a low priority, or they don't have a broad, national, public issue attached to them, and somehow there's a gap.

What I was suggesting in my response to Mr. Bergeron was that if the issue is concern about the cost implications of private action to a plaintiff, perhaps you might want to think about other tools, such as some process that would force the commissioner to issue a formal decision as to why a complaint is not being taken to the tribunal, and to do that within a fixed period of time, so that the small business individual at least knows what the commissioner thinks about it and that his or her complaint has been dealt with.

Mr. James Rajotte: You mean a formal written response from the commissioner.

Mr. George Addy: Yes.

Mr. James Rajotte: One of the things that is often mentioned is increasing the resources for the bureau itself. How much would that alleviate the concerns of people in terms of having the right of private access?

Mr. George Addy: When you're running an enforcement agency like that, you're always faced with prioritizing your work, and the prioritization involves a whole bunch of factors. Which case has the broadest public interest component? Which case is very significant from an economic impact? What case will lead to some clarification of the law that we need some clarification on? The resources will help, but I'm not sure it'll get at your problem or your concern.

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Mr. James Rajotte: This is a tough question. Do you know offhand what percentage of cases brought forward to you as commissioner went forward to the tribunal?

Mr. George Addy: I couldn't tell you as a percentage, but the number of contested cases, applications before the tribunal, are very, very few—one or two a year probably.

The Chair: Thanks very much, Mr. Rajotte.

Mr. Drouin, very briefly, please.

[Translation]

Mr. Claude Drouin (Beauce, Lib.): Thank you, Madam Chair.

Mr. Addy used Embraer and Bombardier as an example and raised an issue that was brought to my attention by my colleague here. When a foreign state has to describe the alleged behaviour and to clarify which provisions of the laws of that foreign state have allegedly been violated and the reasons why it is believed that people in Canada were involved, the person named in the search warrant should have access to this documentation. Could you tell us what the current situation is and what's the best way to deal with all this. Could you go over that again?

Mr. George Addy: The person against whom the order is sought should have access to the documentation. The way I read the bill, he or is not entitled to see those documents. When a request is sent by a foreign state or a foreign agency, I would hope there would be a letter or some other document describing the facts and the reasons for the request. The bill doesn't provide for the person who is the subject of the order request to see this document, especially before the order is issued.

In my hypothetical case, when the Canadian company knows that non legitimate reasons lurk behind a competition case and suspects that this process is being used for other purposes, if it were at least notified that a search warrant has been requested, it could go to the judge and say that upon reading the documentation produced by Brazilian company X, Y or Z to support its request, it's clear that it's not true. At least, the company would be up to par when the order is...

Mr. Claude Drouin: It could at least present its arguments.

Mr. George Addy: That's it.

Mr. Claude Drouin: Thank you.

[English]

The Chair: Thank you very much, Mr. Drouin.

We do have to move on. Very briefly, Mr. Addy, you say your one question is whether or not Canadian interests are being protected. Who would make that decision? Are you suggesting it would be the tribunal?

Mr. George Addy: When we discussed this issue in 1995, and if I recall a consensus out of the consultation process there, Madam Chair, the consensus was that it should be the Attorney General—this is not to criticize the commissioner, whoever that might be, but to ensure a third-party check. The mandate of the commissioner isn't really to protect the public interest of Canada. The mandate is what's in the Competition Act and the public interest may actually go beyond that. In 1995 the suggestion was that it would be the Attorney General.

The Chair: Thank you very much.

I appreciate both Ms. Mayer and Mr. Addy being here this morning and providing their briefs and comments. If you have any further comments throughout the process, please submit them to the clerk and the clerk will circulate them. We may have some questions for you as the hearings go on.

We're going to suspend now for about five minutes as we change witnesses. We have four more witnesses joining us. Again, thank you very much.

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The Chair: I'd like to call the meeting back to order, please. I would ask the witnesses and members to take their seats.

Mr. McTeague.

Mr. Dan McTeague: I seek the committee's indulgence. I have provided every member of the committee with a background as well as two proposals for amendments to Bill C-23, one giving effect to the provisions contained in C-472 dealing specifically with the private right of access, and the other on a less controversial point concerning access to the commissioner for referring competitive issues sector by sector to the Canadian International Trade Tribunal. Both of those are with every member of Parliament for discussion purposes.

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This document should have been already released, Madam Chair. The clerk is now providing copies as we go through this. There's nothing strange or sinister about this, Madam Chair, I can assure you. It contains everything that is in C-472. If there are any further questions, Madam Chair, I'd be willing to entertain them. This is simply the first start stage—

The Chair: Mr. McTeague, I'm not going to take any questions at this time. I'm just allowing you to table your amendments and discussion—

Mr. Dan McTeague: That's fine.

The Chair: —to allow people to know what it is you wish to discuss, or what you're proposing. I'm sure there'll be questions as time goes on.

We are going to return to our witnesses now.

We have before us, from the Canadian Chamber of Commerce, Ms. Nancy Hughes Anthony, the president and chief executive officer, and Paul Crampton, the chair of the Competition Law and Policy Task Force, from Davies, Ward and Beck, Barristers and Solicitors. From the Toronto Board of Trade, we have Mr. James Musgrove, who is also a lawyer. From the Retail Council of Canada, we have Mr. Peter Woolford, the vice-president, policy analysis and government relations. And from the Canadian Survey Research Council, we have Mr. Ken Deal, the president.

I propose that everyone do opening comments in about five minutes so that we can move to questions, because there are many questions at this committee. That being said, I'll turn to the Canadian Chamber of Commerce.

Ms. Hughes Anthony.

Ms. Nancy Hughes Anthony (President and Chief Executive Officer, Canadian Chamber of Commerce): Thank you very much, Madam Chair, and good morning.

The Canadian Chamber of Commerce is pleased to have this opportunity to submit comments on Bill C-23. I hope the members of the committee have the brief

[Translation]

—you have it in French and in English—

[English]

with summary comments, which has been distributed to you. We will not read that brief. We will just highlight some of the important findings in it.

[Translation]

You no doubt know the Chamber of Commerce. It's Canada's largest and most representative business association. It speaks for approximately 170,000 members, 80 percent of which are SMEs, through some 350 local chambers located in every province and territory and all federal constituencies.

The Chamber of Commerce considers that the Competition Act, which defines many of the rules of our economy, is one of the key pillars of Canada's economic framework legislation.

[English]

When we last appeared before you in May 2000 we endorsed the efforts of this committee to search for ways to improve the Competition Act. Things can always be made better, and certainly the Competition Act is no exception.

However, any changes to the Competition Act have a tremendous impact on the economy. The chamber is prepared to work constructively with this committee, with the Competition Bureau, and with the minister in the ongoing substantial efforts that will be required to develop and refine ideas for improving the act.

In this regard, we understand there will be a round table in the coming months. We look forward to participating in that round table to discuss future potential amendments to the act.

The consultative process that led to Bill C-23 was designed to identify consensus matters that could be the subject of a government bill. From the chamber's viewpoint, the amendments proposed in Bill C-23 correctly reflect the consensus that was achieved during the Public Policy Forum's consultation process last year. Accordingly, as I have stated in writing to the minister, the chamber is broadly supportive of Bill C-23 being passed into law in its current form as presented to the committee.

Having said that, following my few comments my colleague Paul Crampton will outline some constructive suggestions that we believe would improve the bill, as well as some ideas for the process for making future amendments to the bill. Before I turn the floor over to Mr. Crampton, I'd like to very briefly touch on the issue of private access to the Competition Tribunal, since it is now within the scope of this committee to consider.

When we appeared before you last May, and in our written submissions to the PPF last June, we were unable to take any position on the subject of a potential right of private access to the Competition Tribunal. You may recall we simply stated the proposal to create such a right had attracted strong feelings within the chamber on both sides of the issue.

We have continually invited input from our membership regarding our work related to potential amendments to the Competition Act. We have made our submissions and committee testimonies available to our membership and have requested input from our members while developing these positions.

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What I can tell you from this experience is that we have not received a groundswell of support for the introduction of private access. In fact, we have not received any support for this proposal at all. We have heard from numerous members who are strongly opposed to it.

This is not to say that this represents a conclusive statement from our entire membership on the issue. What it does express, Madam Chair, in my view, is that this does not appear to be an urgent priority among our small and medium-sized members. They are concerned with many other issues, particularly at this difficult time in the economy, and there is no consensus within our membership in support of private access to the Competition Tribunal.

[Translation]

I would like to underscore that the Canadian Chamber of Commerce is your strongest ally in your efforts to strengthen the Competition Act and ensure more efficient and effective competition rules and enforcement for Canada's small and medium sized enterprises. We are deeply committed to this goal and openly offer our help to this committee, the bureau and the minister in any initiative aimed at achieving this goal.

[English]

I must stress, though, that the chamber is unconvinced that the right of private access is the best instrument to help achieve this goal. We are concerned about the many potential negative ramifications that could result from its implementation, and examples of some of those are in our brief before you today.

We believe there are numerous alternative approaches that may better address SME concerns. For example, the federal government could consider increasing resources to the Competition Bureau, as was mentioned earlier, creating an SME fast-track branch within the bureau that can concentrate specifically on small business. Introducing a mechanism by which the bureau would be required to provide a written response, which I believe was also raised earlier, would be another suggestion. Also, decriminalizing certain provisions of the act while reinforcing the abuse of dominance provisions could be considered.

So there is a host of ideas, Madam Chair, that have come forward, but our position continues to be that the time is not right for the creation of the right of private access to the Competition Tribunal.

The Canadian chamber therefore urges this committee to exclude private access from this round of Competition Act amendments. We propose that private access, along with other suggestions that may be put forward by the chamber or other groups, be the subject of discussion for a potential future round of amendments.

With this introduction, I'd like to turn to Paul Crampton, who is the chair of our Competition Law and Policy Task Force. He will touch briefly on specific comments on Bill C-23.

Mr. Paul Crampton (Chair, Competition Law and Policy Task Force, Canadian Chamber of Commerce): Thank you, Madam Chair and honourable members. I'd like to echo Nancy's thanks at having been provided with this opportunity to appear before you and express our views on Bill C-23.

At the outset I'd like to say the chamber is quite pleased that your interim report recognized that the overriding objective of the act is to protect and promote the process of competition, as opposed to specific competitors. You may be interested to note that the PPF also found there was broad agreement that the act as framework legislation needs to be consistent in protecting and fostering competition rather than protecting competitors, and that's relevant to something I'm going to come to in a few moments.

In terms of our specific comments on Bill C-23, let me say first that, with respect to international enforcement cooperation, the bill has addressed many of the concerns we and other stakeholders had identified in relation to Bill C-471. For example, it's a lot clearer that the proposed framework is limited to civil matters. The framework also contains in section 30.01 many of the safeguards and protections that we and other stakeholders suggested be part of any scheme authorizing the exchange of information between the bureau and its foreign counterparts. The bill also includes virtually all of the protections currently included in the framework for enforcement cooperation in respect of criminal matters.

However, there are two particularly noteworthy remaining shortcomings in the bill as it relates to the exchange of confidential information between enforcement authorities. First, it doesn't address information already in the possession of the commissioner. Typically, parties would supply an awful lot of information to the commissioner, pursuant to either merger filing obligations, for example, or the standard process of preparing a submission to the Competition Bureau, together with voluminous appendices in support of the submission.

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A lot of that information is supplied voluntarily, and the bill doesn't address voluntary information whatsoever. So we believe the absence of treatment of voluntarily supplied information and the absence of treatment and protection of information already in the commissioner's possession are two particularly noteworthy shortcomings that should be addressed.

You should also be aware that the bill raises a significant issue regarding the nature of the confidentiality protections in the act. The bill would require the Minister of Justice to be satisfied that the protections in the confidentiality laws of the foreign state, with which Canada proposes to enter into the type of agreement contemplated by the bill, are substantially similar to the protections afforded by Canadian laws. However, the nature of the protections provided in Canadian law, and specifically in section 29 of the act, has been the subject of considerable debate for a long time, going back to when Mr. Addy initially launched the review of the act in 1995.

There's a serious debate within the legal and business community regarding the scope of the protections in section 29. So if the benchmark for ascertaining whether an agreement meets the requirements of Canadian law is section 29, then section 29 itself is fundamentally flawed.

The bureau may say, we don't have any problem with the meaning of section 29; we know what we think it means, so we're not going to have any difficulty assessing whether the laws of a foreign state provide substantially similar protections. The problem is that a significant segment of the Canadian public does not agree with the commissioner's interpretation of the meaning of section 29, and it should be resolved once and for all.

Regarding temporary orders, our most fundamental concern with Bill C-472 has been addressed. That concern is related to the fact that the commissioner, who is the investigator, was also going to be the adjudicator when it came to issuing the orders. Bill C-23 addresses this issue, and we're quite pleased that it does.

However, the bill doesn't address certain other deficiencies that were identified with Bill C-472, as it related to temporary orders. This gets back to my comment about protecting competition versus competitors.

In proposed paragraphs 103.1(2)(b) and 103.1(2)(c), the bill would permit an order to be made if the tribunal simply found that a person was likely to be eliminated as a competitor, was likely to suffer significant loss of market share—which happens every day, any time a significant initiative is implemented by a competitor—was likely to suffer a significant loss of revenue, or was likely to suffer other harm that couldn't adequately be remedied by the tribunal. These are all focused on the impact on the competitor, without any reference at all to the impact on competition.

We submit that these specific paragraphs ought to be deleted. If they were deleted, this would leave a straightforward and appropriate test to be satisfied, which is whether injury to competition that cannot adequately be remedied by the tribunal is likely to occur. This is the test that the bill offers in proposed paragraph 103.1(2)(a).

There are a couple of other shortcomings with the bill, as it relates to temporary orders. It precludes a right of appeal from the issuance of a temporary order, and it allows temporary orders to be made without any notice whatsoever to a party who is going to be the subject of the order. This raises a lot of the same due process issues Mr. Addy identified, in connection with the exchange of enforcement information.

In terms of the proposals to streamline the Competition Tribunal's process, our only comment is that the provision in proposed subsection 124.1(2) should be extended to persons who are the subjects of inquiries. In our view, it's just not right to provide the commissioner with the ability to refer a matter of interpretation, process, practice or procedure to the tribunal without providing the same right to a person. It's difficult to believe that anybody could object to giving a person, who is the subject of an inquiry under an act, the right to go and clarify the meaning of the law he's being investigated under. So we think that needs to be cleaned up. We made the same comment on the earlier bill last year.

On a more positive note, we're broadly supportive of the provisions that would create a new offence, in respect of the deceptive use of the mail system or the Internet.

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We're also supportive of the proposal to create, in proposed section 124.1, a statutory framework for the issuance of binding advisory opinions.

Very briefly, in terms of the process for making future amendments, we believe that ideally it should have the following five basic stages.

First, it should begin with the laying before Parliament of this committee's final report.

Second, the government should issue a detailed white paper reflecting the principles in your report.

Third, there should be a detailed consultation process that would not be confined to two or three months, the way the PPF process was initially articulated. It should be at least a six-months-to-a-year process, to make sure that organizations such as the chamber can go out, consult their members, circulate drafts, get comments back, and ultimately wind up with a position to submit.

Fourth, the draft bill should be prepared and circulated to some experts, as in the case of Bill C-20 and Bill C-23. But our suggestion would be that instead of getting 12 hours' notice to comment on the bill, we should be given a little more notice. Finally, the committee should hold hearings.

So in a nutshell, the process would start and end with this committee, but it wouldn't happen entirely within the committee. We think if the process last year taught us anything, it is that you need significantly more consultation and debate. There's a broad range of people out there in society and in the economy who believe that the risks associated with hasty amendments to the act are just too great; therefore we need something a little more substantive.

Thank you very much.

The Chair: Thank you very much, Mr. Crampton. That was a little longer than five minutes, so we'll try to get back to our schedule here. I think we should also all be aware that the Competition Act is an ever-evolving process. Everyone's been on notice that Bill C-23 was coming before this committee for months now, not 12 hours.

I'm going to turn to Mr. Musgrove from the Toronto Board of Trade, please.

Mr. James Musgrove (Lawyer, Toronto Board of Trade): Thank you very much, Madam Chair, members of the committee. I will attempt to be closer to five minutes. We'll see how I do.

You have my brief and I won't refer to it in detail.

The Toronto Board of Trade represents about 9,000 businesses located in Toronto and has taken an interest in competition law as an important piece of—

The Chair: Mr. Musgrove, your brief is in English only, so we won't circulate it until it's translated. If anyone submits an English-only brief, it has to be translated before it's circulated to all committee members. So I apologize for that.

Mr. James Musgrove: I apologize. You will have it shortly. I won't read it, but you can look at it at your leisure.

This is important legislation. It sets the ground rules for our economy. It is our industrial policy, and it's important to get this right. That's why the Toronto Board of Trade takes an interest and is very pleased to be here today to express its views to you and to have a dialogue with you.

I propose to say a word about the process issues. I propose to then say a word about four specific sections of Bill C-23: proposed section 53, the deceptive contest provisions; the foreign information sharing provisions; the interim injunction provisions; the tribunal process provisions; and then, at the end, a very brief word about private access.

With regard to process provisions, the Toronto Board of Trade agrees entirely with the Chamber of Commerce that it is an optimal process, and we encourage it.

Turning to the four matters within Bill C-23, starting with proposed section 53, the deceptive contest provisions, we have two concerns. Certainly, the Board of Trade is as happy as anyone else to avoid deceptive contests. They do our members no good. But one is a wording provision.

The wording in proposed subsection 53.1 says if the notice gives the impression you have won, will win, or will win on meeting a condition and all of the other provisions, then it's unlawful. That is typically how standard promotional contests are set up, if your name is drawn. I know that's not what's intended, but that is a risk. I've been told an amendment will be introduced to change the language. I hope it is.

I would encourage this committee to endorse that amendment, to avoid that technical problem, and also in its report to say that this provision is not intended to catch the standard draw—that it's perfectly straightforward—nor is it designed to catch answering a skill-testing question, which is required by the Criminal Code.

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It is designed to capture misleading scams. That's clearly what it is intended to capture. I think the amendment, which I understand the bureau would bring forward, should address that problem, and I encourage the committee to endorse it.

More broadly, however, if the advertising material for a contest, for a promotion, is misleading in a material respect, it is already unlawful. There's no doubt about that. Whether the bureau effectively enforces that or not, I don't know. I know they do enforce them under the existing law—and you may take the view “not effectively”. I don't have a view. But if that is the concern—we've heard before about enforcement resources—there may be an answer here.

What concerns me is not that deceptive contests not be attacked; they should be. They can be attacked under the existing law, and a specific amendment will invite the court at some point to think they must have intended something else, not just a straightforward, misleading representation about whether you've won a contest and how valuable your prize is, that sort of thing. So that is my concern with that provision. That is the Toronto Board of Trade's concern and the concern of other organizations, like the Association of Canadian Advertisers. As to prohibition on deceptive representations about contests, there's no debate.

Regarding information sharing with foreign antitrust officials, I endorse again the Chamber of Commerce's view here. I point out specifically that it is in the interest of the enforcement of Canadian competition law, not only international arrangements, that section 29 of our act be strengthened, because if it is not, if the bureau can share information it receives voluntarily from people, freely, then people will stop supplying the bureau with as much information as they previously have. That is just a logical conclusion to reach, and that will make the enforcement of the Canadian act more difficult, which is contrary to the goals sought to be achieved.

There is no logical reason, in my view, that section 29 ought not to provide the same level of protection to voluntarily provided information as for information obtained pursuant to compulsory process. There's no logical argument that it should not be. If that protection were given, there would be no disincentive for people to cooperate with the bureau and help them with their inquiries in that regard.

With regard to the interim injunction powers, the Board of Trade is supportive of granting these powers—supportive of granting them to the tribunal, not to the commissioner him or herself. In fact, this committee may want to have a look at whether the airline powers are now more appropriately given to the tribunal rather than the commissioner, because the parallel is there.

We also endorse the particular comment made by the Chamber of Commerce that the test as to lessening of competition in the first section of the provision is correct, but the secondary tests of injury to a competitor are not the right tests. This is a law designed to protect competition, not particular firms. As Mr. Addy said this morning, the process is that some firms win and some firms lose. The injunction power should be there, but the test should be injury to competition, not injury to competitors.

With regard to the tribunal process issues, again, I can save a little bit of time by endorsing what Mr. Crampton has already said. I want to emphasize one point he made about the right of the commissioner to refer matters of process, of interpretation, without there being a respondent there, without there being a respondent agreeing, and without there even necessarily being an actual proceeding or dispute.

I submit this is a potentially dangerous provision, because what you then have is one half of an argument before the tribunal, arguing the act should be interpreted generically in this way. I'm very persuasive when I'm the only one arguing, but if I have an opponent, I usually lose. There's a value to that process, and if you have only one side of the case being put on the interpretation of an important provision of the act, the tribunal will hear half the case. They may or may not appoint a friend of the court to make the argument on the other side, but it's not the same as a motivated party with an actual interest in the outcome making the argument.

Whenever a matter is referred to the tribunal—and I strongly support the right of the tribunal to hear matters on referral; I think it will speed things up and make it more efficient—there should be two parties. And it seems to me the right to refer things should be reciprocal. Either party should be able to refer it.

Those are the four aspects of Bill C-23 we want to speak to specifically, but broadly stated, the Board of Trade is in support of Bill C-23. We have these particular concerns, which we urge you to consider.

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Private access is part of your mandate and it has failed through the Public Policy Forum process to achieve a consensus. I submit that is because this is a difficult matter upon which reasonable people can and do differ.

There are a couple of concerns we have about private access. One is the practical type of concern, that it's just not a practical remedy because of its cost, etc., for small businesses; that no matter what the safeguards are, it can and will be used strategically; that it will cost respondents literally millions of dollars, so it will cost the applicants millions. It will also cost the public purse a fair bit, because the commissioner will take an interest in some of these and intervene, or consider intervening, and investigate them. The tribunal process itself is not inexpensive. So there are many costs to private parties and to the public purse.

But more importantly than those practical matters, I submit, are the consequences on the economy generally. This private access provision will apply to vertical conduct—refusal to deal, tied selling, exclusive dealing, those kinds of vertical arrangements essentially between suppliers and distributors.

While that kind of vertical conduct typically does not injure the economy—occasionally it does, and that's why the provision is there—it does, of course, injure particular competitors; therefore, those competitors may wish to bring private remedy to save their business. It's perfectly understandable. As a result of having the power to do that, we'll have proceedings brought where the injury is private.

But the other side of the coin is if you can't conduct the conduct, if you can't pursue it, or if you are inhibited because you know these kinds of proceedings can and will be brought from time to time and you therefore don't undertake the arrangements, then injury to the economy at large occurs. But it is diffuse. It is imprecise. It is unspecific. There is no single victim to come forward to make the case, to complain, to bring political pressure, to bring a legal case; yet we're all poorer for it.

The kind of thing I have in mind is that we'll have fewer package deals or bundling of products together for fear of tied-selling proceedings. We'll have fewer distributor terminations for fear of refusal-to-deal proceedings. We'll have fewer contractual distributor arrangements. In other words, you'll just do it in-house—you won't engage a separate contractor—to avoid all of those kinds of complaints. There will be fewer exclusive-dealing arrangements, because the risks of changing those arrangements or of those arrangements going sour have just increased with private access at the margin.

The Chair: Mr. Musgrove, I'm going to have to stop you there, because we're really taking way too much time with the presentations this morning, so you're—

Mr. James Musgrove: Thank you very much, Madam Chair.

The Chair: Thank you very much. You tried, but you're already at ten minutes, so I'm going to let you expand during question period, if you don't mind.

I'm going to turn to Mr. Woolford now, from the Retail Council of Canada.

Mr. Peter Woolford (Vice-President, Policy Analysis and Government Relations, Retail Council of Canada): Thank you, Madam Chair. I really will try to keep to five minutes.

[Translation]

I'm sorry, I only have the English version of our brief. There was quite a lively debate among our members, and this is why I can't provide you with a copy of our brief in the two official languages this morning. It's because the issue of private access stirred up an interesting debate among our members.

[English]

I'd like to introduce briefly the Retail Council of Canada. We represent around 9,000 members across the country, both large and small. In fact, the great majority of our members are independent retailers running their own stores. We have an interest in this because the liveliness of competition in the marketplace, especially in retailing, is one of the hallmark features of our industry.

Let me talk very briefly to two provisions of the bill, and then talk about private access and a little bit about process.

With respect to deceptive contests, we applaud the government's effort to move against the fraud artists who use the cover of business to effectively defraud Canadians of their money, and we'd like to see them driven from the market. We support the amendment. We have some concerns, I believe, that were identified by the commissioner and again mentioned this morning that it be clarified this is oriented toward fraudulent practices, and we support the amendment with the changes suggested by the commissioner of competition.

With respect to temporary orders, again we support giving the tribunal the power to make these temporary orders with respect to the civilly reviewable provisions of the act. We would again suggest that for the process to be fair, these orders not be issued ex parte, but that the party in consideration be given notice and be given the opportunity to make its representations as well, for some of the reasons that were discussed here just a few moments ago.

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Again, as most people do, we view the act as protecting competition rather than competitors, and for that reason we would recommend the removal of proposed paragraphs 103.1(2)(b) and (c), focusing the test instead on competition alone and not on the impact on private competitors.

Let me turn briefly to the issue of private access. As I said, we have had a lively discussion amongst our members on this issue. I know there has been quite a lively public discussion on this matter. It's our sense that we do not yet have a consensus on this matter, and we would benefit from some further discussion in order for the parties to achieve this.

We would suggest also that in the course of this discussion the debate go beyond sections 75 and 77 to at least consider, here at the committee or elsewhere, the implications for the act of whether it should be extended to other sections at some point in the future. Once you start opening sections to private access it answers the question in principle as to whether the commissioner should be the single entry point into the tribunal. Some of the broader implications should be looked at when that decision is being made.

Let me turn briefly to the process for amending the act. We certainly do support the government's incremental approach to changes to the act. We feel this is a responsible and sensible way to go on changing such an important piece of framework legislation. We would recommend that this committee consider the amendments in Bill C-23 expeditiously and report back to the House of Commons as quickly as possible.

We would suggest that any other changes, including those dealing with private access, go through a thorough discussion, similar to what has happened in Bill C-20 in the previous Parliament.

In addition to having a discussion of amendments amongst the various marketplace parties, we think there is some value in inviting those parties to participate with the government in the policy development phase as well. Once the government has decided upon the policy directions, it can then draw upon the experience and knowledge of marketplace parties for the detailed writing of the policy for consideration by Parliament.

Madam Chair, those are my opening remarks. We'll be glad to take any questions.

The Chair: Thank you very much, Mr. Woolford. That was less than five minutes.

I'm going to go to Mr. Ken Deal, the president of the Canadian Survey Research Council. Mr. Deal, please.

Mr. Ken Deal (President, Canadian Survey Research Council): Thank you, Madam Chair and honourable members.

The Canadian Survey Research Council is pleased to appear before the committee as it reviews Bill C-23. The CSRC serves as an umbrella organization to bring together all the varied interests in the market research and survey research community, including companies that supply and conduct survey research and organizations that use the findings from those research studies.

One of the pillars of the CSRC's mandate is to protect the good relationship that exists between market and survey researchers and the public. As such, the CSRC strongly supports the provisions of this bill dealing with deceptive contests and hopes the committee's review will result in swift legislative action. The CSRC suggests, however, that Bill C-23 could go further to protect Canadians from all forms of deceptive solicitations, not just deceptive contests.

When the privacy rights of Canadians are infringed upon, as they are with deceptive contests, mistrust amongst the public is generalized to all legitimate industries that rely on unsolicited communications to conduct their affairs. For market and survey researchers, privacy rights set the parameters of professional conduct for the industry. Researchers have fostered a relationship of trust with their respondents. This trust speaks to the quality of the information researchers collect; hence, the better response rates are for researchers, the more likely it is that corporate and public leaders will make decisions based on people's true and accurate opinions.

Unfortunately, the good relationship researchers enjoy with the general public is increasingly seen as a conduit for deceptive means of solicitation. When unscrupulous marketers abuse privacy rights, mistrust is created amongst the public for all unsolicited communications, regardless of their legitimacy. Generalization sets in to prejudice everyone.

For this reason, the CSRC believes Bill-23 should be amended to address all forms of unscrupulous marketing. If mistrust encroaches on the relationship market and survey researchers enjoy with Canadians, it will taint the quality of information collected. This can lead to situations where policymakers, for example, base their decisions on data that does not accurately reflect Canadian attitudes and opinions.

In 1999, strict provisions were added to the Competition Act that go a long way to deter deceptive telemarketing practices, but by telephone only. At the time, there was an immediate need to deal with fraudulent telemarketers, an illicit practice costing Canadian businesses millions of dollars per year. Building on the work already accomplished, the CSRC asked the committee to consider amending the act to recognize that solicitation practices continuously evolve. Yesterday it was deceptive telemarketing; today it is deceptive contests. Broader provisions would not be burdensome in any way to legitimate industries; however, they would go a long way to protecting the public.

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The market and survey research industry has its own steps to curtail deceptive solicitation practices within its industry by enshrining the principles of privacy and fair business practices in the way it interacts with Canadians. In 1994 the CSRC created the survey registration system to keep track of market and survey research projects being conducted in Canada and to provide the public with information through a toll-free number. For the first time the public has access to a mechanism to attest to the veracity of a given research project and to ensure that personal information is being used for research and not unscrupulous selling purposes. The system also receives complaints—very few of those—and works to resolve public concerns.

Deceptive solicitation practices, however, go beyond what an industry can control. They damage legitimate businesses and their ability to perform important functions for Canadian commerce. Much has been done by government and by industries to put an end to deceptive solicitation. Bill C-23 will help by prohibiting one area of fraudulent solicitation—deceptive contests. Broader stipulations in the Competition Act could go much further by putting an end to all occurrences of deceptive solicitation, regardless of the means and medium by which they are perpetrated.

In conclusion, I have three points. The market and survey research industry recognizes that a balance must exist between the need to interact with Canadians and respect for a person's right to privacy. While the CSRC supports Bill C-23, notably in its provisions to protect the privacy of Canadians, it believes that the act could go further to respond to the public concern in the area of deceptive solicitation. The CSRC asks that the committee seize the opportunity presented by this current review to put an end to all occurrences of deceptive solicitation regardless of how they are perpetrated and which media is being used.

I wish to thank the committee for considering my submission today on behalf of the Canadian Survey Research Council.

The Chair: Thank you very much Mr. Deal.

Now we're going to turn to questions. I have many questions. I remind people that the rounds are supposed to be five minutes. That means shorter questions and shorter answers will allow more questions to be asked.

Mr. Penson, please.

Mr. Charlie Penson: Thank you. I'd like to welcome the panel this morning... a good discussion, trying to fine-tune Canada's competition law, which is a worthy goal.

I am a little concerned that some people think you can substitute healthy competition in the marketplace with heavy competition law. It seems to me that the more competitors we have, the better chance there wouldn't be any need for competition law, so those conditions need to exist.

We heard in the earlier panel that there's a lot of misunderstanding about what the laws governing competition are in Canada. Mr. Musgrove identified an area in the airline industry where we have seen some exemptions in the past. Some of the people at WestJet are saying, well this competition policy doesn't work for us anyway.

There are lots of ways of getting around problems that are not addressed by competition law. I'm concerned that we tend to mislead people into thinking we can substitute competition law for the marketplace.

Mr. Musgrove, you identified the airline industry as a problem area. WestJet are saying, essentially, that there are many ways of driving out competition, whether through prices or extra capacity thrown on... From what I'm reading, they're saying this doesn't work for us anyway, so we just have to rely on the marketplace, because there isn't the kind of protection needed. What's your response to this?

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Mr. James Musgrove: My first response is my comment about airlines. The commissioner in the airline business can make orders himself or herself. I think that's wrong. I think it would have been wrong in Bill C-23. It's not in Bill C-23. Instead we have an expedited process for the tribunal to make an order. I think it is the right process. In the airline business it should be set up that way too.

Turning to the substance of the airline question, I don't purport to be knowledgeable about the industry. Obviously, it's a peculiar situation because we have one dominant carrier in Canada. We have very significant barriers to entry into the business. Many of them are made by government.

My initial view of the right answer to the airline situation is, I think, the same as the commissioner of competition. If we reduce some of the barriers for foreigners to fly in Canada, we will have more competition in the air.

I'm not an expert on the airline industry. There are many people who know a great deal about the airline industry. We have a dominant player. We have fringe players. It's a very difficult situation.

An obvious way to address it, in the marketplace rather than in the courtroom, is to reduce government restrictions so there can be more participants in the marketplace. Whenever you can have more competitors, as you say, rather than more competition law, it's a better answer, with all other things being equal, in my view.

Mr. Charlie Penson: In terms of overall business in Canada, does anyone on the panel have an estimate as to what portion of the business would actually fall under, or use, competition policy that is already there? I would think it's a small amount.

To respond to Mr. Musgrove, my point, again, is to let the market decide. Take the restrictions off. There would be the possibility of more players being involved who could certainly look after some of this area rather than rely on competition law.

The Chair: I think Mr. Woolford would actually like to answer.

Mr. Peter Woolford: Thank you, Madam Chair. I think you still do need the law in a number of areas.

For example, there were the amendments this morning dealing with deceptive contests. In the marketplace, you do have individuals who are not there to do business. They are there to commit crimes against Canadians in the guise of doing business. The competition law serves a very valuable role in helping the government to attack that kind of behaviour.

Mr. Charlie Penson: Isn't it already a criminal act?

Mr. Peter Woolford: You can proceed with it under fraud, I would suppose. I think it's useful to have.

I was going to go on. In the deceptive practices area, there are lots of civil instances where companies will push the edge of the law and step over it. Again, having a clearly established set of rules and requirements in that area is very useful for the legitimate competitors who want to stay responsible.

Mr. Charlie Penson: It's an interesting area.

The Chair: Thank you, Mr. Penson.

I have Mr. Crampton. Then I'm going to have to move on.

Mr. Charlie Penson: Are we finished, Madam Chair? I had another question.

The Chair: You are out of time. I'm going to have Mr. Crampton answer your last question, then we have to move on.

Mr. Crampton.

Mr. Paul Crampton: Thank you. My sense is there might be a bit of a misunderstanding as to what the Competition Act does. The Competition Act is supposed to achieve the objective of allowing the marketplace to work. I think to a large degree it's very successful. In some cases, the process of competition may lead to a dominant firm, in which case you need provisions on abuse of dominance. Persons may decide to compete less effectively than the market would dictate, so you need provisions addressing conspiracies.

Mr. Charlie Penson: Has it worked in the airline industry?

Mr. Paul Crampton: I think the commissioner has correctly identified the fundamental problem with the airline industry. There is a government barrier to competition in the form of a restriction on the ability of foreign carriers to enter into Canada and compete. It's the main problem. People are wrestling with how to fix it in a second-best way. The best way is to open up the market and let the market do what it does best.

The Chair: Thank you very much, Mr. Crampton.

Mr. Volpe, please.

Mr. Joseph Volpe (Eglinton—Lawrence, Lib.): Thank you very much, and welcome to all the panellists.

• 1110

Madam Anthony, when you were giving us a presentation on the membership you consulted, you pointed out that of the 170,000 members, only 34,000 are not small businesses. You didn't give us an indication of the breakdown and the response from the two sectors. What was the response among the 34,000 who are not small businesses but I guess are identified as large businesses?

Ms. Nancy Hughes Anthony: I could give you a little detail on how we consult with our members, because our members are so broad and diverse.

Mr. Joseph Volpe: No. Could you just give me the answers? I know we're pressed for time.

Ms. Nancy Hughes Anthony: Sure.

We have a competition law and policy committee, of which Mr. Crampton is the chair, that involves any member who wants to have a discussion on anything the committee chooses to raise. As I mentioned in my remarks, every two weeks we put out a bulletin for our members on all the issues we're working on. At least five or six times, since last May, we put out information on Competition Act amendments and how we are working on them. We invited people to contact us and express their interest. We had no response from the general membership contact.

Mr. Joseph Volpe: The 80% of membership.

Ms. Nancy Hughes Anthony: It is somewhat unusual. If you put out a call to action on border issues or something like that, you will get a response.

As I said in my remarks, I don't think this is a definitive consultation with every single member who belongs to the Canadian Chamber of Commerce. The people who responded, largely through our competition law and policy committee, the ones who sought to be involved in the PPF process, were more opposed to the idea of private access. We did not have anyone on the positive side.

Mr. Joseph Volpe: Did they come from the 20% or 80% of the membership? That's what I'm trying to get at.

Ms. Nancy Hughes Anthony: I would have to go back, Mr. Volpe, and find out exactly who sat on the committee.

Mr. Joseph Volpe: Did we survey those people? If we did, can we get the breakdown on which of the two groups responded to a request to comment on Bill C-472?

Ms. Nancy Hughes Anthony: Sure. I would ask, through the chair, how can I be helpful on this? What is the purpose of such an investigation? I'd be happy to do it.

Mr. Joseph Volpe: The purpose is to get a sense of where your membership is coming from and what segment of the membership is interested. I made a note earlier that it didn't seem to me small and medium-sized businesses would be terribly concerned about competition from a level playing field. A level playing field really is someone who is their size.

Ms. Nancy Hughes Anthony: As I said in my remarks, I don't have any groundswell that says to me small and medium-sized businesses have this on their radar screen.

Mr. Joseph Volpe: I wouldn't be surprised. It's why I asked you the question on where the responses came from.

Ms. Nancy Hughes Anthony: Yes.

Mr. Joseph Volpe: If you didn't get the groundswell of response, you're confirming my sense of the reaction.

I'm sorry to be cherry-picking. If I take some of the comments that have come forward, injury to competition and not injury to competitors should be the test. I think it was Mr. Musgrove who indicated it. Small and medium-sized businesses are all too happy to be in competition. They welcome competition because the ultimate objective of the competition is obviously to attract a greater buying public. Without it, no one's going to be in business.

From the responses we've been getting this morning, and from Mr. Crampton, as well, the ones who have the capacity to crimp the competition are those who fall in the 20% of your membership, not in the 80% of your membership. It's why I'm trying to get a handle on the breakdown of the responses you've been getting.

Ms. Nancy Hughes Anthony: I think it is fair to say, through the chair, I'd have to go back again and look at exactly who was involved at each step of the way and went to which consultation. Small businesses did not pick this up as an issue. They did not bring this forward as something with which they were concerned.

We had a recent annual meeting in Winnipeg in September. This is not a subject people were raising or saying their members were on the warpath about. I think there are many other issues at the moment that are affecting small business very seriously. This is not one that seems to be at the top of people's list of priorities.

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Mr. Joseph Volpe: To come back to my fundamental basis—

The Chair: This is your last question, Mr. Volpe.

Mr. Joseph Volpe: Yes.

The fundamental basis for all questions regarding competition is the impact on the consuming, buying public. So it may not register as an issue for those who are in the business of providing that service, but it is an issue for the consuming, buying public.

A colleague opposite just gave us an indication of the impact of one competitor, Air Canada, versus a smaller competitor, WestJet. I realize this isn't the forum to discuss all of that, but I hope you get a sense of what drives the question. That is, you're telling me you don't have a sense of what 80% of your members may be saying, and you're representing to me—and I hope you'll dispel this inference I've drawn—that the 20% of your membership that is big business, and may have some interest, are the ones that have actually given you a sense of how to contribute to this process.

Ms. Nancy Hughes-Anthony: But if you look at what I said this morning, I firmly believe there should be continuing consultation and discussion, particularly with small and medium-sized enterprises, about how to ensure that they feel included in the provisions of this particular act.

I'm saying, though, that as a practical matter, the issues that are dealt with under Bill C-23 are important ones to get on with, and I would urge the committee to do so. It would have the support of the chamber, subject to a few friendly suggestions. Let's have a good discussion about whether it really is private access that is the desired mechanism, or are there other things we can do that would improve SME access? That would be my suggested approach.

The Chair: Thank you very much.

I'm going to have to move on to Mr. Bergeron, but I do want to remind the witnesses that that's one of the discussions we are having, a good discussion on private access. We have no intention of hurrying up Bill C-23 if there is not the opportunity to provide a discussion on private access. I want to clarify that.

[Translation]

Mr. Bergeron.

Mr. Stéphane Bergeron: Thank you, Madam Chair. I'd like to thank our witnesses for their presentation and for being here today.

I'd like to ask a couple of questions to Ms. Nancy Hughes Anthony. First, I do note that, in general, you support the bill's various provisions. I do note too that you have concerns about the provisions dealing with private access, although I'm not sure to always grasp the reasons of those concerns.

I'd like maybe to ask you a question about a point you raise on pages 5 and 9 of the English version of your brief. I know it's for future consideration, so to speak, and that you are suggesting a process for making future amendments to the act and eventually introduce these proposed modifications, but I would still like to hear your comments on this.

First, you say on page 5:

Decriminalize the provisions of the act relating to predatory pricing, price discrimination and price maintenance,

Does this mean you suggest also amending the Criminal Code?

Ms. Nancy Hughes Anthony: No, it does not mean at all modifying the Criminal Code. Maybe, I'll ask Mr. Crampton to comment also. In some provisions of the act, the test or the standard that has to be met is so strict that it's very difficult to get convictions. It requires a lot of time and it costs a lot of money. Maybe it's not something that can be done overnight, but it might be considered, I think. Could we find a way of improving the efficiency of the act in some areas, for instance, by replacing a criminal conviction by an administrative penalty?

May I ask Mr. Crampton to follow up?

[English]

Mr. Paul Crampton: We recognize that some of the issues, perhaps the most important issues with which this committee has been wrestling over the last few years, have all come back to predatory pricing, abuse of dominance, and how to deal with situations that arise in an expeditious and an effective manner.

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So we're saying, rather than creating a right of private access for which the case doesn't appear to have been demonstrated, and for which there doesn't appear to be a demand from the people in whose benefit it has been offered as a possible solution, rather than creating that framework, let's look at other ways to solve the problem.

One of these ways is to decriminalize some of the pricing practices, because it's very difficult for the commissioner to establish contraventions of those provisions on the criminal burden of proof. So if you decriminalize those practices and rely on the abuse of dominance provisions, first of all, the commissioner would benefit from a lower burden of proof, and secondly, if you beef up the abuse of dominance provisions—for example, by inserting an administrative penalty—then you would still have that deterrent effect that is currently in the criminal law. It would be shifted over to the civil matters provisions. Then if you also reduce the burden in the abuse of dominance provisions to simply require the same test that's in the predatory pricing provisions, which is simply to demonstrate a substantial lessening of competition, without having to show control or substantial control of the market, I think you would have a provision that was effective and would address the concerns of SMEs and their ability to get effective relief, especially with these new temporary order provisions, on an expeditious basis.

[Translation]

Mr. Stéphane Bergeron: I must say you reassure me, Mr. Crampton, because the way I read this, I thought you wanted to relax the provisions of the act dealing with predatory pricing, price discrimination and price maintenance, to make them more permissive.

I have to tell you that, at the last committee meeting, I happened to have a discussion with the Competition Commissioner about the price of gas, which demonstrated clearly, in a way, the importance of a piece of legislation such as the Competition Act. I also mentioned how difficult it might be for the commissioner to take any action in such matters. So, you don't suggest to make the act more permissive, but rather to use an alternative, so that the commissioner can step in.

[English]

Mr. Paul Crampton: Exactly. If you look at the history under predatory pricing, price discrimination, promotional allowances, there have been very few convictions in the entire history of these provisions, which I believe have been around since 1935 and 1951 respectively. So we're trying to create a tool that works, as opposed to a tool that looks good on the books but doesn't work and isn't really available to help SMEs.

Another alternative that Nancy mentioned in her remarks is to create a process like they have in France, where the authority actually has to give reasons why it's not proceeding with enforcement action in response to a complaint. The chair of that Conseil de la concurrence in France stated at a conference here—which is something Mr. McTeague has quoted in a recent paper of his—that before they introduced this provision, people viewed the competition law as something that could simply be used against them. Now they view it as something that they can actually use as a tool to help them compete.

Based on that experience, we thought something similar could be done in Canada. So that's one of the solutions. The other one, of course, is to increase the bureau's resources.

When the commissioner appeared before you the other day, he stressed that he was underfunded, certainly relative to other agencies around the world. He was close to the bottom of the list on a per capita basis, or whatever other measure you want to use. I think those were the terms he used.

If you increase the bureau's budget, the funds at the bureau's disposal, the bureau can take these cases that it says right now it's not able to take, even though nobody has ever seen a study or any kind of statement stating that there had been x cases that we haven't been able to take because we haven't had private access.

The Chair: Thank you very much, Mr. Bergeron.

I'm going to move on to Mr. McTeague, but I'm just going to remind members that we're scheduled here until noon. I have on my list about nine people who want to ask questions, and we have about 35 minutes.

Mr. McTeague, please.

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Mr. Dan McTeague: Thank you Madam Chair.

Thank you for being here today. I know many of you personally and over previous engagements on the issue of the Competition Act. In fact, I've seen many of you at many of the conferences that have been held specifically on the issue of private access.

I don't think it says a lot that there have been dozens of consultations. I'm looking back to the initial consultation in 1995, in which the Canadian Bar Association, the national chamber, as well as some other large businesses were opposed. I'm looking at the Fordham conferences, the annual competition law section, continuing legal education, and I get the impression there may be a misunderstanding on your behalf in the sense that you perhaps do not believe members of Parliament have the capacity to review these issues, try to find consensus, and try to come up with their own definition of what might be the best test to ensure all people enjoy the Competition Act.

Mr. Musgrove took some time to explain what was in Bill C-472, but I find, Madam Hughes Anthony, in your commentary and in the brief you put forward you have some fear. I'm looking at it here, and you say, from a reverse angle, what happens if a company brings an action against a small, innovative upstart aggressively looking to increase its market? You go on to say the cost of defending an action... Can you tell me why it is possible, in the case of the Canadian Chamber of Commerce, that there is an insistence on not trying to address the safeguards that have been put into Bill C-472, which organizations have known about for at least a year and a half and for which there has been plenty of commentary? Take, for instance, Mr. Crampton's comments with respect to Frédéric Jenny—the equivalent of our competition commissioner here in Canada—who at a previous conference thought it rather amazing that we didn't have private access in this country.

What is it about your process, with groups of individuals who are very much a part of the bar, that is so steadfastly opposed to this, while at the same time ignoring the safeguards that are clearly in Bill C-472, which you know about?

Ms. Nancy Hughes Anthony: Madam Chair, I'll just respond.

I don't think, Mr. McTeague, you are correctly interpreting my remarks to the committee. I said we could not arrive at any consensus within the chamber membership, and that the comments that have come forward, the ones that have been presented, have been more to raise problems and difficulties. As I said, we don't have, at the moment, any companies saying they have to have this, that this is important for them.

What I'm saying to the committee is, let's give this some more time. Let's put this into a consultative forum and examine this and other measures that could respond to the concern, which I know you have, that small and medium-sized businesses do not feel included in the process. And I sympathize with that concern.

The two issues that have been raised, as noted in our brief, are certainly with respect to the cost and the complexity of these hearings. Perhaps you have other information, but certainly the cost and complexity of going before the tribunal has been raised as one obstacle.

Mr. Dan McTeague: Madam, why would you think there's a concern about the cost, when there already is in Bill C-23 the ability to screen out in advance cases that do not appear to have merit, power to award costs, and power to summarily dispose of them? That's currently in the act. You're not answering my question.

Ms. Nancy Hughes Anthony: The second point I was trying to get to—and I think I'd like to ask Mr. Crampton to comment—is the issue of the safeguards, because that is something that has been raised with this committee, the fact that private access would be encompassed within a limited series of actions. I think a lot of our members who have responded are still concerned about that.

Mr. Dan McTeague: Do your members know about the safeguards? Have you communicated that to them in the bulletins you've sent over the past few months?

Ms. Nancy Hughes Anthony: Could I ask Mr. Crampton to respond to that?

The Chair: Certainly.

Mr. Paul Crampton: We did circulate our initial submission, the speaking points we presented in our appearance last May. I believe those were widely circulated. At that point, we weren't able to take any position because we thought there would be a large number of people from the SME community that would be in favour of this, so we showed up and said—

The Chair: Mr. Crampton, are you talking about the appearance in May 2000 before this committee—not last May, but a year and a half ago?

Mr. Paul Crampton: Yes, I'm sorry.

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We circulated those comments and highlighted the pros and cons. We indicated the safeguards were there, and still, we didn't get the support. So in my capacity as chair of the committee I've taken the devil's advocate position sometimes. I've actually said, “Look, we have these safeguards. What's the problem?” People have still come back, Mr. McTeague, to the absence of support, the fact that it would cost $1 million, so the very people who are supposed to benefit from this wouldn't benefit from it—

Mr. Dan McTeague: Mr. Crampton, you're not answering my question either.

Mr. Paul Crampton: —and the fact that there are alternatives—

Mr. Dan McTeague: I'd like a straight answer to this. Have you included, with your membership, the safeguards that were contained in Bill C-472, which have been on the docket now since April 2000?

My final question deals with why there is an insistence by your organization on trying to compare Bill C-472—the private right of access in a restrained fashion—with the U.S. model, when other models like Australia's are more appropriate. Can you tell this committee why it's important for you to try to create an image of what this bill is that clearly doesn't exist? Why the perception? Why the desire to do this?

Mr. Paul Crampton: Nobody's trying to create any perception. As I said, we started off with a neutral position. We genuinely wanted to get the concerns identified. We wanted to get input, and the only input we got was on one side. Now all we're saying is that we don't think this consensus you're apparently looking for, which was the reason for the process of referring this bill after first reading—

Mr. Dan McTeague: Mr. Crampton, your brief—

The Chair: Mr. McTeague, let Mr. Crampton finish. Thank you.

Mr. Paul Crampton: We're simply saying that consensus doesn't exist right now. We're happy to continue to try to see if that consensus can be met, but right now it doesn't seem to exist.

The Chair: I have a suggestion here. Why don't we have the chamber provide us with a copy of what you submitted to your members, and that way we can answer this question. If that's possible, Mr. Crampton, what you circulated to them—

Mr. Paul Crampton: Sure.

The Chair: —and then if there are further questions, Mr. McTeague will have to submit them in writing.

Mr. Dan McTeague: Madam Chair, I have a question for you.

The experience of the United States indicates this would be a highly probable consequence of introducing the private right of access. I agree with asking Mr. Crampton to do that, but more importantly, they have submitted to the committee here a document that clearly says we should compare what we're doing right now to the United States.

The Chair: Well, Mr. McTeague, as you're aware, we are going to have witnesses from Australia. We have agreed to do that, and the chamber has their opportunity to put evidence before us. But we are going to have the discussion on private right of access here, and it won't be in the future. I'm going to remind the chamber one last time of that, so we can move forward.

Mr. Strahl, please.

Mr. Chuck Strahl: Thank you everyone for coming today.

This right of private access may not be something there's consensus on, but as you say, we are going to have to deal with it, so we are trying to find out if there is a way to address this concern about strategic litigation. I do share the chamber's concern on that. We have to make sure strategic litigation doesn't happen. It could be used against the very people it's trying to protect.

Just looking at the Public Policy Forum—and I put this to the chamber, especially—when I look at who's opposed to private action and who supports it, I see that against it are Imperial Oil, Irving Oil, Petro-Canada, Shell Canada, the Canadian Petroleum Producers Association, and the Canadian Petroleum Products Institute. They're all against it.

In favour of it are the Independent Retail Gasoline Marketers and the Association Québécoise des Indépendants du Pétrole.

Those who oppose it are the Canadian Association of Broadcasters. Those who support it are the Canadian Cable Television Association. The Canadian National Railway is opposed to private actions. The Shipping Federation of Canada supports it. Chapters Inc. bookstore opposes it. The Canadian Booksellers Association supports it. Microsoft and Air Canada oppose it. The Canadian Federation of Independent Business supports it.

When I look at the first blush, there's no consensus there. But when I rattle off that list, there's pretty much a picture there to me. The bigger the company, the more they're opposed to it. The associations, including some that represent small businesses, seem to support it. I'm not sure if you're just not getting input from small folks, because that's certainly what came out in the Public Policy Forum. I just wondered if you have a comment.

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Ms. Nancy Hughes Anthony: I guess that's why we're here today, saying to you that there is no consensus.

Perhaps your committee, in the course of its deliberations, will be able to bring more of a consensus forward. But we are telling you, in a very straightforward manner, as a result of our polling of our membership, here's what we got. We got some objections, and we have listed those, in general, in the brief we put before you today.

The chamber is here before you today saying precisely there is no consensus. It's clearly an issue on which people have different views, and some of the views we have culled are in the brief before you. Perhaps that's all the more reason to lay out in a detailed consultative process—and perhaps that's what your committee is going to be doing over the next number of weeks and months—all of the pros and cons, before we leap to the conclusion that this answers all of the concerns that different businesses have. You are going to be exploring other national models. A lot of the reaction we had, quite rightly said, is in reaction to the American model.

Mr. Chuck Strahl: I share your concern about finding the safeguards to make sure the right to private action doesn't harm the very people who are trying to get access to it. We have to find those safeguards. I don't disagree with you. I'm just saying that from what I've seen so far, the bigger the outfit, the more they're against it.

The other question I have is a process one. Apparently the chamber wrote a letter to the minister saying they supported Bill C-23, but they were unable to persuade the minister to not refer Bill C-23 to this committee until after second reading. They wanted it referred after. They said if it was referred before second reading, they might have to withdraw their support.

Why would the chamber consider withdrawing their support, just because it is referred before second reading? Why not wait to see what the product is before saying that process is so offensive that you'll withdraw your support, before you even see what we come back with.

Ms. Nancy Hughes Anthony: I don't mean that the process is offensive. I just mean that in this new process, which is new to all of us, we support the contents of Bill C-23 the way we see it, with a couple of friendly amendments. We don't know what other amendments will be added during this particular process. We're appearing before you today, and on this date we can say we support it. If in three weeks' time you have six other amendments, we do not know if we will support them until we see them.

So it's just a question of saying that when it comes to the issues in Bill C-23, we think they are very good and useful things that should be done to modernize the act, so we're very supportive of them. Whatever else comes up in the course of your hearings we'll have to reserve our judgment on.

The Chair: We issued a news release saying exactly what the committee would be doing. I've sent that to all the witnesses who are appearing so they will be aware of that. We have pretty much limited the scope of what we've agreed to deal with, as a committee, to Bill C-23 and private access.

Mr. Crampton.

Mr. Dan McTeague: I have a point of order, Madam Chair.

I have a copy of the Financial Post article of October 12, in which Ms. Hughes Anthony is quoted as saying:

If, as we understand is likely to be the case, amendments are proposed to create a right of private access to the Competition Tribunal, the Chamber will be forced to withdraw its support for the bill.

Madam Chair, I think some of these comments border on contempt of Parliament and this committee.

The Chair: Mr. McTeague, I'm not going to entertain that right now.

Mr. Crampton, please.

Mr. Paul Crampton: Mr. McTeague's intervention was timely, because I believe that's how you put it in your letter, Nancy, if I remember correctly.

We didn't say we would withdraw support for the bill if it were referred before second reading. We simply said we would have to withdraw our support for the bill if private access were added, because at that time we were aware that a significant portion of the chamber's membership was not supportive of private access.

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Mr. Chuck Strahl: Thank you.

The Chair: I'm finding this all very confusing. We have a position that we're not supportive, yet we say there's no consensus. We don't know how many members have responded; now it's a significant number. So I'm finding your position a little bit strange, Mr. Crampton. But I will go on to further questions.

Mr. Lastewka, please.

Mr. Walt Lastewka: Most of my interventions have already been asked, except I was still questioning the Chamber of Commerce's viewpoint. It seems to me there is a large and small business debate going on. Mr. Volpe, in his questioning, tried to get a better definition. Mr. Strahl brought out what was said during the policy forum.

I think it's important for the chamber to decide, with their members. I realize 20% are large members, and I'm not sure how much influence they have over the 80%. We're trying to get down to what is right for the law to be, not who has the most influence.

I'm getting the perception from your remarks that the larger businesses have much more influence in the chamber. I may be wrong. But I also recognize that small businesses themselves have a difficult time responding to things because that takes money, and they get left out. I don't know what additional work you're doing to be able to satisfy both sides of your membership.

I would really like to know who is opposed to it and why. If we can get to the reasons why they're opposed to it, then maybe we will need to do additional work before we make any amendments, and so forth. So I'm really looking to the reasons why people in your organization are opposed to it.

Ms. Nancy Hughes Anthony: On the consultation process, you're quite right, Mr. Lastewka, in pointing out that larger companies have the wherewithal to speak possibly louder than smaller companies. It's quite correct. That's why we are coming to you today and saying we recognize that there is an issue of SME access. We fully recognize that.

We have not got the response we would normally get on an issue from our smaller members. Do we need to go back to them? Do we need to go back ten times or fifty times? I would say this is an ongoing and continuing process.

Those who have spoken up, I would agree with you, tend to be larger companies or experts in competition law. They are the people who are quicker with the interventions.

In our brief before you today, we have given precisely the reasons we have collected so far against private access. As I mentioned, they largely deal with the cost and complexity of that. They start on page 4 of our brief. The cost and complexity were definitely the primary concerns that were raised.

Mr. Walt Lastewka: I'm not going to buy that. I want to know the reason in the competition why they're opposed. I hear what you're saying about the cost, but what is the reason? What are they trying to avoid?

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Ms. Nancy Hughes Anthony: I think the other issue, as was laid out here, is this question of possible strategic behaviour. To what extent can these provisions cast a chill on transactions in the economy? Is that a desirable outcome?

The question then was raised, is access to the tribunal the right instrument to achieve an SME involvement or are there some better ways of doing this?

That is where we are. We are in the middle of our consultation.

Mr. Walt Lastewka: Okay. Let me get Mr. Musgrove up here.

The Chair: Last question.

Mr. Walt Lastewka: I'm not sure. You're a part of the Chamber of Commerce, correct?

Mr. James Musgrove: I'm here representing the Toronto Board of Trade.

The Chair: Yes, but you're a member.

Mr. Walt Lastewka: You're part of the chamber?

Mr. James Musgrove: Yes, that's correct.

Mr. Walt Lastewka: Is there some hesitancy?

Mr. James Musgrove: No. I'm sorry. I thought you were confusing my... I'm not here today with them, but I am a member.

Mr. Walt Lastewka: I'll ask you exactly the same question.

Mr. James Musgrove: All right.

Mr. Walt Lastewka: You only had to deal with 9,000, not 170,000.

Mr. James Musgrove: Yes.

Mr. Walt Lastewka: So you must have had discussions with some small businesses.

Mr. James Musgrove: No. I would be misleading you to say that. We had a discussion at our business legislation committee, of which I'm the vice-chair. Beyond that, there has not been a consultation within the Toronto Board of Trade, and it would be misleading to tell you there has been.

Mr. Walt Lastewka: I appreciate your honesty up front. I would hope that, after this meeting, you could go back and try to determine what the large, the medium, and the small businesses would be saying and how they could be affected if the right of private access were allowed.

Mr. James Musgrove: If I may, let me address the point, about which I said a word or two in my opening remarks.

It's not surprising to me that you have large businesses with some concerns about this. It's not at all surprising. They perceive themselves as the respondents in applications against them, potentially. It's not surprising that people who think they might wish to use these provisions might be in favour of them. It's not surprising to anyone in this room, I don't think, that such would be the case. Why would it be?

The question I think this committee has to struggle with, and that we all have to struggle with—because I opened my remarks by saying this is a difficult point upon which reasonable people can, and do, differ—is what's best for the Canadian economy? There's not an easy answer.

I have articulated, I think, in my opening and in the brief that will be circulated later, the reasons why I think there is danger to it. But it is, and will continue to be, a difficult and important point.

I've articulated the reasons. I don't think this committee should be worried about who will use it, who will benefit from it, and who won't benefit from it. The question is, will the Canadian economy benefit from it? I have significant fear that it will not, that it will suffer from it. Certain people will be winners and certain people will be losers, whatever changes you make. That's my theory.

Mr. Walt Lastewka: I understand what you're saying, but as a parliamentarian—

The Chair: Thank you, Mr. Lastewka. I'm going to have to move on.

Mr. Walt Lastewka: I get cut off quite quickly by the chair.

The Chair: All right. Okay.

Mr. Penson, please.

Mr. Charlie Penson: This right of private access is one that seems to be troubling a lot of people. I'm looking forward to more debate on this, and more consultations.

My colleague and I were just talking about, first of all, whether the penalties involved are enough to offset any strategic litigation damages that might occur. The other issue is that SMEs generally are a little slow to react, because they're busy out there every day trying to make their businesses work and don't have people dedicated to that area.

There are possibilities that some small firm—we were just talking here—that has some hi-tech advantage could also be hurt by a large company that wants to obtain that kind of information. I think we need a lot more consultation on this and a good public airing to see if people really understand the implications of this legislation.

Any reaction to that, Ms. Anthony?

Mr. Paul Crampton: I'd be happy to respond to it.

First of all, your last observation is something that came out of our own internal consultations, that the SMEs themselves could be victims of this.

In terms of your specific question, there's not a provision for damages; there's a provision for recovery of costs if you win. But of course if you're the respondent in one of these applications—and the respondents, for the most part, are the people opposed to this provision—your attention or strategic focus is going to be shifted to these proceedings. The impact on your business is going to be far more costly than is reflected in just your legal costs, which you may get back if you win.

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The costs to people who are going to be on the receiving end of these private actions are going to be significant, and I guess that's why they're opposed to it. We're simply saying there are a number of people who are opposed to it, and we don't see a lot of people who are supportive of it.

Mr. Charlie Penson: Mr. Crampton, my point was more to ask, isn't there a possibility that through this kind of strategic litigation knowledge might be gained by competitors that would really have a serious effect on the business, one that could not be offset by just the recovery of damages or the costs of winning the case?

Mr. Paul Crampton: Oh, there's that as well, absolutely.

The Chair: Thank you. Thanks very much, Mr. Penson.

Mr. St. Denis, please.

Mr. Brent St. Denis (Algoma—Manitoulin, Lib.): Thank you, Madam Chair. Thank you for being here.

With your indulgence, I'm going to change directions a little bit. I invite any of you to answer, but it is on a point raised in the chamber's presentation about confidentiality. I'm going back to one of the things that's a very important issue, the mutual legal assistance issue. Mr. Addy in his presentation talked about it, and you've made reference to it as well.

In your comments, I guess it would be on page 7, you state that under Bill C-23 the Minister of Justice is required to make sure that confidentiality provisions in the foreign state are similar to those that prevail under Canadian law. But you question the nature of the protections provided by Canadian law. So I wonder if somebody could somehow characterize what those difficulties are as you see them.

You make a blanket statement there, just to repeat myself, where you indicate concerns about the nature of the protections provided by Canadian law. If we're going to require the Minister of Justice to look at another state to see what protections they have, but you say you have problems with what those protections are here, it's a house of cards where we're building this thing on some unstable foundations. I'm wondering if you could characterize again the nature of those protections as you see them.

Mr. Paul Crampton: I'd be happy to.

The principal area of disagreement between the business and legal communities and the Competition Bureau with respect to section 29 as it now stands is in relation to the ability of the commissioner to exchange confidential information in his possession with a foreign enforcement authority. The business and legal communities for the most part take the position that, as they interpret section 29, the commissioner cannot disclose information to a foreign enforcement authority for the purposes of advancing a Canadian investigation.

The Competition Bureau takes the opposite position, and so does the Department of Justice. That shouldn't come as any surprise. But there is a real debate among experts in this field as to whether section 29 does or does not permit that disclosure.

There's another area of uncertainty. It's perhaps more an area where people would really like to see section 29 amended once and for all to cover confidential information, because the vast majority of information businesses provide to the Competition Bureau is provided on a voluntary basis. The commissioner has made a statement—it's his May 1995 statement—that says he will accord to information voluntarily supplied to him the same protections as are in section 29. The rest of us are just saying “Well, if that's his position, if that's his practice, why not enshrine it in section 29? It's not going to change anything.”

Those are really the two areas mentioned in the brief.

Mr. Brent St. Denis: I'll help the committee with its timing, Madam Chair, and pass with that. Thank you.

The Chair: Thank you very much, Mr. St. Denis.

[Translation]

Mr. Drouin, please.

Mr. Claude Drouin: Thank you, Madam Chair. Ms. Hughes Anthony, gentlemen, thank you for being here this morning.

Mr. Crampton, among the measures suggested this morning by the Canadian Chamber of Commerce to help SMEs and take their concerns into consideration, you mentioned the establishment of a fast-track branch within the bureau, that can concentrate on the concerns and complaints of the SME community. Don't you think it's a bit inconsistent with your argument that the Competition Act should protect competition, not competitors? Isn't there a contradiction?

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Mr. Paul Crampton: I'm sorry, I didn't quite understand the question.

Mr. Claude Drouin: Among the four measures you suggest, the second one, which deals with the establishment of a branch...

All right?

Mr. Paul Crampton: Yes, fine. Thanks for the clarification. I'm going to answer in English, if you don't mind.

[English]

No, we don't think so. We think that if the competition commissioner and the Competition Bureau keep their eyes focused on the task of preserving and promoting competition, then the fact that SMEs have this new fast-track process to bring concerns to their attention is not inconsistent with that focus.

We're not suggesting that the bureau act to protect specific competitors; we're suggesting that the bureau take the concerns of SMEs into account in determining whether competition is likely to be prevented or lessened substantially. We feel that if the bureau has an affirmative burden of having to respond in writing to explain why it's not taking any action, then the instances of potentially good cases being ignored or just not rising to the top of the priority heap will be reduced. The legitimate cases that are out there may get more attention.

These alternatives we're suggesting, by the way, are not mutually exclusive. There could be two or more of them in a package.

[Translation]

Mr. Claude Drouin: Regarding the bill's provisions about confidentiality, particularly the confidentiality of the information voluntarily supplied to the Competition Bureau, you mention that you are concerned that type of information might not be sufficiently protected. Did any proceedings take place since these arguments have been presented? Is it a concern or do you have facts you could tell us about to demonstrate a breach of confidentiality and the harm it may have caused?

[English]

Mr. Paul Crampton: I can tell you that the Competition Bureau has been very good about protecting all information in its possession, including voluntarily supplied information.

The problem is that on the business side, people ask their counsel what protection their information is going to get. People are very concerned about their information getting into the hands of competitors or appearing in a Competition Tribunal other than in an in camera hearing.

I've come across, personally, several examples of where I was encouraging the client to give information to the bureau so that the bureau could satisfy itself that there wasn't likely to be a problem, but the client was very nervous about providing that information to the bureau because voluntarily supplied information is not protected under the Competition Act.

What we're suggesting is that if you put that explicit protection in the act, people will be less reluctant to give information to the Competition Bureau. And that will improve the enforcement of the Competition Act because the bureau will get the information it requires much more quickly without having to resort to formal process.

[Translation]

Mr. Claude Drouin: Essentially, there was no particular problem, but you want to strengthen the existing provisions to guarantee confidentiality, right?

[English]

Mr. Paul Crampton: The problem is that some people haven't been giving the information to the bureau that they otherwise would have given. That is a real problem.

[Translation]

Mr. Claude Drouin: Thank you.

The Chair: Thank you, Mr. Drouin.

[English]

Ms. Torsney.

Ms. Paddy Torsney (Burlington, Lib.): Thank you.

On a completely separate issue, Mr. Deal, I'm very happy to have your support on the issue of the game cards.

I think your point about increasing the value of the other survey information and the other advertising information that comes to our door is absolutely valid. It was funny, though, as we created the private member's bill in the first place, Canada Post didn't seem to get that point. Are there other things we should be including in this round or in another round that you think would enhance the survey information and the role it plays in our communities?

Mr. Ken Deal: Our primary concern is that the current bill focuses on telephone deceptive solicitation. There are other media of course that are used for this process that is against Canadians. Our focus is there.

Contests are one component, but deceptive solicitation can take a number of different focuses, and some of this has already been covered by the bills in terms of selling under the guise of marketing research and fundraising under the guise of marketing research. These are all positive steps that we certainly respect and value highly. The main component here, as I mentioned, was the different media that are being used.

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Ms. Paddy Torsney: If you have specific examples, good and bad, of what's appropriate and what's inappropriate, it would be very helpful to have those. Certainly as the bill was being developed as a private member's bill, I was flooded with examples, good and bad, of game cards. And I'm one of those people who answers those little surveys on products used because I think it's fascinating.

My second question is to the chamber. On page 5 of your presentation, you talk about alternative approaches that may better address the SME concerns, and you've outlined four different ones. Have those been widely consulted on? Are they supported? Could they be included at this time in the bill with your support or not?

Ms. Nancy Hughes Anthony: I think these are ideas that have been raised, that have been discussed. Particularly within our committee, we have not done specific, widespread consultation on these alternatives, and I would submit that there could be other ideas as well that others may want to bring forward. So these are preliminary.

Ms. Paddy Torsney: So what's the process on consulting on these within your organization, and can it be done in a timely fashion so that there are alternatives to what other people are proposing on private access?

Ms. Nancy Hughes Anthony: Sure. Once again I go back to the fact that we are in a process that, for us, is different.

Ms. Paddy Torsney: Big deal.

Ms. Nancy Hughes Anthony: Yes, I know. If the committee can explain to us, for example, how much time it plans to take or... is there some guidance?

Ms. Paddy Torsney: Here's a question for you. Sorry to interrupt. I'm picking it up for my colleagues. By Christmas, can you have consulted on these?

Ms. Nancy Hughes Anthony: Absolutely.

Ms. Paddy Torsney: Thank you. Lastly, it's a challenge for all of us: people who disagree call our office, people who agree don't call our office. So somehow you're going to have to issue a warning or a demand to your members that either they care and respond or they don't care and respond, and things will be changed whether they like it or not. We have elections. That's how we figure out if people ultimately cared or didn't care.

Ms. Nancy Hughes Anthony: I understand that, and that is why the chamber is coming forward to you today with the facts as we have them today.

Ms. Paddy Torsney: Right. I appreciate that. If you could get us the consultation on this round, on the things that you're proposing in here, that would be helpful.

The Chair: Ms. Torsney, I want to clarify something for the record. Our intention is to try to hear the number of witnesses who have requested to appear before the break in November, and come back after the break in November, and not at Christmas time, to go to clause-by-clause. So with all due respect to your suggestion “by Christmas time”... This committee did do an interim report a year and a half ago that had a very active study on private access. The chamber has had a year and a half to consult their members, and I had asked them if they had more information to please provide it to us in writing. That's what this process is about. There's also been a report that dates back to 1994-95 that Mr. Addy referred to today.

So private access has been discussed for many years in this country and—

Ms. Paddy Torsney: Just to interrupt the chair, on the schedule we have I don't see clause-by-clause on here until after November. To rephrase the question, can we have a response in a month?

Ms. Nancy Hughes Anthony: Sure.

The Chair: I have one last person. Mr. Savoy, you wanted to ask a couple of questions?

Mr. Andy Savoy: Quickly, yes.

Thank you very much for attending today. I was interested when, in response to Mr. Strahl's question, you said you were basing your responses on a polling of our membership. I find that quite interesting. Those were your exact words, “a polling of our membership”. Generally a poll is representative of a subgroup, as Mr. Deal would know, and there's a certain margin of error. I wonder what your margin of error would be on this poll of your membership.

Ms. Nancy Hughes Anthony: I'm sorry, Mr. Savoy, I don't think I ever said “polling of membership”, because we don't—

Mr. Andy Savoy: I wrote it down. You said it exactly. Anyway, regardless—

Ms. Nancy Hughes Anthony: We don't work on the basis of polling. There are many issues of concern to our membership that we deal with at any given time.

Mr. Andy Savoy: You must have meant something else. I wrote it down, but anyway, we'll move on.

Is it possible to get a list of respondents to your survey?

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Ms. Nancy Hughes Anthony: Could I clarify again, Madam Chair? This is not a survey; this is not a poll. We have a committee. I'm certainly happy to give you the composition of that committee and who's on that committee. I've agreed to also give you the information we sent out to all of our membership, and when we did, and what we did.

Mr. Andy Savoy: Okay.

Ms. Nancy Hughes Anthony: In the course of responding to that, we can also give you where we have other opportunities for our membership to bring forward issues. For example, at our annual meeting, this was just not an issue on the front burner for many small businesses.

I'm very happy to give you this. But as Ms. Torsney suggested, we should also spend some time on whether there is an opportunity to look at consultation on other concrete proposals, which you will be doing in your committee. I'd be happy to do that as well.

Mr. Andy Savoy: Thank you.

On my second item, as Mr. McTeague said, you mentioned that you focus on the U.S. situation in dealing with your members.

Have you looked at Australia? Have you informed the members of the successes we've seen in Australia?

Ms. Nancy Hughes Anthony: I'm not sure about that.

Paul, do you have an answer to this?

Mr. Paul Crampton: No. The subject has come up on our conference calls, but I can't say we've informed the membership at large.

Mr. Andy Savoy: It's been around since 1974 and 1976. You've had ample time, I would assume, in a year and a half, to look at other systems. So you haven't looked at Australia.

Mr. Paul Crampton: No. Where we're coming from—and this is what Nancy's trying to articulate—is that we have informed the membership at large that this is an issue. We've shared our presentation to the committee in May of 2000. We've asked them several times for their input. We've invited them to be part of these conference calls we organize from time to time. And they're just not coming.

You're coming back and saying, well, go back and remind them again, and we're happy to do that, but—

Mr. Andy Savoy: No, no, what I'm saying is did you look at Australia with your committee? Did you say, we think we should be fairly objective in what we look at here, so let's look at the U.S., but let's look at Australia also?

Mr. Paul Crampton: We have spoken about the Australian experience in our conference calls. Certainly in the wake of the June conference, when we had a call to discuss the Australian commissioner's intervention, and that of Mr. Jenny's from France. That didn't have any particular—

Mr. Andy Savoy: No impact.

Mr. Paul Crampton: —impact on people who were opposed, and it didn't lead to any new people coming out of the woodwork in favour. So—

The Chair: Mr. Savoy, I'll let you continue, but to clarify, we do have a number of other witnesses who will be appearing in the coming weeks, the Canadian Federation of Independent Business in particular. A number of their members would also be members of the Chamber of Commerce. The CFIB has a different position. They may have done a different type of survey. Those members who did not respond—

Mr. Andy Savoy: Madam Chair, all I'm trying to clarify is whether they looked at the Australian example. That's all I'm asking. It's a simple question.

The Chair: Okay.

Mr. Andy Savoy: I understand the situation, thank you.

Moving on to something else very quickly, if I have time, Madam Chair...

The Chair: Please be brief.

Mr. Andy Savoy: Briefly, then, the PPF, who were here earlier, talked about consensus on the proposal for private...

[Editor's Note: Technical difficulty]

...competition that strategic litigation could be prevented.

Do you think strategic litigation can be prevented? How would you respond to the safeguards in Bill C-472 and Bill C-23 right now?

Mr. Paul Crampton: We have discussed these safeguards explicitly, as I mentioned earlier. In my capacity as chair, and in the absence of someone articulating the other side of the argument, I have presented the devil's advocate view: here are the four safeguards, why isn't the proposal good enough? And people have still expressed a strong concern about the scope for them to be victimized by strategic litigation.

You may step back from it all and say, well, why would this be? I can't read their minds, but I can say there are several people out there—a significant number of people—who continue to believe that these four safeguards are not enough, that they will be victimized by strategic litigation that will divert their attention from their business, that they will be harmed through the imposition of significant legal costs and diversion of management resources, etc.

And these are merely concerns we're sharing with you. We're not coming out and saying the chamber is opposed to private access. We're coming here and saying that based on our consultations with our membership so far, there doesn't appear to be a consensus. If the objective of these hearings is to determine whether a consensus can be achieved or exists right now, we can say, well, it doesn't exist right now, at least not within our membership.

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As for whether it can be achieved, these exact same four safeguards were in Bill C-472, and people still had strong concerns with Bill C-472. So if all this amendment contemplates is to bring back the same proposal as was in Bill C-472, then I don't think a consensus can be achieved on Bill C-472, at least not within our membership.

This is simply relevant information that we're bringing to you.

The Chair: Okay. We're going to have to stop there.

Mr. Andy Savoy: Thank you.

The Chair: Thank you very much, Mr. Savoy.

I want to thank all the witnesses for being here today. It's been a very interesting discussion. As well, I would refer all the witnesses to our interim report, chapter 7, on private access. If they have any comments they'd like to make on that, they can submit those to us in writing.

We may have some further questions that we will send to you and ask for your responses. We did delve into one topic more than any other. It's been a very interesting discussion today. I'm very pleased.

We're now going to move as a committee, briefly, to budgetary matters. The witnesses are dismissed.

I've been advised that members have a number of commitments in the coming minutes. Are we prepared to simply go ahead with the budget that has been proposed?

Madam Torsney.

Ms. Paddy Torsney: I move that the budget move forward as proposed.

The Chair: For your clarification, we're doing this because there is a liaison committee meeting scheduled for 1:15 p.m. today. We don't get much notice when the times for those meetings are scheduled. I apologize for that. But budgetary matters may come up, and if we don't have our requests in there, we'll be seen as not having asked for any dollars. So I do apologize for that.

Mr. Volpe.

Mr. Joseph Volpe: I want some clarification.

You have seven members travelling. I imagine that's four and three. If we wanted to make accommodations for other parties, we ought to go to five and four.

The Chair: It's actually three Liberal Party members and four members of the opposition who would be travelling. Is that not correct?

The Clerk of the Committee: Madame Chair, it's one member per party, including the chair and the government vice-chair. So that's exactly what the chair has said.

Mr. Joseph Volpe: Okay.

Mr. Dan McTeague: It's a scenario that's worse than what we had thought.

The Chair: We have Mr. Penson first.

Mr. Charlie Penson: I'm wondering if in the budget there is a provision to raise the matter of MP points for travel. Are we going to get that consideration or not?

The Chair: It's international travel, so it wouldn't apply.

Mr. Charlie Penson: So we can't use any of our—

The Chair: You can't use your MP points for international travel. The only thing you possibly can do is use Aeroplan points.

Mr. Charlie Penson: That's what I'm asking.

The Chair: I'm not sure everyone has those, but we could investigate it further to try to reduce the costs.

Ms. Torsney.

Ms. Paddy Torsney: The only provision I would like to see is that the Washington trip include all the members, not just some of the members. I appreciate the cost issues on the Helsinki-Frankfurt-London trip, but on the Washington trip there's a good reason for all of us to participate.

The Chair: We'd have to almost double the amount then for the Washington trip, which would probably be about $70,000.

We'd have to set for a maximum. I'm trying to anticipate the meeting this afternoon.

Ms. Paddy Torsney: I appreciate that.

It's the flights and the per diems and the accommodations that are at issue on the budget. How many more members of the committee are there?

The Chair: There are 16 members. So if we were to double it, we probably could live within that amount.

Ms. Paddy Torsney: That's right. Let's do that, then.

The Chair: We'll say $75,000 then.

Mr. Walt Lastewka: That's not double.

Ms. Paddy Torsney: Well, it is almost in fact, because it's an additional six.

The Chair: It's an additional nine members.

There are only seven members travelling right now, plus the clerk and the researcher. So there will be an additional nine members. We'll just say $75,000 to give us a ballpark figure.

We don't know what's going to happen at liaison committee. We have some parameters still to work out there because a number of committees will be travelling. There's a large demand on the funds available, so if the industry committee would like to travel, I'd like them to be aware of the fact that we are asking for money, so that when decisions are made we're not excluded.

Mr. Joseph Volpe: It's a wonderful idea.

It should be a minimum of $65,000, because that'll cover 16. If you're going to stick to that formula for seven plus three, then $80,000 is good enough. It should be a lot more.

The Chair: Should it be $75,000 or $80,000?

Ms. Paddy Torsney: It should be $75,000 on the Washington trip and $80,000 on the other one.

Mr. Joseph Volpe: I think $75,000 is too much on the Washington trip. We'll probably only need $65,000, but go with $70,000. You're only increasing it by 60%, not 100%.

The Chair: Okay.

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Mr. Joseph Volpe: On the $80,000, I think with the numbers here, you only have seven members going. You should have more. Increase it by the appropriate amount. I think it's going to cost you an additional $6,000 per member, if you use the same formula for everyone.

The Chair: Are you suggesting more members should be travelling?

Mr. Joseph Volpe: I think so.

The Chair: How many more are you suggesting?

Mr. Joseph Volpe: Let me not speak for the government side, because it's not my role. If you wanted to maintain the balance you have in committees and the House, you ought to have at least five and four. It would mean at least another two members.

The Chair: Another two members?

Mr. Joseph Volpe: I don't want to exclude members. I'm suggesting, at the very least, you increase this by $12,000 to make it $92,000.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, on another item, I think Chuck is on the committee. Why do we have to put per diems here? If we're not on this trip, we're in the House. Isn't this supposed to be a net?

Ms. Paddy Torsney: It'll cost a fortune to eat breakfast in London.

Mr. Walt Lastewka: You still get per diems, right?

Ms. Paddy Torsney: No.

Mr. Chuck Strahl: You can't claim the per diem here if you're overseas.

Mr. Joseph Volpe: That's right.

Mr. Walt Lastewka: Right.

Mr. Chuck Strahl: This is to cover your costs overseas.

The Chair: Not everyone has the ability in their budget. First of all, we may travel when the House is not in session.

Mr. Walt Lastewka: I see.

The Chair: We could actually travel. You may not have worked it into your budget. Do you get what I'm saying?

Mr. Walt Lastewka: Okay.

The Chair: Is everyone in agreement?

Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron: Generally speaking, Madam Chair, I have no objection at all, but I'd just like to clarify one thing. From what I see here, no interpreters are planned for either the Washington trip or the European one, so...

[English]

The Chair: It's in number 4 or 5. I think it's number 5.

[Translation]

Mr. Stéphane Bergeron: Okay. All right! I was looking at the list of participants. That's fine then. So they'll be hired there.

[English]

The Chair: Mr. McTeague.

Mr. Dan McTeague: Madam Chair, short of Mr. Lastewka and yourself, I've been on this committee too long, some would suggest. In my time here, we've never travelled. I understand this is one of the reasons why we're making an attempt to do so.

Ms. Paddy Torsney: It's just because it is there.

Mr. Brent St. Denis: Build it and they will come.

Mr. Dan McTeague: I think an attempt ought to be made to reflect to the greatest degree possible the membership of the committee in its entirety. It is probably more important than simply going after one or two. I understand and appreciate we won't be able to break up a trip to Finland, Germany, or London. There will obviously be some who will want to go and cannot. Some members who have an interest in this will not be able to go.

Madam Chair, it might be possible to canvas the opinions of the members beforehand. We can then determine what resources will be required should those members want to attend.

The Chair: Mr. Penson.

Mr. Charlie Penson: Madam Chair, in the interest of trying to keep the costs down, I don't mind Mr. Volpe's suggestion.

Could we have a compromise where half the members essentially could travel to Washington and half could travel to Europe? You don't have to take the whole committee to both places.

We did it with Foreign Affairs a couple of times. We had meetings afterward to discuss what we heard from each committee. It would keep the numbers down a little bit and therefore keep the costs down. I think it might make our chances of travelling, and getting our budget approved, a little better.

The Chair: Okay.

Mr. Strahl.

Mr. Chuck Strahl: I hadn't thought of that specific idea, although I think it has some wisdom. It allows everyone to travel a little bit.

I'm concerned about going there with two budgets as high as $80,000 to $100,000. You would know from sitting on the liaison committee. In my experience, it's likely going to either get turned down there or at the House leaders' meeting. They just see it as too much. I think you should give them something that can be done.

Maybe the suggestion of Charlie's is good. I understand the five and four thing. I think maybe it's reasonable. Half and half might sell better. You have to sell it.

The Chair: I actually would agree with you, Mr. Strahl. I would think the chance of travelling to Washington is greater than travelling overseas at this time period, especially with the regulatory framework study we're talking about doing.

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Do I go in with a budget for half the committee for Washington, knowing we may only travel to Washington? Do I do what Mr. Volpe, or someone, suggested earlier and take the full committee to Washington, leaving half the committee for the following trip?

I think it may be our best chance for now.

Mr. Brent St. Denis: It's the best.

The Chair: You're right. It will have to come to all the House leaders. Then we can always reconsider, once we have some feeling from the liaison committee on what they have to say.

Ms. Paddy Torsney: Then our extra pull is Mr. Strahl, who is on the committee.

Mr. Chuck Strahl: No, I'm not.

Ms. Paddy Torsney: Oh, darn.

The Chair: Okay. Is everyone in agreement?

Mr. Joseph Volpe: It's $70,000 and $92,000.

The Chair: Yes, $70,000 and $92,000. The operational budget is $60,000. Are we all in agreement?

Some hon. members: Agreed.

The Chair: Thank you very much. We'll see you this afternoon.