TRGO Committee Meeting

STANDING COMMITTEE ON TRANSPORT AND GOVERNMENT OPERATIONS

LE COMITÉ PERMANENT DES TRANSPORTS ET DES OPÉRATIONS GOUVERNEMENTALES

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 23, 2001

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[English]

The Chair (Mr. Ovid Jackson (Bruce—Grey—Owen Sound, Lib.)): Good morning, ladies and gentlemen. Welcome. I'd like to start the hearings with regard to Bill C-34, the transport tribunal legislation.

This morning we have Gaétan Boucher and Sherill Besser. They're obviously the experts on this file, so I welcome them to tell us about this bill and then we'll have the usual questions after.

Mr. Gaétan Boucher (Director General, Safety Programs, Strategies and Coordination, Transport Canada): Thank you, Mr. Chairman.

Before I start, I would like to introduce also Kim Ellard, our project manager. And we have also Manon DesLauriers, who will be assisting us on this file.

Mr. Chairman, I'd like to begin by conveying the regrets of the minister, Mr. Collenette, who is unable to attend this morning. I'm very pleased, however, to have the opportunity to appear on behalf of the minister before the Standing Committee on Transport and Government Operations for the study of Bill C-34, an act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other transportation acts.

I propose to outline some of the key elements of this legislation, the content of which is very technical in nature.

I believe this legislation contributes to Transport Canada's ongoing commitment to reforming Canada's transportation legislation and enhancing the safety and security of the national transportation system. This legislation, Mr. Chairman, which was referred to committee on October 4, has two key components: the establishment of the Transportation Appeal Tribunal of Canada, and the outlining of the tribunal's jurisdiction and decision-making authorities by way of amendments to six pieces of transportation legislation—that is, the Aeronautics Act, the Railway Safety Act, the Canada Shipping Act, the Canada Transportation Act, the Marine Transportation Security Act, and Bill C-14, the Canada Shipping Act 2001.

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[Translation]

The Transportation Appeal Tribunal of Canada is modeled upon the Civil Aviation Tribunal, an independent, quasi-judicial body established in 1986 to review enforcement decisions taken under the Aeronautics Act.

The Civil Aviation Tribunal has performed to the satisfaction of both the department and the aviation sector...

[Editor's note: technical difficulties]

[English]

The Chair: All right, since we have techical problems, we'll suspend for five minutes.

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The Chair: I think we're ready. I'll ask the witnesses to start.

Mr. Gaétan Boucher: Thank you, Mr. Chairman.

[Translation]

The Transportation Appeal Tribunal of Canada is modeled upon the Civil Aviation Tribunal, an independent, quasi-judicial body established in 1986 to review enforcement decisions taken under the Aeronautics Act.

The Civil Aviation Tribunal has performed to the satisfaction of both the department and the aviation sector for over 15 years, and is considered an example of a regulatory "best practice".

The TATC is a transformation of the Civil Aviation Tribunal into a multi-modal transportation tribunal which would provide the rail, marine and aviation sectors with access to an independent review process. The TATC would operate on the same principles as those of the CAT: independence, expertise, expediency, affordability, accessibility, fairness and transparency.

The TATC Act deals with the “machinery” aspects of establishing the tribunal, such as membership appointment, duties and qualifications, and the review and appeal hearing process.

The jurisdiction of the tribunal, in terms of the types of administrative enforcement decisions it could review, is set out in the amendments to the various transportation acts.

[English]

Under the Aeronautics Act, the tribunal could review four types of administrative decisions: an administrative monetary penalty, a refusal to remove enforcement notations, a variety of licensing decisions, and decisions surrounding security screening officer designations. Administrative monetary penalties issued under the Canada Transportation Act could be reviewed by this tribunal.

Under the current Canada Shipping Act, the tribunal could review certain personal licensing decisions. Under Bill C-14, Canada Shipping Act 2001, the tribunal could review four types of administrative decisions: an administrative monetary penalty, a refusal to remove an enforcement notation, a notice of default regarding an assurance of compliance, and a variety of licensing decisions.

Four types of administrative decisions could be reviewed by the tribunal under the Marine Transportation Security Act: an administrative monetary penalty, a refusal to remove an enforcement notation, a notice of default regarding an assurance of compliance, and decisions surrounding screening officer designations.

Finally, under the Railway Safety Act, the tribunal could review orders and decisions surrounding screening officer designations.

[Translation]

The powers of the tribunal would depend on the nature of the administrative decision which is being reviewed. Where the enforcement action is substantially “punitive” in nature, the tribunal would be able to substitute its decision for that of the department. An example would be the review by the TATC of an administrative monetary penalty. However, where the enforcement action has more to do with competencies, qualifications to hold licences, public interest or other safety considerations, the tribunal would generally be authorized only to confirm the department's decision or refer the matter back for reconsideration.

[English]

Mr. Chairman, consultations on the creation of this tribunal involved a wide range of marine, aviation, and rail stakeholders. As was done in the case of Bill C-14, Canada Shipping Act 2001, Transport Canada obtained approval to consult on a draft of this legislation. I believe that the comments received as a result of consultations improved the quality of this bill and showed the department's commitment to greater citizen engagement.

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To conclude, Mr. Chairman, the vast majority of infractions under the various pieces of transportation legislation are not criminal in nature. I believe that this bill goes a long way in modernizing the way Transport Canada addresses instances of less serious breaches of regulations. This legislation facilitates the use of a broad spectrum of administrative enforcement actions by the department while providing an independent review mechanism to those subject to these administrative actions. It is another example of this government's commitment to getting government right.

We are looking forward to responding to any questions the committee may have. My colleagues and I are at your disposal in that regard.

[Translation]

Thank you, Mr. Chairman.

[English]

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

I'll move to James Moore of the Alliance.

Mr. James Moore (Port Moody—Coquitlam—Port Coquitlam, Canadian Alliance): I don't have any questions, given that the official opposition will be supporting this bill, but I do notice that clause 19 gives the tribunal the ability to award costs, and I know that this is a change from 1995 and earlier. What brought about the change?

Mr. Gaétan Boucher: We believe that if there are frivolous or vexatious situations... In special circumstances we believe it would be important that they have the authority to award some costs. Sometimes, in our experience with the Civil Aviation Tribunal, the members of the tribunal go to the site where it happened, and if someone wants to address the tribunal and doesn't show up, for all kinds of reasons, both the tribunal and the department incur important costs. We think that in special circumstances the department should be authorized to—

Mr. James Moore: Since 1986 has that been a problem—frivolous?

Mr. Gaétan Boucher: I don't have all the numbers. There have been some instances when we have incurred costs because people didn't show up, but I don't have exact numbers.

Mr. James Moore: Subclause 6(3) allows a former member of the tribunal to clean up past cases that were before the tribunal before they were placed. There's a clause in there that says eight weeks, and I'm just curious, how was eight weeks chosen? Is that a preferred time? Should it be lengthened, shortened? How is eight weeks arrived at?

Mr. Gaétan Boucher: I guess based on our discussion with the chair and the members of the existing Civil Aviation Tribunal and based on the experience of how long it takes to deal with cases, eight weeks appeared to be a reasonable amount, just to avoid if one of the members is retiring. So it could be nine weeks, it could be seven weeks. I guess based on experience we figured that eight weeks was—

Mr. James Moore: In terms of advice to the committee and those of us who would be interested in perhaps offering friendly amendments to what seems like reasonable legislation, given that you're taking the Civil Aviation Tribunal and expanding it to these new jurisdictions, I would assume that you would expect a larger caseload is eight weeks. Is that being foreseen as a sufficient timeframe?

Mr. Gaétan Boucher: We think it is sufficient.

The Chair: Well, I counted as well. I notice the chairman is authorized to put a member in, are they not, so that's another form of extending the time.

Mr. Gaétan Boucher: I'm sorry, I missed that, Mr. Chairman.

The Chair: In this bill, somewhere along the line, I notice that the chairman is authorized to put a past member on the board.

Mr. Gaétan Boucher: Excuse me, sir, I'm sorry...

The Chair: I scanned this bill and I thought I saw that the chairman of this particular committee could extend the time of a person whose time had expired. Were the eight weeks the maximum time?

Mr. James Moore: No, you can shift it forward.

The Chair: I thought this covered the point he was trying to make.

Mr. Gaétan Boucher: It's eight weeks.

The Chair: Eight weeks is the maximum, or he could do it longer?

Mr. Gaétan Boucher: It's eight weeks. What the bill is saying is eight weeks.

The Chair: Okay.

Mr. Gaétan Boucher: To perhaps be more specific, Mr. Moore, about your question, we have the chair of the Civil Aviation Tribunal in attendance. I don't know if you'll allow her to perhaps, based on her experience...

Mr. James Moore: I'll allow it. It's a prerogative of the chair.

Mr. Gaétan Boucher: That's fine.

Mr. James Moore: I'm finished.

The Chair: Okay, Gerry Byrne of the Liberals.

Mr. Gerry Byrne (Humber—St. Barbe—Baie Verte, Lib.): Thanks, Mr. Chair.

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I'm just wondering, is there still recourse to the judicial system? I'm not completely familiar with this quasi-judicial board process. If there's a complaint that the board makes, the minister reviews it and agrees with it, does an appellant have an opportunity to appeal to the courts further?

Mr. Gaétan Boucher: The tribunal has the final decision.

Mr. Gerry Byrne: It's not appealable.

Mr. Gaétan Boucher: The decision is not appealable. Of course, as in any circumstance, if the tribunal were misbehaving, or for all kinds of reasons, someone could say there was some bad misjudgment—

Mr. Gerry Byrne: But that would be an action against the tribunal—

Mr. Gaétan Boucher: Yes, exactly.

Mr. Gerry Byrne: —as opposed to the parties of the action.

Mr. Gaétan Boucher: The decision is final.

Mr. Gerry Byrne: Just for clarification on the breadth and scope of the tribunal itself, the proposed tribunal, I'll give you not a hypothetical, but an actual.

In the situation of the Peel Regional Police and their conflict with the airport security screening officer, would that be appealable to this body? Would that be the adjudicator of that type of conflict, where an airport screening official is in conflict with another peace officer in terms of jurisdiction? Would that remain within the realm of the Criminal Code, or would that be appealable to this particular proposed body?

Ms. Sherill Besser (Senior Counsel, Legal Services, Transport Canada): The purpose of the tribunal is to review administrative decisions taken by the minister.

Mr. Gerry Byrne: Okay.

Ms. Sherill Besser: The decision would not be taken by the minister, so it would not go to the tribunal.

As a point of clarification, the decisions that could proceed to a court would be of the nature of judicial review if the tribunal had gone beyond its jurisdiction in making a decision.

Mr. Gerry Byrne: So individuals engaged in the administration of the regulations or enacting regulatory requirements could not necessarily provoke a review by this committee. It would have to be done by Transport Canada.

Ms. Sherill Besser: No. The individuals can, as long as their request for review is based on ministerial decision.

Mr. Gerry Byrne: I see. Thank you.

The Chair: Marcel, do you have any questions?

Mr. Marcel Proulx (Hull—Aylmer, Lib.): No, that's fine.

[Translation]

The Chair: Go ahead, Mr. Laframboise.

Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ): Thank you, Mr. Chairman.

I simply want to get a clear understanding of how the tribunal will operate. First of all, it will have responsibility for reviewing decisions. It can also hear appeals of decisions rendered following a review. One thing worries me a little. The Chairperson oversees the tribunal. Pursuant to clause 5, the Chairperson has supervision over and the direction of the work of tribunal staff members. The Chairperson apportions work among members and assigns members to hear matters brought before the tribunal. Basically, the same tribunal member could review the decision as well as hear the appeal.

Mr. Gaétan Boucher: No, that isn't the case. The bill stipulates that generally speaking, an appeal shall be heard by a panel consisting of three members. A member who conducts the initial review may not sit on the appeal panel.

Mr. Mario Laframboise: I understand.

Clause 6 states the following:

6. (1) A member shall be appointed to hold office during good behaviour for a term not exceeding seven years—

Can you give me a synonym for “during good behaviour”?

Mr. Gaétan Boucher: It means that the member cannot be replaced.

Mr. Mario Laframboise: Really.

Ms. Sherill Besser: The expressions “during good behaviour” and "inamovible" are equivalent. They appear in over 30 Canadian statutes. It is not the same thing as “during pleasure”, that is to say

[English]

the member would continue in office as long as the member functioned as he should. He could not be removed without a reason during the period of his appointment.

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[Translation]

Mr. Mario Laframboise: I see. Therefore, the chairperson cannot be replaced. This is what you're telling me.

Mr. Gaétan Boucher: Yes, but he can be removed for just cause. The chairperson can be relieved of his duties if he behaves inappropriately or for a number of other valid reasons.

Mr. Mario Laframboise: I understand. However, I must say that I don't like the word “inamovible”, even if it does appear in numerous statutes.

Thank you, Mr. Chairman.

[English]

The Chair: Bev.

Mrs. Bev Desjarlais (Churchill, NDP): Just out of curiosity, following what Mr. Laframboise has mentioned, does the good behaviour apply to the work of the tribunal, or the individual's good behaviour in general? If they were to take some criminal action or something like this, does that apply, or is it strictly the work on the tribunal?

Ms. Sherill Besser: That's a very good question. I would imagine it relates to their functioning as a member.

Mrs. Bev Desjarlais: Okay. But you don't know absolutely for sure?

Ms. Sherill Besser: I can't answer. I don't know of any occurrence of—

Mrs. Bev Desjarlais: It has come up before. I just thought to ask it now.

Ms. Sherill Besser: I'm sorry, I can't answer that. If you want, we can get back to you on that.

Mrs. Bev Desjarlais: Sure.

In your presentation it mentions that under the Railway Safety Act the tribunal could review orders and decisions surrounding screening officer designations. Specifically under the Railway Safety Act, what would that apply to?

Mr. Gaétan Boucher: Section 32 and section 33, which has to do with some railway work. In section 33 we have just introduced the new safety management systems, and the companies will have to submit their safety management systems: how they intend to manage safety. If the department judges that what they are submitting is not sufficient and if we're not happy with their safety management system, we then could challenge them and say their safety system is not satisfactory. If they don't agree, they could bring that to the tribunal to challenge us.

Mrs. Bev Desjarlais: Okay. That's fine.

The Chair: Val Meredith, and then Marcel Proulx.

Mr. Marcel Proulx: Point of order.

The Chair: Yes.

Mr. Marcel Proulx: I just want to make sure that the answer that's going to be given by the transport department is given through the chair, to the committee. Are they going to give an answer on the interpretation of good behaviour?

The Chair: Anything that is asked for comes to the clerk of the committee, and everybody gets it in their appropriate language.

Mr. Marcel Proulx: Thank you.

The Chair: Val.

Ms. Val Meredith (South Surrey—White Rock—Langley, PC/DR): Thank you very much.

My questions pertain I guess more to the chair than they do to you. This bill is really an extension of the Civil Aviation Tribunal to all modes of transportation. I may be mistaken, but I would imagine that you're going to be our only witnesses. So although it's been mentioned that consultations have been held with the various transportation sectors regarding this bill and the tribunal, do they have any problems with it? Have any problems been expressed to you by the rail or the road transportation people or the marine transportation people who may be involved in this legislation?

Mr. Gaétan Boucher: Thank you for your question. I'll go through each mode, if I may.

The aviation people have indicated they're relatively neutral, because they really appreciate the Civil Aviation Tribunal. Their only concern was whether they are going to get the same level of service with the multimodal tribunal. I think they are satisfied that with the multimodal tribunal their level of service will not decrease.

With the railway people, there was general support. They didn't have any real concern. Perhaps they would have liked to give the tribunal more authority to cover more things.

Ms. Val Meredith: Cover more things like what?

Mr. Gaétan Boucher: For example, you have an order under section 32 or 33 and section 31, but they didn't push that. They didn't really push that. That was just raised en passant.

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The marine sector has been an interesting one because of Bill C-14, the Canada Shipping Act 2001, with the new enforcement and compliance regime where we're introducing new tools and what not. I think they were before this committee or the Senate committee. They have a lot of concerns about this new enforcement regime. So having concerns with the new enforcement and compliance, they have difficulty with the tribunal. My understanding was each time we did consultation with marine, they were challenging us on Bill C-14. In that context, right now in Bill C-14, you have the adjudicator and the adjudicator is going to be replaced by that tribunal. So that was their major concern. But once Bill C-14 has been approved and these new enforcement tools are in place, I think the tribunal makes sense.

Ms. Val Meredith: So will the tribunal kind of give them a safety valve with the enforcement under Bill C-14?

Mr. Gaétan Boucher: Well, yes, in a sense—

Ms. Val Meredith: Right now they have a place to come to if they have problems with the other legislation. Am I right?

Mr. Gaétan Boucher: Once we have those new enforcement tools in place, if they are not happy with some decision the department makes, they can go to the tribunal for an administrative decision that will be made.

Ms. Val Meredith: Okay.

Mr. Gaétan Boucher: It's going to take some time, by the way, before it's implemented.

You mentioned roads. This bill—

Ms. Val Meredith: It doesn't cover roads.

Mr. Gaétan Boucher: Yes, the bill does not cover roads. Right.

Ms. Val Meredith: The other concern I have is a reference that the authority of the tribunal has been given greater powers to hold its hearings in private, that it's a much broader scope. I guess I have problems when things are taken behind closed doors, because then they become less accountable. Is there some kind of parameter that's been established, some kind of guideline as to what instances allow this greater use of private hearings? Have you already determined—because the reference was to broader private hearings—the differences between what constituted the reasons for private hearings before with the Civil Aviation Tribunal and what you are now considering to be reasons for a private hearing with this tribunal?

Mr. Gaétan Boucher: Well, there are two basic reasons for that. There is one where there is a medical situation involved. We felt that because of what is quite personal, you may have to really limit that to those who are concerned. The second point was also in situations where it has to do with some business activity and that revealing some business information might be to the disadvantage of the person or the company being sued at the tribunal.

We hope there's not going to be abuse of that. We have not yet established specific criteria. I think those are the two broad criteria, but we're certainly not expecting that they will be abused, that it will be really limited to special circumstances.

Ms. Val Meredith: I guess my last question is whether there is then going to be a situation where you can review how this is working in the various sectors and have some kind of review of this legislation and how it's now working with the other sectors being added to it. Is there anything in the legislation—I didn't see anything—to allow for a review provision?

Mr. Gaétan Boucher: No, the legislation does not foresee any mechanism or period when we will review this. I suppose that if industry's not happy or something happens, as in any legislation, it might need to be reviewed at some point in time. But there is nothing, you're quite right, in the legislation that says that after three years or whatever, this is going to be reviewed. There's no such thing.

Ms. Val Meredith: Okay. Thank you very much, Mr. Chair.

The Chair: Since the committee doesn't seem to have a lot problems with this file—

Mr. Gaétan Boucher: Mr. Chair, if I may, I forgot to mention that there is an annual report. The legislation says that an annual report will be tabled in Parliament to report on the activities.

The Chair: Marcel, you were just procedural. You don't have any more questions.

Mr. Marcel Proulx: No, I'm fine.

The Chair: Okay. Since the committee doesn't seem to have a lot of problems with this, and we have a work plan and several other things to discuss, if the committee would agree, we could do the clause-by-clause and then get on with our other work. Is that agreed?

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Some hon. members: Agreed.

The Chair: Okay.

Ms. Val Meredith: Is the parliamentary secretary going to sit at the end of the table and represent the minister at this point?

The Chair: If you want him to.

Ms. Val Meredith: I think that's tradition. If we have any questions, that's normally where we would go.

The Chair: He knows. He's got the staff here.

That's why you earn the big bucks.

Okay. Shall clauses 2 to 73 carry?

Mrs. Bev Desjarlais: Can I just ask one question?

The Chair: Sure.

Mrs. Bev Desjarlais: On subclause 6(1), the appointment of tribunal members for terms of up to seven years, are those terms usually seven years? Are they not normally less?

A voice: Sometimes they're ten.

Mrs. Bev Desjarlais: The ones I tend to see usually run around three or five. So seven sort of jumped at me as being a little high. So that's the norm? They can be seven to ten?

The Chair: Yes.

Mrs. Bev Desjarlais: Okay. That's fine.

(Clauses 2 to 73 inclusive agreed to)

(Clause 1 agreed to)

The Chair: Shall the bill carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill to the House?

Some hon. members: Agreed.

The Chair: Thanks, witnesses. We'll dispense with you now.

For the committee, we'll move on to our work plan. We have a number of items. We want to know from you who your witnesses are, how long you want the witnesses, and so on.

We'll excuse the witnesses first.

[Editor's Note: Proceedings continue in camera]