Transport Committee on Dec. 11th, 2023

[The Chair, Liberal, Peter Schiefke]

Thank you.

I'll turn it over now to Mr. Lewis.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Mr. Chair.

I'm curious. Through you, Mr. Chair, how long is this meeting going for? I thought it was until 7:30 tonight. Do we have three minutes left, or do we have until 8:00?

[The Chair, Liberal, Peter Schiefke]

It's going until eight o'clock, Mr. Lewis.

[Chris Lewis, Conservative, Essex, ON]

Okay. We have until 8:00.

Did we vote on that, or is it something that just happens?

[The Chair, Liberal, Peter Schiefke]

We had resources until 7:30, but because of the vote, those resources were extended until eight o'clock.

[Chris Lewis, Conservative, Essex, ON]

Very well. I'm going to lower my hand and raise it after that.

Thanks very much.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. Lewis.

Go ahead, Mr. Strahl.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you.

Obviously, I think this was a very contentious issue. We heard from many witnesses who were very concerned about the broad powers that were given to the minister, which were indicated in proposed subsection107.1(1). It says:

If the Minister is of the opinion that there is a risk of imminent harm to national security, national economic security or competition that constitutes a significant threat to the safety and security of persons, goods, ships or port facilities or the security of supply chains, the Minister may, by order, require a port authority or a person in charge of a port facility to take any measure, including corrective measures, or stop any activity that the Minister considers necessary to prevent that harm.

We heard, for instance, from labour. I go back to ILWU talking about the need to ensure that this wouldn't be abused, that the minister wouldn't deem that a work stoppage, a withdrawal of labour or a legal strike would be considered a significant threat to the security of the supply chain or to national economic security. This would not be the case. We heard that time and time again, from CUPE to ILWU to.... Numerous labour organizations were concerned about the broad impact that this section would have.

Obviously, when I go to the correctness standard versus providing greater accountability, I guess my question to the officials is this: Does this still allow the minister to make that determination? Is there anything preventing the minister from, for instance, declaring a legal strike at a port to be a risk to national economic security, for instance, or a risk to the security of supply chains?

Does this amendment address that sufficiently, or will there still be a way for a minister—future or current—to use or abuse that section to do what the unions were afraid of—to go outside, perhaps, what was intended? We don't draft laws based on good intentions. They have to be airtight. They have to be drafted in such a way that they are not open to abuse. I think we need to have the assurance that this type of amendment will prevent abuse by the minister.

I'd like to know what your opinion of that is. Does the current section 107.1 allow the minister to do those things that we were told were of a concern, especially to those who believed it could be used to undermine the collective bargaining process or a legal strike action?

[The Chair, Liberal, Peter Schiefke]

Go ahead, Ms. Read.

[Sonya Read]

Thank you, Mr. Chair, and thank you for the question, Mr. Strahl.

First I'll say that there are a few reasons that it could not be used in respect of labour actions. First of all, the order, as it is written, can only be used to issue an order to a port authority or a port facility. It could not be used to order, for example, a labour group or a bargaining unit to return to work.

Second, the amendment is proposed under the Canada Marine Act. The purpose of this act is to legislate matters related to shipping and navigation within the lands and applicable waters of public ports and CPAs. The labour actions would fall outside the scope of the CMA.

Third, our understanding—and this is a conversation we have had internally—is that the order is subject to the Canadian Charter of Rights and Freedoms, which protects the freedom of association, including the right to unionize and to strike. The ministerial order would be subject to any provisions in respect of the charter.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

What process is required for the minister to issue an order? Even if it does have that narrow focus that you talked about, what is the process by which a minister can obtain an order, and how quickly? What is the process for the minister to request an order? What is the typical turnaround time for an order of this nature to be made?

[Sonya Read]

In the case of this particular order, the threshold is very high. There is a twofold threshold. Basically, there has to be first a determination that there is a risk of imminent harm to national security, national economic security or competition, and second, a determination that the risk of imminent harm poses a significant threat to the safety and security of persons, goods, ships, port facilities or security of the supply chain.

There's a very high threshold in order to be able to issue the order. The process of the order would depend on the speed with which that determination could be made.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Then can the minister just get his letterhead out and sign a decree and it goes into force? I'm trying to understand what protections are in place to ensure that this isn't abused by anyone. In terms of the minister being of an “opinion”, I guess there's that question, which I think you partially answered.

The other part of “the Minister is of the opinion” is this: How is that informed? Is that really as simple as it sounds? Is there a more complex matrix that's used to determine the minister's opinion? This does give the minister, based on their “opinion”, extremely broad powers. While the port authority or the person in charge of a port facility perhaps can't order somebody back to work, it seems there's an awful lot of power for the minister, based on his opinion and by his own order, to take any measure.

What, for example, would be a “corrective” measure that a minister could demand that a port authority or a person in charge of a port facility take? What is an example of a corrective measure that the minister could order a port authority to take? Do you have examples of that having been done under the current legislation in the recent past?

[Sonya Read]

We don't have any examples of it being done in the recent past because this is a new order-making authority that didn't previously exist.

In terms of examples of where it would be used, it would be used in the context, as I noted, of a risk of imminent harm to national security and a significant threat to the safety and security of persons, goods, ships or port facilities or the security of the national supply chain.

In that event, pursuant to the ministerial order, the minister could order a corrective action to ensure that the harm did not occur. An example that we have considered would be if a terminal operator, in certain circumstances, was refusing to accept ships or cargo from a particular country of origin, and that refusal posed a significant threat to the safety or security of persons or to the national supply chain. In that event, the minister could, for example, order that terminal to accept ships from that country of origin.

That would be an example, but it would be in very rare circumstances. The threshold would be very high. In addition, the process for the issuing of the order would be subject to judicial review.

My colleague can provide more information with respect to the oversight of the ministerial order authority.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you; I would appreciate that.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

I have a point of order.

[The Chair, Liberal, Peter Schiefke]

Yes, go ahead, Dr. Lewis.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

With all due respect, Mr. Chair, I really do care about the integrity of this entire process.

I want to turn your attention, Mr. Chair, to section 116 of the Standing Orders. If we look at subsection 2(a), the standing order dealing with end of debate says:

Unless a time limit has been adopted by the committee or by the House, the Chair of a standing, special or legislative committee may not bring a debate to an end while there are members present who still wish to participate. A decision of the Chair in this regard may not be subject to an appeal to the committee.

Then it says:

(b) A violation of paragraph (a) of this section may be brought to the attention of the Speaker by any member and the Speaker shall have the power to rule on the matter. If, in the opinion of the Speaker, such violation has occurred, the Speaker may order that all subsequent proceedings in relation to the said violation be nullified.

Mr. Chair, this bill is a very important one, and I don't want anything to affect the integrity of the bill. I would like a point of clarification on this Standing Order and how it's been applied during this hearing.

[The Chair, Liberal, Peter Schiefke]

Thank you, Dr. Lewis.

After conferring with the clerk, all of the rules that you are referring to have been followed up until now. All members have been given the right to speak when they have the right to speak. There has been no attempt in any way to inhibit or prohibit any members from speaking. We can confirm that this is indeed the case.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

I'm sorry, but on a point of order, Mr. Strahl was cut off because debate was ended, which is not permitted by the rules. It clearly says that if there is a member present who has something to say and wishes to speak, they cannot be cut off.

Everything that transpired afterwards is in peril, and I think that this is something that we must....

Remember, Chair, that you are sitting in that position and that you are a creature of statute. Your position is literally based on the powers conferred by the Standing Orders. They clearly say that if a member wants to speak and has something to say, debate cannot be ended nor can debate be voted on pursuant to the rules, because there's no provision for it. There's no exception in that section of the rules. Everything that we're discussing here can be overturned by a simple motion to the Speaker, because the rules have not been complied with.

I'm going to respectfully ask that we adhere to the rules and that my colleague Mr. Strahl be permitted to continue the discussion that he was engaged in when debate was stopped outside of the rules.

[The Chair, Liberal, Peter Schiefke]

Thank you, Dr. Lewis.

In response to that, I would simply say that when Mr. Strahl had the floor when the vote was called, I asked whether or not Mr. Strahl and all colleagues wanted to allow Mr. Strahl to continue speaking, and it was, in fact, all members, including Conservative members, who did not want to give unanimous consent to allow Mr. Strahl to keep speaking.

I can say that there were members who I looked at who very verbally, out loud, said that they would not give unanimous consent to continue speaking. There was no attempt whatsoever to stop Mr. Strahl from speaking.

When we came back and resumed after the vote, I turned the floor over to Mr. Badawey because I thought that Mr. Strahl had concluded. He said he hadn't. I did not disrespect Mr. Strahl. I said, “Mr. Strahl, my apologies; I give the floor back to you”, and I didn't even ask for any consent from colleagues, because I respected the fact that Mr. Strahl had the floor and that he wanted to continue speaking.

I think that my work thus far as chair has shown that I am fair and just. I don't know if Mr. Strahl would agree with that, but I think I was very respectful with him when we came back, and I turned the floor right back over to him without any argument. He continued as long as he wanted to speak until such time as he said that he no longer wanted the floor. The record will show that.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

I beg to differ, Mr. Chair. In fact, what transpired was that Mr. Badawey moved a motion to end debate, and that motion was illegitimately voted on because there are no provisions in the Standing Orders to do that. It was illegitimately voted on, and then it was moved on. My colleague Mr. Strahl did not have the opportunity to finish the position he was taking on that particular issue because debate was illegitimately ended.

Since you say that this is not what transpired and that was not your intention, I'm going to give us the opportunity to resume debate. I don't think that we should allow a flagrant violation of the Standing Orders and I don't believe that there is any legal basis for us to be creating our own rules. I think that we must comply with the Standing Orders.

I'm going to ask that my colleague Mr. Strahl continue. There was an improper ruling, pursuant to Standing Order 116. Debate should not have been ended.

As you said, you did not tell Mr. Strahl that he had to stop. Maybe there was a misunderstanding. If it's Mr. Strahl's position that he had not concluded the debate, then I would like the motion that was put on the floor to end debate to be withdrawn or overruled, because it was improperly done, and I would like Mr. Strahl to rightfully have the floor and rectify this situation. That is the right and the correct thing to do, pursuant to Standing Order 116.

[The Chair, Liberal, Peter Schiefke]

Thank you, Dr. Lewis.

You do have the right to challenge the decision of the chair. I invite you to do so if you feel that the chair has, in some way, not followed the rules.

Before turning it back over to you to ask whether or not you do want to challenge the chair, I will state that, much to the frustration, I would say, of some committee members, I confer with the clerks as much as I possibly can to ensure that all of the decisions that I make as the chair of this committee do indeed follow the rules. That, once again, will be on public record.

I'll end there, Dr. Lewis, and I will ask whether or not you'd like to challenge the chair's decision to provide the floor to Mr. Badawey after what I believed to be the ending of Mr. Strahl's remarks on the matter. I'll turn the floor over to you to see whether or not you'd like to do that.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

Yes, Mr. Chair, I would like to challenge your ruling.

[The Chair, Liberal, Peter Schiefke]

Okay, we'll go to a vote, Dr. Lewis.