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Political : Constitution

Combines Investigation Act
Commons Debates, June and October 16th, 1975

Mr. Serge Joyal (Maisonneuve-Rosemont): Mr. Speaker, I listened very closely to the reasons put forward by the hon. member for Nickel Belt (Mr. Rodriguez) in support of the amendment dealing specifically with class action. There are some of his arguments that I should like to point out because they do not seem to do justice to the discussions held in committee.

First of all, it is objectionable to maintain, as the hon. member did, that since 1971 the government has failed to take any action in support of class action. As a matter of fact, the bill before us today for third reading was tabled in the House in 1971 and it is being considered for the fourth time. If the approval of class action is being discussed in the second phase of the government policy regarding consumer protection, it is not because the government is lagging behind, but rather because, due to particular circumstances, we had to postpone this debate until today.

I am not trying to decide who is responsible among the members of this House for the delay in passing this bill. I believe those who were present at that time can decide by themselves who is responsible. To claim, as the hon. member for Nickel Belt did, that it is because of the government's carelessness that we are not considering today a bill on class action is unacceptable.

Moreover, I should also like to remind the House that the Minister of Consumer and Corporate Affairs (Mr. Ouellet), last fall, during a visit to western Canada, emphatically stated to the Canadian people that his department was working on the definition of the main features of a bill to define class action. The Canadian press in particular echoed the minister's statement and as the hon. member for Nickel Belt pointed out, I do not think the minister's image has been damaged that much at this time in the eyes of the consumers. On the contrary, since his appointment, the minister has taken action many

Combine & Investigation Act times in support of Canadian consumer groups, like the Consumers' Association of Canada or the ACEFs. All those groups benefited by the full support and interest of the minister, they even received quite considerable grants from his department, and I do not think the minister's image has been damaged at this point to the extent that we may question his ability to protect the interests of consumers.

On the other hand, Mr. Speaker, I should like to recall some of the things the hon. member for New Westminster (Mr. Leggatt) said about the very nature of class action. Like him, Mr. Speaker, I am a lawyer myself, and I had the opportunity during the committee proceedings to look somewhat more fully into this matter of class action. I realize on reading the amendment moved by my hon. colleague that he overlooks three very important aspects of class action.

The first of those aspects is the procedure of initiating a class action as such I think, Mr. Speaker, that if we were to pass the amendment as proposed, we simply could not proceed because the procedural implications of a class action are much more complex than those suggested by the hon. member for Nickel Belt (Mr. Rodriguez). On the other hand, he did not deal at all with the division of the award. As you know, when an award is made by the court following a complaint lodged by means of a class action, the court must try to divide the award among all those represented in the class action. Well, the division of the award involves very complex principles of distribution overlooked in the amendment moved by my hon. colleague.

Finally, Mr. Speaker, I should like to point out a specific difficulty with this type of action under a federative system. Indeed, class action is not only an action designed to protect the consumer. However, it is an action that exists in the whole area of education. It is also an action that is open in bankruptcy cases. Indeed, as you know, this House has before it a bill to consolidate the bankruptcy act and those affected by bankruptcy - the Canadian people. Consumers affected by bankruptcy may also petition the court by way of class action.

Consequently, Mr. Speaker, I think the amendment as proposed allows us to define once again the priority that we, as a government, give to class action, but I do not think it is sufficiently developed to allow us in the final analysis to take immediate steps in order to provide the increased protection to Canadian consumers that the hon. member wants this House to ensure, which we could not do today at any rate if the amendment were to be debated as proposed. So I hope this amendment will be deferred and that in the second phase of the government policy respecting consumer protection, we will have the opportunity to reconsider this bill as early as possible. However, I would point out to my colleague, not without irony, that before proceeding with that discussion, we shall have to dispose of this bill once and for all with respect to the amendments.

Hon. Marcel Lambert (Edmonton West): Mr. Speaker, earlier this afternoon I had the opportunity to speak to the admissibility of this motion. I said that I wished to considtant point. We raised some serious constitutional questions about the power of parliament to assign to the Federal Court a criminal jurisdiction. Section 46 of the act seeks to do this. I do not have the details before me, but attention to a very serious breach was drawn by an eminent constitutional authority, on behalf of the Canadian Bar Association, I believe.

My colleague from York-Simcoe and I wanted to question the experts or law officers who advised the minister . All we now have is the minister's own assertion that he is satisfied with the advice of his officers. That is not good enough, and that particular point concerns me.

My colleague from York-Simcoe has said with regard to this important question of constitutionality that parliament cannot grant a criminal jurisdiction to the Federal Court, and that is what the act attempts to do. He said that the matter should be referred to the Supreme Court of Canada for a ruling before these provisions come into force. That is the purport of the amendment.

Someone can say, 'But this is novel!" So what? There is always a first time. After all, Your Honour's predecessor on a couple of matters in which, I suggest, the procedural arguments were in my favour but in which he did not feel they were, said, I am going to treat the matter as a first time and rule in such and such a way ." I did not particularly care for his rulings because they went against the weight of the authority of precedents set elsewhere, not in this House. But he said that this was a first effort, as it were, in this House, and Mr. Speaker ruled as he saw fit. That was quite within his power.

I suggest to you, Mr. Speaker, that it is within your power to rule that such an amendment as this is acceptable. That is all Your Honour has to decide. Your Honour cannot rule on the legality, or on whether parliament can refer a matter or put a bill in suspension because part of it involves a constitutional question with regard to which there is grave doubt.

I say that it is the duty of the opposition, indeed of all members of this House, to question propositions in a statute which may be unconstitutional. Those of us who are lawyers would be remiss in our duty if we casually let such propositions go unchallenged. Our colleagues in the profession, who have the right to do so, could readily point the finger at each and everyone of us and ask "Where were you when this matter was under examination? What opinion did you have? Is there or is there not constitutional authority?" If the answer were to be "Well, that did not bother us", then each and everyone who said so would be derelict in his duty. Therefore, Mr. Speaker, I am going to put it quite plainly on that basis.

My colleague is questioning the constitutionality. Your Honour cannot rule on the constitutionality, but can accept a motion which deals with the question of constitutionality. If the procedure is put forward to the Supreme Court of Canada, which is the authority to rule on constitutional points, so be it. I submit that even if the argument is that this is the first time this has happened, my colleague has the right to put forward the motion, and it is not out of order.

Mr. Serge Joyal (Maisonneuve-Rosemont): Mr. Speaker, the amendment moved by the hon. member for York-Simcoe (Mr. Stevens) raises one of the most interesting questions for constitutionalists and I cannot help answering the invitation put to me by the hon. member for Edmonton West (Mr. Lambert) and give my advice as a lawyer on the constitutionality of the bill and on the implications the amendment would have on Canadian legislation if it were adopted as moved by the hon. member for York-Simcoe.

But before dealing with the contents of the amendment itself, I would like to point out, Mr. Speaker, that in my opinion this amendment is inadmissible at this stage of the discussion. As a matter of fact, the amendment refers to one of the conditions for the coming into force of the bill in its present form, and these conditions are clearly defined in clause 31 of the bill. Now, the amendment as moved by the hon. member for York-Simcoe refers rather to clause 12 of the bill.

Consequently, if one refers to authors of doctrines, to Beauchesne's Parliamentary Rules and Forms, Citation 406, it is clearly established that an amendment which is not directly linked to the conditions governing the coming into force of a bill as stated in the bill is out of order. This opinion is brought forward again by May, on page 510, who says that an amendment must be declared out of order if it is not properly related to the clauses it is meant to amend. Therefore, Mr. Speaker, the amendment should be declared out of order.

However, in the wording of the amendment there is an extremely important principle which is the right to refer to the Supreme Court. This right goes back very far in history. In the Middle Ages, when parliaments were meeting, they did not enjoy the privilege of drafting legislation.

They would petition the sovereign for their rights - he would consult judges and magistrates - and ask him to draft the bills. It was only much later that parliaments took upon themselves the right to phrase the bills themselves before submitting them to the approval of the sovereign who could only either accept or reject them but not alter them.

The contents of the amendment which the hon. member for York-Simcoe (Mr. Stevens) has proposed would result in delaying the enactment of this legislation until the Supreme Court would rule upon the constitutionality of clause 31.1 of Part IV of the bill.

Evidently the hon. member is referring to section 55 of the Supreme Court Act of Canada, which was introduced for the first time when the Supreme Court was created in 1875, and to a section which was amended in 1891 when the act which set up the Supreme Court in Canada was rewritten.

Section 55 of the Act clearly states that any significant question of law or facts concerning the interpretation of the British North America Acts or the constitutionality or interpretation of any federal or provincial legislation may be referred by the Governor in Council to the Supreme Court for hearing and consideration.

Under the terms of the present legislation, I do not think it is essential for the government to go through that process of referring the bill to the Supreme Court should any doubt arise with respect to its constitutionality.

As a matter of fact, it has happened several times in the past that bills dealing with combines, for instance the Board of Commerce Act of 1919 as well as the Combines Act of 1928 were referred to the Supreme Court for consideration of questions of fact and law relating to those bills. In either case the Supreme Court did recognize the constitutionality of the bills and held that they fitted perfectly well within the prerogatives of Parliament.

The proposed amendment as it stands would give rise to a doubt with respect to the constitutionality of the bill as we are debating it.

Now, Mr. Speaker, you know for a fact that any bill introduced in the House of Commons is presumed to be constitutional; in other words, when a bill is referred to a court, it is considered as having been adopted pursuant to the powers of Parliament, and as coming within the jurisdiction of Parliament or of the Legislative Assembly which have adopted it.

The proposed amendment would have the effect of casting a doubt on the constitutionality of the bill, and therefore of the powers of Parliament to legislate with respect to combines.

Mr. Speaker, I do not think there is any need at this time to refer that bill to the Supreme Court.

As a matter of fact, the government has, I believe three good reasons for rejecting the amendment. First, experience has shown that any abstract question put to the courts of justice leads to an abstract answer, which is very often of little use in solving practical cases.

Second, the reference procedure historically stemmed from the lack of any right of appeal on the part of the private individual. Now, it is clearly provided in this bill that any individual or corporation that might be affected by any of the provisions has a right to appeal to the board, and may exercise that right and the board is required to give him an opportunity to be heard. The right of appeal is therefore explicitly recognized in the legislation, and no individual is now deprived of his right of appeal before an impartial court.

Finally, Mr. Speaker, we must mention that traditionally the reference procedure has been used in cases where individuals could not afford to defend their rights, or where there were conflicts between the provinces and the federal government.

The hon. minister who appeared before the parliamentary committee made it quite clear that contacts and exchanges had taken place between his department and the departments of the main provinces interested in the bill and that there was no disagreement which would warrant the government at this stage to question the constitutionality of the bill and refer it to the Supreme Court of Canada. Consequently, Mr. Speaker, for reasons of law, for reasons of the amendment as worded now being out of order when it should have been tagged to clause 31 and not to clause 12, and also for reasons of policy where the government at this stage has no reason to question the constitutionality of the bill I say, Mr. Speaker, that in my opinion this amendment should be ruled out of order and turned down in its present form.

Mr. Lambert (Edmonton West): I want to ask the hon. member a question, Mr. Speaker. Since the hon. member actually questioned the position of the amendment, could he enlighten us on the matter? Under clause 12 of Bill C-2 we have paragraph 31 of the Combines Investigation Act, and it is precisely at the end of clause 12 of Bill C-2 that my colleague puts his amendment relating to clause 31. So I wonder where else one would put such an amendment because clauses 12 and 31 refer to two different statutes.

Mr. Joyal: I think, Mr. Speaker, with your permission, that there is some confusion in the wording of the amendment. Indeed it is right to argue, as the hon. member for Edmonton West (Mr. Lambert) suggests, that the amendment relates to clause 31 of the combines bill, a clause being amended under clause 12. But if the very content of the amendment of the hon. member for York-Simcoe (Mr. Stevens) is to be the coming into force of the bill to one condition, namely the decision of the Supreme Court on the constitutionality of the bill, that condition should rather be tagged to clause 31 which ties the coming into force of the bill to certain conditions which are defined under that clause 31. I think the amendment as worded now, should be turned down on a simple matter of procedure within a formulation and not as such within the content of the constitutionality of the bill.

My first argument, Mr. Speaker, is purely a procedural one, and is not a legal argument as such. It is a purely procedural argument. According to our administrative procedure, and Beauchesne and May have made it clear, if an amendment is not directly related to the clause of the bill that defines its contents, it must be declared out of order. Yet, in this case, the content of clause 31.1 of the Combines Bill is included in clause 12 while the content of the clauses concerning the coming into force of the bill is also included in clause 31 of the bill. This is why I think there is some confusion as concerns the texts, Mr. Speaker.

Mr. Speaker: Order, please. If there are no other hon. members who are anxious to participate in this very interesting discussion the Chair is left very much with the conclusion it had come to at the beginning of the discussion.

I wish to thank the hon. member for Maisonneuve-Rosemont (Mr. Joyal) for his very interesting and well-prepared speech.

I also thank the hon. member for Edmonton West (Mr. Lambert) for his very spirited intervention on behalf of his colleague and the procedural regularity of this motion.

The fact is, and this seems inescapable, that the motion would exceed the scope of the bill in several relevant particulars, not the least of which is that it does indeed appear to use the words, "notwithstanding section 31 of the act" whereas in fact the statute before us does not propose to amend section 31. Further, the proposed motion