Vol. 147, No. 14 — July 3, 2013

Registration

SOR/2013-133 June 13, 2013

CANADA TRANSPORTATION ACT

Rules Amending the Canadian Transportation Agency General Rules

The Canadian Transportation Agency, pursuant to section 17 of the Canada Transportation Act (see footnote a), makes the annexed Rules Amending the Canadian Transportation Agency General Rules.

Gatineau, Quebec, June 6, 2013

CATHY MURPHY
Secretary
Canadian Transportation Agency

RULES AMENDING THE CANADIAN TRANSPORTATION AGENCY GENERAL RULES

AMENDMENT

1. The Canadian Transportation Agency General Rules (see footnote 1) are amended by adding the following after section 2:

QUORUM

Quorum

2.1 In all proceedings before the Agency, one member constitutes a quorum.

COMING INTO FORCE

Registration

2. These Rules come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issue

The Canadian Transportation Agency (Agency) is amending its rules of procedure, the Canadian Transportation Agency General Rules (General Rules), to reduce the quorum requirement contained in subsection 16(1) of the Canada Transportation Act (CTA) from two members to one, to improve the efficiency of its decision-making process and optimize the use of limited member resources.

The Agency is an independent administrative body of the Government of Canada which performs two key functions within the federal transportation system:

The members of the Agency are responsible for all economic determinations, and economic regulatory and adjudicative decisions and orders.

This means that members must decide on a wide range of matters that come before the Agency, from uncontested licence, permit and other approval applications with limited discretion to be exercised by members to complex and significant economic determinations, as well as contested disputes of varying complexity. To require a two-member quorum for all proceedings before the Agency is not an efficient or effective use of limited resources.

In particular, the Agency has a large and challenging caseload which must be managed by the Chair as the Chief Executive Officer of the Agency. The Chair strives to ensure that the Agency has a consistent decision-making process which is carried out as expeditiously as possible as required by subsection 29(1) of the CTA and in the most effective way, deploying the Agency’s limited resources, including the Agency’s current complement of five full-time members.

There is often a gap between the appointment of a new member and the departure of an existing member which places a considerable burden on the Agency’s ability to efficiently process files. Of immediate concern is the fact that within the next eight months two members’ terms will expire, reducing the Agency’s complement of members for decision-making for up to six months in advance of their end of terms in order to wind down their caseloads. It further potentially reduces the complement of members for a longer period of time if there is a gap between the end of term of a member and the time a new member is appointed. In addition, it is anticipated that the Agency’s mandate in the area of arbitration will increase should Bill C-52, which is currently before Parliament, be made law, placing additional pressure on the existing complement of members.

Under subsection 16(1) and paragraph 17(c) of the CTA, the Agency has the authority to make rules that modify the quorum of two members set out in subsection 16(1) of the CTA. Regulatory intervention is required at this time as the use of a one-member quorum will enable significant enhancements in efficiency without compromising the quality of decision-making.

It should be noted that the one-member quorum amendment has been a part of a larger initiative to replace the current General Rules (which have been in place since 2005). The focus of this larger initiative is to modernize, streamline and simplify the current General Rules and develop Agency procedures and processes that are faster, simpler, more predictable and transparent. However, given the concerns with the upcoming expiry of members’ terms and the Agency’s challenging caseload, which is anticipated to increase, it was decided that the one-member quorum amendment should be introduced immediately to address these concerns pending completion of the more comprehensive revision of the General Rules later this year.

Objectives

The objectives of the amendment to the General Rules are

Description

Under subsection 16(1) and paragraph 17(c) of the CTA, the Agency may modify the two-member quorum that is set out in subsection 16(1) of the CTA. Given the extensive and challenging workload of the Agency, the upcoming expiry of two members’ terms and the anticipated increased mandate of the Agency in the area of arbitration, the one-member quorum amendment will allow for the efficient processing of cases before the Agency with no impact on the quality of the decisions and orders that are issued by the Agency.

Rationale

Overall, stakeholders and applicants will benefit from the proposed amendment with no anticipated additional cost to the industry or government. The amendment will allow for the efficient and timely processing of files before the Agency, particularly during times of high caseloads and where the Agency’s complement of members is reduced. There will be no impact on the quality of the decisions and orders issued by the Agency.

Consultation

The Agency launched, on November 13, 2012, its consultation on the revisions to the current General Rules, which included a proposed one-member quorum provision. Interested parties were given until December 21, 2012, to submit their comments. In response, the Agency received 10 written submissions.

In addition, six meetings were held with targeted stakeholders, including industry and consumer representatives.

The submissions received indicate that the vast majority of stakeholders did not have concerns with the one-member quorum provision. Only four stakeholders commented on this provision.

Two stakeholders questioned the use of the word “establish” in the draft provision. This word is not used in the proposed amendment. Two stakeholders questioned whether a quorum can consist of one member. However, the Agency has the authority to modify the quorum under subsection 16(1) and paragraph 17(c) of the CTA and there is nothing in the CTA that limits the authority of the Agency to make rules providing for a quorum of one. One stakeholder indicated that the one-member quorum provision should not be a blanket provision but rather should clearly set out the types of proceedings or procedural steps that one-member can hear and that proceedings that are not listed should fall under a quorum of at least two members, rather than the proposed provision which allows for a member to hear and determine every matter, even if it is substantive and contested. This stakeholder agreed that one member ought to be able to hear any uncontested matter but that contested matters, substantive decisions and final decisions ought to be made by at least two members. Another stakeholder similarly supported the quorum provision for procedural or uncontested matters.

The one-member quorum amendment provides the Chair of the Agency with the flexibility needed to manage the Agency’s caseload and enables significant enhancements in efficiency.

A stakeholder was also of the view that a quorum of two members is meant to compensate for the possible lack of legal expertise of members. However, members are selected for their expertise, including legal, transportation, economics, and administration expertise, and are supported by expert Agency staff, including a full complement of in-house lawyers.

Implementation, enforcement and service standards

The one-member quorum amendment comes into force on the day that it is registered.

There are no compliance and enforcement strategies that would be applicable to this amendment.

The Agency has set in place an extensive array of time-based service standards to ensure that it provides efficient and transparent services. These standards are based on the Agency’s performance measurement framework, established in 2007, and are adjusted periodically according to client and stakeholder feedback as well as the Agency’s strategic objectives. Each year, the Agency publishes its performance results against these standards in its annual report.

The Agency will monitor how often it uses one member on a file and how often those files meet the service standards established by the Agency.

Contact

Inge Green
Senior Counsel
Legal Services Branch
Canadian Transportation Agency
15 Eddy Street
Gatineau, Quebec
K1A 0N9
Telephone: 819-953-0611