Budget Implementation Bill, 2016, No. 2—Third ReadingPublished on 13 December 2016 Hansard and Statements by Senator George Baker
Hon. George Baker:
Honourable senators, very briefly, I have listened carefully to Senator Carignan. I think there’s a point we have to recognize here, and that is that the amendment made to Bill C-29, that particular portion of the bill had nothing to do with the budget of the Government of Canada. It was extraneous to it. It had nothing to do with the finances.
The big mistake was made in the other place in that the official opposition, the Conservative Party, didn’t do their job. There were two members of the House of Commons who brought this issue up publicly. One was an NDP member and the other was a Bloc member. I have to point out that this was not entirely about protecting provincial rights. This whole thing was about protecting Canadians against charges that are made by banks that the general public in Canada is not even aware of. Five banks in Canada charged fees that were not described in the contract of credit cards. That’s reality.
The Supreme Court of Canada made three judgments. One was AMEX, one was the Bank of Montreal and the other was Desjardins. In those three judgments, the Supreme Court of Canada made this distinction, which is so important and I think formed the basis of the Senate’s action. In the case of the Bank of Montreal, they took $30 million from customers as a fee that was not in the contract for the credit card. The credit card was used in a foreign nation. They called it an administration fee. It wasn’t in the contract.
Now, when those people discovered this and formed a class action, where could they go for a class action that has a civil remedy? The only place they could go was to the Consumer Protection Act of the Province of Quebec. Why? Because the Bank Act, as the Supreme Court of Canada pointed out in those three judgments, has no civil remedy. The remedy in the Bank Act is what is termed a criminal remedy, but it’s against the bank. It could be a fine against the bank, but there is no civil remedy in the Bank Act. So if the Bank Act was to encompass everything when credit cards are issued, an umbrella control, which is what that portion of Bill C-29 would do, there would be no civil remedy.
Can you imagine $30 million by one bank taken from Canadians without Canadians being aware of it and having no remedy? You can’t go and get the money back? Well, your provincial act, that’s provincial jurisdiction. You’re talking about contract law. So now you go to your provincial consumer protection act. We have them in every province. For example, in the Quebec act you see charges even to the point of saying there are special damages.
Now, just imagine. It’s not just normal damages. It’s not just repayment of the money you owe us, but it’s special damages. “Punitive damages” is actually in the Quebec act.
Senator Day: There you have it.
Senator Baker: So that is the only place where a Canadian can get justice for improper charges by the banks, through provincial legislation that is provincially controlled. If the Bank Act were to control everything, then there would be no civil remedy. I think that’s the most important point of all: the action of the Senate, where the official opposition in the House of Commons didn’t do their job. The Senate’s job was sober second thought on the actions of the House of Commons.
On behalf of Canadian taxpayers, the committee, headed by Senator Smith, the great former fullback of the Montreal Alouettes — yes, he’s a corporate lawyer, but we’ll forgive him for that. The great fullback, he headed the committee, and the members of the committee should be congratulated. Yes, Senator Pratte and the leader of the official opposition here today should be congratulated, as should every single member, and Senator Harder, the key go-between that enabled the Senate to do its job — sober second thought on a mistake that was made in the House of Commons in this huge, complex bill.
An Hon. Senator: By the government.
Senator Baker: Well, it was the job of the official opposition to bring it to the attention of the House of Commons, which they didn’t do. But it was the Conservatives — and this says something for the Conservatives in this place, because the Conservatives in this place were the —
Senator Tkachuk: Did their job.
Senator Baker: Really, they did their job of sober second thought. That’s right; we’re all a team. The Senate once again provided that sober second thought. It’s our job to do, and we did it on behalf of Canadians, not just for some constitutional argument as well.