TILMA would lower standards to "lowest common denominator"; Saskatchewan Party Leader Brad Wall says "nothing to be worried about"

'There is growing interest in Saskatchewan in the landmark agreement between Alberta and British Columbia to cut red tape between the two provinces as a spur to economic growth.

Saskatchewan Party Opposition Leader Brad Wall…was in Calgary Monday for a meeting with [Alberta Premier Ralph] Klein where the main topic of discussion was the deal.

"His advice was, 'well, the province need only say. We want to sit down and start talking and it will happen,'" said Wall, an enthusiastic proponent of the deal who has castigated the NDP government for not being involved in the original agreement.

"I have no idea what's scary about what B.C. and Alberta are doing," he said.

"What it excludes is important, health and social (policy) is excluded, labour laws are excluded ... there is opportunity for us in our view and nothing to be worried about."'
– Deal interests Sask. Premier, Regina Leader-Post, June 7, 2006

TILMA provisions geared to settle on low standard

The StarPhoenix

Thursday, April 19, 2007

The SP has reported twice now that the Trade, Investment, and Labour Mobility Agreement (TILMA) between the governments of British Columbia and Alberta, which came into effect on April 1, "forces both governments to harmonize rules and regulations to the higher of the two standards."

The agreement actually states: "Parties shall mutually recognize or otherwise reconcile their existing regulations that operate to restrict or impair trade, investment, or labour mobility"

However, Rick Earle, director of finance for the City of Burnaby, in his report on the effects of TILMA on municipal governments, states: "This section provides the incentive for reconciliation at the lowest common denominator."

He says reconciling standards to higher levels would be contrary to Article 3.1 -- "measures do not operate to restrict or impair trade" -- and Article 6.1b -- "not more restrictive to trade, investment, or labour mobility than necessary to achieve that legitimate objective."

Rick Sawa
Council of Canadians

© The StarPhoenix (Saskatoon) 2007

Further evidence is provided by The Council of Canadians in its publication Facing the Facts about TILMA (February 2007) that states:

"TILMA enables private investors to sue governments for up to $5-million if existing regulations "restrict or impair investment" (Article 3); if regulations are not "reconciled" between the provinces (Article 5.1); and if new regulations are introduced that "restrict or impair investment" (Article 5.3). Since someone is more likely to sue because regulations are too high than if they are too low, TILMA will inevitably result in lower standards.

"Article 13.2 of TILMA obligates governments to recognize the qualifications of workers certified by another province without requiring any "additional training or examinations." This means that a province must accept that a worker is certified even if his or her certification was based on lower standards in another province. A province is prohibited from imposing training and examination requirements on an out-of-province worker whose qualifications are less than what are required in his or her new province. A government will be unlikely to continue to impose heavier certification requirements on its own residents than it applies to residents from another province. TILMA will effectively push provinces to adopt the lower standard across the board."

Additionally, in his February 2007 legal opinion concerning the potential impact of Ontario entering into a Trade, Investment and Labour Mobility Agreement prepared for the Ontario Federation of Labour, Steven Shrybman of Sack Goldblatt Mitchell wrote:

"[I]t is reasonable to expect significant pressure to reconcile…measures in favour of a lower common denominator of government regulation, because in many ways TILMA is by intent, design and structure no more than an instrument for de-regulation - after all, the entire regime is based on the premise that government regulation is the problem.

"For example…British Columbia requires five years of teacher education, but Alberta only four…Because it has the higher regulatory standard…the focus of reconciliation efforts under Article 13(4) is on BC to justify its higher standard, not on Alberta to explain why its teachers receive less training.

"The pressure that TILMA creates to reduce regulatory standards to the lowest common denominator was recently described by the Executive Vice-President of the Canadian Institute of Chartered Accountants in testimony before the Standing Senate Committee on Banking, Trade and Commerce:

"Although we support the merits of trying to enhance labour mobility, we bring to your attention the important need to recognize that provisions such as article 13.1 of TILMA could lead inevitably to the risk that standards of qualification for professionals are thereby reduced to the lowest level prevailing in the country.

"As provincial standards for regulation of professions are not uniform to begin with, this provision essentially makes the lowest of the standards that may exist in Canada acceptable as the base of qualification — essentially a race to the bottom, if you will. We do not believe that this is consistent with the obligation of legislators and governments nor of the professions themselves to ensure that the public is protected."

"Given the broad prohibition on regulatory intervention set out by Articles 3 and 5.3, it is inevitable that various efforts for reconciling or harmonizing provincial standards (see Articles 5.1, 5.5, 11.1 and 13.6) will create real pressure to reduce standards and regulations to the lowest common denominator, or abandon them altogether. If further evidence of TILMA’s deregulatory intent is needed, it can be found in the fact that it fails to incorporate AIT provisions intended to moderate the “race to the bottom” effect of trade liberalization."

Saskatchewan Party Leader Brad Wall said last year that there was "nothing to be worried about." The excellent work done by The Council of Canadians and Steven Shrybman show otherwise.