Lexpert Magazine

LEXPERT MAGAZINE | NOVEMBER/DECEMBER 2016 87 | IN-HOUSE ADVISOR: INTERPROVINCIAL TRADE | curement, alcohol and a few others. Never- theless, it requires governments to ensure "their policies and practices do not have the effect of creating obstacles to trade." It didn't quite turn out that way. For instance, in giving an example of how it intends its "No Obstacle" rule to work, the AIT says, "Governments must ensure that the tendering of contracts covered under the Agreement does not favour suppliers of a particular province." Yet in the construc- tion sector Atkinson says this happen regu- larly, in part because some Crown corpora- tions are exempt from the AIT. On September 1, 2015, he points out, Saskatchewan introduced its Crown Sec- tor Procurement Preference Policy. It was a retaliatory move against Ontario and Qué- bec — the latter accused of favouring Qué- bec contractors for building Loto-Québec casinos and other projects. Saskatchewan's new policy states that, when prudent, all AIT-excluded Crown corporations — including SaskEnergy and SaskPower — will, for contracts of $100,000 or more, give preference to busi- nesses in the New West Partnership Trade Agreement (NWPTA). (at 2010 agree- ment between BC, Alberta and Saskatch- ewan is an enhanced trade agreement designed to eliminate even more barriers than the AIT and enhance investment and labour mobility between the signatories.) Atkinson wonders why — since such preferential provincial procurement pro- grams offend the AIT — the federal gov- ernment remains silent on them. Even though some of his members might benefit from preferential procurement policies, At- kinson says the CCA has "a long-standing policy that we are opposed to preferential treatment, because in the long run we be- lieve it is detrimental to local businesses. Yet not everyone in the construction in- dustry sees biased provincial procurement policies actually impacting their business- es. A lawyer by training, Peter Clarke has been CEO of Toronto-based Dineen Con- struction since 1980 and has opened offices and bid on projects in Alberta, Saskatch- ewan, New Brunswick and PEI. All he had to do, says Clarke, was open up a new office in a province and incor- porate a subsidiary, then bid on jobs. "It's very easy. It happens all the time. … I can go set up tomorrow. It's no big deal. And basically the lowest bidder gets the jobs." at won't ruffle local industry feathers, adds Clarke, because any out-of-province firm that comes in from elsewhere is going to use local subcontractors and trades to do the work. "All construction is local — we are just managing the thing — it's the local guys that are doing the building." Out of harmony Provinces — in 150 years of effort to pro- tect their agricultural bases, favoured in- dustries and powerful lobbyists — have created a labyrinth of regulations, packag- ing rules, policies and professional accredi- tation requirements that can give in-house counsel a serious headache. Every province, for instance, has its own taxation rules for beer sales, with most charging higher markups (taxes) for beers imported from outside provinces. Even rules on required bottle sizes differ from province to province. at makes it difficult to penetrate markets in non- home-base provinces, especially for smaller brewers that can't afford to build parallel bottling systems for any new provincial market they're eyeballing. For instance, in a report on internal trade released last March by the Standing Committee on Banking, Trade and Com- merce, Ontario-based Beau's All Natural Brewing Co. complained to the commit- tee that it spent eight years and $100,000 just to get the approval required to sell its beer in Québec. e committee ultimately decided that the AIT needs a serious over- haul that "must be as ambitious and com- prehensive as any trade agreement Canada has with a foreign country." Canada's brewers and vintners — sec- tors most heavily handcuffed by powerful provincial liquor boards and monopolies that control where alcoholic products can be sold — seem to have low expectations for the CFTA to fix their internal trade issues. LaFortune says he shrugged when he heard an agreement had been reached in Whitehorse. "Since the federal govern- IAN BLUE > GARDINER ROBERTS LLP In such a constitutional case ... there would be a good chance that [the SCC] would choose to grant leave. ... [If the SCC upholds the Comeau decision] it would mean that any marketing legislation, such as federal and provincial marketing boards, to limit quotas of milk, eggs, poultry and what have you, and prohibit them from being purchased from one province to the other, will all fall down.

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