March 9, 1923

LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

I make this statement because I think it is only fair not only to myself but also to the Conservative party. I think it is also only fair to state that it was not a member of the Press Gallery who wrote the article in question. Readers of this paper, the Grain Growers' Guide, will, however, be interested in noting that the Ottawa correspondent is the press representative in this city of the Canadian Pacific Railway Company, and in addition writes for a well known Wall Street financial journal.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. ARTHUR MEIGHEN (Leader of the Opposition):

I owe it to the hon.

member (Mr. Shaw) to say that his words as i respects anything in the way of an understanding are absolutely true; I had no knowledge direct or indirect of his motion. I may add as well that now I hope that he, and others more or less associated with him, will understand how I as leader of the Conservative party have been, at the hands of this same journal, very frequently done grave injustice to.

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COMBINES, MONOPOLIES, TRUSTS AND MERGERS

LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Right Hon. W. L. MACKENZIE KING (Prime Minister) moved:

Resolved, that it is expedient to bring in a measure to provide for the investigation of combines, monopolies, trusts and mergers; for the administration of the proposed act by a Minister of the Crown to be named by the Governor in Council; for the appointment of a registrar to receive, register and deal with applications for such investigations, and for the appointment of commissioners from time to time by the Governor in Council to hold investigations; for the payment of the registrar, commissioners and witnesses and to establish such offices, with assistants, as may be required; for power to remit or reduce duties where combines are proved to exist; for the revocation of patent rights in certain cases; for prosecution by the Attorney General of any province, or upon his failure to act, by the Solicitor General; and for the imposition of penalties for violation of the provisions of the proposed legislation.

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CON
LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

Mr. Chairman, I will make the explanation at the moment that I thought of making on the introduction of the bill. It will cover the same ground.

Combines

There is at the present time no effective legislation against combines which are operating or may operate to the detriment of or against the interest of the public, whether producers, consumers or others. Such legislation as has been enacted by this parliament on the subject of combines in restraint of trade, the enhancement of prices and the like, is divisible broadly into three groups: first, the legislation with respect to conspiracies and combinations in restraint of trade which is embodied in the Criminal Code. It was originally enacted in a statute passed in 1889, which statute was to all intents and purposes declaratory of the common law. In 1892 this act was repealed by the Criminal Code, but the substance of its essential provision was reenacted in section 520 of the code of that year. The section of the code was amended in 1900 and again I think in 1906 when the Criminal Code was under consideration. It now stands as section 498 of the Criminal Code in virtually the same words as the original enactment of 1889.

The second group of provisions dealing with combines in restraint of trade, or operating to the detriment of the public, were those of the Combines Investigation Act of 1910 which provides for the investigation of combines, monopolies, trusts and mergers.

The third group is comprised in the legislation embodied in the Board of Commerce Act and the Combines and Fair Prices Act of 1919.

The Combines and Fair Prices Act repealed the Combines Investigation Act of 1910. Such protection, therefore, as that act may have been presumed to have afforded to the public was removed by the Combines and Fair Prices Act of 1919. On the other hand, the Combines and Fair Prices Act of 1919 was itself dependent upon the Board of Commerce Act and the functioning of the Board of Commerce under that act. As hon. members of the House know, the Board of Commerce, under the Board of Commerce Act, never did function properly and has ceased to exist, so that such protection as might have been presumed to be afforded consumers or producers under the Board of Commerce Act and the Combines and Fair Prices Act also no longer exists. While the Board of Commerce Act is not effective in any of its provisions so far as the protection of the public is concerned, Section 11 of the Combines and Fair Prices Act provides that no prosecution can be commenced under section 498 of the Criminal Code except under the written authority of the Board of Commerce. That section is still in the statute and as long as the statute remains, such protection as the

Criminal Code may be assumed to have afforded producers and consumers is also of no effect.

The legislation which the government proposes to introduce, repeals the Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919, in that way freeing the statutes of two enactments which have become dead letters. On the other hand, this repeal will have the effect of reviving what there may be of virtue in section 498 of the Criminal Code which relates to conspiracies or combinations in restraint of trade.

Now, it is recognized that there are distinct limitations in the matter of the protection of the public under the provisions of the Criminal Code. The legislation which the government is introducing proceeds on the theory that the reason why section 498 of the Criminal Code is of so little effect is not that there are no combinations that are detrimental to the public or that such combinations are rare, but rather that the existence of these combinations, and their method of operation is difficult to discover; that what is needed is effective machinery of investigation which will disclose the existence of combines operating to the detriment of the public, and afford the information whereby proceedings under the Criminal Code can be made really effective in the case of individuals who are violating its provisions, or who are associated with combines that are operating to the detriment of the public. The legislation to be introduced provides machinery for investigation which it is hoped and believed will be effective toward this end. I will describe the proposed method of investigation a little more in detail when I refer to that particular phase of the subject.

The bill proposes to supplement the clause in the present Criminal Code by a provision creating a new criminal offence; making it an offence for any person to be a party or privy to or knowingly to assist in the formation or operation of a combine operating to the detriment of the public-a combine as defined in the legislation which is proposed. It will be readily observed that to be effective, the definition of the word " combine " must be made sufficiently comprehensive to include any agreement or arrangement, whether tacit, implied or expressed, which has the effect in practice of creating a combination that is operating against the public interest; and the definition of the word " combine ", as set forth in the proposed legislation, has been drafted with the end in view of having it sufficiently broad to include all possibilities under that head. On the other hand, that

Combines

parties may' be properly protected in the matter of criminal prosecutions and in order that no one may be prosecuted without having the advantages which the courts of law and the procedure in the courts throw about one who is brought before them for trial, a provision is included in the proposed legislation to the effect that no prosecution can take place except at the instance of the Attorney General of a province or the Solicitor General of the Dominion.

The remedies that are proposed are first of all, as indicated, the remedy of publicity. There are some offences as to which publicity is more effective as a remedy than penalty. The law is drafted so as to make possible the widest publicity with respect to any offence under its provisions.

Then there is the remedy of penalty, to which I have already referred, as a result of criminal prosecution. There are other remedies which may be exercised as the circumstances warrant-for example where it would appear that in the case of an article of commerce the parties concerned were profiting by virtue of the tariff as it is, power is given to the Governor in Council to reduce or to abolish duties with respect to that particular article. Similarly, where a patent is being used to limit manufacture, or in other ways limit conpetition, to the detriment of the public, power is given for the revocation of the patent.

In the proposed legislation the government has sought to be guided by such experience as the country has had in the workings of previous legislation; to retain what may have been of value in the Combines Investigation Act of 1910, and what may have been of value in the Board of Commerce Act and the Combines and Fair Prices Act of 1919, but to meet, as far as may be possible, what has been found defective or in the nature of limitation in the successful working of both these enactments. The Combines Investigation Act of 1910 provided that where any six persons were of the opinion that a combine existed which was detrimental to the public they might appear before any judge of a high court and make out a prima facie case. If they succeeded, the judge was required to report accordingly to the registrar appointed under the act. The registrar thereupon called upon the parties who had made out the prima facie case, and upon the parties concerned in the combine, each to name a representative for a board, the two to agree upon a third representative, and the three thus ' named were constituted a board of investigation, which board was given all the powers

of a court of record. When the board had made its report the Governor in Council was then free to take such action as was thought best in accordance with other provisions of the statute, provisions similar to those respecting the reduction of customs duties, the revocation of patents, and criminal proceedings, to which I have already alluded.

It was found under the Combines Investigation Act that obliging individuals in the first instance to associate themselves together and make out a prima facie case before a judge discouraged in large measure any investigation. The parties seemed to be under the impression-although the law did not give ground for it-that they would necessarily have to bear the expense of the preliminary investigation, and might have to bear the expense of the investigation before the board that was subsequently appointed. For that reason, and possibly others as well, the Combines Investigation Act of 1910 was not used to the extent expected at the time that that measure was passed.

In the present proposed legisation the objection which I have just referred to has been removed by not obliging the parties to get together and prove a case before a judge in the first instance, but by permitting parties who believe a combine is operating in restraint of trade to make direct application to the registrar to be appointed under this act, and giving power to the registrar himself to make an investigation to satisfy his own mind as to whether such a combination does exist or not. The act gives the registrar very full powers. He may, if he so desires, proceed on his own initiative. The act further provides that the government may appoint one or more commissioners, where it is shown before the registrar, or for other reasons there are grounds for believing that the combine is operating to the detriment of the public. The government may appoint these commissioners with all the powers that commissioners have under the Enquiries Act, take evidence under oath, visit the premises, inspect books, compel the production of documents, if they like. Ample provision is made to secure the due exercise of these powers. Under the Board of Commerce Act there was created an extraordinary court, a court of record with powers of inquisition, accusation and judgment, all exercisable by the same body. I will not go into the reasons which seemed to render a court of that kind valueless for the purpose for which it was instituted. I will simply point out that it had functions which seldom are combined in any one body, that namely of beginning investigation, of laying information, of prosecuting,

Combines

of pronouncing judgment and seeing to the enforcement of that judgment. It moreover was a single court, constituted of a definite personnel; it was supposed to have and did have virtually the whole say as to what prosecutions should be commenced, even as I have already indicated, for violations of the Criminal Code. Experience has Bhown that a board of that kind cannot be expected to function properly, and instead, therefore, of a board of that character, this measure proposes to give full power of investigation to commissioners to be specially appointed from time to -time as occasion may require.

I think, Mr. Chairman, that that broadly is the outline of the proposed legislation.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. ARTHUR MEIGHEN (Leader of the Opposition):

I do not think any great object could be served by a prolonged discussion, but I felt that I could say something anent the historical summary given by the hon. Prime Minister (Mr. Mackenzie King). I remark first of all that the title of the bill, as it appears in the introduction of bills, and as it is summarized again, reflected at least in this motion, is not in accord with what was promised in the Speech from the Throne. The Speech from the Throne promised legislation "to safeguard the interests of producers and consumers" against Trust monopolies and combines, thereby foreshadowing, not investigatory legislation, but executory legislation, legislation that would itself have a controlling and final authority over such trusts, monopolies and combines. The promising language of the Speech from the Throne was considerably modulated when the title of the bill came down-"an Act to Provide for the Investigation of Combines, Monopolies, Trusts and Mergers." The Enquiries Act today would give us as ample powers of investigation as anyone would wish, that is to say, if the contemplated legislation is for investigation, and nothing further. The Combines Investigation Act was, it is true, repealed by the Combines and Pair Prices Act, 1919. The Combines Investigation Act provided for the investigation of trusts or mergers upon information of six persons and certain responsibilities taken by them not of a financial character. That act was on the statute books for a good many years. It was an investigatory act, that is to say, it looked to investigation and investigation alone. There could be no prosecution under it but there was one investigation commenced, in the course of its long existence. That was against the United Shoe Machinery Company. That company was charged with being a trust combine within the meaning of that act. The necessary com-[Mr. Mackenzie King, j

plaint was laid, and the whole paraphernalia of the act was gone through. It lasted some years, went through some of the courts, cost many thousands of dollars, and as the end approached, it appeared that by the time the end was reached we would be exactly where we began, assuming we would succeed. In a word, after all the machinery of the act was exhausted, one had to start all over again and prosecute the alleged combine monopoly or trust, adduce again the evidence before the court, call upon the court for injunction restraining proceedings, and in the meantime of course the company under investigation would simply have to alter its procedure by such degree or by such angle as evidently would comply with the dictum that may have been secured from the judge in the process of the investigation, which done, it would be quite absolved from liability under the effective prosecution that would follow. In a word, the presence of the act, in so far as it was a necessary preliminary to prosecution, was really a buffer as between the consumer and producer on the one hand and the trust and merger on the other. It would have been better and more effective legislation to have had the criminal code in effect alone, and have machinery provided whereby the company, the trust or combine, could be prosecuted under the terms of the code. The Combines and Fair Prices Act was passed in 1919, and that, in conjunction with its accompanying legislation, the Board of Commerce Act, provided a body and endowed it with power to do what the Prime Minister fairly describes, namely, lay-not institute-proceedings itself when it had reason to believe that trusts were operating in restraint of trade, a, combine against the interests of the public. Whatever may be said of those two acts -I do not for one moment say they were not subject to criticism, and that weaknesses did not develop-it cannot be said that ample powers were not given to the Board of Commerce, the board that was entrusted with the enforcing of both statutes. The powers given were wide and sweeping-wider than had ever been given before in any country in the world; in fact they were undoubtedly in my judgment too wide, and as a consequence of that-perhaps there were other causes as well *-when the proceedings brought wrere called in question and challenged before the courts, the courts held that parliament in endeavouring to arm the board with power to control the depredations of trusts and combines had gone beyond its jurisdiction. Since that time, while the statutes have remained, they are not effective statutes because there has been no board operating. The

Combines

Prime Minister (Mr. Mackenzie King) states that a section in one of these acts, I think the Combines and Fair Prices Act, provides that the interposition of the Board of Commerce and its authority shojild be secured before there should be criminal prosecution under section 498 of the code and that, inasmuch as these two acts still exist, although not operative, criminal presecutions are now forbidden. If that be the case, it had not been drawn to my attention. Undoubtedly that should be removed and there should be a re-establishment of the full right of prosecution under the code.

Another section provided for the repeal of the Combines Investigation Act of earlier years. This, of course, was necessary as a new, much more cofnplete and drastic method was being adopted.

The experience of these years has led me to one main conclusion. Before I mention it, I will make some reference to what I understand by the Prime Minister's explanation. So far as I can gather from his explanation, what he purposes to do is substantially to reinstate the old Combines Investigation Act, not in its exact terms, because there are some alterations. There are to be registrars or commissioners appointed before whom complaints are to be laid and who are to have investigatory powers. Apparently, they are to exercise some of the functions which under the old act, were exercised by the courts of the land. I have not much hope of that being an improvement. What I apprehend is this, that this bill, when it comes, will not get any further than the old act, and that means that it will simply compel prosecution to travel in a circle and to traverse the circle twice instead of once.

In the United States, they have approached the subject in another way. The Federal Trade Commission has certain powers; but the government of the country, having established laws which define trusts, monopolies, combines and restraints of trade, having limited the activities in scope and character, of trusts, monopolies and combines, then take it upon themselves to execute these laws and to institute prosecutions for violations of their law, such prosecutions requiring the readjustment of the whole merging companies. They operated this legislation against the United Shoe Machinery Company; but they had much better success than we could ever have had under the old act. The government of the United States, carrying on its prosecution, obtained the judgment of the Supreme Court of the United States, declaring that this company's methods of operation, were illegal, assessing them with damages for the same,

and demanding that within a certain time the whole method be altered. It has been altered, very much, undoubtedly, to the loss of the company; but at all events effective curtailment has taken place, because the principle of government responsibility for prosecution is embodied in the United States legislation. The initiative is there; the powers are there, effective powers and not merely circuitous, ambitory and purposeless powers. I hope this bill will go further than we are led to expect from the title; in a word that there will be something executory, final and effective about it, and it will not be merely a repetition of the old act, the Combines Investigation Act.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I would ask my right hon. friend (Mr. Meighen) to judge the proposed legislation, not by the title, but by its provisions. As he well knows, a title is meaningless when it comes to courts of law and positive action, but the provisions of an enactment are everything. I think my right hon. friend will find, that all that was promised in the Speech from the Throne that:- A bill will be submitted to you- to safeguard the interests of consumers and producers from undue enhancement of prices or unfair restriction of trade by combines, monopolies, trusts, or mergers.

[DOT]-has been adequately met in the proposed legislation.

I may mention to my right hon. friend the reason which has prompted the government to lay particular emphasis oh the investigation aspect of the legislation. I pointed out, in speaking on the measure at the outset, that the difficulty of proceeding under the Criminal Code has been found to be due, not to the circumstances that combines are rare or that they do not occasion restraint of trade, but to the fact that their existence and particularly their method of operation, is sometimes very difficult to discover, and the only way in which it can be brought to light is by thorough and full powers of investigation. The section in the Criminal Code relating to conspiracies and combines in restraint of trade differs from most other sections of the code in this particular, that other offences under the code are, for the most part, obvious, whereas the existence and operation of combines is not. If murder, or theft, or perjury is committed, the fact is known at once, and the main difficulty of those whose duty it is to enforce the law is to apprehend the offender and bring him before the courts. But when the matter is one of the existence or operation of a combine, the difficulty is, not to apprehend the offender, once he is known, but to find out first of all to what extent he is operating

Combines

against the public interest; to make clear the nature and extent of the offence. That can be done only by giving very full powers of investigation, and for that reason the government has thought it well to lay particular emphasis on the investigation feature of the legislation.

As to the proposed legislation being something more than a mere act of investigation, I would like to quote just one clause which appears in the bill and which is in the nature of the creation of a new offence. I only hope that when we come to enacting this clause, my right hon. friend and those who sit around him will not raise the objection that it goes too far and that it is likely, perhaps, to effect more in the way of concrete, executive action than he and his friends would like. The clause reads:

Everyone is guilty of an indictable offence and liable to a penalty not exceeding $10,000 or to two years' imprisonment, or if a corporation to a penalty not exceeding $25,000, who is a party or privy to or knowingly assists in the formation or operation of a combine as defined in this act.

The definition of "combine" as given in the act reads:

The expression "combine" in this act shall be deemed to have reference to such combines immediately hereinafter defined as in the opinion of the registrar or any commissioner have operated or are likely to operate to the detriment of or against the interest of the public, whether consumers, producers or others; and limited as aforesaid, the expression as used in this act shall be deemed to include (1) mergers, trusts and monopolies socalled, and (2) the relation resulting from the purchase, lease, or other acquisition by any person of any control over or interest in the whole or part of the business of any other person, and (3) any actual or tacit contract, agreement, arrangement or combination which has or is designed to have the effect of (i) limiting facilities for transporting, producing, manufacturing, supplying, storing or dealing; or, (ii) preventing, limiting or lessening manufacture or production; or (iii) fixing a common sale or a resale price, or a common rental, or a common cost of storage or transportation; or (iv) enhancing the price, rental or cost of article, rental storage or transportation; or (v) preventing or lessening competition in, or substantially controlling within any particular area or district or generally, production, manufacture, purchase, barter, sale, storage, transportation, insurance or supply; or (vi) otherwise restraining or injuring trade or commerce.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

And now I

might say a word with reference to the reenactment of some sections of the Combines Act of 1910.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Before the Prime Minister goes further would he explain at this point wherein that is at all more stringent than the provisions of section 498 of the code as it now stands?

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

Section 498 of the code uses the words "unduly" and "unreasonably",-"unduly enhancing", and "unreasonably advancing" prices; and-

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Not always. The word "unduly" appears in subsection A in regard to certain matters, for example, unduly limiting the facilities for transportation. In subsection B, however, it is not used in connection with trade or commerce in relation to any article or commodity. In the general clause about injuring trade it is not used at all.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I have not the two provisions side by side, but if my right hon. friend will make a comparison of them when we are in committee on the bill he will find that of the two definitions this is very much broader and goes very much further than the Criminal Code as it stands to-day. As my right hon. friend has pointed out, the word "unduly" does appear in the code where it does not appear in this definition; and he will also find elsewhere in the code the word "unreasonably". But there are other particulars in which this definition is broader, and I will indicate them to the House when I have the two provisions side by side so as to be able to compare them. With respect to what my right hon. friend has said as to this legislation re-enacting some of the provisions of the Combines and Investigation Act of 1910, let me say to him and to the House at once that it does. But I would draw his attention to this fact, that the legislation of 1919 also reenacted certain of the provisions of the act of 1910. For example, the Combines and Fair Prices Act and the Board of Commerce Act between them re-enacted the provision giving the Governor in Council power to reduce duties, which appeared for the first time in the Combines Act of 1910, and also re-enacted the provision with respect to the revocation of patents, and as well, I think, with respect to providing information for criminal prosecutions.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

These are in the Combines and Fair Prices Act of 1919; they are the law to-day.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

They are in

the act of 1919, but they were all taken from the act of 1910.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

That is right.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

As I have said, the object of this legislation is to retain anything of value in the previous legislation. I am quite willing to go halves with my right hon. friend as to the previous legislation, both his and the legislation I had to do with, not meeting the case fully. I think it has all been by way of experiment with a very difficult subject; and I believe that the experience, both under the act of 1910 and

Supply-Public Works

under the legislation of 1919, will be helpful to this House in deciding upon the worth of the parts of the legislation which we have retained and of the new clauses which we have introduced. Our aim has been to take from all existing or past legislation what is likely to be effective and helpful and to add additional features where there has been something lacking in the law as it stands or previously stood; for our desire is to place on the statutes an act which will be of real service to consumers and producers alike in protecting them against the operations of combines which may be detrimental to the public interest.

Resolution reported, read the second time and concurred in. Mr. Mackenzie King thereupon moved for leave to introduce Bill No. 54 to provide for the investigation of combines, monopolies, trusts and mergers.

Motion agreed to and bill read the first time.

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PUBLIC WORKS-HARBOURS AND RIVERS


The House in Committee of Supply, Mr. Gordon in the chair. Public Works-Manitoba-harbours and rivers generally, $15,000.


CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Under this heading I want to ask the minister what he has done towards restoring to the city of Portage la Prairie the facilities for its sewerage outlet of which this government deprived it by the construction of a ditch in the Assiniboine river in 1908. I have been in communication with the minister on the matter, as also have the city and the hon. member for that constituency (Mr. Leader). The latest information I have is that no progress at all has been made and I see nothing in the estimates to indicate that there will be any progress. This estimate is the same as it was a year ago; but this sum stipulated here, if it were all applied to the one purpose, would not, ac-

4 p.m. cording to my information, be a beginning towards the repairing of the damages which the government caused that city. We are right now at the edge of spring; the minister knows the circumstances, I need not at this moment detail them, because he is fully aware of them. But already about eight months of delay have occurred and no matter what the government does now there are sure to be somewhat serious conditions. I am sorry indeed that no provision is made here, because this vote is not for Portage la Prairie work and in any event is quite insufficient for anything practical. The government cannot make speed enough to repair this damage, and apparently no effort is being made to do anything at all. I hope for a more favourable reply and a more definite statement than has yet been obtainable from the department.

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March 9, 1923