How low can you go?

The CP briefly discusses the TILMA, presenting a slightly more balanced view than CanWest did in at least recognizing the opposition to the deal. But the major criticism of the deal within the article is one which fails to appreciate the effects of the TILMA, even if it's been effective with regard to past trade deals:

“The deal is being oversold. Potential benefits are just not that big,” said Barry O’Neill, Alberta and B.C. vice-president for the Canadian Union of Public Employees.

“Canadians should have the right to move with their work between provinces, but (these) measures will achieve this by adopting the lowest common denominator.”

Now, O'Neill is far from the first to use the "lowest common denominator" language. And in the context of other agreements, it may well have been an accurate description of a deal's effect.

But it's worth highlighting that in the case of the TILMA, such a phrase may severely underestimate the potential impact. It would take a stretch to read Article 5.3 of the agreement as granting a province any immunity from challenge even for a regulation which has been harmonized with other provinces, and Article 3 plainly contains no such limitations on a measure which can be argued to "restrict or impair...investment or labour mobility between the Parties".

Simply put, while a harmonized standard or "lowest common denominator" regulation might be given some additional weight by tribunals as evidence that a measure meets the stringent test for justification, the only way for a province to be sure to avoid facing repercussions under the TILMA is to move toward zero regulation. And that, not concern about "lowest common denominators" among provinces whose regulations may not differ all that much at the moment, should be the end result that most strongly shows the dangers of the TILMA.