Evidence of meeting #17 for Transport, Infrastructure and Communities in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ship.
A recording is available from Parliament.
3:45 p.m.
Conservative
Lois Brown Conservative Newmarket—Aurora, ON
There are many people who are suppliers to ships. Are we creating a special status for these people? Are we giving them special statutory rights and creating something that is not really necessary in law?
May 7th, 2009 / 3:45 p.m.
Jerry Rysanek Executive Director, International Marine Policy and Liability, Department of Transport
Thank you, Mr. Chairman.
I'm not a lawyer, so I'll address the issue from a policy point of view.
Indeed, what we just heard is a perfect lead-in, because in fact this would create a special right for a special group of claimants. In this case, they are ship suppliers. Mr. Chairman, from the policy point of view, while I understand the objective of protecting ship suppliers, the premise beyond section 129 is in section 128. It's a very simple premise: the enforcement can only apply to something that the shipowner has not complied with.
Nonpayment of invoices is not a non-compliance under this act. I think that on that basis, it would be very difficult to create that right. Indeed, there are many claimants, and perhaps many more deserving claimants, if I can put it that way. For example, there are personal injury claimants, and the wages and salaries of crews and masters might also not be paid by shipowners. They are not infringements under this act. It is not a non-compliance under this act not to pay wages.
From a policy point of view, Mr. Chairman, I think this could only work if nonpayment of an invoice would be an offence, and it is not an offence under this act.
3:50 p.m.
Conservative
The Chair Conservative Merv Tweed
Seeing no more comment, shall Liberal amendment 2.2 carry?
(Amendment negatived)
3:50 p.m.
Conservative
3:50 p.m.
Liberal
Andrew Kania Liberal Brampton West, ON
Amendments 2.3 and 2.4 are contingent on the first one. If the first one's defeated, then those two make no sense. They're all part of one package.
3:50 p.m.
Conservative
The Chair Conservative Merv Tweed
Shall we call the question on them, or just acknowledge them as withdrawn?
Just for the record, Liberal amendments 2.3 and 2.4 have been withdrawn.
3:50 p.m.
Liberal
Andrew Kania Liberal Brampton West, ON
They were withdrawn only because the first one was defeated.
(Clause 11 agreed to)
(On clause 12)
3:50 p.m.
Conservative
The Chair Conservative Merv Tweed
For clause 12, we have a Liberal amendment here. It is Liberal amendment 3. I just want to note for the committee's interest that a vote in support of amendment L-3 would apply to amendments L-4 and L-5. An affirmative vote would basically eliminate the need for a vote on government amendments 4 and 5.
Would you speak to Liberal amendment 3, Mr. Volpe?
3:50 p.m.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
Thank you, Mr. Chair.
This particular amendment tries to tie in a person who has a contractual relationship with the shipowner or the contractor, one or the other. We saw when the Canadian Bar Association and the marine liabilities organization came forward that this could be an improvement, in that if you have a claim, you can improve on it provided you can demonstrate that you have a contractual relationship with one or the other.
If one accepts that premise, then this particular amendment does accomplish the tying of that relationship.
3:50 p.m.
Conservative
3:50 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I'm just wondering if we, with Mr. Volpe's consent, can compare amendment G-4, since the government put forward G-4 as a proposal based on what the Canadian Bar Association and the Canadian Maritime Law Association said as well. I was wondering if the Department of Justice could give us an analysis, because they are all directly tied together. I think they're all there to do the same job, which is to improve the same clauses. That's clause 12, in essence.
I'm wondering if Mr. Volpe would be prepared to do that, just as a matter of course, to make sure we get the best possible amendment. We all put forward the same idea of making amendments to that particular clause based upon the evidence we've heard.
3:50 p.m.
Liberal
3:50 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Mr. Gauthier, since you are the Department of Justice official here, would you mind doing an analysis of those clauses in relation to clause 12 and what we heard as evidence from the Canadian Maritime Law Association and the Canadian Bar Association?
3:50 p.m.
Conservative
The Chair Conservative Merv Tweed
Before you start, Mr. Gauthier, we're basically looking for a comparison of the two clauses and where one has strength or weakness.
3:50 p.m.
General Counsel, Legal Services, Department of Transport
Yes, indeed. Thank you, Chair. I will certainly confine my comments to that. I may drift into some policy reasons on why one is one way and one is the other, of necessity, just to backfill.
But in my understanding, as I look at both L-3 and G-4, starting with L-3, it of course picks up on that point made by some of the witnesses that there ought to be a contractual nexus, if I can put it that way, right across the board, universally, with these claims by suppliers and either the owner or the owner's representative. That is picked up in the first words that appear in L-3, as proposed by Mr. Volpe.
That is absent, sir, in G-4. G-4 takes a different focus. It, too, recognizes that in the interests of transparency and to have perhaps a tighter lien, if I could put it that way, from a legal point of view, it picks up on the points that were also made by the witnesses, the industry witnesses, which was that the problem appeared to be with the provisions of two kinds of services: stevedoring and lighterage.
It was explained to the committee that stevedoring is basically--I think it's well known--moving cargo on and off a ship. Lightering is the same thing, but it's from a ship that's tied at a buoy, for example. You “lighter” it, or take cargo off and bring it to shore or move it to another vessel on a transshipment. But it's the same breed of service, if I could put it that way.
G-4 concentrates on that, so instead of putting the general exception of the contractual nexus into proposed subsection 139(2) as written, it chooses to put it in proposed subsection 139(2.1). That's difference number one.
There is another difference, which perhaps Mr. Volpe would assist us with in telling us about the choice of words that he has indicated in L-3 in proposed paragraph 139(2)(a) where it says “relating to goods” etc. Now, there is no amendment to that, of course, in G-4, as there was none intended, but if you look at the original text, that is to say, proposed paragraph 139(2)(a) as we now have it in Bill C-7, the language is “in respect of goods”.
First of all, I think there's a difference between something that relates to something, and something that's “in respect of”. That's my view. But in any event, I need to point out to the committee that proposed paragraphs 139(2)(a) and (b) very carefully pick up the language from paragraphs 22(2)(m) and (n) of the Federal Court Act, where what we call the necessaries, the mens provisions, are found, that is to say, the suppliers of goods, repairs, and vessels.
3:55 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Excuse me, Mr. Gauthier. What particular clause of the Federal Court Act were you referring to?
3:55 p.m.
General Counsel, Legal Services, Department of Transport
Paragraphs 22(2)(m) and (n).
3:55 p.m.
General Counsel, Legal Services, Department of Transport
That's deliberate, because of course we're trying to talk about the same thing. So in order to avoid possible discrepancies and then not being able to rely on the existing jurisprudence under the Federal Court Act, we think, certainly from a Justice point of view, it would be a better thing to stay with the language we have in the Federal Court Act.
Also, I draw your attention to proposed subsection 139(4), which actually refers to a provision of the Federal Court Act. I know you don't have it in front of you, but if you did, you would find that it refers to paragraphs 22(2)(m) and (n). So one would need to have the same language at least; I think it would be a salutary thing to have the same language.
3:55 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I actually do have the Federal Court Act with me. I brought it if Mr. Volpe...I don't know if Monsieur Laframboise would like a copy of it as well, but Mr. Volpe does have that particular section in front of him.
3:55 p.m.
General Counsel, Legal Services, Department of Transport
Thank you, Mr. Jean.
Where there is commonality between the two motions, of course, is that it fixes a drafting point. You will recall that at least one of the witnesses had indicated that they thought it would be better drafting if, in proposed paragraph 139(2)(a), one referred to goods supplied to “the” foreign vessel, as opposed to “a” foreign vessel. So there's commonality there between the two, L-3 and G-4.
G-4 has one more saving provision, and it refers to a carve-out for section 251 of the Canada Shipping Act. That was latterly discovered. In the Canada Shipping Act there is already a provision dealing with the ability of a supplier of goods to a bare-boat charter--only to a bare-boat charter--and that there has to be a contractual nexus between the two. We think that it's necessary, in any form of proposed subsection 139(2.1).... I'll grant you L-3 doesn't deal with proposed subsection 139(2.1); we find that later in L-6. But while we're at it we can talk about it.
There is that difference there. In order to ensure that the rights of the bare-boat charter are preserved--and these are already in the Canada Shipping Act, and there's no intention of doing away with it-- it's a matter of policy that the carve-out is made subject to. Otherwise there could be an interpretation that this particular right for bare-boat charters has somehow been impliedly repealed by this provision. It could give rise to that argument. So it's a pure legal point to try to tidy this up so as not to conflict with an existing provision of the Canada Shipping Act.
I think those are my comments. I hope I haven't strayed beyond the comparison between L-3 and G-4.
Thank you.
4 p.m.
Conservative