Transport Committee on May 7th, 2009

[The Chair, Conservative, Merv Tweed]

Thank you and good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 17.

The orders of the day are that pursuant to the order of reference of Monday, March 30, 2009, we are considering Bill C-7, an act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other acts.

Joining us today from the Department of Transport are Mr. Tim Meisner, Mr. Jerry Rysanek, and Mark Gauthier. We are back reviewing clause by clause.

Mr. Volpé, on a point of order.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Thank you, Mr. Chairman.

I realize this might be a little irregular just before we begin clause-by-clause, but I'd like to ask for the committee's unanimous consent to hear a motion by Mr. Dhaliwal. I know that Mr. Dhaliwal didn't have the time to present it according to their procedures, but I'm asking all members, government and opposition, for unanimous consent for Mr. Dhaliwal to present this motion.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Absolutely, Mr. Chair, from the government's perspective.

[The Chair, Conservative, Merv Tweed]

Thank you. Unanimous consent.

Mr. Volpé.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Thank you. Shall we do it right now?

[The Chair, Conservative, Merv Tweed]

Yes, let's deal with it.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Dhaliwal, you have to read it.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair and Mr. Volpé. Thank you, members of the committee, for tabling this unanimously.

The motion reads:

That the committee request for each sitting week starting May 12, 2009 the appearance of witnesses from Transport Canada and Infrastructure Canada to provide an update to the committee and Canadians on the government's implementation of Budget 2009, including the projects approved, the location of the projects by region or province, the amount of expenditures, the details regarding any other funding partners as well as the expected time of expenditure and completion.

Thank you, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Are there any comments?

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I have just a very quick one, Mr. Chair. This is the second, possibly the third motion.... We had one from Mr. Kennedy—I see he is not here today—and another one by Mr. Dhaliwal. I thought the committee as a whole set an agenda some three, four, or five meetings ago, and I don't understand why we keep getting these motions to derail the work of the committee. That's my concern, and that's my only comment.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I want to come back to the explanation I gave Mr. Kennedy, at our last meeting. I want this to be clear.

First of all, the forms for the Quebec programs became available only on May 1, through the Quebec Ministry of Municipal Affairs. So, they are brand new. It is not that I am trying to blame the Conservative government. However, it is Quebec that decides on its own priorities, not the federal government. The forms became available on May 1.

If we start our study on May 12, the programs will not yet be available in Quebec. I do not want the wrong message to get out. Since the Liberal Party has been tabling a motion at every meeting, it may as well continue to do so. At some point, when Quebec has received applications and has approved projects, we may be able to get a report from Quebec. If I vote in favour of this motion today, Quebec as a whole will not have any information, simply because the forms have only been available since May 1, for cities interested in applying.

This is money from 2007. I have been listening to Mr. Kennedy, in recent weeks and months, calculate how much money is still in Ottawa. A lot of that money belongs to Quebec. It was the Government of Quebec's decision not to take the money immediately. I am not blaming the Conservative government. We will see. Its turn will come, but we are not ready. So, the Liberals can just keep on tabling motions! Today, we will be voting against this motion. In three weeks or a month from now, we may be more favourable to it.

[The Chair, Conservative, Merv Tweed]

Thank you.

Are there any other comments?

Mr. Dhaliwal?

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

I have no comment, thank you.

[The Chair, Conservative, Merv Tweed]

I will call the question.

(Motion negatived)

[The Chair, Conservative, Merv Tweed]

We will now move to clause-by-clause consideration.

Shall Clause 10 carry?

(Clause 10 agreed to)

(On clause 11)

[The Chair, Conservative, Merv Tweed]

We now move to clause 11. We have a series of amendments here. We have three Liberal amendments. We'll deal with Liberal amendment 2.2 first.

Go ahead, Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you very much.

As you know, I am not on this committee, but this is the fourth meeting in a row that I've attended to discuss this issue. In reviewing this legislation when I was substituting, I noted what was, in my view, a very serious error, and it should be corrected. I'd like to take a little bit of time to explain it so that it's absolutely clear.

First, there's a difference between a right and remedy. Section 139 provides a right, the maritime lien, but it doesn't provide any remedy for how it's to be enforced. For example, if an innocent Canadian provides services and there is a lien that has arisen pursuant to section 139, the question then becomes, “So what?”.

I'd like you to think about this on a very practical basis. If a constituent of yours comes to your office and says, “Help; I'm owed money, and there is this ship, and it's leaving”, if it's about to leave in two hours or you can see it getting up steam, there's nothing you can do to help your constituent at all. You're going to say, “Well, you have to hire a lawyer and go to court and get an order”, and that takes time and money.

With this particular amendment, the same detention provisions would apply. You'd be able, in essence, to freeze the foreign ship from leaving so that the Canadian would actually have some opportunity to be paid.

I want to address specifically the comments of the representative of the Canadian Bar Association. His comment to me was that he would hate that, in terms of these amendments. Let me explain why.

The Canadian Bar Association--and I fully support it--has a job to do. Their job is to represent lawyers; that's their motto. I'm the former elected secretary of the Ontario Bar Association, and representing 17,000 lawyers was my job. I know all about it, but that's not why we're here now. We're here to represent Canadians and our constituents.

If these amendments pass, the result will be as follows: if somebody comes into your constituency office and says, “Help”, you can say, “Have that detention officer hold the ship. Then we'll deal with it”. If proof of a satisfactory lien is provided, then they're protected. If there isn't satisfactory proof, the ship is released anyway, but this stops the first stage of having to actually go to court.

The representative of the CBA said specifically that it would cost $300 and that it could be done within a number of hours. Well, if you find a really good lawyer, maybe it can be done the same day, but let me describe what's required when you go to court.

First of all, it's not $300. There is normally a $200-plus filing fee. If somebody who is owed $300 or $500 or $800 or $1,500 or $2,000 or whatever it may be comes into your constituency office and you've voted against these amendments, what you're going to have to say to the person is, “Spend $2,000 or $3,000 or whatever it may be on a lawyer so that you can be paid $500”, rather than simply saying, “The ship can't leave, and we will take care of you. This is who you call”.

The legal process for getting an order is as follows: you need to commence a statement of claim, meaning you sue. You go to a lawyer, prepare the document, and pay the filing fee, but it's not only that; you then have to prepare motion material, swear an affidavit or maybe a couple of affidavits, get a notice of motion, and get all the proof. Then you have to find a judge.

Maybe you can find one--maybe. Maybe a judge is not available because it's Friday at 4:00 p.m. and the judge isn't available until Monday, and the ship's gone. If you can find a judge, maybe you'll have to wait for five hours to be heard, and the lawyer is being paid at his or her hourly rate for the five hours while you're waiting.

It's not $300. To be paid your $300, $400, $500, $1,800, or whatever it may be, it's probably thousands of dollars.

What I'm trying to do is put some teeth into this legislation simply by referring back to the teeth that are already provided for other matters in terms of the designated officer just freezing things. Then you'll be able to hold the ship. You'll be able to seek the sale, if necessary, or they can pay the amount of the lien, or the judge can do whatever he or she wishes to do, because it has to go in front of a judge before the sale anyway.

We're not trying to take away anybody's rights; we're simply trying to protect the rights of Canadians so that the maritime lien is an effective new tool rather than simply a piece of paper that will cost thousands to enforce and that many people will not use.

Those are my submissions. I'm happy to answer questions.

[The Chair, Conservative, Merv Tweed]

Go ahead, Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

I appreciate the ability to ask questions, but with respect, I've worked in the builders' lien in Alberta and loggers' liens in Alberta. I'm familiar with the lien process as it sits. I'm familiar with the small claims system as well, and I know how much it costs to file a statement of claim, as do many other lawyers in this room as well.

The situation is this: the rules of court govern many of the actions that are taken, but the difficulty with your proposal is that first of all, when a person swears an affidavit, the person can do two years in jail for swearing a false affidavit. Often when people are in a dispute in relation to goods purchased, a dispute in relation to goods purchased would give them an additional option to file a lien and not be subject to a sworn affidavit that's filed in court, an affidavit that could actually cause them to do jail time. Actually, they would not even file a lien in court in this particular case, but it gives them a right to a lien on a ship, to hold and seize a ship that might be worth $20 million and have $10 million worth of cargo for $300 in gas. I just don't see that as being appropriate.

We heard from the law society, the Canadian Bar Association, that everything in place is working well. I know from a builders' lien perspective that it works well. It costs $200 to file a statement of claim in Alberta. I think it now costs $100 in Alberta to file a small claim. I think it was just changed, but I haven't practised law there for five or six years. I think it's pretty much the same thing in B.C. For $500 I'd file a $200 statement-of-claim lien. It would cost a client $500 to file a lien for a house that's worth $200,000 to $300,000. That's pretty easy to do.

In this particular case, doing it this way means the person has to be serious about it. They can't just do it as a result of a dispute for $300 or $500 in fuel and hold up a $20 million to $30 million ship. It doesn't make sense. It really doesn't.

For the most part, these carriers of foreign ships are going to come back to Canada again, even if they do escape, which seems fairly unlikely, because a ship's manifest has to predict when it's going to leave. The departure has to be well planned and a harbourmaster has to give authority, so everybody already knows when the ship's going to leave. If they provide goods, they're well aware of it, and quite frankly, I believe lawyers can be called on a phone--I know I was available most nights until midnight--and can do a lien and find a judge in time to do it even after hours.

If somebody who provides this kind of service to ships is so neglectful as to not plan out that proper process, quite frankly, for a $300 fuel charge, I think they should take the negative results of it.

The process is good. It works. Why change it? Why create an additional right for somebody to actually file a claim and seize a ship on the basis of no real evidence? In fact, it could be as a result of a dispute, and not a real claim. That's the problem.

[The Chair, Conservative, Merv Tweed]

Monsieur Laframboise is next.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

My question is addressed to Mr. Gauthier.

According to my colleague, the Liberal amendment will clarify things. However, as Mr. Jean has said, it seems to me that there is an attempt to do something different here.

Is this an amendment aimed at clarifying the language, or is this a new point of law that is being added?

[Mark Gauthier, General Counsel, Legal Services, Department of Transport]

Thank you for your question. I tend to agree with you. Something is being added. There is no doubt that this would add an element to the way in which a maritime lean is enforced, at least in my view.

I do have a somewhat different view from Mr. Kania, of course. I do not really see this as a clarification; it is more of an addition, in my opinion. This is something that would be added to the legislation — something that is not there now.

[The Chair, Conservative, Merv Tweed]

Mr. Kania, do you have a comment?

[Andrew Kania, Liberal, Brampton West, ON]

I understand Mr. Jean's comments, but I think that's taking it from the lawyer's perspective, and although we're lawyers, we're not here to be lawyers. We're here to represent constituents and to deal with what's best for Canadians who might need that $500 in gas. Rather than being concerned about the foreign ship, I'm more concerned to make sure that this new right can actually be used to help Canadians. I don't think it's satisfactory to simply say it's a small amount of money and it's a foreign ship, so let them go. What if they don't come back, and what if you cannot find a lawyer?

In theory you're going to require people to spend a few thousand dollars. How do you address the point that if you find a lawyer and you have to wait for five hours in court, the lawyer is not going to sit there for five hours and not be paid by an hourly rate? I've practised litigation for almost 20 years, and there's no way that happens.

On a very practical basis, you're either going to make this a really nonsensical right, because it's not going to work in most cases, or you're going to require people to spend lots of money on lawyers.

Also, it wasn't the law society that said that; it was the Canadian Bar Association, which represents lawyers and advocates for lawyers. As a lawyer, I understand why they would say it, but as a member of Parliament representing Canadians and constituents, I do not understand it.