Evidence of meeting #54 for Transport, Infrastructure and Communities in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
5:10 p.m.
Liberal
5:10 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
It relates to the wording in proposed subsection 152.7(1) on the limit of liability of railway companies. It's described in the statute: “A railway company that operates a railway that is involved in a railway accident is liable for the losses, damages, costs and expenses...”.
It states “that is involved in a railway accident”. My understanding under most time-tested regulatory schemes is that this is not normal language. In most of those I've seen that cover the transportation of dangerous goods such as crude oil, the language is very much that it is the party that is in “the charge, the management or control” at the time of the accident or release, not the railway involved in a railway accident. What's the rationale for this language?
5:10 p.m.
General Counsel and Associate Head, Department of Transport
The language you allude to is language that is in the Transportation of Dangerous Goods Act. That's the construct of that legislation. We're working with different legislation.
Under this legislation, notions are defined differently. If we go to the section in the act that defines what “operation” means, for example, the notion of operation in the act means an operational physical sense. The way this section is construed, it's construed in line with the language that is currently used in the statute as a whole. What this section says is basically that while a railway company is physically operating its railway, if its physical operation gets involved in an accident, then they're liable.
It's not unusual. We're working with the language of that statute, and the language in this section is completely consistent with the language of the statute.
5:10 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
The railway insurers came here. They testified that the vagueness of the language in C-52 was problematic for them. What I'm saying is that this is different language from what I've seen elsewhere. It's very broad. I'm wondering, too, about the risk here of insurance withdrawal, as well as any kind of protracted and unnecessary litigation. From 2006 to last year, this federal government has outsourced $460 million on outside legal fees on top of having 2,550 full-time lawyers at Justice Canada. Are you not worried at all about this or given any thought to the possibility that this is going to create a significant amount of litigation?
If there is a sizable spill and sizable funds are spent to clean it up and there is sizable litigation on who was responsible for it, won't there a problem with the clarity of the language between “that is involved in a railway accident” and the party who is in “charge, the management or control” at the time of the accident or release?
5:10 p.m.
General Counsel and Associate Head, Department of Transport
Using the words “charge, the management or control” would not convey the policy intent in the first place, because the policy intent was to cover more than that. The policy intent was to cover every railway company that is physically involved in the operation and physically involved in an accident. The language in my opinion clearly conveys the intention.
5:10 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
Okay.
Finally, was there any kind of legal opinion prepared in terms of the potential litigation that might flow from this?
5:10 p.m.
General Counsel and Associate Head, Department of Transport
An official opinion? I don't think an official opinion was provided.
5:15 p.m.
General Counsel and Associate Head, Department of Transport
We provide tons of legal opinion in the process of drafting legislation. When in the drafting room, that's all we do. We provide legal opinion to the client who is beside us. In terms of a formal legal opinion, I would probably say no, but in terms of legal opinion in the context of this bill, a lot.
5:15 p.m.
General Counsel and Associate Head, Department of Transport
On that point, yes.
5:15 p.m.
Liberal
5:15 p.m.
General Counsel and Associate Head, Department of Transport
On this issue of what these words imply?
5:15 p.m.
General Counsel and Associate Head, Department of Transport
Personally, I'm not going to be able to table it. It's protected based on solicitor-client privilege. It's for the department to.... I give opinions to the Department of Transport and then they.... Normally I can say the Department of Justice and the Department of Transport are not in the habit of providing legal opinion in public.
5:15 p.m.
NDP
Hoang Mai NDP Brossard—La Prairie, QC
I'd like to come back to the non-use issue. If I understand correctly, when we talk about non-use and the environment, it's the fact that we might lose its use for future generations and things like that. You're saying that individuals might not be able to sue, but only governments. In the proposed changes, it clearly says that the non-use “shall rank without preference before those recover loss of non-use value”. It will come after damages. Why do we have that?
