Natural Resources Committee on Dec. 4th, 2007

[Brenda MacKenzie]

Legally, the two versions are identical, and they were compared. The effect of the English and French versions is the same. But it is correct. As you say, it simply says that

"s'il découle de telle ou de telle situation, le préjudice est indemnisable."

In English, the fact that it “may” be compensated legally amounts to the same thing. The two versions have been compared, and they are identical. The sense is that if a succession of facts is proven, if the chain of causality is established, then this injury is to be compensated.

[The Chair, Conservative, Leon Benoit]

Are you saying, Ms. MacKenzie, that taken with the rest of the language in the rest of the bill the “may be compensated” means they will be compensated?

[Brenda MacKenzie]

Correct. It means they will be compensated if these facts are proven.

[The Chair, Conservative, Leon Benoit]

I have a list on this: Mr. Boshcoff, Mr. Bevington, Mr. Trost, Mr. St. Amand, and Mr. Alghabra. And then we'll see if we have need as we go on.

Mr. Boshcoff.

[Ken Boshcoff, Liberal, Thunder Bay—Rainy River, ON]

I believe the question is actually kind of fundamental. As Mr. Anderson alluded to, the onus of proof with the word “shall” means essentially that people are paid, and then it's up to, essentially, the government to confirm what the degree of loss was, as opposed to the normal situation of onus of proof, which would show that not only do you have to determine if there was a compensable loss, but the degree of the damage as well. Would you say that first?

The word “shall” confirms that there's going to be, one would say, an automatic payout, as opposed to determining the onus of proof that there was a compensable loss.

[Brenda MacKenzie]

Linguistically, it doesn't come out exactly the same in French, but the reason “may” was chosen in English is because we say that no loss is compensable except in accordance with the act. So then we come along in clauses 13 to 20 and say these things “may” be compensable. It is “may” in the grammatical sense, “may” in the sense that they are allowed to be compensated, which, unless it was stated in clauses 13 to 20, they could not be.

[Ken Boshcoff, Liberal, Thunder Bay—Rainy River, ON]

Right, which is why I believe that is the correct word, because all those factors have to come into play. If you use the word “shall”, it means that it's an automatic payout--basically, that the cheques are being written.

I'm also going to question, en français, le mot « est », as opposed to “may”, which means indemnifiable, as opposed to “may be compensated”.

[Brenda MacKenzie]

Linguistically, the two versions come down to the same thing. It means that it is permitted for these types of damage to be compensated, and in both versions, obviously, the chain of causation would have to be proven. So linguistically it comes to the same thing.

[Ken Boshcoff, Liberal, Thunder Bay—Rainy River, ON]

Thank you very much.

[The Chair, Conservative, Leon Benoit]

Could I just try it this way?

Could you point to any other legislation where these terms are used like this? Is it a very common thing in other legislation, and if so, would you happen to know of any specific legislation where these two terms in English and French are used?

[Brenda MacKenzie]

Certainly, and I could provide the committee with that information.

[The Chair, Conservative, Leon Benoit]

Okay. That's helpful.

We still have a list.

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

I'd like to speak to the issue of “shall” and “may”, because “may” is another point of decision. Within the body of the statement we have psychological trauma, which has to be approved or confirmed. Then we have, “may be compensated if it results from”.

Already you have a number of very clear conditions for the approval of compensation, and “may” is an additional point of law once you go through the conditions that are already within this particular section in proving the damage done. Here you have to prove the damage done, and then you “may” be compensated. We think it should be prove the damage done and you “shall” be compensated.

[The Chair, Conservative, Leon Benoit]

Have you anything further to add, Ms. MacKenzie?

[Brenda MacKenzie]

I would just simply say that the words were carefully chosen by the drafters. The word “may” was chosen again in the sense that it “may” be compensated. Unless we had said so right here, there would be no possibility of compensation. It allows the compensation; it permits.

[The Chair, Conservative, Leon Benoit]

Mr. Trost.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

I'm trying to understand where Mr. Bevington is coming from. If he's making the change in English, my first question is what his change is going to be in French. If I understand Ms. MacKenzie correctly, it's identical now in English and French as far as the meaning “to convey” is concerned. If we're going to make a change in the meaning in English, we're going to have to make a change in the meaning in French.

So my first question to Mr. Bevington is, what change in meaning does he want to make in French? What's his rewording in French? If he's changing it in English, he has to change the meaning in French.

My second question is, has he consulted with a lawyer? Does he have a legal opinion to base what he's pushing for on? Without a legal opinion on this from some lawyer, this is just cosmetic, and I'm not sure quite what the point is at that point.

[The Chair, Conservative, Leon Benoit]

Okay. We've heard Mr. Trost.

Mr. St. Amand.

[Lloyd St. Amand, Liberal, Brant, ON]

Thank you, Mr. Chair.

I agree with Ms. MacKenzie that “may” is the correct word. The word “shall”, of course, would make the compensation mandatory; the word “may” makes it permissive.

Most statutes with which I'm familiar certainly utilize the word “may” much more frequently than the word “shall”. It simply opens significantly the door of compensation for those who have suffered psychological trauma.

If Mr. Bevington's concern is that “may” is going to somehow dilute considerably the prospect of compensation, in my view he need not worry about that.

[The Chair, Conservative, Leon Benoit]

Okay. Let's go to the question. We've heard the comments, and there's no one else on the list.

(Amendment negatived)

(Clauses 14 to 16 inclusive agreed to)

(On clause 17--Environmental damage)

[The Chair, Conservative, Leon Benoit]

Is there any discussion?

Yes, Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

I would like to delete “if the measures were ordered by an authority acting under federal or provincial legislation relating to environmental protection”. Just delete that part of the statement.

[The Chair, Conservative, Leon Benoit]

Mr. Bevington, you're saying to end clause 17 with “compensated”, on the fourth line?

[Dennis Bevington, NDP, Western Arctic, NT]

Yes, that's correct.

[The Chair, Conservative, Leon Benoit]

You've heard the proposed amendment to clause 17.

Is there any response from the officials?