Natural Resources Committee on Nov. 25th, 2009

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you.

In subclause 16(1) you talk about loss of wages under a nuclear accident. Has there been any research done by the department at all? Do those typically come out to be lifelong compensation packages? Do they tend to be smaller than that?

I guess what I'm trying to understand is when including this type of clause, is there potential for people who are deemed worthy? I'm not sure if it's a court or a.... Ms. MacKenzie, you referred to it earlier, where there's something set up after a nuclear accident. What's it called?

[Brenda MacKenzie]

Mr. Chair, that's again in other parts of the bill that deal with setting up a tribunal—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Tribunal. Thank you.

[Brenda MacKenzie]

—in the event of a very large incident, and then that tribunal can establish priorities. But again, that's not under the heading “Compensable Damage”; that's elsewhere.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

No, of course. Thank you for that. I appreciate that.

So at the setting of this tribunal, I guess the question I have for the department is, have we looked at accidents of similar scope that are imagined in this bill and whether those compensations to employees who lost their wages tend to be towards the lifelong nature, or are they short term?

[Dave McCauley]

We did not look at the length of wage loss in terms of defining this head of damage; rather it was a question of this would be an appropriate head of damage to provide in the event of contamination.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I don't see it here in clause 16. We're talking about workers and loss of wages. What does the bill say about the honouring of any collective agreements that may exist with employees who lost?

The reason for my questioning—

[Dave McCauley]

It's later.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Later on we have collective agreement amendments?

[Dave McCauley]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Excellent.

Under non-collective agreements, if a business under subclause 16(1) or (2) decides not to reopen as a direct result of what happened in a nuclear accident, is that imagined in subclause 16(1) or (2)? And now I'm not talking about the business owners; I'm talking about the employees at this point.

[Dave McCauley]

Yes, that would be considered here.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Would an employee be open for compensation for earnings foregone because a business went out of business?

[Dave McCauley]

We had contemplated that when we developed this head of damage.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay.

The reason I'm establishing this around subclauses 16(1) and (2) is because the clauses that we come to next are in terms of trying to identify cost again, and this has been sort of the framing of our conversation here today.

What I'm worried about is that an employee gets stuck in the middle of something like this, where a business says it's going out of business and the reason it's doing it is because of the accident that happened nearby. It certainly wouldn't be on the onus of the business owner, I would imagine, to prove that in court. They would no longer have any need to. They're not paying the employees. But the employees who worked there, would they have to go to court to establish that the reason they're out of work is because of this accident, and then seek compensation through this act, and then perhaps through Parliament?

It seems very awkward. I'm trying to understand. Are those folks more or less hung out to dry?

[Dave McCauley]

A business that shut down as a result of perhaps contamination or the loss of use of property would be compensable under the legislation. They would have to prove to a court or a tribunal that that is why they closed their business.

Similarly, an employee of that business would have to provide proof that their wage loss was due to the fact that the business ended.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Just to finish this piece off, does this then open up the folks holding insurance here to compensating employees potentially for the rest of their lives until retirement? Could a court find this under subclauses 16(1) and (2)?

[Dave McCauley]

A court would have to make that decision. The court would have to evaluate how it was going to interpret the particular--

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

But if a judge decided that, 16(1) and (2) would leave the government...I shouldn't say the government.

[Dave McCauley]

The operator.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

The operator--and if it goes beyond $650 million, then it's the government; that's why I interchange them sometimes. But it would leave the operator, and potentially the government, open to compensating people's salaries, if a judge decides, for the rest of their working lives.

[Dave McCauley]

If a judge were to decide that, yes, that would be a compensable damage.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay, that's pretty big, potentially. I know we're only talking about scenarios, but the notion that the government would be on the hook for the salaries of a whole bunch of people until....

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie, I see you want to add to that. Go ahead.

[Brenda MacKenzie]

It's a good point, and a lot of this has to be up to the discretion of a judge, and it is in fact no different under tort law or any other compensation that might be awarded by a court. They have to exercise their judgment in deciding what is a reasonable limit for the amount they're going to compensate. We have essentially left that up to the judgment of the courts. They would make their decision based on their practice in tort law, although this is outside the tort law scheme.