Transport Committee on April 21st, 2009

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

But that would be more difficult because there's no legal context as, for example, there is legal context under a variety of other acts, as indicated by Mr. Roussel, in order to prevent pollution or at least to attempt to prevent pollution. So in this instance there is no legal context for any action to be brought against an operator of such a craft.

[Mark Gauthier]

Well, sir, I would posit that the basis would be negligence. It would have to be the negligence of the operator, that the operator carried out an unsafe operation and, as in any other case when you're trying to assert damages against someone other than where you have strict liability--which you do not have here--you would have to prove your damages. First you have to prove, in tort law, that the operator owed you a duty, that there was a breach of the duty and you suffered damages, as in any other court case. Then the operator would be able to set up his limitation of liability pursuant to part 3 of the act, in the manner in which Mr. Rysanek described.

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

I thought I heard you say as well that now we would accept waivers. So a craft operator who is operating a craft that may be unsafe and may be capable of violating the environment would operate to the ignorance of any of the individuals who buy the service. So the onus gets shifted onto the purchaser of the service rather than onto the operator of the craft providing the service.

I don't see how you could establish a case in tort law when you've accepted in law that you waive all rights and privileges associated with an action you've taken when you didn't know that you might have been going into an operator's unsafe craft.

[Mark Gauthier]

Well, there, Mr. Volpe, I would leave it to a court to decide, of course, in the circumstances. But there is no doubt that on the facts, it would be permissible to have waivers of liability of some form or description in this type of operation. It's an integral...at least, it has been explained by the industry as being an integral part of the whole sort of operation.

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

Has there been another legal opinion rather than simply the industry's perception of convention, as part of your consultation?

[Mark Gauthier]

What I recall--and this goes back to perhaps the year 2002 or thereabouts when there were consultations, on the west coast in particular--is that it was the view of the legal community there that these waivers, if they were properly executed, would indeed operate validly and be upheld by a court as proof that the individuals who signed them have voluntarily undertaken the risk associated with the adventure.

Now, I think it's case by case. It would be up to the courts to decide in any given case the manner in which the waivers were established and whether or not they would actually be effective in any given situation, but it is part of the package deal, if I can put it that way, in the legislation. There's no doubt about that.

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

Yes. I appreciate your patience with me, Mr. Gauthier.

I guess my question still remains. Someone buys a particular service; that's the package. So one could legitimately say you were getting into this with your eyes open, understanding you're going into an adventure environment that carries certain risks. That's different from somebody buying a service from an operator who is at the same time operating a craft that is in and of itself not safe, and the purchaser of the service, i.e., the adventurer, would probably go in there with the expectation that the craft getting him to that adventure has already met certain standards. However, I don't see any of those standards in the definition here and I don't see that kind of liability permitted.

[Mark Gauthier]

Now I understand the angle you're coming from, Mr. Volpe.

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

It's a concern for the safety of whoever is going into this activity.

[Mark Gauthier]

Right. The reason this is not in the Marine Liability Act is that those rules are set out pursuant to the Canada Shipping Act and the regulations that are made under it. I'll leave Mr. Roussel to explain that part of it.

[Donald Roussel]

Mr. Volpe, your assumption is that if this vessel is unsafe, it can still operate. It cannot operate if it is unsafe, and there's a large liability just by virtue of the fact that it would be operating unsafely.

If the operator wants to carry on his business in a reckless way, he will not be in business very long. Either our service will catch up with him because he's doing commercial operations or the court will catch up with him in one way, shape, or form.

[Guylaine Roy]

Let me clarify. The amendment made in 2001 covering the adventure tourism category in fact imposed compulsory insurance on passengers of $350,000 per person, in case of an incident. What has happened is that the industry cannot find insurance, so they have a hard time maintaining their business.

We could not, at that time, impose the compulsory insurance provisions that we would like to impose on big commercial activities, such as Marine Atlantic or BC Ferries. By clarifying the situation of adventure tourism, we are able to move to impose the compensatory regime for passengers on commercial entities. That's what we're trying to do, because since 2001 we've seen that the problem of adventure tourism is also creating a problem for our capacity to impose compulsory passenger liability on true passengers.

I just wanted to clarify that.

[The Chair, Conservative, Merv Tweed]

Is there anyone else? Mr. Bevington, are you content?

Okay. Then I will thank our guests for being here today. I've never seen so many brief comments turn into so many long comments, but it has been very informative and we appreciate it. It was very well presented. Thank you very much.

We'll move back to the last piece of business for the day. Maxime is going to pass out the motion that's before us.

While it's being passed out, let me advise committee members—it may or may not deal with this motion—that the minister, because of his absence today due to health reasons, has agreed to be here for the full two hours on Thursday.

Mr. Jean.

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

I received an e-mail not ten minutes ago advising me that the minister has been ordered bed rest by his doctor. He will not be able to be in attendance Thursday. He's to stay in bed until Friday. He's quite ill, as you probably noticed from question period yesterday, so he will not be able to be in attendance Thursday.

That's where we sit. He's advised that he is more than happy to prepare for an extra meeting next week that he can attend to speak to the main estimates as well as answer questions as necessary.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

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

The chair just indicated that he would be prepared to be here for a full two hours. Are you suggesting, Mr. Jean, that the minister has already indicated that when he comes next week it is for a two-hour meeting rather than two separate meetings?

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

What I am suggesting is that today we spoke about this particular issue and he said he would be able to be here Thursday for two hours, but I just received a PIN not ten minutes ago advising me that the doctor said he has to stay in bed until Friday for certain and will not be available Thursday, which was going to be a two-hour meeting in which he would be here an hour for main estimates and an hour for other questions.

If I may, since it was quite urgent that I deal with this, I just want to make sure I've got my facts right in relation to next week. This is what I received. Minister Baird is on doctor-ordered bed rest until Friday. He is quite ill. As a result we will be unable to testify at committee on Thursday on either Bill C-7 or main estimates. What we are proposing is that we cancel the next meeting or have a planning meeting, or whatever the committee wishes to do, and reschedule to next week, pushing everything back a week. We are willing to schedule an extra meeting next week, if necessary.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

The goal of my motion today is to invite the minister to speak about infrastructure. I hope that the parties can reach an agreement so that the last meeting of the committee will last for at least two hours, and that the minister of Transport will speak about planned expenditures, Bill C-7 and new infrastructure projects, which is of key concern to Canadians.

That is the basic consensus I'm trying to see, Mr. Chair. We can agree today—and I'd like to seek the will of the committee otherwise—to have our next meeting a two-hour meeting, a meaningful exchange with the minister. He has been busy preparing. We've heard a lot about the preparations for how to get the economic stimulus and other stimulus infrastructure funds out, and I think that is the intent of the motion. I appreciate and I think we all respect that the minister is not well, that there's no way to pin him to a specific date. I hear the willingness from the parliamentary secretary to have flexibility on the minister's part when he is well and able. I'm just wondering if we also have consensus around the idea that we are talking about infrastructure and those related matters from the main estimates as opposed to coming back to Bill C-7 in our next session. I think that behooves what the committee needs to get done, and that's the nature of the motion I'm putting forward, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

More for clarification of the committee members, do we want the minister back to this committee for Bill C-7 or are we satisfied with the officials' comments today? Are we comfortable with that?

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

Mr. Chairman, I guess from our side—

[The Chair, Conservative, Merv Tweed]

I have to go in order. I'll let you think about that while we go around.

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

I'm comfortable with Bill C-7. The only thing is this. I would think we might have a briefing from the department on the infrastructure program on Thursday, if it would be possible to actually bring some witnesses from the department forward and get a briefing from them. Then when the minister comes in front of us, we're not asking him details that can be handled by the bureaucrats.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

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

I think Mr. Laframboise—

[The Chair, Conservative, Merv Tweed]

I have you on the list. I'll go to Mr. Laframboise.