Transport Committee on April 30th, 2009

[Dennis Bevington, NDP, Western Arctic, NT]

Thanks, Mr. Chair.

Thanks to the witnesses for being here today.

Mr. Giaschi, I hear what you're saying about this adventure tourism section. What you've described are very large vessels carrying multiple passengers. Would this bill be improved by limiting the passengers per vessel, which would be covered under adventure tourism? I can't see, once you have over a certain number of passengers, that you can even justify it to call it adventure tourism, because it's at a point where the numbers would suggest it cannot be adventure tourism. Therefore, if you're over 20 people--and I don't know what the largest rafts cover, and I've travelled on adventure tours, on rafts many times, and they're generally of a certain size. I don't think we're promoting rafts with 20 people on them, but perhaps we are.

Perhaps the liability should be at the number of passengers on board...or the provisions within the act. I'll just throw that to you.

[Christopher Giaschi]

I don't know that the number of people is the answer. I didn't mean by my examples to suggest that it was mostly large vessels I was talking about, because it's not just large vessels I'm talking about; it's vessels of all sizes. Frankly, I don't think it should matter whether you're on board a vessel that has 50 people or 20 people, or you're taking 7 people out. If you're operating a commercial operation where you're taking people out on the water, basically, as passengers, even though there may be some aspect to it that is a little different from your standard carriage of passengers regime, then you should be covered by the Athens Convention. You shouldn't be allowed to get out of the Athens Convention simply by complying with those little requirements that are--

[Dennis Bevington, NDP, Western Arctic, NT]

I guess my trouble with “significant risk” is, how would you ever determine that?

[Christopher Giaschi]

Well, those are the kinds of problems courts deal with. They will certainly have an easier time dealing with it than if it's not qualified at all. That's the problem.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Kowalski, we're talking about competency of masters and crews for many of your endeavours. Are you familiar with the small vessel operator proficiency certificates? Do you use those in your business? Do you get that training?

[Joe Kowalski]

Not in our whitewater rafting business. In our jet boating business, the jet boats are very heavy, they hold 50 passengers, and those vessels require Transport Canada captains. With our rafting, the fellow in the back is what we call a river guide. Basically, what we do in our industry is we belong to the Canada River Council, and it's somewhat of a self-policing organization. It has its own rules and regulations, and we follow that for our river guides.

[Dennis Bevington, NDP, Western Arctic, NT]

It's my understanding, through talking with the fishing outfitters in the Northwest Territories, that the small vessel operator proficiency certificates, which are for small commercial vessels up to five tonnes, gross, are going to now be required to get these proficiency certificates. It's about 32 hours of training. So you have somebody who's running a Lund to transport people for fishing purposes, and my understanding is that they're being asked now, under regulation, to get proficiency certificates for all their staff.

Do you think that kind of procedure by the government is acceptable to the industry?

[Joe Kowalski]

Are you asking me? Not being a fisherman--

[Dennis Bevington, NDP, Western Arctic, NT]

Well, for small vessels, small boats....

[Joe Kowalski]

The critical point for us is the waiver of release.

For example, if I took a ferry ride in Vancouver over to Victoria, I would assume that there would be no risk, that I would just be a passenger, and that it would be 100% safe. If I were on a whitewater rafting trip that's going to be jostled.... The gentleman to my left gave the example of the Maid of the Mist in Niagara Falls, which I've been on many times, because we have a business down there. People are running back and forth across the deck, because they all want to get a better view of the falls when the boat moves around. There are no waivers required on that particular vessel that I can recall. But if I were the operator...yes, those people are subjecting themselves to a little bit more risk than a person on a passenger ferry because of that activity. I would think the same thing would apply to an active fisherman on a small vessel.

[Dennis Bevington, NDP, Western Arctic, NT]

Basically, you're not under any competency requirements from Transport Canada for the people who are conducting your tours.

[Joe Kowalski]

No. Transport Canada came out with regulations last year or the year before. They're minimal regulations, and our guide training in our industry far exceeds the Transport Canada requirements.

[The Chair, Conservative, Merv Tweed]

We'll go to Mr. Jean.

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

Thank you, Mr. Chair.

Thank you for your presentations today and for your attendance. I have to say, as a member of the CBA for about 10 years, I have really appreciated your input today.

I was one of those ambulance chasers. I did a lot of personal injury law, but I also did forestry liens, builders' liens, and personal property liens. I have to say that I think this particular improvement is an excellent improvement in the act, especially for the marine community in Canada that provides goods and services.

I will deal more specifically with proposed section 139.

I would also say that a lien, in essence, gives a bigger hammer for those judgments received in Canada. I think the judgments, first of all, quite practically, because the goods and services are given in Canada, have to be received in Canada. Then they can be enforced somewhere else in another country. A lien will give a judicial body in another country a better probability of success and also better court costs. That's really what it's all about. It's not about getting a judgment in another country.

I would like to talk about the adventure tourism part, because I am concerned about that. I come from a background of jet boaters. I have two jet boats, a Marathon 27-footer and a Harbercraft 1975 19-footer. I whitewater jet boat as well, so I understand your dilemma. You want to be able to keep your businesses open and at the same time make sure that you're not responsible for having a bad operation.

Mr. Giaschi, the law in Canada, as I understand it, already defines gross negligence as a term beyond negligence. Would it not be better to include in proposed section 37.1 a clause that actually says the operator and the owner are not exempted from any gross negligence? Would that not satisfy your suggestion of significantly greater risk?

[Christopher Giaschi]

That's another way of minimizing the impact of it. The concept of gross negligence is one that's more prevalent, I think, under civil law than under common law.

We would certainly prefer to see something like what we've suggested: a minimum requirement in terms of due diligence to make the vessel seaworthy and, similarly, due diligence to ensure that you have properly qualified crew. That is a phrase you find in various pieces of marine legislation. It's been judicially considered; we all know what it means and what's required.

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

Are you suggesting the words “due diligence” in the clause? As a civil law lawyer, I saw “gross negligence” being used constantly, and I would suggest that if there were an incident, it would be through civil law that they would be seeking a remedy.

[Christopher Giaschi]

Well, no.

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

That's why I'm asking.

[Christopher Giaschi]

Gross negligence isn't really dealt with very often under maritime law at all. It's reasonably well known what these other concepts we've put in there are and what they will mean. They will put some onus on the ship owner to ensure basic levels of safety, but on the other hand, they preserve the ability to avoid liability for those risks that truly are exceptional and are being assumed.

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

I have read your letter. Did you propose an amendment for section 37.1?

[Christopher Giaschi]

Yes.

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

Would it be possible...?

[Christopher Giaschi]

We're talking about adventure tourism. I suggested that adventure tourism operators should also be required to exercise due diligence to ensure the seaworthiness of their vessels at the beginning of the voyage and the competency of their masters and crews. But we didn't actually draft the provision.

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

Would your organization be prepared to draft something along those lines?

[Christopher Giaschi]

Absolutely. We do it all the time.