Transport Committee on April 30th, 2009

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

Mr. Kowalski, I wanted to let you know that my brother operated Clearwater Trail/Wilderness Tours in northern Alberta for over 20 years. I don't know if you're aware of him. I understand the problem you're faced with, but we want to make sure that the vessels and operators are of such a nature that we can exclude them under the Marine Liability Act and at the same time help you to stay in business.

I want to look at section 139, the lien itself. In paragraph 139(2)(a), it says the lien would operate only “in respect of goods, materials or services wherever supplied to a foreign vessel for its operation or maintenance”. So it's operation and maintenance, not FOB shipping, that's going to be taking place. Further, it says, “out of a contract relating to the repair or equipping of a foreign vessel”. So free onboard shipments that would be sent to a shipper would not be included. Is there another example where it would possibly be used?

[Christopher Giaschi]

Loading goods on board the ship is part of the ship's operation, absolutely. The provision even goes on and specifically says, “without restricting the generality of the foregoing, stevedoring and lighterage”.

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

That was my next question.

[Christopher Giaschi]

Yes, that's what it is. It is stevedoring services that are being supplied to the ship—but under a contract with the shipper as opposed to the owner of the ship. It can be done either way. It usually depends on the nature of the sale agreement or the charter agreement.

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

I think you're suggesting that we clarify it. I'm not a maritime lawyer, but I did practice for a few years. Under my reading, I think I'm correct. However, you'd be much more astute in this area. What we need to do is clarify things to make sure there's no misunderstanding at the judicial level. That's what you're actually saying, is it not?

[Christopher Giaschi]

That was our concern. When you read section 139, taken by itself, it doesn't address this contractual requirement at all. It may be thought of as not being required anymore.

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

Could you draft a proposal to this committee in relation to that section, to clarify it?

[Christopher Giaschi]

That is what I did in the supplementary submissions on page 2.

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

I apologize. I read it, but I get a lot of material on this.

[Christopher Giaschi]

I'm sure.

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

I think those are all of my questions, unless I have more time.

[The Chair, Conservative, Merv Tweed]

You're just out.

Mr. Volpe.

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

Thank you, Mr. Kowalski and Mr. Giaschi.

On the issue of adventure tourism, we have now had at least two legal perspectives from those who are not members of the committee. Perhaps making some changes to what is already proposed is fair enough. But I'm wondering why you would still resist wording that provides additional coverage by virtue of minimum requirements and significant steps to be taken. Why would that bother you?

I'm at a loss to understand why someone like you, who has already proven to be a diligent operator, wouldn't want the same protection for others who are engaged in a similar business but who also take passive participants on whale-watching or other vessels that are not immediately involved in a risk-taking adventure.

[Joe Kowalski]

I can't speak about whale-watching. We don't operate those kinds of tours. I've never had the opportunity to go on one. To me, what defines adventure tourism is the amount of risk involved and the disposition of the participant to accept some of the risk.

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

I haven't been on one of these things. I'm a rather risk-averse individual. I usually lead with my chin, but I'm wondering, do you give people a brief introduction? I don't want to say “seminar”, because I don't want to be thought of as being sarcastic or facetious, but if I were to come to one of your operations, is the very first thing you'd do is provide me with an indication of the risk I'm about to engage in, the liabilities I'm assuming for myself and that I absolve you of? Do you do that?

[Joe Kowalski]

Yes. In fact, we don't even want anybody showing up at our doorstep without acknowledging that. Although we spare no effort to ensure a safe experience, we can assume no responsibility for your safety or loss of personal equipment. In the activity—

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

Is that simply posted somewhere?

[Joe Kowalski]

It's on every single piece of literature that we provide. It's in all our promotional literature, it's in our administrative literature, it's on our website. The last thing we want is somebody coming to Wilderness Tours and.... Well, part of the registration process is signing the waiver.

In the old days we would occasionally, not too often, have to refund two or three people a summer who came up and.... Although we advertised the waiver form, there wasn't an opportunity for them to see it. They would read it, and it does say “death”. It says horrible things on it because, although unlikely, sometimes those things can happen. But as a result of the availability of the Internet, we now post everything online. Everything that's in this document, and more, is online. Most people now, when they search out an adventure experience, go to the Internet. Every year we produce fewer and fewer of these brochures.

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

Okay, thank you.

Mr. Giaschi, while I appreciated your presentation and the responses you've given everybody, I was a little bit surprised at your reaction to my colleague Mr. Kania's suggested amendment, which I took to be offered as an indication of providing greater certainty and greater assurance for the user.

Your response, to me—I hope I'm reflecting it accurately—was an indication that you thought that all the measures were already in place and that, from a practical point of view, you or another reasonably competent lawyer would be able to provide service immediately by, I guess, bringing the ship to arrest, etc. But why should that happen? Why wouldn't you accept that the law, in becoming much more precise, would offer a guarantee that the user doesn't have to resort to a lawyer?

I heard you say something about a $300 price in order to get the thing going. Mr. Giaschi, I think lawyers probably charge less out in B.C. than they do in Toronto, but $300 gets me a phone call, to which somebody will respond five days later for about two minutes. I don't mean to be sarcastic, but you get my drift.

I hear Mr. Jean saying it takes $500 to get that call, but--

[Christopher Giaschi]

May I respond?

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

Sorry, let me finish that thought.

Let's suppose that I'm a small shipper and I have a couple of thousand, $5,000, worth of material on board this ship. Whether it will cost me $300 or a couple of thousand dollars to get that back, I'll be inclined to turn around and bless myself and say, “I don't know whether I need this headache”. But if the shipowner can be held liable by simply making his obligations clearer, would it be wrong for me, then, to seek that additional protection?

[Christopher Giaschi]

If I've understood correctly, what is effectively being asked is whether the legislation can be amended so as to allow the state to become involved in a civil dispute and to assist one of the parties to that civil dispute. I think that's basically what was being asked by way of including it in the enforcement provisions and detaining the ship.

I'm not aware of any legislation in which it ever happens that you include the enforcement authorities, whether they are the coast guard, the RCMP, or the local police. Usually if it's a civil dispute they back off and tell you to go deal with it. That's the first part. It's not the way it's done, and I'm not aware of it ever being done anywhere else.

The other part is simply based in part on my experience with bureaucracies, even efficient bureaucracies. It does sometimes take time to get things done. On the other hand, I know that I and my colleagues are very efficient on this kind of stuff. You might laugh at the $300 and think it's unrealistic, but if you're talking about a $5,000 supply of services, it is such a standard thing. It's basically just a matter of plugging a few numbers into a template that I already have. Maybe I was too quick to throw out $300, but it's not much more than that on a smaller case. It can be done quickly.

That's really why I was opposed to it. I'm trying to imagine how it could be better for them. If there were other ways for them to do it, I'd be happy for them, because frankly, my colleagues and I don't want to be involved in $5,000 cases or $10,000 cases.

That's where my thinking was.

[The Chair, Conservative, Merv Tweed]

Go ahead, Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Kowalski, we were talking earlier about whale-watching excursions. I know this is not your industry.

However, it is important to know there are now excursions in inflatable rafts like the ones you are using in rafting, because some people want to get closer to the whales while respecting environmental legislation. So it is normal that your industry is not limited to rafting. There are also other types of business in the adventure tourism industry that wish the legislation would be less demanding.

Could you comment on your situation at this time? If the legislation is not amended the way you wish, what kind of future is there for you?

[Joe Kowalski]

If I understand correctly, if we lose our waivers, it's basically an industry killer.

To give you an example, in our 35-year history we have probably paid out $3 million to $4 million of liability premiums. Our insurers over that time period have paid out $70,000 on our behalf. Even though we disagreed with those payments, they have the right to do so. Even then, even with that kind of ratio, liability insurance is extremely hard to place. In fact, there are only one or two insurers in Canada. It's just not worth it.

In our particular company, we have not had someone file a statement of claim against us for probably 15 years. I keep going back to our insurer and asking, how come we don't have a reduction, we have year after year of no claims? And the answer is, you could have one this year. Honestly, without the waiver form, the adventure industry is dead in Canada. It's just dead. You can't operate.

We're a small industry. Wilderness Tours is the largest adventure company in Canada. We're minuscule and we're the largest one. For the most part, these are all mom and pop operations. They're very small. Liability insurance is extremely difficult to place, extremely expensive, and it's the waiver that is our protection.

I have been probably to discoveries maybe three or four times in 35 years. In every one of those discoveries it is the waiver that has provided us and our insurer the protection, because you can't go skiing, you can't go rafting, you can't go kayaking...in all these things where you deal with nature there's an element of risk.

Even with whale-watching. I've never been on a vessel; I've seen it. To me, if I were operating whale-watching excursions, I most definitely would want to have a waiver of release signed because I would assume that we would want to get as close as possible to the whales without disturbing them. When they go up and down or whatever, you're going to experience more than you would on a normal.... On a normal passenger ferry going from point A to point B, to me there should be absolutely no risk, and that's not adventure tourism.

Anything where you want to get out there a little bit on the limb, and the clientele want that.... If our whitewater rafting was 100% safe, no one would take our trip. It's 99.9% safe, but it's the one-tenth of 1% that makes it a legitimate experience. I always tell people on our trips that I've been doing this for years and years, and what I love about it is that I don't know the outcome of the trip until it's over. For the clientele, it's the same thing. I think any time you introduce an element of risk in it, you need the waiver.

With our jet boating in Niagara Falls, we have coast guard, Transport Canada captains--everything on the thing--but we still require a waiver form, even though they sit, even though we never ever expect the raft to turn over or the jet boat to turn over. Because it's a whitewater trip, the jet boat is in rapids. We have the waiver primarily for backs and neck twists and things, because that's what people want to do. The biggest rapids on planet earth are below Niagara Falls, and people want to experience them.