Evidence of meeting #15 for Transport, Infrastructure and Communities in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ship.
A recording is available from Parliament.
Liberal
Vice-President, West Coast, Canadian Maritime Law Association
Absolutely.
Liberal
Andrew Kania Liberal Brampton West, ON
Let's discuss that. I am a lawyer, but I'm not an expert on the Federal Court rules. I have a proposal, which I've made, in terms of amending sections 139, 128, and 129, so you'd put more, call it substance, into the enforcement provisions. I'm going to take you through that so I can have your comments.
Specifically with respect to sections 128 and 129, if you look at the proposed legislation, it talks about a designated officer doing various things, including, essentially, making an order that the ship can't leave. So my suggestion, which I'd like you to comment on, is that we include section 139 and the maritime lien under these provisions so that a designated officer could restrict a ship from leaving.
The exact wording I have is about...but that's not the point, it's the theory behind it. We restrict the ship from leaving and then the designated officer makes known to the owners of the vessel, just as it is here in section 129, what's required in order to be released. And we can build in some provisions in terms of having to bring this before a judge for protections within a certain period of time. But in essence what we're doing here, before it's too late, is we're stopping the vessel from leaving, to be fair to the suppliers in Canada. Otherwise, you're having to sue; you have to go to court and you have to get a judgment, if you can find a judge. It could be a Friday, they may be leaving, there are no judges available, it costs money. This is faster, and I would suggest it could resolve most of the cases. But please comment.
Vice-President, West Coast, Canadian Maritime Law Association
I would absolutely hate that.
Vice-President, West Coast, Canadian Maritime Law Association
If I get a call at 12:20 from a ship supplier who has a new lien, I can have that ship under arrest by four o'clock. It is not going anywhere. Then I've got absolute security for my client's claim, and nine times out of ten, I'll be paid by 10 the next morning.
Liberal
Vice-President, West Coast, Canadian Maritime Law Association
Now I can have it arrested, but I don't have a lien, which is a problem. But now I can get it arrested.
Vice-President, West Coast, Canadian Maritime Law Association
How do I get it arrested? I file a statement of claim in the Federal Court, together with an affidavit to lead warrant, and it's very easy.
Liberal
Vice-President, West Coast, Canadian Maritime Law Association
A small claim will cost you $300.
Liberal
Vice-President, West Coast, Canadian Maritime Law Association
They do, but it'll be much faster than trying to get, with all due respect, government enforcement people. They're not going to get it done by four o'clock. And if it's after four o'clock, you're not even going to find anybody to do it.
Conservative
The Chair Conservative Merv Tweed
Mr. Kania, you've run out of time.
I welcome Mr. Kowalski. I'm going to allow you to make your presentation, and then we can continue with the line of questioning. It'll perhaps open more of the dialogue.
Mr. Kowalski.
Joe Kowalski Wilderness Tours
Thank you, Mr. Chair.
I'm the founder and president of Wilderness Tours, Canada's largest whitewater rafting company, based near Beachburg, Ontario, a 90-minute drive west of Ottawa. From starting with just a handful of enthusiasts in 1975, Wilderness Tours now guides 30,000 adventurers down the rapids of the Ottawa River every summer. In case you're not familiar with us, I will leave a couple of brochures here that hopefully will give you an idea of what whitewater rafting is, and maybe you'll want to take the trip with us this summer.
One thing that I should also point out in my introduction about myself, and that I didn't in this brief, is that in addition to being in the rafting business, I'm also in the jet boating business in Montreal and Niagara-on-the-Lake, so I'm very, very familiar with risk management as it pertains to whitewater rafting, jet boating, and activities that are sort of out of the norm.
I have been a pioneer in the whitewater rafting and kayaking industry in Canada since its beginning 35 years ago. I am a founding member of the Canada River Council, which is dedicated to safe, professional river running in Canada. I am also a founding member of the U.S. equivalent, America Outdoors, and hold the position of vice-president. I have personally guided Prime Ministers Trudeau and Chrétien down the Ottawa River.
I have been a strong advocate of excluding the whitewater rafting industry from the Marine Liability Act. The reason is simple: there is an element of risk in these activities our industry provides that cannot be eliminated. It is essential that we communicate this risk to our prospective clientele through a release waiver form.
The waiver is the cornerstone of our industry. It says in plain language that there is an inherent risk in the activities we provide and that those risks can be significant--even death. A signed waiver form is required of all participants. Our industry informs its potential clientele of the risks and the waiver form requirement in all our promotional literature.
I have here one of our primary promotional pieces. At the back, we always have a safety and liability clause, which reads:
While no experience is necessary, we insist you must be in good health and possess average swimming ability. Minimum age is 13 years and minimum weight is 41 kg...for High Adventure rafting. Minimum age is 7 years and minimum weight is 23 kg...for Gentle Family rafting. 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 activities we provide, an element of risk is inherent and beyond human control. A signed liability release is required of all participants and a parent/guardian release for minors (under 18). A copy of our release may be obtained in advance or downloaded from our website. We prefer [that] you complete the liability release form on line prior to arrival.
So our industry does inform its potential clientele of the risks and hazards and we do that through a waiver form. It's in all of our promotional literature. We also make our waiver available on our website for everybody to see prior to making a decision to go rafting. It is Wilderness Tours' policy to provide a full refund to anyone who has paid for the rafting trip and decides at the last minute that he or she cannot sign the waiver form. The waiver form is also a requirement of the insurance companies that provide liability insurance to our industry. In fact, it is our insurer who writes the language for the waiver form.
One should not conclude from this brief that our industry and the activities we provide are dangerous. They are not. There is a risk, but the risk is very manageable. To use Wilderness Tours as an example, we have guided over a million rafters down the Ottawa River since our founding in 1975. We have never had a fatality due to drowning or associated with rafting. Our most serious injury tends to be a broken leg, which might happen every summer or every other summer.
In the winter we operate Mount Pakenham Ski Resort, just west Ottawa. In the ski industry, a broken leg is rather commonplace and not regarded as a serious incident.
In conclusion, our industry provides the adventuring public with the safest and most professional experience possible. There is risk associated with our activities, and we communicate that risk in our promotional literature and in our waiver form. The waiver is the foundation of our industry and we cannot operate without it.
The whitewater rafting industry should be excluded in the Marine Liability Act.
I would be pleased to answer any questions regarding the whitewater rafting industry.
Conservative
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
Thank you, Chair.
Mr. Giaschi, when Transport Canada people appeared before this committee, they tabled a document you may had the opportunity to read.
They say negotiation with the industry and various parties affected by this piece of legislation began back in 2005. The document mentions this about the “maritime privilege,” “broad support from the industry; concerns in the legal community.” And it has this to say about adventure tourism, “broad support from the industry and users; concerns in the legal community.”
I am trying to understand both the position of the Canadian bar and your message today. Let me start with the maritime lien. If the industry is not worried, it means in theory that shipowners, who are aware of this bill, did not ask to be directly involved.
Personally, you would like to see a direct link between the owner and the service provider. I am wondering. Is this not another case where lawyers are just looking for a way to make a lot of money? With due respect, is it not the case? When I hear the industry agrees but the legal community has concerns, I would like to be reassured that you are doing this for the public good.
Vice-President, West Coast, Canadian Maritime Law Association
Yes, there were extensive consultations with industry. There weren't extensive consultations with the public generally, in the sense of the individuals who utilize these services, because you can't have that kind of consultation with your average, ordinary Canadian. They did go to industry, and industry is basically the adventure tourism operators, and of course they're going to favour it because it removes them from the act and it gives them limitation of liability. The consultation was with their marine underwriters, who of course are going to favour it because it reduces any claims they have to pay.
Our position, and the position of the Canadian Bar Association, is quite different. We don't have any interest, and believe it or not, I have more than enough work. I don't need to try to create more work through this kind of a process. But, effectively, I think someone has to speak up for all those people who go out and buy tickets and who really don't have a voice.
That's one of the things I think the Canadian Bar Association is doing, and it's one of the things, certainly, that we're doing. It's putting forth basically the argument for someone who wants to participate in whale-watching or go on the Maid of the Mist, but wants to do so under circumstances that ensure some degree of safety and some acceptance of responsibility on the part of the operator. That's why we have the position we do.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
But, Mr. Giaschi, we have heard the shipowners. If they are not asking to be directly involved as having a direct link between the privilege on the debt or the amount due and the shipowner, why would you want to add this? My question dealt mainly with shipowners. I can understand you jumped on what was the easiest.
As a matter of fact, even with adventure tourism, we are told that there is some support from the industry and users. In other words, even users have been consulted by Transport Canada.
As concerns the maritime lien, however, you said that shipowners should get some protection, but shipowners are the industry. They have been met. If they did not see fit to make this request, I do not understand why you are making it today on their behalf.
Vice-President, West Coast, Canadian Maritime Law Association
I have two points.
I wasn't talking about the lien aspect. My earlier comments were solely about the adventure tourism aspect. I don't know that users were or even can be approached, because the general public doesn't have an association.
With respect to the lien, I'm not sure I totally understand your question. Some of our constituent members certainly have an interest in various aspects of the lien issue. It pretty much balances out. Some are interested in not having a lien and others want a lien. Some want a wide lien; some want a very narrow lien. We certainly were consulted, as were some of our constituent members, who I believe have also spoken before this committee.
The bottom line is that we have recommended what we think is a fair solution to what was a problem, one that address both the concerns of the suppliers, to have some protection and some assurance of being paid, and the concerns of the shipowners, that they not be required to pay amounts that, with respect to contracts, they haven't entered into or authorized.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
I am not convinced, but I will turn to Mr. Kowalsky.
Mr. Kowalski, you heard the legal community witness. Among other things, he would like to do away with the exemption for adventure tourism in this bill. Personally, I understand your point of view. I read your brief carefully.
The legislation has been changed. Since 2001, I think, you are required to have better insurance coverage. You are asking to go back to the legislation as it was before that. Am I right?
Wilderness Tours
There are two things. We've been in business since 1975, and liability insurance for our industry is very hard to come by. For us, everybody in the outdoor industry, in the adventure industry, whether it's on land or water, requires a waiver of release. We own a ski resort just west of Ottawa, and on the back of every ticket that is printed is our waiver and release. By purchasing that ticket--they don't sign it--in essence they agree to that waiver of release.
The Marine Liability Act would definitely hurt the adventure tourism industry. In our particular industry, people can get hurt through no negligence on the part of the operator. In fact, if there were not a little bit of risk associated with the trips that we offer, I don't think anyone would take our trips. If there were absolutely no risk, then it would be a ride at Canada's Wonderland or the Ottawa Ex. We provide a legitimate adventure experience, and we make sure that the adventuring public knows in advance that they have to accept some of that risk. In fact, that's why people do it.
The risk is very slight. We've taken over a million people rafting and we've never had a fatality associated with our rafting trips. That's not to say that it couldn't happen, but the likelihood is very small. I like to characterize our operations--and I do that to our clientele--as being 99.9% safe, but it's that 0.1% that makes people's adrenalin flow. That's why they want to do these activities.