Evidence of meeting #16 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 amendment.
A recording is available from Parliament.
4:45 p.m.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
I wonder whether this would be a good time to talk about the doctrine of allurement. Mr. Jean would know what that means.
Mr. Gauthier, in order for the doctrine of allurement to be upheld, you have to make the definitions appropriate. So while we're wrestling with the appropriate definition, a stowaway or a trespasser would probably have to be defined in the definition section of the act, would they not?
4:45 p.m.
General Counsel, Legal Services, Department of Transport
They're not sought to be defined. They would be left with the courts to define, obviously, and if so, the courts would rely on the body of law such as it is, no doubt, that touches on these concepts. It's certainly not sought to be defined here, as many words aren't sought to be defined. I felt no need for it.
4:45 p.m.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
There's no need for it because the legislation as presented in the House and before this committee didn't have this amendment and didn't have the words defined initially, so there was no need then. But there might be a need now, because you will complicate the legislation even further unless you are as precise as the legislation intends to be.
4:45 p.m.
General Counsel, Legal Services, Department of Transport
I have no further comment on that, Mr. Volpe. It would be up to others to decide whether or not some further amendments are needed to the act to create these definitions. All we know is that when this difficulty was initially identified and was sought to be corrected, when the policy people and our people got together, this was the amendment they came up with and that was thought to be satisfactory. For a stowaway or trespasser, undoubtedly there are definitions here and there that could be relied upon to backfill, as it were, the lack of a specific definition here.
4:45 p.m.
Liberal
4:45 p.m.
Conservative
The Chair Conservative Merv Tweed
Seeing no more comment, I'll go to the question.
(Amendment agreed to [See Minutes of Proceedings])
(Clause 3 as amended agreed to)
(Clauses 4 to 6 inclusive agreed to)
(On clause 7)
We have a Liberal amendment, Liberal 1.2.
Mr. Volpe.
4:50 p.m.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
This particular amendment is proposed, in part, because in clause 9 we're going to have a definition of ship or vessel that's going to be, I think, pretty comprehensive for the way this legislation will be interpreted.
So this proposes to insert in line 26, after the word “vehicle” and before the word “or”, the following:
air cushion vehicle or, except when used for an activity referred to in subsection 37.1(1), a vessel propelled
So it seeks to narrow down a definition of the activity under section 37.1.
4:50 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
With respect, Mr. Chair, I would suggest that this amendment would actually have the effect of bringing marine adventure tourism activities back into part 4, and this would actually defeat the purpose of section 37.1. It would have a huge detrimental effect on marine adventure tourism activities involving paddling and oars, since they now fall under part 4 and no longer would be able to use the waivers.
That's my understanding of it. Mr. Gauthier, is that indeed the case?
4:50 p.m.
General Counsel, Legal Services, Department of Transport
Well, yes, sir, I believe that is. The effect of it is that, fundamentally, section 37.1 would be, in a way, an exception from the exception. So from a legal point of view, it would put that operation, basically, back into part 4 and not retain it in part 3. That is the legal effect.
Now, on the policy effect of it, and so on, I think you've expressed that, and I would not wish to comment further on that.
4:50 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
With respect, we've actually heard testimony that indeed, if they are put back into that part, it will close down, in effect, the whole adventure tourism industry. That's the evidence we've heard, so that's the effect of the amendment, if passed as proposed by the Liberal member.
4:50 p.m.
Conservative
The Chair Conservative Merv Tweed
Can I ask you this, Mr. Gauthier? Part 4 invalidates the use of waivers. Now, are they valid in part 3?
4:50 p.m.
General Counsel, Legal Services, Department of Transport
Yes, in a sense, sir, they are not invalid. We've heard already much testimony on how they would hold up in a court of law and so on, on a case-by-case basis, but they're not outlawed outright, whereas in part 4 they're outlawed outright.
4:50 p.m.
Conservative
The Chair Conservative Merv Tweed
I think that's the clarification. It does help me, believe it or not.
4:50 p.m.
General Counsel, Legal Services, Department of Transport
I believe that's the connection with the point Mr. Jean made.
4:50 p.m.
Conservative
The Chair Conservative Merv Tweed
Okay. Are there any other comments?
(Amendment negatived)
(Clause 7 agreed to)
(On clause 8)
We have a government amendment, G-3.
Mr. Jean.
4:50 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
The proposed amendment was actually recommended by the Canadian Maritime Law Association. It's the same amendment that has been proposed for proposed subsection 28(3). It would actually add to that paragraph we talked about and clarify the treatment of others who are not intended to be covered by the act.
Is that, indeed, the case, Mr. Gauthier, from your understanding of this?
4:50 p.m.
General Counsel, Legal Services, Department of Transport
Yes, Mr. Jean, this is what I would describe as a companion motion to the one that was previously passed, this one having effect in part 4.
4:55 p.m.
Conservative
4:55 p.m.
General Counsel, Legal Services, Department of Transport
Yes, that's correct.
4:55 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you.
(Amendment agreed to on division [See Minutes of Proceedings])
(Clause 8 as amended agreed to)
(On clause 9)
4:55 p.m.
Conservative
4:55 p.m.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
Mr. Chairman, we had some ongoing discussion with the legal experts who we brought before the committee about what needed to be done with respect to this component of the legislation. They suggested that we needed to make sure that we put down the word “significantly” in order to ensure that participants would not be exposed to the kinds of risks that they might not normally expect, notwithstanding the fact that they are in a risk-taking adventure exercise. In other words, if you put the word “significantly” in, then there is an incumbent responsibility imposed on the operator to ensure that there is a well-defined process and series of protocols for due diligence that can give the participant an indication that there are normal risks. Something that goes beyond those normal risks would have to trigger their access to the courts for indemnification.
So we're following that advice, and we thought we would make the amendment reflect that particular thinking.