Transport Committee on May 5th, 2009

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

Mr. Chair, thank you very much.

I don't have any particular questions for this witness. I appreciate his coming here today.

I'm not sure if any members of the government side have questions for him at this stage. No, sir, they don't, so if there are additional questions from the opposition, we're more than happy to give them the time.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

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

I have just a brief observation, Mr. Jones. It comes back to the issue of liability claims, etc. Again, I don't mean any malice by the question, but I'm wondering whether the waiver clauses are the cause of fewer claims being brought forward or whether in fact these activities are as dangerous as we say or could imagine them to be.

What if there's a legal chill brought on by that waiver? What if someone goes before his or her own lawyer and asks what the chances are of pursuing a claim against the operator, and the lawyer says he or she doesn't know, but because the waiver is there, it's going to cost them a little bit more? The client weighs how much it's going to cost to get compensation and is unsure about going that route, because it's a minimal amount if he or she is successful, whereas the operator has probably built it into his insurance indemnification as well as representation in court, so it doesn't cost him anything.

I'm wondering whether the numbers being presented to us as a basis for taking one position or another are really valid in the absence of this kind of analysis.

[Christopher Jones]

It's a good question.

My examination of the waivers issue led me to understand that it is true that with a waiver system in place fewer legal actions are brought against insurance companies for any kind of injuries sustained. But a waiver can be set aside, as I said earlier, by a judge. It still gives the participant the right to pursue an action if he feels that some kind of conduct, or malice, or neglect, or omission by the operator resulted in his injury, or his death in the case of the next of kin.

When you ski, on the back of your lift pass is an implicit waiver. Also, there are other activities where you sign a waiver. I think this is the trade-off, where people are cognizant when they embark on these activities that there is an element of risk and that they are absolving the owner or the operator from some of that. But as you point out, it still does give the participant some recourse through tort law to bring an action if he feels he sustained an injury that's attributable to some kind of negligence.

[The Chair, Conservative, Merv Tweed]

I think it's also important to note that part 3 of this basically invalidates the signed waiver if a person wants to pursue it at the legal level. Is that not correct?

[Christopher Jones]

Yes, that's right, in part 3, I believe, and the amounts go up to significantly more than $350,000. It's $4 million or something of that order.

[The Chair, Conservative, Merv Tweed]

Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

I'd like to comment on that part.

I am a trial lawyer. While it's true that anybody can sue at any time, if you have a waiver that's upheld, that's the end; you lose. So I believe what Mr. Volpe was saying is 100% accurate, because there is a chill; when you go to a lawyer, they'll say, “Is this enforceable?” Most lawyers, if they're being responsible, will say, “I don't know; it's going to cost you to find out, but most likely based on the wording...”. All these waivers, obviously—there's not one standard form waiver; it depends on who has written it. Oftentimes—because I've written them myself—you just look at the most recent case and see when something has been permitted, and then you write it up again to make sure that's now taken into account.

I can tell you from experience that there's a serious chill with these waivers.

[Christopher Jones]

It does put a chill.

It comes back to the problem, though, that if in the interests of removing that chill you remove the waiver, then you're exposing the operator, in what is essentially a fairly risky activity, to a law suit that can put him out of business. The question is whether we want to have these businesses operating when the participants are knowingly and voluntarily engaging in it, knowing that there is an element of risk—now, with the caveat, of course, that the operator must ensure seaworthiness, he must have trained guides and outfitters, so certain basic minimum conditions are being met. You point to the dilemma, and it's hard to answer it.

[Andrew Kania, Liberal, Brampton West, ON]

But it's not accurate to state that they'll be put out of business, because they'll have insurance, and the insurance company will have the duty to indemnify and defend, pursuant to all liability policies of insurance. So it's just a question of whether they have sufficient limits—

[Christopher Jones]

But if you take the waiver away, then the policy premiums the insurance company will then charge the operator will be prohibitive, and that will effectively.... These are mom-and-pop operations that can't afford $60,000 or $80,000. Some of the larger ones might be able to, like some of the fellows you heard from last week, but many of the smaller ones couldn't afford $60,000 to $80,000 in premiums a year, so the operation would cease to exist.

[The Chair, Conservative, Merv Tweed]

Thank you.

Are there any other questions? Mr. Jean.

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

I'd like to speak to that point.

Volenti non fit injuria, which shows my expression of Latin, means voluntarily assuming the risk, which is the case law in Canada. I'm someone who practised personal injury law and has his teeth marks in more ambulances across Alberta than probably any other lawyer.

That was a joke, by the way. I'm glad you see that.

So nobody can voluntarily assume gross negligence; that's what it comes down to. No one can waiver gross negligence. They can waiver negligence, but if it's found that the operator of the vessel is grossly negligent, the judge will throw out the waiver and say that no one will voluntarily assume that. Is that correct?

[Christopher Jones]

Yes, that's my understanding. I think that's how the operators would see it as well.

[The Chair, Conservative, Merv Tweed]

Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair.

Thank you, Mr. Jones.

I would like to raise this question to you. How will the adventure tourism industry change because of the modifications to this liability law and Bill C-7?

[Christopher Jones]

I think, if the amendments pass, there will be a sigh of relief from the water-based marine tourism operators because they will revert to the status quo that existed prior to 2001. They were able to use waivers, obtain affordable insurance, and conduct their businesses. So I think they would be generally quite pleased with the outcome. It would be a good outcome for them.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Bill C-7 would remove adventure tourism from part 4 of the act and it would still remain in part 3 of the act. Do you have any particular comments with reference to that?

[Christopher Jones]

My understanding is that these are pleasure-seeking activities, which comes back to my original point. They're also involving the participants in the particular activity. As I understand it, part 3 was dealing more with the commercial operations of the large ferries and crew ships.

My understanding is that there would be still be some ability to sue under part 3, but I'm afraid I'm not.... My understanding is that the industry would be pleased if they're removed from part 4. I'm sorry, I'm not a marine lawyer, and my understanding of the minutia of the rest of the bill is not that good.

[The Chair, Conservative, Merv Tweed]

Thank you.

I'll go now to Mr. Bevington to wrap up.

[Dennis Bevington, NDP, Western Arctic, NT]

It's becoming clearer to me as we go along that really proposed section 37.1 is not well-defined. I actually don't see that the amendments to proposed section 37.1 that have been put forward are really going to solve this issue. It doesn't clearly identify what activities we're talking about.

Adventure tourism “exposes participants to an aquatic environment”. How many different categories fit under that?

Normally it would require “safety equipment and procedures beyond those normally used in the carriage of passengers”. You're at the level of a life jacket.

Then it says that “participants are exposed to greater risks than passengers are normally exposed to in the carriage of passengers.” How do you quantify that in real terms? There are so many things that add to the danger that passengers have on a boat. The temperature of the water that you're going through would, I think, be of serious consideration when you add to risk.

You really haven't defined risk. You haven't defined any of the things that are in there that give us a clear picture of who's going to get the exemption. I'm having trouble with this section completely. Certainly I'd like to see companies have the opportunity to have waivers, but I think we need to understand where those waivers fit into the system.

[Christopher Jones]

I take your point. I can't comment on the lack of definitional clarity in the amendment. It is just our view, as I've stated already, that this is an activity that is commonly accepted. It's practised in the United States and many other jurisdictions where the participants knowingly enter it, knowing that there is a level of risk. They do sign waivers. But the operators themselves are mindful as well that they have certain minimum obligations to meet in terms of the seaworthiness of the vessels, the training of their staff, and the conditions in which they operate. My concern is that if we became too prescriptive here it may render it difficult for these operators to operate. They would be operating in such a narrow set of conditions, or perhaps with extremely high premiums, that they would be out of business.

[The Chair, Conservative, Merv Tweed]

Very good. Thank you.

Does anyone else want to speak? One round around the table?

I thank you, Mr. Jones, for your attendance and the advice and the information you provided us with.

We will move to clause-by-clause. Maybe we'll take two minutes to stretch and allow our guests to leave, and then we can get at the clause-by-clause of the bill.

[The Chair, Conservative, Merv Tweed]

Thank you, and welcome back.

Joining us now for clause-by-clause, in person, from the Department of Transport, is Donald Roussel, director general, marine safety; and Mark Gauthier, general counsel, legal services. Joining us by teleconference from the beautiful city of Vancouver is Jerry Rysanek.

Are you there, Jerry?

[Jerry Rysanek, Executive Director, International Marine Policy and Liability, Department of Transport]

Yes, I am. Thank you very much, Mr. Chairman, for allowing me to participate in this manner.