Transport Committee on May 5th, 2009

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Chair, I would like to propose that adding the word “significantly” makes it very subjective. I would question who is going to define that. What I consider a significantly increased risk may not be what you consider a significantly increased risk. I would be nervous about giving that to the courts to define.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

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

I think that's the whole issue, isn't it, to make sure that the courts are given the appropriate sway? So the definitional word “significantly”--in a legal fashion, in a legal matter--is going to be decided by the courts, not necessarily by the operators unilaterally.

[The Chair, Conservative, Merv Tweed]

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

As I said earlier, I don't think this section has been well outlined. The particular amendment simply replaces one subjective word with another. We're really still at a subjective stage with what we're proposing would define adventure tourism.

I look at what it says under “passenger”: “a participant in an adventure tourism activity”. Yet in the adventure tourism activity section it says it “exposes participants to an aquatic environment”. What does that mean? Does that mean that scuba expedition fits under this? A passenger is a participant in adventure tourism activity. So we have clearly established that somebody is not simply a passenger, that they can just be somebody doing adventure tourism activity in an aquatic environment.

I think there are some really difficult issues here. My point would be, how far do we want to go in allowing these waivers? For what activities are these waivers suitable, and at what point are they not suitable? I don't see anything here that really lays it out very clearly. I thought the government was going to come back with amendments to this particular section that would give us some clarity. I don't see it in their amendment.

So as of now, I can't support this section.

[The Chair, Conservative, Merv Tweed]

Mr. Laframboise.

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

On the contrary, I get the impression that one of highlights of this bill—but I could be mistaken, Mr. Gauthier—is precisely the section on adventure tourism. You informed us at the outset, at the department, that there were different views between the legal aspect and the industry, that the industry supported these provisions. We've been discussing this matter with the industry people for some years now. I believe you've weighed each of the words appearing in this bill. You've weighed the pros and cons. You've convinced me.

I don't know whether you can add something, Mr. Roussel. I'd like you to reassure me.

[Donald Roussel, Director General, Marine Safety, Department of Transport]

Maybe Mr. Rysanek in sunny Vancouver can explain a little more.

Jerry, are you still there?

[Jerry Rysanek]

Yes. Thank you very much, Mr. Chairman, for your invitation.

[The Chair, Conservative, Merv Tweed]

I'm sorry, we forgot about you.

[Jerry Rysanek]

The definition of adventure tourism was not an easy task. It took a while. It took a number of experts that we invited from adventure tourism, both the legal and insurance side, to help us design what you see in clause 9. I think it is true to say every word was carefully measured and weighted. On balance, we think this is the best we can present.

There have been options, as you can imagine. For example, we were trying to do it on the type of vessel, size of vessel, and using all kinds of other techniques. This definition of adventure tourism, which has a cumulative effect between paragraph (a) and paragraph (c), is the best and has wide-ranging support among those who will be affected by it.

Thank you.

[The Chair, Conservative, Merv Tweed]

Are there any other comments?

(Amendment negatived [See Minutes of Proceedings])

On Liberal amendment 2.1, Mr. Volpe.

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

Again, for the sake of greater clarity, I feel I must have my dictionary with me, but it has to be a law dictionary, I suppose.

You'll note that in clause 9, proposed subsection 37.1(1), we are adding an additional item so that it would be consistent with the concept of an operator doing appropriate due diligence in establishing a procedure that would give the user/client a comfort level that the operator is providing a vessel that is safe. There must be certain protocols in place, and by adding this paragraph, that the ship is seaworthy and suitable for the activity for which it is to be used and is properly crewed, equipped and supplied, and that we have competent people operating with them.... I know some people think the only adventure tourism is that which takes place on a fast-flowing river in the interior of Canada, but this takes into consideration as well those others who are engaged offshore.

[The Chair, Conservative, Merv Tweed]

Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair.

If I'm not mistaken, the witness who appeared before us today commented that seaworthiness of vessels, as well as the equipment required in training of crews, is already accounted for under special purpose vessels regulations--I think that is the term he used--so I think that's already captured sufficiently.

Perhaps Mr. Gauthier might want to comment. If this measure were added in there, does this create additional problems with respect to liability or not? Is it necessary?

[Mark Gauthier]

Thank you, Mr. Watson.

I'll probably have to engage in a sort of tag team with my colleague Monsieur Roussel, who is the director general of marine safety in the Department of Transport, as he is more conversant than I am with what's contained inside those special purpose regulations and so on. With your permission, sir, I'll ask my colleague to answer.

[Jeff Watson, Conservative, Essex, ON]

Fair enough. Anyone on the panel is fine.

[Donald Roussel]

Thank you, Mr. Chairman.

It depends on the type of vessel we're dealing with. We have mentioned in this committee the special purpose vessels regulations that deal specifically with the river rafting adventure type of operation. If you were operating another type of vessel, you may get your hands on our Small Commercial Vessel Safety Guide. It will give you all sorts of additional detail and will navigate you through the different regulations that apply for specific activities.

We have an array of different rules and regulations plus, of course, our main law, the Canada Shipping Act. Also, our inspectors are doing the work out there to verify that those vessels operating commercially are in conformity with the act.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

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

We've wrestled with this one before, and I continue to express frustration as to why people in the industry would not want legislation saying, look, if you want to be in this business, then operate a seaworthy vessel, put people on board who are appropriately trained, and have a place that is appropriately equipped so you don't put anybody to any undue or significant risks. And I say “significant” just for those who think I'm bitter because we didn't get the word “significant” in.

But why create an environment where the operator is left off the hook, so to speak, in terms of performance to his clientele, just because you can say to him, go to a lawyer and take somebody to court? Please, why would you do that? You're the guys who suggested the government do this. It's not just a policy issue; we're providing the legal wiggle room for people to divest themselves of their responsibility.

I know that my friends over here to my left are going to agree with me.

[Donald Roussel]

Mr. Chairman, I think we're mixing two things here. The first thing is the requirement under the statute of this country when we deal with the safety of vessels, and it's under the Canada Shipping Act and the suite of regulations present under that act.

What we have in front of us is a liability regime, which is different. So please bear with us, that the safety of Canadians is certainly not in peril. The number of those who have lost their lives in commercial operations in this country is about 15; in the pleasure craft industry, it's about 150. So it's fairly safe out there when it comes to commercial operations.

What we're discussing here is liability; the safety portion of the matter is taken care of.

[The Chair, Conservative, Merv Tweed]

Mr. Jean, then Mr. Volpe.

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

In fact, Mr. Roussel, would this amendment not result in the adoption of a dual standard of liability for the same industry? We'd have two different acts dealing with safety, when indeed the liability act is supposed to deal with liability, and the Canada Shipping Act, especially given that it deals with special purpose vessel regulations.... Wouldn't it actually create a situation where you could actually suggest there would be a dual standard?

[Donald Roussel]

I think Mr. Gauthier can answer that; he's our legal specialist.

[Mark Gauthier]

Well, yes, Mr. Jean, in a way that's the result. For better or for worse, in Canada there are these two major statutes, one dealing with safety and all of the operational components, and another one dealing with liability. It's a good division, I think, in the sense that the regulated public can go to one statute or the other, and they can see what the standards are. Seaworthiness is certainly, from my own point of view, very much a technical safety concept, and it's addressed in the Canada Shipping Act, and not only in the act itself but also in the various regulations that are relevant here.

There are two sets of regulations. One we've heard already is the special purpose ships regulations, which is an odd name. But just in order to assist the committee, that term was chosen as a bit of a throwback to the old Canada Shipping Act, which had everything categorized: you were either this kind of a ship or that kind of a ship, or some other kind; and if you were none of the above, you were a cargo ship. That didn't work too well. In the new Canada Shipping Act, 2001, these categories were basically set aside, with the exception of pleasure craft. As a result, the government has the ability to propose to the Governor in Council regulations for any kind of vessel. You could presumably have a regulation for a rowboat that's 10 foot long—or choose something else.

Here, under special purpose, was a set of regulations adopted specifically for the marine adventure tourism industry. From my point of view, that is the place where it belongs. There were also the small vessels regulations, which I'll again ask Monsieur Roussel to confirm, but I believe the major amendment to them is not yet law. I believe they're in the Gazette. When they do become law, they'll have all the construction standards and all of that business relative to small craft, which would include these vessels involved in this industry.

So from my point of view, and it's only my own personal point of view, it seems to make sense to have a separation of liability on one side and safety on the other.