Transport Committee on May 5th, 2009

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

If I may, in fact, Mr. Gauthier, based on conflict of laws--and any second year law student will tell you this--if the regulation was changed and it didn't reflect the same in this statute, we would have to bring forward both at the same time and change them both as a matter of course, and in fact possibly the Canada Shipping Act at the same time, and keep track of all that or else we'd have a conflict of laws and judges would be open to interpret them differently or, indeed, apply a different standard to both.

So that's why there's the separation, I would suggest, with respect. You have one deal with one part of the law and another deal with another. Is that not indeed the case?

[Mark Gauthier]

Yes, I would agree with you.

[The Chair, Conservative, Merv Tweed]

Is there any further comment?

Mr. Volpe.

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

But you would agree as well that the Canadian Maritime Law Association and the Canadian Bar Association both recommended in their briefs that adventure tourism operators be required to exercise that due diligence and to ensure the seaworthiness of their vessels and the competency of their masters and crews at the beginning of the voyage, and that they be prohibited from contracting out these requirements?

I say this because as some of these discussions will move from the form of making law to interpreting law and end up in the courts, I'm sure that smart lawyers will take a look at what the intent of the legislators would be, and they would probably refer to the Hansard of this meeting to say what is it that was on the minds of those legislators. The legislators also consulted with experts in that particular field, and those experts continued by saying participants in any of these activities might be aware of and accept the risks inherent in such activities, but they should not have to accept the risk imposed by an operator who uses substandard equipment or an inadequately trained crew. Those aren't my words; that is the advice of those experts in law and in courts that have had to deal with these kinds of differences that Mr. Jean talks about.

So I refer again to the reason, the rationale, why we put this addition into that legislation, and with all due respect to the lawyers who were consulted by the Department of Transport on this matter, I think it's a pretty good principle to underscore, and it is that you try to put in the safety of the participants as best you can.

[The Chair, Conservative, Merv Tweed]

I have Mr. Bevington and then Mr. Kennedy.

[Dennis Bevington, NDP, Western Arctic, NT]

Yes, I have some questions.

When it comes to proposed section 37.1, would you explain to me how proposed paragraph 39(c) would impact, or does that have an impact on the definitions within proposed section 37.1? Can you provide regulation to clarify the definitions?

[Mark Gauthier]

Yes, Mr. Bevington, that is indeed the case. It's sort of an escape hatch, if you wish, that the Governor in Council could make regulations dealing with any of the items that precede in paragraphs (a) to (d), and the specific power to make those regulations is found in paragraph 39(c).

[Dennis Bevington, NDP, Western Arctic, NT]

So you could classify activities that would be adventure tourism activities under regulation?

[Mark Gauthier]

I can only stress the words that are there, obviously. When regulatory projects are put together, of course, the policy is written up by the department, and it's run by a special branch in the Department of Justice that advises on whether it's properly authorized under the act. They have to be intra vires within the authority of act--all the tests that are met in the Statutory Instruments Act.

So of course, in principle you're absolutely right, the reason it's put in is that a regulation could qualify these previous subjects. But no regulation, to the best of my knowledge, has been proposed, and I can't comment on any specifics. But in principle, that's the reason it's there, yes.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay, so we have some coverage here in terms of proposed section 37.1, and I think that helps me more with what my concern is, because I see that then we can narrow this down through regulation if we see that too many are picking up the waivers. I think this was the concern many people had that was brought to us, that this would open it up for many people to use waivers rather than have proper insurance that would cover the activity that might not....

So you're saying that would be quite possible and likely possible.

[The Chair, Conservative, Merv Tweed]

Mr. Kennedy.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Along the lines of what Mr. Bevington is saying, what Mr. Volpe's motion talks about is ships that are seaworthy and suitable for the activity. The activity is not a normative activity, almost by definition. In other words, these activities were unanticipated when the Shipping Act came in, are specialized, and have some risk attached.

In other words, there may be ability to make regulation, but some of those activities may not even be of the use of the vessel. They may be the things that take place on the vessel. They may be things that just use the vessel as a platform or to get people to and from. This is adding that extra dimension. This relies on the activity as a generality, and I think that's the extra protection that witnesses at this committee were looking for around the specialized activities, not just the safe vessel. This is about the adventure activities themselves. This is how I read it.

I wonder, then, where else that protection will come from, because I think that's the advice we're getting, and I think Mr. Bevington saw it and got some assurance that there could be some regulation on that front. Where else will we register an intent, if not here, to recognize that this is different from simply the operation of any kind of boat or vessel? It's actually doing these other activities, using the vessel as a base.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe. please.

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

Mr. Chairman, I realize that members around the table all want to be helpful and trusting. I take Mr. Bevington's reflections on the confidence that we might derive from regulations to be a very positive effort in that regard. However, regulations are only authorized and devolved from legislation that expresses a particular intent. So a regulation can't emerge—poof—out of the air to address a particular issue, even if it was raised in committee, unless the legislation allows for the development of such regulation.

While I welcome Mr. Bevington's reflection that maybe some of this might be captured--or his request to see whether this might be captured--by regulation, I don't think that we, as members of a committee, need to vest our trust in potential regulation if the legislation doesn't directly lead us in that vein.

So I hold to this particular amendment.

(Amendment negatived [See Minutes of Proceedings])

(Clause 9 agreed to)

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

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

I have a point of order, Mr. Chair.

I know Mr. Kennedy did come approximately 30 minutes ago, but I saw him voting and I saw Mr. Valeriote voting before. We have three Liberal members, and one appeared and started voting when we had another Liberal member voting.

I just want to clarify if Mr. Kennedy has provided the proper forms to the clerk so he can vote appropriately, and if not, if Mr. Valeriote is gone now.

I just want to keep track of all the Liberal members--who's coming and going.

[The Chair, Conservative, Merv Tweed]

My advice is that when Mr. Kennedy is at the table, Mr. Kania's vote does not count. He's a substitute member and has been voting, but the rules would state that he's ineligible to vote.

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

We're going to have better luck on this one, because Mr. Kania's amendments are coming forward.

[The Chair, Conservative, Merv Tweed]

I know there is some other discussion to take place. I'm going to ask Mr. Volpe to take the chair. I have another commitment that I have to be at, but I'm hoping that on Thursday we can come back and resume on clause 10, and I know Mr. Kennedy has something he wants to discuss.

Mr. Volpe, will you take the chair as the deputy?

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

I don't mind doing that. Can I still vote?

[Roger Gaudet, Bloc, Montcalm, QC]

I'd like to make a suggestion to you. It might be better to stop the committee proceedings today and to resume on Thursday afternoon. We have exactly eight minutes left. We won't be able to do much by the end of the meeting. We may not even be able to cover one point.

[The Vice-Chair (Hon. Joseph Volpe), Liberal, Joe Volpe]

Mr. Jean.

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

Merci.

In relation to the bill itself, I think that is a very good suggestion, but I believe Mr. Kennedy has a motion that he wants to bring forward to the committee. We can certainly deal with that now and deal with the remainder of the legislation on Thursday.

[The Vice-Chair (Hon. Joseph Volpe), Liberal, Joe Volpe]

Monsieur Laframboise.

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

Mr. Chairman, you say that Mr. Kennedy wants to introduce a motion, but have we been informed through the agenda? If it's not on the agenda, it would be better to continue the clause-by-clause consideration until 5:30. This isn't the first time Mr. Kennedy has introduced motions. He can introduce one a day, if he wants; that's not a problem for me, except that this one is not on the agenda.