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.
Conservative
The Chair Conservative Merv Tweed
I hope the rain isn't bothering you too much out there.
We'll proceed with clause-by-clause.
(On clause 1)
We have a Liberal amendment, L-1.
For the information of the committee, the Liberal amendment moves to remove lines 13 and 14. The government amendment, G-1, would move to amend line 14.
So if L-1 is passed, G-1 is no longer on the table.
Mr. Volpe.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
Mr. Chairman, this is pursuant to the discussions we've been having about how to address the issues of people who are participating in an activity from proposed section 37.1. From that activity, we need the definitions in order to have consistency. The first of those is to define who a person may be.
Proposed paragraph 24(c)--lines 13 and 14 in the English, and lines 14, 15, and 16 in the French--says that a passenger is
(c) a person carried on board a vessel propelled manually by paddles or oars; and
If we eliminate that, then they are no longer passengers, for the purposes of this act, for the activity outlined in proposed section 37.1.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I would like to hear from the Department of Justice in relation to this particular issue. If that is adopted, what would be the consequences? They seem quite severe. I'm wondering if the department could comment on that.
Obviously, from our perspective, G-1 would be a better proposal.
Mark Gauthier General Counsel, Legal Services, Department of Transport
Thank you, Mr. Chairman.
Yes, I believe there is a legal consequence in accepting this particular motion and consequently rejecting G-1. I may have touched upon this in my previous testimony.
The reason we are compelled to make, or at least should make, a motion to amend this particular provision is as a result of proposed section 34.1 from part 4 of the act, which, to put it crudely, expels, if you wish, from part 4 the persons carried on board propelled manually or by paddles or oars, in order to take them out of that provision.
Then, if we do not consequentially amend also proposed section 24 in the manner that is proposed in G-1--that is to say, simply deleting the entire paragraph--it leaves doubt as to exactly which provision of part 3 of the MLA would apply to those individuals.
The reason G-1 is framed in this manner is in order to address that--that is to say, to carry the concept of persons on board vessels propelled manually by paddles or oars as passengers if they are carried on a commercial vessel. Of course, if they're not carried on a commercial vessel, then it is a pleasure craft, and it becomes clear which section of part 3 applies.
The wording of G-1 clarifies that if you're a person carried on board one of those vessels, if you're on a commercial vessel, you're a passenger and the liability regime is X--proposed subsection 28(1), to be more precise--whereas if you're on a pleasure craft, or you're not on a commercial vessel and therefore on a pleasure craft, then you're directed to proposed section 29 in part 3.
That's the manner in which G-1 clarifies that. In my view, L-1 would create an uncertainty there.
Thank you.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
In fact, if I may, Mr. Gauthier, this is actually consistent with the proposed amendment by the Canadian Maritime Law Association, is that not correct?
General Counsel, Legal Services, Department of Transport
I believe that is so, sir.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
Well, since we want to refer to others who support our position, I think the lawyers who came from the Canadian law association said that with the way the bill is currently written, what happens is that you create an anomaly, as a person injured while riding in a small boat with a motor does not meet the definition of passenger and falls under other claims, under proposed section 29 of the amended act. So I think they disagreed with your initial presentation, Mr. Gauthier. It would be important to eliminate this particular definition in order to arrive at some consistency.
Now, you will probably have already read some of the other amendments that we have proposed. Those amendments go to providing some consistency in the interpretation presented for legal dispute. They don't necessarily invalidate G-1, but it certainly does not make them necessary--and, of course, all the other ones that are consequent to G-1.
General Counsel, Legal Services, Department of Transport
Mr. Chairman, I certainly don't wish to engage in a fencing match. The CMLA said what they said, but if they were suggesting that anyone on board that type of craft, whether it's a commercial craft or a pleasure craft, should have the same liability regime, that's a matter of policy.
When the proponents, the Ministry of Transport, wrote this up, the policy—which was then adopted and then tabled in Parliament—was that there ought to be a distinction between the liability regime for those on board pleasure craft and those on board commercial craft. It's purely a matter of policy. Perhaps the CMLA favours the same. What I'm seeing here, though, and I will repeat it, is that amendment L-1, as drafted, doesn't really clarify which of the two regimes would actually apply. It just takes that category of person out--a passenger. It doesn't have, at least in my view, the specificity that is provided for in G-1.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
Mr. Gauthier, two public systems are provided for under this bill. The addition that you're making, that is the government's amendment, will clarify the situation, I believe. I agree with you.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
I have an observation to make.
Mr. Gauthier, I'm glad you said what you did in response to my observation about this possibly being a policy issue rather than a fencing issue. Of course, what we're here to do is talk about legislation that represents government policy. The reason we referred to what other lawyers have said, lawyers who are apparently commissioned by the Bar Association to look at this particular act—and they provided you as well as us with their thinking on it--and those from the marine liability component of the practice of law, is that they said to us—and I hope I'm not misinterpreting or misstating their position—that what the act is trying to do is put some people into part 4 of the act, and we, on this side, may not be convinced that they ought to removed.
So you're right, it's question of policy. So we need not fence.
In terms of policy, this would be as valid a position as someone else's. It's a question of whether this is the one the group will accept. I think you're right on that score as well. Let me compliment you on two very good observations, and I leave your credentials in law untested by one who does not have them.
Conservative
The Chair Conservative Merv Tweed
Are there any other comments?
(Amendment negatived)
We're moving to amendment G-1. Mr. Jean, please.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you, Mr. Chair.
This particular amendment is required to clarify that vessels propelled manually by paddles or oars, etc., that are used for private or pleasure purposes will continue to be subject to the $1 million limit per incident, while the same types of vessels used for commercial and public purposes will be subject to a minimum limit of $3.5 million to reflect the policy of greater coverage for the commercial public purpose.
Conservative
The Chair Conservative Merv Tweed
Are there any comments?
(Amendment agreed to [See Minutes of Proceedings])
(Clause 1 as amended agreed to on division)
(Clause 2 agreed to)
(On clause 3)
Conservative
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you, Mr. Chair.
The addition of a new subparagraph would actually ensure clarity in the act and avoid any misinterpretation. The amendment would actually add a new subparagraph (c)(i) to proposed subsection 28(3) to clarify the treatment of others who should not be considered passengers under the act. These would be people carried on board involuntarily, such as shipwrecked and distressed persons.
That is my understanding of that particular amendment. And I would like to hear from Mr. Gauthier if that is indeed his understanding of the amendment as well.
General Counsel, Legal Services, Department of Transport
Mr. Chairman, it is my understanding that but for this amendment, there may be some inference or it might somehow at some point be concluded that these persons--trespassers, stowaways, and so on--by virtue of the existence of proposed subsection (3) as drafted, might somehow benefit from passenger status, which is what this amendment seeks to prevent, as I understand it.
Thank you.
Liberal
Joe Volpe Liberal Eglinton—Lawrence, ON
The difficulty I have with this--and I'm going to defer to all the esteemed legal experts around the table--is that if someone comes onto my property and is injured in so doing, whether he's invited or not to come onto my property, I'm still liable for any injuries to him. What this particular clause suggests is that if you're going to make an exception for someone who comes aboard a vessel, which is the private property of person X, then you need to have consistency with the legal principles applied to someone who has private property that's not floating.
I'm not sure this would stand up anywhere. Why present it?