TRAN Committee Meeting

     Thank you and good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 17.

    The orders of the day are that pursuant to the order of reference of Monday, March 30, 2009, we are considering Bill C-7, an act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other acts.

    Joining us today from the Department of Transport are Mr. Tim Meisner, Mr. Jerry Rysanek, and Mark Gauthier. We are back reviewing clause by clause.

    Mr. Volpé, on a point of order.

    Thank you, Mr. Chairman.

     I realize this might be a little irregular just before we begin clause-by-clause, but I'd like to ask for the committee's unanimous consent to hear a motion by Mr. Dhaliwal. I know that Mr. Dhaliwal didn't have the time to present it according to their procedures, but I'm asking all members, government and opposition, for unanimous consent for Mr. Dhaliwal to present this motion.

    Absolutely, Mr. Chair, from the government's perspective.

    Thank you. Unanimous consent.

    Mr. Volpé.

    Thank you. Shall we do it right now?

    Yes, let's deal with it.

    Mr. Dhaliwal, you have to read it.

    Thank you, Mr. Chair and Mr. Volpé. Thank you, members of the committee, for tabling this unanimously.

    The motion reads:

    Thank you, Mr. Chair.

    Are there any comments?

    I have just a very quick one, Mr. Chair. This is the second, possibly the third motion.... We had one from Mr. Kennedy—I see he is not here today—and another one by Mr. Dhaliwal. I thought the committee as a whole set an agenda some three, four, or five meetings ago, and I don't understand why we keep getting these motions to derail the work of the committee. That's my concern, and that's my only comment.

    Thank you.

    Mr. Laframboise.

    I want to come back to the explanation I gave Mr. Kennedy, at our last meeting. I want this to be clear.

    First of all, the forms for the Quebec programs became available only on May 1, through the Quebec Ministry of Municipal Affairs. So, they are brand new. It is not that I am trying to blame the Conservative government. However, it is Quebec that decides on its own priorities, not the federal government. The forms became available on May 1.

    If we start our study on May 12, the programs will not yet be available in Quebec. I do not want the wrong message to get out. Since the Liberal Party has been tabling a motion at every meeting, it may as well continue to do so. At some point, when Quebec has received applications and has approved projects, we may be able to get a report from Quebec. If I vote in favour of this motion today, Quebec as a whole will not have any information, simply because the forms have only been available since May 1, for cities interested in applying.

    This is money from 2007. I have been listening to Mr. Kennedy, in recent weeks and months, calculate how much money is still in Ottawa. A lot of that money belongs to Quebec. It was the Government of Quebec's decision not to take the money immediately. I am not blaming the Conservative government. We will see. Its turn will come, but we are not ready. So, the Liberals can just keep on tabling motions! Today, we will be voting against this motion. In three weeks or a month from now, we may be more favourable to it.

    Thank you.

    Are there any other comments?

    Mr. Dhaliwal?

    I have no comment, thank you.

    I will call the question.

    (Motion negatived)

    We will now move to clause-by-clause consideration.

    Shall Clause 10 carry?

    (Clause 10 agreed to)

    (On clause 11)

    We now move to clause 11. We have a series of amendments here. We have three Liberal amendments. We'll deal with Liberal amendment 2.2 first.

    Go ahead, Mr. Kania.

    Thank you very much.

    As you know, I am not on this committee, but this is the fourth meeting in a row that I've attended to discuss this issue. In reviewing this legislation when I was substituting, I noted what was, in my view, a very serious error, and it should be corrected. I'd like to take a little bit of time to explain it so that it's absolutely clear.

    First, there's a difference between a right and remedy. Section 139 provides a right, the maritime lien, but it doesn't provide any remedy for how it's to be enforced. For example, if an innocent Canadian provides services and there is a lien that has arisen pursuant to section 139, the question then becomes, “So what?”.

    I'd like you to think about this on a very practical basis. If a constituent of yours comes to your office and says, “Help; I'm owed money, and there is this ship, and it's leaving”, if it's about to leave in two hours or you can see it getting up steam, there's nothing you can do to help your constituent at all. You're going to say, “Well, you have to hire a lawyer and go to court and get an order”, and that takes time and money.

    With this particular amendment, the same detention provisions would apply. You'd be able, in essence, to freeze the foreign ship from leaving so that the Canadian would actually have some opportunity to be paid.

    I want to address specifically the comments of the representative of the Canadian Bar Association. His comment to me was that he would hate that, in terms of these amendments. Let me explain why.

    The Canadian Bar Association--and I fully support it--has a job to do. Their job is to represent lawyers; that's their motto. I'm the former elected secretary of the Ontario Bar Association, and representing 17,000 lawyers was my job. I know all about it, but that's not why we're here now. We're here to represent Canadians and our constituents.

    If these amendments pass, the result will be as follows: if somebody comes into your constituency office and says, “Help”, you can say, “Have that detention officer hold the ship. Then we'll deal with it”. If proof of a satisfactory lien is provided, then they're protected. If there isn't satisfactory proof, the ship is released anyway, but this stops the first stage of having to actually go to court.

    The representative of the CBA said specifically that it would cost $300 and that it could be done within a number of hours. Well, if you find a really good lawyer, maybe it can be done the same day, but let me describe what's required when you go to court.

    First of all, it's not $300. There is normally a $200-plus filing fee. If somebody who is owed $300 or $500 or $800 or $1,500 or $2,000 or whatever it may be comes into your constituency office and you've voted against these amendments, what you're going to have to say to the person is, “Spend $2,000 or $3,000 or whatever it may be on a lawyer so that you can be paid $500”, rather than simply saying, “The ship can't leave, and we will take care of you. This is who you call”.

    The legal process for getting an order is as follows: you need to commence a statement of claim, meaning you sue. You go to a lawyer, prepare the document, and pay the filing fee, but it's not only that; you then have to prepare motion material, swear an affidavit or maybe a couple of affidavits, get a notice of motion, and get all the proof. Then you have to find a judge.

    Maybe you can find one--maybe. Maybe a judge is not available because it's Friday at 4:00 p.m. and the judge isn't available until Monday, and the ship's gone. If you can find a judge, maybe you'll have to wait for five hours to be heard, and the lawyer is being paid at his or her hourly rate for the five hours while you're waiting.

    It's not $300. To be paid your $300, $400, $500, $1,800, or whatever it may be, it's probably thousands of dollars.

    What I'm trying to do is put some teeth into this legislation simply by referring back to the teeth that are already provided for other matters in terms of the designated officer just freezing things. Then you'll be able to hold the ship. You'll be able to seek the sale, if necessary, or they can pay the amount of the lien, or the judge can do whatever he or she wishes to do, because it has to go in front of a judge before the sale anyway.

    We're not trying to take away anybody's rights; we're simply trying to protect the rights of Canadians so that the maritime lien is an effective new tool rather than simply a piece of paper that will cost thousands to enforce and that many people will not use.

    Those are my submissions. I'm happy to answer questions.

    Go ahead, Mr. Jean.

    Thank you, Mr. Chair.

    I appreciate the ability to ask questions, but with respect, I've worked in the builders' lien in Alberta and loggers' liens in Alberta. I'm familiar with the lien process as it sits. I'm familiar with the small claims system as well, and I know how much it costs to file a statement of claim, as do many other lawyers in this room as well.

    The situation is this: the rules of court govern many of the actions that are taken, but the difficulty with your proposal is that first of all, when a person swears an affidavit, the person can do two years in jail for swearing a false affidavit. Often when people are in a dispute in relation to goods purchased, a dispute in relation to goods purchased would give them an additional option to file a lien and not be subject to a sworn affidavit that's filed in court, an affidavit that could actually cause them to do jail time. Actually, they would not even file a lien in court in this particular case, but it gives them a right to a lien on a ship, to hold and seize a ship that might be worth $20 million and have $10 million worth of cargo for $300 in gas. I just don't see that as being appropriate.

    We heard from the law society, the Canadian Bar Association, that everything in place is working well. I know from a builders' lien perspective that it works well. It costs $200 to file a statement of claim in Alberta. I think it now costs $100 in Alberta to file a small claim. I think it was just changed, but I haven't practised law there for five or six years. I think it's pretty much the same thing in B.C. For $500 I'd file a $200 statement-of-claim lien. It would cost a client $500 to file a lien for a house that's worth $200,000 to $300,000. That's pretty easy to do.

    In this particular case, doing it this way means the person has to be serious about it. They can't just do it as a result of a dispute for $300 or $500 in fuel and hold up a $20 million to $30 million ship. It doesn't make sense. It really doesn't.

    For the most part, these carriers of foreign ships are going to come back to Canada again, even if they do escape, which seems fairly unlikely, because a ship's manifest has to predict when it's going to leave. The departure has to be well planned and a harbourmaster has to give authority, so everybody already knows when the ship's going to leave. If they provide goods, they're well aware of it, and quite frankly, I believe lawyers can be called on a phone--I know I was available most nights until midnight--and can do a lien and find a judge in time to do it even after hours.

     If somebody who provides this kind of service to ships is so neglectful as to not plan out that proper process, quite frankly, for a $300 fuel charge, I think they should take the negative results of it.

    The process is good. It works. Why change it? Why create an additional right for somebody to actually file a claim and seize a ship on the basis of no real evidence? In fact, it could be as a result of a dispute, and not a real claim. That's the problem.

    Monsieur Laframboise is next.

    My question is addressed to Mr. Gauthier.

    According to my colleague, the Liberal amendment will clarify things. However, as Mr. Jean has said, it seems to me that there is an attempt to do something different here.

    Is this an amendment aimed at clarifying the language, or is this a new point of law that is being added?

    Thank you for your question. I tend to agree with you. Something is being added. There is no doubt that this would add an element to the way in which a maritime lean is enforced, at least in my view.

    I do have a somewhat different view from Mr. Kania, of course. I do not really see this as a clarification; it is more of an addition, in my opinion. This is something that would be added to the legislation — something that is not there now.

    Mr. Kania, do you have a comment?

    I understand Mr. Jean's comments, but I think that's taking it from the lawyer's perspective, and although we're lawyers, we're not here to be lawyers. We're here to represent constituents and to deal with what's best for Canadians who might need that $500 in gas. Rather than being concerned about the foreign ship, I'm more concerned to make sure that this new right can actually be used to help Canadians. I don't think it's satisfactory to simply say it's a small amount of money and it's a foreign ship, so let them go. What if they don't come back, and what if you cannot find a lawyer?

     In theory you're going to require people to spend a few thousand dollars. How do you address the point that if you find a lawyer and you have to wait for five hours in court, the lawyer is not going to sit there for five hours and not be paid by an hourly rate? I've practised litigation for almost 20 years, and there's no way that happens.

    On a very practical basis, you're either going to make this a really nonsensical right, because it's not going to work in most cases, or you're going to require people to spend lots of money on lawyers.

    Also, it wasn't the law society that said that; it was the Canadian Bar Association, which represents lawyers and advocates for lawyers. As a lawyer, I understand why they would say it, but as a member of Parliament representing Canadians and constituents, I do not understand it.

     I think Ms. Brown is first.

    There are many people who are suppliers to ships. Are we creating a special status for these people? Are we giving them special statutory rights and creating something that is not really necessary in law?

    Go ahead, Mr. Rysanek, please.

    Thank you, Mr. Chairman.

    I'm not a lawyer, so I'll address the issue from a policy point of view.

    Indeed, what we just heard is a perfect lead-in, because in fact this would create a special right for a special group of claimants. In this case, they are ship suppliers. Mr. Chairman, from the policy point of view, while I understand the objective of protecting ship suppliers, the premise beyond section 129 is in section 128. It's a very simple premise: the enforcement can only apply to something that the shipowner has not complied with.

    Nonpayment of invoices is not a non-compliance under this act. I think that on that basis, it would be very difficult to create that right. Indeed, there are many claimants, and perhaps many more deserving claimants, if I can put it that way. For example, there are personal injury claimants, and the wages and salaries of crews and masters might also not be paid by shipowners. They are not infringements under this act. It is not a non-compliance under this act not to pay wages.

    From a policy point of view, Mr. Chairman, I think this could only work if nonpayment of an invoice would be an offence, and it is not an offence under this act.

    Seeing no more comment, shall Liberal amendment 2.2 carry?

    (Amendment negatived)

    We'll move to Liberal amendment 2.3.

    Go ahead, Mr. Kania, please.

    Amendments 2.3 and 2.4 are contingent on the first one. If the first one's defeated, then those two make no sense. They're all part of one package.

    Shall we call the question on them, or just acknowledge them as withdrawn?

    Just for the record, Liberal amendments 2.3 and 2.4 have been withdrawn.

    They were withdrawn only because the first one was defeated.

    (Clause 11 agreed to)

    (On clause 12)

    For clause 12, we have a Liberal amendment here. It is Liberal amendment 3. I just want to note for the committee's interest that a vote in support of amendment L-3 would apply to amendments L-4 and L-5. An affirmative vote would basically eliminate the need for a vote on government amendments 4 and 5.

    Would you speak to Liberal amendment 3, Mr. Volpe?

    Thank you, Mr. Chair.

    This particular amendment tries to tie in a person who has a contractual relationship with the shipowner or the contractor, one or the other. We saw when the Canadian Bar Association and the marine liabilities organization came forward that this could be an improvement, in that if you have a claim, you can improve on it provided you can demonstrate that you have a contractual relationship with one or the other.

    If one accepts that premise, then this particular amendment does accomplish the tying of that relationship.

    Are there any comments?

    Go ahead, please, Mr. Jean.

    I'm just wondering if we, with Mr. Volpe's consent, can compare amendment G-4, since the government put forward G-4 as a proposal based on what the Canadian Bar Association and the Canadian Maritime Law Association said as well. I was wondering if the Department of Justice could give us an analysis, because they are all directly tied together. I think they're all there to do the same job, which is to improve the same clauses. That's clause 12, in essence.

    I'm wondering if Mr. Volpe would be prepared to do that, just as a matter of course, to make sure we get the best possible amendment. We all put forward the same idea of making amendments to that particular clause based upon the evidence we've heard.

    I don't mind hearing a comparison of one with the other.

    Mr. Gauthier, since you are the Department of Justice official here, would you mind doing an analysis of those clauses in relation to clause 12 and what we heard as evidence from the Canadian Maritime Law Association and the Canadian Bar Association?

     Thank you.

    Before you start, Mr. Gauthier, we're basically looking for a comparison of the two clauses and where one has strength or weakness.

    Yes, indeed. Thank you, Chair. I will certainly confine my comments to that. I may drift into some policy reasons on why one is one way and one is the other, of necessity, just to backfill.

    But in my understanding, as I look at both L-3 and G-4, starting with L-3, it of course picks up on that point made by some of the witnesses that there ought to be a contractual nexus, if I can put it that way, right across the board, universally, with these claims by suppliers and either the owner or the owner's representative. That is picked up in the first words that appear in L-3, as proposed by Mr. Volpe.

     That is absent, sir, in G-4. G-4 takes a different focus. It, too, recognizes that in the interests of transparency and to have perhaps a tighter lien, if I could put it that way, from a legal point of view, it picks up on the points that were also made by the witnesses, the industry witnesses, which was that the problem appeared to be with the provisions of two kinds of services: stevedoring and lighterage.

     It was explained to the committee that stevedoring is basically--I think it's well known--moving cargo on and off a ship. Lightering is the same thing, but it's from a ship that's tied at a buoy, for example. You “lighter” it, or take cargo off and bring it to shore or move it to another vessel on a transshipment. But it's the same breed of service, if I could put it that way.

    G-4 concentrates on that, so instead of putting the general exception of the contractual nexus into proposed subsection 139(2) as written, it chooses to put it in proposed subsection 139(2.1). That's difference number one.

     There is another difference, which perhaps Mr. Volpe would assist us with in telling us about the choice of words that he has indicated in L-3 in proposed paragraph 139(2)(a) where it says “relating to goods” etc. Now, there is no amendment to that, of course, in G-4, as there was none intended, but if you look at the original text, that is to say, proposed paragraph 139(2)(a) as we now have it in Bill C-7, the language is “in respect of goods”.

    First of all, I think there's a difference between something that relates to something, and something that's “in respect of”. That's my view. But in any event, I need to point out to the committee that proposed paragraphs 139(2)(a) and (b) very carefully pick up the language from paragraphs 22(2)(m) and (n) of the Federal Court Act, where what we call the necessaries, the mens provisions, are found, that is to say, the suppliers of goods, repairs, and vessels.

    Excuse me, Mr. Gauthier. What particular clause of the Federal Court Act were you referring to?

    Paragraphs 22(2)(m) and (n).

    Thank you.

    That's deliberate, because of course we're trying to talk about the same thing. So in order to avoid possible discrepancies and then not being able to rely on the existing jurisprudence under the Federal Court Act, we think, certainly from a Justice point of view, it would be a better thing to stay with the language we have in the Federal Court Act.

    Also, I draw your attention to proposed subsection 139(4), which actually refers to a provision of the Federal Court Act. I know you don't have it in front of you, but if you did, you would find that it refers to paragraphs 22(2)(m) and (n). So one would need to have the same language at least; I think it would be a salutary thing to have the same language.

    I actually do have the Federal Court Act with me. I brought it if Mr. Volpe...I don't know if Monsieur Laframboise would like a copy of it as well, but Mr. Volpe does have that particular section in front of him.

    Thank you, Mr. Jean.

    Where there is commonality between the two motions, of course, is that it fixes a drafting point. You will recall that at least one of the witnesses had indicated that they thought it would be better drafting if, in proposed paragraph 139(2)(a), one referred to goods supplied to “the” foreign vessel, as opposed to “a” foreign vessel. So there's commonality there between the two, L-3 and G-4.

    G-4 has one more saving provision, and it refers to a carve-out for section 251 of the Canada Shipping Act. That was latterly discovered. In the Canada Shipping Act there is already a provision dealing with the ability of a supplier of goods to a bare-boat charter--only to a bare-boat charter--and that there has to be a contractual nexus between the two. We think that it's necessary, in any form of proposed subsection 139(2.1).... I'll grant you L-3 doesn't deal with proposed subsection 139(2.1); we find that later in L-6. But while we're at it we can talk about it.

    There is that difference there. In order to ensure that the rights of the bare-boat charter are preserved--and these are already in the Canada Shipping Act, and there's no intention of doing away with it-- it's a matter of policy that the carve-out is made subject to. Otherwise there could be an interpretation that this particular right for bare-boat charters has somehow been impliedly repealed by this provision. It could give rise to that argument. So it's a pure legal point to try to tidy this up so as not to conflict with an existing provision of the Canada Shipping Act.

    I think those are my comments. I hope I haven't strayed beyond the comparison between L-3 and G-4.

    Thank you.

    I'd like to say it's clear, but....

    Monsieur Laframboise.

    Mr. Gauthier, correct me if I am wrong but, in my opinion, amendment L-3 introduces the infamous connection to the shipowner.

    A number of witnesses from the legal community said that there must be a connection with the shipowner. Before proposing this bill, I am sure that you considered that. I am not comfortable with this. It seems to me that the more we add to the legislation, the more complicated it becomes. I would like you to make my job easier.

    You undoubtedly analyzed the fact that there must be a direct nexus with the shipowner at all times and looked at which types of contracts with the owner would be involved. Why did you not go this route? Please enlighten me.

    Mr. Laframboise, we certainly looked at all the different ways of structuring the maritime lien, currently found Section 139.

    It was our view that, for all intents and purposes, in order to ensure that a supplier has the best possible protection, since he is providing the ship with goods and services, whether the ship is chartered or otherwise… In any case, we felt this was the best solution, to ensure that the maritime lien has enough scope that it maintains the connection to the ship and follows it subsequently, as I explained in our last presentation. This way, the scope of the lien is more effective. That is why the wording of Section 139 is the same as what you have here in the bill.

    That's great. Thank you.

    Mr. Volpe.

    Thank you, Mr. Chairman.

    I want to thank Mr. Gauthier for giving us that comparative explanation. I'm pleased, as well, that he did make it, because he's indicated to us, I think—with no facetiousness intended—that the lawyers decided to improve the bill on the basis of some of the expressions of concern expressed here. Our amendment accomplishes that objective. But for the purposes of greater clarity, it is written in the language that the justice department, through its research, ties in with the Federal Court.

    What I will do, to facilitate everything in this, is ask you to make a decision to go immediately to G-4 and I'll withdraw L-3.

     Okay. L-3 has been taken off the floor, which will also eliminate L-4 and L-5, and we'll go directly to G-4.

    Mr. Jean.

    Thank you. I move it, Mr. Chair.

    So a vote on G-4 will apply to G-5 as well.

    (Amendments G-4 and G-5 agreed to) [See Minutes of Proceedings]

    For the record, Mr. Chair, if I may, I really appreciate working with Mr. Volpe and seeing the unanimity of this particular committee.

    You're ruining my reputation.

    Well, your reputation is based upon hard work and getting good results, Mr. Volpe. So I do appreciate that, and I think Canadians appreciate it as well.

    Anyone else want to jump in? Shall we have a campfire song?

     (Clause 12 as amended agreed to)

    The Chair: Mr. Volpe.

    We still have L-6 to deal with to complete clause 12, right?

    No, actually, when we voted on G-4 and G-5, I suggested that the affirmative vote eliminates L-6 as well.

    Hon. Joseph Volpe: Oh, wonderful.

    The Chair: Thank you.

    (Clauses 12 to 24 inclusive agreed to)

    The Chair: Shall the title carry?

    Some hon. members: Agreed.

    The Chair: Shall the bill as amended carry?

    Some hon. members: Agreed.

    The Chair: Shall the chair report the bill as amended to the House?

     Some hon. members: Agreed.

    The Chair: Shall the committee order a reprint of the bill as amended for the use of the House at report stage?

    Some hon. members: Agreed.

    The Chair: Any further business?

    With that, then, I'll just advise the committee that on Tuesday, when we return, we will be moving into our study of high-speed rail. We will have a department briefing on high-speed rail.

    On Thursday we will be bringing forward witnesses on this issue. If you haven't submitted your list, I would ask that you do so. I think we can cover off the Thursday, but we need to move forward.

    Mr. Volpe.

    Mr. Chairman, I know the department has to come here and brief us on the initiation of our study, but as I recall in our discussions regarding high-speed rail, we did not close off definitively at Thursday. It was my understanding that if we required a little bit more time to hear witnesses, the committee would meet to make the decision on extension. We weren't definitively cutting off Thursday, and we weren't definitively moving beyond Thursday. So I just wanted to clarify that we were going to meet afterwards to see whether we had heard everybody we wanted to hear.

    Absolutely.

    Mr. Jean.

    I was just going to say I agree with Mr. Volpe. I think it might be necessary to hear some other witnesses, and if we can do that, then I think we should do it.

    And I can advise the committee that there have not only been a lot of names suggested, but many people have contacted us wishing to present on this specific issue.

    So with that, bonne fin de semaine.

     The meeting is adjourned.