Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 18 - Evidence
OTTAWA, Tuesday, November 27, 2001
The Standing Senate Committee on Transport and Communications met this day at 9:31 a.m. to examine Bill C-34, an Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts.
Senator Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: I wish to welcome you today within the framework of our study on Bill C-34, an Act to establish the Transportation Appeal Tribunal of Canada. Our meeting of last Wednesday gave us the opportunity to hear two very enlightening presentation, one from the Shipping Federation of Canada and the other one from the Civil Aviation Tribunal. The Shipping Federation restated, as you know, its concerns about the administrative penalties imposed to marine mode and about the tribunal process.
The Civil Aviation Tribunal allowed us to take advantage of its 15 years of expertise. Given that the proposed Transportation Appeal Tribunal of Canada would actually be an extension of the Civil Aviation Tribunal, it is going to encompass maritime and rail sectors - the information provided to us by that body certainly enlightened us a lot.
[English]
This morning we have two witnesses: the Canadian Maritime Law Association and the Railway Association of Canada. The Canadian Maritime Law Association raised concerns about administrative penalties and the tribunal process when we examined Bill C-14, the Canada Shipping Act, and we look forward to hearing their views on Bill C-34.
The Railway Association of Canada represents railways, large and small, across the country. It is the other transportation mode to which the administrative penalties and the appeal tribunal process will apply. We will also be interested to hear if they think the new regime will have particular benefits for their industry and whether they have lingering concerns.
This morning, I welcome Mr. William Moreira, Vice-President, Atlantic, of the Canadian Maritime Law Association; Mr. Don Morrison, President of the Canadian Shipowners Association; and Mr. Shane Foreman, Manager, Policy and Research, also from the Canadian Shipowners Association.
Mr. Donald Morrison, President, Canadian Shipowners Association, Canadian Marime Law Association: Honourable senators, our group may look familiar, as we appeared before the committee recently on Bill C-14 and we are back to speak to you this morning on Bill C-34. The Canadian Shipowners Association appears this morning in support of the Canadian Maritime Law Association. We have spent much time in front of this parliamentary standing committee discussing Bill C-34 andBill C-14. This morning, we would like to discuss the legal aspects of the process.
I will briefly describe the Canadian Shipowners Association. We represent the interests of the Canadian flag fleet of cargo carriers operating on the St. Lawrence, the Great Lakes waterway, the Eastern seaboard of Canada and the Arctic. We operate some 80 cargo vessels, made up of dry bulk carriers, tankers and container vessels. In 2000, we carried over 72 million tonnes of cargo, over half of which was destined for the United States. We represent, by tonnage, over 85 per cent of the Canadian flag fleet freight carriers and we employ the vast majority of Canadian masters and officers.
The proposed TATC, transportation appeal tribunal of Canada, and the administrative monetary penalty provisions of the Canada Shipping Act, 2001, recently endorsed by the Senate, could have a significant impact on our businesses, as its provisions are mostly applicable to Canadian maritime documents issued to our ships, masters, officers and other employees. In other words, the penalties for being Canadian and having to operate under the administrative monetary penalty system are stronger than if you are a foreign ship's officer.
I will not go into detail this morning. Many of the articles we wish to discuss are legal in nature and we have worked with our colleagues in the CMLA to develop their presentation. Suffice it to say that we have challenged the appeal tribunal approach from its inception. We opposed the amendments to the Canada Shipping Act, which were to replace the arbitrator court system with an appeal group, and we now have to accept the creation of the appeal tribunal. However, we challenge the process in three areas: rules of evidence, burden of proof and the remedial powers.
We supported the vast majority of changes in the new Canada Shipping Act, but with others in the industry, we challenge parts of the amendments to the act. We now appear in support of the CMLA, because the remaining challenges are legal in nature and are best expressed by our legal friends, who represent the complete maritime industry in this country in regard to maritime law. At this time, I think it would be appropriate for Mr. William Moreira of the Canadian Maritime Law Association to deal with those legal concerns.
Mr. William Moreira, Vice-President, Atlantic, Canadian Maritime Law Association: Honourable senators, if I may clarify one point: I see in the notice of today's meeting that my association is described as the "Canadian Maritime Lawyers Association." However, it is the Canadian Maritime Law Association, because our membership is broader than just lawyers. I guess that is a good thing.
We very much appreciate the opportunity to make a presentation this morning to this committee. For a variety of reasons, we did not have that opportunity at SCOTGO concerning Bill C-34. We thank you, honourable senators, for your time and interest in our position. I hope that committee members will have received a copy of a written submission that I forwarded to Mr. Patrice a week ago and which I wish to highlight this morning. My president, James Gould, apologizes that he could not be here today.
We are here to discuss a statute that will create an administrative tribunal. It is important to remind the committee that there is a continuum of administrative tribunals that exist under Canadian federal law. On one end of that continuum are those tribunals that make decisions purely technical or administrative in nature and in respect of which the rules of procedural fairness apply with relatively little vigour.
At the other end of the continuum are tribunals that affect people's rights. It is the CMLA's position that the proposed TATC is a tribunal at that end of the continuum. It affects rights in two important ways. First, it affects people's rights to do their work. Under the Canada Shipping Act, 2001, the minister has power to deny, to cancel or to suspend Canadian maritime documents, which are the licences for seafarers to go about their work. One purpose of the TATC will be to review such ministerial decisions.
Second, and more importantly, this tribunal affects the presumption of innocence to which all Canadians are entitled. I mentioned this in my written brief and I emphasize to you this morning that the work of this tribunal is primarily penal in nature. Proceedings before it will replace prosecutions before criminal courts at the discretion of the department. I submit that is an important aspect of the work of this proposed tribunal that should be kept in mind throughout your deliberations.
Finally, this tribunal is adjudicative in nature. Its function is to resolve disputes between persons who are subject to the Canada Shipping Act and other mode-specific regulatory legislation and the Minister of Transport. As the nature of the work that this tribunal does affects rights and resolves disputes, it must be seen as being at the other end of the continuum of administrative tribunals, in respect of which the requirements for fairness are applied most strongly and which, if not in appearance then at least in function, must be most like a court of law. In the position of the Canadian Maritime Law Association, that is the kind of tribunal that is before you in this bill.
Given that that is its nature, the CMLA looked at Bill C-34 and asked: Given the high degree-of-fairness requirement that applies to this kind of proceeding, and given what must be the "court like" nature of this body, where has this statute failed to set a high enough standard of fairness for that type of tribunal?
My association has identified three such areas, the first being subclause 15(1). As drafted, the legal and technical rules of evidence do not apply. The statute does not go on to say what, if any, rules of evidence apply. The conclusion to which we are compelled to come is that there are no rules of evidence applicable to proceedings before this tribunal. The position of the members of my association is that that is the antithesis of fairness. The rules of evidence must be fairly applied by an adjudicative and penal tribunal whose decisions affect people's rights. With all due respect to the drafters of the proposed legislation, that should be a self-evident proposition to Canadian lawyers and legislators. That is a particular practical problem in respect of the marine transportation mode.
When the Canada Shipping Act, 2001 comes into force, the department will have discretion, in respect of prescribed violations, on whether to prosecute the violator in court or to issue a notice of violation. The dispute then goes first to the review, and then the appeal stage of the transportation appeal tribunal of Canada. The department decides which way to go in a penal matter.
If the evidence is weak or inadmissible, or pure hearsay, as in the example we offer in our written submission, the minister has the power to avoid the court system entirely, to bring the penal proceeding by way of notice of violation, which in the event of dispute will end up in the TATC, and have the rules of evidence not apply. Honourable senators, in our respectful position, that is just not good enough and demands remedy through rewording of subclause 15(1) of the proposed statute such that the rules of evidence will apply equally before the TATC as before a court of law. In our submission, to provide otherwise gives the department a substantive advantage in penal proceedings for which there is neither a policy nor a fairness case to be made.
Honourable senators, in the sixth report of this committee dated October 18, 2001, concerning Bill C-14, which will be the Canada Shipping Act, 2001, you expressed your concern about whether persons subject to administrative penalties would have a right of appeal to the courts. I wish to draw your attention to clause 21 of Bill C-34, which provides for the second stage of proceedings before the TATC:
21. A decision of an appeal panel of the Tribunal is final and binding on the parties to the appeal.
As with all federal administrative tribunals and agencies, there remains a right to apply for review under subsection 18(1) of the Federal Court Act. However, that is not an appeal. The only remedial power that the Federal Court has is in section 18, where a review is to quash the order of the tribunal and to refer the matter back to the tribunal. It has no particular remedial power. In particular, the Federal Court has no power to review the severity of penalties that may be imposed, either by the minister or by the TATC.
Given the concern honourable senators expressed in connection with Bill C-14, I did want to highlight what my association sees as the narrow scope of potential judicial review of decisions of the transportation appeal tribunal of Canada, which is neither an appeal nor particularly helpful to an affected individual or licence holder.
In the brief, we refer also to subclause 15(5) of Bill C-34, which provides for a balance of probabilities or so-called "civil" burden of proof to apply in all tribunal proceedings. In the position of the members of my association, the burden on the minister in proceedings before the transportation appeal tribunal of Canada should be beyond reasonable doubt, a traditional criminal burden of proof.
As a lawyer, I acknowledge, and I am sure the lawyers on the committee will agree, that there are few cases the results of which turn on whether a civil or criminal burden of proof applies. Generally, the evidence is not on that fine an edge. It is with those few cases that are at the edge where I submit fairness concerns most seriously arise, and in respect of which one must be concerned not to provide to the Crown a substantive advantage in terms of the burden of proof of which the department can avail itself by choosing an administrative rather than a judicial enforcement proceeding.
Finally, senators, we express our concerns with clause 72, in particular the proposed new paragraphs 16.1(3) and 20.4(7) to the Canada Shipping Act, 2001. When one works through all of the negatives and exclusions in which those statutory provisions are expressed, one finds that even when an aggrieved person wins his proceeding before the transportation appeal tribunal of Canada, there are situations in which the tribunal will have no remedial power of its own and will be limited to referral of the matter back to the minister. That is in some cases, but not all.
I wanted to particularly bring to the attention of members of this committee the ministerial refusal to issue a Canadian maritime document on the grounds expressed inparagraph 16(4)(c) of the Canada Shipping Act, which is that the minister may refuse to grant a Canadian maritime document if he is of the opinion that the public interest, and in particular, the record of the applicant or of the principal of the applicant, warrant that action. Similar language exists in 20.4(1)(g)(ii) of the Canada Shipping Act, 2001, in respect of the minister's suspension or cancellation of a maritime document.
There is no remedial power vested in the tribunal if the subject matter before it is the minister's sanction of the Canadian maritime document by reason of "the record of the applicant." No one is too sure what those words mean, because of the vagueness and the potential scope for severe ministerial discretion on the basis expressed in that paragraph. Not only should there be a right of review by the tribunal, there should also be an opportunity for the tribunal to grant a real remedy if, in the case before it, they feel the minister has gone too far or failed to correctly apply that particular part of the substantive statute.
Similarly, honourable senators, paragraph 20(1)(f)(i) of the Canada Shipping Act, 2001, permits the minister to suspend or cancel a Canadian maritime document if, in the opinion of the minister, the holder of that document is incompetent or has committed an act of misconduct.
Again, those are vague concepts. Those are severe ministerial powers, and not only should a right of review by the tribunal exist, the right to obtain a remedy from the tribunal in those circumstances should also be provided for in the bill.
The absence of remedies available to the tribunal in the circumstances that I have just tried to summarize for you means that the minister is not bound by the work of the tribunal in those specific circumstances, and the lack of binding effect on the minister of the tribunal's decision is, in our submission, to make the apparent right of review empty and meaningless. If the tribunal exists, it must have real power.
Honourable senators, as Mr. Morrison has alluded to, we have debated at length with the department, policymakers and this committee in respect of the administrative penalty enforcement regime in the marine mode. We concede that in the Canada Shipping Act, 2001, an administrative sanction process will exist. It is not our purpose to continue that debate, which we concede we have lost. However, it is our very strong feeling that if the administrative enforcement regime must exist, then it must operate in a system that is fundamentally fair to all people to whom the proposed substantive legislation will apply. The transportation appeal tribunal of Canada must operate fairly and be constituted by statute in such a way that it can be expected to pass muster when challenges to its work come before the courts, as surely they will at some point, and it must be able to demonstrate that it applies, and is subject to, procedural and fairness standards appropriate to a tribunal at the extreme adjudicative-rights-affecting end of the continuum of administrative tribunals with which we are concerned.
Honourable senators, thank you for the opportunity to make this presentation and for your attention.
The Chairman: The ultimate goal of the bill is to improve compliance with safety regulations. Do you think the present level of compliance and resulting level of safety in the marine mode is adequate? If not, what do you recommend, or what did you recommend in the consultations you had on Bill C-34 with the department?
Mr. Moreira: The transportation tribunal committee of my association has been active not only in respect of this bill, but also the various iterations of what became Bill C-14 and what will become the Canada Shipping Act.
Through the consultation process, our committee was not convinced, either by Transport Canada or by its own industry membership, which includes enforcement people, that serious compliance deficiencies exist in the marine mode. We cannot say that we never break the rules. That would be an unsupportable statement. However, it the opinion of the members of our committee and association that the threat of pure judicial prosecution, as has existed until now in the current Canada Shipping Act, has resulted in a sufficiently high degree of compliance in the marine mode that there does not appear to be an enforcement or compliance problem.
Prosecutions are expensive and the prosecutor sometimes loses, but it was not the sense of the members of our committee, nor did Transport Canada present evidence, that compliance deficiencies in the marine mode required something other than a traditional judicial enforcement model be applied.
The evidence was always that the system works so well in air transportation, therefore it will work well in marine. Our position has always been that they are fixing a problem that does not exist.
Mr. Morrison: I do not have the statistics with me this morning, but we had them when we were initially discussing the proposed monetary penalty system and appeal tribunal approach. Certainly over the past 10 or 15 years, there has been no evidence to suggest that the Canadian domestic fleet required more direction or control in regard to obeying the law.
Our member companies and employees live, exist, work, are trained and possess Canadian marine documents. They cannot get away from that. They live and work here. Their money is here. If there were a problem trying to get control of foreign ships or masters or people offshore, we felt that there was perhaps another way to do it, without having to set out a net that also ensnared Canadian ship owners, masters and ships. Under Bill C-14 and Bill C-34, they are the ones affected the most.
Canadian masters, if they break the rules and are ultimately found guilty through the tribunal or some other system, actually lose their right to work in this country in their chosen marine field. Whereas, if you are not from this country, you may receive a fine, but there is no Canadian marine document to be withdrawn.
From the beginning, there was no compelling reason to apply a new system or approach when we felt the present court system was sufficient. We were not accused of breaking the law very often anyway, and we found that it would be very hard on the Canadian regime.
The Chairman: You suggest that the tribunal should have the same rules of evidence as a court and that the burden of proof must be beyond a reasonable doubt. If these suggestions were accepted, do you think the tribunal could remain non-legalistic, which is a quality that has led to its success?
Mr. Moreira: Yes, I do, and I say that for two reasons, honourable senators. First, the tribunal members are not judges; they are people from the transportation community. They are technically trained. They are the true peers of the people who are subject to the proposed proceedings before you. Second, one can mandate the application of the rules of evidence, to use that example, or of a criminal burden of proof, without having to necessarily engage in all of the trappings of a court. One does not need to appear with a lawyer. One does not need lengthy speeches. One does not need voir dire proceedings to determine the admissibility of evidence. One needs certain basic and substantive standards that the tribunal will be required to apply. In our submission, the rules of evidence are such a standard. In the absence of that standard, there is no protection for the individuals or companies before the tribunal that their rights will be respected.
One can have clear, well-understood and fundamentally standard substantive rules without necessarily making the process unduly time-consuming, formal or intimidating, either for the tribunal or for the people who will appear before it.
Senator Oliver: I would like to extend a warm welcome to Mr. Moreira and say that he, like Mr. Gould before him on a previous bill, has made an excellent presentation. I congratulate you both for presenting several legal issues that give rise to much thought.
I would like to begin where you did, with the distinction you drew between your association and lawyers. At our last hearing, we had the executive director of the Civil Aviation Tribunal before us. I do not know if you have had a chance to read that evidence.
Mr. Moreira: Yes, I have.
Senator Oliver: We were asking about some of the ways in which the procedures before her and her other officials take place. One thing that became evident is that you do not have to be a lawyer to appear before the tribunal, which is good. They want to simplify the proceedings. That means a person who has been charged or feels aggrieved does not have to go through the expense of retaining a lawyer in order to get their matter before the tribunal. If we were to have the strict rules of evidence that you are advocating, it would be unfair to individuals not trained as lawyers who wished to appear themselves before the tribunal.
It seems to me there is nothing unusual about that. As you said in your opening remarks, there are many types of tribunals. For instance, individuals can appear before the Canada Pension Appeals Tribunal. Like this proposed tribunal, they do not have strict rules of evidence that they have to work with. There are appeals to the Federal Court, as there are here, and that system seems to be working well. If rules of natural justice are being broken, there are appeals. I do not see why you must insist upon strict rules of evidence for this tribunal, because based on the evidence we have heard, and on the operations of the Civil Aviation Tribunal, it works quite well.
Mr. Moreira: If I may digress, I have not had the pleasure of appearing at the Civil Aviation Tribunal. I asked my brother-in-law, who is an Air Canada pilot, what was his opinion of the Civil Aviation Tribunal. His reply was that he had no opinion of the Civil Aviation Tribunal and hoped never to form one. That is an aside.
The distinction between this tribunal and the pension appeals tribunal is the penal character of the work of the former, and as I said, the fact that the department has a choice when it discovers what it believes is a violation - shall we prosecute this person or shall we issue a notice of violation, and if there is a dispute, bring it to the transportation tribunal?
Senator Oliver: In a number of provincial statutes, there is discretion for the Crown on whether to proceed by indictable offence or summary offence. There is nothing new about giving discretion to the Crown.
Mr. Moreira: Yes, but in either of those situations, the rules of evidence at least would be the same. The procedures are more complex. One can argue that the degree of protection is higher in an indictable proceeding because of preliminary inquiries and so on, but the fundamental rules of fairness equally apply to those proceedings. What makes this tribunal in all respects unusual is its penal purpose. If we have a tribunal the purpose of which is to enforce the law and to punish violations; that would bring it, in our submission, into a separate category of appeal tribunal.
My memory of the testimony before you from CAT was that they provide for evidence issues in their own rules, the rules that the tribunal adopts for itself. I have no criticism of that. Our concern is that - as we say should be the case - if one wants to ensure that the rules of fairness are observed, if they were mandated in a statute to take the rules of evidence, by way of example, a failure to do so on the tribunal's part would provide a real remedy on judicial review under the Federal Court Act. That is the distinction that we see between a statutory mandate for the rules of evidence, even if the substance is the same, and one that exists only by way of the adoption of rules of procedure.
Senator Oliver: There are presently six matters before the Federal Court flowing from that, so that appeal system does appear to work. She also said that they are moving much more towards modern remedies of resolving disputes - ADR methods such as mediation and so on. That is another reason why we should not be bound strictly to the formal rules of evidence. Do you have a comment on that?
Mr. Moreira: ADR is obviously desirable. It hopefully will work well in marine mode enforcement in whatever form.
Senator Oliver: Can you think of any reason why it would not?
Mr. Moreira: No, I cannot. The tribunal, like the court, should be there as an ultimate resolver of disputes in the event that attempts at settlement fail. Whatever expedites that and makes it less expensive is all to the good and should be supported.
However, when you reach the dispute stage, the matter must be fairly adjudicated and resolved. That is the stage in the process at which our concerns arise and to which we are trying to express ourselves. If you must have an adversarial process and rules to govern that process, you ask: What should those rules be? Notwithstanding what we understand, and what I believe the committee understands, has been a satisfactory experience with the aviation mode, we say those rules should include the rules of evidence. The alternative of zero rules of evidence, which is what we now have - at least on the face of the statute - is not good enough, in our position.
Senator Oliver: I would like to ask you a constitutional question, if I may. Do you have any concerns about this statute in terms of the separation of powers? By that I mean the distinction between the powers of the executive branch, the minister and cabinet, and the judicial branch? Do you feel that any of the separation of powers rules is being infringed upon in this statute? Do you have any concerns about that?
Mr. Moreira: It is not a question that had occurred to me, Senator Oliver.
I suppose one would not rule out the possibility that the facts of a given case could be so extreme that one could argue the resolution of the problem belongs to the judiciary, even though it arises in a transportation context. Whether the hypothetical existence of such a situation would create a constitutional concern as to the validity of this proposed legislation, it would take some work on a lawyer's part to come up with that. Mr. Morrison may have a view on that.
Senator Callbeck: You mentioned that your association is much broader than lawyers. Who are members of your association besides lawyers?
Mr. Moreira: We have two categories of membership. Constituent membership covers both corporate members and individual members like me. Constituent membership covers Mr. Morrison's association, the Canadian Shipowners Association. Other constituent members are firms in the marine industry or associations of firms - it is unfair to call them interest groups, but I think they tend to be characterized as such - people representing the interests of various sectors of industry.
Our constituent membership is diverse. It also includes the Shipping Federation of Canada, who appeared here last week; the Canadian Bar Association; and the Canadian Bankers Association. There are 19 groups, but I am at a loss to come up with more than 5. Those are the kind of entities that hold constituent membership in the CMLA.
The majority of other members, of which there are about 300, are practising lawyers like me. Others are academics, government officials, insurance people, ship suppliers - the whole range of individuals who either work in or have an interest in "maritime law."
I put maritime law in quotes because it includes not only the marine transportation industry, but also, for example, the fishing industry. We are evolving to the stage where we have representatives of the offshore oil and gas industry becoming active in our association. Anyone with an interest in marine affairs tends to find some outlet for his or her interest in the Canadian Maritime Law Association.
Senator Callbeck: You mentioned the shipping federation. Did you say it is a member?
Mr. Moreira: It is a constituent member, yes.
Senator Callbeck: One of the things that they brought up last week was that the marine industry has the highest administrative fines. Is that a concern? What do you feel about penalties? Do you have feel there should be consistency across the board in the three modes of transportation, or are you happy with the way it is?
Mr. Morrison: Certainly we did bring that forward when we were before you on Bill C-14, and there is a question as to the level of fines when you look at, not the ones that were necessarily before the appeal tribunal, but the levels of fines in the Canada Shipping Act, Bill C-14, which are higher than in the other modes. The ones that would be reviewed by the appeal tribunal are also generally higher.
Senator Oliver's question about the judiciary and the executive did get me thinking about one other thing. One of the reasons that you are seeing the reaction from the shipping federation and the Canadian Shipowners Association is that this process is saying to our industry that we will now be, at the end of the day, subject to examination by another government agency. However we describe the transportation appeal tribunal, it will be set up and somewhat governed and paid for by "government," if I can use that word in quotes, as opposed to the present process, where we can take our chances in front of courts of law. The reaction that you are seeing from us, and to some degree from the CMLA, in terms of trying to tighten up what the tribunal is doing and how it will carry out its work, is saying that if it is to be done by government, we want more rules around it than we see. That is because we deal with many government agencies on a daily basis, whether it is the coast guard, pilotage authorities, or organizations such as the St. Lawrence Seaway Management Corporation. Our relationships with most, if not all, are usually quite good. There are times, though, when it boils down to how does an industry group feel and how does a government group feel about a certain situation. Without going into detail, there are circumstances that we feel require perhaps more examination than just be being re-examined by another government-type agency.
When you hear us asking for less discretion on the part of the tribunals, even though we are all familiar with the provincial approach to mediation and arbitration in certain kinds of disputes - and we understand modern management techniques of dispute resolution - this goes further to some degree. Mr. Moreira mentioned that we are dealing with personal penalties here. We are dealing with people's livelihoods, with people's lives, positions and jobs, and we are representing them, although not legally. We are trying to do everything we can to ensure that, at the end of the day, they are protected as much as possible.
I wanted to make a follow-up comment because it is a good question, and I had not looked at it that way, but we have looked at in the sense of government versus industry and how we get an outside, objective view.
Mr. Moreira: As regards the levels of fines and the amounts of administrative penalties to which human beings are exposed, my understanding is they are expected to be significantly higher, even five-fold higher, in the marine mode than in the civil aviation mode. We do not know that for sure because the amounts of monetary penalties are to be prescribed in regulations under the Canada Shipping Act, and I, at least, have not seen the regulations yet.
As the shipping federation said to you last week, one is hesitant to accept the argument that the civil aviation tribunal works well, therefore the TATC will work equally well without the kind of rules that we are proposing, because there is a lot more at stake for individuals, at least in the marine modes in the TATC. When one gets into the penalties to which commercial operators are exposed, yes, there is a high degree of differentiation. As we said to this committee and to others at the time in the context of Bill C-14, these maximum fines are way too high, but that is driven, to a degree, by the economics of the industry, which are different in shipping from aviation. One needs to recognize the legitimacy of some differentiation, because what can be an excessive penalty to one industry can be a cost of doing business in another and one does not want to fall into that trap.
Senator Callbeck: I want to follow up on something Senator Oliver talked about when he mentioned the Civil Aviation Tribunal and the fact it does not use the same rules of evidence that have been in existence for 15 years. We were told that really did not create any problem. The answer was that with the marine mode, the department has a choice. It is extended to the tribunal and to the courts. Can it not do that in aviation?
Mr. Moreira: It is my understanding that it can, although I have never read the Aeronautics Act to check that detail.
Senator Callbeck: Is that consistent across all modes?
Mr. Moreira: I do not know the answer to that, but I would be very surprised if there were no provision for prosecution in the Aeronautics Act.
Senator Spivak: The questions concentrated on the rules of evidence, but you also mentioned the ministerial discretion and the fact that there is a right of review but an absence of remedy.
Mr. Moreira: In certain circumstances, yes.
Senator Spivak: How important do you think that is? Do you think it is important enough to make amendments necessary? Do you have suggested amendments for us?
Mr. Moreira: If we did not think it was important enough to propose an amendment we would not have raised it with you. In the written submission, my association proposed amendments to some clauses.
Senator Spivak: You do have these amendments? I have not reviewed the material.
Mr. Moreira: That is okay. They are easy to miss because they are only a line each. However, if you cannot get a remedy, senator, then why bother? We are creating, with all respect, an illusory right of review, because in these circumstances, all the tribunal would have power to do is to say to the minister, "Would you mind very much taking another look at the decision you have already made?"
Senator Spivak: Ministerial discretion is getting broader and broader in much of the proposed legislation that is brought before us, instead of things being spelled out. However, you have recommended amendments. The other thing I did not quite understand is when you spoke of instances where there is appeal to the courts, it is in fact a review, and not an appeal.
Mr. Moreira: That is correct.
The remedies that the Federal Court can give under a sublause 18.1 review are traditional administrative law remedies such as certiorari, mandamus and declaratory relief. The Federal Court generally does not have the power to substitute its opinion for that of the tribunal whose work is being reviewed. The Federal Court may only say either that there is no basis on which criticize the tribunal, or that the tribunal made this or that mistake. Generally, it must be a pretty serious mistake, one that involves jurisdiction or the failure to observe natural justice. In that manner, the power of the court is limited to referring the matter back to the tribunal for reconsideration, bearing in mind what the problem was in the first instance.
Senator Spivak: Given that the rules of evidence do not apply here, and I understand there is a pretty good case for that, as Senator Oliver has suggested, would it not be wise to look at the appeals in the remedy process? That would put it into another forum that would make up for it being a more informal, administrative tribunal situation. Do you know what I am saying?
Mr. Moreira: I understand what you are saying. However, I am reluctant to agree with what I think is your proposition, that one should ultimately go to the Federal Court to obtain a remedy.
Senator Spivak: That would only occur in cases where there is strong disagreement. We are not talking about the vast majority of cases. You are talking about instances where your client might feel there was a strong alienation of natural justice.
Mr. Moreira: I understood your question to be: Should one not invest the power in the court as opposed to a tribunal, and I say no.
Senator Spivak: Would that not strengthen the proposed legislation?
Mr. Moreira: In my submission, it would. However, for practical and expeditious purposes, one would want to see the remedy equally available to the tribunal. Thus, if there was to be justice done, it could be done immediately and inexpensively.
Senator Spivak: You are talking about correcting that balance?
Mr. Moreira: That would certainly be our position, yes.
The Chairman: I thank the witnesses for appearing before our committee.
Our next witnesses are from the Railways Association of Canada, Mr. Chris Jones and Mr. Gérald Gauthier.
Mr. Chris Jones, Director, Federal-Provincial Government Liaison, Railway Association of Canada: Honourable senators, we appreciate the opportunity to be here to relay our views on Bill C-34.
Competing railways set up the Railways Association of Canada in 1917 to coordinate the war effort. We were originally based in Montreal. We moved to Ottawa only in the last year.
The RAC's objectives are to promote the commercial viability and efficient operations of the industry, to provide railway information to the public, government and industry, and to coordinate rule-making and regulatory affairs for the industry.
At present, the RAC consists of 56 members representing virtually all railways in Canada, including the Class 1's, which are CN and CP; a new branch of short line railways; intercity railways; commuter railways such as the Ottawa O-Train; and tourist and excursion operators.
Government deregulation since 1987 has led to the creation of approximately 40 new short-line and regional railways in Canada. The industry has been enjoying a renaissance of late.
Rail safety trends have continuously improved since the industry was given more responsibility under the Railway Safety Act of 1989. At present, according to the Transportation Safety Board, rail is the safest mode of surface transportation.
Main line derailments have been substantially reduced. In 2000, Canada's railways had their best ever overall performance, according to the TSB. Canada's railways were involved in 13.3 accidents per million train miles that year, down from 14.4 in 1999. Ninety-five per cent of these accidents involved highway rail-crossing incursions, collisions and trespasses, over which the locomotive engineers have little control.
Rail safety is highly regulated in Canada. This contrasts favourably with other surface modes, at least at the federal level. Canadian railways are proposing new hours of work and rest rules that will mandate the use of fatigue management plans. The Department of Transport is reviewing those at the moment.
In 1986, the industry established "Direction 2006," which is a public-private initiative uniting the RAC, Operation Lifesaver - that has been around since the early 1980s - Transport Canada, provincial governments and others, and setting a goal of reducing rail trespassing fatalities and injuries by another 50 per cent by the year 2006.
In March 2001, the railways companies established safety management systems that mandate them to demonstrate their commitment to safety in a concrete and visible manner to employees, customers and the public, although these regulations do not replace any existing rules, regulations or standards.
Mr. Gérald Gauthier, Director, Industry Liaison, Railway Association of Canada: Honourable senators, we have a few comments to make on this proposed legislation. Overall, the RAC supports the basic principle of the transportation tribunal, which is to provide access to an informal, expedient and economical forum to deal with disputable safety orders and directives.
We commend the idea of further review of decisions by a quasi-judicial body staffed by people who embody independence, expertise in the relevant transportation modes, fairness and commitment to natural justice. The Railway Association of Canada was pleased to be consulted on this process.
Our first comment is that a tribunal member should be empowered to alter a decision made by a safety inspector under section 31 of the Railway Safety Act or by the minister under the same act. Under the bill as crafted, the member can only confirm the decision or refer it to the minister for further consideration. The reason for the suggestion is very simple: The tribunal members enjoy the benefits of hearing from witnesses and reviewing written submissions.
Our second comment is inspired by the same considerations. The three-member appeal panel should be permitted to alter or revoke decisions under appeal.
Our third comment is that stay of orders should be allowed pending review or appeal under the following conditions. First, the railway should ask for a stay of orders. The railway must establish that there is no threat to railway safety. The stay should be governed by interim directions from the panel or the members. Finally, the role of the transportation appeal tribunal should be extended to cover emergency directives under section 33 of the Railway Safety Act. These are the same issues as those raised under section 31.
In conclusion, the Railway Association of Canada supports the proposed legislation as a much-improved process for the adjudication of disputes concerning safety orders and directives. It ensures that all modes will have recourse to an independent review body to appeal orders and directives. It is a big step in the right direction, but the association would have preferred that the transportation appeal tribunal be furnished with enhanced jurisdiction and powers in the areas mentioned above. Having said this, the association would like to emphasize that it does not expect railways to have recourse to this mechanism on more than an occasional basis.
I will be happy to answer any questions you may have.
The Chairman: Other witnesses have told us that there is a fear of possible abuse of power by safety inspectors in the field issuing unjustified penalties that would not be adequately reconsidered later because the appeal body is an administrative tribunal and not a court of law. Is there any concern about this in the rail industry?
Mr. Gauthier: When you look at the provisions of the bill, the orders are concerned mostly with the operation and the maintenance of the railways and very little with penalties in the rail industry. Nonetheless, some orders could have very important consequences for the railways. For example, if an inspector ordered a railway to reduce the speed of movement, which is time-sensitive because the commodities have to be delivered to the port within a certain window, the financial consequences could be terrible. This is why we feel there should be a body empowered to listen to the witnesses, review the evidence and make a final decision. That is not exactly what is being proposed here, because the only thing the tribunal can do is to confirm the decision or send it back to the minister. In that sense, we are concerned. Otherwise, we feel this is the proper body to review decisions made by the minister or by an inspector.
The Chairman: Is there a significant difference in views among the membership on the regime being introduced in the bill? For example, do the two largest railways have a different view from the new short-line railways?
Mr. Gauthier: On this specific bill, there are no differences. That is why the RAC has appeared before you. Those governed by this proposed legislation are mostly the Class 1 trains, but also the short lines that are federally regulated. Within the RAC, we have a mechanism by which all of our members are consulted on a bill such as this one. We went through that process. We are quite at ease in saying there are no differing views.
Senator Oliver: My question relates to two almost contradictory points that you made. You seem quite happy about the fact that you were widely consulted by the department during the drafting of this proposed legislation; you are in agreement with virtually everything they have done; and you also said at the end that you do not intend to have recourse to this tribunal except on the rarest of occasions.
On the other hand, your substantive argument seems to be that, if a matter does come before it, surely the panel should be entitled to make a decision after having read all the evidence and heard from the witnesses. Did you not raise that with the department? If you had this cooperation, why is something that fundamental not included in the bill?
Mr. Gauthier: I do not know. We were consulted and we made recommendations to the department on previous drafts. One of our recommendations was accepted. Initially, the tribunal was not empowered to review an order by the minister on the safety management system. We made a recommendation to Transport Canada that it should be covered, and that was accepted.
On the other hand, on the question of the tribunal having the power to make a final decision and to change the decision of the minister or of a member, unfortunately, the people working on this bill at Transport Canada did not agree with us.
To go back to your comment, that is not to say that we disagree with the bill totally; it is a big step in the right direction. If I said that we do not expect the railways to use the tribunal extensively, it is probably because we currently feel that when the inspectors and the minister apply the Railway Safety Act, they tend to act carefully and not to issue orders without proper consideration of the facts. However, if they were to issue an order that we deemed disputable, we would certainly use these new provisions.
Senator Oliver: Under the bill before us, the tribunal members will not have the power to alter or revoke decisions. Do you think this might mean that there will be a long period of time before there is a decision, or that there may be additional costs involved? In your opinion, what are some of the other pitfalls that might occur as a result of this oversight on the part of the department?
Mr. Gauthier: We hope that the minister, when he receives a referral from the tribunal, will say that he has reviewed the evidence and cannot confirm the decision made by the inspector or the tribunal, and that for the reasons mentioned in the decision, it should be reconsidered. We hope that the minister will take this into consideration and react quickly.
Maybe we are just being candid, but we thought that the minister would not set up the tribunal just for our sake, and that he would probably, in most cases, accept the decision of the tribunal, but we retain the prerogative of accepting it or not. We might be wrong, but at this stage of the process, that is our assessment.
Senator Oliver: Mr. Moreira suggested, and I agree with him, that when you appear before most appellate tribunals, the very first thing they say is that they do not have the power to substitute their own view for that of the people who heard the witnesses and could test their credibility, because that is not their job. Here, the minister, who does not see or hear the witnesses and test their credibility, will have the final say. Did you not raise that when you were conducting your negotiations?
Mr. Gauthier: Yes, but we were not successful.
Senator Callbeck: When you say, in your first point, that tribunal members should be empowered to alter a decision taken by a railway safety inspector under clause 31, is that in this bill here? You have "RSA" in brackets.
Mr. Gauthier: Section 31 is in the Railway Safety Act, and the power given to the member of the tribunal is under clause 67 of the bill to which you refer. It is clause 67 of the bill that talks about the power to confirm a decision made by an inspector under section 31. Am I answering your question?
Senator Callbeck: Yes.
The Chairman: The railway industry is often regarded, probably wrongly, as being old-fashioned and reluctant to change, and you probably have a 120-year tradition of safety regulations by the federal government that included the court system.
Why are you open to that change, to a new regime of administrative penalties and an appeal tribunal? Do you see any benefit for the railway industry?
Mr. Gauthier: It is probably true that the railway industry is perceived as being very traditional. It is an industry, after all, that is pretty old, but at the same time, it is getting younger with age.
Of course, this may not be the best outcome, as the people appearing before us mentioned. There are things that could be improved, but we thought that this was certainly a step in the right direction, giving us an opportunity as an industry to make our case on a specific matter and have witnesses and produce evidence. We can ensure that someone who is totally - and perhaps I should not use that word because it might convey the wrong message - impartial, with expertise, et cetera, and different from the minister, would be in a position to listen to the facts and make a ruling. The ruling could either confirm the decision or tell the minister that, for various reasons, we do not agree with the decision that has been made. For us, that is a big step.
I would like it to go further, as we mentioned earlier, but at this stage, we have concluded that that was probably the best we could get.
Senator Spivak: Madam Chair, this is not related to the act, but you raise a question in saying that the railway is perceived to be old-fashioned. In fact, I was intrigued with the proposition that I believe the president of CNR made that the border crossings could be greatly enhanced with greater use of rail because it is one track, easier to inspect and, I presume, safer than the long truck routes. I wonder how the witness reacts to that suggestion?
Mr. Jones: We feel that the railway industry emerged quite well out of the events of September 11, inasmuch as very few of our trains were delayed at the border. There are certain inherent advantages to our mode. We run on a dedicated, controlled corridor, we have our own police force, and our train crews are well-known to the customs and inspection officials at the border. You are talking about a train pulling 100 cars. There is a manifest and there are interviews with the conductors, whereas clearing100 trucks is a much longer process that explains the delays experienced by the trucking industry.
Mr. Tellier's suggestions are sensible. We believe that our high-speed intermodal services that run into the States would be an improvement over the current situation, in that where there is some security concern, those trains are hauled over to a siding at the border, dismantled, and the suspect car pulled out and examined. That is unhelpful, and these security checks should take place at point of origin or point of destination.
Senator Spivak: Are the governmental authorities seriously considering this whole idea of transferring more cross-border traffic to rail?
Mr. Jones: I believe so. One of our concerns is that current tax policies at the federal government level hinder the role that rail might play. It does not play the full role that it could. We pay a higher tax burden compared to other modes.
Senator Spivak: We are very aware of that situation.
Mr. Jones: We are aware that we could be playing a bigger role than at present, should we get changes in this next budget.
The Chairman: Thank you for your presentations, Mr. Gauthier and Mr. Jones.
Is it agreed that the committee move to clause-by-clause consideration of Bill C-34, or would honourable senators prefer to wait until tomorrow night?
Hon. Senators: Agreed.
The Chairman: Okay. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 2 to 22 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 23 to 32 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 33 to 45 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 46 to 63 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 64 to 70 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 71 to 73 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: We will continue in camera to discuss possible observations to append to this bill. Is that agreed, honourable senators?
Hon. Senators: Agreed.
The committee continued in camera.