Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 17 - Evidence, November 20, 2001

OTTAWA, Tuesday, November 20, 2001

The Standing Senate Committee on Transport and Communications met this day at 9:34 a.m. to give consideration 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: Senators Gill and Eyton supported Bill C-34 when it was read for the second time in the Senate. Senator Gill, with his remarks, gave a good summary of the content of the project. Senator Eyton raised a few questions to which the committee would like to give satisfactory answers at the meetings held on this bill.

The bill is difficult to understand because two thirds of it are made up of amendments to several other transportation acts. It is easy to get confused. Nonetheless, its objective is very simple. Having observed the excellent results of the measures implemented since 1986 to enforce security regulations, the government decided to apply to the same measures in the railway and marine sectors.

The government is now imposing administrative sanctions, for instance it suspends the licences of those who breach the regulations. Previously, these offenders were prosecuted in court. The department states that compliance with the regulations has improved since the implementation of this new kind of sanction and since court action was abandoned. However, we should envisage the possibility of cases where a pilot or an air carrier deems the sanction to be unjust, and this is why we propose to create a Transportation Appeal Tribunal.

[English]

In brief, Bill C-34 does two basic things: it establishes an appeal tribunal for all modes, and it institutes administrative penalties in the rail and marine modes. Most, but not all, groups or stakeholders are in favour of these changes.

There was such agreement that it went through the House of Commons and the Commons committee very fast - perhaps too fast. That is what some think. That is what I think. We will have to take a bit more time to ensure that all concerns have been properly addressed.

We will start our review of the bill today by hearing from the government department that is proposing these interesting changes, Transport Canada.

[Translation]

We now welcome Mr. Gaétan Boucher, Director General, Safety Programs, Strategies and Coordination.

[English]

Sherril Besser is senior counsel, legal services; and Kimberly Ellard is the director of the project.

Please proceed.

Mr. Gaétan Boucher, Director General, Safety Programs, Strategies and Coordination, Transport Canada: Madam Chairman, I would like to begin by conveying the regrets of the minister, Mr. Collenette, who is unable to be here today. I am pleased, however, to have the opportunity to appear on behalf of the minister before the Standing Senate Committee on Transport and Communications for its study of Bill C-34.

I propose outlining some of the key elements of the legislation, the content of which is very technical in nature. I believe this legislation contributes to Transport Canada's ongoing commitment to reforming Canada's transportation legislation and enhancing the safety and security of the national transportation system.

The legislation, which was given second reading in the Senate on November 6, has two key components. The first is the establishment of the transportation appeal tribunal of Canada. The second is the outlining of the tribunal's jurisdiction and decision making authorities by way of amendments to six pieces of transportation legislation, namely, the Aeronautics Act, the Railway Safety Act, the Canada Shipping Act, the Canada Transportation Act, the Marine Transportation Security Act, and Bill C-14, the Canada Shipping Act, 2001.

[Translation]

The Transportation Appeal Tribunal of Canada (TATC) is modelled upon the Civil Aviation Tribunal (CAT), an independent, quasi-judicial body established in 1986 to review enforcement decisions take under the Aeronautics Act.

The CAT has performed to the satisfaction of both the department and the aviation sector for over 15 years and is considered an example of a regulatory "best practice."

The TATC is a transformation of the Civil Aviation Tribunal into a multi-modal transportation tribunal which would provide the rail, marine and aviation sectors with access to an independent review process. The TATC would operate on the same principles as those of the CAT: independence, expertise, expediency, affordability, accessibility, fairness and transparency. The TATC Act deals with the "machinery" aspects of establishing the tribunal, such as membership appointment, duties and qualifications, and the review and appeal hearing process. The jurisdiction of the tribunal, in terms of the types of administrative enforcement decisions it could review, is set out in the amendments to the various transportation acts.

[English]

The tribunal could review six types of administrative decisions. They are: first, administrative monetary penalties that can be found under the Aeronautics Act, Canada Transportation Act, the Marine Transportation Security Act and Bill C-14, the Canada Shipping Act, 2001. The second includes a variety of licensing decisions under the Aeronautics Act, the Canada Shipping Act and Bill C-14, the Canada Shipping Act, 2001. The third type deals with refusals to remove enforcement notations under the Aeronautics Act, the Marine Transportation Security Act and Bill C-14, the Canada Shipping Act, 2001. The fourth covers decisions surrounding security screening officer designations that can be found under the Aeronautics Act, the Marine Transportation Security Act and the Railway Safety Act. Fifth, notices of default in relation to assurances of compliance under the Marine Transportation Security Act and Bill C-14, the Canada Shipping Act, 2001. Finally, the tribunal could consider orders under the Railway Safety Act.

[Translation]

The powers of the tribunal would depend on the nature of the administrative decision which is being reviewed. Where the enforcement action is substantially "punitive" in nature, the tribunal would be able to substitute its decision for that of the department. An example would be the review by the TATC of an administrative monetary penalty.

However, where the enforcement action has more to do with competencies, qualifications to hold licences, public interest or other safety considerations, the tribunal would generally be authorized only to confirm the department's decision or refer the matter back for reconsideration.

[English]

Madam Chair, consultations on the creation of this tribunal involved a wide range of marine, aviation and rail stakeholders. As was done in the case of the Bill C-14, the Canada Shipping Act, 2001, Transport Canada obtained approval to consult on a draft of this legislation. I believe that the comments received as a result of consultations improved the quality of this bill and showed the department's commitment to greater citizen engagement.

To conclude, the vast majority of infractions under the various pieces of transportation legislation are not criminal in nature. I believe that this bill goes a long way in modernizing the way Transport Canada addresses instances of less serious breaches of regulations.

This legislation facilitates the use of a broad spectrum of administrative enforcement actions by the department, while providing an independent review mechanism to those subject to these administrative actions. It is another example of this government's commitment to "getting government right."

We look forward to responding to any questions the committee may have. My colleagues and I are at your disposal in this regard.

The Chairman: The establishment of the new tribunal appears to be a positive initiative that most people support. Do you see any potential or future areas of improvement of which we should be aware?

Mr. Boucher: Through our consultations, some people suggested that we should give more authority to the tribunal. There might be the possibility in the future that some people might argue again that we should give more authority to the tribunal in some areas.

I am not sure if this directly answers your question, but under other transportation acts, if there was a decision to introduce new enforcement tools, or if there were some enforcement decisions, they may want to use the tribunal to address some of those decisions. The way the legislation is structured would allow that possibility.

[Translation]

The Chairman: It would also be an advantage if the Transportation Appeal Tribunal intervened in the highway transportation sector. Given the fact that interprovincial highway transportation is a matter of federal jurisdiction - a jurisdiction that it nonetheless delegated to the provinces - and the high number of casualties in highway accidents, has the department begun to consider administrative sanctions for highway transportation?

Mr. Boucher: The administration of the Motor Vehicle Transport Act was delegated mainly to the provinces. Currently, we do not have - since Bill S-3 was approved here with amendments - any provisions whereby the federal government could impose some sanctions on certain areas in highway transportation, especially as concerns trucks. Thus, such measures are not being envisaged, and consequently, such measures would not come up before the courts.

[English]

Senator Oliver: This is in fact an important piece of legislation. I am glad that our chair said that we will take our time to ensure we get it right.

I am from Atlantic Canada. I always look at legislation to see how it will affect people from my area. I began by looking at who sits on the Civil Aviation Tribunal, where they are from and how my area of the country is represented. There is no one on the Civil Aviation Tribunal from Newfoundland, Nova Scotia or Prince Edward Island. There is one person on the tribunal from New Brunswick and a host of people from the province of Ontario.

In my opinion, that is not adequate. I say that because we have a number of transportation matters in relation to aviation, ports and so on in Atlantic Canada and in and out of Halifax in particular.

Clause 3(1) of the bill states "The Governor in Council shall appoint as members of the Tribunal persons who, in the opinion of the Governor in Council, collectively have expertise..."

Could you tell us a little more about how this process will take place? Is it possible, for instance, that before they are confirmed they could come before a committee such as this? This committee would have a chance to vet it - not to confirm it as United States confirmation hearings do - but at least to ensure that there is some balance between the East Coast, the West Coast and the central part of the country.

Mr. Boucher: As I understand the way the process works, those are Governor in Council type of appointees. There is a process whereby interested candidates can indicate their interest. I do not know if this is something that a committee like this can consider. However, there is a good process in place for that type of nomination. As the provisions of clauses 12 and 13 state, we want to ensure there is modal representation and expertise to deal with the case put before the tribunal. As to a process for a committee like this to consider candidates, I do not know if that has been done in the past. However, I understand there is a process in place that is followed.

We are now expanding that to the marine and rail modes. The intention is clear that we will have representation from the Maritime provinces, especially on the marine side. It is interesting you raise that point because during our consultations some people asked questions about that. I understand that some people may have already submitted their names through the regular process.

Senator Oliver: You said something that I found interesting. You said that one of powers is the decision to refer the matter back for reconsideration. My concern relates to the doctrine of reconsideration. I am a lawyer and I have practised before administrative tribunals before.

The doctrine of reconsideration is well known. It can be fraught with many difficulties unless you clearly define what it is that they have the right to reconsider and what are their powers of reconsideration. Do they only have the power to reconsider something new, or how new, and how is "new" defined?

What will your tests for reconsideration be? If they are not clear, the process can be flawed and it can become like a kangaroo court. Could you explain more specifically the doctrine of reconsideration as it will apply in this statute?

Mr. Boucher: In terms of reconsideration, the tribunal has the final decision. They either substitute their decision or they send it back to the department for reconsideration. Where we are trying to make a difference is in the case of what we call "punitive-type" decisions. In those cases, the tribunal would have the final decision. Not only would it have the final decision, it could also substitute its decision for the decision made by the department.

In the case of competencies, for example, if your licence is being suspended or removed because the department has judged that you have become incompetent to hold such a licence, then the tribunal could consider the situation. They might either confirm the departmental decision or send it back to the department for review. The department, of course, could decide to stick to its original decision.

Senator Oliver: My final question is about timing. The Canada Shipping Act was just before us. After we do our due diligence and examine this bill and it goes back to the chamber, could you tell us something about when it will become active and effective? There are a number of groups, agencies and organizations waiting for this to become law. What is your internal plan in that regard?

Mr. Boucher: It may take up to one year to make it effective. Since you mentioned the Canada Shipping Act, I would point out that before they introduce all the regulations that go with the new enforcement tools and the new compliance strategy, it will take at least two or three years before all the tools are in place under the new Canada Shipping Act.

Senator Oliver: Are you saying it may be three years before all Canada Shipping Act matters could be heard by this new tribunal?

Mr. Boucher: Yes, two or three years. There is much work to do. Bill C-14 has been passed. At the same time, regulations need to be developed, the new bill has to be implemented and there have to be new regulations to go along with it.

Although I am not the in-house expert on the Canada Shipping Act, I suggest that it will take two or three years for full implementation. In the meantime, there are some sections of the existing CSA that fall under the tribunal. However, we do not see a lot of activity in those areas.

Senator Callbeck: Senator Oliver touched on the powers of the tribunal. I read somewhere that the tribunal does not have enough power. In reference to enforcement action and the qualifications for whole licences, you mentioned that decision is left with the minister or the department rather than the tribunal. Why is that?

Mr. Boucher: That is a good question. We are drawing a line with regard to safety-type decisions. In terms of qualifications and competencies, it is clearly the minister's decision is to issue, suspend or amend. If we do not want to create another layer of safety decisions, that is where we have to draw the line.

With regard to punitive-type decisions, for example, in aviation, there are clear provisions to do this or that. If you do not comply with those provisions, then it will cost you so much. At that point, the tribunal can then substitute its decision.

My colleague may want to add something to that.

Ms Kimberly Ellard, Director, Strategies and Issues Safety Programs, Transport Canada: Perhaps it might assist the powers. The policy decision has been based on whether or not the grounds for the administrative action taken by the government is of a punitive or non-punitive nature.

I will give an example. When the department decides to issue an administrative monetary penalty, the grounds for the minister or the representative taking it is: You broke the law? What law did you break? You broke a provision of a regulation or an act that deals with safety at the federal level. The main thing there is that it is more of a disciplinary nature saying, "Okay, you broke the law. We are going to impose an administrative monetary penalty."

For example, there could be the issuance of an administrative monetary penalty, say in the amount of $500, under the Aeronautics Act. It is on the grounds that the person contravened a specific provision of the act, such as low flying. We will then say to this person, "We are intending to impose a $500 monetary penalty because you broke the law by low flying." That is an example of one that is purely disciplinary.

Another example would be that you could issue a monetary penalty to a cruise ship operator under the Marine Transportation Security Act for violating the security measures made under that act. For instance, what did he fail to observe? A requirement for screening passengers. The major objective there is to discipline the person for breaking a safety-related provision of the law.

When we get into the area called "non-punitive," the substance of the decision is not that someone broke the law, but that there is more of a public interest in terms of safety concerns. In the grounds for such decisions the minister will use phrases such as "in the public interest," "medical grounds," "incompetence" or someone has done something that "compromises safety." When dealing with this type of action there can also be a remedial component. Often, when we make the decision to do something, we also tell you the conditions for reinstatement.

I will give you some examples of when we do something of a safety nature and where we have limited the powers of the tribunal. For instance, let us say that we suspend a ship master's certificate under the Canada Shipping Act. Why would we do that? Because the person no longer meets the medical standards applicable to that certificate. The tribunal can look at this and decide, based on medical condition, that the person no longer meets the certificate requirements. In the alternative, they may decide that a newly available drug might address the person's medical condition and therefore the minister should review the decision.

With regard to matters of public interest and safety, it is not our purpose to say that a person did something wrong. We would like the person to get back his or her licence, provided they can operate in a safe manner.

This goes back to the question about reconsideration. The decision will go back. There is a requirement that you respond quickly. The decision will be made by someone other than the people who made the original decision. As much information as possible will be considered in order to give the person a chance, because we are not dealing with culpability. The decision was based purely on safety reasons.

I will give another example with regard to railway orders. We could issue an order to a company under the Railway Safety Act telling it to take corrective action on the grounds that its safety management system has deficiencies that risk compromising safety. If this went to the tribunal, they would review the safety management system.

I hope you can see the tenor of the type of activity we are doing. In this case, the policy decision was to limit the tribunal's powers with respect to overturning the decision of the minister that was based on something other than culpability.

Senator Callbeck: Is this division of powers the same as in the present aviation tribunal?

Ms Ellard: Yes, it is.

Senator Callbeck: It obviously works well then?

Ms Ellard: We believe it does. The chair of that tribunal will be appearing before you later, I believe.

Senator Callbeck: Senator Oliver asked about membership. I believe it says it must collectively have expertise in transportation matters. What does that mean? Does that mean that everyone has to have expertise in transportation matters? I read somewhere that if a matter arose that concerned health, there must be someone with medical expertise and that they were not required to have transportation expertise. Can a member of the tribunal have no expertise in transportation?

Mr. Boucher: You could be a medical expert in civil aviation but you could hear a case in marine because a medical question is being dealt with and not a marine transportation question per se.

Senator Callbeck: There can be members on that tribunal, as there are on the Civil Aviation Tribunal, who are medical doctors and have no expertise in transportation?

Mr. Boucher: Yes.

Senator Callbeck: Are there delays at the Civil Aviation Tribunal? Does it work well or is there a backlog?

Mr. Boucher: I understand that tomorrow you are meeting with the chair of the Civil Aviation Tribunal. Perhaps I could suggest that you might want to raise that question then.

Senator Spivak: As I understand it, the reason for this legislation is to extend the reconsideration contained in the Civil Aviation Act to other modes of transportation. Am I correct that the purpose is not to alter the appeal nature of the tribunal?

Ms Ellard: It depends upon what you mean by "reconsideration."

Senator Spivak: You explained the differences. I do not comprehend the whole thing, but I will. I think I understand what you are getting at.

Who was calling for this? Was there a great groundswell in the boondocks for this change? Was the industry calling for it?

Mr. Boucher: We have several consultation mechanisms in Transport Canada in all the modes. We have the Canadian Aviation Regulatory Advisory Committee, the Canadian Marine Advisory Committee and the Railway Safety Consultative Committee. It was a result of the combination of regular, ongoing discussions with the industry and the trend of the government to dejudicialize. When we went in that direction with Bill C-14, we decided that the expansion of the tribunal to the other modes made a lot of sense.

Senator Spivak: You are talking about consultation after it was decided to introduce this legislation, not before.

Mr. Boucher: No, no. I am sorry.

Senator Spivak: Dejudicialization was a government policy.

Mr. Boucher: We had authority to consult on a draft bill, as there was authority for Bill C-14.

Senator Spivak: I understand that, but when you are considering a policy you are either responding to the public or you are formulating the policy yourself. Obviously, this was formulated. Who was asking for this?

Ms Ellard: We must look back to what was happening in various transportation modes. In the fall of 1997, there was a major national consultation tour on how to reform marine legislation, particularly the Canada Shipping Act. In 1998, a draft paper was presented which, among other things, proposed ideas for improvement of that regime. The consultation document said that various options were discussed to enhance the marine safety directorate's ability to enforce the provisions of the Canada Shipping Act. The marine community stressed and confirmed a number of needs and concerns, including the need for Transport Canada to have more flexibility in responding to violations of marine legislation and regulations and the need to apply different enforcement measures to different violations. As well, they did mention having a review mechanism.

The same thing happened in rail. There was a national tour after the expression of some major concerns about safety. There were amendments to the act. It was again thought that there was a need for an escalation and a number of tools. If you are going to incorporate administrative tools, you need an independent review mechanism.

Senator Spivak: There is great public concern in this country about the safety of trucking. It is not accurate to say that the federal government does not have a role, because in "Freedom to Move," which changed policy in the late 1980s, the government retained power for national safety. In the United States, road safety has been a federal responsibility for 50 to 100 years.

Why is it that road safety is never included in policy changes that include every other mode?

Mr. Boucher: I am not the best person to answer that question.

Senator Spivak: You had better be, because you are bringing this information forward. We are representing the public interest and we need to know why you left out road safety.

Mr. Boucher: This type of debate took place when Bill S-3, dealing with the Motor Vehicle Safety Act, was discussed. We believe that all the arguments were debated. The delegation to the provinces under the Motor Vehicle Transport Act has been working reasonably well. The amendments to Bill C-3 include some specific improvements with respect to the national safety code and safety ratings.

Senator Spivak: We heard testimony very contrary to that, but that is not the issue. The civil aviation board was working very well too, but you are changing it. It does not make sense. You are expanding it and making it multi-modal.

It is not because it was not working well; it is because you wanted to expand to other modes of transport. It does not make sense to me if you are expanding to other modes of transport, that you would leave out something which affects so many citizens in Canada and about which they have grave concerns.

Mr. Boucher: A policy decision had been made to delegate this to the administration.

Senator Spivak: That is not accurate. The delegation is for implementation. The federal government retains the responsibility for the National Safety Code across the country. Besides which, trucks go from one province to another. They do not just stay in one province.

Mr. Boucher: You are raising the decision made not to start developing some enforcement tools and compliance tools and having inspectors that would do inspections.

Senator Spivak: In your opinion, was this a good policy decision or a bad one?

The Chairman: That is a terrible question to ask.

Mr. Boucher: As you know, senator, it was a policy decision made by the minister. I am here to address facts and the bill.

Senator Spivak: I apologize for the question. I thought you might venture an opinion. Thank you.

Senator Finestone: I noticed that the Civil Aviation Tribunal was set up in 1986. The political decision as to what would be in the best interests of the industry took place after consultation, because it would seem that this independent, quasi-judicial body was well received. I read the remarks of Senator Gill and Senator Eyton.

As I read your issue sheet section, I wondered what happened to the question of justice in Canada. This may be a peculiar question, but when there is a decision taken by a tribunal and that decision is qualified in terms of its authority by the minister and the minister's decision, there is perhaps the sense, the perception, that it is not always a judicial decision. I am not saying that this actually happens. I am thinking of a democratic society where the final arbiter of decisions is the justice system. This is quasi-judicial; this is not final arbiter. The Supreme Court of Canada is the final arbiter.

What happens when the administrative body - the bureaucrats or functionaries - takes a decision and the tribunal reviews that decision and does not agree with what the administrators are saying? It then goes back, and the bureaucrats and/or the minister make a decision. I am the injured party. I am a private citizen or a business corporation, which is a private citizen in a sense. I am dead in the tracks. I cannot then go the next and last step in a democracy and appeal to the Federal Court or Supreme Court.

Am I accurate in giving you this picture? I was not sure, so I went back and looked at how it split up the administrative enforcement action and then the tribunal authority. Everything is "can confirm minister's decision," "can substitute its decision," in every instance, whatever the picture may be. Could you answer that? It has stood the test of time since 1986.

Ms Sherill Besser, Senior Counsel, Legal Services, Transport Canada: I will break it down, if I may, senator.

In terms of administrative monetary penalties - which are purely disciplinary action - the tribunal, as my colleague said, may substitute its decision for that of the minister.

In terms of what I would call purely licensing actions, which are those decisions in which the minister is responsible for issuing a licence to someone because they meet the qualifications, if the decision is that the person no longer meets the qualifications, the person has two opportunities to have that decision reviewed. The tribunal, on review, can disagree with the minister and refer it back to the minister for reconsideration. I do not know the exact numbers, but I do know that when cases in the past that have been referred back, the minister sometimes has changed his mind. I believe that the chair of the tribunal, who will be here tomorrow, will be able to provide you with that number. When it comes back, it is an opportunity for the minister to take a sober second thought and second look at the issue.

We distinguish because the Minister of Transport is responsible for promoting safety, and these are safety concerns. That is the first thing.

In terms of review by the courts, if there is a question that the tribunal has gone beyond its jurisdiction or not exercised its jurisdiction properly, there is the opportunity for judicial review under the Federal Court Act.

Senator Finestone: As I understand judicial review, it is merely the process, not the private citizen's complaint. It is the process.

Ms Besser: That is correct.

Senator Finestone: Therefore, they do not hear the facts from my perspective. This is what we saw in the bill on citizenship and immigration. We had the same concern at that time.

Ms Besser: There are certain advantages to keeping it outside the traditional court system, one being that it is a much more informal process. As well, you as a private citizen will not require a lawyer.

Senator Finestone: Your legal counsel friends will love that.

Ms Besser: Those in the private sector, perhaps, yes.

Also, it is an expedited process, which means that if the minister suspends a licence because of immediate threat to safety, the person can have the review of that decision heard very quickly rather than waiting years, if you go civilly, quite frankly.

Senator Finestone: In a totalitarian system, you can have the same process. The difference between a totalitarian system and our system is that there is a final arbiter. It is not the minister, and it is not the bureaucrats. It is the judges of the court.

I knew this was a useless question, but I had to express a concern I had as I was reading through this, starting with 1986. I gathered you went through all the consultations, which you indicated you did, and you are to be complimented on doing that. No one raised the issue. Then we heard about the Shipping Bill here, and the words and procedure are identical to the Shipping Bill.

We had some concerns around the tourist industry but we never questioned the minister's responsibility. I feel equally responsible that I never raised it because I never noticed it. It was a very fat bill, and I did not know anything about shipping and did not get to that part.

However, it sort of hits you when you see that it is a global model and they all have the same process. In reading my colleagues' responses in the Senate, I appreciate - and I have great respect for their erudition and studied approach, Senator Gill - that they did not see any problem with that. I thought maybe there was something wrong with me. I just wanted to air that point of view. It is still there, by the way. It is kind of an irritant under my skin, to tell you the truth.

We have been awaiting Bill C-36, the bill that will be addressing the Government of Canada's approach to terrorism. There is no question that safety, be it on air, land or sea, is an overriding concern today.

We passed the shipping bill and before it has even been given Royal Assent, we have changes to it. I tend to agree that it will be three years before this is implemented. Now we have to consider what to do about the terrorist problem. How will this impact these modalities of transportation? Will another series of regulations come into effect - none of which we have much say over?

It is very hard for parliamentarians to have three sets of rules on top of one another without seeing the regulations. We have three sets of concepts of governance from the government in power and are told that the regulations will be on paper "some day soon." This is a burdensome responsibility.

Do you see a difficulty in changing these three acts in accordance with the bill dealing with terrorism?

Mr. Boucher: I think you will appreciate that I am not in a position to speak about the proposed legislation with respect to terrorism. However, there is consistency among the Aeronautics Act, the Railway Safety Act and the Marine Transportation Security Act.

Senator Callbeck: Can the Civil Aviation Tribunal award costs?

Mr. Boucher: No, they cannot.

Senator Callbeck: This new tribunal will be able to award costs?

Mr. Boucher: Correct.

Senator Callbeck: Is there any appeal mechanism if it is believed that the costs are excessive?

Mr. Boucher: No, there is no such measure.

Senator Finestone: When we were dealing with the shipping bill, the $1-million fine created serious concern and we had quite a lot of discussion about it. We heard from smaller owners who felt that it was exorbitant. That bill has not yet been sanctioned and we are now dealing with an overriding bill that does not deal with the matter of financing and provides for no recourse. There are $1 million at stake - that is a lot of power for the tribunal.

I would like to find out if there is a way Senator Callbeck's concern could be addressed in the course of our study.

Ms Ellard: Perhaps we can discuss the background dealing with why that provision was included. There are three ways to include a cost clause in a bill. You can give a tribunal a broad power to award costs; you can give no power at all; or you can circumscribe limits for when the tribunal can award costs.

We chose the middle course because sometimes people will ask for a review by the Civil Aviation Tribunal and then will not appear. This has happened with appeals as well. In those cases, three tribunal members and the minister's representative have travelled to attend the appeal. In cases where a person fails to appear when costs have been incurred, or where a person has started an action that is found to be frivolous, it may be possible to award costs.

However, we would welcome suggestions with respect to that.

One of the key principles of the tribunal is that it must be accessible. We considered whether costs would affect accessibility or assist in ensuring that there are no frivolous actions before the tribunal. The decision was taken with that balance in mind.

Ms Besser: The $1-million penalty under the Canada Shipping Act, 2001 is for a criminal conviction. It is not part of this process. It would not be considered an administrative monetary penalty. That is not our intent here.

Senator Finestone: So the criminal goes the criminal route.

Ms Ellard: In fact, in several instances we are providing a review mechanism where there was none before, or where the only mechanism that there might have been before was to go back to the minister for a review. In some cases, we are providing an independent review where none existed before. Because we are introducing administrative as opposed to criminal, we must have a review mechanism pursuant to administrative law, and that is where the tribunal comes in.

Senator Finestone: Is that how the CRTC handles it? That is the only tribunal I know. That is why I ask.

Mr. Boucher: I do not know. I would have to get back to you on that.

Senator Finestone: Could you do that?

Mr. Boucher: Yes, we will.

[Translation]

Senator Gill: I would like to clarify some points. The two main objectives of Bill C-34 are to create the Appeal Tribunal and to amend six existing acts. This bill seeks to simplify the current procedure by replacing some sections of the legislation to make them more accessible to all the players in the transportation industry. By that very fact, taking this out of the legal arena will create savings by eliminating a number of legal interveners, such as lawyers. Could you add any other positive elements to this bill?

Mr. Boucher: Previously there was only a tribunal for civil aviation. The other modes of transportation, such as marine and railway transportation, did not have any mechanism for challenging administrative decisions on compliance made by the department.

This allows other modes of transportation to use a tool that civil aviation has benefited from for some years. The Marine Transportation Security Act introduces a procedure for administrative penalties through this bill to make it more consistent and uniform. This brings more uniformity for marine transportation, as was approved when the Marine Transportation Security Act was passed.

Senator Gill: Since marine transportation is an industry much older than any of us, I imagine that many legal things have been done in the past. In general, there is not all that much resistance to this bill. On the other hand, there is some resistance from marine transportation. This does not take anything away from the marine sector from a legal point of view. It still has the same appeal avenues it had before and even has one more. If it does not want to go through legal channels, it can go to the Appeal Tribunal.

Mr. Boucher: Bill C-14 is a new approach to compliance, enforcement and the notion of administrative penalties. A new concept was introduced in Bill C-14 and approved by the government. However, it has not received royal assent. This can be seen as a new set of instruments for the marine sector. We wanted to take non-criminal offences in the marine transportation sector out of the legal arena so they no longer get sent to criminal court. For those, Bill C-14 is a new approach to compliance and enforcement. Arbitration as an interim measure is provided for by Bill C-14. When the Appeal Tribunal bill came forward, it was intended that the arbitrator would be replaced by the tribunal. Bill C-14 contains a gradual approach and compliance agreement. It contains an entirely new set of tools. The marine transportation sector was somewhat opposed to this change. Given that Bill C-14 has been tabled, the tribunal takes on a great deal of meaning for them. This introduces an instrument that will allow them to challenge some of the minister's decisions.

Senator Gill: The marine, railway and air sectors are currently covered by Bill C-34. These come under federal jurisdiction. This is very clear, it has always been so and it is clear to everyone. The bill is already complicated. It would have been much more difficult if we had covered highway transportation at the same time because of the specific jurisdictions and environment in the highway transportation sector. We will get there some time, but for now, these are two distinct areas.

Mr. Boucher: Insofar as there are no administrative decisions, I do not think it would have been appropriate to use this bill to go in that direction. This is a policy which is separate from those governing road transportation.

[English]

Senator Oliver: You are creating a brand new tribunal and it will cost money. One of the things that I think Canadians would want to know is how much it will cost. The budget of the Civil Aviation Tribunal set out in the little booklet that you provided is about $1.2 million. About 30 per cent of that is for professional services, advisers to the chair and so on. In terms of the budget, are you thinking of office space, transportation expenses and professional help for this new tribunal?

Mr. Boucher: As you correctly pointed out, the cost of the tribunal is approximately $1 million. In terms of fixed costs, there is a permanent staff of six or seven. We do not foresee a huge increase there. All the members, with the exception of the chair and the vice-chair, are part-time members. The costs will be directly proportional to the number of cases they will hear. Currently, we estimate that, on average, it costs about $4,500 to hear a case. It is more costly when you hear an appeal and it is less costly at the review level.

The tribunal will need to spend some money up front to train the new members of the tribunal. However, that will be a fixed cost.

Senator Oliver: I saw that $20,000 was set aside for training at the Civil Aviation Tribunal.

Mr. Boucher: That sounds correct. However, I do not have the figures with me. That sum could increase to $200,000 because all the new members will have to be trained.

Senator Oliver: Are we looking at a budget of about $3 million give or take the number of cases?

Mr. Boucher: No, your estimate is too high, at least until the tribunal is fully operational. Because I do not know the number of cases the tribunal will hear, I think $3 million is too high.

[Translation]

The Chairman: When this bill was created, we had to think about including appropriate funding in the budget. On the basis of the other tribunal, we came up with a figure of $1 or $1.2 million. You mentioned the figure of $4,500 per case. Can we arrive at some kind of total? Has anyone calculated approximately what this might cost?

Mr. Boucher: I could speculate on the number of cases likely to be heard. If we assume there could be 100 additional cases, plus the cost of training new tribunal members, we would need an additional $600,000. If we assume there would be 200 additional cases, that amount would be doubled. I would rather not speculate on the number of cases likely to be heard.

The Chairman: You could give us an approximate amount.

Mr. Boucher: Well, if we suppose there could be 100 additional cases, that would give us a ballpark figure of $2 million.

The Chairman: In comparison with the other tribunal.

Mr. Boucher: At present, the cost is $1 million. The cost of the new tribunal could reach $2 million. These are only ballpark figures, since they depend on the number of cases that will be heard by the tribunal.

Senator Gill: I would imagine that diversion - if it is instituted - will have an impact on the industry and the economy. There will be savings for governments. In addition, some sections of the six pieces of legislation will often be considered by the appeal tribunal, and I would imagine that will simplify the process. The tribunal will of course cost something, but will result in savings elsewhere in the system, won't it? Am I being too naive?

Mr. Boucher: Of course there would be savings elsewhere in the system, insofar as fewer cases will come before a criminal court. An administrative tribunal is clearly less costly, and there will indeed be savings. At the appeal level, cases will also have to be prepared, and our inspectors, as well as those who present the case, will also be involved.

[English]

Senator Callbeck: I understand that the railway companies are very supportive of Bill C-34 but that the aviation stakeholders are sort of neutral. In other words, they are not too positive about this new tribunal. Is that right? If so, have they expressed concerns to you, and what are these concerns?

Mr. Boucher: The civil aviation community is very happy with the Civil Aviation Tribunal, but they hope that by expanding the tribunal from civil aviation to multi-modal we do not see a reduction in the level of service. That was the only concern.

They are quite satisfied with the efficiency and effectiveness of the service they receive now, and they have indicated they do not want a reduction of service by an expansion of the mandate. They are satisfied that, given the expertise of the tribunal, there would not be such a reduction in the services they get from the tribunal. That was their basic concern.

In fact, I might add they were supportive when we had multi-modal meetings and were to trying to explain to their colleagues in the marine mode how this tool would be helpful once we have this new enforcement and compliance strategy in marine.

Senator Finestone: I note that the list of members of the staff of the tribunal is quite fascinating, based on Senator Oliver's first observation. I would agree that one member from the Maritimes does not seem to be sufficient. If you do an analysis, whoever set up this tribunal must have had a jolly good time.

They have a fair and interesting division of women and men. You have eight women out of 25. You have 10 members, and six of the members are doctors, three out of Quebec and Ontario, and three out of the rest of Canada. You have a very interesting mix across the country. I compliment whoever put this together. It is not easy to find men and women almost of equal balance, which is quite unusual, and a nice distribution among Quebec, Ontario and the rest of Canada. Outside of the Maritimes, I think they did a superb job.

With respect to tribunal members and staff, do I understand that one member can hear a case, but another person hears it when it goes back for review or revision? Are they single-person hearings, or are they three-person panels? How does it work?

Mr. Boucher: At the review level, the first level, there is one member. At the appeal, there are at least three members. There could be one member at the appeal if both parties agree, but the intent is to have at least three members at the appeal level.

Senator Finestone: Based on what Senator Callbeck asked you, are you planning to have the same size staff as you have now when you are multi-modal?

Mr. Boucher: In terms of permanent staff, we do not foresee a need for a major increase. However, I would suggest that is a question you may want to ask the chair tomorrow. As I mentioned with respect to the members, they are part-time members with the exception of the chair and vice-chair.

Senator Finestone: Would any of the concern of the civil aviation division be alleviated if there were a different vice-chair in each of the three sectors?

Mr. Boucher: It might be something that the industry - not only aviation but also marine and rail - might find interesting.

Senator Finestone: It strikes me that might be helpful.

Do you feel there is a great sense of independence between the government and the tribunal - the kind of independence that one would presume there is in Federal Court and superior court or Supreme Court justices?

Mr. Boucher: Yes, a strong "yes" to that question. That is the foundation for getting a system like this to work. You need that independence.

Senator Finestone: The final say of the minister in so many of these circumstances does not interfere in the administration of justice?

Mr. Boucher: No.

[Translation]

The Chairman: Thank you for all the information you have provided today.

The committee is adjourned.