Legislative Summary for Bill C-14

On 1 March 2001, Bill C-14, the Canada Shipping Act 2001, was introduced in the House of Commons by the Hon. Don Boudria on behalf of the Minister of Transport. A departmental press release issued on the same day noted that the bill, which would replace the current Canada Shipping Act (CSA), would reorganize, update and greatly streamline the Act and make it easier to understand. The Bill would also amend the Shipping Conferences Exemption Act, 1987 with a view to keeping Canada’s legislation covering shipping conferences in balance with the legislation of its major trading partners.

The Canada Shipping Act is the principal piece of legislation governing the operation of Canadian vessels everywhere as well as foreign vessels in waters under Canada’s jurisdiction. Departmental sources point out that it is one of the oldest pieces of legislation still in effect in Canada. It was originally based on the British Merchant Shipping Act of 1894 and has been amended in a piecemeal fashion a number of times over the years. Departmental officials note that although there have been ongoing ad hoc amendments, the legislation still contains many archaic provisions, rendering the Act difficult to use and hindering the economic performance of Canada’s marine industry. They believe that fundamental reform of the Act is required in order to:

simplify the statutory framework;
make the Act consistent with federal regulatory policies; and
enable the marine industry to operate more effectively and contribute to Canada’s economic growth while protecting the marine environment.

Responsibility for the CSA is shared between the Minister of Transport and the Minister of Fisheries and Oceans.

Reform of the Canada Shipping Act evolved in two tracks:

Track one resulted in Bill C-15, an Act to amend the Canada Shipping Act and to make consequential amendments to other Acts (First Session, Thirty-sixth Parliament), which received Royal Assent on 11 June 1998 (S.C. 1998, c. 16). It amended Part I (Ownership, Registration and Mortgages) of the CSA, and added a new General Part (O.1) which stated objectives and Ministerial responsibilities. The bill also carried over miscellaneous urgent items (for example, “special purpose ships and personnel,” ballast water management, and the requirement for the wearing of life jackets) from Bill C-73, a proposed amending bill,(1) which had died on the Order Paper as a result of the April 1997 election call. Track one amendments were brought into force in stages as some of the provisions required regulations or the development of a strategy. Bill C-15 in its entirety had the force of law as of 25 February 2000.
Track two – the current bill, C-14,(2) the Canada Shipping Act, 2001 – would overhaul the balance of the Canada Shipping Act with the exception of the liability provisions (including some whole parts) which were consolidated and moved to Bill S-2,(3) the Marine Liability Act (First Session, Thirty-seventh Parliament), introduced in the Senate on 31 January 2001.

Bill C-14 covers a wide range of marine topics, including: safety issues (ship operations and equipment, crew certification, conditions of work, navigation, accident investigation, salvage and wreck); the environment (pollution prevention and response); and other matters (such as the protection and preservation of wrecks of heritage value). The bill would also separate and clarify the responsibilities of the two departments involved: Transport Canada, and Fisheries and Oceans Canada. Key changes from the current CSA would include improvements to provisions that: protect and support efficient crews; ensure passenger and vessel safety; and protect the marine environment from damage due to navigation and shipping activities.

DESCRIPTION AND ANALYSIS

A. Introduction

Although the wording has in most cases been modernized, many of the principles of the current CSA have been carried over into Bill C-14, with the exception of parts concerning liability that have been moved over to Bill S-2, the Marine Liability Act. As well, many provisions in the current CSA no longer appear in the bill because much of the detail would be moved to regulations, standards or other appropriate instruments. Hence, the bill is much smaller than the current legislation. Parts 1-12 comprise 269 provisions. Parts 13-17 consist of: transitional provisions; consequential and coordinating amendments; amendments to the Shipping Conferences Exemption Act, 1987 and the Canadian Environmental Protection Act, 1999; andthe repeal of certain Acts and the coming into force of Bill C-14.

This paper is organized as follows: a heading is given for each Part of the bill in the numerical order in which the Part appears in the bill along with a reference to the department(s) that has responsibility for that Part and to the clauses included in the specific Part. A brief outline of the Part’s contents follows each heading. Due to the very technical nature of the bill and the fact that most of the provisions, using modernized language, reflect what is in the current CSA, only those provisions that are new and/or that would result in notable changes from the current legislation are highlighted.

B. Interpretation (clauses 2-4)

Streamlining and modernizing the CSA would result in fewer definitions. Words would be defined only when their ordinary dictionary meaning had been narrowed or expanded. As well, some definitions currently contained in the legislation would be dealt with in regulations. Whereas the existing CSA contains approximately 200 definitions, the bill (proposed CSA 2001) would contain just over 30 definitions. Definitions that would apply to more than one Part of the bill are located at the beginning of the bill in the interpretation clause (clause 2), whereas those that would have a unique application to a given Part of the bill are located at the beginning of that Part.

C. Part 1 – General (Transport Canada and Fisheries and Oceans Canada) (clauses 5-40)

In addition to setting out the bill’s objectives, Part 1 spells out the powers of the Minister of Transport and the Minister of Fisheries and Oceans under the bill, and outlines the role of the authorized representative and the adjudicator. Both Ministers would have regulation-making authority.

A new provision would allow the Minister of Transport to appoint adjudicators to conduct independent reviews under specified provisions (clause 15(1)). Each adjudicator would have the powers of a person appointed as a commissioner under Part 1 of the Inquiries Act (clause 15(2)).

Another new provision (clause 16) would incorporate all licences, permits, certificates, etc., issued under the current Act into one document called a “Canadian maritime document,” defined in clause 2 to mean a licence, permit, certificate or other document that was issued by the Minister of Transport under Part 1 (General), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention) or 11 (Enforcement) to verify that the person to whom, or vessel to which, it was issued had met requirements under that Part. Departmental officials note that this would be consistent with the law in other jurisdictions as well as with what has been done in the airline industry.

Under the bill, the former Board of Steamship Inspection would become the Marine Technical Review Board (MTRB). This Board would maintain the longstanding practice of providing vessel owners with a mechanism for obtaining an exemption from a requirement or permission to substitute a product or procedure with another product or procedure as long as the overall safety of the vessel, the environment or persons on the vessel was not compromised. Unlike the old Board, the MTRB would not have the power to resolve disputes. The MTRB would be made transparent in that if a favourable decision were granted, the Chair would have to publish the decision in the manner that the Chair considered appropriate. As soon as was feasible after the end of the fiscal year, the Board would be required to submit a report of the Board’s operations in that year to the Minister of Transport (clauses 26-28).

Another provision (clause 29) would provide for Schedules 1 and 2, which would list the international conventions, protocols and resolutions, signed by Canada, that related to matters within the scope of the bill and that the appropriate Minister – the Minister of Transport (Schedule 1) or the Minister of Fisheries and Oceans (Schedule 2) – had determined should be brought into force, in whole or in part, in Canada by regulation. As well, the bill (in clause 30) would permit the Governor in Council to, by order, add a new convention, protocol or resolution to Schedule 1 or 2 of the bill. This would avoid the necessity of introducing a bill in Parliament as is currently the case each time an addition is to be made to the Schedule. The appropriate Minister would cause a copy of each order, along with a description of the convention, protocol or resolution, to be laid before each House of Parliament on the first ten days on which that House was sitting after the order is made. The order would stand referred to the appropriate standing committee of each House.

As well, according to clause 31, the Governor in Council could, by order, delete an international convention, protocol or resolution from Schedule 1 or 2, or amend Schedule 1 or 2, if the amendment would not, in the opinion of the Governor in Council, result in a material substantial change.

D. Part 2 – Registration, Listing and Recording (Transport Canada) (clauses 41-79)

Part 2 generally maintains the provisions currently contained in Part I of the CSA, covering the responsibilities of the Chief Registrar and setting the ground rules for mortgages and optional registration.

There is, however, one notable change from the current Part I. At the present time, all non-pleasure craft (i.e., commercial vessels) 15 tonnes and greater are required to register with Transport Canada. Commercial vessels smaller than 15 tonnes are currently licensed by the Customs and Excise Division of the Canada Customs and Revenue Agency (CCRA) on behalf of Transport Canada. Under Bill C-14, all non-pleasure craft would have to be registered with Transport Canada (clause 46). Hence, the CCRA would no longer be involved in licensing small commercial vessels. As well, the bill would create a small vessel register to accommodate those commercial vessels that are currently licensed (clause 43(1)). A transitional provision is contained in clause 272.

E. Part 3 – Personnel (Transport Canada) (clauses 80-103)

Part 3 includes provisions from the current Parts II, III and IV of the CSA, generally maintaining the current policy framework regarding the health and safety of crew members, while at the same time modernizing several provisions.

At the request of stakeholders, clause 86 was included in the bill to provide that the master and each crew member of Canadian and other prescribed vessels would have a maritime lien against the relevant vessel for claims relating to their employment on the vessel. This is a substantive right under the current CSA that had been earmarked for inclusion in regulations under Bill C-14’s predecessor, Bill C-35.

Currently, Transport Canada keeps sea service records of crew members of Canadian vessels. Under the bill, this responsibility would be shifted to the authorized representative of the vessel and every crew member (clause 93). This amendment would bring the marine industry in line with other industries where it is common practice for the employer to keep records of employment.

Under clause 96 of the bill, the authorized representative would, in the form and manner specified by the Minister, be required to inform the Minister of every birth or death on board.

Clause 98, which was included at the request of stakeholders, would require that where the authorized representative of a Canadian vessel entered into an agreement with another person to provide crew members, that other person (in lieu of the authorized representative or the master) would be responsible for such matters as entering into the articles of agreement, providing certificates of discharge, maintaining and providing records of sea service, and paying the costs of repatriation. As well, under clause 100(h), the Governor in Council would be empowered, on the recommendation of the Minister, to make regulations regarding persons who entered into agreements to provide crew members, including the requirement that those persons be licensed.

F. Part 4 – Safety (Transport Canada) (clauses 104-124)

Part 4 generally incorporates the provisions from the current Part V of the Act, but with much of the detail removed. According to departmental officials, there are no major policy changes.

Part 4 outlines the obligations on the master, authorized representative, crew and passengers to maintain safety on board a vessel. Other safety-related areas covered in the Part are the construction of a vessel, as well as tampering and vandalism. Prescriptive details currently included in the Act itself, such as load lines and proper handling of cargo, would be removed and instead would be placed in regulations or standards.

At the request of the marine industry, a new provision (clause 116) would be added to provide the industry with the tools to deal with persons who put their personal safety at risk and attempt to board a vessel once the safety barriers to prohibit boarding have been put in place.

G. Part 5 – Navigation Services (Fisheries and Oceans Canada) (clauses 125-139)

Part 5 comprises the provisions of Part IX and a portion of Part VII of the current CSA, with the provisions remaining largely intact and covering vessel traffic services, aids to navigation, search and rescue, and Sable Island. Part 5 institutes no major policy changes.

H. Part 6 – Incidents, Accidents and Casualties (Transport Canada) (clauses 140-152)

Part 6 of the bill encompasses Part XIV and a portion of Part VI of the current CSA, initiating no major policy changes.

Part 6 would, among other things, continue to give the International Convention on Salvage, 1989 the force of law in Canada.

I. Part 7 – Wreck (Fisheries and Oceans Canada) (clauses 153-164)

Part 7 encompasses a portion of the current Part VI of the CSA, but with modernized language and the removal of outdated provisions such as the current section 430 which exonerates the receiver of wreck from prosecution if “… any person who resists the receiver or person is maimed, hurt or killed by reason of the resistance…”

In addition to granting the Minister of Fisheries and Oceans the power to appoint receivers of wreck, Part 6 also outlines the procedure that would have to be taken upon finding a wreck and procedures for the disposal of wrecks.

Clause 160 would make it easier for a receiver of wreck to dispose of a wreck so that the department (Fisheries and Oceans Canada) would not have to be subjected to costly storage.

In response to stakeholder submissions, a new joint regulation-making authority for the protection of heritage wrecks would be added (clause 163(2)). The Governor in Council, on the recommendation of the Minister of Fisheries and Oceans and the Minister of Canadian Heritage, would have the authority to make such regulations.

J. Part 8 – Pollution Prevention and Response (Fisheries and Oceans Canada) (clauses 165-184)

Part 8 comprises a portion of the current Part XV of the CSA, introducing no major changes from the current situation although, as elsewhere in the bill, the wording of some provisions has been modernized and/or clarified.

Part 8 states that vessels and oil-handling facilities would be required to have an arrangement with a response organization and to have an oil pollution prevention plan; the plan’s requirements and the duties entailed in implementing such a plan are clearly stated. The Minister of Fisheries and Oceans would be granted the power to issue a certificate of designation as a response organization to a qualified person. The powers of a pollution prevention officer would be outlined.

K. Part 9 – Pollution Prevention (Transport Canada) (clauses 185-193)

Part 9 encompasses the portions of the current Part XV of the CSA for which the Minister of Transport has responsibility.

Part 9 would prohibit the discharge of prescribed pollutants and would require vessels to have a shipboard oil pollution emergency plan. As well, Part 9 would grant the Minister of Transport the power to give directions to vessels preparing to discharge a pollutant, or vessels having discharged a pollutant. Part 9 would also include a regulation-making authority with respect to vessels carrying pollutants and would establish an offence for discharging a pollutant.

L. Part 10 – Pleasure Craft (Fisheries and Oceans Canada) (clauses 194-209)

Part 10 is a new Part which has no counterpart in the current CSA. It outlines the responsibilities of Fisheries and Oceans Canada for pleasure craft, covering such matters as inspections, investigations, enforcement and licensing. The requirements for pleasure craft are not new but they are currently scattered throughout the CSA; however, by grouping the relevant provisions together in one Part of the bill, the provisions would be transparent.

M. Part 11 – Enforcement (Transport Canada) (clauses 210-246)

Part 11 is also a new Part with no equivalent in the current CSA; it consolidates the existing enforcement provisions in one Part of the bill. In general, the enforcement scheme in the bill is designed to be applied equitably to all vessels under the Minister of Transport’s jurisdiction.

Clauses 210-235 maintain a number of current provisions with modernized wording and clarification.

All references to inspection authorities would be located in one place in the bill. This Part would outline what a marine safety inspector could or could not do or would be required to do.

Part 11 would also clarify the role of Transport Canada and the Transportation Safety Board of Canada in investigating shipping casualties.

Provisions in Part 11 would allow an individual to report unsafe practices or situations on board a vessel without fear of reprisal. Pursuant to clause 216(1), an individual who had reasonable grounds to believe that a person or vessel had contravened the bill could notify the Minister of the particulars of the matter and could request that their identity be kept confidential with respect to the notification. The identity of an individual to whom the Minister had provided an assurance of confidentiality could be disclosed by the Minister only in accordance with the Privacy Act (clause 216(2)).

On being notified under clause 216(1), the Minister would have to determine whether an inspection should be carried out by a marine safety inspector (clause 217(1)). If an inspector determined that the individual who notified the Minister did not have reasonable grounds to believe that a person or vessel had contravened or intended to contravene a relevant provision, the individual would be liable to pay the costs of the inspection (clause 217(2)).

However, provided that the seafarer acted in good faith, he or she would be protected from punitive action being taken by his or her employer (clause 218(1)). Nothing in clause 218 would impair any rights of an employee either at law or under an employment contract or collective agreement (clause 218(2)).

Clause 224 would allow the Minister to permit the master of a detained vessel to move it in accordance with the directions of the Minister. According to departmental officials, this provision was added at the request of stakeholders who believed that the current statutory authority was not clear enough.

Also outlined in Part 11 are the procedures that would be used for dealing with foreign vessels that had violated international conventions. If the Minister had reasonable grounds to believe that a foreign vessel was in contravention of an international convention or protocol listed in Schedule 1 to the bill, the Minister could direct the vessel not to enter Canadian waters provided that doing so would not put the safety of the vessel, any person on board, or the environment at imminent risk (clause 227).

The bill would introduce a new administrative enforcement scheme to encourage and promote compliance with regulatory requirements (clauses 228-243). The concept of administrative penalties would streamline the enforcement process and initiate the use of a modern compliance tool rather than the court system. According to departmental sources, administrative penalties were introduced because the court system is not cost- or result-effective for regulatory violations. They note that administrative penalties would provide an alternative means of deterrent in an efficient manner and are a more appropriate way of dealing with regulatory infractions.

Key to the new enforcement scheme would be the appointment of adjudicators under Part 1 of the bill; they would review administrative decisions taken by the Minister of Transport that either imposed penalties or affected the status of documents issued by the Minister. The adjudicators would be independent and have decision-making authority.

The judicial system would be reserved for the more serious offences, which would be consolidated (clauses 245-246). Punishment would be increased. Departmental officials point out that modernized sanctions and guidance have been taken from other pieces of federal legislation, specifically, the Canadian Environmental Protection Act, 1999, which came into force 31 March 2000. The sanctions would complement the administrative penalties and all but one of the offences would be summary conviction offences. According to the department, this would allow for effective use of the court system based on the severity of the offence and the consequences that it might produce.

N. Part 12 – Miscellaneous (Transport Canada and Fisheries and Oceans Canada) (clauses 247-269)

Part 12 contains provisions relating to legal proceedings or matters. The provisions are generally similar to those currently contained in Parts XI and XII of the CSA. According to departmental sources, there are no major policy changes.

At the request of stakeholders, clause 251 was included in the bill to allow for an action in rem in the appropriate court, by a person who had contracted with the authorized representative or a bare-boat charterer of a vessel in Canada to provide stevedoring, for a claim in respect of the stevedoring. This is a substantive right under the current CSA that was omitted in Bill C-14’s predecessor, Bill C-35.

Clauses 253-255 are new. According to clause 253(1), a person who, in committing an offence under the bill:

intentionally or recklessly caused a disaster that resulted in the loss of life or serious damage to the environment; or
showed wanton or reckless disregard for the lives and safety of other persons and thereby caused a risk of death or bodily injury to another person;

would be guilty of an offence and liable on conviction on indictment to a fine or to imprisonment for a term of not more than five years, or to both.

Clause 253(2) would import the Criminal Code offences of criminal negligence causing death (section 220) and criminal negligence causing bodily harm (section 221) into the bill.

According to the clause 254(1), no person could be found guilty of an offence under the bill if the person established that they exercised due diligence to prevent its commission. Similarly, no vessel could be found guilty of an offence under the bill if the person who committed the act or omission that constituted the offence established that they exercised due diligence to prevent its commission (clause 254(2)).

Clause 255 provides that if a person were convicted of an offence under the bill, the court could, in addition to any other punishment it might impose, make an order prohibiting the person:

if he or she were the holder of a Canadian maritime document, from doing any act or thing authorized by the document at all times while the document was in force or for the period or at the times and places specified in the order; or
from operating a vessel or providing services essential to the operation of a vessel for the period or at the times and places specified in the order.

O. Part 13 – Transitional (Transport Canada and Fisheries and Oceans Canada) (clauses 270-274)

Part 13 contains transitional clauses for the purpose of grandfathering certain acquired rights and ensuring a smooth transition from the current CSA to the proposed new Act, for example, ensuring that certificates issued under the current Act are valid for a prescribed period of time.

P. Part 14 – Consequential and Coordinating Amendments (Transport Canada and Fisheries and Oceans Canada)
(clauses 275-324)

Part 14 provides for a number of consequential and coordinating amendments to other Acts, to ensure that references to the current Canada Shipping Act contained in those other statutes are consistent with Bill C-14.

Q. Part 15 – Amendments to the Shipping Conferences Exemption Act, 1987 (Transport Canada)
(clauses 325-330)

The Shipping Conferences Exemption Act, 1987 outlines the rules under which shipping conferences – groups of ocean shipping lines operating collectively under an agreement to provide scheduled services on specific trade routes based on agreed rates and services – are allowed to operate in Canada.

In January 1999, Transport Canada initiated a review of the Act in response to reviews and legislative changes to shipping conference legislation in the United States, Europe and Australia. Stakeholders across Canada were invited to provide comments on the Act and were subsequently asked to respond to a consultation paper containing a number of options for amending the Act.

As a result of the consultation process, Transport Canada is proposing, in clauses 325-330 of Bill C-14, a number of amendments to the Shipping Conferences Exemption Act, 1987 with a view to keeping the legislation in harmony with the relevant legislation of Canada’s major trading partners.

R. Part 16 – Amendments to the Canadian Environmental Protection Act, 1999 (Environment Canada)
(clause 331)

Clause 331 would result in amendments to certain definitions contained in section 149 of the Canadian Environmental Protection Act, 1999.

S. Part 17 – Repeals and Coming into Force (Transport Canada and Fisheries and Oceans Canada)
(clauses 332-334)

This Part concerns the repeal of certain Acts and the coming into force of Bill C-14.

COMMENTARY

There has been little or no commentary on the bill in the press. Perhaps this stems largely from the fact that the proposed Canada Shipping Act, 2001 is very technical and that the departments involved – Transport Canada and Fisheries and Oceans Canada – took several steps throughout the CSA reform process to ensure that key stakeholders would have an opportunity to provide the departments with their feedback and that their comments would be fully addressed and considered. Initially, discussion papers were prepared and circulated and there was a consultation process for both track one (January-February 1997) and track two (September 1997-January 1998). In addition, in May 1999, Cabinet gave the two departments the authority to share copies of the draft legislation prior to its introduction in Parliament as Bill C-35 (Bill C-14’s predecessor) with key marine stakeholder organizations and associations, including aboriginal groups. All stakeholders representing large memberships and associations received a copy of the draft. This process thus gave key stakeholders another opportunity to forward comments for consideration. The departments received more than 60 submissions. As a result of this consultation process, several changes were made to the draft bill, none of which involved a change in policy. Following the introduction of Bill C-35 in the House of Commons, the departments sent a copy of the bill, along with a summary of the suggestions/comments received and the departments’ response to them, to those who had earlier made submissions. Bill C-35 died on the Order Paper with the dissolution of Parliament in October 2000, having received only first reading. It was subsequently reintroduced as Bill C-14 in the current Parliament, but with a number of changes, including a new Part 15 concerning proposed amendments to the Shipping Conferences Exemption Act, 1987. The proposed amendments to that Act resulted from a consultation process with affected stakeholders.

(1) Bill C-73, an Act to amend the Canada Shipping Act and other Acts as a consequence (Second Session, Thirty-fifth Parliament).

(2) Bill C-14 replaces a similar bill, Bill C-35 (Second Session, Thirty-sixth Parliament) which died on the Order Paper with the dissolution of Parliament in October 2000. However, Bill C-14 contains a number of important changes, including the addition of a new Part 15 concerning proposed amendments to the Shipping Conferences Exemption Act, 1987.

(3) Bill S-2 replaces a virtually identical bill, Bill S-17 (Second Session, Thirty-sixth Parliament) which died on the Order Paper with the dissolution of Parliament in October 2000.

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