Motorized Snow Vehicles
Amendment Act, 2000, Bill 101, Mr Jackson /
Loi de 2000 modifiant la Loi sur les motoneiges,
projet de loi 101, M. Jackson
STANDING COMMITTEE ON
GENERAL GOVERNMENT
Chair /
Président
Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Présidente
Mrs Julia Munro (York North / -Nord PC)
Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Steve Gilchrist (Scarborough East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina ND)
Mrs Julia Munro (York North / -Nord PC)
Substitutions / Membres remplaçants
Mr John Gerretsen (Kingston and the Islands / Kingston et les
îles L)
Ms Shelley Martel (Nickel Belt ND)
Mr Joseph Spina (Brampton Centre / -Centre PC)
Also taking part / Autres participants et
participantes
Mr Chris Diana, counsel, legal services,
Ministry of the Solicitor General
Mr Leonard Lee Tung, corporate policy branch,
Ministry of the Solicitor General
Clerk / Greffière
Ms Anne Stokes
Staff / Personnel
Ms Laura Hopkins, legislative counsel
The committee met at 1547 in committee room
1.
MOTORIZED SNOW VEHICLES AMENDMENT ACT, 2000 / LOI DE
2000 MODIFIANT LA LOI SUR LES MOTONEIGES
Consideration of Bill 101, An
Act to promote snowmobile trail sustainability and enhance safety
and enforcement / Projet de loi 101, Loi visant à
favoriser la durabilité des pistes de motoneige et à
accroître la sécurité et les mesures
d'exécution.
The Chair (Mr Steve
Gilchrist): Good afternoon. I call the committee to
order for continuation of clause-by-clause hearings on Bill 101,
An Act to promote snowmobile trail sustainability and enhance
safety and enforcement.
As members will know, we left
off with two matters deferred for further consideration. I
believe you all have before you not only the copies of the
relevant amendments but some legal opinions that have been
obtained from the legislative counsel and, I believe, Mr Spina
you have also sought input from the relevant ministries. So I
guess the first order of business would be to put back on the
table amendment 6A. It's been read into the record; no reason to
read it again, but I will invite debate.
Mr John Gerretsen
(Kingston and the Islands): Which one is 6A?
The Chair:
It is the Liberal motion on section 5, an amendment to section 5
of the bill.
Mr Dave Levac
(Brant): I want to put back on to the table section 5,
subsection 10.1(4) of the Motorized Snow Vehicles Act. Do I
repeat it?
The Chair:
No, there's no need to read it into the record again, but I would
certainly invite debate, if anyone has any comments.
Mr Levac: I
will continue. Having read the information provided to me by Mr
Spina-and from that I am assuming that it's advice that was asked
of by the House in terms of legal and all of the different
relevant people that had input on that.
I also understand that Mr
List has contacted Mr Spina's office to discuss the concerns
regarding the municipalities. What I understand is that Mr List's
request was far-reaching in scope, and the fact is that there
were several outstanding issues that were pointed out at the
hearings. Subsequent to that, in his contact with Mr Spina, there
was discussion again about asking Bill 101 to cover off quite a
few of the issues which that particular spokesperson for the
municipality had.
Speaking specifically to the
amendment, the purpose of this amendment was to address the one
area which I believed was contained inside of 101, and some of
the rationale behind recommending against it indicated that it's
far beyond the scope of the bill.
I have a question about that;
it's not specific and if somebody wants to tackle it, I don't
have a problem with that. How can restricting or removing
municipalities' liability from the use of the unopened road
allowance for the use of snowmobiles in a bill that is called the
Act to Promote Snowmobile Trail Sustainability and Enhance Safety
and Enforcement be considered beyond the scope? We're talking
about the use of snowmobiles on municipal properties' unopened
road allowances. Their concern was again-I repeat it-the
liability that the municipality would incur. Two other of these
pieces of research that were provided to me say that it's already
covered off. The municipality during the hearings made it quite
clear that they didn't believe that it really was covered off.
That's why they were asking for us to have that particular
liability covered in this act.
Further to that, I do have a
concern about maybe the tone that was presented at the hearing,
almost as if to say, "Well, then, if you're not going to help us
in this liability question, we may then very well have to deny
access to the snowmobile clubs if they are using this road
allowance as a connector," so to speak, "or as an adjoiner to the
trails that are already in existence on other properties." They
named several different types of properties, in terms of personal
farm property, crown land etc.
My concern here again is, are
we addressing that need? And if we're not addressing that need,
what response are we going to get from the municipalities who may
step back and say, "Well if you're not going to do it, then sorry
about it, snowmobile clubs, we're going to have to work out some
other way to get this covered off"?
That's my general comment
about that and that's why I want the amendment to stand. I know
that I had an opportunity to withdraw this; I will not withdraw
it. I do want to have a vote on it. If there's further rationale
to discover in discussion that the snowmobile part of this,
that's asked of in the
amendment, is indeed not part of 101, I'd like to hear the logic
behind that.
Mr Joseph Spina
(Brampton Centre): We appreciate the comments that Mr
Levac made and there's no question that Mr List's comments made
in the public hearings were very important and valid comments,
enough certainly that we needed far more information and
background in order to be able to really decide whether or not
this was in fact within the scope of this bill. The response from
municipal affairs and housing and also the Ministry of Finance,
the Financial Services Commission of Ontario-I'd like to put it
in the record, if I may-reviewed the motion for the amendment and
provided some of the following comments.
The proposed amendment has
implications for users of the municipal road allowances which go
beyond the scope of Bill 101. They say there are currently two
existing legal frameworks which deal with the issue of unopened
road allowances and are designed to protect both the
municipalities and the landowner from possible liability. I'll
get into these in just a moment and then have a final
statement.
The first act is the
Occupiers' Liability Act, and subsection 3(1) of the Occupiers'
Liability Act provides a special provision for dealing with
unopened road allowances. It indicates that a landowner owes a
duty to take reasonable care to ensure that a person entering the
premises is reasonably safe. However, in the case of an unopened
road allowance, if the landowner has posted notices and hasn't
expressly permitted the entry, or if entry is for the purposes of
recreational activity and no fee is paid other than a payment
from a non-profit recreation club, section 4 provides that a
person is deemed to have willingly assumed all risks. Where the
person is deemed to have assumed the risks, the landowner owes
only a duty to the person to not create danger with the
deliberate intent of doing harm or damage to the person and not
act with reckless disregard of the presence of the person.
The other act that was
brought forward to us from municipal affairs was the Municipal
Act. Under subsection 284(1) of the Municipal Act,
"municipalities are required to keep their highways in a
reasonable state of repair." However, under subsection 284(3),
"no legal action can be brought against the municipality for
accidents that occur on the untravelled portion of the the
highway (which would include an unopened road allowance) for
damages caused by, among other things, the presence or absence of
fences, railings or barriers, or caused by obstructions such as
rocks and trees."
I guess essentially the
proposed amendment has implications for users which go beyond the
scope of this bill, as Mr Levac correctly indicated, and it was
the opinion of the ministry that there were sufficient legal
statutes presently in place that protect both the municipality
and the snowmobiler from liability. The recommendation is that
they support the decision of both the Ministry of Municipal
Affairs and the Ministry of Finance to not proceed with this
proposed amendment.
In conclusion, I would just
say that with respect to unopened road allowances-and I defer to
the two members opposite who clearly spent time on municipal
council; I have not, so I certainly respect their elements. You
didn't know he was council, did you? I certainly respect their
opinion, but if we exempted the liability essentially of the
municipality for snowmobiles, under this act we have boosted the
mandatory element of requiring insurability by snowmobilers-of
the sleds. In addition to that, we've clearly stated that where
an unopened road allowance has risk, the municipality perhaps
should crack down, even if it is a connector road.
That being said, where it
goes beyond the scope of this bill is that wherever a piece of
unopened road allowance is used, it can be used by far more than
a snowmobiler. It could be used by a 4x4 vehicle; it could be
used by an all-terrain vehicle, an ATV; it could be used by a
motocross motorcycle for a connector trail. If I recall Mr List's
concern, it was that the only elements, I gather, that were
permitted under an unopened road allowance, according to the more
than 100-year-old clause of the Municipal Act, were for a
footpath or a bicycle path. With due respect to Mr List's
opinion, which is, I think, quite justified, the Municipal Act is
what should be changed, to broaden the scope of usage, because
those were the only methods of movement, if you will. I was
surprised they didn't even permit a horse and buggy when this
particular clause was put into the act.
It's far broader than what we
can do here. This would end up having to be repealed at such
point where municipal affairs addresses that issue. If anything,
instead of this amendment, I would suggest that perhaps-and Mr
Chair, I ask your ruling on this-a directive could be sent to
municipal affairs from the committee to address this issue, over
and above the scope of this bill. I'm not sure that's within the
mandate of the committee.
The Chair:
Arguably, while we are in clause-by-clause, it might be outside
our responsibilities to create such a motion, but it would
certainly be in order as soon as the bill is finished. I would
entertain such a motion if any of the members of the committee
were so inclined.
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Mr
Gerretsen: I just wonder if I could respond to Mr Spina.
Look, we're making this all much more difficult than we need to.
This bill deals with the use of snowmobiles. There may be many
other problems that relate to unopened road allowances that have
been around for years and years, and probably will be around for
years and years until a government actually comes along and does
some major amendments to the Municipal Act.
But you know, we're only
talking about snowmobiles here. The ministry has been very clear
with respect to the fact that there can be no crown liability.
All the municipalities are asking is that they want to be given
those same assurances that the ministry, in this act, is
basically giving itself. That's really what it all boils down
to.
I can't understand the
reluctance of putting that very simple statement in there.
Municipalities have problems enough right now. They've got enough
on their plates and I
won't get into all that or else we'll be here until
6 o'clock tonight, but they don't need this headache. They
don't need to be placed into an interpretative position. If it's
clearly stated in the act that they are not going to be held
responsible, then there can be no actions against them. That's
really all they're asking for. They're asking for the same thing
the government, in effect, is giving itself.
In dealing specifically with
your amendments, or with the notes that have been prepared by the
ministry to deal with this act, it states, for example, "The
proposed amendment has implications for users," which you read
earlier, "which go beyond the scope of this bill, and treats the
snowmobiles differently from other users of unopened rural
allowances."
I say, so what? If other
users are not being dealt with properly and there should be
amendments made to deal with their use of these unopened road
allowances through the Municipal Act, then let that follow later
on. But why should we extend a current defect that exists with
respect to unopened road allowances to now allow that defective
Municipal Act to, in effect, work with respect to snowmobiler use
as well? I don't understand it. I know we're only limited here to
snowmobiles, so let's deal with that problem and not with the
other problem that will be resolved, hopefully, at some point in
the future.
The other reason that's
given, "All snowmobilers are required to have insurance to
operate their snowmobile, and it is felt that there are
sufficient legal statutes presently in place that protect both
the municipality, landowner and the snowmobiler from
liability."
Well, that's wonderful, and
yes, a snowmobiler should have the necessary liability. All
municipalities are asking for is that they don't even want to be
placed in a position where they could be potentially named as a
party in an action. That's all they're asking for. They don't
need these kinds of problems.
You go on to say that under
the Occupiers Liability Act, "In the case of an unopened road
allowance, if the landowner has posted notices and hasn't
expressly permitted the entry, or if the entry is for the
purposes of recreational activity and no fee is paid other than a
payment from a non-profit recreation club, section 4 provides
that a person is deemed to have willingly assumed all risks."
Well, that may be so, but
you're going to get into all sorts of arguments as to whether or
not the fees that are being paid to these snowmobile clubs in
order for the snowmobiler to get their licenses-some lawyer, I
can tell you now, Mr Spina, is going to argue somewhere along the
line that in their particular situation it is not a non-profit
recreation club, that they may be making some money on selling
some coffee and doughnuts, and that they are in effect a
profit-making club. I know it sounds like a bizarre argument.
All I'm saying is that if you
pass this amendment, then you take those kinds of bizarre
arguments out of it for the future. You're basically telling
municipalities, "You have no responsibility for the unopened road
allowances," and you're putting the municipalities in exactly the
same position as you're putting the crown. They don't want to be
placed in a better position, but they also don't want to be
placed in a worse position.
And yes, I agree with you.
All sorts of amendments have to be made to the Municipal Act, but
let the municipal affairs people look after that. It'll probably
be long after we're all gone before we'll ever see any meaningful
amendments to the Municipal Act, as far as that particular issue
is concerned, because it's been around for years.
Let's at least deal with the
narrow problem that we have here, that municipalities want to be
absolved of responsibility for snowmobilers to use unopened road
allowances, and that's what this amendment does.
The Chair:
Further debate?
Ms Shelley Martel
(Nickel Belt): Actually I have a question for Mr
Gerretsen, and I apologize for not knowing this. Just so I'm
clear, where in Bill 101 is the crown put in the same position in
terms of not being liable? I'm not trying to test you, John.
Mr
Gerretsen: You can test me. Why not? If you look at
section 10.1-and I know we're talking about delegation there-it
says, "No action or other proceeding shall be instituted against
the crown, the minister or any employee of the ministry," and it
goes on to a number of different sections. Maybe the question
could be put to Mr Spina: are there any sections in the act that
he is aware of that in effect absolve the crown from any
liability, that the crown can't be sued by snowmobilers using
these trails on unopened road allowances?
The Chair:
You might want to invite forward the legal representative from
municipal affairs or MNR.
Mr Spina:
Actually, this is MNR, and I'm not sure we have anyone from MNR
here.
Interjection.
Mr Spina: We
have someone from finance. It's a broad-ranging, broad-covering
bill.
It's my understanding that
where the trails are on crown land, they're there by land use
permit under the Ministry of Natural Resources. Whether or not
the crown is liable, I don't know. I know that this act does not
exempt the crown. But I think that in the opinion of Municipal
Affairs and Housing, this motion, I reiterate, is so broad in
nature that it could potentially protect the municipality even if
it were at fault, and it would have other implications for other
users.
To address the comments of Mr
Gerretsen particularly, a municipality is going to have a blanket
coverage policy in any case. Every municipality has one. If you
cap that for snowmobilers, that's not fair to any others. In
addition to that, with respect to the issue of non-profit
clubs-and I would perhaps seek the opinion of legislative counsel
here-I would assume that the issue of defining a non-profit club
would be whether or not it is registered as such. I suggest to
you that all 200 and some-odd clubs in Ontario are registered as
non-profit organizations, so I don't think that's an
argument.
The real issue is that there is no cap for the crown
that I can see in this bill, so why should we extend it to the
municipalities? Therefore, if the municipality has its blanket
coverage, what's wrong with that?
Mr
Gerretsen: You keep talking about if this could extend
to other individuals as well. The amendment is quite clear. It
says, "No action or other proceeding shall be instituted against
a municipality with respect to an accident involving the
operation of a motorized snow vehicle that occurs on an unopened
road allowance." We're just talking here about motorized snow
vehicles. We're not talking about any other situations.
I always get a little bit
leery when a ministry says, "We don't want this amendment in
there," when it's to everyone's common sense. And you people are
all about common sense-ideological or real is a question for
debate. Why can't you put this section in here? We're only
talking about motorized snow vehicles. We're not talking about
anything else, about all the other areas where you're leaving
municipalities vulnerable because of amendments to the Municipal
Act that should have been passed many years ago.
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Mr Spina: In
all fairness, we are not here to fix the world's problems.
Mr
Gerretsen: Right on. I agree.
Mr Spina:
What we are trying to do is address the snowmobile issue. From a
snowmobiling perspective, from the objectives of this bill, this
is far greater than what we could expect in this instance. This
bill is intended to address the sustainability, the safety and
the enforcement of snowmobile issues.
In my opinion, the insurance
blanket coverage for the municipalities would be sufficient from
the snowmobiler's perspective. If you want an opinion from
counsel from the Ministry of Transportation, they have offered to
provide that. They need a few more minutes. It's your choice.
Mr Levac:
That's probably the specific reason I still want the amendment to
stand: to address the concerns that were raised by the
municipalities while they were discussing the bill at hand. To
me, their concern was emotional enough. When I heard them they
basically said, "We need to solve this problem, or..." They never
said what was after the word "or," but the implication that was
given to me was, "We are not going to give people access to these
road allowances because we don't believe our liability is covered
off." I repeat what my friend beside me has indicated to us. We
are addressing the specific the bill is addressing. The specific
is the snowmobiles.
My concern, as I hear the
discussion, lies with what we do with this. There is the
possibility that the municipalities may act in ways that require
us to look at their vulnerability to a lawsuit. They may indeed
do things. My understanding of liability is that negligence does
not allow lack of liability to run into it. If you're negligent,
you're negligent even if you're not declared liable.
Mr Spina:
That's right. Even if you are declared liable, that happens.
Mr Levac: If
that's the case, it means that even if the broad stroke of this
brush says we are concerned about how large a liability you are
exempting from this municipality using a snowmobile, if they're
still negligent, if they park a rock right in the middle of the
path or they park a school bus or one of their snowplows there
and a snowmobile hits it and it is shown that they were negligent
by allowing that plow to stand there, they're still liable,
because negligence is negligence. It goes beyond liability.
Even if there is a statement
in here that protected them from that, the municipalities are
asking for common liability. That means that if the snowmobiler
is doing things he or she is responsible for, they can't go to
the municipality and say: "We're suing you because that path is
there. We're suing you because we were using a piece of city
property and we want to name a bunch of people so we are after
somebody for our negligence."
By doing it that way, we are
providing the municipality with that one piece of wording that
says, "The concern you had about snowmobilers using municipal
property is now covered off in this bill promoting snowmobiling
sustainability." It is specific to the snowmobile bill. A
snowmobiler using a tract of land owned by the municipality can't
hold the municipality liable. As I said before, negligence
eliminates either side. But it covers it off for the common
liability of the municipalities.
I agree with my colleague:
whether or not we include 4x4s, RVs or anything else is for
another day, another moment, another time. The municipalities
made it clear that they weren't talking about all-terrain
vehicles for that specific request. When I spoke to Mr List, I
said, "If I offered you an amendment that said `snowmobiles,'" he
said, "It's a good start." He did refer to 130 years' worth of
municipal law that didn't allow anything other than walking and,
I think, running-
Mr Spina:
And bicycles.
Mr Levac:
Sorry, bicycles were included in that. So I guess this is the
first baby step toward cleaning that up, but it's all within the
scope of this particular bill.
The second comment I would
make to that, if in the long run this is voted down, is I would
recommend somehow, if it's within our prerogative to do so, to
indicate clearly the notes that were presented to us to the
municipalities. I don't know how that gets disseminated and I
don't know how the interpretation is done, whether or not that's
within our scope, our mandate. I'm not looking for the reasons
why my amendment didn't pass. What I'm looking for is an
explanation to the municipalities that, indeed, your words were
heard very clearly by the hearings and by the committee. We
understand that you have concerns about it and our research
indicates very clearly that you already are covered off. If
anything, I'm looking for one more step that may be beyond this
committee-I don't know-but if this amendment is not to pass, then
the municipalities at least know there's a reason why it didn't pass and the
interpretation, because I do have a sneaky suspicion that we will
be getting more than one interpretation of whether this is
advisable or ill-advised.
The Chair:
In fact, I saw a lot of head shaking among the lawyers in the
back of the room when you made some of your comments. I won't
offer my own legal opinions, but there seemed to be some interest
in perhaps getting involved in the debate. I don't know, Mr
Spina, whether it would be appropriate for you to invite someone
forward to deal particularly with Mr Levac's suggestion that
negligence would still be something that could be pursued in the
face of this amendment if it were to pass. But dealing with your
second point, Mr Levac, it would be quite appropriate when we're
done with the bill if you wish to make a motion that the
committee request the Ministry of Municipal Affairs to transmit
to all municipalities in Ontario the findings of their reviews
occasioned by your amendment.
Mr Levac: I
do have a concern-and Joe knows this-that the municipalities may
act in a reactive way for the snowmobilers, and I do not want to
see that. If that answers their question I think that would
help.
The Chair:
Exactly. If you want to make your motion any more specific, you
might ask them in that letter to invite responses if any
municipality is getting contrary opinions. Any further
debate?
Mr
Gerretsen: Just a couple of comments. First of all, I
agree with everything that my colleague says, except for one
thing. When he said that there's a possibility this amendment
could be voted down, I know for a fact that this is not a
government-whipped vote, and surely to goodness I appeal to the
good, clear common sense of each one of the government members to
use your own good sound judgment to see whether or not this
amendment makes sense. I'm absolutely positive that it will carry
the day ultimately.
But I just wanted to make one
other comment. That's twice now you've mentioned, "Oh well, a
municipality's liability insurance policy will cover this." I'm
not sure whether you're aware of this, but in the mid-1980s-and I
know this government quite often likes to talk about what
happened in the mid- to late-1980s-municipalities were put to a
huge expense in the liability policies that they then had to get
for their municipalities, basically as a result of a couple of
rather famous or infamous court decisions in which individuals
were awarded millions of dollars as the result of, I believe, a
child falling down a cliff in a quarry. It put the whole
municipal sector at that time in a tremendous spin because all of
a sudden they were facing all sorts of unforeseen costs as a
result of premium increases that they simply didn't anticipate. I
think that may very well happen again as a result of the extra
potential liability that may fall on municipalities as a result
of this act passing. You could say that may only be marginal
because municipalities take on many, many risks, but let me
remind you that unopened road allowances are basically in rural
municipalities that are very small municipalities operating
usually on very small budgets. These are exactly the
municipalities that may very well, as a result of insurance risks
that are undertaken that they didn't have to absorb before, be
subject to these higher insurance costs and premiums. So, in
effect, smaller municipalities that have got more unopened road
allowances may end up paying more.
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I would not like to see
anything, particularly with respect to the fact that
municipalities are already under the financial gun for a variety
of reasons that I won't go into right now because I don't want to
be here until 6 o'clock-but you and I know them and you've heard
them all many times before. We shouldn't be doing anything here
that could potentially increase municipal costs, particularly for
the small, rural municipalities that are represented by Mr
Barrett, for example, who I find to be an extremely honourable
and engaging individual and I'm sure that he will see the wisdom
of passing this resolution. I'll just leave it at that.
The Chair:
Any further debate?
Mr Spina:
The last point is that I know the case that Mr Gerretsen refers
to because in fact it was in my own home town of Brampton where
the case happened. That's where there was a quarry; it was
municipal land. The child went on a bicycle and did his little
motocrossing issue. They ended up suing the municipality. That's
what sent the municipality scrambling to ensure their liability
was in place. The end result was that all municipalities have
already upgraded their coverage, but, in addition, I might add
that the case was overturned in Superior Court after that.
The Chair:
Any further debate? Seeing none, I'll put the question. All those
in favour of the amendment? Opposed? The amendment is lost.
Shall section 5 carry?
Section 5 is carried.
That takes us now to section
9.1, the amendment from Ms Lankin. Again, it's been read into the
record and there's no need to do that for a second time. But I
will invite debate on that point.
Ms Martel:
Just to follow up on Frances's point when she raised this during
the debate on November 22, the purpose of the amendment is to
make it clear to the snowmobile community that within their own
piece of legislation, which obviously Bill 101 is, they would
understand what their powers are and what those designated powers
are as well. She made it clear at that point, and I think she's
correct, that most snow clubs would not normally reference the
Provincial Offences Act to determine what the discretion of the
Solicitor General was with respect to making such appointments.
So it would be better that it would be clear in this act that the
Ministry of Transportation had that power to designate such
people to exercise the powers that are outlined in this piece of
legislation.
I understand, I think, the
legal reply. I'm not convinced, however, that it couldn't be done
if the only reason is that it's felt that the proposed amendment
might be redundant and therefore the Red Tape Commission might be
concerned with that. Frankly, for me, that's not a good enough
reason not to do it. The Red Tape Commission has enough other things to worry about.
To not do it because they might consider it to be a duplication
is not a good enough reason for me.
I was concerned about the
section, though, that said that consultations with the Ministry
of the Solicitor General-with police organizations it was felt
that this would be an incursion into their area of
responsibility. I'm concerned about that because I just wouldn't
have understood that that would be a problem for them. I would
think that most police officers have better things to do than to
be on the trails dealing with people who are speeding and who
don't have permits. I actually would have thought this would have
been of some assistance to them. Now maybe there's someone here
from the Solicitor General's ministry or someone from legal staff
who communicated with the Solicitor General's office to determine
if I'm wrong in my reading of that. But I would have thought that
this would have been a benefit by taking away some of the
responsibilities that they would otherwise be better left to in
terms of policing on the streets of our community. I don't know,
Mr Chair, if we have someone here who could respond that to tell
me if my read of that is wrong.
Mr Spina:
There is counsel here from the Solicitor General, if you
wish.
The Chair:
Ms Martel, you're free to invite anyone forward if you like. Good
afternoon. Perhaps you gentlemen could introduce yourselves for
the purposes of Hansard.
Mr Chris
Diana: My name is Chris Diana and I'm counsel with the
legal services branch of the Ministry of the Solicitor
General.
Mr Leonard Lee
Tung: I'm Leonard Lee Tung, policy analyst, Ministry of
the Solicitor General.
Ms Martel:
If I can repeat my concerns about one of the bullet points-I'm
sure you've got the two pages in front of us-the third bullet
point, second page. The consultations with police organizations
by your ministry found that police (a) would generally view the
amendment as an incursion into their area of responsibilities,
and (b) are concerned with the liability issues associated with
it. I wonder if you can clarify those two concerns for me?
Mr Diana:
With respect to the first question, on the incursion into police
enforcement jurisdiction, legally it doesn't go into the police
jurisdiction at all. It's really a resource issue and not a legal
one. That's what it sounds like your question is asking. It
doesn't derogate from the powers of the police.
Ms Martel:
Why would the police have told the Solicitor General's office
that they view this amendment as an incursion into their area of
responsibility?
Mr Diana: I
think that's Leonard's area.
Mr Tung: The
feedback we got from police circulars is that they felt any type
of enforcement should be done by the police. There is a program
called the Snowmobile Trail Officer Patrol program, a joint
program between the police and the Ontario Federation of
Snowmobile Clubs, which provides enforcement on the snowmobile
trails. It is felt that that program should be the proper one to
enforce the certification as well.
Ms Martel:
Their concern was that only STOP officers should be allowed to do
enforcement, not trail wardens. Am I correct?
Mr Tung:
That's right.
Ms Martel:
Can I apologize by asking you what the distinction is between the
two? I'm sorry, what is the difference?
Mr Tung:
There is a special selection and training process for our program
and there is supervision by police services in their respective
areas. That is the major distinction there.
Ms Martel:
And the trail wardens are strictly OFSC staff people who are not
supervised by police with respect to any kind of enforcement. Is
that correct?
Mr Tung:
That's right.
Ms Martel:
How is it then, after you've said that, that OFSC trail wardens
can still enforce mandatory trail permits on private property?
The police don't see that as taking away some of their
responsibilities as well?
Mr Tung:
The type of enforcement they do on private property is that if
they notice someone operating a snowmobile on private property,
they can ask them to leave the snowmobile trail. Under the
Trespass to Property Act, they can ask them for information as to
their name and address and provide that information to the
police.
Mr Spina:
Shelley, the basic difference is that the STOP officer is a sworn
special constable under the OPP; the trail warden is a volunteer
member of the local snowmobile club. The STOP officer is also a
volunteer. The difference is that the STOP officer essentially
has, as a special constable, almost the same powers as a police
officer.
Ms Martel:
Because they've been deputized. Is that why?
Mr Spina:
Because they've been deputized, exactly. A trail warden at this
point, under the current legislation, has the ability to lay a
charge under the Trespass to Property Act, and that's it.
Ms Martel:
Only on private property.
Mr Spina:
No, they can also lay a charge where there is a land use permit
under the Ministry of Natural Resources, where there is an LUP,
on the vehicle only.
Ms Martel:
Sorry, I was just reading bullet point number one and it says
that they do not have that ability on crown land.
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Mr Spina:
They do not have that ability on crown land. OK. That's new to
me. They don't have the ability to lay the Trespass to Property
Act on crown land? Is this what I'm hearing, Chris?
Mr Diana:
To my understanding, they do not have the ability, not the
provincial offences officers.
Mr Spina:
No, I'm not talking about them. I'm talking about the trail
wardens under the current legislation.
Mr Diana:
I do not believe that, although I'd have to go back and review. I
can't give you a definitive answer on that.
Mr Spina: There is a current
memorandum of understanding between the federation and the
Ministry of Transportation, but I'm not sure about the crown land
issue. I do know they can lay charges under the Trespass to
Property Act, on private lands, certainly. I was always under the
impression they can also do so where a land use permit has been
issued by MNR. What was asked in the public hearings by the
various regions of the snowmobile clubs was that the trail
wardens be empowered to enforce the permit, as we have outlined
in this bill, and have the opportunity to enforce that
permit.
It's a question of whether
they would only be allowed to enforce the trail permit on the
trail, where it has been designated a trail, or whether they
would be allowed to enforce other elements of the act, such as a
STOP officer or a police officer would be entitled to ask for
essentially the four or five pieces: the registration-ownership
from the Ministry of Transportation, an insurance certificate, a
valid driver's licence or operator's licence and then the trail
permit. Those items would all be able to be asked for by a police
or a STOP officer designated under the Provincial Offences
Act.
The concern here is that in
the Provincial Offences Act it says that "a minister of the crown
can designate" and it doesn't define within that act what is
meant by "minister." So essentially, the federation could solicit
any minister to put a case forward to have them deputized to
whatever degree you want them deputized or given powers of
enforcement. If you don't understand, just ask, OK? So any
minister can do that. It could be the Minister of Transportation,
it could be the Solicitor General or it could be the Minister of
Tourism for that matter.
Technically, under the
Provincial Offences Act, by putting this amendment in this act,
the references to "minister" in this act are specific to the
Minister of Transportation. The Solicitor General has personally
indicated to me and to us that he would rather retain that power
to the Solicitor General rather than relinquish it to the
Minister of Transportation specifically. That's a political
policy point I bring forward which these gentlemen would not be
in a position to do.
Ms Martel:
It sounds like a turf war to me.
Mr Spina:
In a manner of speaking, except that from what I understand, both
the Minister of Transportation and the Solicitor General tend to
agree on this. The Minister of Transportation is saying, "Fine,
give it to SolGen," and SolGen says, "Let me look after it."
Ms Martel:
Can I just be clear? I'm sorry, I don't want to prolong this. The
issue started as one of resources, I would think: do snowmobile
clubs have enough resources to actually make this act work? For
example, if you don't have enough STOP officers, there are parts
of this bill you are not going to be able to enforce only with a
trail warden. Correct?
Mr Spina:
Yes.
Ms Martel:
This ongoing issue of are you going to have enough STOP officers
or are you going to have police officers out on the trails when
they could be doing something else is not really resolved. The
issue is that the clubs will now have to go to the Ministry of
the Solicitor General instead of MTO-
Mr Spina:
Or any other minister under the POA.
Ms Martel:
-to try and get designation of officers who would have the
ability to carry out all aspects of the act. Is that correct?
Mr Spina:
Or even certain portions of it.
Mr Diana:
Perhaps I can help clarify this. One of the problems with this
proposed amendment is that it is inconsistent with the Provincial
Offences Act. As stated, the Provincial Offences Act allows any
minister to designate a class of persons as provincial offences
officers. The effect of this amendment is to allow only the
Minister of Transportation to make this designation in that one
narrow respect. So for legislative drafting, it's not proper
form.
From what I understand, the
way it usually works in practice is that the minister who has
jurisdiction over the act, in this case the Minister of
Transportation, may enter into a protocol with other interested
ministers. For example, if the Ministry of the Solicitor General
wishes to have a team of persons classified as provincial
offences officers, the minister may enter into a protocol with
the Minister of Transportation, who actually does the
designation.
I think that to allow this
amendment-I mean, you can make this amendment with a lot of acts,
state for greater clarity that such and such minister has the
power to do this. But that's why it's been put into the
Provincial Offences Act rather than having it in every other
act.
Ms Martel:
So the way to deal with Frances's concern would be a protocol
developed between the two, if that becomes necessary.
Mr Diana:
Certainly.
Ms Martel:
Mr Chair, based on what I think I understand, I would probably
withdraw the amendment that we proposed, given what I have heard,
and assume that if there's an ongoing problem, there will be a
protocol developed between the two ministers.
The Chair:
The motion is withdrawn.
You can still speak to a
motion that has been withdrawn, Mr Gerretsen.
Ms Martel:
If he would like to put a-
Mr
Gerretsen: No, no. I'm a little bit concerned, though,
as to what power these trail wardens in effect will have. I know
they have power on private property, provided that they have the
authority of the landowner to act under the trespass act. They
don't have powers on crown lands. What I'm concerned about is
that the general public that uses snowmobiles are somehow left
with the impression that these people have greater powers than
they really have. All they can really do is enforce that
snowmobilers have permits; that's all they can do. They can't get
involved in any other provincial offences, because the police
don't like it, and I can understand that. They don't want all
sorts of people running around with police powers that maybe they
shouldn't have except for very limited purposes, as we quite often have for traffic
violations in the sense of parking tickets and stuff like
that.
Are you concerned at all,
Solicitor, over the fact that these trail wardens are really
being-an impression is being left with the general public,
whether we agree to that here or not. The general public is going
to think, "Hey, there's somebody in authority. They've got a
right to do something," when that person in authority can really
only do one thing, and that's issue a trail permit so that the
organization can get more money. I mean, that's really what it's
all about, and perhaps rightfully so. But are we not concerned
over the fact that there may be a perception that these people,
as trail wardens having this right to stop people on private
property and issue them permits, are going to be viewed by the
general public as being greater enforcement agents than they
really are? Is there almost like a threat of an intimidation
factor here? Is that a concern to you as a lawyer?
Mr Diana:
Frankly, I can't speak to the perception of the general public,
but I think Leonard might be better able to answer this.
Mr Tung: I
don't know whether there's a representative of the OFSC here. Is
there a representative from the OFSC?
The Chair:
With the greatest respect, I've indulged Mr Gerretsen just to
satisfy his curiosity, but considering that the motion has been
withdrawn, there's nothing to debate, strictly speaking, Mr
Gerretsen.
Mr
Gerretsen: Well, what indulges my curiosity are the good
points from the ministry here, which quite frankly are very
clear, and I've got to congratulate you, Mr Spina. You're doing
your job. But the problem is that people may be left with the
general impression that these trail wardens are more than they
were really intended to be, and I'm sure you're concerned about
that.
1640
Mr Spina:
I'd be happy to make a short clarification, Chair, with your
permission.
The Chair:
Absolutely, Mr Spina.
Mr Spina:
Currently, if an individual is caught on the trail without a
permit within the jurisdiction of the trail warden, so they don't
get issued a charge under the Trespass to Property Act they can
buy a trail permit for the $150 and a $30 surcharge. This bill,
if and when passed, would make that redundant. In fact, it could
no longer be in place, because it would then appear to be, and
would be, in fact, extortion. If you're enforcing a provincial
statute, you can't say, "Buy the permit from me now, pay the
surcharge, or I'm going to fine you." We have parking meter guys
who would go to jail for that.
Essentially, the fact that
we implement this in the bill would negate the power of the trail
warden to do that kind of thing. The powers that they would end
up with in the long run would strictly be left to the
circumstances of the regulation and the minister, should they
decide to empower them in any other way.
Mr
Gerretsen: So we're leaving it to regulation, in which
the general public won't have any say.
Mr Spina:
They got it in the bill.
The Chair:
Given that that has been withdrawn, we shall proceed to pose the
question.
Shall Bill 101, as amended,
carry? It is carried.
Shall I report the bill, as
amended, to the House? All those in favour? Opposed? I shall
report the bill to the House tomorrow.
With that, the
clause-by-clause is concluded on Bill 101.
Mr Levac.
Mr Levac:
Mr Chairman, I don't know if a motion is required, or just a
request?
The Chair:
It doesn't matter, but it might have greater import if the
committee endorses a motion.
Mr Levac:
I'll try to do it as such, then, so forgive my inability if I
don't get it right.
I would move that following
the clause-by-clause consideration of Bill 101, municipalities be
notified of the findings of senior counsel of the Ministry of
Municipal Affairs and Housing regarding the briefing notes
provided to us on the liability of municipalities in the use of
the unopened road allowances.
Is that close?
The Chair:
Sorry. Was the word "request" in there?
Mr Levac:
That we "request municipalities be notified."
The Chair:
Does everyone understand the motion?
Mr Spina:
It was my understanding that if we were going to put a motion
forward, it would be a directive to the Minister of Municipal
Affairs, as opposed to all of the municipalities.
Mr Levac:
Through the Minister of Municipal Affairs and Housing.
Mr Spina:
Yes. Could you repeat it then, please?
Mr Levac:
I wish I could. I've been jostling as I've been going around
through this. The essence of the motion is to request the
Ministry of Municipal Affairs and Housing to notify the
municipalities of the findings of senior counsel regarding
liability on unopened road allowances.
Did that clarify it,
Joe?
The Chair:
Mr Levac, are you asking they send the actual pages or a
précis of that in letter form?
Mr Levac:
I'm open to a package that they get, so that they understand that
counsel believes it's already covered off-
The Chair:
We are talking about the briefing note related to the 6A that we
debated.
Mr Levac:
To the amendment, yes.
Mr
Gerretsen: Would it be appropriate at this time to move
an amendment that Mr Spina go as a delegation and visit each and
every municipality and advise them of the ministry's
position?
Mr Spina:
No.
Mr
Gerretsen: No? OK. I was just curious.
Mr Levac:
Just speaking quickly and briefly, my hope is that since the
amendment didn't pass, municipalities would be given the
interpretations of counsel so that this would address their concerns brought to us at
the hearings. That's basically what I want.
The Chair:
Does everyone understand the motion on the floor?
Mr Ted Chudleigh
(Halton): I'm just a little concerned and I think it's
downloading costs to municipalities. I don't think I can support
the motion on that basis.
Mr Levac:
Downloading costs?
Mr
Chudleigh: You're suggesting that they may have to take
out increased liability because of this bill.
The Chair:
Perhaps this is the hazard of not having the written motion in
front of you. The motion is that the Ministry of Municipal
Affairs will simply send a letter to every municipality informing
them of the conclusions they've arrived at pursuant to the debate
on this amendment. That's it.
Mr
Chudleigh: How will that be interpreted by
municipalities?
Mr
Gerretsen: That's why I wanted to go with the
delegation.
The Chair:
Might I suggest, Mr Levac, that the preamble could simply cite
the fact that a municipality raised this during the debate.
Mr Levac:
Yes.
The Chair:
In our request to the Minister of Municipal Affairs, that would
be the legitimacy for our motion: for information only. Is there
any further debate? Is anyone unclear on the motion? You're not
clear on it?
Mrs Julia Munro
(York North): Only because we've had it tossed around,
not having it in writing and so forth. My concern is the weight
that a motion from this committee has.
The Chair:
To answer that, all we can do is make the request. We do not have
the power to compel. Recognizing that there seemed to be a
coincidence of opinion, Mr Levac is posing the question: Are we
interested in asking the ministry to do something?
Mrs Munro:
My reaction is-and perhaps it is covered by this as a
request-that the committee recommends; has a recommendation as
opposed to a motion.
The Chair:
Strictly speaking, even that could be deemed-if you're suggesting
that we do it just by general agreement, without a vote, that's
really not all that different from the way many amendments are
decided anyway. If no one disagrees when you put a question, you
could argue that there wasn't, strictly speaking, a canvassing of
all the members. I'm in the hands of the committee. If you simply
want to put it on the record as a request and know that the
representatives from the Ministry of Municipal Affairs are here
in the room now, that would be-
Mr Spina:
They're not here.
The Chair:
They're not?
Mr Levac:
I'm OK with that. I'm just after informing the municipalities,
who came to us with a direct request to amend this, with the
rationale that was used to defeat the amendment. Quite frankly,
they deserve that no less than the information that was used to
defeat the amendment. It has no ulterior motives other than to
simply inform and request that that information be disseminated
to the municipalities, to say, "Hey, by the way, we believe you
are already covered on liability." That's all I'm asking for. If
it is to remove the motion and just simply ask it as a
committee-
The Chair:
There's a motion on the floor right now that the committee make
that request. Any further debate? All those in favour of the
motion? It carries.
Actually, as an action,
might I suggest the motion say that the clerk be requested to
write to the Ministry of Municipal Affairs. I think that was the
motion we just voted on, was it not? Yes.
Mr Levac:
That's what I thought I said.
The Chair:
If there's no other business before the committee this afternoon,
the committee stands adjourned until the call of the Chair.
