Legislative Assembly of Ontario

MOTORIZED SNOW VEHICLES AMENDMENT ACT, 2000 / LOI DE 2000 MODIFIANT LA LOI SUR LES MOTONEIGES

CONTENTS

Monday 27 November 2000

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
Ms Frances Lankin (Beaches-East York ND)
Mr Joseph Spina (Brampton Centre / -Centre PC)

Also taking part / Autres participants et participantes
Mr Allen Doppelt, counsel, legal services, Ministry of Consumer and Commercial Relations
Mr Eric Endicott, counsel, Financial Services Commission of Ontario

Clerk / Greffière
Ms Anne Stokes

Staff /Personnel
Ms Laura Hopkins, legislative counsel

The committee met at 1550 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): I call the committee to order. the first order of business would be to receive a motion. Mr Spina.

Mr Joseph Spina (Brampton Centre): I move that the committee move into clause-by-clause for Bill 101.

The Chair: Any debate? Seeing none, all in favour? Opposed? Carried.

With that formality out of the way we'll proceed immediately into clause-by-clause. Bill 101, An Act to promote snowmobile trail sustainability and enhance safety and enforcement.

Any comments or amendments to section 1?

Mr Dave Levac (Brant): Excuse me, do we move into an opening statement at all?

The Chair: The normal modus operandi of many of the members is that on the very first section they can indulge themselves, rather than setting aside a formal time. You can take as long as you want, up to 20 minutes, for any interjection.

Mr Levac: Thank you. As the members of the committee know, and the snowmobiling community at large knows, there were some concerns raised regarding Bill 101, An Act to promote snowmobile trail sustainability and enhance safety and enforcement, that were heard mostly up in the north.

I believe that our purpose today is to address that and I know that Mr Spina has worked very diligently at this process and has worked very hard with the community at large, particularly with the snowmobiling community, to get to their needs. Maybe it's multi-faceted. My understanding is that he had to deal with three ministries in trying to-

Interjection.

Mr Levac: Even more, Mr Spina? Five, I hear. Five ministries, each of them having their own desires to be fulfilled. I compliment him on his ability to try to pull this together, and I sincerely mean that.

We have raised some of the concerns at committee, but mostly the snowmobiling clubs themselves have raised some of these concerns. When it first came out before the hearings, when I first heard about the bill, I didn't have a large concern and then realized that there were things being proposed that the community itself had some difficulty with and that affected groups outside the snowmobiling community. There were hunters and anglers and trappers, private property owners themselves, farms.

One that we found that was rather interesting and unique to try to tackle was municipalities. There were areas in which snowmobiling clubs would go through some municipal properties, leaving liability in question, so we're going to have to address that as well.

What I've learned is that it's a community that prides itself on it's own volunteerism, and it's a community that has done an awful lot of work to try to promote and enhance the sport of snowmobiling. The outside agencies that were involved in that also pointed out the need for the use of snowmobiles outside of just recreational use. Those are the things that I recognized, and the number of people who actually earn a living using snowmobiles was actually larger than I anticipated. That being said, the education was wonderful for me.

I will speak to individual clauses as they come up. Through Mr Spina's co-operation, I know some of the concerns are being addressed on the government side. We will be proposing a couple of areas in which we need some clarification to ensure that the bill doesn't affect the snowmobilers and the subsequent other groups outside to the detriment of the sport and/or their livelihood.

Those are my opening comments. I look forward to the rest of the clauses. I'm sure that most of them have been addressed in the amendments that have been put forward by the government, and I compliment them for that detailed work.

The Chair: Any other comments? Ms Lankin.

Ms Frances Lankin (Beaches-East York): I want to begin by saying how delighted I am to be subbed into the committee today due to the last minute scheduling of this bill. Unfortunately, both our standing committee member and our critic were unable to attend this afternoon.

Although this is not a bill that I've heard a great deal about in my own riding in terms of concerns from constituents-the great constituents of Beaches-East York haven't been ringing up my phone a lot on this-it is a bill that I have a great deal of interest in in my extended circle of colleagues, friends and citizens in the province. I have spoken to a number of people about it. I had the opportunity to speak a few weeks ago directly with the federation, and of course I've spoken to the local club that I belong to that I buy my trail permits from and the trail wardens who are involved there.

As committee members know in the history of this, the snowmobile clubs of Ontario have for some time wanted to see a move to the mandatory permit and they're very supportive of the direction of the legislation. Their concerns I think are concerns that have been warranted, however. For example, one of the largest issues is with respect to the enforcement of the new provisions in the bill. The bill as it is set out provides that those enforcement measures really are in the hands of people like the OPP and the Ministry of Transportation.

In terms of checking mandatory trail permits, the trail wardens, the members of the club, the people who do all the work, who do all the fundraising, who do all of the trail grooming, who certainly are the life and spirit of these communities in keeping their clubs and the activities going and keeping the trails in shape for people right across the province and for tourists from outside of the province to travel through their area, feel very strongly that there should be an enforcement role for trail wardens, for the clubs themselves, that it is a local issue and a local initiative.

The STOP officers currently have sworn powers that are similar to some of the other higher levels of law enforcement, and I'm sure there must be a way for bringing trail wardens into that. I know Mr Spina is aware of this problem. I've spoken to him about it directly and I raised it in a statement in the House. He's assured me that he's looking into this. I hope that today he might be able to give not just the committee but the snowmobile club community some assurance of the direction that the government might proceed with respect to this issue.

Secondly, the issue of exemptions: There are numbers of people, traditional users of the trails, like trappers and prospectors, as well as people who require using the trails to have access to their cottage property, and others where that may be the only method of winter access into their properties; certainly intermittent use by people who are ice angling. Those sorts of issues have been well explored in front of the committee and I think Mr Spina is well aware of them. But I think the opportunity for those to be set out in regulation and for those exemptions to be granted, monitored and controlled by local clubs under regulated categories is very important, and I think it's critically important that there not be fees attached to that for those kinds of exemption permits. Again, I think Mr Spina has been quite supportive on that issue.

Thirdly, I just want to briefly address the issue of cost of permits. Over the last few winters, with the conditions we've had and the much-shortened season, I hear from local folks up north where my club is that the cost of permits is something that is becoming prohibitive for families who want to snowmobile together as a family, who have multiple sleds.

I think it is an issue that can't be addressed through the legislation. I am appreciative of the amendment that is coming forward which changes the power of the minister to fix the fee to a power to authorize the fees so that the clubs, those which are most sensitive to the supply and demand and the issue of how they set the price in order to maintain sufficient funds for the running of the clubs, the grooming of the trails and the upkeep and maintenance of the equipment and the trails, but also sensitive to the number of permits that are being sold and the affordability of those permits to local people-I think that balances once that's understood through the local clubs with input to the federation. That's an important amendment that is coming forward.

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I would say overall, however, that the contribution that snowmobiling makes to our economy, particularly to our northern economy and winter tourism, is incredible. It has been increasing over the years and it is one that must be recognized, I believe, by greater government investment in the expansion and upkeep of the trail system. I had the honour and opportunity when in government, as a member of treasury board, to look at the first proposal for the TOPS trail program that came forward. Somewhat to the surprise of many of my colleagues who only knew me as the southern Toronto MPP, I spoke very strongly in favour of it because I understood what it would mean to the northern economy.

In a small part of the world that I visit frequently in northern Ontario, I can tell you the number of local tourist operators that have gone from seasonal to year-round as a result of this. Where they were only summer operations, now with the snowmobile business that comes through there they have been able to take the steps to winterize and to provide that service. That has allowed them to innovatively find the spring and fall seasons. Many of them now promote the deer hunt and moose hunt and other activities in the spring, ecotourism among them.

I think that my last pitch is outside of the bill. I just wanted the government to understand the importance of not just the investment that has already been made, which is significant and has been for a number of years in Ontario, but of the amazing return on the investment dollar that we see in our economy and the need for the government to expand and increase its investment. Thank you.

The Chair: Ms Lankin, you're certainly welcome to the committee, joining us whether it's at a late stage or not, and you clearly are not at a disadvantage on the subject matter, it would seem.

Mr Spina: I want to thank the opposition members for their kind comments and their familiarity with the subject. I say to the member from Beaches-East York, I know you don't have a lot of snowmobiles in your area, but you have an influential person who lives in your riding. I don't know if you know that.

Ms Lankin: There are a number of us, actually, gentlemen.

Mr Spina: I meant in the industry. He is a journalist with SnowGoer magazine, and I teased him, "You must be the only snowmobiler in the Beach." He and his wife live in your area and they travel a lot. If you ever look at the back page of SnowGoer magazine you'll see his regular column. He takes a lot of photographs and so on.

I just wanted to thank the members, and also the members of the committee. This has been a long process, 11 months now, since we embarked on this beginning with the consultation back last winter from which we received numerous pieces of information and feedback from many of the stakeholders in the various industries. Furthermore, as a result of that process, a number of these individuals were invited to make presentations.

We took an unusual gesture, and it was really to try to make this more time-sensitive. The unusual gesture was that we went to public hearings on the committee after only first reading, which is not normally the case. We did that for a specific reason. We wanted the public hearings to be more part of that consultative process rather than waiting for it to come back to the House for second reading this fall-a question of the amount of time available-second, different parties tend to become more entrenched in their positions after we get to second reading, and we felt that it was important that the bill have as much flexibility and opportunity as it could have to really reflect the needs and desires of the population.

The snowmobiling and non-snowmobiling and non-recreational users were identified as part of this process, and I'm very happy we were able to get the hearings that we had. In fact, there weren't as many numbers of people who came to the committee, so with the co-operation of all parties involved, we were able to combine some of the hearing days so that we were able to give everybody who wanted a chance to say their piece and at the same time reduce a bit of our travelling costs. At any point, of course, as we all know, even those who were concerned about taking the time and expense to make a presentation to the committee, the committee is always available there to try to bear the costs of that expense if the committee agreed, and I think we've covered that off.

The reason we got into this was twofold. One was the apparent need for sustainability of a trail system that was maintained, as my colleagues have indicated, largely by volunteers who commit many long hard hours of work into maintaining these trails. However, we did have a situation where we had a large number of users both from within the system, from within Ontario, and from outside Ontario who wanted to have access to the system.

At the same time, the federation was running into essentially a shortfall of operating funds. They had some capital dollars which had been given to them from the northern Ontario heritage board, but those were restrictive to that area defined clearly under government regulations as northern Ontario. We have a lot of trails in this province south of Muskoka-Parry Sound. We have a lot of trails, in fact, in eastern Ontario which are substantially used trails, both by residents of Ontario and guests to our province.

In addition to that, the other side of it was the act called the Motorized Snow Vehicles Act, which essentially had been barely touched since 1972, when it was first enacted. Clearly there were elements of that bill-the MSVA, as it is more or less affectionately or non-affectionately known in the Ministry of Transportation-which were out of date, were too general in nature.

Bill 101 afforded the opportunity for the Ministry of Transportation and the Ministry of Finance to bring a few amendments forward that basically cleaned up some of the elements of the outdated bill. There were some pretty fundamental elements in the bill where it was very general in describing motorized snow vehicles. It did not define classes of motorized snow vehicles. It did not define classes of individuals who would be users of the trail system.

The memorandum of understanding that existed under the MSVA with the federation of clubs had only been amended once when the amalgamated clubs I think took place here, and under the one federation of snowmobile clubs for the entire province. A lot of these elements had to be addressed: issues of safety, use of reflective materials, helmets, headlights and lighting features. All of these kinds of things were under the MSVA. Some of the standards had been adopted by the industry without really being in legislation, but it wasn't consistent. Bill 101 will allow that consistency to now take place with those safety measures.

Some of the enforcement measures have long been wanted by many people in our society as general citizenry. Those were safety issues. We wanted, as a public, to make it a safer recreational sport. Elements such as the amendments in 101, which more closely tied the use and operation of a snowmobile to the use and operation of vehicles under the Highway Traffic Act, were very critical elements that we wanted to see in the act. To some degree these could have been enforced in the past, but it was far more difficult.

This makes it a lot easier. If an individual has, for example, a suspended licence or is charged for whatever reason, usually an impairment charge, that charge not only applies to the one area of snowmobiling but also applies to the area of the operation of a motor vehicle. Conversely, where an individual's licence has been suspended for a conviction under the Highway Traffic Act, they would also be suspended from driving a snowmobile. We think this was only fair. These vehicles, as we all know, can travel as fast as many motor vehicles, into the 60-, 80-, 90-, 100-, 120-kilometre-an-hour range. Frankly, a snowmobile driven carelessly or under the influence can be as dangerous to the individual and to the public as it would be for any individual driving a motorized snow vehicle.

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So the enforcement elements of this act also bring it closer to the Highway Traffic Act, and I think there are very few people who actually would complain about that. I think we all agreed that what we did want was a safer snowmobiling recreational sport for the province of Ontario.

Frances, thank you for talking about the economic impact of snowmobiling, because in 1997 the snowmobile federation did an economic impact study using a very legitimate, qualified model, which was the economic impact model from the Fraser Institute, which is highly accepted and highly regarded by governments at all levels. In that economic impact study, they determined that snowmobiling was at that time, in 1997, a $932-million industry in this province. With good weather conditions over the last couple of winters, it could well have broken the $1-billion mark. That is the recreational winter sport with the largest economic impact in our province, and it deserves the attention that I think we, as a government, should give it.

I compliment the NDP government of the day, in 1992, for instituting what was called the Sno-TRAC program. At that time, it was a $20-million investment in the snowmobiling industry to essentially create the interconnected, province-wide, border-to-border-to-border trail system that we have today. Sno-TRAC was what enabled the industry to be as successful as it was in terms of its economic activity, as I say, from border to border to border. That was a capital investment.

What we face today, of course, is now the ability to be able to allow that integrated system to operate. So the capital dollars and the investment was there to create the system, and now what we find is that we need sustainability dollars. That will clearly not be addressed just by this bill, or by the requirement of trail permits. However, I will say for the record that this government recognizes the importance of snowmobiling and the fact that the trail permits and the fee levels, such as they are today, are probably about as much as the market could possibly bear. They are certainly above those of many other jurisdictions across North America. However, those jurisdictions are in the position of having a mix of total private sector use and a toll user-pay system versus a partially or fully government-funded system. That makes the difference, to a large degree, between a $150 fee in Ontario, a $170 or $180 fee in Quebec versus a $35 fee in the state of Michigan, where it controls the entire trail system: it owns the groomers, and it pays the state park employees to groom the trails. But that's a considerable government cost to the taxpayer.

What we're seeking to achieve here is really a blend of user-pay with government-subsidized trail systems, recognizing the value of the economic impact of the use of the snowmobile trail system and at the same time ensuring us, as a government, collectively that when tourists visit this province as our guests we can count on a consistent trail system that would be able to be delivered for the use of our guests who come to this province. That was the reason why, when I was the parliamentary assistant to the Minister of Tourism, we took on the responsibility of the leadership of this bill, but technically I think we can all appreciate the fact that the Motorized Snow Vehicles Act is a Ministry of Transportation bill and therefore it is the Ministry of Transportation that essentially owns both the Motorized Snow Vehicles Act and Bill 101.

That being said, we have a few amendments that have been put forward both from the government and opposition benches. There are some issues that may arise as a result of some of these amendments. I, along with others I'm sure, would be happy to address those.

The last element, perhaps if I may take another moment, to address was the one of traditional users and exemptions. I know there's an amendment that talks to that in a few moments. I know there is a commitment from the government to exempt the traditional users. They are defined in currently drafted exemptions, which I think is in part of the members' package, in section 3, I believe-in the appendices, I'm sorry. There is a section there that talks about proposed trail permit requirements for traditional and business users, and it identifies a number of user types.

The one thing that I disagreed with-and we have concurrence now from the minister's office and we hope that we can address this more specifically when we get to the actual outlining of the regulations. In it, it talks about a special permit being issued for exempted users of the trail system. We felt this was too prescriptive, and we have obtained, as of 1 o'clock today, the agreement that in regulation the users would be identified as exempted users of the trail system.

However, to go to the prescriptive level of actually issuing exempt permits and charging a nominal fee, we have concurrence from the minister's office that they are willing to waive that. We can clearly focus, then, on identifying those traditional users and allow the local people-who usually know that if an individual is travelling from point A, where they've left their vehicle, to point B, where their cottage is, they have to access a quarter mile of trail. Clearly, the local people know that this is in fact the case, because they know the local people, they know the portion of the trail that may be used. We had bait fishermen who were operators, ice fishermen and so forth, other users who came to us during the committee hearings, who expressed the concern that they were just taking their anglers out to the ice-fishing huts or they themselves would be using it to access their huts or using the trails for their own anglers, their customers. We fully understand that that is a very legitimate traditional user that should be exempt.

It really must be defined as the recreational user who is on the trail system for the purpose of recreational snowmobiling who would be the individual who would be bound essentially by the permit we are proposing in this bill.

That being said, I also know that with respect to sustainability, the revenue from these permits, the additional users who might be brought into using the trail system, would not address the shortfall indicated by the Ontario Federation of Snowmobile Clubs. I do know, and I am permitted to say, that there is a move afoot for a funding mechanism to assist the operations funding on an annual basis for the snowmobile trail system that is being proposed as I speak. The mechanism by which those dollars will flow is, at this point, something that I don't know, but it is currently in the process of being planned by the Ministry of Finance and Management Board to be able to determine how much those dollars would be and how those dollars would be channelled through to the support of this large economic impact system to the province of Ontario.

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With those assurances-I share that with the committee members and with the members of the public who are here-I think, Chair, perhaps we can begin clause-by-clause.

Do you need a motion to accept-what is it?-section 1 of the bill? I think our first amendment is in section 3, is it not?

The Chair: Actually, we don't need a motion. Ms Lankin.

Ms Lankin: I was just wondering if you could address one of the issues that I raised, Mr Spina, and that's the issue of enforcement. As you know, the federation and a number of the local clubs have been very concerned about the authority vested in Ministry of Transportation, OPP, STOP officers, and not in the administrative authority of enforcement, with the clubs themselves and trail wardens. It appears that there's not an amendment coming forward to address that concern. Could you tell me where you're at in your thinking with the government ministries on that issue?

Mr Spina: This was an oft-repeated request from the various regional presentations we had. In the bill, it clearly defines sworn police officers and conservation officers who have the power to enforce not just the trail permit but the other elements that would be required when a snowmobiler is asked to produce documentation on the trail, and I'll just address those for a moment: a driver's licence or an operator's permit, the MTO registration permit for the vehicle, a valid and active insurance coverage certificate and, last, the trail permit. In the latter section of the bill, if a police officer or conservation officer, CO as they refer to it, pulls someone over, they're expected to produce these documents. Then, subject to the discretion of those officers, of course, with failure to produce those, they can issue a ticket.

My question to the Ministry of Transportation-when we were going through the discussions, there was resistance to the use of trail wardens to enforce some of these. The question came forward, if Green Hornets, as we refer to them in Toronto, are empowered to issue tickets for parking meters, for example, how do they do that? Of course, they are authorized under the Municipal Act. That's a bylaw under the municipality to be able to do that. I asked if there was an equivalent within the provincial legislation. The apparent equivalent seems to be the regulation. If a regulation is set forward that would empower trail wardens to issue tickets and enforce the acts, the various elements of Bill 101 and others, then the regulation would be the one that would be in a position to empower those trail wardens.

The act strictly deals with the overriding legislation, which would therefore be the responsibility of police officers, sworn conservation officers and sworn special constables under the STOP program. The trail wardens would have to be addressed under regulation, not being sworn police officers, if we get to that stage.

Ms Lankin: A further two questions on that. Does the current legislation, or the legislation as we predict it will be amended today, provide the statutory authority for the creation of exactly such a regulation? Is the regulation-making power contained within the bill as we speak now, or within the act as we speak? Secondly, is it the government's intention to bring forward such a regulation?

Mr Spina: I think the power is there, because there are a number of elements-in subsection 2(5), which we have an amendment to, it talks about, "The minister may give authority to any person to issue trail permits and to provide evidence of such issue of trail permits and may define the duties and powers of such person." I'm not a lawyer, but there is counsel here from MTO. That may be sufficiently broad to empower the OFSC trail warden to be able to enforce the bill, because it certainly talks about defining the duties and powers of this person and providing evidence of issue of trail permits. If there's no objection, maybe through the Chair we might ask MTO counsel for an opinion on that.

Ms Lankin: I would appreciate that because, in addition to the clause you've read, I think there has to be specific regulation-making authority. I'm just looking down to subsection (5). I don't see that particularly set out there. I'm wondering if we could get an answer from legal staff to that.

The Chair: We certainly invite the legal counsel from MTO to come forward to the witness table. You heard the question. Perhaps I could get you to give Ms Lankin-

Mr Allen Doppelt: OK. My name is Allen Doppelt. I'm senior counsel with the legal branch at the Ministry of Transportation.

The question was, is there sufficient legal authority in the new section 2.1 in the bill to give the trail wardens authority to enforce the trail permits? I don't believe the existing wording is sufficient, because 2.1(5), when speaking about defining the powers and duties of such person, is written in relation to the power to issue the permits and to provide evidence of such issue of permits. I don't think it is broad enough to cover enforcement. I think if that is the desire of the committee, then there would have to be specific additional power added to the bill.

Ms Lankin: Perhaps, Mr Spina, recognizing that it would still take an act of government to write the regulation to actually bring trail wardens in-and I realize that may be another hurdle-while we are working on clause-by-clause, perhaps we can stand down that section and see if someone might be able to develop the appropriate clause to add to, I would imagine, section 8, which is the regulation-making authority set out in this. If someone could do that, we could come back to it before the end of the afternoon. If you could give the appropriate direction to the appropriate people.

Mr Spina: If it is the will of the committee to-I'm not sure. Allen, are there any other elements in the bill that would authorize the regulation to be set for trail wardens to-

Mr Doppelt: There isn't sufficient reg-making power right now in 2.1(8). I've looked as well at the general regulation-making powers in section 26 of the act. They are not broad enough or specific enough to provide such authority. There would have to be an amendment to add such a regulation-making authority.

Mr Spina: OK.

The Chair: I'll certainly take my direction from the members of the committee. Mr Spina and Ms Lankin, if it is your request that when we get to that section, we stand it down-

Ms Lankin: We stand that down, and then perhaps Mr Spina could ask appropriate ministry staff to draft an amendment that would accomplish that, that the committee could come back to and look at.

Mr Spina: I didn't know whether the opposition had any comments on this.

Mr Levac: I agree with that because that was what was spoken to by all the clubs in terms of their wardens. I would assume that everyone would agree with the fact that there were concerns issued about teeth. They were basically saying we needed to have some teeth; the wardens needed to have some teeth. They strictly spoke of just the permits. They wanted no other authority; they wanted no other responsibility beyond the permit. That's what I was led to believe.

I don't have a problem with standing it down.

Mr Spina: A question really of order here, Chair. If we stand it down, would that have to come back at a future date to committee or-

The Chair: In theory. We do not have time allocation binding us on this bill, which means that if we stand it down, if there was an answer by this afternoon, we could deal with it out of sequence. Alternatively, if it took to the next day afforded to us in committee, which would be next Monday, we could deal with it then. I'm totally in your hands.

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Ms Lankin: I think there is the possibility of dealing with it this afternoon. It's not a very complicated amendment, and if ministry staff could draft an appropriate suggestion for us, that would be helpful.

Mr Spina: What do we need, Chair?

The Chair: I think Ms Lankin has correctly outlined it. If the legal staff from MTO could set their minds to the wording that would be appropriate, or Ms Hopkins, the leg counsel-between the two of them-and apply themselves diligently to the task, hopefully to get an answer back to the committee this afternoon, I'm sure we-

Ms Lankin: When we get to that section, we can then agree to stand it down and we could proceed.

The Chair: I am quite prepared to stand down section 2.

Ms Lankin: I'm glad I came after all.

The Chair: Ms Hopkins, the legislative counsel, informs me it will be section 9 we would be amending to do that. If the committee is amenable, we'll proceed through to that point.

Ms Lankin: Could I just ask Ms Hopkins-there's not a requirement to amend subsection 2.1(8)? I haven't looked at it. So it is just in the general regulation-making authority section, in section 9?

Ms Laura Hopkins: Yes.

Ms Lankin: Terrific. Thank you very much.

Mr Levac: Mr Chairman, I just want to reiterate what you said. Because we are not on time allocation, to stand something down does not mean we have to get it done this afternoon. If it requires any other permissions or any other discussions from any ministry-I know Mr Spina said we dealt with five different ministries. One that would affect this one might not affect the next one. If there's something else we could stand down, we have the time to do so. I just want to clarify that is the case.

The Chair: That is the case, Mr Levac. We are under no legislative constraints here this afternoon. I'm sure everyone has as their intention the crafting of the best possible bill and getting it right the first time. If we encounter other similar issues as we go along, that will obviously impact on our ability to finish today, but hopefully we can get the required amendment to section 9 by the time we get to section 9.

Ms Lankin: We hope so.

Mr Levac: Sure. Thank you, Mr Chair.

The Chair: Is there any further debate on section 1, or any amendments? Seeing none, shall section 1 carry? Section 1 is carried.

Any comments or amendments to section 2? Seeing none, I'll put the question. Shall section 2 carry? Section 2 is carried.

Section 3. Mr Spina, I believe you have the first amendment.

Mr Spina: I move that subsection 2.1(1) of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be amended by inserting "and in accordance with" after "under the authority of."

The Chair: Do you wish to speak to the amendment?

Mr Spina: No. This is just cleaning up some of the terminology.

The Chair: Any debate? Seeing none, all those in favour of the amendment? Contrary? It carries.

Mr Spina.

Mr Spina: I move that section 2.1 of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be amended by adding the following subsection:

"Limitations, restrictions on trail permit

"(2.1) A trail permit may contain specific limitations or restrictions on the use of the motorized snow vehicle upon a prescribed trail."

The purpose of this was to really allow the opportunity, if at some point we wanted to issue exemption permits to exempted riders, for that to be able to happen.

Ms Lankin: I had understood Mr Spina to say that at this point in time the Minister of Transportation's office has indicated that they are waiving the desire to create exemption permits. Therefore, I wonder why we would proceed with this amendment to give the authority at this point in time. If you're setting out in regulation those groups which will be exempted, and we're not requiring them to have trail permits with the exemptions set out, we shouldn't at this point in time be passing this particular provision.

Mr Spina: I understand that. I guess what I'm wondering-and I'd seek comments from all parties here. At this stage, if we don't issue the exemption permits for a couple of seasons-however, we find there are problems-then this may allow the opportunity for the regulation to come in and maybe tighten it up.

Ms Lankin: I agree with you. It would absolutely allow for that. But the question is, do you want that decision-making, given the feedback that you've heard and given the committee's concern, as I understand it proceeding today, about that provision, do you want that left to a regulatory power as opposed to a legislative decision that, in fact, there will be exemption permits and/or whether any fee may be set for an exemption permit? That's a second issue that we'll have to contend with. I know you were a very strong proponent of not having the exemption permits. I'm just not sure why, at this point, the government would proceed with that amendment.

Mr Spina: I think it's more enabling than prescriptive. That is why I don't have a problem with this amendment.

Ms Lankin: Except that it enables the government to do something that you're very opposed to, Mr Spina. There's not a logic in this that I can follow.

Mr Spina: What it says, if you look at the amendment, is that the "permit may contain specific limitations or restrictions on the use of the ... vehicle upon a prescribed trail." If at some point we find that we want to issue an exempted permit for Ontario Hydro users, for example, then that would allow the legislation to empower the regulation. This amendment allows the ministry to work with the designated authority that issues the permits to create that.

Mr Levac: I want to voice a concern about that, because what I heard from the presentations was that the most they could see their way clear to is some kind of little identifying sticker that the person would have access to; that they basically should just be able to show the warden or the STOP officer or the OPP, flip something open or have a sticker on their helmet or something that basically says, "I'm a registered traditional user, and I've just been identified. Thank you very much." As a matter of fact, I did hear people speaking against the idea of even having a permit introduced, because of the concern and the fear that was expressed.

Mr Spina: Bureaucratic red tape.

Mr Levac: This is the concern that was being voiced.

I can't support the amendment, simply because it didn't speak to what the committee heard. What the committee heard was, "Please identify us if you have to." Most of the local people involved in that know that Joe is with traffic or Sally is with the OPP or whatever it is. If we're going to devolve that to that local level, they will be in touch with that on a regular basis.

If we do anything, what I perceive we should be doing is encouraging that communication process that's taking place and to ensure that, "OK, don't forget to get your little yellow sticker on top of your helmet, because when we use that, the wardens might not even have to pull you over, because they know that's there." Counterfeiting, of course; games getting played, yeah. But in terms of permits, I didn't hear anything in any of the presentations up north about supporting any kind of permit.

So I can't support the amendment, because it's being built in for something that might take place later on, but I didn't hear it happening.

The Chair: Any further debate? Seeing none, I'll put the question. All those in favour of the amendment?

Ms Lankin: I thought Mr Spina was going to withdraw this motion. Am I incorrect?

Mr Spina: Thank you very much. I will withdraw this motion.

The Chair: My goodness.

The next motion is amendment 3, the Liberal motion.

Mrs Marie Bountrogianni (Hamilton Mountain): I move that subsection 2.1(5) of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be struck out and the following substituted:

"OFSC to issue trail permits

"(5) The Ontario Federation of Snowmobile Clubs is authorized to issue trail permits and any employee of the club may provide evidence of such issue of trail permits.

"Additional powers may be delegated

"(5.1) In addition to the authority under subsection (5), the minister may delegate to the Ontario Federation of Snowmobile Clubs powers in respect of the administration of trail permits, including the authority to stop and inspect a motorized snowmobile on a prescribed trail to determine whether a driver is in compliance with subsection (4).

"Terms and conditions

"(5.2) The minister may attach terms and conditions to a delegation under subsection (5.1).

"Minister may authorize OFSC to retain fees

"(5.2) Despite section 2 of the Financial Administration Act, the minister may authorize and fix the fee to be retained by the Ontario Federation of Snowmobile Clubs for each trail permit issued."

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The Chair: Do you wish to speak to this?

Mr Levac: What we're basically trying to do here is repeat what we heard through the presentation, that the OFSC wanted basically the responsibility of taking care of that directly.

The Chair: Thank you. Mr Spina.

Mr Spina: Does anybody else here want to say anything?

Mr Ted Chudleigh (Halton): I just wondered how it related to amendment 3A.

Mr Spina: I was going to draw that analogy. Thank you. Amendment 3A actually summarizes in a much simpler manner where the minister has the authority to be able to authorize all of what has been described here. The fundamental difference is that if in three or five years' time the Ontario Federation of Snowmobile Clubs, or whoever, becomes another name, another body, if there's an amalgamation with other organizations and trail systems, those kinds of things, that would require a statutory change then, whereas if they, as the federation, are identified in regulation, it becomes a much simpler change, as an order-in-council change, as opposed to having to go through a bill and all that sort of thing. That's why we tried to keep that amendment.

We all had a problem, I think, with the minister fixing the fee. That was a message we all received, and that's why we felt that it was sufficient that the minister may authorize, as I have in 3A, the fee. Then of course, it's in there that they'll authorize the fee to be retained by the person so authorized. So essentially the person who would be named in the regulations would then end up being, at this point, the OFSC. That's the reason we would vote against this amendment and adopt ours, 3A.

Mr Levac: Mr Spina and I had this discussion, and I guess what was attempted here, and I think Mr Gerretsen in his discussions, after going through the committee, wanted to make sure that the message was clear. We understood that the OFSC's concerns were regarding the particular section you're talking to, about the minister having that final fixing of the fees.

They've indicated very clearly, with the single question that was asked of them time and time again, and as you know, I was the one who asked them that, "Can you support the bill in its present stance regarding the particular of fixed fees?" and they said no. So we came back with the amendment that basically said, "OK, then we'll try to craft it in a way that says we're not trying to remove authority from the ministry, but we're trying to say to the OFSC that we understand that your 30 years of volunteerism is why you've got to the place that you have now, and that is to be able to run this nice, smooth shop, collect your fees and not bother anybody else." That's basically what they were trying to say.

In defence of the amendment, what I'm trying to clarify is giving it right back to them. If indeed it does require a change because OFSC decides to change its name, I don't know what kind of a hurdle we would have to go over in order just to change that particular moniker. Maybe I'm seeking a clarification of that, because that's what I thought I heard.

Mr Spina: David, if we set this in legislation, then, as I indicated, it would require a statutory change. In other words, you'd have to change legislation down the road. Without letting too many cats out of the bag here-not that I know a whole lot about this bunch of cats-there is an initiative afoot to create a comprehensive trails policy in this province.

Mr Levac: That's fair.

Mr Spina: There could be a multiplicity of users and a policy and regulations that would govern the multiple use of these trail users. If we become that precise here, then it could become very restrictive for a more comprehensive trails policy using other types of users of trails, whether they be cross-country skiers, ATVers, motocross, motorcycles, those kinds of things.

Mr Levac: I would ask if OFSC has been made aware of the amendment that you're proposing, and are they OK with it?

Mr Spina: Yes.

Mr Levac: That's fair.

The Chair: Any further debate? Seeing none, I'll put the question. All those in favour of the Liberal motion? Opposed? It is defeated.

That takes us to the amendment marked 3A in your packet.

Mr Spina: I move that subsection 2.1(5) of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be amended by striking out "may authorize and fix the fee" and substituting "may authorize the fee."

I think we've argued that one to death and we've just moved that that go forward.

The Chair: Any further debate? Seeing none, I'll put the question. All those in favour? Opposed? It is carried.

The next motion would be back to Mrs Bountrogianni.

Mrs Bountrogianni: I move that section 2.l of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be amended by adding the following section:

"Limitation

"(7.1) The amount of a fee for the issuance of a trail permit shall not exceed the amount of a fee for the issuance of a class G driver's licence issued under the Highway Traffic Act."

The Chair: Do you wish to speak to the amendment?

Mr Levac: Just in terms of equity, and I don't know if that discussion came up: Mr Gerretsen said to me that he was concerned that if we are going to make the relationship between the snowmobile licence and the issuance of a driver's licence, one shouldn't go over top of the other. That's basically where that came from.

Ms Lankin: I understand any concern that is being raised with respect to the cost of a trail permit and the potential prohibitive nature of that cost. I've spoken to it and Mr Spina has spoken to it today already.

However, we have talked about the importance of the fee being set with input from the local clubs and through the federation, with their intimate knowledge of the cost of maintenance, what level of government subsidy they receive-and we hope it is going to be increased-and what they receive from their trail permits.

In a sense, this is counterproductive to local control. While I agree with the sentiment, if it is one to try and keep the costs down, I argue the way that needs to be done is by a further infusion of provincial funding, which Mr Spina spoke to earlier.

Mr Levac: Be assured, Mr Chair, that was the intent. I can understand what this discussion is about, but that was the purpose of the amendment, to keep the price at least as low as or lower than. Maybe the wording wasn't quite appropriate. I understand the concern of Ms Lankin.

Mr Spina: I'm not sure how much a class G permit fee is. Is it $80?

Mr Levac: It is up to $80 now, I think.

Interjection.

Mr Spina: It's $90? Clearly what Ms Lankin said, if we are concerned about sustainability-in the last motion the minister has the ability to authorize the fee. At the same time, as Frances indicated, it is fair that we allow the users of the trail system to have the input. This would be too prescriptive, so I would be against this.

The Chair: At the risk of being seen to enter the debate, I'm wondering whether it might even be out of order, given that we've just amended it so that someone else is setting the fee and the minister has the power to authorize that. But now you're asking that there be criteria applied to the actual fee that the arm's-length group would set.

Mr Levac: Having said that and having heard the rest of the debate, I will withdraw the amendment to allow for the free flow of that particular issue.

The Chair: Thank you. That amendment is withdrawn. Back to you for the next one.

Mr Levac: I move that section 2.1(7) of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be amended by adding "Subject to subsection (7.1)" at the beginning.

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The Chair: Do you wish to speak to it? Give me just one moment, Mr Levac, please.

Since you withdrew amendment number 4, number 5 is out of order here.

Mr Levac: So let's continue the trend and withdraw.

The Chair: Excellent. Thank you very much. Number 5 is withdrawn. Number 6 would be back to you again. Mr Levac or Mrs Bountrogianni?

Mrs Bountrogianni: I move that section 2.1 of the Motorized Snow Vehicles Act, as set out in section 3 of the bill, be amended by adding the following subsection.

"(9) This section does not apply to,

"(a) a person using a prescribed trail for the purpose of hunting, fishing or trapping;

"(b) a person using a prescribed trail for the purpose of prospecting;

"(c) a person using a prescribed trail for the purpose of his or her occupation; or

"(d) a person using a prescribed trail to travel to travel to an established camp located on lands owned by the person."

Mr Levac: These were the groups that made presentations and identified themselves as traditional users and probably would be open to (e), (f), (g), (h), (i), (j) if there was anyone else that had been identified.

Ms Lankin: That would be my point. There are a number of people who are missing from this list. You would either need to add them all, and that's one of the dangers of doing this in legislation, or add any other person who may be authorized by the minister.

My understanding is that the parliamentary assistant has set out that there will be a list of exempted users in regulations, and perhaps we could hear from him directly. The appendix that we have now that sets out a number of users, including the ones in Mr Levac's amendment, but additional others-do we have a commitment that that will be the minimum list of exempted users that will be set out in the regulations?

Mr Spina: I'd be happy to address that. I agree with you that this motion is too narrow in scope. In the act it does, as I've indicated at committee, give the minister to permit classes of vehicles and classes of individual users in terms of the legislation. Then the actual identification, as I said earlier on, would be in the regulations, and in your package there is a proposed trail permit requirement for traditional and business users.

I would be happy to go through that list, which is far more comprehensive. It talks about aboriginal persons, First Nations-a trail permit would not be required on treaty land-licensed anglers; bait harvesters and helpers; commercial fishermen or fishing people; crown tenants; emergency workers-ambulance, medical personnel, search and rescue; licensed hunters; local property owners and immediate family if they're on their own property, of course, or if the trail is on their property; mining workers, geologists, geophysicists, engineers and the like; Ontario land surveyors-

Ms Lankin: Actually, Mr Spina, that one suggests that there would be no exemptions. Are you now suggesting that would be added to the list of classes of people exempted in regulations?

Mr Spina: That's the recommendation from MTO. I'm just going through the list of users who were identified here.

Ms Lankin: What I wonder is if you could give us a commitment as to the government's intent of which classes of people will in fact be set out by regulation as being exempted.

Mr Spina: OK. Then mining workers and the land surveyors, according to this, are not exempt.

Police staff officers; property owners who have allowed OFSC use of the land for a trail; licensed trappers and helpers under a geographic restriction, because they have a trapline under which they operate; utility workers-Bell, hydro, TransCanada Pipelines: those would be items that would have a proposed exemption.

Those that don't have exemptions: one of the difficulties there, for example with surveyors or geologists, is that there is no geographical limitation to their licence. Essentially, when you're dealing with anglers and hunters, they're on crown land. When you're dealing with trappers, you have a trapline within a very specified area for which you can designate the exemption. When you get to the others, there would absolutely be no way of controlling it, enforcing it or even permitting it, with a capital P.

Ms Lankin: Just a quick question: would it also be likely that employees of snowmobile clubs might be added to that list?

Mr Spina: As exemptions?

Ms Lankin: For the need for a trail permit. There was a motion before us earlier to look at snowmobile clubs being able to issue to their own employees. I'm assuming that's without cost. I don't know.

Mr Spina: I think the policy right now is fairly discretionary, because for the most part-and I stand to be corrected-employees of snowmobile clubs tend to be snowmobilers themselves. If they belong to a club, I think the peer pressure would be sufficient that they would buy a permit. If they wanted an exemption, likely the club itself would issue a full-blown permit and just remit the remaining portion that's owed to the federation. In other words, they wouldn't collect the club portion of the fee.

Ms Lankin: They have the discretion to do that, do they? That's all I'm asking. Under the new legislation?

Mr Spina: Well, at this point they do. That's a very valid point under the regulation, under what the minister will authorize in terms of the disposal of funds. So that's a good point in that context, yes.

Mrs Bountrogianni: Of the three days of hearing that I attended in the north, and of course you were at all of them, there was a very strong protest by the traditional users about not having this simply in regulation; they didn't think that was enough. They wanted it in the legislation. You have a much longer list than the Liberal motion and I'd have no problem adding that to the Liberal motion, but I just want to remind the committee of the strong protest and feelings of discrimination from southerners against northerners and all those things that came out, presentation after presentation. Will simply putting it in regulation deal with those people's beliefs and feelings?

Mr Spina: I think it will. Again, the danger of putting it into the act itself is that it becomes statutory. If you ever want to add someone or delete someone or modify it, it's far easier to do it in regulation because you can do that by order in council as opposed to going through a statutory process. That's one of the reasons why you need that flexibility, particularly when you might want to leave the discretion for the enforcement of that to the locals who know the users who would be classified as traditional users.

Mrs Bountrogianni: It's exactly that flexibility which worried the traditional users, if in regulation there's a great deal of flexibility to make none of them exempt. You see? I'm just bringing us back to those warm nights in August when we were up there. Basically, those presentations outnumbered the others, at least in the three days that I was there.

Mr Spina: I'm trying to be practical from a legislative perspective. If we lay it down in legislation, if you forget someone or overlook somebody at this point or you want to add somebody in a year's time, you're going to need a statutory change. I hate to say it, but you have to ask them to have some degree of trust in the government to outline them in the regulation. The power of the regulation is just as valid as the legislation but it's far more flexible.

Mr Levac: I don't know if there's such a thing as applying your own friendly amendment but, to accommodate some of the concerns that have been raised, to add an (e) to it that says, "Any other group or individual identified by the OFSC." Is that doable?

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The Chair: You can certainly amend your amendment, yes.

Mr Levac: Then I would add that section that was copied down.

The Chair: We have no such concept as a friendly amendment in this sense. You would have to propose an amendment to your amendment. It would be voted on first.

Mr Levac: Then I'll do that, and the amendment would be "(e) any other group or individual identified by the OFSC."

Ms Lankin: Could I say, just for consistency in language, it may be that it should be "any other person identified by the OFSC." That's up to you; you're moving the motion. I would just say that I support the intent.

Mr Levac: "Any other person."

The Chair: Further debate? Sorry, could we have the final wording?

Mr Levac: "Any other person identified by the OFSC."

The Chair: While Mr Spina composes his thoughts, taking us back to a discussion only a couple of amendments ago about referring to the OFSC specifically, I'm in your hands, Mr Levac. If that's the way you want the amendment to read, I will call the vote on that basis.

Mr Levac: I appreciate what you just brought to my attention. I would probably have to say something to the effect of, "Any other person identified as a traditional user."

Ms Lankin: It may be that there you'd want to trust the government and say, "Any other person designated by the minister." That might be the way to resolve the problem. I don't know.

Mr Levac: We will get it yet.

The Chair: Are you amenable to that change?

Mr Levac: I'm open to that, identified by the min-istry. And this is the Minister of Transportation this is from.

Mr Spina: I would draw your attention to subclause (8) that says, "The Lieutenant Governor in Council may make regulations respecting any matter ancillary to the provisions of this section with respect to trail permits and in particular (a) prescribing trails or classes of trails, or parts of trails or classes of trails, on which permits are required; (b) respecting the issuance and replacement of trail permits; (c) prescribing the term of validity of" these permits and so forth. It allows for the classes of trails.

There's another section-I'm just trying to get my finger on it-which talks about the classes of vehicles and classes of individuals. I'm just trying to find where that is in the act. Section 26(1)(j) of the current Motorized Snow Vehicles Act has "designating classes of persons to whom any provisions of this act and the regulations do not apply." That's covered under the current MSVA, I gather, from what counsel has shown me here.

If you're broadening the scope of your amendment enough-I mean, we've already got that broad scope, if you will, of designation of classes and exemptions in either the existing act or in the amendments, so I would be opposed to this.

Ms Lankin: I would think we would agree with Mr Spina that the broad power is there. We recognize that. The intent of this motion is to set specifically in legislation those groups who came forward most frequently and whose voices were heard most often by the committee and that there would be an exemption set out in legislation for those classes of people and any other class as is designated with the amendment that Mr Levac is putting forward and that would give reference to the existing designation powers under the existing legislation.

The debate here is whether or not the committee heard sufficient concern from these groups, these traditional users, to take those concerns to heart and actually list them in the legislation to give them a greater sense of protection. I think that's the nature of the debate.

Mr Levac: Ms Lankin probably wrapped up my thoughts nicely. Thank you, Frances; I appreciate that very much. What we heard very clearly a few times, because I know my colleague heard it from her observations and I heard it in mine, was that there were specific groups that said, "Sorry about the regulation idea, but we want this in legislation." That's why it was put forward. I do acquiesce to the concept that we had missed a few people.

That's what this amendment is about, to try to allow for these groups to be allowed inside the legislation to show that their concerns are seen as historic, and in some cases, those that I may have personally missed or Mr Gerretsen may have personally missed during the presentations would have room to be put into that legislation to show them that their historic use of those trails, before the trails were actually even groomed and created-that their rights were protected as much as the OFSC's.

Therefore, in this particular case there will be no withdrawal of the motion. The motion is intended to be put into legislation and then the other sections that are being referred to still apply. This group is being identified as one that should be in the legislation.

The Chair: Any further debate?

Mr Spina: My comment still stands.

The Chair: The clerk is just asking for the final wording for your amendment to the amendment.

Mr Levac: "Any other person identified by the Ministry of Transportation."

The Chair: Leg counsel, would "minister" be more appropriate?

Interjection.

The Chair: "Minister" would be sufficient? Thank you.

If you could formally move that amendment now, your amendment 6.

Mr Levac: I move that with the amendment before us, an amendment to the amendment read, "(e) any other person identified by the minister."

The Chair: Is everyone clear? We are voting on an amendment to the original motion.

All those in favour of the amendment? Opposed?

The amendment to the amendment fails, which takes us to the original amendment, number 6. All those in favour?

I beg your pardon, Ms Lankin.

Ms Lankin: I just wanted to indicate that without the amendment to the amendment passing, I have concerns with the motion as it is set out, first in the prescriptive nature and those groups that are left out and, secondly, in that there is not a provision for criteria to be applied; for example, a person using a prescribed trail for fishing. We are not here specifying whether we are talking about commercial fishing or if we are talking about recreational ice angling. I believe it is appropriate to give exemptions for use of trails for recreational ice angling, but not 250 miles to get to the lake that you want to fish from.

I think snowmobile clubs would have significant problems with the wording as it is set out here. I agree wholeheartedly with the intent, but the wording is problematic, so I'll have to vote against this.

The Chair: Any further debate?

Mr Spina: I couldn't have said it better myself.

The Chair: I believe that, Mr Spina.

All those in favour of the amendment? Opposed? The amendment fails.

Shall section 3, as amended, carry? It is carried.

Section 4: any debate or amendments to section 4?

Seeing none, I'll put the question. Shall section 4 carry? Section 4 is carried.

Section 5: this would be your amendment.

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Mr Levac: I move that section 10.1 of the Motorized Snow Vehicles Act, as set out in section 5 of the bill, be amended by adding the following subsection:

"Municipalities not liable

"(4) 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."

Speaking to that, we had a presentation from, if I recall, two or three municipal employees up north who voiced a concern that there's this class of road or allowance, unopened road allowances on municipal property, that would become liable for any problems if there's a connector between a trail and it's being used traditionally as a trail. So the municipalities had voiced a very deep concern that the liability would be theirs.

Mr Spina: Mr Levac and I spoke briefly about this. We have an amendment regarding the Insurance Act which is coming up next, and I wasn't sure whether that amendment covered or addressed this issue. We have I think legal counsel here from the Ministry of Finance and maybe we could ask an opinion from counsel.

The Chair: We invite the legal counsel from finance to come forward.

Mr Levac: Mr Chairman, just speaking to that, Mr Spina and I had that conversation and I told him at that time that I was open to that interpretation and would be prepared, quite frankly, to remove the amendment if it turns out that legal counsel says the amendment covers that off.

Ms Lankin: You've leaving the fate here of this bill in the hands of lawyers. Is that what you're saying? The power that we give over to you.

Mr Levac: I'm quite prepared to hear their interpretation.

Mr Spina: They had control of this all along, Frances.

Mr Eric Endicott: My name is Eric Endicott. I'm legal counsel, actually, from the Financial Services Commission of Ontario. I have to say the amendment regarding the Insurance Act affects the applicability of automobile insurance and the availability of an auto insurance policy. Municipalities in this context are not covered under automobile policies, so that amendment would not address this particular issue directly.

Mr Spina: That being said, are you aware of the implication of this particular amendment and whether in fact this would be in order with respect to the liability that is potential, as claimed, to the municipalities, or are you in a position to offer that opinion? I'll give you the out.

Mr Endicott: This obviously provides an exemption for municipalities. It might affect the liability that would otherwise arise for other people. In a typical motorized snow vehicle accident there may be any number of people who are liable. If you removed this particular actor from the liability scene, I have to say I would want to think about that in the provisions of how the different types of liability accrue.

With the other amendment, of course, snowmobiles will be treated like automobiles. They will get the protection of the restriction on the right to sue that's under the Insurance Act. Municipalities do not have that. They are specifically exempted, and there are complicated provisions apportioning liability and responsibility in that regard. In fact those issues are, if I may say, even in the courts now somewhat uncertain. We've gotten some recent interpretations which surprise me.

So, in a word, I can't give a definitive answer. Obviously, if you remove liability from one party and there are other ones, they may wind up picking up more liability, in principle. But as I said, I would have to go back and think about it. It is an area where joint and several liability is already-I would say the case law is still evolving under the Insurance Act.

Ms Lankin: Perhaps we need also to consult lawyers from the Ministry of Municipal Affairs. I wonder, however, with respect to this amendment, without definitions, for example, of what an "unopened road allowance" is-or is that definition already contained under the Municipal Act?

Mr Endicott: That one I wouldn't want to give an opinion on.

Ms Lankin: I wonder if there's a possibility to stand this down to deal with the insurance and if someone can make a phone call to the Ministry of Municipal Affairs and see if they have any opinion to offer the committee with respect to this.

The Chair: Certainly, if that's the wish of the committee. Mr Levac, I don't know if you have any other questions you'd like satisfied from such a phone call.

Mr Levac: For clarification purposes: I've been informed by two municipal employees who made presentations that they would be very hesitant to provide permission for them to use snowmobiles if they were not covered off against this. It being that serious, I probably would not want to proceed until we had a clear picture of what this means. I'm prepared to have this stood down so that we can get those questions answered.

The problem seemed to be in a very small number of cases, but enough that the municipality did step forward to make comment on it, that this wasn't seen as a trail; this was seen as a connector or a place they had to get through in order to continue their trail service. I too would be concerned if we were asking other people to pick up liability. That was not the intent. Of course, not being a lawyer, I don't know what happens in those cases.

Mr Endicott: As I said, you shouldn't take that as an opinion at this point. I'm just saying that at least is an open question that I would want to look at further.

Mr Levac: Having that opinion, it really does make sense to stand this down until we can get a definitive answer on it and, in fairness, a definition if it doesn't exist. The gentleman I spoke to- I believe his name was Mr List-indicated that it was a defined piece of property in the municipality. But having said that, I'm quite prepared to let this sit for a bit to get it answered.

Mr Spina: I'm not opposed to or supportive of the amendment. We all want to do the right thing, if you will.

David, you mentioned the connector between points in the trail system, I think, for example, if you're going from one part of the trail to another part and there's a connector that goes through a piece of municipal land. Generally speaking it would seem to me-and like you, I'm not a lawyer either-that if the local snowmobile club, ostensibly under the sanction of the OFSC, sought from the municipality use of that section to connect the trails, then it becomes a piece of sanctioned trail. I'm not sure where liabilities are there. If they're using it without the authority, permission, sanction of the municipal government, then I'm sure there's a whole different set of circumstances there. My concern is that if we're trying to create something where there isn't something, in other words, if it's a sanctioned trail, presumably liability would be in place-I'm guessing-by the federation, the user of the snowmobile or the municipality. If it's not a sanctioned trail, then the municipality, if they're concerned, would have the legal right to walk in and shut that chunk of trail down.

Mr Levac: I can speak to that. Mr List spoke of both options, both scenarios. He spoke of a scenario of the piece being handed over, if you will, to the club, but for some reason he was quite convinced that they would still be liable, they would still be suable under the circumstances, that it was still theirs. The second thing: he referred to subsection 308(5) of the Municipal Act, indicating that it was an old chestnut and it's still the same thing and it hasn't been changed since forever, I guess, was his comment-130 years if it's case law. You can't do it legally unless it's a bike or a walk path. So that's what brought me to the whole concern about the idea that the municipalities continued to voice concern that even if it was being used as a trail, other people still have access to it because it's-and then he used the same thing-"unopened road allowance." He kept voicing that they were still liable under any scenario because they can't give this road away; they can't sell it. I couldn't quite get the whole thing and I called him back, and he simply said, "All you have to do is remove the liability and the municipalities will be happy." Where that goes, Joe, I don't know. Again, I come back to it: I don't know what the legalese is and I don't know whether we should be at least not trying to take care of that particular piece. I think he said there were 12 different pieces of trail that he was aware of in the province that had that unopened road allowance problem, 12 pieces. I don't know where they are, and I didn't get them identified.

1720

Mr Spina: I don't know if Laura, as legislative counsel, has an opinion on this.

The Chair: Mr Spina, actually, I've been keeping notes of all the various questions that have been asked. I'd be happy to pass them to Ms Hopkins. They are-and let me know if I've missed anything: given that your amendment number 7 would have the effect of taking "motorized snowmobiles" and turning them into "motor vehicles" for the purposes of the Insurance Act, what is the case law related to all motor vehicle use on unopened road allowance; what happens to an unopened road allowance when it becomes a sanctioned trail; what happens when it's used in an unauthorized fashion; it's my understanding that the landowners on either side of an unopened road allowance have particular rights and responsibilities, so would this impact on them; and Mr Levac has posed the question, what significance and relevance is section 308, paragraph 5 of the Municipal Act. Have I missed any of the questions that relate to this amendment?

I don't know, Mr Endicott, if it's fair to put them to you.

Mr Endicott: Sorry. I'm not an expert on unopened road allowances.

The Chair: I didn't know, given your expertise in insurance, whether the fact that this will become a motor vehicle-whether you have any experience in that area, the case law or the statutes related to the use of any motor vehicles in an unopened road allowance.

Mr Endicott: I don't. I would only hasten to add that the effect of this amendment will be to restore what was always thought to be the case, that they were motor vehicles in any event. This amendment is driven, I think, by what many people certainly in the insurance industry regarded as a surprise, with the courts holding that a motorized snow vehicle was not a motor vehicle, since it's required to be insured under a motor vehicle liability policy, and the definition of a motor vehicle liability policy is one that insures an automobile. So in that sense it's just restoring, I think, what everybody understood before. A negligence claim with respect to an unopened road allowance is probably the same whether it's a motor vehicle or not; there just may be other actors involved that may have liability.

Mr Spina: For the record, I think he's referring to amendment number 7, not 6.

The Chair: I understand. Thanks, Mr Spina.

Is it the wish of the committee, then, that we stand down motion 6A pending answers from legislative counsel to the questions?

Mr Spina: I have one other little question that's a corollary to what you've got there. I'm wondering what the status is of someone driving an off-road vehicle or an ATV. I'm presuming the same kinds of things would apply, or the same kinds of problems, perhaps, could apply to those off-road users, and by adopting your motion it would really be for a very short, limited group of users, as opposed to addressing a much larger issue which I think should come under municipal affairs. If we were to bring this into account now-I'd rather you withdraw it or we defeat it, David, because it would become too narrow to snowmobiles. This is a larger issue than I think we're prepared to handle at this committee.

Mr Levac: Having said that, I'd like to have it happen, though, so we can get the research people to find out whether or not there is even cause to do it. If there's cause to do it, I'd like to be able to address that at the next meeting. That would give us time to find out whether we want to leave it here in this bill for snowmobilers, or do we want to advise municipalities that they had better be looking at something broader than simply 101? So I take your logic and I'd want to apply it.

Mr Spina: Based on that, I'm wondering if it's in order, then.

The Chair: I think it's certainly within the purview of the committee to ask for the kind of feedback that you have asked for in those questions. Recognizing the time and the less than likely circumstance of getting an answer this afternoon, I think we will have to resign ourselves to standing that amendment down, and obviously the corresponding section, if that's the will of the committee.

Agreed? Agreed. We can move on.

Perhaps you could stay there, Mr Endicott, because the next motion is related to insurance.

Mr Spina: I move that section 6 of the bill be struck out and the following substituted:

"6.(1) Subsections 12(1), (2) and (3) of the act are repealed and the following substituted:

"Insurance

"(1) No person shall drive a motorized snow vehicle unless the vehicle is insured under a motor vehicle liability policy in accordance with the Insurance Act, and the owner of a motorized snow vehicle shall not permit any person to drive the vehicle unless the vehicle is so insured.

"Production of evidence of insurance

"(2) The driver of a motorized snow vehicle who drives or permits the driving of the motorized snow vehicle shall, upon the request of a police officer or conservation officer, produce evidence that the vehicle is insured under a motor vehicle liability policy in accordance with the Insurance Act.

"Offence for failure to have insurance

"(3) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.

"(2) Section 12 of the act is amended by adding the following subsection:

"Application of part VI of Insurance Act

"(6) A motorized snow vehicle shall be deemed to be a motor vehicle for the purposes of part VI of the Insurance Act."

The Chair: Any debate?

Ms Lankin: One more time, I would just ask legal counsel to give us a brief, definitive statement of what this accomplishes, so I know I understand what is happening.

Mr Endicott: OK. The amendment to 6(1), which has three subsections, is actually correcting an anomaly that exists in the Motorized Snow Vehicles Act, which I believe requires the driver of the snowmobile to be insured, as opposed to the vehicle itself. This is not consistent with the way other compulsory insurance operates in Ontario, in particular motor vehicles and off-road vehicles. We tried to do some research to find out why it was put on the driver rather than on the vehicle. Customarily it's vehicles that are insured, not persons. This just puts it into practice with what they are, because they are often issued with motor vehicle policies as well.

Ms Lankin: I have a question on that point. Currently, is it the correct interpretation of the law that if a person has life insurance they can go without vehicle insurance?

Mr Endicott: No. They would still have to have a motor vehicle liability policy. It is technically possible to have one that is issued on a driver rather than on a vehicle. But as I said, normally the requirements, if you look at the compulsory auto act, are that the owner of the vehicle is required to be sure the vehicle is insured.

Ms Lankin: But this isn't creating any new obligation with respect to insuring the operator and vehicle with respect to snowmobiling. It's just clarifying the language.

Mr Endicott: That's correct. That was always there; the fine was there and so on.

The second amendment is, I guess, probably the more important of the two, and it is to perhaps overrule a recent Court of Appeal decision that found that a motorized snow vehicle was not an automobile for the purposes of part VI of the Insurance Act, which is the entire automobile insurance regime. It provides for limited liability in certain circumstances. It actually has other provisions that have cost transfer with respect to snowmobiles and the like.

It was a rather unusual decision which would remove certain protections from the owners of snow vehicles and could result in an increase in the cost of auto insurance. Also, frankly there was an uncertainty about what the court meant, in terms of how it would apply in other situations. Any time you have uncertainty, that also makes insurers less likely to write insurance, so this really just restores it. Once a motorized snow vehicle is a motor vehicle under part VI, it comes within the definition of "automobile," so it is, as was always understood, an automobile for the purpose of and within the auto insurance system.

The Chair: Any further debate? Seeing none, all those in favour of the amendment? Opposed? It carries. We strike another blow for the duly-elected Parliament.

Shall section 6, as amended, carry? Section 6 is carried.

Section 7. Any debate? Seeing none, shall section 7 carry? Carried.

Section 8. Mr Spina.

Mr Spina: I move that subsection 17.1(1) of the Motorized Snow Vehicles Act, as set out in section 8 of the bill, be amended by striking out "who is readily identifiable as such" in the sixth and seventh lines.

This amendment is being proposed to address the concern that STOP officers, who also enforce the act as special constables, may not be as quickly identifiable as police officers even though they have a uniform and identification. That's the only reason it's necessary. But they have the power and the authority.

Ms Lankin: If I may, this becomes a very important amendment, particularly in light of the general powers we are going to give the minister to designate trail wardens, who would have been limited by the earlier language, "is readily identifiable." I'm appreciative and will support this amendment for that very reason.

The Chair: Any further debate? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? It is carried.

Shall section 8, as amended, carry? Section 8, as amended, is carried.

I believe we all agreed that section 9 would be stood down, unless we've had an answer. Ms Lankin?

Ms Lankin: Yes, I would like to request at this time that that be stood down. Legislative counsel has drafted an amendment for the committee to look at. She's reviewing it with the ministry lawyer right now and will then, I assume, produce copies for the committee.

The Chair: That's certainly a requirement. Thank you. If it's the wish of the committee, we'll stand down section 9. Agreed?

Mr Spina: Do you want a five-minute recess?

The Chair: No, just agree.

Mr Spina: Agreed.

The Chair: Thank you.

Mr Spina: Till when?

The Chair: We'll proceed with the other sections and then come back, in the two or three minutes it will take to say, "Shall sections 10 through 13"-

Mr Spina: Thank you. Sorry, you're the Chair, not me.

The Chair: Is there any debate or amendments to sections 10 through 13? Seeing none, I'll put the question. Shall sections 10 through 13 carry? Carried.

Shall the title of the bill carry? Carried.

Now we face the logistical issue that-

Ms Lankin: May I suggest that we take a five-minute recess so Mr Spina might be able to consult with legislative counsel and ministry counsel, take a look at the amendment and see if he can give it his blessing. That might speed us along a little bit.

The Chair: It is certainly your right to request that, and the committee stands recessed for five minutes.

The committee recessed from 1733 to 1751.

The Chair: I call the committee back to order. As the clerk has ably noted, we can actually deal with section 9, because what we're talking about with the amendment that has been circulated would be a new section, 9.1.

So, let me first go back to section 9 itself. Any amendments or debate? Ms Lankin. That's a new section.

Ms Lankin: Sorry. Go ahead.

The Chair: That's OK, not that I'm psychic or anything.

Seeing none, I'll put the question. All those in favour of section 9? Carried.

That takes us to a proposed amendment. Ms Lankin.

Ms Lankin: I'm going to move a new section of the bill. I'm wondering if I might just explain to committee members what I'm going to do, which is slightly different than the piece of paper they have in front of them, before I actually move it. Can I have that kind of leeway from the Chair?

The Chair: Absolutely.

Ms Lankin: Thank you.

Committee members will see a draft amendment, which has been done by legislative counsel, attempting to meet the concerns that the committee spoke of earlier, those concerns being the authority for the minister to designate, for example, a trail warden to have the powers of police officers with respect to the sections of the act that deal with mandatory trail permits and the display of the trail permits and the offence of not having mandatory trail permits.

You'll see that there are two key paragraphs here. In consultation with ministry counsel, I think you will hear that there is an objection overall that the authority to appoint trail wardens for such responsibilities exists in other pieces of legislation, and, more particularly, if it were to be contained within this piece of legislation, that the second paragraph is problematic.

I intend to move this amendment without that second paragraph and add a couple of words to the amendment. I would ask members to listen carefully. At the end of the first paragraph, I'm adding about six words. Just so that you know it will be coming and you could make note of that.

I move that the bill be amended by adding the following section:

"9.1 The act is amended by adding the following section:

"Enforcement

"26.1(1) For greater certainty, the minister may designate any person or class of persons under subsection 1(3) of the Provincial Offences Act as a provincial offences officer for the purposes of enforcing subsection 2.1 and exercising the powers of a police officer under subsection 17.1(1)."

Mr Garfield Dunlop (Simcoe North): Can you repeat that, Frances, please?

Ms Lankin: Yes.

"26.1(1) For greater certainty, the minister may designate any person or class of persons under subsection 1(3) of the Provincial Offences Act as a provincial offences officer for the purposes of enforcing subsection 2.1 and exercising the powers of a police officer under subsection 17.1(1)."

If I may, let me tell you first of all what the amendment does. It makes it very clear and contains within this piece of legislation the regulation-making authority or the designation authority of the minister to designate persons to do two things: to deal with the new offence created under subsection (2.1); that is the new subsection that mandates trail permits, that a person must have a trail permit and that they must display the trail permit and sets out an offence if a person fails to comply with the provisions in (2.1). This would allow the minister to designate a provincial offences officer to have the power to deal with that.

The reference to the words that I added, "and exercising the powers of a police officer under subsection 17.1(1)," that is the new power of a police officer to stop a snowmobile. So if you see someone zipping along without a trail permit, you have to have the power to actually stop them to be able to tell them that they have committed an offence at that point in time. So that's the reference there.

Ministry counsel quite rightly points out, as does this amendment, that the power to appoint a provincial offences officer is already contained within the Provincial Offences Act. Similarly, the power to name someone as a police officer, for example, the STOP officers out there, is contained in the Police Act. I think what we have heard from the community out there is that they want, within their own piece of legislation, to be able to understand what powers are and what powers may be designated. Ordinary folk in snowmobile clubs don't read the Provincial Offences Act and the Police Act to find out whether or not they could be appointed.

This doesn't undermine any other piece of legislation. It may be considered by ministry counsel, legal counsel, to be redundant, and I understand that concern. However, I think it gives, as the amendment says, greater certainty and greater clarity, and it's more direct communication to the people that we're trying to write this legislation for.

The Chair: Recognizing the time, I invite brief comments. But rather than cut off debate, if you'd prefer we can carry this over to allow a more fulsome debate on the following Wednesday.

Mr Spina: The following Wednesday, which is-

The Chair: December 6.

Mr Spina: We have some concerns, but that's what the Chair is calling on, that this committee recess and we come back with-

The Chair: Actually, the Chair is pointing out that it's 6 of the clock, and according to our rules-

Ms Lankin: Unless you're ready to vote on it. If you need to talk to some folks, we've got to take some more time.

The Chair: I sense there is a need for further debate around the table. Seeing that we've got the other issue-

Ms Lankin: I have a technical question. The motion is moved; it's on the floor, and if another member subs in, that's entirely OK?

The Chair: Absolutely.

Ms Lankin: I won't be able to be here.

The Chair: That's OK.

Ms Lankin: But remember my arguments.

The Chair: I'm sure they'll be ably supported by whomever you send.

With that, the committee stands adjourned until Wednesday at 3:30.

The committee adjourned at 1759.