2015 Legislative Session: Fourth Session, 40th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the Legislative Assembly

(hansard)

Thursday, March 26, 2015

Afternoon Sitting

Volume 22, Number

ISSN 0709-1281 (Print)

ISSN 1499-2175 (Online)

CONTENTS

Page

Orders of the Day

Committee of the Whole House

Bill 18 — Administrative Tribunals Statutes Amendment Act, 2015 (continued)

Hon. S. Anton

L. Krog

V. Huntington

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Agriculture (continued)

L. Popham

Hon. N. Letnick

V. Huntington

D. Donaldson

[ Page 7023 ]

THURSDAY, MARCH 26, 2015

The House met at 1:32 p.m.

[Madame Speaker in the chair.]

Orders of the Day

Hon. A. Wilkinson: In this chamber, continuing with committee debate on Bill 18, the Administrative Tribunals Statutes Amendment Act; and in the committee room,

Section A, continuing with the estimates of the Ministry of Agriculture.

Committee of the Whole House

BILL 18 — ADMINISTRATIVE TRIBUNALS

STATUTES AMENDMENT ACT, 2015

(continued)

The House in Committee of the Whole (Section

B) on Bill 18; D. Horne in the chair.

The committee met at 1:35 p.m.

section 1 (continued) .

Hon. S. Anton: The question before the break was: how many tribunals? There are 23 on the clustering-enabling list. I believe the list is public. It’s possible that more may come in, in the future. Tribunals do change and get added from time to time, but the major list that we’re looking at right now is that list of 23.

L. Krog: I wonder if the Attorney General could advise of the types of tribunals that aren’t anticipated or likely to be on the clustered list.

Hon. S. Anton: The list of possibilities at the moment, I think, is what the member was asking for: Agricultural Land Commission, B.C.

Farm Industry Review Board, Building Code Appeal Board, civil resolution tribunal, Community Care and Assisted Living Appeal Board, Employment Standards Tribunal, Employment and Assistance Appeal Tribunal, Environmental Appeal Board, Financial Services Tribunal, Forest Appeals Commission, Health Professions Review Board, hospital appeal board, Human Rights Tribunal, Industry Training Appeal Board, Labour Relations Board, Mental Health Review Board, oil and gas appeal tribunal, Passenger Transportation Board, Property Assessment Appeal Board, Safety Standards Appeal Board, surface rights board, Utilities Commission and Workers Compensation Appeal Tribunal.

L. Krog: I presume that the reason that they’re not on the clusterable list is because the work that those tribunals do is of such a specialized nature that they wouldn’t be suitable for clustering.

Hon. S. Anton: I think we may have our wires crossed on the question and the answer. The list I just gave was the list of tribunals which may be clustered, and there may be more additions to that list. Perhaps the member might repeat…. If there’s another question in there, perhaps he could repeat that.

L. Krog: Not having instant playback like TV sports, not that I’m a huge sports fan anyway, my question was: what’s the list of tribunals that aren’t considered clusterable?

Hon. S. Anton: I don’t want to be too black and white about this, because there are some that are not on the list at the moment, but I don’t want to close any doors on things that may occur in the future and circumstances that may change in the future.

Ones that are not in the immediate group are…. For example, there’s an education discipline and conduct review board. There’s a driving notice review board, the Financial Institutions Commission, the Securities Commission and the residential tenancy branch.

Those are not, as I say, on the list at the moment. But as I said, as well, I just want to reiterate that we’re not closing doors here. This is enabling legislation, and sometimes things may be appropriate in the future that are not being looked at right now.

L. Krog: I’m curious, because it’s rather interesting. When the Attorney General gave the answer to the question I hadn’t asked — and I don’t mean that as a criticism, because I’m not very clear in my questions, often — it seems to me that those that were listed were the ones that I would have thought in some respects aren’t clusterable — the Agricultural Land Commission versus the Labour Relations Board.

[1340]

If my understanding is they’re on the list of the ones that are clusterable…. The Labour Relations Board, which is arguably historic, 40-plus years — I mentioned it in my remarks at second reading — was set up because labour relations were seen as such an important area, requiring a particular expertise. Judges didn’t like to deal with this stuff. Labour didn’t like to deal with this stuff. Employers didn’t necessarily feel they were getting a fair shake either.

I’m wondering if the Attorney General can explain how she would see that being clustered and with what. The Labour Relations Board with what other board — or the Agricultural Land Commission, I believe she mentioned as well, or the appeal board? Where do these things fit, and how do they fit? Are we just talking about sharing a boardroom? Are we seriously talking about sharing staff, members of the tribunal?

[ Page 7024 ]

Hon. S. Anton: The member raises the question of the Labour Relations Board. It is, in fact, already sharing the same chair and the same facilities with the Employment Standards Tribunal. There are things that different tribunals can join together on. In fact, in a pragmatic way, these two have already joined up, not in terms of their mandate but in terms of the back office, the administrative side of things.

L. Krog: Again, I’m a bit curious. This was Geoff Plant’s baby. It’s 11 years old. The amendments that were made previously…. I guess what I would be thinking, as someone looking from the outside and not having any particular expertise, is that what the Attorney General has described has all been what I would call sort of practical, sensible things. It’s like having a government agents office. Of course you’re going to jam as much in there as you can. And, yes, who cares whether the person who answers the phone is paid by the — I don’t know — ministry of municipal affairs or the Ministry of Finance or the Ministry of Community, Sport and Cultural Development or whatever?

I think the concern that I would be thinking and what I’m somewhat focused on — perhaps unnecessarily, and the Attorney General can disabuse me of this — is the people at the top who are going to be making decisions, in a sense, or adjudicating, if you will. That’s where I presume the necessity for the legislation is, but that’s not necessarily what’s being contemplated. Is my understanding correct?

[1345]

Hon. S. Anton: There are three things that I would note that we would propose by clustering. One is to build common administrative structures to improve efficiencies and reduce duplication where appropriate. The second is to give tribunals clear authority to use electronic tools to support a range of dispute resolution processes. Thirdly is to put in place enhanced early dispute resolution processes.

It’s not just about adjudication. It’s about integration of processes and integrating case managers, mediators and other staff. There are a range of things that may be achieved by clustering, and they may not be the same things in each cluster. They may vary from cluster to cluster. Those are the kinds of things we’re looking at.

L. Krog: I’d be tempted to ask the Attorney General, except that it might sound cheeky, if she’s having as much trouble understanding how this is going to come together as I am. I don’t mean that in a sarcastic or critical way.

Interjection.

L. Krog: Yes, the Minister of Advanced Education is listening carefully again today.

Perhaps if I can be given a fairly concrete example of how this meshing requires a statutory change and how it’s going to actually work. In other words, think of me as the simplest-minded person in British Columbia. If you can put it in really concrete terms in a way that I can figure out why we have this wonderful, thick brainchild of Geoff Plant, the Administrative Tribunals Act, how we’re going to amend it and how this is actually going to have any significant impact on the delivery of services, the saving of money, protection of the public, enhancement of the speed of decision-making, more expeditious resolution. How is it going to work in a really practical way?

Hon. S. Anton: The purpose of the legislation is to provide clear authority and clear direction from the Legislature that these are transitions that the tribunals should be looking at and, in fact, the direction we will be looking at with the tribunals. Obviously, we want to make things work as smoothly as possible, but this gives the authority for staff and for myself to work with these tribunals to do the clustering, to achieve the efficiencies, to achieve the back-office things, to achieve the mandate things that allow them to operate successfully and efficiently and provide good access to justice all throughout British Columbia.

[1350]

L. Krog: I take it, then, that the government is satisfied that without the amendments contained in Bill 18, it is legally impossible to achieve a number of the efficiencies we’ve heard described and used as examples during the course of committee stage already, that this is a necessity.

Are we being overly cautious? Have things been tried already that are saving money or making things efficient and that don’t require legislative change? Or is there a concern that perhaps things are being done that in fact may be improper, for instance?

I’ll use an example. In certain health facilities, for a time, people were signing what amounted to advance health care directives that were of questionable legal authority. The government realized that that was a severe issue and brought in legislation, essentially, to make it “legal” or “lawful” to do so.

I’m just wondering. Are we talking about the same kind of thing here — that we’ve already done some things and we’ve got to ensure we have a legal framework that is in fact enforceable, that’s correct and proper? Or is it simply to provide guidance? Or is it simply, as I suggested the other day, “Open the door, and we’ll let the horse run around” — it’s the Attorney General’s horse — “and do what it wants without the oversight of the Legislature,” because it’s going to all be by regulation?

Hon. S. Anton: There’s no question that some of these pieces could be done without legislation. But the purpose of the legislation is to establish the mandate, to establish the interest of government in clustering tribunals and achieving the various goals of clustering that I have set

[ Page 7025 ]

out a number of times already.

L. Krog: Just by way of a bit of history…. I don’t claim to have a complete grasp of all of this. When the Administrative Tribunals Act was brought in and it set in place this new regime, by specific pieces of legislation, amendments or whatever, were all of the tribunals that the minister has talked about today, assuming they existed — and I think that most of them did — then placed under this act, in terms of it being the enabling bill that allowed them to continue to operate, or to operate under a somewhat different regime?

[1355]

Hon. S. Anton: When the Administrative Tribunals Act was brought in, there were, of course, administrative tribunals. The goal of that act was really to put a structure around all of those administrative tribunals. In the same way, the goal of this act is around clustering of the groups of tribunals, which I have mentioned earlier.

I’ll just mention one more thing, which is that there were in fact two tribunals that were not brought in, in the original Administrative Tribunals Act. Those were the Environmental Appeal Board and the Forest Appeals Commission.

L. Krog: I take it that the Environmental Appeal Board is proposed to be brought in now, under this act, and I’m curious to know: what’s the reasoning for that?

Hon. S. Anton: As I mentioned, the Environmental Appeal Board and the Forest Appeals Commission were left out of the original Administrative Tribunals Act. This act — one of the provisions of it — would bring them in. That is consistency for all of the tribunals.

L. Krog: Dealing specifically now with

section 1 —”Interpretation and Application.” I take it that the whole concept is simply to, obviously, put in the title and alert people to the fact that we are talking about

an act that now has a far different application than it did previously.

Hon. S. Anton: We are putting in a title here. I think I might have missed a little nuance in the member’s question around the word “application,” but indeed, this is a very weighty section, and the purpose of it is to put a heading in before

section 1.

L. Krog: Just to make it easier for people like me to understand, I take it that it is to emphasize, also, that the nature of the application of the act is changing as well.

Hon. S. Anton: The application being referred to is found — we will get there fairly shortly, I think — in

section

Section 1 approved.

section 2.

L. Krog: The existing definition of “dispute resolution process” says: “means a confidential and without prejudice process established by the tribunal to facilitate the settlement of one or more issues in dispute.”

Just so I can understand the difference now that we’re talking about…. This refers to a “without prejudice process.” Presumably, that means that it can’t be used in some subsequent part of the hearing or in some other adjudicative or judicial process when it comes to determining an issue. Is it as straightforward as that?

[1400]

Hon. S. Anton: The new definition relates to the “facilitated settlement process,” which will be described in

section 28. What it does is it actually takes out adjudications. So dispute resolution process includes everything all the way up to and including adjudications, where the facilitated settlement process does not include adjudication.

L. Krog: I was trying to understand the difference between these sections. I mean,

section 16 of the bill, which includes the proposed

section 28 of the act — it’s called “Facilitated settlement” — says:

“

(1) The chair may appoint a member or staff of the tribunal or another person to conduct a facilitated settlement process to resolve one or more issues in dispute.

(2) The tribunal may require 2 or more parties to participate in the facilitated settlement process, in accordance with the rules of the tribunal.

(3) The tribunal may make the consent of one, all or none of the parties to the application a condition of a facilitated settlement process, in accordance with the rules of the tribunal.”

The existing

section 28 says:

“

(1) The chair of the tribunal may appoint a member or staff of the tribunal or other person to conduct a dispute resolution process.

(2) If a member of the tribunal is appointed under subsection (1), that member, in addition to assisting in a dispute resolution process, may make pre-hearing orders in respect of the application but must not hear the merits of the application unless all parties consent.”

Trying to put this together, can the Attorney General explain precisely how this changes how these tribunals will now act, respond and deal with issues that end up in front of them?

[1405]

Hon. S. Anton: The process around the facilitated settlement process is enabling. It allows the mediation, and it allows the same person later to be the adjudicator. We’ll come to that when we get to those sections. But that’s the purpose of having the separate definition, in

section 2, of the facilitated settlement process.

L. Krog: I take it that it’s fair to say that the facilitated settlement process, as opposed to the dispute resolution

[ Page 7026 ]

process…. It’s not just about emphasizing that the nature of the process is being changed somewhat to a more mediative role than an adjudicative role. It’s also about potentially expanding what can be done in what was formerly more of an adjudicative process, which is what we have now.

Hon. S. Anton: That would be correct.

L. Krog: That raises the obvious question. Are there statistics kept by the ministry or information available that would indicate that, in fact, we weren’t getting things settled in a very timely, expeditious way with various tribunals? In other words, is there some real evidence to back up the necessity for making this change?

Hon. S. Anton: The purpose of this is to give clarity that the tribunals do have the authority to do that. If I might observe, one of our tribunals is extremely effective in this regard, and that’s the Human Rights Tribunal, where there’s significant mediation and there is occasionally adjudication. They do both sides of that very effectively.

L. Krog: If I can perhaps be more specific, I take it that the impetus for the change from the dispute resolution process to the facilitated settlement process is not so much that the present system isn’t producing results, necessarily; it is, in fact, to ensure that there is a legal justification for how the process is being conducted and will be conducted in the future.

Hon. S. Anton: The answer to the question is yes. We do want to make it perfectly clear that all tribunals can engage, as appropriate, in both mediation and adjudication.

L. Krog: If I can just go back to the other question, are statistics kept or reports made by these various tribunals that would indicate on a year-to-year basis how cases are being dealt with? What trends, if any, can the minister comment on that have led us to this bill? In other words, is there a growing trend that things weren’t getting settled that were going all the way to adjudication? Is it a flatline trend? Were things getting settled in the process early or late?

[1410]

In other words, is there some sense of how the processes that existed under these tribunals are, in fact, working now and whether or not they required remedy, correction, amelioration, whatever the case may be?

Hon. S. Anton: It varies from tribunal to tribunal. Some are very good at reporting, and some of them don’t report quite so much out. I mentioned the Human Rights Tribunal because it happens to fall under Justice, so I hope I’m not offending any of the other tribunals, which do a good job. I’m told that the Labour Relations Board also does a very good job of its reporting. There may very well be others in there as well, but as I said, I may refer more often to the ones that I’m more familiar with.

L. Krog: I take it that it’s also fair to say that this represents a significant change in the direction of the aim of the act. In other words, we’re trying to focus more on getting a settlement rather than resolving a dispute, which is, arguably, a narrower focus.

Hon. S. Anton: The purpose of this is to broaden opportunities to resolve issues, find early resolution to processes, make the boards effective, make the tribunals effective and help the people that appear in front of them.

L. Krog: I appreciate that the minister in her responses has emphasized many times that this is an enabling statute, but this Legislature is being asked to approve it, and it obviously leads to the question: exactly what will change in terms of how the practical process for this works? Can the minister give some example of someone coming into one of these tribunals and how or what the minister sees will be the difference in the process?

I’m not just talking about the electronic side, which we’ll come to. I mean, literally, how is a file going to be handled? How will this process, dealing with a facilitated settlement process, be different from a dispute resolution process? In other words, what’s going to happen on the ground for somebody who comes through the door?

Hon. S. Anton: Sometimes it is the case that some cases before tribunals can be rather lengthy, where, if there had been more of a focus in the tribunal and the structure of the act, the structure of the regime that the tribunal operates under…. It’s very clear that mediation is an important part of their process, but sometimes cases, instead of dragging on, can have a mediation process that actually resolves the matter for the parties at an early stage and saves a lot of time and energy which was being spent unnecessarily — but is completely bypassed through an early resolution.

[1415]

L. Krog: I come back to my point. Can the minister give me some sort of concrete example of what it would look like? Just take a case, a simple case. It doesn’t have to be complex. The simpler the better for me. What’s going to be the practical difference? Are they going to see less persons at the tribunal office? Are they going to file more paper or less paper? Are they going to get to a hearing faster or have a meeting sooner? In other words, what does it really look like on the ground?

If I file a proceeding in Supreme Court today, I have a pretty good idea what the process is. There are steps

[ Page 7027 ]

— Supreme Court rules 1, 2, 3, 4 — and documents due within a certain period of time, etc. You make an application under the Residential Tenancy Act — a fairly concrete process.

Can the minister give me an example of what this process will look like once this act is passed and proclaimed and we’re dealing with it? What is Joe or Sally off the street…? What does it look like?

Hon. S. Anton: For instance, under the Residential Tenancy Act at the moment, everything goes to adjudication,

whereas it may very well be that a number of those matters — many of them — should go to mediation. Things that cut delays, cut costs for parties and form an early resolution are processes that help people as they bring their issues before these tribunals.

L. Krog: Thank you to the Attorney General for the response. The residential tenancy branch is one that hears a lot of things during the course of a year. It’s one commonly used, its services utilized by thousands of British Columbians annually. It’s a very good practical application of the changes that this statute will bring about. But of course, you’re dealing with parties who often want something…. Particularly a landlord — if they’re anxious to get rid of a tenant, they want it resolved in a very timely and expeditious fashion.

So how does the Attorney General see that mediative aspect to this rolling out? The reason I say that is because the existing definition talks about: established “to facilitate the settlement of one or more issues in dispute.” I mean, even the existing legislation talks about settling a dispute with a settlement process, and now it talks about “conduct a facilitated settlement process.” I think there is a distinction, obviously, and a change. In other words, how do we envision it?

And seeing as how we have an expert here, present and available, how do they see that working out in a practical way if someone wants something very timely? If a landlord wants a tenant out or a tenant wants to stay, are we talking about getting on a phone conference quickly? Are we doing it by…? How do we conduct a mediation, unless there’s some kind of telephone communication hearing — whatever the case may be? How does it work?

[1420]

Hon. S. Anton: The goal of this act is to find more ways to help people to come to resolution, to broaden opportunities. For example, going back to the residential tenancy example, they do adjudications by telephone, but they’re not doing them asynchronously. That’s the on-line dispute resolutions so that you can hear from parties at separate times and still come to either your mediation or adjudication. This is to broaden the tools and to increase opportunities for early dispute resolution.

In the case that the member raised about how in a residential tenancy, people have an interest in acting fairly quickly. The goal of this would be to encourage early resolution, not to discourage it — to broaden the opportunities to allow for that early resolution that people are seeking.

L. Krog: To use that concrete example, because it’s much easier for me to wrap my head around this, right now I’d file with the residential tenancy branch, and the tenant or the landlord — or whoever I’ve applied against — would file a response, essentially, and then we’re going to get a telephone hearing. That’s pretty much the process. I’m looking for a nod to confirm that that’s the case.

Having said that, now what would happen in addition to that process is that potentially I will file. Obviously, nothing is going to happen until someone responds. When they respond, then a person employed by the residential tenancy branch would presumably be in a position to phone up the applicant and get some sense of what that claim is really about.

As we all know, people who file claims don’t always do it in language that’s terribly clear or explain themselves very well. They would be in a position to contact the respondent and then try, literally, on a back-and-forth process, presumably by telephone, to work out a solution — and/or with the benefit of e-mail or whatever communication means are available.

To come back to my earlier point, I’m trying to get my head around that so someone listening today would understand. “Oh, I see how this new system is going to work. I really hate it” or “I really like it.” But at least they understand what the system is. Is that an example that the act contemplates?

Hon. S. Anton: The objective is to help the parties to work out their solutions as early as possible. It may be by telephone; it may be by e-mail. It may be by other on-line forms. It really is to give the authority to try solutions that work to bring people together and resolve their issues.

[1425]

L. Krog: Is the contemplation that we will move to perhaps a more standardized application, if you will, or initiating process or document, which might be used across a range of tribunals? Or alternatively, enable — I hesitate to call them adjudicators — persons who will make decisions? Well, they just refer to it, I think, as a member of the staff — a tribunal member — that will enable them to perhaps deal with these on a more routine basis so perhaps you required less sophisticated or trained individuals? I mean, how does this fall into place?

I see some nods over there. It’s always very helpful. Maybe I’m actually making my point with a little more clarity. Perhaps I can get the response accordingly.

Hon. S. Anton: Let me go to a different example, which is the civil resolution tribunal. The civil resolution tribunal will have a front end. Eventually, everybody

[ Page 7028 ]

who has a small claims matter will start there. Whether they go into a courtroom or whether they stay in the civil resolution tribunal, they will file their application in that front end.

Certainly, my goal as Justice Minister is that when people go in there, they understand their own files, they understand their own issues, and they are engaged in their own solutions. Whether it could be one portal that actually applies to more than one tribunal — that may very well be how it turns out over time. Certainly, there will be a much greater focus on people commencing their actions in an on-line fashion. As I said, when people do that, they will be, then, involved in framing their own issues.

I think, again, that will help in one of our goals, which is to have people understand their own issues and to come to an early resolution of those issues.

L. Krog: The civil resolution tribunal that the minister has mentioned. Is it contemplated, then, that we will see some disputes that are now going through existing tribunals? Are they going to work their way through that process first, potentially? I mean, do we see some larger scheme here as to how that’s going to mesh and operate?

Hon. S. Anton: The civil resolution tribunal has two purposes. One is the small claims matters, and the other is strata. It is not contemplated that other ones of these tribunals will fit within the civil resolution tribunal. What the civil resolution tribunal will do, though, is that people come in on what we’re calling guided pathways. If their guided pathway turns out to actually be a residential tenancy matter, the goal of the tribunal software, the interface, would be to make sure that the person got to that understanding fairly quickly and got redirected to the residential tenancy branch rather than the civil resolution tribunal.

L. Krog: Perhaps the Attorney General could explain how the guided pathway is going to work — in other words, in a very practical way. I’m a person who’s had no experience with any dispute resolution process — no tribunals, small claims court, the civil tribunals. I have no experience with it, and I have an issue. Am I going to wander into a government agent’s office, for instance, in Pouce Coupe? I hate to pick on Pouce Coupe, but it’s near where my mother-in-law’s people came from.

Interjection.

L. Krog: The Coupe. Well, I see we may have a disagreement about the pronunciation, but we’ll settle for Pouce Coupe.

I’m going to wander into a government agent’s office in Pouce Coupe. How is the guided portal going to work? Is somebody there — a public servant working for whomever? Are they going to guide me into the residential tenancy branch, if it still exists? Or are they going to guide me into the civil resolution tribunal? Or are they going to send me off — I don’t know — to the Oil and Gas Commission, for all I understand?

[1430]

Hon. S. Anton: We will probably spend some time on the civil resolution tribunal in the next piece of legislation. Just in terms of access, which the member is asking about, it is what we would call a multi-channel access: on line, telephone, mail.

Certainly, the government agents would be able to direct a person to how they can access the tribunal. You could be sitting at midnight in your home. You’ve come in from work, and you’re ready to start thinking about your issue. You can sit down in front of your computer at that time and start work on it.

L. Krog: Dealing with the definition of “tribunal.” As it exists now in the

definitions section, it says: “‘tribunal’ means a tribunal to which some or all of the provisions of this Act are made applicable under the tribunal’s enabling Act.”

The amendment in

Section 2 of this act — to replace and substitute the following, etc. — says: “…in the definition of ‘tribunal’ by striking out ‘under the tribunal’s enabling Act.’”

[R. Chouhan in the chair.]

I interpret that to mean that this will all be determined by regulation in the future as opposed to making reference to specific acts, or have I got that wrong?

[1435]

Hon. S. Anton: This is really a housekeeping change here. When the act was originally written, it was contemplated that each tribunal would have one act that governed that tribunal. In fact, that is no longer the case. The proposal is to take out those words which seem to limit the number of acts to which a tribunal might look to.

I’ll give you an example. The B.C. Farm Industry Review Board hears appeals under the Farm Practices Protection Act, the protection against cruelty to animals act, and the Natural Products Marketing Act. So there’s not one act there that that tribunal needs to look to, but several. That’s why this was a good idea to do this piece of what I would call housekeeping at this time.

L. Krog: Just so that I can understand it, a tribunal in the future that is a creature of…. Presumably, it has to be a creature of statute, as opposed to regulation. A future administrative tribunal will be created as a result of the enabling framework of the Administrative Tribunals Act as amended. Some future tribunal will simply have to say

[ Page 7029 ]

it’s basically created, and then everything else falls into place without a great deal of description, if you will, in a more substantive piece of legislation.

In other words, is this going to make it easier for further tribunals to be created and, presumably, arguably, five new tribunals in a different, changing world that will all get clustered as well?

Hon. S. Anton: This is, as I said, housekeeping in a way, but it’s also clarifying that the tribunal needs to refer to all the statutes which deal with matters that come under that tribunal. It’s not so much being subject to regulation, but being subject to all the statutes that are applicable.

Section 2 approved.

section 3.

L. Krog: I’m wondering if the minister could simply explain the effect of this section.

Hon. S. Anton: This is a

section being added for clarification, and the clarification is that this act only applies if another statute relating to a tribunal states that the provisions of this act apply.

[1440]

It doesn’t change how the Administrative Tribunals Act and other statutes work together, but it clarifies within this act that it’s necessary to refer to other statutes to identify whether and how the Administrative Tribunals Act applies.

L. Krog: If I can just get it straight in my head. At the time the Administrative Tribunals Act was brought in, it was designed to apply to all the tribunals that existed in the province, and now what we’re saying is that the provisions of the Administrative Tribunals Act are not going to operate unless they’re made applicable to a tribunal or other body by another enactment.

In other words, the enabling statute that perhaps creates — I don’t know — some new tribunal…. This will only apply if that statute specifically says so; otherwise, it won’t apply. Is that the way to interpret this?

Hon. S. Anton: Let me refer back to the example I was using a moment ago, which is the B.C. Farm Industry Review Board. The B.C. Farm Industry Review Board is formed under the Natural Products Marketing Act. But as I said a moment ago, it also hears appeals from the Farm Practices Protection Act and the protection against cruelty to animals act. Each of those acts specifically refers back to the Administrative Tribunals Act, bringing into effect the Administrative Tribunals Act as it applies to those particular acts.

[1445]

L. Krog: I’m sure it wasn’t the Attorney General’s intention to make my head spin, but I feel a bit like Linda Blair. Part of it is I was contemplating my next question, in which this section, the proposed

section 1.1, is added.

It says: “If another enactment incorporates

section 1 [definitions] of this Act, (

a) the

definitions in this Act apply to provisions of this Act incorporated by the other enactment.” All right. I think I get that. It then says: “but (

b) unless a contrary intention appears in the other enactment, the

definitions in this Act do not apply to a use of a term in the other enactment outside of the incorporated provisions.” Can I have that in simple language?

Hon. S. Anton: To continue with the example I was using a moment ago, the Farm Practices Protection Act, some of that act will refer back to the Administrative Tribunals Act. Other parts of that act have nothing to do with the Administrative Tribunals Act.

This is just to clarify that only things insofar as they deal with the Administrative Tribunals Act…. That’s the only part where the Administrative Tribunals Act

definitions apply. Otherwise, the rest of the statute is unrelated to the Administrative Tribunals Act and what goes on in that act.

L. Krog: Just so I’m absolutely clear, if a definition in one of the acts that the minister mentioned isn’t contained in the

definitions

section of this act, the other act’s definition is not impacted whatsoever by this act. I think I have it.

And subsection (4). It says: “Subsection (1) does not apply to this

section or to

section 62 [application of Act to BC Review Board].” Is that just an exception for that particular statute or the B.C. Review Board? And if so, why?

[1450]

Hon. S. Anton: The B.C. Review Board is treated differently because it is a board set under the Criminal Code of Canada, and we don’t have as much authority over it as we do in the other boards that we’re talking about here.

L. Krog: Just out of pure curiosity, not being familiar with the B.C. Review Board, is it established under a provincial statute or under a federal statute? If it’s established under a federal statute, why would it even be necessary to include this section?

Hon. S. Anton: The B.C. Review Board is set up under the Criminal Code of Canada, but in British Columbia we implement it using the Administrative Tribunals Act.

If I might, this might be a good time to take a short recess, if that is agreeable, Chair.

The Chair: The committee will be in recess for five minutes.

The committee recessed from 2:53 p.m. to 3:01 p.m.

[ Page 7030 ]

[R. Chouhan in the chair.]

Sections 3 and 4 approved.

section 5.

L. Krog: We’re moving from “merit based” with no hyphen to “merit-based” with a hyphen. Everyone’s laughing. I can’t imagine why. This is such a serious topic. I’m bemused. Being one of those students who used to get 19 out of 20 wrong in phonics in grade 2, it ill behooves me to confess my ignorance. So what is the difference? I look forward to the Attorney General’s explanation that I might fully understand the legal significance of the hyphen as opposed to simply “merit based.”

Hon. S. Anton: I would have to concede that we might not open up the act to make this change. However, the act being open, this is a drafter’s preference.

L. Krog: I hesitate to go in on the topic of preference as it may apply here. Is the Attorney General able to advise me if there is any linguistic, grammatical difference between “merit-based” with a hyphen and “merit based” without? If she has the drafter’s explanation for his or her preference, I’d be very interested to hear that.

Hon. S. Anton: Given the member boasting about his prowess in grade 2 grammar….

L. Krog: I said 19 wrong.

Hon. S. Anton: I thought he got 19 out of 20 right.

L. Krog: No.

Hon. S. Anton: Oh, he’s saying 19 out of 20 wrong. That is disappointing.

Interjection.

Hon. S. Anton: And his mother was his teacher, he says. It must have been a dark day in Coombs, British Columbia, on that fateful day.

I am told that by including the hyphen, there is increased accuracy as to what it means.

[1505]

L. Krog: I hate to belabour it, but it’s just too amusing for words. How does the addition of the hyphen make it more accurate, to use the minister’s language?

Hon. S. Anton: Drafting styles do change over time. This is to be consistent with the drafting style that is being used at the moment.

L. Krog: In subsection (2) — let’s get this straight — the existing

section says: “The chair may be reappointed by the appointing authority for additional terms of up to 5 years.” Then it says: “by adding ‘, after a merit-based process,’ after ‘may be reappointed by the appointing authority.’”

I’m just wondering. Is the suggestion, then, that, in fact, under the existing act it wasn’t a merit-based process being used for reappointment?

Hon. S. Anton: It was being used, but this clarifies that that is the proper practice to follow.

L. Krog: This applies, in some respects, more to the appointment of the members as well. “The chair of the tribunal may be appointed by the appointing authority, after a merit based process, to hold office for an initial term of 3 to 5 years.” We’re not changing that. But clearly, the tribunal chair has significant authority, and we’re wondering how that process is going to work. Will this be subject to review by the Merit Commissioner, for instance?

Hon. S. Anton: Let me give an example. The civil resolution tribunal right now is in the process of finding the initial tribunal members. They made a public announcement of some form. I’ll have to verify the form. In any event, they received a number of applications and are in the process right now of evaluating those applications in this merit-based process. It’s both a written process and an interview process. The applicants will be narrowed down to an appropriate number for the tribunal, and then those recommendations will be taken forward to cabinet.

L. Krog: Again, just for clarification, will those decisions be subject to review by the Merit Commissioner?

[1510]

Hon. S. Anton: The Merit Commissioner…. Her mandate applies to public service appointments, not to OIC appointments.

L. Krog: I rather suspected something like that. How do we determine that this is a merit-based process if ultimately the decision is made by cabinet?

Hon. S. Anton: The process itself is run by the board resourcing and development office. It is they who — for example, in the civil resolution tribunal example that I just gave — run the process. The candidates…. There was a written process and an interview process. Their goal will be to bring forward recommendations as to who the initial appointment should be. Those recommendations we take into cabinet.

L. Krog: Can the Attorney General confirm to the House that in fact the board resourcing and development office is indeed headed by Ms. Athana Mentzelopoulos?

[ Page 7031 ]

Hon. S. Anton: The board resourcing development office is professional civil servants, professional public servants. The minister in charge is Minister Andrew Wilkinson, and the deputy minister is Athana Mentzelopoulos.

L. Krog: I rather thought that might be the confirmation I’d receive. I’m just wondering…. Given that this is a merit-based process and that’s in the statute and made very, very clear by the amendments proposed — whether it’s the merit with or without the hyphen — is the Attorney General troubled by the prospect that Ms. Mentzelopoulos, the last time I heard anything about it, was in fact a claimant in a civil action for defamation against a member of Her Majesty’s Official Opposition?

[1515]

Does that concept not trouble the Attorney General — if she in fact has such significant responsibility for the appointment of the chairs and members of these tribunals?

Hon. S. Anton: I think we’re dealing with the content of this act. As I mentioned a moment ago, the board resourcing and development office is populated by professional public servants who do an excellent job in bringing forward recommendations.

L. Krog: Again, the Attorney General has made it very clear that this bill is enabling legislation, but it cannot be seen or discussed or examined in some kind of factual vacuum.

The fact is that Ms. Mentzelopoulos is seen by many as sitting in a patronage appointment and is having her legal fees in that suit paid for by the province of British Columbia under the indemnity policy and is in fact the person who had such a close relationship with the Premier that she was a member of the bridal party, as I recall….

Interjection.

The Chair: We’ll allow the member to ask his question, and then we will deal with it.

Carry on, Member.

L. Krog: My wonderful flow has been disturbed here, so I’ll start again. The evidence and information that I have would indicate that Ms. Mentzelopoulos was a member of the Premier’s bridal party. She is seen by many as being a patronage appointment. She is a person intimately involved with and responsible for the board resourcing board.

The Chair: Member.

L. Krog: She is presently involved in a civil suit for defamation against the member for Victoria–Swan Lake.

The Chair: Member, would you state the relevance of the question, please.

L. Krog: If I may finish the question first, hon. Chair, then I’m happy to defend its relevance.

She is presently suing a member of this assembly, a member of Her Majesty’s Official Opposition.

Hon. S. Anton: This is a general authority and description of how the Administrative Tribunal Act functions. It is not a question of personalities. I think that the question being asked is completely irrelevant. I think, Chair, I would recommend that you rule it out of order.

The Chair: Member, do you have a question related to this

section for the minister?

L. Krog: I certainly do. Again, if I may finish the question, then perhaps I can defend its relevance. But until I’ve finished it…. The point is this. This is supposed to be a merit-based process. There is no review of this position by the Merit Commissioner, because that only applies to the public service. The people who are appointed to be members by the chair of the tribunal — that’s the specific

section we’re dealing with now, let alone

section 3, where we’ll be talking about members — are going to have significant authority, do have significant authority.

Yet the person who will be ultimately responsible for their recommendation on to cabinet is involved in a piece of litigation where she’s the claimant, and the defendant is the member for Victoria–Swan Lake, a member of this assembly.

Now, I appreciate that the Attorney General thinks we can talk about the legislation in a factual vacuum, but that is the reality of this legislation. Once passed and proclaimed, Ms. Mentzelopoulos will be heavily responsible for or involved in the decisions respecting the appointment of the chairs of tribunals.

My question to the Attorney General is: isn’t she troubled by that concept?

[1520]

In terms of relevance, this is the government’s bill. To suggest that it is irrelevant and has to be examined in a world where there were no individuals or real facts — with great respect to the Attorney General’s suggestion — is, frankly, just not right. The fact is that these are public moneys being employed in a public process, and Ms. Mentzelopoulos is intimately involved with it. I’m asking the Attorney General: is she not troubled by that concept?

Hon. S. Anton: To clarify one thing, the member stated that this is enabling legislation. In fact, in relationship to clustering, it is enabling. But this

section is a

section that exists right now. It is not changing. It only clarifies that the chair, on reappointment, will also face a merit-based process. Any discussion of personalities is irrelevant.

[ Page 7032 ]

L. Krog: In terms of a merit-based process, who gets to assess whether the process is merit-based?

Hon. S. Anton: As I said a moment ago, the board resourcing and development office is staffed by professional public servants. Ultimately, those recommendations go to cabinet, but responsibility for the office itself is the responsibility of the minister.

L. Krog: Let me put it another way. If someone applies, is denied the position and feels aggrieved by this, there is no public process within the statute that allows them to appeal that decision, I’m presuming, short of literally filing a claim in Supreme Court. Is that correct?

Hon. S. Anton: As I have mentioned a couple of times, the only thing that this

section is doing is clarifying that the chair, on reappointment, needs to go through a merit-based process. This simply sets out the legal framework for that, which is done through the board resourcing and development office. Whether a person has legal remedies after that, a judicial review may possibly be available, but that would be up to the person and the circumstances of the case at the time.

L. Krog: Just so I’m clear, these persons will, in fact, be reporting, potentially, to the executive chair responsible for clusters of tribunals. Is that correct?

[1525]

Hon. S. Anton: I think the member has it right, which is that the tribunal chair reports to the executive chair, although there may be occasions when they report directly to the minister. But generally, the tribunal chair in a cluster reports to the executive chair and, in a non-clustered tribunal, would report to the minister.

L. Krog: I’m sorry. Just so I understand. That’s true today and will be true tomorrow? Or is there something in this legislation that will change that? In other words, presently tribunal chairs report to the ministers involved. In the future, they may or may not report to the minister. They may report to the executive chair and/or the minister? Or is there going to be a new protocol?

Hon. S. Anton: The executive chair is a new position, just to clarify. In terms of the dual reporting, generally, a tribunal chair is going to report to the executive chair. Depending on the tribunal, there may be certain issues of policy around that tribunal itself that the tribunal chair wishes to take up with the minister. But as I said, generally, the reporting relationship will be through the executive chair.

L. Krog: To be clear, all will be cabinet or order-in-council appointees.

Hon. S. Anton: That is correct.

L. Krog: With respect to this merit-based process, because we are adding a merit-based process to the reappointment. In other jurisdictions like Ontario, which has been the model for our clustering proposal as contained in this legislation, is it likewise a similar process? Or is it an independent process?

The reason I’m thinking of this is that I’m more familiar with the judiciary than I am with tribunals. You don’t get to be a judge unless there is a fairly rigorous process that involves confidential solicitor-client-privilege phone calls to lawyers in the community, asking what you really think of the potential appointments.

Whereas this, with great respect, ultimately becomes a political decision. You can call it a merit-based process if you want, but how does one know it’s a merit-based process ultimately? It isn’t necessarily a terribly public process in the same way, and it doesn’t involve the attention, if you will, or participation of a number of people. I mean, in the appointment of a judge, the Canadian Bar Association, the Law Society, practitioners in the area, various

section heads — of the Administrative Law Group, for instance — etc., would all normally be consulted.

I’m just wondering in this case, ultimately, is the process we have now the process we’ve always had? Is it modelled on somebody’s else’s process, and/or is the new process, which emphasizes that it’s merit-based, based on the Ontario process — or the Manitoba or Quebec process or some other province?

[1530]

Hon. S. Anton: The process in Ontario is similar to that in British Columbia. But again, I go back to…. We’re not doing anything new here except adding the reappointment piece, but the merit-based has been in place for some time.

If I might, I would observe that the result in British Columbia is that we have an excellent process through the board resourcing and development office, and we have excellent tribunal chairs in British Columbia. It is a very good process. It brings good people into these positions.

L. Krog: In terms of the existing process, because we’re adding and emphasizing the merit-based, particularly for reappointments, how does the process for the appointment work for a tribunal under the existing Administrative Tribunals Act, which is being amended by this section? Do I apply? Do I phone up? Do I send it in by e-mail? Does it get vetted? How does it work?

Hon. S. Anton: I’m going to use a general example which is generally the case. I don’t want to promise it’s the case 100 percent of the time, because whenever you

[ Page 7033 ]

assert 100 percent, someone will find a counter-example. But it is generally the case.

Going back to the civil resolution tribunal as an example, the positions are advertised on the board resourcing and development office website. We receive applications in writing, which will have a certain rigour to the application. There’s a written process, generally, and then an oral interview.

L. Krog: Is the oral interview granted to every applicant generally, or is it just granted to those that have gone through some kind of screening process?

Hon. S. Anton: If there are many applications, generally there would be a shortlist developed, and that’s the list that would be interviewed.

L. Krog: The site, I take it, would indicate particular qualifications, including university degrees, working experience, etc., with respect to every position?

[1535]

Hon. S. Anton: I realize I was slightly mixing up chair and tribunal members and using the civil resolution tribunal as an example, although the process is the same. We’re talking about chairs in

section 5, which refers to

section 2. However, the recent applications in the civil resolution tribunal related to tribunal members. The process, though, is the same.

The board resourcing and development office advertisement will specify qualifications, training and experience. It will specify what is needed for a person to apply for the position.

L. Krog: In terms of the board resourcing and development office, who does the interviews, and who makes the decision to forward it on to cabinet? Is there a collective body, a board, a panel, for instance, or a tribunal, to use that phrase — I couldn’t resist — that actually does the final set of interviews? Or is it made by one person? Is it made, in the present day, by Ms. Mentzelopoulos, for instance?

Hon. S. Anton: I keep going back to an example that I’m familiar with because it’s under my ministry — the appointments for the civil resolution tribunal. The chair reviewed the written material and consulted with the Deputy Attorney General. Then the chair herself and the Deputy Attorney General conducted the interviews.

L. Krog: I take it then it goes to Ms. Mentzelopoulos’s board, or does it go directly to cabinet? In the Attorney General’s example…. Perhaps she has another example that indicates how the board resourcing and development office itself is involved and what senior persons on that board are involved with making the decision, if any, that gets this from their desk to either a minister’s desk or to cabinet.

Hon. S. Anton: Just to clarify, the process I’m talking about, the civil resolution tribunal, is an active process right now. That’s underway right now. What will happen is that a shortlist will come to me, and then I take that recommendation to cabinet.

L. Krog: I take it that the work of the board resourcing and development office is at that point finished — when it gets to the Attorney General’s desk?

[1540]

Hon. S. Anton: There are circumstances where further questions may be put to the board resourcing and development office. The minister him- or herself might have questions about the candidates who are presented or recommended. Cabinet may have questions about them. So occasionally things do go back to the board resourcing and development office for further questions and further inquiries as to the suitability of the person.

L. Krog: Just so I can, again, understand the process. In the ordinary course, if I wish to be appointed the chair of a tribunal, I’m going to apply to the board resourcing and development office, headed by Ms. Mentzelopoulos. I’m going to be interviewed, or my resumé is going to be reviewed. I may be interviewed, if I’m fortunate. They will then short-list, and that list will potentially go to the minister involved or responsible for that particular tribunal and then on to cabinet. Is that the normal course of events? Is that the general flow?

Hon. S. Anton: The process is as described, although I think the shortlist language is not correct in this case. Going back to the civil resolution tribunal, what I will expect to receive is a final list of recommendations. The shortlist applies to how many people may get interviewed but generally is a final list that is recommended. That goes to the minister. That’s when the minister may ask further questions, may go back to BRDO with questions, and cabinet may even have questions for the board resourcing and development office.

L. Krog: Just so I’m clear, the minister may get three persons who presumably meet the qualifications of this process, will make the decision, and then the minister will take that name forward to cabinet.

Hon. S. Anton: I’m referring to a process, but I don’t want to be too absolute about it, because there may be some flexibility in the process. If there’s a search for a chair, the recommendation to the minister will generally settle on one person that comes forward as a recommendation.

[ Page 7034 ]

L. Krog: That’s really what I was looking for — to understand the process in a general way. But all of this is going to go through the board resourcing and development office. That is the only stream in order to be appointed a chair. Or are there in fact instances where chairs have been appointed without going through the board resourcing and development process?

[1545]

Hon. S. Anton: Because I’m not familiar with every single tribunal chair who has been appointed to every single one of these tribunals, I hesitate to make a blanket statement, but I will say that it is generally true that BRDO, the board resourcing and development office, advertises these chair positions and handles the appointment process.

Section 5 approved.

section 6.

L. Krog:

Section 6. I take it, again, we’re adding the wonderful hyphen between “merit” and “based,” and we’re adding the reappointment. This

section applies to members. The definition of “member,” per se, is not changing. Member means “a person appointed to the tribunal to which a provision of this Act applies.” The common person might use the term “board,” but the act talks about the member. That appointment is for two to four years. That’s not being changed. But the reappointment process says that it has to be a merit-based process on the reappointment.

I’m just wondering, again, with respect to those terms, was there no consideration given to perhaps a longer term and, in addition, considering a capping on it? Many of the officers of the Legislature historically were appointed for one term without necessarily the opportunity to reappoint, the concept being that they should not be influenced by the potential desire to secure reappointment to what is generally regarded as a fairly well-paid and prestigious position, being an officer of the Legislature. But that’s entirely independent and has to be the result of the recommendations of an all-party committee, and it has to be unanimous.

[1550]

Neither

section 2 nor 3, which are being amended, contains anything that prohibits a reappointment. Indeed, they provide for reappointment. Now we’re saying that the reappointment has to be “a merit-based process.” Presumably — how I interpret it — what that means is that others will be able to apply for the position at that time, not just the existing appointee. Is that correct?

Hon. S. Anton: When I look at this section,

section 6, I realize that a lot of the…. Because I was referring somewhat to members’ appointments in the previous section, a number of the things that I said in relation to choosing the members for the civil resolution tribunal are actually more correctly applicable to this section.

To the member’s question of whether or not the part (2), as to reappointment, is a competitive or the same kind of process, the merit-based process, it may be a different process. It may be more of a performance review, including recommendations by the chair. It may not be the whole interview — written interview and so on — process that the member of that tribunal may have gone through in the first instance.

L. Krog: As it is, it’s “may.” It’s permissive. I take it, then, that in theory, cabinet, without ever looking elsewhere, the resource board ever looking elsewhere, could simply reappoint if they were satisfied. But I’m wondering how it becomes….

Why would we even bother to describe it as “a merit-based process” if they may be reappointed by the appointing authority? How can you have a merit-based process if you don’t compare it against other candidates? I think in and of itself that seems to require consideration of others, because you’re contrasting the merit of one to the merit of another. Yet this process…. It says it’s to be merit-based but then says it “may be reappointed.”

Is there going to be a process, or is there not going to be a process? I think it’s a particularly important question.

[1555]

Hon. S. Anton: On reappointments, the process does still go through the board resourcing and development office. If you take, for example, a high-performing member of a tribunal, the merit of that member has already been established as part of their performance review process. As I said, it may not go through the same interview application process that a new member will have to go through, but that member has established their credentials, has established their ability to perform in that position.

L. Krog: Just so I am clear…. This is where we may have a real difference of opinion on what a merit-based process means. What the Attorney General is saying is that the merit-based process is just looking at the existing occupant of the office — whether it’s, in this case, the member of the tribunal or the tribunal chair, for that matter — without looking at any other individuals.

What the act, as it’s proposed to be amended, simply says is that you can just reappoint, if you think they’re doing a good job, without ever looking at anyone else. That doesn’t seem, to me, to be a merit-based process.

Hon. S. Anton: I think I answered that a moment ago. The person does have to establish their merit. That is established by the work that they have done on the tribunal up to that point. But as I said — and I just emphasize

[ Page 7035 ]

again — they do go through the board resourcing and development office again. They get reassessed, but they are assessed in a different way because they’ve already been on the tribunal.

L. Krog: Just so I’m clear, that is certainly the practice now. You go through the board resourcing and development office. Is there some statutory provision somewhere that says that that’s the process you have to go through again for reappointment? Is there some regulation somewhere? Is there something that says that that has to happen? It’s certainly not contained in this section.

Hon. S. Anton: This legislation is describing the process. It’s not describing the office that you go through. It is the case that the office that you go through is the board resourcing and development office.

L. Krog: I understand that. I guess the Attorney General has said, with some confidence: “This is how the process works.” But what I’m getting at is that in fact that process is not one that is statutorily created by these sections. It is in fact a decision — of government, I assume, or the minister or whoever — as to how that “merit-based process” works.

If the minister can point to some statute somewhere that says, “This is the merit-based process, and this is how it works,” then I would understand it. Otherwise, I’m just going to assume that when she says, with some confidence, “Well, yes, there will be a merit-based process,” that’s because it’s a practice, but it’s not a regulation or a statutory requirement.

Hon. S. Anton: That’s correct. It is not a statutory requirement, but that is the way that it works in government. The board resourcing and development office manages these appointments and reappointments. I’m making blanket statements here, and there is a possibility that there’s something in there that didn’t go through the board resourcing and development office that I don’t know about. But generally, that is the process.

Section 6 approved.

section 7.

L. Krog:

Section 7 adds 7.1 to the existing act, and 7.1 deals with powers after resignation or expiry of a term. What 7.1 says is: “An act of the tribunal is not invalid because of a defect that is afterwards discovered in the appointment of a chair, vice chair or member.”

[1600]

I wonder if the Attorney General could qualify and explain to me what that means. Does it mean that it’s discovered that the order-in-council wasn’t signed at the appropriate time or that they rendered a decision without it being signed? What does the term “because of a defect that is afterwards discovered” mean?

Hon. S. Anton: The purpose of this

section is to allow people to rely on the decisions of a tribunal. One would hope that this doesn’t happen, but it’s possible that there’s an administrative error in the appointment process. I think we’re familiar enough with government to know that, I suppose occasionally, these things may happen. One’s goal is that that does not happen, but if there’s an administrative error that has been unnoticed — the tribunal has made a decision — the public is entitled to rely on that decision.

L. Krog: Just to come back to what I’m trying to get at. Is that a defect in the appointment process as opposed to a discovery that the chair you appointed doesn’t have a master’s in public administration?

[D. Horne in the chair.]

It’s a defect in the process in and of itself. I don’t like to use the term “bureaucratic.” It always has such a pejorative connotation. But somewhere in the bureaucratic process somebody didn’t sign at the right time, or it didn’t get promulgated or whatever. Is that what we’re talking about when we use the term “because of a defect that is afterwards discovered in the appointment of a chair”?

I come back to my question about “merit-based”; this question becomes a little more complex. If someone sued who wasn’t happy with the merit-based process and a justice of the Supreme Court said that the process wasn’t merit-based and set aside the appointment, firstly, do they even have the power to set it aside? Secondly, would that constitute the kind of defect that would be remedied, if you will, or dealt with by proposed

section 7.1?

Hon. S. Anton: This refers to an administrative defect.

L. Krog: Again, I don’t think I’m making this more complex than it has to be. When the minister refers to “administrative defect,” are we talking about just a defect in the process itself, as I say? The example I use is the order-in-council appointing Mr. Smith chair of the tribunal. In fact, it was never signed, or it never got to cabinet, or someone assumed it was signed. He went ahead and did his job and is subsequently appointed appropriately, perhaps, but otherwise, it’s not invalid because of a defect in the process.

Hon. S. Anton: That’s exactly right.

Section 7 approved.

section 8.

[ Page 7036 ]

L. Krog: I’m sure the Attorney General will probably agree with me that proposed

part 3, which is

section 8, which is the clustering section, is probably the more substantive part of the bill.

[1605]

As I understand it, we have no specific proposals for clustering in the statute. The purpose of this

section is simply to enable the government at some point in the future, by regulation, to in fact cluster some of these tribunals.

Hon. S. Anton: Yes, this is the enabling provision to cluster.

L. Krog: And in terms of that clustering, because the term “cluster” isn’t defined anywhere…. You know, we talk about a flock of birds and a murder of crows, and now we’re talking about a cluster of tribunals.

I take it that the nature of that cluster is going to be entirely determined by what the government may do. There are, in a sense, no restrictions on what that cluster may look like — whether it involves joint tribunals, joint offices, joint staff, maybe even a joint budget. Is that a fair comment?

Hon. S. Anton: First of all, as to the word “cluster,” I would like to let the member to know that we tried a lot of words, but we kept coming back to “cluster,” and that’s where we are.

Is there a restriction on which tribunals can operate together? The restriction is actually contained in subsection (1). It has to be cabinet’s opinion that “the matters that the tribunals deal with are such that they can operate more effectively and efficiently as part of a cluster than alone.” Let me reassure those listening that cabinet’s decision will not be made before there’s extensive consultation and working with the parties involved to make sure that the cluster itself makes sense.

L. Krog: Again, in terms of how that cluster is going to operate, in theory, does this

section contemplate, then, that you could have the same chair, the same members of the tribunal, the same staff, the same office and the same paper process? In other words, it would be exactly the same except: “I’ve got a problem that is addressed to the tribunal as it’s named A and the tribunal as it’s named B.” They deal with different things, but in theory, they could be literally all of the same people. In other words, they could be doing double duty at every level and in every sense.

Hon. S. Anton: Yes, we’re proposing that over time the way that the tribunals operate will become more similar in terms of their technology platforms, their administrative practices and their focus on mediated solutions, where appropriate. That’s not appropriate in 100 percent of tribunals, but where appropriate. Their mandates, though, will remain their individual mandates, as set out in their individual statutes.

L. Krog: Some of the concerns that have been raised to me, particularly around the appointment of the executive chair….

[1610]

They’ll have “all the powers, duties and immunities of the chair of each tribunal,” and indeed, they may be appointed chair of one or more of the tribunals in the cluster. Is my

interpretation correct?

Hon. S. Anton: I believe the question was: can we cross-appoint members and chairs? The answer is yes.

L. Krog: So we could have a super executive chair, in the sense that this person would have enormous power. Does the Attorney General really think that the potential concentration of so much power in the hands of just one individual is, perhaps, even sensible and in the interests of efficiency?

We have a chief justice who provides an administrative function, for instance, and may hear some cases, but it’s not expected they’ll be doing chambers every day or hearing trials. Here we are giving significant authority to the executive chair.

Hon. S. Anton: Two things to say about that. First of all, the executive chair is responsible to the minister. Secondly, there are reporting requirements that we will be coming to a little later in this act.

L. Krog: Again, my point is this. Because we have a

section that says they may be reappointed, is the Attorney General not concerned about the potential perception that that reappointment may in fact be dependent upon a chair of a tribunal that’s making decisions that are seen as government-friendly?

Hon. S. Anton: We’re not changing the structure of appointments and reappointments. It’s staying essentially the same. I would have to observe that we are very well served by our tribunal chairs in British Columbia. They do an excellent job. They are independent, and they run their tribunals in an extremely professional manner and an independent manner.

L. Krog: Making reference to proposed subsection 10.2(6): “The executive chair must have all the qualifications required of a chair of any tribunal in the cluster under any enactment.

(7) The executive chair is a member of each of the tribunals in the cluster for which he or she is responsible.”

I read that to say: “You’re the big boss, tribunal chairs are under you, and you’re deemed to be a member of

[ Page 7037 ]

every tribunal under you, as executive chair.” And it says that you have to have “the qualifications required of a chair of any tribunal in the cluster under any enactment.” That seems like an awful lot to ask of an individual.

[1615]

It also gives that executive chair significant influence across multiple tribunals. I’m wondering: from a public policy perspective, does the minister think that is, in fact, good public policy?

Hon. S. Anton: Yes, we’re expecting the executive chairs to be strong and proven tribunal members. Just adding to what I said a moment ago, we are very well served in British Columbia by our administrative tribunal system and the people that serve on our tribunals. It’s robust, and it’s very well regarded in British Columbia. We do expect that the people who become the executive chairs will be highly qualified representatives of that system.

L. Krog: Again, if they have to have the qualifications at some point…. And having qualifications is one thing; keeping up your practice, so to speak, and your ability in a given area is another thing. Most professions now require a constant upgrading, continuing legal education. For instance, for lawyers, you’ve got to take 12 hours a year. If you’re a physician, you’ve got to take so many hours a year — again, to keep you current with remarkable changes that are taking place.

I’m just concerned that if you have individuals who are participating in multiple tribunals…. Isn’t the minister concerned that there could be an erosion of the expertise necessary? I think there’s good case law that says that if these folks are doing these jobs, they’ve got to have that expertise.

Hon. S. Anton: The expertise of tribunal chairs, tribunal members and, in the future, executive chairs, should this act pass…. The qualifications of those people are taken extremely seriously. In fact, we have a B.C. Council of Administrative Tribunals. I referred to it earlier. I’ve spoken at their annual meetings a couple of times. They do training, and they are there to be an expert board and resource for the tribunal members around British Columbia.

L. Krog: The theory behind this provision is that if you get multiple tribunals to work together in a cluster, if people have some even related problems or issues, they’ll all get solved in a more expeditious and efficient way. Is that part of the theory behind the clustering?

Hon. S. Anton: The question is a little hypothetical. I wonder if the member could clarify or give a more specific example of what he’s referring to.

[1620]

L. Krog: Does the clustering concept include or contemplate — contemplate is probably the better word — that you may in fact, with some tribunals, be in a position where instead of having it dealt with in separate tribunals, the issues are in related? I can’t give the minister a great example. In fact, as a result of the clustering, you would be in a position to have that cluster with the same persons literally deal with the related issues and, therefore, potentially save costs, efficiencies, time, etc.

Hon. S. Anton: The question is very hypothetical. I don’t want to say anything that is determinative, so I’ll just speak in a very general way, which is that tribunal chairs do have the authority to manage their own mandates. But I think we have to be very clear that each individual tribunal does have its own individual mandate, and there may be a risk of blurring those mandates. But I don’t want to lay out an absolute in that question, because there are many circumstances in life, and we’re not able to imagine all of them here.

L. Krog: I appreciate, and I’m not trying to catch the Attorney General out or do something tricky here in asking these questions. But the government has brought forward this bill. It’s designed as enabling legislation to create a great framework which will be filled in over time with regulation in practice. I think in the briefing the talk was sort of a three- to five-year term to run it out. But there aren’t any what I will call articulated or legislative or policy objectives that are set out in the bill.

This is, after all, the only time the public is going to get a chance to comment on this, subject to it being passed. I’m trying to understand. What is in the contemplation of the Attorney General’s ministry in terms of how this is actually going to actually work?

Again, I’m not expecting the Attorney General to lay it out ABC, necessarily, but to give some idea of what the effect of the clustering will be and the legislative and policy objectives perhaps a little more clearly.

Hon. S. Anton: That is a very fundamental question to what we’re doing.

If I might, Chair, perhaps we can take a short break — we’ve been here for a little while now — and come back, and we’ll answer that question.

The Chair: The committee will recess for five minutes.

The committee recessed from 4:23 p.m. to 4:33 p.m.

[D. Horne in the chair.]

Hon. S. Anton: I think the question, essentially, is: what are some of the benefits of doing this? There are facilities benefits — co-location, using the same offices and the same administrative staff, integration of staff, sharing

[ Page 7038 ]

expertise, developing leadership and career progression for people — but also the fundamental ways in which the tribunals themselves operate through early resolution of issues — mediation, as opposed to adjudication. Adjudication, obviously, if you need it. More use of technology, use of asynchronous resolution of issues — all of those kinds of things.

Generally, what we’re doing here is aiming to bring a little bit more uniformity in terms of process to our administrative tribunals but to develop all of those different kinds of things that I just laid out.

L. Krog: Obviously, I take it from the Attorney General’s remarks that this contemplates, perhaps, a standard form application, if you will, that gets the process started — things of that nature as well?

[1635]

Hon. S. Anton: We do need to be clear that each of these tribunals will keep its own individual mandate. It’s possible over time that there may be ways of generalizing an intake, but that may diverge fairly quickly because they do have their own mandates. This is not about changing the mandates or blurring the mandates. They do have their individual mandates that they will be carrying out.

L. Krog: I suppose, dealing with this section, when we talk about the concept of the executive chair, surely some of this is aimed at the concept that this brilliant individual — selected by a merit-based process, who will have the knowledge next only to Moses or God, perhaps — will be able to look at the structures that report to them and in fact do exactly what I have suggested as an example, which is perhaps ensure a standardized application form or notice or whatever starts the process or gets it in front of the tribunal. Surely that is part of the hope of all of this.

As I said way back when, this is extremely, on the face of it, complex legislation. It’s a complex process, and part of that complexity is that it’s not — with great respect — well defined by the statute. It is being left to decisions to be made by executive council at some point in the future.

What I’m trying to do on behalf of the public here today is to get some idea…. I assume we just didn’t want to open the doors — I’ve used that analogy — and let the horse run wild. We have some idea how we want the horse to perform, where we want it to go, etc.

Is that part of the reason for having this extraordinary authority given to the executive chair, who will be a member, potentially, of several tribunals, who should have the qualifications of a chair of any of the tribunals? It says so right here in the section. I mean, is that part of it — so that we will, in fact, achieve some efficiency?

Hon. S. Anton: Definitely the goal is to achieve efficiencies. Definitely some integration of processes. However, not uniformity of tribunal, given the vastly different mandates of some of these tribunals.

L. Krog: What is going to be the advantage to persons who need to get something in front of a tribunal? Or is the advantage of all of this legislative process that we’re dealing with today designed to make it simply more efficient within the organization of the tribunals? Or is there some perceived and distinct advantage to the public who will be taking advantage of the new cluster?

[1640]

Hon. S. Anton: When we talk about access to justice, the first people in that equation, if you like, are the users of the justice system. That’s who we’re doing this for. So in the clustering of tribunals and, indeed, in the operation of all the tribunals, we have to think about the users. We have to think about how the process works for them. That’s the advantage of having more flexibility in terms of mediation and, indeed, later on in adjudication, if we need to get there.

We think about the other parties. We think about taxpayers. There are administrative savings here. If there are savings, we think about: can we roll those savings into developing technology platforms, for instance? There are many things that can be done with the flexibility that this act gives the administrative tribunals.

L. Krog: With respect to the potential administrative savings, can the Attorney General give the House any idea what savings, if any, are contemplated? I mean, I assume there are going to be. One would want there to be. But we’re entering into this legislative scheme and being given enormous authority to do all kinds of things. Are there some concrete numbers that have encouraged this bill to come forward?

Hon. S. Anton: I can’t quantify the savings, but what I can say is this. I gave the example earlier that almost one of the first meetings I went to as a new minister was in a set of offices that were completely empty. It’s that kind of thing, just the physical clustering of offices. Right now we spend $4½ million a year in lease costs. There’s no question that that number should come down. I can’t tell you by how much because the clustering work has not been done yet, but as that moves forward, that facilities cost will be reduced.

Another advantage is that at the moment the tribunals are…. Because they’re independent, they go out and seek their own technology solutions. Our goal would be to have more common platforms lying behind the tribunals, behind their processes, so everyone is not going out and reinventing the wheel every time. We are proposing, from savings from facilities, for example, that we can put that into the development of technology. Over time, those common technology platforms themselves will be a saving to the tribunal sector.

[ Page 7039 ]

L. Krog: I just wonder if the Attorney General could explain. Is the $4½ million that she talked about with respect to tribunals that are responsible to her own ministry? Where does that number come from?

Hon. S. Anton: That’s the calculation across the sectors, across the tribunals.

L. Krog: Just so I’m clear, that includes the 25 to 28 tribunals that are contemplated as being placed in clusters? Or does it include all the tribunals across government — period? I assume that’s an annual lease cost, by the way.

Hon. S. Anton: At the moment, some of the costs of leases, for example, are borne by Shared Services British Columbia. Some are borne by the individual ministries. For instance, I believe that the Human Rights Tribunal pays its lease costs through Justice. These are across all of the tribunal sector.

[1645]

L. Krog: With respect to the implementation of the cluster concept…. Going back to the briefing, I think we were talking, potentially, of even three to five years. Perhaps the Attorney General could outline what she expects to see in terms of when this clustering would occur. Candidly, this is where the opposition has some trouble.

Because, as I indicated earlier, there are no sorts of timelines, time frames or anything in the legislation that would tell us exactly how this is going to roll out, the opposition is very reliant on what we presume the Attorney General’s ministry has thought about in the process of getting this drafted. After all, it has been a little while. This process has been in place, arguably, since 2004. This must have been, perhaps, the eventual public policy goal.

What’s the kind of time frame — and in fairness, I’ll try and limit it — based on existing tribunals, not something we’re going to do as a result of a legislative change next year? Based on the existing tribunals, what’s the time frame? What’s the scheme? What’s the plan as to how this is actually going to happen or when it’s going to happen?

Hon. S. Anton: The work will start, essentially, right away. Well, in fact, you could say that the work has started long before now. There’ve been fairly extensive consultations amongst the existing tribunals. The goal is to do the clustering over the next three to five years. I think, as is commonly the case, we’ll go where the going is good — where things seem fairly obvious on the face of it. We’ll go there first, and then perhaps move on to some that may have additional challenges. But that’s the goal: three to five years.

L. Krog: I assume, then, that the Attorney General must have at least a few things in contemplation. Perhaps she could pull some goodies out of her bag to show the House today. Exactly where are — we’ll use all the clichés — the low-hanging fruit, the berries, the goodies in the bag — whatever? The Easter Bunny is coming, for heaven’s sake. Perhaps we can pull a rabbit out of the hat.

If we could just get some idea of where this is going to actually work on the ground, so that the good people of British Columbia, who are watching this debate with intense interest, will be satisfied that the legislation before this House is, in fact, going to result in something beneficial for them in time for Easter.

Hon. S. Anton: I don’t want to be too specific, because it’s reliant on the work being done. It’s reliant on consultations. It’s reliant on cabinet approval. But because the member is asking what is most likely to go first, I will say that the ones related to housing are more likely to go first. But again, we have to leave ourselves an escape hatch here because this is work that is underway, but that does seem to be where we are most likely to go to begin with.

L. Krog: I hate to point out the obvious differences between this side of the House and that side of the House, but over here we have no power, and on that side of the House they have all the power. I appreciate that the Attorney General would not be binding government when she says this, nor does she have complete control over everything.

[1650]

Perhaps she could explain even a little further. It’s only an if. It’s not a commitment. What are the housing tribunals that are being even considered for this that might make sense? So that we can say to, as I say, the good folks listening: “This is where we may see how a cluster works, and this will make some good sense from a public policy perspective.”

Hon. S. Anton: I think I should just leave it at that — that some of the ones related to housing are likely to go first. There really is very extensive consultation that has to be done on this before we overcommit those tribunals. We may have our intentions, but they need to have their intentions as well. This is a collaborative process, and we work together with the various tribunals.

L. Krog: I think the bunny just got jammed back in the hat. Let me perhaps ask, without being too specific around the particular ones, how many clusters we are looking at — without even specifying what’s going to go into the clusters.

Hon. S. Anton: Ontario has four clusters, I believe. I’m just going to double-check that. We may end up with a slightly higher number of five or six.

L. Krog: Again, the anticipation is that that would be in sort of the three- to five-year range, assuming consultation has proceeded in a timely way.

[ Page 7040 ]

Hon. S. Anton: There are some tribunals as well that may never be clustered. There are some that may not lend themselves to it at all. In the four to six clusters, we would hope that they are done in three to five years.

L. Krog: I’m just wondering if the Attorney General could…. In dealing with, in particular,

section 8, the transition

section referred to, 10.6… How is that going to operate in practical terms? It’s the transitional section. Perhaps give me some idea of the administrative details — how the Attorney General would see that particular

section working in practice.

Hon. S. Anton: The goal is to make this a smooth transition, which is why we are not proposing, for example, to terminate current tribunal chairs. Their terms will be allowed to continue and perhaps run out, or perhaps that person would reapply to continue in a new position with the new clustered tribunal.

[1655]

L. Krog: Going back to sub 10.4. It says: “The Lieutenant Governor in Council may designate a member of a tribunal in a cluster, other than the executive chair of the cluster, as an alternate executive chair.

(2) If the executive chair of a cluster is absent or incapacitated, the alternate executive chair has all the powers….”

Again, are we contemplating that that would allow for tribunals that are unrelated to in fact have alternate executive chairs acting?

Hon. S. Anton: We have a provision now that there are alternate chairs in case the tribunal chair is not available, and this would operate in the same way. The alternate executive chair would be chosen from within the cluster that the tribunal is in.

Sections 8 and 9 approved.

section 10.

L. Krog: I sense a certain interest in the debate, hon. Chair, from members anxious to get the sections passed. This is shocking. Perhaps they aren’t aware of the necessity of going through this legislation in minute detail this afternoon at the request of our House Leaders.

With respect to

section 10, it says in (

a) that

section 11 is amended “by striking out ‘Subject to this Act and the tribunal’s enabling Act,’ and substituting ‘Subject to an enactment applicable to the tribunal.’” Perhaps the Attorney General can just explain and give me a concrete example of how that works and actually what it means.

It’s late in the day, but she has all these able people around her who I know can assist if I don’t quite get it.

Hon. S. Anton: This is similar to the issue we had earlier in the act where…. This is simply to clarify. It’s really housekeeping, in that a tribunal may be given direction by more than one act. So there’s not just an enabling act. There may be

an act that forms a tribunal but other acts that refer to that tribunal.

L. Krog: Again, with respect to subsection (b) “by repealing subsection (2) (

b) and substituting the following: (

b) respecting facilitated settlement processes,” I take it that that is to simply take us out of the old language in the existing act, the dispute resolution process, and talk about the facilitated settlement process. Simple as that?

Hon. S. Anton: That’s correct.

L. Krog: Again, in sub (c)….

Section 11, as it exists, is: “General power to make rules respecting practice and procedure.” It proposes to add sections “requiring an intervener to provide an address for service or delivery of notices, orders,” etc. I’m just wondering: why are those provisions required? I take it there is nothing in the act that requires persons to provide that information already.

[1700]

Hon. S. Anton: For (i.1) and (j.1), (n.1), (v.1), the purpose of these — and (x), I think…. Generally, a tribunal chair does have power to make rules, but, certainly, it is drafting practice in government now to spell things out as much as possible and as much as makes sense. So this spells out some things that were not included before.

L. Krog: The

section begins: “Subject to this Act and the tribunal’s enabling Act, the tribunal has the power to control its own processes and may make rules respecting practice and procedure to facilitate the just and timely resolution of the matters before it.” Then it goes on in sub (2), “Without limiting subsection (1), the tribunal will make rules as follows,” and then goes, literally, (

a) through (w). Now we’re adding (x). That includes respecting service, etc.

To come back to what the Attorney General said, is the concept, then, that we’re going to see existing acts across the board change to reflect this language? Is it seen as that important? Is there some court decision that’s come down that indicates that this is an important and necessary thing to do?

Hon. S. Anton: Because the act is open, so to speak, this is taking the opportunity to clarify some additional rule-making powers under that subsection (2). As I said a moment ago, it’s drafting practice at the moment in government that generally, the act spells out as much as it can, although there is always a

section of general application — but as much as can be spelled out in individual circumstances as well.

[ Page 7041 ]

L. Krog: Now, sub (

d) says that by adding the following subsection, which would now become 11(5) under the existing act: “Rules for the tribunal may be different for different classes of disputes, claims, issues and circumstances.” That’s a very broad section. It brings to mind different rules for different folks. One can understand that, but….

That strikes me as opening up what I would see as a legal, drafting and regulatory nightmare, because in theory, a tribunal, on the bare reading of this, could have six different sets of rules or ten or 1,000 or one million. Now, it’s not likely to happen. I appreciate that.

Nevertheless, can the Attorney General confirm that my

interpretation of this is correct — that we’re going to have a whole series of different rules for different classes of disputes and that the number of those rules can be without limitation?

[1705]

Hon. S. Anton: I’ll give the member a couple of examples of how this plays out in real life. One is the civil resolution tribunal. As I mentioned earlier, the tribunal has two rather distinct purposes. One is for the small claims disputes and resolution of those disputes, and the other is for strata disputes, which are quite different than small claims. They may have separate rules, and they’ll certainly be dealing with quite separate issues.

I’ll give another example, which is the Labour Relations Board. They deal with strikes. They deal with designation of essential service workers. They deal with applications for union certification. They deal with quite a number of different sorts of applications of one kind or another. They may have different timing on them, different limits, different rules. Those are the kinds of ways that there may be quite different rules in the same tribunal.

L. Krog: I appreciate that it’s the trend of governments, not just this government, in the modern world to try and give themselves as much freedom as is possible. On one level, you could say that the freedoms being offered up here are for the tribunals themselves, who presumably are working in the public interest. But it’s pretty extraordinary that all of these tribunals will now be given the full authority to have different rules for — as the wording indicates — “different classes of disputes, claims, issues and circumstances.”

Is a similar provision to be found in other statutes of a similar nature in Canada?

Hon. S. Anton: I don’t have a scan from across the country. But it is the case that bodies that have a regulation-making authority have the authority to create different sets of rules for different circumstances. It is not a one-size-fits-all. That is one advantage of the tribunal sector, that you are not put into a box and kept there. There is more flexibility in the rule-making.

L. Krog: On one level I understand how that has a certain appeal. But in terms of being user-friendly to the public, if someone is bringing a dispute to a tribunal, how are they going to be able to determine with some simplicity, hopefully…? The whole point of all of this is to make the process, hopefully, more user-friendly and simple. What’s the process by which they’re going to be able to fit their dispute in the right set of rules?

[1710]

Hon. S. Anton: As I said earlier, the people that we think about first in access to justice are the users. The advantage of having flexibility in rule-making is that it does allow you to help different classes of users.

For example, back to the civil resolution tribunal. You may come in that front door of the tribunal, but you will be immediately directed to whether or not you have a strata dispute or whether your dispute is a small claims or whether it’s something unrelated to the civil resolution tribunal. Each one of those will have its own set of rules. This makes the sector…. It gives it the kind of flexibility that is one of the advantages of the administrative tribunal sector.

L. Krog: One of the principles, I’m sure the minister remembers, is that it’s important that law be as certain as it possibly can be. Certainty is a desirable goal of the legal system. I have a

section in front of me that says: “Rules for the tribunal may be different for different classes of disputes, claims, issues and circumstances.” In this context, what does “circumstances” mean?

Hon. S. Anton: The word “circumstances” would apply more to an individual need. For example, with the civil resolution tribunal, the circumstances of a person might be that they are sitting in Atlin, and it’s impossible for them to get to any kind of forum where they could be face-to-face with someone, so we have to deal with the circumstances of people that are not going to be able to ever be in the same room as each other. Another circumstance may be if a person has a personal limitation that they can’t do something that would more generally be required….

The point of it is, rather than trying to think of too many specific examples, that the tribunals need to be able to be flexible so that they can help people who need access to the justice services offered by the tribunal.

L. Krog: For some future legal argument in front of some court ten years from now — I want to try and nail down the Attorney General on this — the reference to circumstances in sub (5) is to the personal circumstances of a party who is bringing some claim or defending some claim before the tribunal.

Hon. S. Anton: Personal circumstances are one example. There may be many others that do not relate to

[ Page 7042 ]

personal circumstances. The goal is to allow the sector to be flexible so that it meets the justice needs of its users.

[1715]

L. Krog: I don’t want to belabour the point too much, but is the Attorney General not concerned that in the desire to be flexible, in order to give as much authority as is possible to these tribunals, that in fact it’s creating what amounts to an almost free-for-all in terms of how disputes are handled by these various tribunals? Different rules “may be different for different classes of disputes, claims, issues and circumstances.” How, ever, is this going to be determined in a fair way when it is such a broad statement?

Does the Attorney General even accept that I may have a point here when I’m talking about how broad this

section is and how it may lead to situations where the rules are so diverse that the system, candidly, will lose some credibility?

If I drive home tonight, as I will, and I exceed 90 kilometres an hour in a 90-kilometre zone, I know what the law is. The Minister of Transportation’s ears perked up. But if I’m before a tribunal that has a series of separate rules for different classes of disputes, claims, issues and circumstances….

Again, is the minister not concerned that in the desire to be so fair and accommodating to everybody, in fact we may not have a system that actually is functionally successful?

Hon. S. Anton: Our system is robust. It’s fair. It’s well regarded, and it is a very successful administrative tribunal sector. I would expect that to continue.

L. Krog: Of course. I don’t doubt the Attorney General is confident in her view, and it may well be exactly true. But they’re not operating under subsection (5) now, where they get to pick rules that may suit them.

Having said that, I think I’ve made my point and raised my concern around this particular section, which I think is, frankly, way too far.

I take it, ultimately, that this

section also provides for an on-line system so that we move into the electronic age, so — to use the minister’s own words — the person in Atlin can get service as well as the person in Pouce Coupe as well the person in Fernie. How does the minister see that working in a practical way? What’s the effect of it?

If I file at midnight, does the person who responds to me have to file at midnight as well, seven days past? Does it run day to day? Do we take into account the Lord’s Day? How is this on-line system going to function, in her view?

Hon. S. Anton: The tribunal will be setting the rules. That’s one of the things that the civil resolution tribunal, which this question is referring to, will be determining.

[1720]

L. Krog: With respect to the civil tribunal, I understand that. But — if I heard the minister correctly — what about other tribunals?

Hon. S. Anton: This

section is enabling, and the tribunals themselves will decide what, when and how to use it.

Section 10 approved.

section 11.

L. Krog: We now have rules for the tribunal that may be different for different classes of disputes, claims, issues and circumstances, right? Now we’re talking about the practice directives, which are not the same as the rules, of course. It says: “Practice directives must be consistent….”

Well, perhaps we should go back. The existing

section says: “

(3) Practice directives issued under subsection (1) must be consistent with this Act and with the tribunal’s enabling Act, the regulations made under those Acts and any rules of practice and procedure made by the tribunal.” Now, this is a mandatory section.

You go back to 12 sub (1) as it exists: “The tribunal must issue practice directives respecting (

a) the usual time period for completing an application and for completing the procedural steps within an application, and (

b) the usual time period within which the tribunal’s final decision and reasons are to be released after the hearing of the application is completed.”

Now we’re going to take out sub (3) and replace it with: “Practice directives must be consistent with any enactment applying to the tribunal and any rule of practice or procedure made by the tribunal.”

Perhaps the Attorney General could explain how the proposed new

section is different from the old

section and what the purpose of its enactment is.

Hon. S. Anton: This is the same as we’ve referred to a couple of times already, which is to do the housekeeping around the fact that some tribunals are referred to in different acts and not all in the same act. So there’s not just one enactment for a tribunal.

L. Krog: I guess there’s a certain concern. How is that going to work once we’ve clustered some of these tribunals? How do we see that playing out?

Hon. S. Anton: This is a straight-up housekeeping issue. The policy is identical. It simply takes out the reference to the tribunal’s enabling act and refers it back to any enactment applying to the tribunal. It’s no different than the practice which is there right now.

L. Krog: And the minister sees no difference as to how that would work in clusters or how it would have any impact on the on-line system as well. Is that fair?

[ Page 7043 ]

Hon. S. Anton: The clustering will not make a difference to this provision.

[1725]

Sections 11 to 15 inclusive approved.

section 16.

L. Krog: Existing

section 28 refers to the appointment of a person to conduct a dispute resolution process. It talks about the chair of the tribunal, etc.

This

section talks about conducting a facilitated settlement process. It goes on to talk about requiring two or more parties to participate in the facilitated settlement process in accordance with the rules — which again will all be left to the creation of regulation. “The tribunal may make the consent of one, all or none of the parties to the application a condition of a facilitated settlement process, in accordance with the rules of the tribunal.”

Perhaps the minister can explain the effect of this change. It strikes me as being fairly substantive. I’m particularly concerned as to how the tribunal is going to “make the consent of one, all or none of the parties to the application a condition of a facilitated settlement process, in accordance with the rules of the tribunal.”

Hon. S. Anton: The facilitated settlement is as we discussed earlier on. The effect of this is that a tribunal, if its rules so allow, can require the parties to take

part in a facilitated settlement process, whether or not they consent — again, in accordance with their rules.

L. Krog: In effect, this is sort of a mandatory mediation that can be forced upon the parties. If they’ve come to the tribunal seeking relief for a dispute, then they’re forced into this process, regardless of whether or not they think it’s in their best interests. In addition, as I understand it, just so I’m clear, would they be entitled to counsel at that kind of a hearing, where that sort of determination was made?

Hon. S. Anton: Mandatory mediation is common or used. For example, in Ontario they do have a form of mandatory mediation in their tribunal sector. I think the question was whether this would always apply. It would be tribunal by tribunal.

L. Krog: Just so I can understand how this works, who’s the person who’s going to make the decision?

[1730]

The tribunal member hearing this has two parties before her. The minister will correct me if I’m not understanding this correctly. We have a member of the tribunal who’s going to be dealing with this matter. The dispute is before them. One party says, “Hell will freeze over before I will consent to a facilitated settlement process,” and the other says: “Oh yes, I think that would be wonderful, and I’m so happy that you’re suggesting that, Madam Tribunal Person.” Will that tribunal person be the one who then presides over the facilitated settlement process that one party has adamantly opposed?

Hon. S. Anton: This is very tribunal-dependent as to how the different tribunals work and who makes these kinds of decisions. To give you a couple of examples, there could be a case manager. It could be a tribunal member. It could be the chair of the tribunal. It does depend on the tribunal and the rules of the tribunal.

If I might, on the rules of the tribunal, those rules themselves can be laid out in different ways, either through guidelines or a more formal process. There may be quite significant differences between the tribunals as to how this plays out in terms of who does what. But the point is that the

section gives tribunals the authority to carry on these processes.

L. Krog: I think I just heard the Attorney General say, in response to my question, yes. In other words….

Interjection.

L. Krog: And I appreciate her assistance and efforts today. But correct me if I’m wrong. What this

section says is that in this multitude of tribunals to whom this legislation applies, and we’re talking 25 to 30 that may or may not get clustered, the person who can literally force a non-consenting party into a facilitated settlement process will be potentially the person presiding over that facilitated settlement process.

The reason I raise this is that in Supreme Court if you went for a settlement conference or a family case conference in front of a judge, that judge would not be in a position to deal with the matter subsequently. Yet in this process, as I understand it, the person who says “Like it or lump it, you’re getting into this process; you have to participate” and the person deciding that you have to participate is the person who can preside over the process.

Is that possible under this

section for all of the tribunals to which this act applies?

Hon. S. Anton: Yes, it is possible that it would be the same person.

[1735]

V. Huntington: During the briefing that we received — it was a lengthy one, and I really did appreciate it — we discussed this section. My understanding of this…. We expressed enormous concern with it too. The example given to us was that this was a provision that would prevent, for instance, a company that had deep pockets and wanted to prolong a hearing or just make it impossible for John Q. Citizen to continue in the issue…. This would

[ Page 7044 ]

make it possible for the tribunal to require a company in that situation to participate.

The example given to us made it sound sweet and rosy. One would of course say: “Oh, that’s wonderful. Yes, let’s proceed.” But the language is still here, and I think what both the member for Nanaimo and myself would like to explore a little more is: how do the ministry and the minister anticipate this

section to be used? Would it be used without rules protecting individuals that are trying to resolve a matter without being forced into a settlement situation that they’re not interested in pursuing?

Hon. S. Anton: This happens in many tribunals right now, so I’ll give an example from the Labour Relations Board. An adjudicator in the Labour Relations Board may believe that mediation is appropriate and require the parties to be in that mediation. It is a requirement, and they may not consent. I hate to break it to the members opposite, but not everybody always consents to be involved in the disputes, so they sometimes are dragged in rather unwillingly. That’s the purpose of having the tribunal make this a requirement.

L. Krog: The existing

section 28(2) says: “If a member of the tribunal is appointed under subsection (1), that member, in addition to assisting in a dispute resolution process, may make pre-hearing orders in respect of the application but must not hear the merits of the application unless all parties consent.” That’s arguably a very sensible position in the existing legislation. It makes it very clear that you don’t get to play both sides of the street.

Because it’s late and I’m tired and the Attorney General, I’m sure, is tired and we’re all tired….

Interjection.

L. Krog: She wants to go on. Well, we’ll certainly do that for a few more minutes, in any event.

Having said that, can the results of the facilitated settlement process be imposed on the parties?

[1740]

Hon. S. Anton: If the mediation does not come to a settlement, you cannot impose a settlement at that point. It has to go through to an adjudication.

L. Krog: In terms of the adjudication, will that adjudication have recourse to evidence about what happened during the facilitated settlement process or the position of either party taken who did consent or didn’t consent to that facilitated settlement process?

Hon. S. Anton: Yes, it can be the same person. So in the Labour Relations Board example I just used, it can be the same person who does the mediation and the adjudication.

L. Krog: This is the obvious concern. In the existing legislation you may make pre-hearing orders in respect to the application, but you must not hear the merits unless the parties consent.

So you’ve demonstrated your obstinacy, perhaps, or you’ve indicated a certain position, and the tribunal says: “Well, we want to get you into the facilitated settlement process because I happen to think it’s the right thing to do, and that’s the legislative goal of this act and the tribunal and our rules and everything else.” Then that person can, in fact, go ahead and preside over the facilitated settlement process. It fails, and then they get to hear the merits of the case, so to speak. Is that the way it’s going to work?

Hon. S. Anton: Yes, that is correct. It could indeed work that way.

L. Krog: I have the vaguest recollection of administrative law, the course, but I think one of the fundamentals was that you had to hear both sides, and there couldn’t be any hint of bias either.

Is the Attorney General satisfied that this process is going to pass judicial review? I think the potential of this to be treated in a rather critical fashion by a judge hearing it is probably pretty high — that you can’t be both judge and jury and litigant and lawyer and everything all in the same process. Yet we have a tribunal chair who potentially, subject to the rules, gets to do it all from start to finish.

It’s not going to be like a trial. No judge, once they took the lawyers into chambers and tried to hammer out a settlement in the middle of a trial, is going to come back out and preside over the rest of the trial. It’s not going to happen. It doesn’t happen for very good reasons, because there’s a whole series of cases and tradition and rules governing that.

In this case, that’s exactly what potentially can happen. As much as we all want to see settlements stay out of the court system and people have access to cheap adjudication of their issues and disputes and problems…. I realize the Attorney General is not going to produce it, but…. This wording — has it been judicially tested anywhere in Canada or any jurisdiction that the ministry is aware of?

[1745]

Hon. S. Anton: The language reflects the policy which is currently employed by certain tribunals — for example, the Labour Relations Board, as I have given the example several times already. But the point of the tribunal sector is that it does provide more flexible dispute resolution processes. It’s different than the courts. It is more flexible. Its goal is to allow the kind of flexibility that leads to good resolution of people’s justice issues.

[ Page 7045 ]

L. Krog: I realize that in the modern world, where we have moral relativity and all of those sorts of things, we sometimes lose sight of the fact that — for the sake of convenience and expediency, whether it’s the way we decide what we’re going to watch on TV or pull up on the Net immediately; those are all wonderful things — the fundamental thing behind anything that deals with processes we set up in society must fundamentally be that they’re fair.

What I see here is a process that I think, if you talked, the average person on the street would say: “Excuse me. So the person who’s going to try and get us to settle and, obviously, may come to some conclusions about my position ahead of time is then going to go on and hear the case and decide what the result is, without my consent. Where does fairness figure in this process? Surely, it has to be fair.”

Now, I agree that the disputes involved may be minuscule. What’s that little Latinism? De minimis non curat lex , the law does not concern itself with trifles. I understand all of that.

I’m sure the minister, having been a member of this assembly for a couple of years now — certainly, the other members of this assembly have been here longer — and having heard the problems and frustration that people bring into constituency offices when they’ve felt they haven’t been dealt with fairly by a public servant in a position where they don’t even have the authority of this act behind them or a process, I can only imagine how people are going to react and feel when a decision is made, as they see it, against them, based on a process that, I must say, on the face of it isn’t fair.

I’d love to hear the Attorney General’s comment on this. I’m asking this in a very serious way. I appreciate that this

section is going to pass. I appreciate also — we have been advised over and over again today — that this whole thing is going to roll out over three or five years. But I’m asking, hon. Chair, today for her to consider what this means in terms of fairness and how the public, for whom this process is supposed to operate fairly, are going to react when they see a process that they don’t think is fair.

I must say, on my simplistic view and understanding of this, this doesn’t appear fair. I’d really be interested in hearing what the Attorney General says in response to the concept of the fairness of the process.

Hon. S. Anton: Tribunals are very aware of fairness issues. I must just keep coming back to an example of a tribunal where this exact system works well. That’s the Labour Relations Board.

Section 16 approved on division.

Sections 17 to 20 inclusive approved.

[1750]

section 21.

L. Krog: Just so we’re clear, paragraph 47(1) presently provides: “Subject to the regulations, the tribunal may make orders for payment as follows: (

a) requiring a party to pay part of the costs of another party or an intervener in connection with the application; (

b) requiring an intervener to pay part of the costs of a party or another intervener in connection with the application.”

The new section, the proposed

section 47(1), talks about “part of the costs” and now substitutes “all or part of the actual costs.” I read that to mean that that is going to be a significant change in terms of what can be ordered.

Now, maybe it’s long in the day, but moving from part to "all or part of the actual costs” — what does that mean? Does that mean, literally, it’s the legal bill from the other side — the full legal bill? Is there a process to have that bill reduced or reviewed? Is it just the filing fees? What does this “costs” contemplate?

Hon. S. Anton: Perhaps I’ll just answer this question quickly. The answer to the question is that there is no change here in this section. It’s just to correct a drafting oversight. “All or part of the costs” could have included 99.999 percent of the costs, which is, essentially, all. But for some reason it wasn’t put in, in the first place. The member may wish to come back to this in the future, but in any event, there is no change between this and what the definition of “costs” is or how costs have been calculated in tribunals in the past.

With that, I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 5:52 p.m.

The House resumed; Madame Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Committee of Supply (Section A), having reported resolutions, was granted leave to sit again.

Madame Speaker: Hon. Members, happy Easter. Safe travels as you resume your duties in your ridings.

Hon. T. Stone moved adjournment of the House.

Motion approved.

Madame Speaker: This House, at its rising, stands adjourned until 10 a.m. Monday, April 13.

The House adjourned at 5:53 p.m.

[ Page 7046 ]

PROCEEDINGS IN THE

DOUGLAS FIR ROOM

Committee of Supply

ESTIMATES: MINISTRY OF AGRICULTURE

(continued)

The House in Committee of Supply (Section A); J. Sturdy in the chair.

The committee met at 1:38 p.m.

On Vote 15: ministry operations, $64,823,000 (continued) .

L. Popham: When we left off, we were talking about a possible new fee structure. The minister said there might not be any discussions happening right now, but this is something that continues to be mentioned in the estimates book as something that is up for discussion. In previous estimates ministers prior to this minister have mentioned that there has been discussion. In fact, there has even been public consultation on it from one minister.

I’d just like to know: why does it keep being mentioned in the blue book estimates if it’s not something that’s a reality?

[1340]

Hon. N. Letnick: Thank you to the member opposite for the question, which I will answer in just a moment. I’d also like to go back to a question from this morning regarding the amount of money that is available to, or budgeted for, the commission for the work of the panels. I have some more information that I thought the members opposite would be interested in.

In fiscal year 2012-2013 estimates showed $191,000. I’m happy to give this to the member to save the pencil-writing — $191,000 in estimates. The actual was $341,000.

In 2013-2014 the estimate was $311,000, and the actual was $343,000.

In 2014-2015 the estimate was $697,000. To date, with the year-end coming rather quickly, it’s been only $340,000.

For 2015-2016 the estimat