2016 Legislative Session: Fifth 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, April 28, 2016

Afternoon Sitting

Volume 38, Number

ISSN 0709-1281 (Print)

ISSN 1499-2175 (Online)

CONTENTS

Page

Routine Business

Introductions by Members

Introduction and

First Reading of Bills

Bill P r 401 — Millar College of the Bible Act

G. Kyllo

Orders of the Day

Committee of the Whole House

Bill 4 — Fire Safety Act

M. Farnworth

Hon. N. Yamamoto

Report and

Third Reading of Bills

Bill 4 — Fire Safety Act

Committee of the Whole House

Bill 21 — Environmental Management Amendment Act, 2016 (continued)

G. Heyman

Hon. M. Polak

V. Huntington

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Transportation and Infrastructure (continued)

S. Chandra Herbert

Hon. T. Stone

C. Trevena

V. Huntington

M. Mark

M. Karagianis

B. Routley

S. Hammell

H. Bains

G. Holman

[ Page 12505 ]

THURSDAY, APRIL 28, 2016

The House met at 1:33 p.m.

[Madame Speaker in the chair.]

Routine Business

Introductions by Members

Hon. N. Yamamoto: I’d like to take a moment to recognize five public safety lifeline volunteers who were awarded today for their dedication and volunteerism in the province. I’d like to also introduce their family members, who really give them so much support that enables them to do this job.

Today we recognized Wayne Hartley from Nanaimo. Wayne is an emergency social services volunteer, and he’s joined by his wife, Debra Hartley. ESS, our emergency social services, is so critical to our communities, and not enough people really know what kind of work is done by these critical volunteers. They provide food, shelter and warmth to their neighbours and fellow citizens when disasters strike.

Bridget Milsom is a volunteer for North Shore Rescue, which is near and dear to my heart as a resident of North Vancouver. She’s joined by her husband, Bill Milsom, who also volunteers with North Shore Rescue. Again, coming from the North Shore, I know how hard the search and rescue teams across the province work to bring people home safe, whether they’re injured or lost in our beautiful parks and protected areas.

[1335]

Alan Mallett is a radio communications volunteer from right here in Victoria, another group of unsung heroes from our lifeline volunteers. The emergency radio support that’s provided by people like Alan ensures that when all other lines of communication are lost, there is still a guiding voice providing support to our emergency responders and reassurance to those who have been hit by tragedy.

Brian Denham is from Comox and a volunteer with PEP Air. PEP Air volunteers throughout this province are the eyes in the sky that help us find downed aircraft and lost ships and support search and rescue efforts in remote terrain.

We also have Edward Jones. Edward is a Road Rescue volunteer from Invermere, B.C. He’s joined by his wife, Holly, and their brand-new baby daughter, Kathleen. Road Rescue volunteers provide a critical service throughout much of British Columbia. It is often a volunteer who comes to the rescue of a stalled vehicle or at a car accident, or who sometimes makes a difference for people stranded on our vast highway system.

I want to recognize each and every one of these fine volunteers. They’ve been recognized by emergency management B.C. today. I want to thank their families and the teams that they work with for the exemplary work that they do to provide critical support to the people of this province and to the emergency response initiatives. I would ask that the House please thank them for all they do and please make them welcome.

Madame Speaker, I’ve got three more introductions. We also have Ralph Mohrmann, senior regional manager and the assistant director of operations for emergency management B.C., here as well, and Christine Ritson and Clare Fletcher — all from emergency management B.C. Would the House please make them feel very welcome as well.

Introduction and

First Reading of Bills

BILL P r 401 — MILLAR COLLEGE

OF THE BIBLE ACT

G. Kyllo presented a bill intituled Millar College of the Bible Act.

G. Kyllo: I move that a bill intituled Millar College of the Bible Act, standing in my name on the order paper, be introduced and now read a first time.

Motion approved.

G. Kyllo: This bill is being introduced to give Millar College of the Bible the authority to grant degrees in theology in British Columbia. In support of the operation of a Bible college, they operate in the Salmon Arm area. This bill provides the college with the ability to grant degrees, diplomas and certificates in theology. The bill also includes provisions relating to the management of personal information. Millar College of the Bible is registered as an extraprovincial society under the Societies Act.

I move that the bill be referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills.

Bill Pr401, Millar College of the Bible Act, introduced, read a first time and referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills.

Orders of the Day

Hon. M. Polak: In this chamber, I call committee stage debate of Bill 4, the Fire Safety Act, 2016, and in the small House, the continuing debates of the estimates of the Ministry of Transportation.

[ Page 12506 ]

Committee of the Whole House

BILL 4 — FIRE SAFETY ACT

The House in Committee of the Whole (Section

B) on Bill 4; R. Chouhan in the chair.

The committee met at 1:40 p.m.

Sections 1 to 3 inclusive approved.

section 4.

M. Farnworth: Under the powers and duties of fire commissioner, which are regulated by this particular section…. Can the minister make it clear how the legislation allows consultation between a fire commissioner and fire departments?

Hon. N. Yamamoto: Before I start, I just want to introduce staff that I have with me. I have Becky Denlinger, my deputy, behind me. I have Gord Anderson, the fire commissioner, behind me as well. Anita Nadziejko, who is beside me, is actually with the justice office. Erin Faulkner, who is with the legal services branch, is behind me as well.

There is no formal process in legislation that mandates that relationship or consultation between the fire chiefs and the office of the fire commissioner. But the ability to consult is available at any time. In fact, it is an open door process.

M. Farnworth: This is a question that I want to make sure we get on the record. If it’s not specifically spelled out and then, at some point in the future, there is an issue, I want to make it clear that the minister expects that there will be consultation, that this

section allows for consultation and that in terms of development or any regulations or policy that flow from this section, the minister would expect consultation to take place.

Hon. N. Yamamoto: That is correct, yes.

M. Farnworth: In this section, the term used is “fire services personnel.” Does that mean firefighters? Does that mean professional firefighters? Does that mean volunteer firefighters? If the minister could clarify that.

Hon. N. Yamamoto: The fire services personnel that the member opposite referred to, which is in the proposed legislation, refers to anyone serving in the fire service. That’s whether they’re involved in fire suppression, fire prevention, fire inspection. It also includes any volunteer, careered or professional fire service professional.

[1345]

M. Farnworth: That does mean professional firefighters, then. I see the minister nodding her head. Now I appreciate her comment. Thanks.

Sections 4 and 5 approved.

section 6.

M. Farnworth: This

section deals with immunity from legal proceedings, which is an important section. It says no damages for exercise or performance of duties of this act except bad faith. The government is still vicariously liable.

Will this immunity extend to municipalities and regional districts who employ fire inspectors and investigators?

Hon. N. Yamamoto: No.

M. Farnworth: If this immunity, then, will not extend to municipalities and regional districts, can the minister just state who this

section will apply to and also why it will not apply to regional districts and municipalities?

Hon. N. Yamamoto: Just to clarify, the immunity only applies to employees — so all employees that work for the provincial government and people acting with delegated authority under this act. This is only to provide immunity for people acting under this act.

M. Farnworth: This is not a change, then, from the current, existing practice. Would that be correct to say? If it is, were consultations held with UBCM?

Hon. N. Yamamoto: There is no change.

M. Farnworth: I just want to get that on the record, that the minister is saying there’s no change to the current arrangements that exist with local government. Regional districts and municipalities are not affected by this particular section. There is no change. There’s no change in their status in terms of issues around liability or immunity from what currently exists. This particular

section exists only for provincial employees or those designated by the province with authority to take actions under this piece of legislation.

[1350]

Hon. N. Yamamoto: Yes.

Section 6 approved.

section 7.

M. Farnworth: This particular

section deals with fire hazards. The description of this section…. The

section

[ Page 12507 ]

itself, the wording, is: “An owner…must ensure that no fire hazard exists on…the owner’s premises.”

The

section is very broad. The old act was much more prescriptive and descriptive, as opposed to this particular section. The old

section had issues around fire exits, sprinkler systems, fire escapes, dilapidated buildings.

Why were these provisions moved? Why was it made so broad, as opposed to the prescriptive that was the one that was in existence?

Hon. N. Yamamoto: That’s a very good question. The old act that we are replacing actually was developed before the B.C. fire code was adopted. With the B.C. fire code, you will see all the requirements, all the things — plus probably more — that were prescriptively laid out in the former act now included in that.

M. Farnworth: I guess the issue I want to make sure that I get some clarification on, or we have a better understanding on…. In the event that in the future there are issues that arise around this — let’s say, between this

section and then the fire code — in terms of what the minister has just said and the things being listed, all of those things, when you look at this, it is very broad.

When you say that an owner must ensure that no fire hazard exists on the owner’s premises, that literally could apply to just about anything. From the obvious things such as, let’s say, a can of gas or barbecue fluid in the garage to someone like I am right now. I’ve got a cold. If you blew your nose in a tissue, it’s something that could easily catch fire. That’s what I’m concerned about.

What kind of legal consideration has been done on this to make sure that there’s not a potential issue around conflict between the broadness of this

section in the act and the fire code? If the minister could expand on that and just make comments, I’d appreciate that.

Hon. N. Yamamoto: Again, another good question. If you look in the

definitions — that was

section 1 — we talk about fire hazard. There we actually say: “‘fire hazard’ means a condition that exists on or in premises that endangers life or property due to fire, including a condition arising from the following.”

Then we list: “(

a) the state of repair of the premises; (

b) the use or occupancy of the premises; (

c) the keeping of combustible, flammable, explosive or other hazardous materials or substances on or in the premises.”

M. Farnworth: One of the key issues, looking at this, say for example, from the perspective of the owners of the premises, and one of the things we want to make sure of is that, yes, we have a clear and concise fire code and, yes, we have a new piece of legislation, but that in terms of a legal perspective of saying, “Okay, a fire has occurred on the premises” or “A fire has taken place,” there’s not an issue with something being so broad-based that an insurance company, for example, might say: “Ah, well, here’s what the law in British Columbia says.”

As a result of that broadness and its ability to capture just about anything, there may be an issue there in terms of an individual’s insurance policy being ruled invalid, as opposed to being a valid policy.

[1355]

That’s something that I’d like the minister to comment on.

Hon. N. Yamamoto: In

definitions as well, we do say that a fire hazard means “a condition that exists on or in premises that endangers life or property due to fire, including a condition arising from the following….”

I won’t take up time to read what it says there, but our expectation is that there would have to be some reasonable

interpretation of that. It’s impossible to actually include an exhaustive list, but we are satisfied that we have covered the expectations.

M. Farnworth: The government’s expectation, then, is that the fire code lays out, in essence, those conditions and

definitions around fire hazards. That is what guides the

interpretation of this particular

section and is what the minister is saying, if I’m hearing her correctly.

Hon. N. Yamamoto: The B.C. fire code is a regulation of the act, so it’s meant to be used together.

M. Farnworth: That’s the answer that I’m looking for, that that fire code — that regulation, the regulatory framework of the fire code — is what’s guiding this particular section.

Hon. N. Yamamoto: Everything the member opposite said, except I would turn it around. The fire code works in partnership with the bill, the act. But really, I would say, that it’s the legislation that guides the fire code.

M. Farnworth: I understand what the member is saying, but this

section sets out the issue around fire hazard, but that fire hazard is codified in the fire code.

[1400]

Hon. N. Yamamoto: I would rephrase what the member opposite said and say that the fire code elaborates what’s in the act and clarifies what’s in the act.

M. Farnworth: If I understand correctly, then, the fire code clarifies this section. I see the minister nodding.

That’s great. Thank you.

Section 7 approved.

section 8.

[ Page 12508 ]

M. Farnworth:

Section 8 is around the designation of fire inspectors, and one of the key issues that is raised in this

section is small volunteer fire departments. It’s one thing for big-city fire departments or larger communities to be able to meet the new standards that this act will bring into place, but can the province tell us how it’s working to ensure that small volunteer departments will be able to meet these standards and how the minister intends to deal with issues around the costs of increased training and the potential loss of service to rural areas?

Hon. N. Yamamoto: Just to remind the member opposite that it is the responsibility of the local authorities to appoint, and ensure that they appoint, qualified inspectors. There has been really no change in that. That’s what they have been doing — and advising us who they would like to see appointed. We expect that they have WorkSafe training, proper training. That’s required.

What we are doing, though, is expecting a consistent standard across the province, and I think that’s fair to do. It will be competency-based, as opposed to…. It’s not tied to any specific courses. Again, that is a practice that happens right now, so overall, we don’t actually anticipate any increase in costs to local authorities.

[1405]

M. Farnworth: That may well be so, but I think the reality is that competencies change. We’ve seen that in other professions — nursing, for example — that competencies change and the requirements change. The reality is that there’s more education required and more training required, and of course, that has costs. As I said, it’s one thing for a larger community; it can be completely different, though, in smaller communities and in rural areas.

My question to the minister is: has this issue been discussed with UBCM? More importantly, will the minister monitor and work with UBCM on this issue so that if it is identified as a problem and a challenge, particularly to areas of small communities and rural parts of British Columbia, this would be something the ministry would be willing to address?

Hon. N. Yamamoto: The member is absolutely right. Competencies and expectations that we have do change over time, and I would hope that they do, especially when new technologies and other things happen.

When we develop these consistent standards across the province, we will be doing that in consultation with local municipalities, as we have consulted with them when we were preparing legislation — this work. We did commit that we would make sure it will be affordable and accessible to local governments.

We’re very sensitive to those areas, as the member opposite mentioned, with fewer resources than some of the bigger centres. So we do have that in mind.

Sections 8 to 10 inclusive approved.

section 11.

M. Farnworth: This deals with fire inspector orders, and it requires an owner to comply with the act.

Now, a question: what happens to the occupier when the owner is ordered to do something? For example, if an order is made to destroy a premises, what recourse would the occupiers who were renting those premises have? I would assume that the act would take precedence over any rental or lease agreement that they had with the owners of the property.

Hon. N. Yamamoto: The legal relationship between the owner and the occupier of the building is not part of this act. However, in this act, the obligation is on the owner.

[1410]

M. Farnworth: The reason I asked that question is…. I mean, I don’t think it’s likely, but the question would be if there was a conflict between an order under this piece of legislation to either vacate a premises or to tear down a premises. If that premises was occupied, this would take priority — this over any agreement that existed between a landlord and a tenant. I understand that that is separate legislation, but the power under this act would be the principal power.

In essence, no owner would be able to say to the inspector coming in that says, “You know what? I’m going to say this building needs to be condemned or this building has got to come down or this building is a fire hazard….” The owner, who is not resident, would not be able to say: “You may want to do that, but I have an agreement with a tenant. Therefore, that tenant gets to stay here if they so choose.” That’s what I just want to clarify.

Hon. N. Yamamoto: Yes.

Sections 11 to 19 inclusive approved.

section 20.

M. Farnworth: This particular

section deals with a risk-based compliance monitoring system. This is one of the fundamental changes that we addressed in second reading, as we talked about at that particular point in time.

Whereas an inspection system may, right now, be based on this, we will inspect every building, for the sake of argument, either once a year or once every two years.

Under the changes that take place in this

section and in this legislation, the inspection period may be for…. You know what? This building is a concrete bunker that has nothing, really, in it. It’s inspected once, and as long as its use and zoning don’t change, there’s no need to really inspect that building for another five years.

Whereas this

[ Page 12509 ]

building, one next to it — made of, for example, wood — which is, let’s say, 40 years old, is a paint or storage warehouse or has all kinds of activities where flammable materials may be used. This is now going to be inspected perhaps monthly, perhaps twice yearly. It will be inspected much more often because it has a higher risk.

That is the key change that is taking place with this section. I’d just like the minister’s comments on that.

Hon. N. Yamamoto: Yes, that is exactly it.

M. Farnworth: Can the minister tell us how many other provinces use a risk-based system? And what have rates of non-compliance, in terms of once something has been inspected, been like in this province historically?

Hon. N. Yamamoto: I will have to get back to the hon. member with the answer to: what other provinces are using a risk-based compliance system?

I think the other question the member opposite asked was the rate of non-compliance. I’m not sure how we will respond to that one, but we will endeavour to do that.

I’d like to just let the member opposite know that, actually, we have communities in B.C. who are doing this already. In fact, North Vancouver, where I’m from, employed this method to allocate resources more effectively and more efficiently — actually, smarter resources — and to look at addressing which buildings should be inspected and when and how.

Sections 20 and 21 approved.

section 22.

[1415]

M. Farnworth:

Section 22 is about the duty to report a fire. If a fire damages property or causes injury and a fire department did not attend the fire, it must be reported by the occupier or the owner. Could the minister be more specific about what “damaged property” means, if we’re going to require citizens to report fires that occur to fire departments? The reason I say that….

For example, damage can be a subjective term, in the sense of…. It’s pretty obvious if something occurs in the house. Is it like a…? Let’s say the chip pan. You’ve got a grease fire in the kitchen, and it goes up in smoke. You’re smart enough. You don’t throw water on the cooking oil, but you do put the pan over. I learned that the hard way. But there’s a lot of smoke and muck and stuff over the ceiling. Is that something that should be reported?

Someone is outside…. Well, probably not so much anymore, when people used to have the old barrel incinerator in the backyard or burned brush, because that’s no longer allowed, certainly, in the Lower Mainland. But it’s the kind of thing that a fence may get scorched or something like that.

Just a question as to why this

section seems to be quite broad. If the minister could clarify that, it would be appreciated.

Hon. N. Yamamoto: I’m just going to read this out. The member opposite suggested that, perhaps, this is very broad — the duty to report. We do say: “The occupier or, if none, the owner of land or premises where a fire has destroyed or damaged property or resulted in injury or death must, if a fire department did not attend, immediately report the fire.”

That’s pretty specific, but there are exceptions. There’s the one that the member opposite alluded to, with a chip fire. That would be captured through public education and policy. Any other information required will be provided through that public education process.

Sections 22 to 25 inclusive approved.

section 26.

M. Farnworth: This deals with “Investigation powers,” which may allow an investigation without a warrant if a fire has occurred.

Could the minister just clarify the kinds of circumstances where this would take place and what the reason would be, for example, for not getting a warrant?

[1420]

Hon. N. Yamamoto: This

section is what empowers the investigators to actually have access to the investigation and to do the investigation. Where a warrant would be required and would have to be obtained is if the occupier or the owner refused access to the investigation.

Sections 26 to 28 inclusive approved.

section 29.

M. Farnworth: This

section deals with inquiries into public safety issues. “The fire commissioner may hold an inquiry if…necessary for public safety….” The question I have here is: does the minister plan to make the reports of these inquiries public?

Hon. N. Yamamoto: The intention is that, where it is in the public interest, we will make the report public, but the act is silent on this.

M. Farnworth: I’m going to ask the minister…. I will put this on the record. “In the public interest” can be many things. “In the public interest” interpreted from the government’s perspective is not necessarily the same thing as “in the public interest” interpreted from the public’s perspective. So if the minister could be a bit more clear.

[ Page 12510 ]

Certainly, I would expect, these reports would be FOIable. If the minister could answer that question. And then I would like from the minister a clear statement that she sees that “in the public interest” should be interpreted in the broadest possible context in terms of the public’s interest as opposed to the government’s version of public interest — any government, not just the current government.

[1425]

Hon. N. Yamamoto: Yes, I believe that this is FOIable. I would say that if we were to use the broadest

interpretation of public safety, where it’s in the interest of protecting the public in relation to fire prevention or fire suppression, yes, we anticipate that these will be made public.

Sections 29 to 43 inclusive approved.

section 44.

M. Farnworth: We are coming to the end of the committee stage, so I would ask the minister….

Section 44 deals with the powers of the fire commissioner. One of the key issues on this….

Under the old act, an order costing more than $500 could be appealed to the Supreme Court. Under this section, there’s no statutory right of appeal to the courts. Am I correct in that? If the minister could outline that, and if she could give the rationale for that, that would be appropriate.

Hon. N. Yamamoto: The member opposite asked about the move from the court system to an administrative process. I know that the member opposite is from the legal side of things, but I think the member opposite would agree that moving from the court system to an administrative process has actually been better for the system, for British Columbians getting more timely and more accessible decisions.

[1430]

Section 44 in this bill sets out the review process for administrative decisions made under the act. However, the decision of the fire commissioner is still subject to judicial review.

M. Farnworth: Thank you for that answer.

I’ll just make one quick clarification. I do not have a legal background at all. I’m flattered that — obviously, my questions or in QP or whatever — the minister thinks I am, but, no, I am definitely not a lawyer.

Sections 44 to 71 inclusive approved.

Title approved.

Hon. N. Yamamoto: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 2:31 p.m.

The House resumed; Madame Speaker in the chair.

Report and

Third Reading of Bills

BILL 4 — FIRE SAFETY ACT

Bill 4, Fire Safety Act, reported complete without amendment, read a third time and passed.

Hon. M. Polak: I call continued committee stage debate of Bill 21.

Committee of the Whole House

BILL 21 — ENVIRONMENTAL MANAGEMENT

AMENDMENT ACT, 2016

(continued)

The House in Committee of the Whole (Section

B) on Bill 21; R. Chouhan in the chair.

The committee met at 2:34 p.m.

section 4 (continued) .

G. Heyman: We had a bit of a scramble when we were last on the bill, as there was a very quick call on a motion on

section 4, which was a bit premature. I’m just locating where I left off here.

[1435]

Sub 91.11(2) says: “Before a spill contingency plan is prepared in relation to a regulated person, the regulated person must ensure that investigations, tests and surveys are undertaken in accordance with the regulations, if any, that are necessary to determine the magnitude of the risk….” The minister explained why it says “if any” and in what circumstances there would not need to be any investigations, tests and surveys.

I just want to ensure that the language in (2), where it says “if any” following “the regulations” — does that refer to the regulations or the investigations, tests and surveys?

Hon. M. Polak: If I understand the member’s question correctly, yes — “if any” refers to the regulations.

G. Heyman: Well, the minister previously explained, unless I misunderstood — and this was a question that was asked yesterday and answered this morning — that investigations, tests and surveys may not be required in all circumstances. And “if any,” by its placement, does qualify “regulations.” It can’t simultaneously qualify both

[ Page 12511 ]

regulations and investigations, tests and surveys, so it’s unclear. Unless I misunderstood the minister’s answer earlier today, I’d invite her to take a look at this clause and see if it needs clarification.

Hon. M. Polak: The placement of the two words “if any” is what’s critical here in referencing the regulations. What we are achieving here, though, through this particular segment of the bill, is that if a regulated person is already required under another statute to conduct sufficient investigations, tests and surveys, then that’s fine. But this would give us the power, through regulations flowing from this act, to require any investigations, tests or surveys that weren’t already being covered off sufficiently through another statute.

G. Heyman: Just for clarification, the minister is saying that investigations, tests and surveys will either be required under another statute, in which case there may not be any regulations requiring investigations, tests and surveys under this statute, but if there aren’t, there may be regulations requiring investigations, tests and surveys pursuant to this statute.

Hon. M. Polak: That’s correct. It’s precisely because the broad nature of operations that we would be covering here include many that are already regulated through other agencies, be they federal, provincial — in any case, other statutory requirements — where there would be no need for us to double up and duplicate regulations already in existence.

[1440]

G. Heyman: I appreciate that investigations, tests and surveys are required. I appreciate that that’s a good thing in terms of a spill contingency plan. I’m not questioning, in any way, the minister’s intent with the legislation. The problem I have is that we’re dealing with this amendment to the act. We’re dealing with this act. If this act isn’t requiring investigations, tests and surveys for a specific spill contingency plan, I think it leaves it very vague how investigations, tests and surveys required under another act can be applicable to this act or utilized for the purposes of this act.

I think it is a legal question. I’m not trying to be difficult. I’m just trying to ensure that we have a clear legal understanding in this Legislature that the intention will be met by the current language and, if there’s any doubt at all, that a clarification be added.

Hon. M. Polak: The criteria by which the decision-maker would form conclusions as to whether or not there are additional regulations required or additional testing information required is what follows after the “if any.” The purpose of the investigations, tests and surveys is to determine the magnitude of the risk to the environment, human health and infrastructure that would result from a spill of the substance in respect of which the person is a regulated person.

The decision-maker would determine whether or not there was sufficient information to determine the magnitude of the risk and so forth. That would be the test. If there wasn’t sufficient information to determine that, then additional testing, investigation, surveys would be required.

G. Heyman: If we go on to sub (3), it says: “A regulated person must ensure that, in accordance with the regulations, (

a) records respecting investigations, tests and surveys referred to in subsection (2) are prepared and kept for the prescribed period.” Subsection (2) refers to “investigations, tests and surveys are undertaken in accordance with the regulations, if any.” In other words, investigations, tests and surveys undertaken under any other statute would not be covered by sub (3), in my reading of it.

[1445-1450]

[R. Lee in the chair.]

Hon. M. Polak: With respect to (3)(a), it refers back to (2). And (2), remember, is discussing what must take place before the preparation of a contingency plan. One is contemplating there that, in the preparation for a spill contingency plan, documents will be relied upon. Information will be relied upon.

As we’ve discussed previously, that may be information that was generated as the result of another statute, not this one. Or it may be information generated as a result of this statute. Nevertheless, if it has been relied upon in the preparation of a contingency plan as referenced in section (2), then section (3)(

a) to (

d) would apply.

G. Heyman: I accept what the minister says is the intent of these two sections, and I think it’s fine. I think it works. I just think there’s a drafting problem here. With respect, I think when you have language that says “records respecting investigations, tests and surveys referred to in subsection (2) are prepared and kept for the prescribed period” and when subsection (2) says “investigations, tests and surveys are undertaken in accordance with the regulations, if any,” and there are no regulations, then subsection (3) effectively doesn’t refer to anything.

I think that’s a problem. I don’t think it’s sneaky. I don’t think it was intentional. I think that there is an easy fix. The easy fix is to delete the words “if any” after “regulations.” Then if a regulation is drafted that says, “Other investigations, tests and surveys required by other statutes fulfil the requirement of this regulation; if there aren’t any, then here’s the regulation,” that will do it, and it’s absolutely clear and indisputable.

Right now, I think it is awkward and, arguably, you could have…. I don’t want to say a loophole, but you could

[ Page 12512 ]

have a flaw or an ellipse. I’m trying to make a helpful suggestion here. I don’t think it will damage anything in the minister’s intent to take a look at this, but I think it is important to take a look at it in the interest of good drafting.

[1455]

Hon. M. Polak: I don’t disagree with the member that it’s awkward, but my response would be that it is not uncommon to find that the care with which the legislative drafters use this kind of phrasing is intended for clarity. In fact, the inclusion of “if any” is what provides the clarity here.

Remember that while we can parse what’s in (2), overall, we must take our direction from the entire segment of the legislation. That entire segment of the legislation sets out a circumstance whereby a regulated person, prior to preparing their spill contingency plan, must rely on certain information. That information is either regulations that flow from this statute — here’s where the “if any” is important — or information that is generated or the result of other statutes, from other legislation, perhaps even other legally constituted agencies or maybe federal regulation.

The inclusion of “if any” gives a broad enough reference such that in (3), you’re then capturing all of those. I don’t disagree that it’s awkward. But I do find frequently that the language we wrestle with in this House in legislation is, to the layperson’s ear, often awkward.

The “if any” is actually quite necessary to ensure that we capture not only what would flow from this statute. Given the plan to ensure that we are integrating our efforts with those statutes that flow from other agencies and other areas of our government or the federal government, it’s important to make sure that we include that ability for us to reference those.

G. Heyman: Again, I appreciate the minister’s explanations. I also appreciate a bit more specificity, which she offered with respect to trying to ensure that investigations, tests and surveys undertaken in accordance with other statutes aren’t precluded or that there isn’t duplication. That all makes sense to me, as long as they’re relevant.

I’m simply trying to ensure that, notwithstanding some areas of this bill that I think could be better — we’ve talked about that, and we’ll talk about that a bit more in the future — the bill does what it needs to do in clear language.

The reason I’m doing that is that, whether for better or for worse, I spent a significant part of my life reviewing contracts, helping write contract language and then seeing the often perverse results of arbitrated settlements that flowed from contract language that wasn’t specific, based on the rule that applies to arbitration, at least, but also applies to laws in general, that the specific overrides the general.

I understand what the minister’s trying to do. But I still think you have a very specific statement in subsection (3) that, potentially, can override a general statement in subsection (2). I suggested one way to deal with it would be to remove the words “if any” and have a very simple regulation that allowed the consideration of investigations, tests and surveys undertaken in accordance with other statutes.

Another way to do it would be to say “undertaken in accordance with the regulations, if any, or other statutes that are necessary to determine the magnitude of the risk,” all of which would be quite specific, achieve what the minister wishes to achieve and be quite clear — and not run afoul of being less specific than the statement in sub (3).

[1500]

Hon. M. Polak: Perhaps there’s another point of clarification that would assist here. If you recall the beginning of this discussion on this portion of the bill, I pointed out that there are likely to be circumstances where it’s not necessary for us to state, in regulations, a requirement for investigations, tests and surveys, because they are already required under another statute.

One of the reasons the term “if any,” then, occurs here is because there could be any number of circumstances where — with respect to investigations, tests and surveys — we aren’t regulating. Our regulations are silent because in that instance, there already exists sufficient regulation elsewhere to accomplish what is necessary. That decision would be made based on each circumstance.

There could be regulations flowing from this act that state the requirements necessary to determine, as it says in the bill, the magnitude of the risk, etc., or it could be that already, in other statutes, those requirements exist sufficient to accomplish that.

Where they don’t or where there are none, we could either augment through our regulatory framework here, or we could, indeed, create an entire structure if there are none. But there could very well be no regulations flowing from this act if the particular operation was already sufficiently regulated under another statute.

G. Heyman: I appreciate the minister’s comment. It’s substantively the same as the comments that she made earlier, but they kind of miss the point I’m trying to make.

If there’s a requirement for investigations, tests and surveys under another statute, they’re there for another statute’s purpose. They may be perfectly sufficient for the purposes of the Environmental Management Act, but sub (3) is very specific. It talks about how “records respecting investigations, tests and surveys referred to in subsection (2) are prepared and kept for the prescribed period.”

If they’re not investigations, tests and surveys referred to in subsection (2) — and I’ve made the case that they’re not — then they may only need to be prepared and kept for the prescribed period under some other statute, which may or may not be suitable for this particular bill. Further, (

b) says, “prescribed reports are prepared

[ Page 12513 ]

and submitted to a director,” which clearly would not be covered by a different statute in terms of this director. As I’ve said, the specificity of (3) would obviate the generality of (2).

Again, I would say to the minister: I think we’re trying to get to the same place. We’re trying to ensure that investigations, tests and surveys are not unnecessarily duplicated; that where they are necessary, they are taken; and that if they are, subsection (3) applies. Again, my suggestion was that a couple of words added to (2) could fix this by referencing investigations, tests and surveys required — either by regulation or by another statute — that are deemed to be acceptable. “By another statute” was all I actually said.

I would ask the minister to explain. She’s agreed it’s awkward. I still remain to be convinced that what she’s trying to achieve is fully covered — what she’s trying to achieve in (3), not (2). Why would there be a problem clarifying (2) so that there is no doubt?

[1505]

Hon. M. Polak: As we’ve gone back and forth on this a number of times — I know the member is concerned — staff are just suggesting that we could put this

section aside momentarily and they will seek greater clarification from the drafters as to their view as to why it should be written this way. Then perhaps that’ll be helpful in our discussion.

If that’s all right — stand down, on that section, and then move on, and come back to this when we have that information. We can do that fairly quickly, I think.

G. Heyman: Does the minister mean the

section as it would be in the act, not the entire

section 4?

Hon. M. Polak: Correct.

G. Heyman: I’m fine with that. I simply want to ensure that it does what the minister wants it to do, with which I agree. And, you know, it may be that we continue committee stage on this bill, and, if necessary, we just come back to it first thing Monday morning, or whenever it comes back, without completing the bill.

Let me ask another related question. Subsections (2) and (3) both refer to investigations, tests and surveys. Will these investigations, tests and surveys be…? Sorry. Let me back up a minute. Subsection (3) talks about keeping the investigations, tests and surveys for a prescribed period, submitting them to a director….

My question is: will these be available for public viewing, or will they be considered in some way proprietary or not for public viewing?

[1510]

Hon. M. Polak: The records under (a), the records respecting investigations, tests and surveys that are prepared and kept by the regulated person, would not necessarily be — in fact, would not likely be — publicized. However, under (b), prescribed reports that are prepared and then submitted to a director then would become subject to the ordinary access-to-information laws and provisions that we have — therefore, subject to a

section 25 test under the Freedom of Information and Protection of Privacy Act.

G. Heyman: If I recall correctly, the

section 25 of the Freedom of Information Act to which the minister refers is the proactivity clause, which is you don’t have to wait for a freedom-of-information request if it’s related to the environment or public health and safety. The information will be made available by the government without a freedom-of-information request specifically coming in.

Hon. M. Polak: I may have my sections of the act wrong. I thought that was the test section. Perhaps that’s the proactivity section. It might be

section 17 of which I’m thinking.

In any case, whichever number of the

section it is, there is a test with respect to what information — when it goes through the process — is redacted, what is released. This would be subject to that process.

G. Heyman: Okay. Well, that may be 17. I don’t have the act in front of me, but if I recall correctly, 25 says something like in the case of a threat to public health or a public health concern or a threat to the environment — which, I think, given that this is an environmental management act and this is a

section specific to spill and spill response, would fit that definition. In those instances, that information should be proactively released by government.

I’m referring now to the prescribed reports prepared and submitted to a director. And the Freedom of Information and Protection of Privacy Commissioner, Ms. Denham, has recently clarified that the sense that there has to be an imminent threat or danger is a misreading of the act, and it should be broader and more proactive than that.

Let me ask the minister again: given that understanding, does she think

section 25 applies,

section 25 doesn’t apply or she’s not certain and wishes to consult further?

Hon. M. Polak: No, I simply was going from memory and chose the wrong

section of the act. There’s a

section with respect to an analysis done when documents are requested for release. Of course, we’d have to go through that appropriate process for release of any documentation that had been submitted to a director to ensure that all the appropriate rules were followed.

I won’t argue with the member. I don’t have the act here with me, either. I’m quite certain he’s correct, that 25 is what refers to proactive release.

[ Page 12514 ]

If memory serves me correctly, it’s

section 17 that applies to what needs to be redacted versus what can be released. But I’m not going to pronounce on that. I don’t have the act in front of me, either.

Suffice to say, that in (a), those would not be public. In (b), because they are reports that are submitted to the director, they would certainly be subject to FOI requests, and then the appropriate process under whichever

section is the appropriate test.

G. Heyman: Perhaps the minister could tell us the relationship between the prescribed reports — or what she presumes will be the relationship — and the records of investigations, tests and surveys referenced in (a), or is that just kind of to be determined?

[1515]

Hon. M. Polak: So (

b) gives the ability to create regulations such that reports can be prescribed on any manner of things that would be deemed necessary to determine that there is sufficient spill contingency planning.

With respect to the relationship between (

a) and (b), under sub (3), those prescribed reports may include the investigations, tests and surveys or the results from them, or it could be something entirely different. It could be prescribing that they provide a report — requiring that they provide a report on the number and type of pieces of equipment that they have ready to respond in the case of an incident.

In answer to the member’s question of the relationship, the two could be related but not necessarily. It could be a report requested on something unrelated to the testing and surveys and investigations.

G. Heyman: The minister said that…. I started out asking a question about whether the records respecting investigations, tests and surveys would be public. She said no, I believe, because they will be the property of the regulated person.

[1520]

I then went on to prescribed reports, assuming that the prescribed reports would respect investigations, tests and surveys, although there is no direct link in the language. The minister is quite right. Therefore, the prescribed reports could be anything. They could include investigations, tests and surveys. They could not include them. They could include many, many things.

I have two questions. I’ll start with the first one. The minister is awaiting a determination in another matter, the matter of water, soil and manure test samples in the Hullcar aquifer — whether the test results that were prepared by a qualified practitioner but required by the ministry are covered under the Freedom of Information and Protection of Privacy Act such that they should be released, even though the minister says they were taken by a private party and, therefore, they are the property of that private party.

Does the minister believe that if the decision of the freedom-of-information and protection-of-privacy commissioner says that if the ministry requires them, no matter who took them or paid for them, they are public information? If that applies in the case of the test results requested by people connected with the issue of the Hullcar aquifer, that decision would also apply, therefore, in this case, where, once again, investigations, tests and surveys are taken by a regulated person but taken by a regulated person under statutory direction of the ministry for public purposes.

Hon. M. Polak: First, I’ll cover off how this will relate to a

section just a little bit further on in the bill. Let’s remember that everything is covered by the Freedom of Information and Protection of Privacy Act. The question is: when a request is made utilizing the tests within the act, is something allowed to be released?

[1525]

It starts from the premise that everything that should be public can be made public. Then there are tests that are applied to determine if some information should not be released. That’s the process we undertake. The same would be true here. That’s general.

With respect to the question around the information related to the request to do with the Hullcar aquifer, we believe the appropriate tests were applied. Advice we have is that the release of that information would contravene the federal Copyright Act. However, as the member mentions, the Information and Privacy Commissioner is having a look at that. We certainly will be pleased to abide by whatever she recommends.

In this case, we recognize that transparency is a big issue when it comes to knowing what contingency plans are in place. Certainly, transparency forms a significant part of what we are trying to achieve here. When one is confronted by restrictions on release, that can be dealt with any number of ways.

In this case, we are looking further on, which we’ll get to.

Section 92.1 would provide us with the ability to ensure the appropriate release of contingency planning information. We know that first responders need to have that information. We know the public wants to see information to be assured that contingency planning is appropriately in place.

It’s our intention to do that. We will be able to, as a result of 92.1, ensure that those are appropriately released. We do have to take into consideration the fact that there may be, in some instances, security issues that will have to be taken into account as well.

G. Heyman: I appreciate the minister moving me ahead to a fairly general provision further on in the bill and providing some specificity about how that might be used in this instance.

Let me just repeat the basic premise of my question. If the freedom-of-information commissioner determines

[ Page 12515 ]

in the Hullcar case that the Freedom of Information Act overrides any other considerations, in respect of release of the information in that case, would she consider that decision to also cover a release of investigations, tests and survey records under (3)(a)?

Hon. M. Polak: It’s impossible to determine that without seeing a decision from her and what the specifics would be.

G. Heyman: In that case, we must assume that the records referenced in (

a) will not be made public and that the records may or may not be prescribed to be included in the reports referenced in (b).

Hon. M. Polak: They aren’t necessarily, but they might be. The prescribed report may require that those documents are submitted to the director.

However, the reports referenced in (

b) may be unrelated to (a), and there could be investigations, tests, surveys that, while they’re retained by the regulated person, are not requested or required in their entirety for a report. It could be that simply the results of those tests or investigations are required.

It all depends on whether or not they end up being submitted to the director. I would note that in the other case that the member mentions, the documentation is in the possession of government, but, as a result of another federal statute, it’s unable to be released.

[1530]

Again, obviously, based on a ruling from the Information and Privacy Commissioner, if she felt that we had inappropriately made that decision, then we would certainly take her advice on that. But it would be impossible to speculate, with respect to her decision on that matter, how it might relate to this in the absence of a decision.

G. Heyman: If (b)…. This is an important section. It talks about spill contingency plans, which are, in many ways, not the only thing that are the heart and soul or the meat and potatoes of this bill, but they’re certainly central.

Spill contingency plans, in a bill to address spills, are pretty central. There are some pretty significant requirements in preparation of the plan, including that it be “reviewed, updated and tested in the prescribed manner,” that it’s “made available to employees of the regulated person,” that it “demonstrates that the regulated person has the capability to effectively respond to a spill” — notwithstanding the fact that, apparently, we’re not going to create a definition of “effective” in a public and transparent manner. At least, we’re not requiring it to be done under this bill.

Now we have investigations, tests and surveys that are required by regulation — or, presumably, will be used if they’re required by another statute — in order to prepare a contingency plan, and the minister is saying it’s quite possible that the director will not require the results of the investigations, tests and surveys to be included in any prescribed report.

Can the minister explain to us — I’ll admit that I’m a little surprised by the earlier answer — how something so central to an effective contingency plan, though yet to be defined in manner of effectiveness, won’t be reviewed by government? How can the people of British Columbia be assured it’s adequate if the underpinnings of a contingency plan aren’t reviewed by public officials?

[1535]

Hon. M. Polak: Let’s again remember that under (3)(

b) there are reports that could be requested that have no relationship whatsoever to the investigations, tests, surveys, etc. Insofar as whether or not a director asks for those actual investigations, tests and surveys to be submitted, that would be up to the director as to what they feel is necessary to be provided.

Let’s not forget, further on, in section (5), the director has the authority under this act to order a regulated person to provide additional information, such as a copy of the regulated person’s spill contingency plan, information relating to it, declarations, etc. So the powers are there, but each circumstance will be adjudicated on its own merit and respecting its own unique characteristics.

Again, the investigations, tests and surveys may be part of a report that’s submitted to the director, but they may not be. It could be that the results are submitted to the director. It depends on the circumstance whether or not those would be subject to, for example, an FOI request.

G. Heyman: With respect, (5) says “if ordered” — it’s optional — and records presumably do include the results. The minister said that maybe they don’t want all the information; they want the results. Well, that makes sense, but in order to interpret the results, you actually need to know the parameters of the test and the survey and to what they refer. Presumably the records do all of that.

I repeat my question. How can the public of British Columbia be assured that the public service of British Columbia has adequate oversight of all of the aspects of spill management, spill response, contingency plans and that the entire thing isn’t simply being privatized and contracted out to industry, which I would argue is not appropriate?

[1540]

Hon. M. Polak: Perhaps the easiest way to get at this is to talk about the difference between the two legislative frameworks here. With respect to the documentation that the member references related to the Hullcar aquifer, the advice we have is that we don’t, under those statutes, have the legal authority to release that information.

The difference here comes in sections — or segments, I guess I should say, because we’re in the same

section —

[ Page 12516 ]

aspects of the bill like 5, later on, or like 92.1, where we are providing ourselves with the legal authority to be able to take that action — subject, of course, to the ordinary FOI processes — but certainly not in the situation we are with Hullcar, where we don’t have that legal authority to act in that way.

Here part of the value of this act overall is that we recognize the need for the public to be able to see the information and therefore know that they can trust that there is that oversight and that public servants are adequately informed and have sufficient information. That’s really the difference. With this act, we are giving ourselves the authority to be able to be transparent with the information that is contained in contingency plans and other documentation that will be provided.

G. Heyman: Fair enough, except the question I asked was actually different. The question I asked was…. In subsection (5), it says “if ordered,” which means that it may not be ordered. My point was that there may be a whole lot of activity — specifically, in this case, investigations, tests and surveys that form the core of the contingency plan that the government may never review.

So my question to the minister is: what is the explanation for not making it an absolute certainty that the government will have these underpinnings of contingency plans on record with them?

[1545]

Hon. M. Polak: This entire legislation, of course, is designed to be enabling, recognizing that it covers a very wide spectrum of different operations and different substances that could be being handled in a spill.

One of the reasons we have a professional civil service is to make those judgments with respect to what information they require. What we do in legislation is give them the power and authority to do that. In this case, you have the ability of the director to make an order under (5). Later on, though, we’ll see even further representation of our intent with respect to contingency plans.

[1550]

Again, if we go to 92.1, which we will ultimately get to…. We can make regulations, for example, under 92.1: “respecting spill contingency plans, including, without limitation, respecting (

i) the content of the spill contingency plans, and (ii) requirements, assessments, procedures and standards for the content, review, evaluation, updating, publication and testing.”

Our interest here is in being as transparent as possible. We want emergency responders to have access to quality contingency plans. We want the public to have access to as much of this information as is possible. Our intent would be to publish as much as we can. But we do need to remember that those we charge with the duty of examining these processes and overseeing them are the ones with the best understanding, knowledge and technical expertise to determine what, in fact, should be required in a given circumstance, and they will vary widely.

This act will provide regulation for the very, very large and sophisticated operations. It will provide regulation for those that are quite small and perhaps even, to a certain extent, insignificant, and everything in between. It only stands to reason, for the act to be effective in supporting and directing the work of the civil service, that it allows them the authority to act within their professional discretion to make those kinds of determinations.

G. Heyman: My interest here is in ensuring that the public has some certainty about transparency and the ability to have knowledge and review, which is why I’ve asked a bunch of questions to which I frankly expected a different answer. I’ve gone pretty far on these subsections, but I have three or four more questions.

One of them is: if the minister believes that there are some legal impediments to releasing information through the Freedom of Information Act because it is not the property of the government, why would the minister and the government and the ministry not simply commission tests themselves and enable themselves, through legislation, to bill the costs of those back to relevant regulated persons so that the information is actually the property of the public through the government?

[1555]

Hon. M. Polak: The member references the word “impediments.” I’m not speaking of any impediments with respect to information that rightly should be public. We are, as the member knows, trying to strike the balance always between safety, protection of the public interest and, at the same time, protection of information according to the act.

If something is deemed to be a security risk if it’s released publicly, then that would not be appropriate to release. That is an appropriate restriction. Whether or not the government conducted the testing wouldn’t change that. There would still be a requirement to ensure that anything that was released publicly did not contravene the protection-of-privacy provisions and those related to security and the appropriate test for what information should be released or withheld, not to mention just the impossible logistics of any government anywhere conducting all the testing that would be required.

It’s appropriate for those who are constructing their contingency plans to do so themselves, with qualified professionals, and it’s appropriate for the civil service to oversee that process. Here we have given them quite broad-ranging powers to insert themselves into that process as they see fit and make requirements on those operators when they see fit.

G. Heyman: With respect to the minister, I was not referring to security risks. I was referring to information

[ Page 12517 ]

which the minister has, at other times, referred to as proprietary or privately held.

Even if I were to agree with the minister that government doesn’t have the capacity to conduct all its own tests, which was not actually what I suggested…. I suggested government commission the tests and bill back the cost of the tests to regulated persons. Another way of accomplishing the same thing would be to simply put in the act that regulated persons, when required to do so by this act or by the director, will conduct tests which shall be the property of government.

This is a philosophical difference. We could debate it for days, but we won’t. We disagree.

I think anything that stands in the way of information to which the public has a right — because government is simply saying that information can be collected by qualified professionals on behalf of regulated persons instead of on behalf of the public — is, in my opinion, less transparent than the public expects.

Let me turn now to

section 25 of the Freedom of Information Act as it might apply to this bill.

Section 25 says: “Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information (

a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people.” It goes on to say in (2): “Subsection (1) applies despite any other provision of this Act.”

Given that

section 25 expressly addresses the environment and harm to the environment and that this bill is specifically about harm to the environment and, in most cases, likely to the health or safety of the public, could the minister consult with her staff and tell me what their

interpretation of the application of

section 25 would be to release of information with respect to contingency plans, testing, surveys, results, etc., that directly relate to risk of harm to the environment or the health and safety of the public?

[1600]

I will add to this. The freedom-of-information commissioner added quite recently, in a statement that clarified

section 25, that the duty to warn about risk to public health and safety was mandatory, not discretionary, and that she was very concerned that ministry staff throughout government did not understand this

section and she wished them to pay particular attention to it as it applied to their ministries. She said that a couple of years ago.

My assumption is that ministry staff, including the staff of the minister today, have given some thought to that and some thought specifically to how

section 25 of the Freedom of Information Act would apply to a bill such as Bill 21, and I’m interested to hear their commentary on that through the minister.

Hon. M. Polak: There is no need to consult, because there’s no information to examine. One has to actually have information in front of you to be able to put it to that test. In the abstract, we can’t determine whether any pieces of information generated as a result of this act would fall into the category that the Information and Privacy Commissioner references.

Certainly, in all cases, it is our intent to have as much information published as is possible for the public to see. That is always subject to the restrictions contained in the Freedom of Information and Protection of Privacy Act. But it would be impossible to determine whether or not the

section 25 determination from the Office of the Information and Privacy Commissioner would apply in terms of that imminent danger or imminent risk, etc., without seeing a document. It’s impossible to do that.

G. Heyman: This is a frustrating experience. We have in front of us a very important bill respecting environment management and spill management. It’s a centrepiece piece of legislation, I think, in this session. It’s important. It’s clearly critical to the government’s claim that they are protecting the public interest with five conditions on pipelines and a variety of other development projects.

The question I asked the minister was not: how would

section 25 of the FOI Act apply to Bill 21? It was: given the statements of the freedom-of-information commissioner two years ago and recently, what analysis or what discussion or what consideration has ministry staff given to how

section 25 might apply to Bill 21?

Hon. M. Polak: The Freedom of Information and Protection of Privacy Act doesn’t apply to acts. It applies to documents. There are no documents as yet here to take a look at and apply that lens. Certainly, the direction from the Information and Privacy Commissioner is important. It is especially important in ministries such as Environment; Health; Forests, Lands and Natural Resource Operations — places where we are frequently dealing with information that relates to the safety of the environment and the public.

There is no way to make an

interpretation as to how that advice, that direction, from the Privacy Commissioner would apply to an overall act. Her direction and the Freedom of Information and Protection of Privacy Act apply to documents. In the absence of a document having yet been generated as a result of this act, it’s impossible to make that determination as to whether an individual document would be captured or not.

Obviously, if anything that government possesses is information that would be necessary to the public to protect them from an imminent risk, then her instructions are that that trumps the other restrictions that would be in the Freedom of Information and Protection of Privacy Act. But we are not dealing with any of those documents. It is impossible to have that discussion in the abstract.

[1605]

[ Page 12518 ]

G. Heyman: There’s nothing particularly abstract about Bill 21. The whole purpose of Bill 21 is to deal with risks of harm to the environment and risk of harm to public health and safety. That’s what it’s about. It’s about spills. It’s in place to deal with spills of hazardous substances. Whether or not we have a specific document, one can presume that documents prescribed to be prepared or filed with the director would have to do with harm and risk.

And let me correct the minister. With respect, the freedom-of-information commissioner has made it absolutely clear that imminence has nothing to do with

section 25. It is not about imminent risk; it’s about risk.

Let me simply ask this: do the minister and her staff believe that the purpose of Bill 21 is to address risks of harm to the environment or not?

Hon. M. Polak: The act will lay out a framework that enables the kind of planning, preparedness, response and remediation requirements that government will place on all those regulated persons who act within this sphere. Of course it deals with risk. Of course it deals with trying to mitigate and maybe even, in some cases, eliminate risk, although I would argue it’s probably impossible in this life to ever completely eliminate risk.

But the Freedom of Information and Protection of Privacy Act does not apply to the act. It applies to documents that may be generated as a result of this act — indeed, any government record. The act, FOIPPA, applies to documents. It’s impossible to speculate what, if any, document may be generated as a result of the processes laid out in the act that would be the subject of her guidance as the member has related it here. It’s impossible, because we don’t have those documents in front of us.

The statement I made earlier still stands. Government has a broad obligation, as you’ve outlined. Any time we have possession of information that could affect the safety, the health of the public, we have a duty to disclose that information.

If there was information here, information in documents that were generated as a result of the operations of this act, they’d be handled the same way that documentation in any other part of government would be handled if it fell under that criteria. But it is nonsensical to ask how that would apply to the act overall. That’s not what FOIPPA applies to.

G. Heyman: All of the questions I’ve been asking for the last hour and a half or so have to do with transparency, with public confidence, with the ability of the public to review important information that would underpin the development of contingency plans, as well as matters that might be prescribed by the director or any other matter that the public could review or experts could review to determine that contingency plans and preparations are adequate to deal with specific hazards or general hazards.

Quite frankly, there’s been a less reassuring response than I thought we would get, although the minister has said all of these things may be developed through regulation or may be developed by the director in the future. They may in fact require things that are not specifically laid out in the act, and they may, in fact, make information public in ways that aren’t specifically laid out in the act. So I suppose we can be hopeful that that will happen, but we cannot be assured that will happen.

I won’t ask any more questions about the Freedom of Information Act or its requirements or the requirements of

section 25, except to say that I believe the minister knows full well that I wasn’t asking whether the FOI Act applied to this act.

[1610]

I was asking whether ministry staff considered how

section 25 would apply to information, plans, test results and all manner of other information that would be gathered under the act — under the act — that have to do with the risk of harm to the environment or public health and safety.

I am fairly certain that the minister knows that’s exactly what I was getting at. We may disagree about whether

section 25 applies, but I am quite certain it does. More importantly, I am quite certain that the people of British Columbia think it should. They don’t think, on something as important as spills and hazardous substances, that they should have to necessarily file a freedom-of-information request for information they may not even know exists, so therefore, they can’t be specific enough in their request to get what they actually need to be assured that they’re protected. That’s why

section 25 exists.

Let me ask the minister if there are — or if she believes or if the ministry intends or if she thinks that the director should require or if she thinks that cabinet should develop through regulation — specific requirements that contingency plans be available to the public, that they be filed annually or at some greater frequency by regulated persons, and whether the minister should report to the Legislature on a regular basis and if she intends that this be set out in regulation. It does not appear to be set out in the act. And again, whether she intends, if she’s considering that, that it be annually or more often.

Hon. M. Polak: We do intend to have regulations that would require that the contingency plans be published and that any updates that would come, as time went on, would also be published. We also intend to establish a frequency of the reporting of the minister to the Legislative Assembly. Again, that would also be put forward in the regulations.

G. Heyman: May we take a five-minute recess?

The Chair: Recess for five minutes.

[ Page 12519 ]

The committee recessed from 4:14 p.m. to 4:32 p.m.

[R. Chouhan in the chair.]

G. Heyman: Just to follow up on the minister’s last answer. I apologize. I missed the first part of the first sentence of her answer.

Does she envision any parameters, notwithstanding the fact that the frequency of reporting to the Legislature and to the public will be set out later in regulation, I presume? Does she have some sense of what the parameters that she would consider reasonable would be? Somewhere between X number of months and X number of months, just to give us a sense?

Hon. M. Polak: Staff say we’ve been leaning toward something in the neighbourhood of every two years, but that, of course, will be the subject of some of the consultations that we undertake as well.

G. Heyman: I appreciate the specificity of the answer, and I’ll simply note that many of the people with whom I’ve discussed this would hope that the frequency was more like annually. But I’m sure they will bring that up in the consultation process.

[1635]

section 91.2, I note in (

c) that it says, “ensure that persons with the skills, experience, resources and equipment necessary to properly deal with the spill….” Then it goes on to say: “(

i) arrive at the spill site, sites affected by the spill…(ii) implement an incident command system,” etc.

Is the word “properly” in this

section meant to be something like “effective”? Is there a definition? Is there an intent to define it, or will it flow from “effective”?

Hon. M. Polak: In this section, the lead part of the sentence: “ensure that persons with the skills, experience, resources and equipment necessary to properly deal with the spill” do the following — so (

i) and (ii). This isn’t the

section where we are describing who it is “with the skills, experience, resources and equipment necessary to properly deal with the spill.” This

section here is already presuming that we know who they are, and it’s directing those very people to do the following.

G. Heyman: My point was that they…. We had a discussion earlier about the term “effective” and what it means and how it will be defined. Now we have the term “properly,” which lends itself to the same question.

My question was: is “properly,” in this instance…? Is the intent of the legislation that “properly” be equivalent to “effectively”?

Hon. M. Polak: It won’t be left open ended as to who must engage in this activity in the response. As per the very first line, this will be done in accordance with the regulations, and it will be stipulated as to what qualifications people need to bring to bear.

[1640]

Then, of course, (

i) and (ii) say what that individual must do. The responsible person — of course, that’s already defined — must ensure that those people, as described…. They must make sure those people do the following. They must do so in accordance with the regulations. Certainly, there will be regulations outlining who is responsible for what aspects of the response.

G. Heyman: At this point, I would like to move an amendment to

section 91.2(1)(c).

[ by adding the following text highlighted by underline and deleting the text highlighted by strikethrough as shown:

91.2 (1)(c)

(

c) ensure that persons with the skills, experience, resources and equipment necessary to properly deal with effectively respond to the spill , according to standards for effective spill response set out in the regulations following public and expert consultation, ]

On the amendment.

G. Heyman: We’ve had a debate earlier today about the manner in which “effective” should be defined, and as members well know, that proposed amendment failed.

In this case, there are two purposes to this proposed amendment. The first one is, we have a word “effectively” that is already used in the bill. It will, we’re told by the minister, be defined by regulation and that definition will, the minister has said, involve public and expert consultation, but she would prefer not to see that in the bill — or, ultimately, in the act, should the bill pass.

But I think that, in this case, it’s not helpful to introduce additional terms like “properly.” On the one hand, we’ve got effectively; on the other hand, we’ve got properly. It makes more sense to have a common term used throughout the act that will be defined. It seems to me that, whether we say effectively or properly, we probably mean effectively, or we probably mean the same thing.

The suggestion here is twofold. It’s that we change “properly” to “effectively,” in terms of respond to the spill, and then, again…. I’m not going to repeat all the points that I made why we’re suggesting the words “according to standards for effective spill response set out in the regulations following public and expert consultation.” We think if that’s the intent of the minister and the act, then we should include it in the act.

There’ll be other ministers. There’ll be other bureaucracies. There’ll be other legislatures. There will, in fact, be other regulated persons, and there may be changes proposed to regulations in future. It just makes sense to us that that process should be defined.

In any event, we have that in this amendment. But we also strongly, strongly recommend that we not have a confusion of terms that are effectively…. Sorry, I

[ Page 12520 ]

shouldn’t use the term “effectively” in this regard. We shouldn’t have a proliferation of terms that are generally, I believe, meant to be the same thing.

I think the minister has concurred that they’re meant to be the same thing. I think to say “effectively” in this subsection would have some consistency, and we would have a definition developed for that by regulation — even if it’s not spelled out, ultimately, in the act what that process is, which, of course, I and my colleagues would prefer.

[1645]

Hon. M. Polak: I appreciate the member’s intent. However, we do believe that, in this instance, there is no difficulty in having the word “properly.” In fact, in this instance, as I think I’ve stated before, but maybe I’ll try to say it more clearly….

At this stage of the bill, when you get to 91.2(1)(c), this assumes that you already have defined who that person is. This is setting out what they are responsible to do. This isn’t the

section that defines who that person would be or what the criteria would be for them. It does not cause a problem to say “properly.”

In fact, if we look at 92.1, further on in the bill, one can actually take a look at those actions which would constitute properly dealing with a spill. So I don’t believe that there is a difficulty in the drafting that needs to be corrected.

As for the regulations themselves, again, it references those at the very beginning. “A responsible person in relation to a spill must, in accordance with the regulations….” All of that will be defined. “Properly” isn’t the word that it hangs on, in terms of that requirement.

Then, of course, with respect to the public and expert consultation, as I’ve said before, not only is there evidence that we have already undertaken that very thoroughly, but in fact, we are currently engaged in public and expert consultation with the third intentions paper. It’s not that one has to wait to see if we will. We are already doing it and will continue to do so. I don’t believe that the amendment is necessary, and I won’t recommend supporting it.

Amendment negatived.

G. Heyman: Then let me just clarify with the minister that…. I’m assuming from her answer that she doesn’t anticipate a specific definition of “properly” to be developed by regulation but, rather, that the factors that are listed in 92.1(1)(a)(

i) through (ix), which may be added to by regulation — but these would be a minimum — would in fact constitute a definition of “properly”?

[1650]

Hon. M. Polak: One can think of it this way. The person has to have “the skills, experience, resources and equipment necessary to properly deal with the spill.” Then the question that the member implies is: well, then, what is properly?

In 92.1, we find out the duties that that person must ensure are completed, either by that person or they can make them happen through the deployment of equipment, etc. There is, though, of course, the very first line, which identifies that the responsible person must act in all these things in accordance with the regulations. All of this hangs together to define what’s expected, and the regulations will go further to ensure that all of that is done in a manner that will be effective.

G. Heyman: In sub (2), it says: “Subject to the regulations, if a spill occurs or is at imminent risk of occurring….”

Does the minister or her staff have a common test for imminent that the ministry uses or some intent to define it further in regulation? Is there some sense of what they would be looking at for meaning with the term “imminent risk”?

[1700]

Hon. M. Polak: With respect to “imminent,” it’s not defined in this act. It’s not defined in the

Interpretation Act. It isn’t defined, indeed, in the Environmental Management Act. The test that we have always applied is one of reasonableness. You will see further on, in (

a) to (e), the activities that we are expecting to be undertaken.

The difference here, when we consider that this is an amendment rather than…. The reason there’s an amendment here is because previously, the responsibilities didn’t trigger until a spill had occurred. So adding “at imminent risk of occurring” is pushing that responsibility further back. Your responsibilities aren’t just triggered when a spill occurs. We expect you to be engaged in the following activities in the case that a spill is about to happen. We believe that the use of the term “imminent risk” would be reasonably defined with a dictionary definition.

G. Heyman: Just to ensure that I understand, for greater clarity, could the minister confirm that she is saying that the test of reasonableness applies here? In other words, a reasonable person would think there was a risk of a spill occurring.

[1705]

Hon. M. Polak: Yes. If we were at a time frame after something had occurred, and there was an investigation or a review into what had occurred — had people behaved properly? — that would be the test. Did they make a reasonable judgment as to whether there was an imminent risk?

G. Heyman: There is, of course, significant jurisprudence on the reasonable person test. Does the minister believe that government would rely on that with respect to this bill?

[ Page 12521 ]

Hon. M. Polak: We do believe that we can rely on that. However, the caveat I would put is what I have been saying with many of these sections. If, as a result of the consultations with the public, with experts, it’s felt that there needs to be further criteria set out in regulation, then we certainly would be considering doing that.

G. Heyman: Thanks to the minister. That’s both a good clarification and an indication that should more specificity be required, the ability to put it there will be in place.

If I may move to sub 91.2(5), it says: “The director may (

a) approve, by order, a recovery plan…(

b) direct that the recovery plan be amended in accordance with the director’s directions and resubmitted in the time and manner specified by the director.”

My question to the minister is: will this be public information — both the recovery plan or any directions for amendment and the result of the amendment?

[1710]

Hon. M. Polak: Our intent would be for them to be public. Later on in the amendments, you’ll see, in the regulation, authorities “respecting recovery plans.” One of the things we would be doing is — and I’m reading from it here — “prescribing a process for public review and comment.”

G. Heyman: Which leads to my next question. Would this be a public review and comment period for a specific recovery plan or for a cluster of recovery plans? And would there be specified periodic review periods, such as annually or automatically, if it’s amended, or any other duration?

Hon. M. Polak: This wouldn’t be limiting in terms of requiring there to be only one plan. There may be, but it’s also possible that you could have multiple plans. If, for example, you had a major incident that affected a number of different types of areas that needed different approaches, it’s possible that you would see more than one recovery plan that would be specific to an area.

For example, you may have a terrible spill that impacts a stream over here on this side but then also impacts some foreshore, maybe with a heron rookery or something like that, that takes very different planning, very different efforts and very different expectations in terms of recovery.

So it could be that there would be one recovery plan covering an entire incident. It may be necessary to use more than one, but we certainly wouldn’t be limited to having only one. It would be a tool that could be deployed in a cluster or as an individual plan.

G. Heyman: And on the frequency of review or what would trigger a review?

[1715]

Hon. M. Polak: Just to be clear, I’m assuming that we’re still in discussion on (5)(

a) and (b)?

I’ll tell you why I’m asking that. What we were discussing here is if you are asking about the frequency of review in terms of prescribing a process for public review and comment. Or is it with respect to where we get to in (6)(c), where the conclusion of the recovery process has taken place and now there is a report prepared, submitted to the director, etc.?

Interjection.

[1720]

Hon. M. Polak: Under (5)(b), it contemplates that a recovery plan may be amended. The language in 92.1 leaves it open to public…. We would anticipate that there would be public review in an ongoing way if the recovery plan was going back and forth, back and forth.

Now, that may depend on the magnitude of the amendment. On occasion, the amendments requested are fairly minor and administrative in nature. But if it was an amendment of any significance…. The phrase used in the regulation authorities is “prescribing a process for public review and comment,” which is broad enough that a process would be open for repeating if there were significant amendments being made to the plan that had already been reviewed and commented upon.

V. Huntington: I’d like to discuss subsection (2) for a moment, if I may. As I read this bill, it seems to me that subsection (2) is at the essence of the bill, the very kernel of what we’re doing here with this act. Given that it would appear to be the kernel, the purpose for the act, why is the language in this

section so permissive?

I’ll refer specifically to:”…if a spill occurs or is at imminent risk of occurring, the responsible person…must ensure that the actions necessary to address the threat…caused by the spill are taken, which actions may include, but are not limited to…if applicable.”

It would seem to me the question there would be covered by “if applicable.” But why isn’t it “which actions will include”? Why is the word permissive rather than expressive?

Hon. M. Polak: I would note, as well, that the beginning of sub (2) makes this “subject to the regulations.” The reason that it says “may” rather than “must” is because we recognize the breadth of this legislation and the fact that in many cases the actions listed may not apply. It may not always be necessary, in the case of a very minor incident, to advise persons to take protective action in relation to the spill. It might not always be necessary to protect infrastructure, for example.

The key here, though, is that there are regulation-making powers that we can utilize to ensure that all appropriate actions are taken.

[ Page 12522 ]

V. Huntington: My concern is that by including the permissive “may,” the government is leaving itself open to argument from a responsible person that the reaction, the action he took, was not necessarily required under the act, because the words “if applicable” cover the exception, cover the situation in which it may not be necessary.

[1725]

He should be taking the action if that action is applicable to any of these situations. I’m very concerned that there is a loophole here that somebody could climb through, if they felt it necessary, because I believe, it would, if applicable, cover all of the situations the minister just discussed.

Hon. M. Polak: The key piece here is the first part of that paragraph, which does use the word “must.” It says that they “must ensure that the actions necessary to address the threat or hazard caused by the spill are taken” — so “may include,” “not limited to,” “if applicable.”

Nevertheless, what they will be judged by is whether or not they have taken the necessary actions with respect to the threat or hazard caused by the spill. They won’t be let off the hook just because the rest of the

section recognizes that this list may not be complete or, in fact, may have items in it that are not going to be actioned.

V. Huntington: That’s helpful.

I wonder if the minister could provide a scenario in which these actions would be subject to the regulations. I find that phrase “subject to the regulations” on a

section that’s so specific and at the kernel of the bill as this is….

[1730]

Could she provide us a scenario on how the regulations might otherwise affect the actions that this individual must take?

Hon. M. Polak: This is enabling and, in this case, subject to the regulations is part of the powers we will exercise if we wish to add even more obligations to the person responsible. Already, in this section, they “must ensure that the actions necessary to address the threat or hazard caused by the spill are taken,” subject to the regulations.

We could put in place greater specificity with respect to a certain type of activity we want them to undertake. Our intent with this legislation is to enable government to always have the power to maintain the highest standards, even as those change, and improve upon them. We would intend to do that.

G. Heyman: In

section 91.21, on sub (2), this is where

“the director may order that the recovery plan for the spill provide for (

a) mitigation measures…that compensate, or partially compensate, for the type of damage caused by the spill, or (

b) payment by the responsible person, to a person specified by the director, of an amount the director considers equivalent to the amount the responsible person would have been liable to if restoration or complete restoration were reasonably or safely achievable.”

In general, I guess, this is the polluter-pay principle, which is an important and a welcome feature of this bill.

My question to the minister is twofold. Is there a limit to what the quantum might be, and what is envisioned in the instance where the money simply isn’t recoverable? The responsible person is bankrupt or doesn’t have the resources adequate to fully compensate for the appropriate mitigation measures. Has thought been given to how this situation would be addressed?

[1735]

Hon. M. Polak: If a responsible person was unable to pay, one of the things that we are looking into is the potential to establish a fund that would be available in the case of orphan spills. There’s always, of course, court processes that one could undertake, but we’d prefer to have a system where it is robust enough that we’re able to recover the amounts necessary to see that the taxpayer isn’t on the hook for the recovery in a circumstance like this.

G. Heyman: Can the minister indicate if she thinks this would be an industry-funded fund or a sectoral-funded fund? I realize that the final determination hasn’t been made, but I’m just trying to get a sense of what’s being contemplated without pre-committing what some of the parameters around the fund establishment might be.

Hon. M. Polak: We have concluded, along the lines of our principle of polluter-pay, that it certainly shouldn’t be taxpayer funded. At the same time, though, there are different mechanisms used in different jurisdictions. We’re looking at those. We have not arrived at a determination as to how that would be funded at this stage.

G. Heyman: The minister mentioned court processes. Should I assume, in the instance where a responsible person or a spiller did not have the resources to pay the costs of mitigation measures, that the government would be prepared to go to court to seize assets or require liquidation before moving to the fund compensating for the balance?

In the interests of time, I might add that one of the other options that just occurred to me is a court-ordered repayment schedule. A court might determine a repayment

schedule over a set period of time.

Hon. M. Polak: It depends where we’re at in the situation. If, for example, the recovery hasn’t been completed, the party runs out of money and government steps in and acts, government could certainly sue to recover those funds. They could sue the responsible person but could also, if the responsible person wasn’t able to pay government, sue the owner as well.

[1740]

In the case where recovery has been completed and the responsible person is unable to pay the costs of that, then

[ Page 12523 ]

that may be something where a fund comes into play. But it really would depend on what stage you’re at whether the best choice was court action or utilization of the fund. Typically, one would think that you would want to make the choices that keep you out of court to the best extent possible, but it would really depend on the individual circumstances, which was the right tool to use.

G. Heyman:

Section 91.31(4) talks about an order under subsection (2), which is designating an area for the purpose of the development of a geographic response plan applicable throughout the area. It says “An order…must establish the terms of reference for the geographic response plan, or authorize the preparation of some or all of the terms of reference subject to the approval of the minister….” Then it lists a number of things that the terms of reference must include but are not limited to.

Sub (5) goes on to say that an order may, “subject to the regulations, (

a) require the establishment of an advisory committee….” And then: “(

c) require the plan leaders to carry out a public consultation in accordance with the regulations.”

My question is, in (5), both those things. I mentioned that the advisory committee and the public consultation are permissive with the word “may.” Is it the intent of the drafters and the minister that the establishment of terms of reference would be done with some public transparency and would be, in fact, public at the conclusion?

Hon. M. Polak: It must be getting late, because after a whole bunch of discussion, we just realized we’d answered our own question. We’ve been here long enough, I suspect.

[1745]

Because it would be an order of the minister, it would, therefore, be public.

G. Heyman: It must indeed be late. I missed that.

So 91.4(1)(c)(ii) refers to an officer having “reasonable grounds to believe that government action is required to safeguard the environment, human health or infrastructure.” Would this be a special officer or an existing officer within the ministry? I just quickly checked to see if there was a definition, and there isn’t.

My secondary question is: given that this is a significantly more detailed

section of the act dealing with spill response with significantly more requirements, is the minister considering additional capacity for enforcement, or does the minister believe that additional capacity for enforcement might be necessary in future?

Hon. M. Polak: “Officer,” defined here, means: “(

a) a person or class of persons employed by the government, a government corporation or a municipality and designated in writing by a director as an officer, or (

b) a conservation officer.” Some examples would be…. We have environmental emergency response officers. We have natural resource officers. Of course, local governments have some of those as well. It would be capturing all of those possibilities.

With respect to additional resources, while we’re unable to answer that immediately, our intentions papers and the consultation have contemplated the need for additional resources. That will have to be considered as we see how this whole system unfolds.

With that, I see committee Chairs have returned. I’ll move that the committee rise, report progress and seek leave to sit again.

Motion approved.

The committee rose at 5:49 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 progress, was granted leave to sit again.

Hon. M. Polak moved adjournment of the House.

Motion approved.

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

The House adjourned at 5:50 p.m.

PROCEEDINGS IN THE

DOUGLAS FIR ROOM

Committee of Supply

ESTIMATES: MINISTRY OF

TRANSPORTATION AND INFRASTRUCTURE

(continued)

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

The committee met at 1:40 p.m.

On Vote 43: ministry operations, $843,349,000 (continued) .

S. Chandra Herbert: It’s been a few years since I’ve worked on the PavCo file, a little over three years. It’s good to be back. I’ve come back onto the file after my colleague the member for Vancouver–Point Grey.

[ Page 12524 ]

I’m going to ask a number of questions. I imagine time will run out, so I will put them on the record. I know the minister has been very good at getting answers brought back if they weren’t able to be provided immediately.

My practice in estimates is generally to focus on questions as opposed to speeches. I hope the minister agrees that that’s a more effective use of this time, as it is so limited.

The first question I’d like to ask is about PavCo’s roof budget. When the new roof was put on — quite a cost. The whole new roof project, $514 million — hundreds of millions more than originally estimated.

The government claimed the new roof would save taxpayers $100,000 a year in roof maintenance costs. When we filed a freedom of information for costs of roof maintenance, what we found is that costs actually tripled, according to the figures PavCo provided, going from, prior to the new roof, about $116,519 — that’s the figure I was provided — up to 2013-14 at $348,096.

Clearly, it doesn’t look like we’ve saved $100,000 a year in maintenance costs. That would suggest we would have had $16,519 in costs. Instead, we’ve more than tripled the cost.

My question to the minister would be why. Can he explain why, before the roof was put on, they promised $100,000 in savings, and in fact it looks like three times that amount is what’s being charged?

[1345]

Hon. T. Stone: I do look forward to the back-and-forth with the member with respect to PavCo. In terms of his opening question with respect to the roof costs, and specifically the hydro costs, he is correct that the hydro costs have gone up with the new retractable roof. I think it’s most important to say, however, that comparing the old fixed roof with the new retractable roof is a bit of comparing apples to oranges.

The hydro costs have gone up with the new roof, but that’s only half of the story. I think you have to look at the overall operational costs relating to the new roof in order to do a proper comparison. Under the old roof, steam-generated heat was actually vented through the roof. That’s not the case anymore with the retractable roof. So what we actually are realizing is significant savings from reduced steam costs.

In fact, the savings there is going to be more than $700,000, possibly higher, on an annual basis. The steam costs were projected to be about $300,000 this year; we think it’ll even be lower. It may be in the low $200,000 range, so that’s a significant decrease. Hydro may be up a little bit, but the costs of the steam will be down by at least $700,000. So on a net basis, the operating costs relating to the roof are much, much less with the new retractable roof than the old fixed roof.

I’m sure that members will have other questions, so I’ll just say this now. The new retractable roof — as the member knows well; it’s in his city — is a huge part of PavCo’s ability to attract the world-class events. It’s been made very clear to us that rugby sevens would likely not have been interested in coming to Vancouver if there wasn’t a retractable roof. The women’s world cup would certainly not have come. The MLS games, the men’s national soccer games, and so forth — these are world-class events which are coming to Vancouver, in part because we have a world-class facility that has a retractable roof.

S. Chandra Herbert: Thank you for talking about the hydro costs and the other savings and trying to find ways to house that.

I guess the question really is that the B.C. government claimed it would save $100,000 a year in maintenance costs. That was the claim put out to the public, in part to justify the large expense. What was that based on if, in fact, they are not comparable? And why would the government make such a claim if there’s no way you could actually compare the costs?

[1350]

Hon. T. Stone: Again, I’ll make this commitment to the member. We certainly would be willing to provide the member with a detailed

summary, as best we can, attempting to normalize the comparison that would need to be there to actually look at the fixed roof versus the retractable roof because they’re two very different realities.

Hydro costs — yes, they’re up a little bit. That’s also in part, by the way, because we actually have hosted more events than we had thought we would, which is good news. Likewise, we’ve had more requests to actually open the roof than we had projected, in part because we’ve been hosting more events than we had thought. In some respect, PavCo is a bit of a victim of its own success there in attracting so many more world-class events than they had previously thought.

The hydro costs are up a little bit. But, again, the savings on the steam is significant. There are savings with respect to the removal of the fans that, again, we’ll do our best to try and provide as close to an apples-to-apples comparison for the member.

The last thing I’ll say, which I’ve sort of woven through my comments already, is that obviously the member, I’m sure, would agree that the more events you host and the more requests you get to open that roof, the more your costs are going to be. Those are offset, though, by higher revenue, which is obviously what we’re all striving to achieve at PavCo and B.C. Place.

S. Chandra Herbert: Thank you to the minister. These quotes that I’m pulling from go back to prior to the minister’s time in the chair, to a time when we had a minister who claimed that B.C. Place would pay for itself, which, clearly, it never has — in the sense of direct payments for itself. Certainly, we see that now with the level of debt. Those go back to a different day where there were claims

[ Page 12525 ]

that the budget would be $365 million. Of course, it was much, much higher.

I won’t belabour the point using what the government used to say in press releases versus what it says today, but I would really appreciate that detailed breakdown that the minister has committed to getting to me. Comparing the costs over time would be very helpful.

I wanted to next ask…. One of the other issues that, of course, was raised pretty much from the first day that the B.C. Place new roof opened or the new stadium opened is the question of roof leaks on fans, leaks on empty seating areas, having to compensate fans with beer and with various other things.

[1355]

Just curious, in the 2015-2016 year, if PavCo can provide me with the number of times fans had to be moved due to leaks and if there was any cost to compensating them, whether or not it was through beers or foot-longs.

Hon. T. Stone: I’ve canvassed this with staff, and to the best of staff’s knowledge, for this last fiscal year, April 1, 2015, forward, it does not seem, in anyone’s recollection, that there have been any leaks that required any fan moves.

There was the previous year, which related to maintenance work that was being undertaken on the roof. That was canvassed quite thoroughly in estimates last year. But again — not any recollection among staff of any similar situations over the previous 12 months.

That being said, staff are going to do another scan, and if, indeed, there have been any of the situations that the member is inquiring about in the last 12 months, we’ll certainly let the member know.

S. Chandra Herbert: The other question — I should be more specific. Were there any leaks at all in the last fiscal?

[1400]

Hon. T. Stone: I’ll just say: look at my previous answer. Yeah, same question, same answer. Staff are not aware of any that immediately come to mind but are going to endeavour to do a quick scan, again, and we’ll get back to the member.

S. Chandra Herbert: My family used to have a car with a sunroof, which leaked incessantly, so I look at the B.C. Place roof — open, shut. I always thought it would have problems like this. So it’s good if there were no leaks at all last year. That’s quite a change.

I’m curious. There seems to be a revenue spike in the total revenue for PavCo in 2018. It seems to drop in 2016, from $116 million to $111 million, in 2017 to $108 million, and then it bumps up to $124 million. Is that due to land sales, or…? Where does that revenue come from in the “other revenues” budget line?

Hon. T. Stone: The spike, as the member put it, in revenue in the service plan for ’18-19 over ’17-18 is the anticipated or projected revenues from the disposition of land and, specifically, site 10C.

S. Chandra Herbert: I’ve heard various figures for what the valuation of site 10C is. I know that at one point, PavCo was talking about leasing it instead of selling it. What is the current market valuation for the site?

Obviously, when you have housing prices in Vancouver shooting up 25 percent or something like that in a few months’ time, holding on to land can be a very good idea as opposed to disposing of it, potentially, depending on what the market’s up to. I’m just curious what the current value of the land is, according to B.C. Assessment, and what does PavCo think it’s worth at this stage?

[1405]

Hon. T. Stone: The roughly $15 million number that is reflected in the service plan is really just a number that we’ve been carrying forward that reflects the last valuation that was done.

As the member knows well, there’s a tremendous amount of activity around this site. PavCo is actively engaged with the city of Vancouver. MOTI is in those discussions as well, about working together with respect to the viaducts and the plan, the vision that the city has.

We’re certainly aware of the number of moving parts that are currently in play that relate to this site that are likely forces that will drive the value up somewhat. At the end of the day, PavCo’s objective will be to absolutely maximize the value of that land through either a sale or, potentially, a lease. We’ve notionally allocated this for the ’18-19 year, but even that time frame is still somewhat flexible because of all the moving parts.

S. Chandra Herbert: Would it be fair to say, then, that PavCo is in no rush to divest itself of the land and, really, is waiting until the city acts and a bunch of the other activity comes through, and that’s why it’s being held out to 2018?

Hon. T. Stone: PavCo is not rushing. PavCo is not slow-walking it. It’s a critical asset that PavCo has at the moment that is likely increasing in value every day. We are going to want to make sure that we maximize the value of that asset for taxpayers, whichever way we decide to go with it.

I would also, again, reiterate that PavCo has been and will continue to be a good neighbour and, therefore, is actively engaged in conversations with the city of Vancouver as part of the broader viaduct-removal aspiration that the city has.

Again, there are a lot of moving parts. PavCo is not sitting back waiting or waiting to hear from the city or hear from MOTI. PavCo is at the table and actively engaged.

[1410]

[ Page 12526 ]

S. Chandra Herbert: I ask the question because…. I’ve been asking about site 10C since, probably, 2009 in estimate processes. Just a slight question. Really, I’m not urging you to sell it early, since I know land sales in my own community have gone from $16 million to $60 million in the period of a few months with one particular parcel of land that I’m thinking of.

I think the question of holding it at $15 million over a number of years…. I’m not quite sure why PavCo hasn’t updated the figure over time. But I’ll leave it at that for now because we don’t have much time here. Maybe that would be a question just for a written response, if I could — why that figure hasn’t been updated with market evaluations. That would be great.

I understand…. Looking at the capital plan for PavCo, it looks like we’re seeing…. In 2015, the capital plan is about $5.7 million. This jumps, in 2016, to about $15 million before decreasing to $10 million for both 2017 and 2018. That’s a substantial increase for all of those years. Just curious. What is that for? I had been told, when the roof project was complete, that all the major capital works were done and that they didn’t think there’d be any need for major expenditures like this.

Hon. T. Stone: I would point out, for the member’s benefit, that the total value of the assets that PavCo manages, that being the convention centre and B.C. Place, is about $2 billion.

[1415]

When you actually look at these numbers in and of themselves, the sustaining capital expenditures, certainly, in ’15-16 of $5.7 million, ramping up to $14 million in ’16-17 and then $10 million…. These seem like big numbers in and of themselves. But on $2 billion worth of assets, they’re actually not significant numbers.

They really are all about routine capital expenditures. These would be maintaining and upgrading electrical systems, ventilation, fans, plumbing, washrooms, the security system, point of sale — all of the components that need to be in good working order for these assets to do the job that they need to do. So really just routine capital expenditures, no different than buying a brand-new car. You’re going to incur a little bit of operations maintenance, perhaps, in that first year after, and those costs will begin to escalate over time as the asset gets a bit older.

The Vancouver Convention Centre, by the way, is six to seven years old. It seems like it was opened yesterday, but it is six to seven years old. So there’s a bit more routine capital maintenance that has to be done at VCC as well.

S. Chandra Herbert: No, I wouldn’t want to suggest that you shouldn’t do routine maintenance. I think the last time we did that, the B.C. Place roof tore open, and that did not look so good on the city or the government. Certainly, maintenance is important.

I wanted to request, if it’s possible, just to get a bit of a breakdown of what those millions of dollars are roughly going to. It doesn’t have to be down to the minute. I know some of these systems may not have been purchased or even really thought of yet. But you imagine, in order to get approval of a couple of million-dollar increases, PavCo staff had to make the case for what those were.

Is it possible, after this, for the minister to be able to get me a listing of — with those out-years — what it looks like those millions of dollars are going towards?

Hon. T. Stone: We’d be happy to provide a breakdown. Again, for the member’s benefit, the routine capital expenditures are typically focused on aging infrastructure and equipment repair, upgrade and replacement. I mentioned a few of the items before: plumbing and washrooms, the HVAC system, the electrical system, security, the point-of-sale system, often some components that are information technology–related or relate to the stadium vision equipment.

We’ll follow up with the member, with a little bit more detail on that.

S. Chandra Herbert: The minister mentioned washrooms, so it just twigged something in my head. No, I don’t need to go, hon. Members. But I wanted to ask….

Vancouver’s park board system, whether it be community centres, pools, rinks — facilities somewhat similar to B.C. Place…. They passed resolutions. They came up with a plan to ensure that washrooms were accessible for everybody, including transgender people, who sometimes face challenges. They’ve moved to call for gender-neutral washrooms, or at least a few gender-neutral washrooms. We’re seeing that in a number of schools. I know that Madam Chair…. One of the schools in her riding has gone this way.

Does PavCo have any plans to follow along with what seems to be happening across North America and, indeed, the world to ensure we have more inclusive bathrooms that don’t put people at risk of, sometimes, assumptions or discrimination?

[1420]

Hon. T. Stone: I’m advised by staff that there actually are gender-neutral washrooms at both VCC and B.C. Place. There are gender-neutral washrooms and family washrooms, which, obviously, could be used as well. They’re private.

Again, we can provide a bit more information to the member as to exactly where in the buildings and how many. But I’m pleased to say that we actually do have gender-neutral washrooms at both of our facilities at PavCo.

S. Chandra Herbert: Thank you. I did not know that. We’ll see, but yeah, some more information would be good.

[ Page 12527 ]

As well, I know folks would be interested — I know who are interested — in these questions and what kinds of procedures might be followed to ensure, say, security or other staff are aware or educated on these issues so that there are no assumptions made and people aren’t forced into a washroom which might not be to their gender just because of what they look like. If that’s possible to provide after the fact, that would be great — what sort of training is provided.

Mr. Howard Crosley, back, I believe, when…. Anyways, I’ve got a quote here suggesting that we would be seeing an increase of about $40 million a year in revenue for B.C. Place once we had the new roof put on.

Not immediately — he didn’t say that. But I’m just curious. Since the roof opened, what’s been the trajectory for revenue increases? The minister said the stadium is being booked a lot more often. Are we close to that $40 million figure now? It’s been about six years or a little bit less, five years, since the new roof opened.

[1425]

Hon. T. Stone: I can’t speak to the numbers that the member has quoted in his question. But what I can speak to is the revenue trajectory that we have seen over the last three to four years as more and more events have been successfully attracted to the Vancouver Convention Centre. When you think of the TED Conference and all of the huge events at VCC, as well as the banner year that PavCo has just had in B.C. Place with Women’s World Cup and FIFA men’s matches, the rugby sevens, and so forth….

[D. Plecas in the chair.]

In fiscal ’12-13, total revenue was about $106 million. Last year it was $111 million. These are just right out of the service plan, the member will note. The forecast for ’15-16 is $116 million and change. We don’t have the final numbers yet, in terms of the actual. We will as part of public accounts.

The expectation at PavCo, because of the spectacular success of some of these huge world-class events, is that we’re going to see a total revenue number at PavCo well in excess of the forecast of $116 million. It gives me at least some level of confidence that the work that PavCo has undertaken to attract the best possible events it can in both of its facilities is really working.

[1430]

I’m sure the member would agree with me that B.C. Place really is becoming quickly the finest sports facility, I think, in the country. When you think of the quality of…. FIFA World Cup is not going to Toronto. The rugby sevens are in Vancouver, not Toronto. There are all kinds of other events that are on the horizon, as well, that we’ll be excited to announce, that will be in Vancouver, not Toronto or Montreal or Calgary. I think we’re very proud of that.

Obviously, the bottom line matters, and I’m pleased that we’re seeing good progress on both the revenue side of things as well as the bottom line.

S. Chandra Herbert: There had been a sustained argument that PavCo paid too much for its artificial turf for FIFA. The argument suggested that there were other products that could have been used that had also been approved by FIFA. They’d been used in Edmonton’s Commonwealth Stadium. I think it was $500,000 cheaper.

Just curious if the minister could discuss. Has he looked into that question of procurement? Some questions of: was the procurement document set up in such a way that only one bidder could be chosen? The highest bidder, as it turned out.

Obviously, we want to make sure we get the best value for money. In this case, if you look at Edmonton’s Commonwealth Stadium versus what we have at B.C. Place…. I think it is a legitimate question — of if we did — given that it looks like they saved about half a million dollars at their stadium, with their field, which is also, I understand it, to be approved by FIFA.

[1435]

Hon. T. Stone: With respect to the turf, the member is quite right. There was a competitive RFP that was on B.C. Bid. There were four responses to that RFP. The successful proponent was, at the end of the day, the only one of the four proponents that actually met the mandatory requirements which were part of the request for proposals. The numbers are all out there. It was $1.3 million that was the total cost, at the end of the day, versus less expensive options.

However, part of the mandatory requirement involved the fact that the infill material for the turf that PavCo wanted to move forward with was made from 100 percent virgin plastic material, which was designed and tested to international standards for health and safety, rather than what was more common in other stadiums — like the example he cited with Edmonton, which is a cheaper alternative. It’s a crumb tire rubber, which is actually currently the subject of a number of health concerns in the United States. So there was that consideration.

The other mandatory requirement was that the provider of the turf, the proponent, would have to ensure that their product was compatible with the elastic e-layer which PavCo already had in place, wh