1987 Legislative Session: 1st Session, 34th 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)

TUESDAY, MAY 19, 1987

Afternoon Sitting

[ Page

1209 ]

CONTENTS

Routine Proceedings

Oral Questions

Native education funding. Mr. Harcourt –– 1209

Visible minorities on police forces. Mr. Sihota –– 1209

Casino gambling. Mr. Blencoe –– 1210

Okanagan building component plant. Mr. Williams –– 1210

Access to transportation for special-needs children. Ms. A. Hagen –– 1211

South Moresby national park reserve. Mr. Kempf –– 1211

Expropriation Act (Bill 22). Second reading

Hon. B.R. Smith –– 1211

Mr. Sihota –– 1213

Hon. B.R. Smith –– 1218

Insurance (Motor Vehicle) Amendment Act, 1987 (Bill 9). Second reading

Hon. L. Hanson –– 1219

Mr. Lovick –– 1219

Mr. D'Arcy –– 1220

Mr. Sihota –– 1220

Hon. L. Hanson –– 1221

Municipal Amendment Act (No. 1), 1987 (Bill 30). Second reading

Hon. Mrs. Johnston –– 1221

Mr. Blencoe –– 1222

Hon. Mrs. Johnston –– 1223

Teaching Profession Act (Bill 20). Report –– 1223

Mr. Jones

Hon. Mr. Brummet

Third reading

Legal Profession Act (Bill 25). Second reading

Hon. B.R. Smith –– 1224

Mr. Sihota –– 1226

Hon. Mr. Strachan –– 1229

Hon. B.R. Smith –– 1229

Committee of Supply: Ministry of Attorney-General estimates. (Hon. B.R. Smith)

On vote 12: minister's office –– 1229

Hon. B.R. Smith

Mr. Sihota

Mr. Cashore

The House met at 2:08 p.m.

Prayers.

HON. MR. STRACHAN :

Mr. Speaker, in the gallery today we are indeed privileged to have with

us students and the teacher in charge from Star of the Sea School in

Astoria, Oregon. These are grade 8 students, and they're here to study

our parliamentary system and see Victoria and Vancouver. Would the

House please give them a nice warm British Columbian and Canadian

welcome.

MR. BLENCOE : Mr. Speaker, the

Attorney-General (Hon. B.R. Smith) is not in the House today, but it

gives me great pleasure to introduce, from the great riding of Oak Bay,

Milnor Alexander, who ran for the New Democratic Party in the last

provincial election.

AN HON. MEMBER : How did she do?

MR. BLENCOE : Just wait.

Would the House please make Milnor Alexander welcome.

HON. MR. DUECK :

Mr. Speaker, in the precincts today are members of the College of

Pharmacists of British Columbia: Norman Thomas, registrar; David

Henderson, president; Judy Kotow, vice-president; and Marvin Nider,

councillor. Would the House please make them welcome.

MR. LOVICK :

Mr. Speaker, I just noticed two guests in the precincts today from the

constituency of Cowichan-Malahat, and I would like the members to join

me in welcoming Miss Bonnie Oldershaw and Mr. John Waldin — former students of mine, as it happens.

MR. JONES :

Mr. Speaker, it's my privilege today to introduce to the House two

prominent British Columbians who have been watching the Bill 20 debate

very closely. The first is Mike Dumler, president of the B.C.

chapter

of the Canadian Union of Public Employees, which has something like

10,000 members who are going to be affected by this legislation. A

couple of weeks ago I had the honour of introducing the president of

every teachers' federation in this country except our own, and today I

would like to introduce to the House — and would hope the House would

make both these people very welcome — Elsie McMurphy, president of the

B.C. Teachers' Federation.

Oral Questions

NATIVE EDUCATION FUNDING

MR. HARCOURF : Mr. Speaker, I'd like to ask the Minister of Intergovernmental

Relations about the cut in funding for native education. Recently the federal

government, we understand, decided to take away $125,000 in funding to the

Urban Native Indian Education Centre in Vancouver. This is a centre which assists

native students to prepare for college programs and the workplace. Given the

proven effectiveness of the programs at the centre, has the provincial government

or the minister made any representations to the federal government in opposition

to this loss of very important funding?

HON. MR. ROGERS : Yes.

MR. HARCOURT : Supplementary on that. Could the minister let the Legislature know exactly what the representations were?

HON. MR. ROGERS :

That question could take some time, but in essence there is the whole

matter of the federal payment of education funding and the master

tuition agreement. In discussing the master tuition agreement, we have

also raised other educational issues with the federal minister

responsible, and I have yet to receive a formal reply to my requests

for information on the matter.

MR. HARCOURT : A new

question which again involves education of natives. We understand that

the federal Department of Indian Affairs has recently decided to no

longer fund post-secondary education for status Indians who have been

accepted for full-time study. They said that the reason is that there

aren't sufficient funds for this program. Has the minister made any

representations as part of his discussions with the federal government

on this matter?

HON. MR. ROGERS : It's more of a

global question, because all of the aspects of native peoples'

education in the province, regardless of whether it's K to 12 or

post-secondary, are included in my discussions with the federal

minister.

HON. MR. HARCOURT : Supplementary on that.

Does the minister anticipate when he will be receiving a response, and

would he be prepared to table it in this House as soon as he has that

information?

HON. MR. ROGERS : I can't anticipate

when I'll get a reply to that letter. But I think it's important that

if a minister writes a letter to a federal minister and is planning to

table the reply and make it public, then you have to let them know in

advance when you're writing them that letter. I would anticipate being

able to bring to this House the substance of his remarks to me, but I

don't think it would be appropriate for me to table the letter that I

received from the minister without having advised him in advance that I

was planning on tabling his letter.

VISIBLE MINORITIES ON POLICE FORCES

MR. SIHOTA :

A question to the Attorney-General, who I see is now in the House. I've

been advised that the Canadian Association of Chiefs of Police is

concerned about the number of visible minorities represented on

Canadian police forces. Could the Attorney-General please advise this

House what the government is doing to better B.C.'s track record in

this regard?

HON. B.R. SMITH : We take quite

seriously the need to attract more minority members into all of our

police forces, both our local forces and the RCMP. I must say,

recruitment has been disappointing in some areas of that community. It

hasn't been for lack of trying; it has been difficult to get people to

offer themselves. I am quite frankly far more concerned with the need

to do that, Mr. Member, than I am

[ Page 1210 ]

with

what the Solicitor-General perceives as a growing need to up the

bilingual allotment in the RCM Police. That doesn't help us much in

British Columbia. It may be of assistance in Manitoba and the

Maritimes; RCM Police don't police Quebec, of course.

have a real problem here in recruiting policemen from the native

community and the Asian community, and that's where we need help. Any

assistance or ideas that he can offer would be very well received on

this side, I can tell you.

[2:15]

MR. SIHOTA : And women, too.

a supplemental, Mr. Speaker, the question simply is this: the

Attorney-General indicates that he's disappointed at the level of

response in this regard. Will he advise this House whether or not he

has taken any specific steps to study why that response has been so

disappointing?

HON. B.R. SMITH : I've certainly made

representations to the Solicitor-General about the RCM Police

recruitment and our own policing here in our local police forces. Our

branch has made strong representations to try to improve the number of

visible minorities. I didn't include women in that because I believe

they're a majority of our population, but we have also been seeking

women recruits. We've probably done a little better in that regard than

we have with some of the visible minorities.

CASINO GAMBLING

MR. BLENCOE :

I have a question for the Minister of Municipal Affairs. The government

of which she is a member has decided to do a major expansion of

gambling casinos in British Columbia; therefore the cost to local

government in terms of increased policing has the potential to be

horrendous. I'm wondering — and my question to the minister is — what

studies have been done with regard to increased costs of policing to

municipalities that will result from the government's expansion of

gambling in this province.

HON. MRS. JOHNSTON : I'm

not aware of a major expansion, but to the best of my knowledge, at

least within my ministry, there have been no studies done.

MR. BLENCOE :

A question to the Premier of this province who is, along with the

Attorney-General (Hon. B.R. Smith), the architect of expanding gambling

casinos in the province of British Columbia. Municipalities, mayors and

aldermen and those who have to pay for local costs of policing are

deeply concerned about your government's move into gambling casinos and

expansion. Police chiefs are concerned about the increased costs and

moving away from community policing to deal with prevention.

question to the Premier is: is this government prepared to meet those

increased policing costs to deal with the potential for organized crime

and to get in touch with the potential for horrendous policing costs in

the province of British Columbia?

HON. MR. VANDER ZALM :

The member makes a number of suppositions that I can't comment on. I

would ask that he ask the question of the Attorney-General.

MR. BLENCOE :

Well, I'll try to get an answer from the Attorney-General. This

government is moving ahead on gambling casinos in the province of

British Columbia. Police chiefs have already indicated their concerns

with criminal activities. My question to the Attorney-General: what is

he prepared to do to ensure that municipalities don't pay the increased

policing costs, and what studies are being done in the province of

British Columbia to deal with this growing concern?

HON. B.R. SMITH :

The assumptions and inferences contained in the question haven't been

proved at all in the asking of it a second time, but nevertheless I

will answer the question as best I can. The only expansion of gaming in

this province that has taken place has been on an international cruise

ship, and to my knowledge that has not involved policing by local and

municipal police forces. Also, that gaming has been run by the province

and has not provided any risks or difficulties with operators, and the

experience with it in the very short time that it's been operating —

two weeks — has been one of considerable approval and law and order.

I don't think that we're going to have these horror stories which the

member opposite seems to be almost wishing for so that he can point to

them. He's wishing for these horror stories. He keeps talking about

Atlantic City north and Las Vegas north. That's not the intention of

this government, now or ever.

MR. BLENCOE :

A last

supplementary to the Attorney-General. Will the minister give the

assurance of this House that if policing costs do mount — and there are

indications and concerns already with policing departments —

if those costs rise dramatically, will the province of British Columbia

cover those increased policing costs for local government?

OKANAGAN BUILDING COMPONENT PLANT

MR. WILLIAMS : To the Premier. On his return from the filming of Sinterklaas

in February, I guess it was, in Amsterdam, he indicated that there

would be.... He tantalized the unemployed of the Okanagan with the

thoughts of a building component plant that might be worth some $10

million. Can the Premier report progress with respect to that plan?

HON. MR. VANDER ZALM :

Mr. Speaker, I don't know what the amount of the proposal is exactly.

Certainly I don't recall the figure that has been quoted. However,

there are a number of economic development proposals that we're

pursuing right now. I can't give you the status of each of them on a

daily basis, but I assure you that we keep in reasonably close contact,

to make sure that if the opportunity is there to see it proceed

quickly, it will be done. We're very pleased with the progress made to

date.

MR. WILLIAMS : Supplementary. The date of that

announcement was February 16. Could the Premier advise us of the name

of the firm involved that he referred to at that time?

HON. MR. VANDER ZALM : I don't have it just now, but I'll certainly get it.

[ Page 1211 ]

MR. WILLIAMS : Supplementary, Mr. Speaker. Would the Premier be willing to table all correspondence and studies related to the proposal?

HON. MR. VANDER ZALM : No.

ACCESS TO TRANSPORTATION FOR

SPECIAL NEEDS CHILDREN

MS. A. HAGEN :

My question is to the Minister of Municipal Affairs. Many

developmentally delayed preschool children in the lower mainland are

unable to attend early development preschool classes and therapy

without special transportation available to them. Can the minister

assure us that B.C. Transit has as its policy the provision of such

services to all such special needs children in the region?

HON. MRS. JOHNSTON :

I would think that that information could probably be obtained from the

Vancouver Regional Transit Commission, and I would be pleased to

receive a response for you, Madam Member.

MS. A. HAGEN :

Supplementary on that same matter to the minister. If there is any

problem with the policy that B.C. Transit has regarding these children,

could the minister assure us that she will take action in regard to a

change in policy, in order to increase access for these children?

HON. MRS. JOHNSTON :

Mr. Speaker, I think that would be referring to future policy. Perhaps

it would be best if we waited until we received the report.

MS. A. HAGEN :

I also have a question for the Minister of Social Services and Housing.

Services for special needs children are funded by the Social Services

ministry. Can the minister tell us what action he has taken in his

ministry to ensure that there is improved access to the special

programs for these developmentally delayed children?

HON. MR. RICHMOND :

Well, Mr. Speaker, just to the extent that in my ministry we work very

closely with B.C. Transit to make sure that there is transportation for

all such people, as they do fall under the purview of this ministry. I

don't see any change to that policy in the future.

MS. A. HAGEN :

Mr. Speaker, can the minister assure us, then, if there are children

who are not in receipt of such services at the present time, that

through contact with their local social services and housing offices,

transportation services would be available to those children?

HON. MR. RICHMOND :

Mr. Speaker, I would give this undertaking to the member and to anyone:

if they require special transportation, be in touch with my ministry,

and we will deal with each case on an individual basis.

the best of my knowledge — and I have repeated this many times in this

House — we never turn anyone away from this ministry who is in need.

SOUTH MORESBY NATIONAL PARK RESERVE

MR. KEMPF :

Mr. Speaker, a question to the Premier. Now that British Columbia has

capitulated to eastern interests with respect to South Moresby, and in

particular Lyell Island — against the wishes not only of the

majority of the people on the Queen Charlottes but I believe of the

majority of British Columbians — has the Premier decided where he will

be awarding Western Forest Products timber, in order that not only the

loggers on Lyell Island, but those who work in the plants and

operations supplied by the timber from Lyell, might continue to make a

living?

HON. MR. VANDER ZALM : Mr. Speaker,

negotiations are proceeding on behalf of British Columbia, on behalf of

Western Forest Products, on behalf of the logging operation, Frank

Beban, and also on behalf of the employees. I can't really comment

while these negotiations are proceeding.

MR. KEMPF : Supplementary, Mr. Speaker. Is the Premier not aware that

all of the annual allowable cut in British Columbia is already committed? Has

the Premier decided which forest company's annual allowable cut will be

reduced in order to provide Western Forest Products with the timber required?

HON. MR. VANDER ZALM : Mr. Speaker, negotiations are proceeding, and that is certainly a part of the negotiations.

Orders of the Day

HON. MR. STRACHAN :

At the outset, Mr. Speaker, the Select Standing Committee on Public

Accounts is meeting today at 3:30 to discuss organization and strategy

–– I would ask leave of the House for that committee to sit while the

House is sitting.

Leave granted.

HON. MR. STRACHAN : Second reading of Bill 22, Mr. Speaker.

EXPROPRIATION ACT

HON. B.R. SMITH :

It's a pleasure to rise and move second reading of the expropriation

bill. This bill is probably one of the most progressive pieces of

legislation of its kind in the country. At committee stage we will be

making a few changes to the bill which will, I think, improve it even

more. The bill provides for protection for the average citizen against

the taking of private property without reasonable notice and fair

compensation.

It may be hard to believe, Mr. Speaker, but

legislation passed in the mid-nineteenth century. At the moment there

are more than 30 B.C. laws that provide for some form of expropriation.

In this bill we're trying to end the chaos, to modernize the variety of

outdated and inconsistent procedures and compensation principles, and

to have a one-stop shop for expropriation. Some might say that the

protections and procedures contained in the legislation will make the

job of expropriators more difficult. If this is the case, then I think

that's a good result, because for far too long the scales of

bureaucratic justice have been tipped in favour of the acquiring

authority. This legislation will ensure that the scales are now

balanced a lot better and that property owners whose land, through no

fault of their own, is within the scope of a public project will be

assured of fair and equitable treatment.

[ Page 1212 ]

The

bill establishes a uniform process to ensure that there will be an

elected, politically responsible authority to approve proposed

expropriations and that there is a process to establish fair

compensation for those whose land has been confiscated. I use that word

"confiscated" deliberately, Mr. Speaker, for that goes to the very

heart of the matter. We will settle, of course, 85, 95 or even 99

percent of these cases without resorting to expropriation. But

expropriation is still confiscation, and this is why there has to be a

procedure that ensures not only the appearance but the reality of fair

process, which is so crucial to the fairness of a government that

wishes to develop the province and take land compulsorily, as it has to

do occasionally.

When discussion proposals for a new

Expropriation Act were released in August 1982, the government was

deluged with letters of support and commendation from both private

citizens and interest groups. About 120 responses were received,

including a number of very lengthy briefs. All of these had one thing

in common: they indicated support in principle for introducing a new

expropriation bill.

Mr. Speaker, I would like to take this

opportunity to thank all those individuals and groups for the

tremendous amount of thought and work that went into the preparation of

their briefs and the good quality of their material. Their suggestions

have greatly assisted us in ensuring that this legislation is the

finest expropriation legislation in the country.

[2:30]

The

letters and briefs that we had came from a good cross-section of both

the public and private sectors. The common thread was an overwhelming

support for a new, understandable and fair expropriation law. I should

say that in developing the act before us, we have taken into account

the recommendations of the 1971 Law Reform Commission report on

expropriation and the Clyne report on expropriation, and we have

reviewed the expropriation laws in every other Canadian jurisdiction.

In its 1978 report on expropriation the Law Reform Commission of Canada

identified five guiding principles that it considered would be

essential to a fair act. Those were: equality of treatment, clarity and

these principles are embodied in this legislation.

This

legislation will ensure that all expropriations are approved by an

elected, politically accountable authority. Municipalities and school

boards will be held accountable for their expropriations under the act,

and the minister responsible for the administration of the government

legislation in other cases of expropriation. But the important thing is

that they won't go thirty different routes; they'll go one route, and

you can think of what that means to municipalities, school districts

and local authorities who have been caught, just as innocent landowners

have, in the maze of expropriation law that has snarled this kind of

work.

As an added protection, the act will give the cabinet

the right to designate another minister as the approving authority,

should circumstances warrant that. In those few instances where

agreement to purchase land required for public purposes can't be

reached and expropriation is required to serve the owner, the

expropriator will be required to serve the owner of the land with a

notice of intention to expropriate and a copy of the Expropriation Act.

Additionally, the expropriator will have to post a sign on the land to

be expropriated indicating the contents of the notice, and must file

the notice in the land registry office. Except for linear developments,

such as highways and hydro lines, within 30 days of receiving the

notice any owner of land affected by the expropriation is entitled to

request an inquiry by an officer appointed by the new Expropriation

Compensation Board. In the case of a linear development, considerable

planning has already taken place on the route selection, and in many

cases there are no alternative routes. In addition, this lengthy

planning process has already provided opportunities for public input.

It would be impractical and expensive to provide for pre-expropriation

inquiry for those linear developments. But in all other cases these

requirements will be met in all but the most extraordinary case of

urgency or compelling public interest. In those special circumstances,

the expropriator may apply to the Lieutenant-Governor-in-Council to

dispense with the public inquiry; but those are very limited in their

scope.

To expedite the process, the expropriating authority

is also able to initiate the inquiry procedure and may do so prior to

the serving of an expropriation notice. Next, where the Expropriation

Compensation Board grants a request for an inquiry, then a public

hearing will be held to examine alternative sites or changes in the

amount of land being taken. The inquiry officer then has 30 days

following the first day of hearing to submit his report and

recommendations to the approving authority. That authority will have

the power to approve, modify or disapprove of the expropriation.

Where

an expropriation has been approved or approved with modifications, the

expropriator — and this is probably one of the most important new

features of this legislation that distinguishes it from other

jurisdictions —

has to make an advance payment to the owner of the land being

expropriated within 21 days of the approval. That advance payment has

to closely approximate the market value of the property plus damages

for disturbance. The advance payment provisions also apply to owners

who have agreed to transfer their land to an expropriating authority:

that is, where there has been no expropriation but it has been done by

agreement and they don't agree on the amount of the compensation

offered.

These advance payment provisions are a most

important innovation, because they put the owner in funds so that he

can then take effective measures to obtain substitute premises. The

payment does not in any way prejudice his right to have the amount of

compensation determined by the Expropriation Compensation Board. So

it's full, upfront payment in advance of the appraised market value of

that land, and also damages for disturbance. That upfront money can be

drawn and used by the owner. It doesn't have to sit in trust or in a

court registrar's account; it can be used by him. Now it's true that if

he asks for a hearing and he ends up getting less, he may have to pay

some money back. But we're taking the position that the authority that

expropriates the land should pay for its use, and the owner should not

be inconvenienced by the delays of process.

Once the

advance payment has been made, the owner has one year to make an

application to the Expropriation Compensation Board to determine

compensation. The board, which will be an independent quasi-judicial

body, will have the full power to determine the compensation to be paid

in relation to a wide variety of matters, including reasonable

disturbance damages, damages for business loss, damages caused by an

expropriating authority in the exercise of a right of entry where no

expropriation results, and damages from partial taking and for

injurious affection.

This legislation is designed to encourage negotiation and settlement between the parties at every step of the way. But

[ Page 1213 ]

also

it must and does provide ample protection for the property owner for

recourse to the Expropriation Compensation Board where the owner feels

that expropriators are acting unreasonably.

The

compensation provisions of this act have been founded upon one basic

principle: that an expropriated owner is entitled to economic

reinstatement; that is, he is entitled to be put back in the same

economic position that he was in prior to the expropriation. The basic

formula for compensation is that of market value of the interest, plus

reasonable damages for disturbance unless the owner chooses to have his

property value at its highest and best use.

Disturbance

damages are money which enables the owner to relocate without economic

costs, to re-establish his business or farm. Broadly speaking, they

consist of the reasonable costs or expenses and the financial losses

directly attributable to the expropriation, as well as the reasonable

cost of relocating on other land, so that where an owner has been

carrying on business on the expropriated land and the board determines

it's not feasible for him to relocate his business, then the board can

include in the amount of compensation an additional amount to reflect

the value of the goodwill of the business. Or when a church or other

like property for which there isn't any great demand in the marketplace

finds itself expropriated, then the owners of that property have the

option of choosing between having compensation based on market value

plus disturbance damage or, where the intent is to relocate and

continue with the same use, to have it based on the costs of building a

new church or school. There's a replacement cost option in those cases.

Tenants

are also entitled to compensation consisting of both their reasonable

moving costs and an amount equivalent to three months' rent.

Additionally, disturbance damages for lessees are provided for. Perhaps

more importantly, where the expropriated land includes the owner's

principal residence, then the owner is entitled to an additional amount

consisting of 5 percent of the market value of that land, and this 5

percent allowance to the owner of a principal residence on expropriated

lands is intended to compensate for the uprooting of the homeowner, the

expenditure of time and effort in finding a new home and the many

miscellaneous small expenses that might be claimed under the additional

head of disturbance damage. In addition to compensation for land taken,

an owner will be, in most if not all with advanced payment provisions,

entitled to claim reasonable legal appraisal and other costs incurred

by reason of either the inquiry or the compensation hearing.

all, this legislation is a model of how fair, equitable, and just

expropriation proceedings can be. No one wants to have their land

expropriated, but in those few instances where the public interest

demands it, the owner will now be assured of being dealt with fairly

and quickly, and he will be fully compensated.

I should

say that we'll be making one technical amendment to

section 17(2) of

the bill in committee to make it clear that advanced payments are

required where the expropriation is for a linear development. Also I

will be making some modification to the powers to override the hearing

process contained in

section 5 of the act to further curtail those and

limit them to undue delay. Those are both matters that I think my

friend the opposition critic will be pleased to hear me state in the

House. I can formally make those amendments in committee.

I'm

very proud of this bill, Mr. Speaker, and grateful to all those people

in government who produced it and who worked on it over many years,

including Mr. Gardom, who was the minister who took it forward in 1982

as a green paper and who sponsored it, and including also many

officials in my ministry and the Department of Highways who worked long

and hard to find a process in legislation that both would be fair to

the public and allow government to do the major tasks of linear

development that are required.

I look

forward to the support of the opposition for the general principles of

this bill — as I'm sure I will have, because they have been quite

constructive in their response to it.

I have the honour, then, to move that the bill be now read a second time.

MR. SIHOTA :

Mr. Speaker, the Attorney-General is quite correct in saying that it

was quite some time ago that the green paper was put out by Mr. Gardom,

and it's interesting to note that — with one exception, which I'll talk about a little bit later on —

there has not been a substantial deviation from the act which Mr.

Gardom introduced back in 1982 and which was the subject of numerous

submissions from various interested groups in society.

Before

I go into that one exception and some of the other concerns that we on

this side of the House have about this legislation, let me right off

the bat spell out in clear terms that I have of course spoken publicly

about some escape hatches as I saw them in the legislation, and some

flaws, and I'm certainly pleased to hear that the Attorney-General

intends to introduce amendments to deal with the concerns that I've

publicly talked about. I'm going to put those concerns on the record in

a few minutes, and I will say at the outset that we will support the

legislation at this stage, pending review of the amendments that will

be forthcoming at committee stage, and then we'll take another look at

the legislation at that time.

I have with me a copy of

the report that the former Attorney-General, Mr. Gardom, prepared in

1982 along with the draft legislation, and I indicated earlier on that

there are some differences between that green paper and the legislation

that appears before us today — in particular, the introduction of the

clause numbered 9(2) which deals with linear development in the

province. As I read the proposed legislation which was tabled in 1982,

it did not under its

section 8 provide for an exemption for linear

development,

whereas under the current Bill 22 there is an exemption

for linear development. It does cause us some concern on this side of

the House that developments such as highways, railways, hydro or

electric transmission or distribution lines, pipelines, sewage and

water or drainage lines are not covered for the purposes of the inquiry

provision of the legislation. Nor is it covered in terms of an advance

payment.

[2:45]

Of course, as we all know now, the advance payment provision within the legislation

was one of the features that the Attorney-General pointed to when introducing

this legislation, and clearly if land is being expropriated for those types

of developments we define in the legislation as linear developments, there will

be no advance payment. I appreciate again the comment of the Attorney-General

that that appears more to have been an oversight; hopefully that will be remedied

by the time we get to the committee stage and deal with the amendments at that

time, because I do think it is important that if we are to embrace in legislation

of this type

[ Page 1214 ]

the

principle of advance payment, then it ought to apply for those

provisions that are exempt from the inquiry; in other words, linear

development under

section 9(2). I think that that only stands to

reason when one looks at the basic tenor of this legislation. So I'm

relieved to see that that will be addressed, because obviously that

played a pivotal role in this side of the House coming to a

determination as to where it stood on the legislation.

Although

that is being remedied, the Attorney-General also mentioned in the

course of his presentation to this House that there may be some

amendments to

section 5, which is the power of the

Lieutenant-Governor-in-Council, or his cabinet, to dispense with

approval or inquiry, and it is that which causes us a fair bit of

concern.

Once again, I'm looking forward to the amendments

that may come down to see whether there is a substantial departure from

what appears to be the intent of

section 5(1), simply because it gives

the cabinet power, when there is the public interest or any other

special circumstances which are undefined under the legislation, to

dispense with approval and inquiry.

There

are a lot of

concerns about that. If one wanted to take the most negative reading on

the intent of cabinet, it could potentially allow cabinet to bypass the

approval and inquiry stage of the legislation for every type of

development that is being proposed. That, of course, would cause us

concern. For example, if B.C. Hydro felt that it was important to

situate a transmission site on a particular piece of property in this

province, and if it was deemed in the public interest that there would

be undue delay in going through with the inquiry process under the

legislation, then cabinet could dispense with that type of initial

hearing, which, in my mind, is very important. It is that initial

hearing that determines whether or not an alternative site is available

or, secondly, whether or not the quantum of land that is being

expropriated is necessary for the purposes of expropriation — in other

words, whether or not someone's property should be expropriated to a

lesser degree.

is my hope that

section 5 would be utilized only on occasion and in the

most serious of circumstances. The way in which the legislation is

drafted right now, and given a liberal

interpretation of the

legislation, it is quite possible that just about every application

could have the approval of cabinet, and therefore the question of the

approval and the inquiry would be dispensed with.

The

ombudsman, when he was making his report on the expropriation

legislation in 1983, took a look at

section 5. I think it would be

interesting at this point to quote a little of what the ombudsman had

to say, because it appears as if the ombudsman was in concert with the

opinion that I have, which is that that provision is too broadly

stated. In fact, I quote the ombudsman in his report of January 1983

when he says as follows:

"It is my opinion

that this power is too broadly stated and permits the cabinet to deny

an affected landowner his right to an inquiry in circumstances which

may too frequently be thought to exist. The right to an inquiry

constitutes, in the context of expropriation, the right of an

individual to put forward his side of the story before his property is

taken from him. Such a right is fundamental to our belief in fair

treatment and should not be set aside lightly.

"Not

only does the right to an inquiry protect the affected landowner, but

it provides yet another check on the potential abuse of power by

government. While there may be very rare occasions where an emergency

exists and time is of the essence, it is my view that the power of the

cabinet to dispense with an inquiry should be narrowly circumscribed in

the legislation. "Further, I would suggest that the exercise of powers

under

section 5 requires in each case a report to the Legislative

Assembly at its next sitting, thus ensuring that such decisions can be

debated by our elected representatives."

So that's what the

ombudsman had to say, and I must confess that his concerns with respect

section 5 do not deviate at all from my concerns with respect to

section 5. I think he is quite correct in saying that it may be often

that the government may well feel that an emergency exists and time is

of the essence and that there would be undue delay if the expropriation

process did not take place immediately,

whereas from a public interest

point of view that may not always be the case.

I can

certainly understand instances and can certainly think of situations

that have occurred in the past with other land legislation wherein

cabinet has taken a decision that overrides the concerns not only of

the affected landowner but of the community at large. Therefore I would

certainly be in agreement with the ombudsman and would look forward to

amendments to the legislation which the Attorney-General has now

promised which, I would hope, would narrowly circumscribe, in the words

of the ombudsman, that provision of the legislation.

We'll

look forward to those, and we'll look forward to seeing what, indeed,

is incorporated in those amendments so as to sort of narrow the very

gaping loophole that currently exists under

section 5 of the

legislation.

The other point is that in the event the

government chooses not to limit the powers of cabinet under

section 5,

and hence dispense with approval and inquiry, I think that the second

thrust of what the ombudsman was saying in his report of 1983 ought

then to be embraced. In any event, it ought to be embraced under either

circumstance — if those powers are reduced or indeed if those powers

are allowed to exist. There ought to be a full report to the

Legislative Assembly at its next sitting indicating the reasons for

cabinet's decision to bypass the approval and inquiry stage under the

legislation.

At that point there ought to be, of course, a

provision to allow those of us that are in this House to debate the

actions of cabinet. That is, once again, consistent with open

government, which I know the Premier promised over and over again

during the course of the last election campaign — which we believed —

and which I would hope the Premier would agree to under the provisions

of the Expropriation Act. I see the Premier is listening, so I will

repeat it.

The

Premier did promise open government. Under

section 5(1) of the Expropriation Act, there is a process whereby

cabinet can dispense with an inquiry for expropriation. The ombudsman,

in his report of January 1983, looking at the identical

section under

Mr. Gardom's legislation, said that if cabinet were to take that action

and dispense with an inquiry for expropriation purposes, there ought to

be a full report to the House at its next sitting, so that that report

and the decision of cabinet could be debated in the open confines of

the Legislature. Therefore, keeping in harmony with the Premier's

commitment to open government, I would anticipate an amendment —

because the Attorney-General has indicated that we will have amendments

section 5 —

[ Page 1215 ]

consistent with my view and the view of the ombudsman in January 1983.

I am

pleased to see that both the Premier and the Attorney-General are

currently talking, I would trust, about this matter, so that type of

amendment is forthcoming. I look forward to an assurance from both

individuals in that regard. I indeed feel comforted already watching

the conversation taking place across the floor, Mr. Speaker. So now

that I am blanketed by that comfort, I will move on to other concerns

that we on this side of the House have with the legislation in the form

that it sits in right now.

The

Attorney-General, during the

course of his introduction of the legislation, if I heard him

correctly. . . . And if I did, I think we both agree on this point. The

vast number . . . . I think about 95 percent of these types of matters

are settled; hence there is seldom a need for a tribunal, whether it is

the board or the courts, to deal with the question of appropriate

compensation. In 95 percent of the cases, if not more, the parties —

the government agency that is expropriating the property and indeed the

individual who is losing the property —

have the opportunity to arrive at a deal that they can live with, that

places an appropriate value on the land and compensates for loss of

business income and so on.

Section 3 of the legislation is

one that deals with those types of situations. It deals with situations

where indeed the owner agrees to transfer land to the expropriating

body at a price to be determined, or just simply agrees to dedicate

land. Where they can't agree to appropriate compensation, the

compensation provisions of the legislation, as I recollect it, are then

triggered.

However, it seems to me that

section 3, at least

philosophically, ought to go a little bit further. It seems to me that

the legislation should make it very clear that when an expropriating

authority — whatever agency of government — intends to approach, and

then makes the initial approach to a landowner whose property they have

got in mind, the landowner should be given certain information. That

information, or parts of that information, at least, should be

specified in the legislation.

It seems to me that there

ought to be a notice. The notice that is provided to the landowner

should at least contain, in my view, the following factors. First of

all, there should be notice from the government that they are not

expropriating until the vendor knows that he has some choice on the

matter. In other words, the vendor is provided very clearly with notice

as to what his or her rights are.

Secondly, a notice should

be provided under

section 3 advising the landowner that he has the

right to appear before a board to determine appropriate compensation.

There should be information contained in that notice telling the

landowner of their appraisal, and that their appraisal and legal costs

will be paid for in the event of a decision to go to the board to deal

with the question of compensation. In other words, there should be

disclosure as to what the legislation contains in simple, clear

language, so that the landowner knows what their rights are.

Then

there should be, in addition to that, a further requirement, in my

view, under the legislation: that is, before the affected landowner

signs a document transferring the property, or the title and the

property, from his or her name to that of the expropriating authority,

there should be a certificate of independent legal advice, so that when

the landowner has gone to a solicitor — hopefully — to bring about the

transfer of this property, the solicitor can put on the record that he

has given the landowner a review of the legislation, has advised the

landowner of his or her rights and their various options under the

legislation, and that only after that advice has been given has the

landowner consented to executing the transfer of property.

say this in an abundance of caution as someone who has worked in the

legal field, at least until October 22 of this year. This type of

certificate of independent legal advice is provided in all sorts of

matrimonial matters where a spouse consults a solicitor with respect to

a transfer of property. Often, what happens is that the spouse will

walk into a law office and say: "I've discussed this matter with the

spouse from whom I'm separating; we've come to an agreement, and as a

result of that agreement I'm now prepared to transfer the property

over." The solicitor just sort of accepts that advice and signs the

document, and that always leaves the option open for the affected

spouse to come back two years later and say: "Look, I didn't know I had

the right to claim or do a, b, c or d."

I can see the same

type of situation coming up where a deal has been made privately

between the expropriating authority and the landowner. I don't think

any one of us, on either side of the House, would like to see these

types of matters clogging the courts, and the courts then having to

decide whether or not the circumstances of that property transfer were

conscionable or unconscionable, whether or not there was equal

bargaining power or an inequity of bargaining power on the part of both

parties. Clearly, when you have a government agency and a landowner — particularly an unsophisticated landowner —

there is always the possibility that the unsophisticated landowner will

feel that he or she is in a place of inequality of bargaining power.

[3:00]

order to ensure that that bargaining power is equalized, there should

be a notice specifying the factors referred to a few minutes ago. In

addition, I think it would be appropriate that there be a certificate

of independent advice from a solicitor saying: "Yes, the landowner

consulted me. I advised the landowner of his or her rights, and it was

on that understanding that the landowner executed the transfer of

property." That would seem to be an additional safeguard for the state

as much as for anybody else, because of course the state would then

have the security of knowing they had given them all of the appropriate

information that I referred to earlier in a notice, and a certificate

of independent legal advice on top of that. That, I think, would

probably kill the chances of anybody trying to argue inequality of

bargaining power at the end of the day.

So I think those

three factors should be brought in, in principle, in terms of a notice

attached to

section 3; fourthly, perhaps a certificate of independent

legal advice. I throw that open to the Attorney-General and his

advisers for consideration, and look forward to their response on that

point.

The other issue that struck me as somewhat odd is that under the legislation, when there is an agreement —

keeping in mind that 95 percent of the cases deal with an agreement or

indeed a dedication; I'll talk a little bit later on about situations

where dedication arises — the act goes on to trigger

section 19, which

is the

section of the legislation that talks about advance payment. It

also, of course, allows the affected landowner to deal with the board

on compensation. In 95 percent of the cases, then, it would bypass the

inquiry stage. I raise as an issue at this time, Mr. Speaker, whether

or not — notwithstanding agreement — there should be an

[ Page 1216 ]

opportunity

for an inquiry. I raise it because it seems to me that although there

may not be an issue about requiring that land to be expropriated, there

may indeed be an issue as to the quantum of land that should be taken.

Although a landowner feels it would be quite appropriate and he

understands the argument put forward by the expropriating authority,

they may have a disagreement as to the amount of land that should be

expropriated. I'm really thinking of a large farm or a large tract of

forestry land, where the dispute may centre on the amount of land that

needs to be expropriated and the compensation for it.

In those types of circumstances — cases where the quantum of land is at issue —

it may be appropriate for the parties to be able to trigger the inquiry

process under

section 13 of the legislation. I put that out, once

again, as a thought for consideration, because I know there are

amendments forthcoming. I look forward to the Attorney-General's

response on that issue and on that thought, as to whether or not there

should be the opportunity for the vendor of the affected land — if you want to word it that way —

to have the opportunity to inquire. I don't have access to all the

professional advice that the Attorney-General has, and I look forward

to hearing his response with respect to that. That is another matter

that causes me some concern, and I've put it forward to the

Attorney-General at this stage of deliberations on this legislation.

There

are a couple of other areas that the ombudsman dealt with, Mr. Speaker,

during the course of his response to Mr. Gardom's proposed legislation —

which, as I said at the outset, is virtually identical to Bill 22. I

want to touch on those matters. The expropriation legislation, as I

read it and as it has been interpreted to me, does not capture some of

the concerns that the ombudsman laid out in his report of January 1983.

his report, the ombudsman dealt with three instances where he thought —

and it seems to me that there is indeed method to his thinking —

that there were situations of expropriation without compensation. I

think that the clear intent of the legislation that the

Attorney-General has introduced and that we're now reviewing is to

ensure that there is expropriation with compensation; so much so that

we're talking about expropriation with advance compensation, under the

advance payments.

The ombudsman dealt with what he called

section 4 roads, which are roads or highways under

section 4 of the

Highway Act; it may be renumbered by now. In his report he said:

"Section 4 of the Highway Act provides that 'where public money has

been expended on a traveled road that has not before then been

established . . . that traveled road is deemed and is declared to be a

public highway.'" In other words, if a local Highways grader shows up

on a private road and agrees to provide some upgrading work on that

roadway, then because there has been expenditure of public money on

that traveled road, it is deemed to be a public road. The ombudsman

points out, I think quite correctly, that that amounts to a situation

where there's expropriation without compensation. Keeping in mind the

exemption under 9(2), which deals with linear development, there is

certainly merit in what the ombudsman was saying at that time. Of

course, he went on to say that if a grader does show up on anyone's

private road, what he would suggest is that you say, "Thanks but no

thanks," and that would prevent the road from being converted from a

private road, yours and yours alone, to a public roadway, which then

can be deemed to be expropriated without compensation. I'm sorry to see

that under the legislation here, the matter of

section 4 roads is not

dealt with.

The second point that I must also find myself

in agreement with . . . . There is another issue that I'm going to get

to later on that I don't find myself in agreement with on the

ombudsman's report of January 1983. So I should say right now that I'm

not in total agreement with everything that the ombudsman said in his

report. I find myself in agreement with at least three points that he

outlined, in addition to some of the points already made.

talked about the notice in the British Columbia Gazette , dated sometime

in August 1911, which gives notice that all public highways in

unorganized areas — of course, in my riding I have several of those —

and all main trunks in organized districts are 66 feet wide and have a

width of 33 feet on each side of the straight line of the traveled

road. In those instances there is once again expropriation without

compensation, because there is just a deeming provision, saying that

all roads are deemed to be of that size. Once again, the ombudsman

pointed out that although the courts have overturned the Gazette

notice, the Ministry of Highways, for some reason, does not believe

that the court decision . . . . I think it was in 1920 that the court .

. . . It was a Supreme Court of British Columbia decision, if my memory

serves me correctly. For some reason the Ministry of Highways, some 67

years later, does not believe that the decision had any bearing on it.

Hence, in those instances where property has been expropriated under

the Gazette notice, there is once again expropriation without

compensation.

Finally, there is the provision under the

Land Title Act, where it is deemed . . . . It used to be under

section

23; I know that

section has changed, but I don't have with me here

today the Land Title Act, so I can't quote what section. The provision

says that 5 percent of all property that is owned by any property owner

under their title is reserved to the Crown. Once again the ombudsman

reported in his case that he believed that that would also amount to

expropriation without compensation; and as I understand Bill 22,

neither one of those situations is covered, and I think they ought to

be covered under Bill 22.

The legislation also raises a

point with respect to injurious affection, and I want to talk a little

bit about injurious affection because the ombudsman in his report had

said that he believed that the law of injurious affection should be

broadened. He felt that really the common law of injurious affection

was antiquated; it was difficult to prove an action of injurious

affection, and therefore it was difficult for an adjacent property

owner whose property has been devalued by an expropriation act of an

expropriating authority to claim any type of compensation for injurious

affection, simply because it rested on the law of nuisances, as I

recollect it — and I must confess I haven't done any cases on injurious affection; they're few and far between.

I'm pleased to see — and I'm going to comment on this a bit later as well —

that under the legislation the government has chosen to allow the

existing law of injurious affection to stand as it is, and hence make

it difficult for adjacent property owners to be able to claim for a

diminishment in value as a result of expropriation. I agree; I don't

think that there ought to be a deviation from the law as it stands. I

think those of us on this side of the House have a lot of difficulty

with the concept of injurious affection, and once again in

philosophical terms there is an interesting question, of course, as to

what ought to happen in the case of zoning changes. Just to

[ Page 1217 ]

put

aside expropriation matters, in the event of a zoning decision that has

an adverse affect on a third party's or an adjacent property owner's

property, then ought that individual to be able to . . . .

MR. SPEAKER :

I should . . . . Order, please. If the member could resume his seat for

just a second, I'm sure the member wants to be the designated speaker?

MR. SIHOTA : Correct.

MR. SPEAKER : If that's the case, that's fine.

The Attorney-General, I think, had an introduction that he was going to ask leave if he could make.

HON. B.R. SMITH : If I could make an introduction, Mr. Speaker.

Leave granted.

HON. B.R. SMITH :

In the gallery today is Mr. Donald Munro, who was for a number of years

MP for the federal riding of Esquimalt-Saanich. Don was a Canadian

diplomat as well before that and served his country. It's nice to have

you come down here to this place, Don, and see how we're doing. I hope

you get a chance to come back again and again.

I ask the House to make him welcome.

MR. SIHOTA :

Mr. Speaker, before I continue, I'd like to make two comments. First of

all I, too, would like to extend a welcome to Mr. Munro, who at one

time represented the riding that I live in now, the federal riding of

Esquimalt-Saanich.

The second point is that I apologize. If

we were to notify you in advance that I was the designated speaker . .

. I'm sure that as a rookie I wasn't quite aware of that and I'll make

sure I learn now. In any event, I don't have that much more to say on

this legislation.

I was talking about the law of injurious

affection and talking about it in philosophical terms, and I have some

real difficulty philosophically to allow for an expansion of the law of

injurious affection. I'm well aware of the fact that although the

legislation here talks about injurious affection and talks about

preserving the existing common law, there is indeed a case right now

before the Supreme Court of Canada that may well unravel all of that

law and set down some new guidelines with respect to injurious

affection.

Knowing

what the current law is, it is on that

basis that we can say at second reading that we agree with Bill 22. If

that law were to expand and to change the law of injurious affection

and allow for greater rights and for greater ease with respect to

making a claim for injurious affection — I know the legislation doesn't

say that, but if the Supreme Court of Canada decision were to have that

effect —

we would have some difficulty with what's being proposed in the

legislation. But that's really looking down the road, and we really

don't know what's going to be coming down from the Supreme Court. I

think we all look at that with some interest, because it may indeed

have profound implications later on with respect to this legislation as

well if adjacent property owners can make with greater ease claims for

compensation than is the case right now. But suffice to say that the

law is somewhat restrictive right now. As I read the legislation, all

it does is maintain the law in its current fashion — under, I believe,

section 40(2). With that understanding, we are prepared to proceed

with support for the legislation at this level. It remains, I think, of

interest to only perhaps two or three of us who engage in this

profession, who know a little bit about the law, to see whether or not

the law changes significantly over time.

[3:15]

[Mr. Pelton in the chair.]

Enough

said about injurious affection. Moving through the legislation, it

deals extensively with matters of compensation. I don't really have any

significant problems with what the legislation says about compensation,

because it seems to me, as a barrister who did a lot of work involving

loss of income and business loss, that the principles underlying the

compensation concept in the legislation are quite clear. However, I

have one concern as I read

section 19 — and I must confess that I went

through the legislation about two weeks ago, when it first came down.

It does not, as I read it, allow for immediate advance payment for loss

of business income. If someone is operating a farm or a gas station or

a grocery store and loses property to the expropriating authority, he

or she is compensated immediately for the diminishment in value of the

land; but there is no initial compensation for business loss, and

therefore an interruption in the stream of income that that person has

enjoyed, until there has been a subsequent hearing. Once again, to be

consistent with the concept of advance payment — which, as I said at the outset, I don't have any difficulty with —

I think the legislation should take a look at a provision for some

business loss compensation, along with the advance payment for loss of

property value, so as not to significantly interrupt the stream of

income that an individual is receiving from property.

question arises as to how you do that. It seems to me that the easy

answer is to take the last two or three years of income tax returns

that people have filed, and perhaps base a loss of business income on

that type of approach, because as we all know, people have to file

income tax returns. They will indicate on these what their business

income has been — and I am not saying that under the advance payment

provision there has to be the full average of those three years paid

out, but maybe a percentage of that full average as a way of

compensating people for loss of business.

It is one thing

to take property away from an individual where he doesn't have an

income flowing from that property and to provide him with an advance

payment. It is another to take that property away under the

legislation, and also his stream of income, and then to compensate him

for the first diminishment or loss of the property, but not for the

loss of income, hence forcing him to live from the income that he may

receive from investing the money he takes from the advance payment. I

don't think it ought to be the intent, and I don't think it ever was

the intent, of the drafters of this legislation to say that people

ought to live off, as a form of income, the interest, for example,

accumulated from the advance payment. What really ought to happen is a

form of advance payment that would also compensate for loss of business

income, and I have tried to throw out a way of being able to calculate

that.

To summarize then, Mr. Speaker, at this stage of the

bill in second reading, it is our intention to support it. We await the

amendments that the Attorney-General has said are forthcoming. We

certainly anticipate that

section 9(2) will be clarified so as to

allow

section 19 on advance payment to be

[ Page 1218 ]

triggered when

section 9(2) is brought into play. I don't think we are going to have any problem with that.

The

comments that I made with respect to

section 5 on the powers of cabinet

will be taken into account consistent with the government's announced

intentions with respect to open government, and will embrace not only

what I have had to say but also what the ombudsman himself recommended,

that there should be a broadening of

section 3 so that the affected

landowner knows of his or her rights under the Expropriation Act and

that there is some choice. As I said earlier on and as the ombudsman

pointed out over and over again in his report, people often do not know

that they have a choice. They think that when the expropriating

authority shows up, they've got no choice. Hence they just begin to

deal with the matter of compensation. They should be told that they've

got a choice, that under the inquiry provisions of the act one of the

things that can be done is a determination to see whether or not that

property is the appropriate property to be expropriated for that

purpose, and whether or not the quantum of property being taken is the

appropriate amount. So they should be told in a notice, which should be

laid out in the statutes, that you have to do this if you're the

expropriating authority; that they do have a choice; that they have a

right to appear before a board to determine appropriate compensation;

that they should be provided with information telling them of their

right under the legislation for appraisal of legal costs in the event

of a decision to go to the board.

There should be a

requirement, in my view, under

section 3 of the legislation for a

certificate of independent legal advice, more for the protection, it

would seem to me, of the state than it would be for the landowner,

particularly when you look at the potential for argument of

unconscionable bargains and inequality of bargaining power. It still

seems to me that there ought to be some right to an inquiry under

section 13 where there has been agreement, if the parties can't agree

with respect to the quantum of land that's taken.

There

should be some consideration, in my mind, in the legislation that deals

with

section 4 of the Highway Act, the 1911 Gazette notice and the

right to resumption, and the views of the ombudsman that those amount

to expropriation without compensation. There are currently some

concerns we have with respect to injurious affection but we'll let

those ride for the time being. Finally, there should be some business

loss provision provided in the advance payment to allow people to enjoy

some income from the property, or to recognize the fact that people

enjoyed some income from the property before it was expropriated.

Those

are the thrust of our concerns and I guess if you totalled them all up

it would almost make it sound like the legislation is a little bit like

Swiss cheese, but I really don't mean to say that. It really is a step

in the right direction and I think it can be improved upon, and

hopefully the comments that I've made today will add to that

improvement and result in legislation that we can support, not only at

second reading but in addition at third reading.

HON. B.R. SMITH :

Mr. Speaker, the comments that we've just heard from the opposition are

generally very positive and supportive and they're appreciated. I'll

try and deal with as many as I can.

The suggestion that

there be included in the

section 3 provision, where an owner actually

agrees to transfer land but the issue is still how much it is worth,

that in those cases where owners make initial inquiries they should

have a statutory right to receive certain information, that argument

seems to me to certainly make a good case for a policy similar to that

on the part of the authority; but I don't think it is something that

needs to be actually put in the act. I think that if an owner did go in

to this authority, that's the kind of thing he should be able to

obtain. He should certainly know that the statute will provide that

he'll get his compensation paid in advance. Certainly he should know,

if he decides to question the compensation and he's going to have a

hearing, where he stands in relation to his costs. I think the matters

that the member for Esquimalt-Port Renfrew (Mr. Sihota) pointed out

would be the foundation, or form at least part of the foundation, of a

good, sound policy which certainly commended itself to me, and I think

that's something that the compensation tribunal could be encouraged to

adopt.

I noticed as well that he spoke about the issue of

section 5, where the cabinet exercises its authority to do away with an

inquiry in an appropriate inquiry case. I think that when we introduce

an amendment there narrowing the scope, as we intend to do, of the

exercise of that power, he may be a little more comfortable with

section 5. But I think to bring forward into the Legislature every case

where that was exercised, together with reasons, would be an

unnecessary bureaucratic process. Any such case where any member wished

to have information in this chamber, or reasons, they would be

furnished; but I do think he'll be somewhat relieved on

section 5 when

he sees the amendment because I intend to cut most of the ground out of

5(l)(

b) and (

c) and leave the authority to deal with situations of

undue delay or an emergency, and really no other contemplated situation

that's set out there in (

b) or (

c) I think is required in the statute.

I think the statute can survive without. I think with linear

developments being exempted from hearing, there really isn't a need to

have most of those provisions in (

b) and (c). He also dealt with the

interesting idea that a certificate of independent legal advice would

be helpful. I gather, again, that you're talking about the 95 percent

of the cases where the owner agrees.

I would wish that if

we did something like that, it would be fruitful, but my guess would be

that it would be much harder to get a certificate of that kind out of a

member of my profession than it would be to get a certificate in

relation to a matrimonial matter. The similarity between expropriating

authorities and devious husbands is probably not an analogy that could

always be pursued, but certainly I think solicitors would be so very

reluctant to give such a certificate that I'm not sure it would achieve

the results the member wants.

Also, from my limited

experience with the 5 percent that we're thinking of . . . . I had one

long experience when I was mayor of Oak Bay with a gentleman who was

expropriated. We had really the most horrendous time with this

gentleman, because he had a small business right in the centre of Bee

Street, the road to the Oak Bay Recreation Centre, and he wouldn't deal

at all. He just absolutely refused to deal, and ultimately the

expropriation took place. He wouldn't appoint an arbitrator for the

hearing; he refused. The court had to appoint an arbitrator, and then

we appointed a counsel to represent his position. He didn't like that

afterwards. He was really mad that we had appointed a lawyer, because

he thought that was the worst insult of all. An award was made against

him in absentia, and the money was paid in the court. He wouldn't take

the money out, and I finally had to get an order to have the money

taken out and paid to him.

[ Page 1219 ]

used to come in and see me and tell me that as I was mayor and I was a

very powerful man, I could make this right. I think I appointed two

sets of lawyers to advise him, at the expense of the municipality, and

was even prepared to open it up and have it adjudicated again, but

nothing would satisfy him. People like that are not satisfied with

lawyers. In fact, often the mere introduction of a lawyer and a

lawyer's certificate makes them think there is something wrong.

don't think the certificate would meet those few cases that give us all

the concerns and the bad profile, and have in the past in this

province, that we've treated some ordinary guy unfairly and ground him

into the ground. I don't think that possession of one of those

certificates from one of my fellow practitioners would be much

reassurance to him.

But it's a good idea, because I think

it's well motivated to try to see that things not only are done

rightly, but appear to be done rightly. I'll review that one before

third reading.

[3:30]

The member has also gone into some of the highway issues. I'm sorry

the Minister of Transportation and Highways (Hon. Mr. Michael) wasn't

here to listen to those, but he no doubt will pick them up in the

Blues . The provision of one twentieth of the land for a highway, which

is another area that's often been criticized as being some form of

taking without compensation . . . . But the pure legal theory involved

in the one-twentieth rule, as the member knows, is that it isn't a

taking at all; it's the exercise of an old Crown reservation, which all

of us, of course, were aware of when we purchased our land. We knew

that the government could do that, or were deemed to be . . . .

think these are genuine issues for another day. If I were to have

tackled all of those in this bill, I can tell you, hon. member, I'd

never have got the bill out of the bureaucracy. It would have

languished there for another 20 years. Another Jack Clyne would come

and go, and you and I would both be superannuated, and we still

wouldn't see a bill. So for those reasons, I didn't tackle those

issues, but it's legitimate to raise them, for sure.

The

law of injurious affection is so complicated that I don't think anyone

understands it except Prof. Eric Todd, a former professor of mine — and

the member's, no doubt. Writing in the University of British Columbia

Law Review for 1967, the centennial edition, he attempted to codify the

existing common law of injurious affection.

All I can say

is that I totally agree with the member for Esquimalt-Port Renfrew that

it is not desirable to expand the law of injurious affection. I have

reservations about the law of injurious affection, just as he does. We

both agree we don't want to expand the law, but fortunately neither of

us has to give a treatise in this place as to what the law is, because

that would take us days, and people would understand less of what we're

saying than they have up to now, which is probably not a heck of a lot.

will undertake to give my opposition critic, the member for

Esquimalt-Port Renfrew, copies of the proposed amendments in committee

probably later today. I will now move second reading.

Motion approved.

Bill

22, Expropriation Act, read a second time and referred to a Committee

of the Whole House for consideration at the next sitting of the House

after today.

HON. MR. STRACHAN : Mr. Speaker, I call second reading of Bill 9.

INSURANCE (MOTOR VEHICLE)

AMENDMENT ACT, 1987

HON. L. HANSON :

Mr. Speaker, the principle of Bill 9 was referred to in the budget

speech. It said that the Insurance Corporation of British Columbia

would be subject to the insurance premium tax. Bill 9 removes ICBC's

exemption from the insurance premium tax, and it also removes ICBC from

the exemption under

section 48 of the Fire Services Act. That

section

refers to a premium charged to insurance companies in British Columbia

for investigation and other fire-related expenses. When ICBC was in the

general insurance business, Mr. Speaker, it was exempt from that tax.

But since ICBC has sold its general insurance premium,

section 48 of

the Fire Services Act will have no effective bearing on ICBC, unless

they should go back into the general insurance business.

far as the rates are concerned with ICBC at this point in time, one of

the theories behind the application of the insurance premium tax is

that the Insurance Corporation of British Columbia not only sells the

mandatory part of automobile insurance; it also provides extended

coverage, which is also open to competition from the general insurance

industry. It will now make those premiums that relate to the

discretionary extended coverages competitive with the

private-enterprise insurance companies. The effect on ICBC in the year

1987 will be not quite $15 million in terms of that premium and will be

absorbed by ICBC for that calendar year without any increase in rates.

I now move second reading of Bill 9, Mr. Speaker.

MR. LOVICK :

Mr. Speaker, we understand the logic and the rationale as presented by

the minister for this measure. However, we are concerned that the

conclusion of the measure, once implemented, will simply be that

insurance premiums will rise for average British Columbians. That needs

to be noted, and I would sincerely hope that everybody paying attention

to this legislation will indeed recognize that it is the case.

The

removal of the exemption from ICBC, in effect, will account, we

estimate, for some additional $25 million cost to the corporation.

That's our understanding. When I listened to the minister, he seemed to

suggest that, given the general insurance removal, that would not

happen. I sincerely hope that I am wrong in stating this and that

something will be done about it . . . .

Sorry, Mr. Speaker,

for that delay. The House Leader was trying to find out from me how

long I propose to speak on this. The answer is: to allow the House

Leader to indulge his nicotine habit, I shall indeed speak for more

than two minutes.

As I was saying, Mr. Speaker, before that

rather unorthodox interruption, our concern is that what we're looking

at here is simply another evidence of a government that wants to raise

some money, and in the name of modifying the nature of insurance

coverage in this province we have, dare I say, a kind of tax grab going

on. We guesstimate that the average motorist in B.C. is going to pay

some $12.50 annually in increased premium as a result of this measure,

simply because of the fact that ICBC will be losing a certain amount of

[ Page 1220 ]

money,

given this measure that amounts to a 3 percent premium hike for

consumers. Our concern, then, given the other hits that consumers have

been subjected to with this budget, is that that is perhaps going to be

yet another load that people are going to rebel against and be even

less willing to go along with than they have with those others. That's

the first concern, then — simply that cost to the consumer.

The

second concern we have, which also incidentally translates into a

direct cost to the consumer, appears to be the result of an

administrative muddle. Bill 9, as we understand, does indeed amend or

remove ICBC's exemption from the tax imposed under

section 48 of the

Fire Services Act. However, the error occurs insofar as amendments to

the Fire Services Act needed to allow the collection of this tax have

not been proposed. That is perhaps going to cause us or certainly the

government some difficulty. It will at least produce a muddle and

perhaps something more serious.

Our concern, then, is that

this other provision of the amendment here before us will also cost the

consumer money. As we read the legislation, ICBC will be required to

pay the B.C. fire commissioner a tax equal to 1 percent of the total

premiums received, and that 1 percent tax obviously will be passed

along to B.C. motorists just as the 3 percent tax that I alluded to

earlier will be passed along. It will amount to a 1 percent premium

hike. That too will add to the cost of insurance to the average

motorist in this province — here we guesstimate approximately $4.16 to the insurance premiums of the average motorist.

Our

concern is simply that this legislation — though it certainly doesn't

say so in the justification provided for it by the minister —

really amounts to minor concessions that are part of what we would call

a major tax grab. Once again government seems to be sticking it to

people regardless of those individuals' ability to pay. We hope that at

least the administrative muddle will get sorted out when we get to

committee stage, and I would offer it to the minister's recommendation

now.

MR. D'ARCY : I'm happy to have the opportunity

to make a few comments on this debate. Automobile insurance is

compulsory in B.C.; it has been for a great many years — since a

number of years before the creation of the Insurance Corporation of

British Columbia. And when government makes something compulsory,

regardless of what name they choose to dress it up with . . . . When

something becomes compulsory and you have to pay it, it's a tax, and I

don't care whether it's called an insurance premium, as in the case of

ICBC or in the case of the federal program of unemployment insurance,

or whether it's called a rental, as with the water tax, or whether it's

called an assessment, as with Workers' Compensation. The fact is that

car insurance is a necessity. I'm not opposed to the fact that it's

compulsory, but the fact is it's a tax. As such, when you add, as the

second member for Nanaimo has pointed out, a 4 percent tax — or two

taxes which together total 4 percent — you are putting a tax on a tax,

and I'm strongly opposed to that.

There's

no question that the automobile is essential in British Columbia and

that proper protection for the public from damages caused by

automobiles is essential. I see no additional benefit to the people of

B.C. by adding two separate taxes on that. Already we are heavily taxed

for gasoline in British Columbia by both the federal and provincial

governments. The budget provided for more taxes on leaded gasoline in

British Columbia. There is already a transit tax of a cent a litre,

roughly, in British Columbia — though in my constituency, at least,

while there are a couple of transit services, they certainly are not of

the same level as the transit services provided in the metropolitan

areas of British Columbia. Indeed, I have to agree with the British

Columbia Automobile Association in that the motorists in British

Columbia are already inordinately taxed relative to other jurisdictions

not only in Canada but also in the United States.

know

the argument is going to be put forth by spokesmen on the other side

that the government has to get their money from somewhere. Indeed, Mr.

Speaker, they do, but I consider this kind of a tax on a tax on what in

my riding and I believe for most British Columbians is an essential

service, an essential facility — the use of the private automobile — is

something that I feel very strongly about and that I oppose very

strongly in this House.

[3:45]

MR. SIHOTA :

Mr. Speaker, I'm going to speak in opposition to this legislation. I

wasn't quite aware that it was coming up today, in light of the

previous bill, Bill 22, that we just dealt with. But it seems to me

that this legislation is just another nickel-and-dime money grab on the

part of a provincial government that has so failed to deal with the

basic economic issues in this province that it desperately needs money

and therefore will try to acquire funds from any source it can lay its

hands on. And when it reviews the books it finds that it wasn't taxing

the insurance corporation with respect to premiums, and hence we see

the introduction of this type of legislation which would allow for a

more direct and blatant money grab by this government.

me as I sit here and reflect upon what's being proposed in the

legislation, it underlines the need for this government to begin to

develop some comprehensive, fair taxation policies that grab money — if that's the way you want to put it — from

sources that can afford to pay, instead of blanket taxation measures

like this which hit across the board in an indiscriminate way and which

tax the resources of not only the Insurance Corporation but obviously

the consumer out there who will then have to pay it. Whether they pay

it indirectly or directly, they're going to end up having to pay it one

way or the other. Either it's going to show up as an increase in

premiums next year, when the premiums are posted, or it's going to show

up in the form of a direct tax on their assessment notice for ICBC

premiums.

One

way or the other, it's this continual

nickel-and-diming of the taxpayer that we saw introduced in the budget

and that we're now beginning to see reflected in the legislation that's

coming before the House. The philosophy, the point of view, of this

government is that if you don't want to do it directly — if you don't

want to take the political consequences of hitting the taxpayer

directly —

what you do is you camouflage the taxation mechanism in the

legislation. And after you've camouflaged it, you extract that much

more income out of the pockets of ordinary working people in this

province.

Like I say, sure, the argument can be made that

it's the corporation that's going to end up paying this tax. The fact

of the matter is that it's going to be reflected in the premiums. I

would hope that instead of coming down with this type of legislation,

the government would make a commitment now to some type of fair,

comprehensive taxation scheme, working in concert with the federal

government and taking advantage of the more progressive taxation

legislation that exists in

[ Page 1221 ]

lot of other jurisdictions in this country, to get away from the

nickel-and-diming of the consumer reflected in this legislation.

I've

already commented to the minister in the past about the concerns I have

about other aspects of how it is that the Insurance Corporation . . . .

I don't want to go into the details, but in terms of the premiums that

the people are paying on their driver's licence, and the interest that

compounds on that, that is a bit of a windfall. That really hasn't a

lot to do with this legislation, except just basically what we're

beginning to see . . . . This is Bill 9, and I believe it's the second

piece of legislation that we've had to deal with. I think Bill 17, the

other day, or Bill 19 . . . . No, that's the labour act. We were

dealing with another matter, anyway, on Friday, with the Minister of

Finance (Hon. Mr. Couvelier), and here we are again dealing with

another nickel-and-dime piece of legislation. I'm not happy to see

this, and I think the government should rethink its views.

may be true, and indeed arguable, that this would bring the corporation

more in line with entities in the private sector. I hope that at this

stage of the game this is not a forerunner in any way whatsoever. I

would look forward to assurance from the minister that this is not a

forerunner in any way whatsoever with respect to the privatization of

the Insurance Corporation of British Columbia. The government, to date,

has been secretive about its intentions with respect to the Insurance

Corporation. I would hope that the minister, in his response to the

comments that are flowing from this side of the House, will indicate to

the House whether or not this is considered to be a forerunner of the

government's efforts to privatize. Indeed, could he confirm, for the

benefit of those of us on this side of the House and for the public at

large, that the government has no intentions to privatize the Insurance

Corporation?

DEPUTY SPEAKER : Pursuant to standing order 42, the minister closes debate on Bill 9.

HON. L. HANSON :

First of all, I'd like to clear up some obvious misunderstandings on

the part of the hon. members opposite. There was a suggestion by two of

their speakers that it was a tax upon a tax, but I would suggest that

if they read the act, as it relates to

section 48 of the Fire Services

Act, it says in there: " . . . any subsequent calendar year for

policies insuring property situated in the province, other than

automobiles . . . ." So the repealing of the application of

section 48

of the Fire Services Act to ICBC was simply a housekeeping matter that

applied to ICBC when they were in the general insurance business. Never

at any time, even though ICBC had not had that exemption from

section

48, would that tax have been applied to the premium as it relates to

automobiles. So there is not a double taxation, as was alluded to by

the members opposite.

Secondly, Mr. Speaker, when I

referred to a cost of some $15 million, I referred to the balance of

1987. I think that if the hon. member had heard that, he would

understand. The cost is, in fact, about $24 million on an annual basis.

But, seeing as we are about halfway through the year, the cost is

estimated to be about $14 million for 1987. I'd also like to point out

that there will be a saving to ICBC of some $2 million to $3 million

due to the reduction of the 7 percent sales tax to 6 percent, so it's

not totally in that direction.

I have dealt with the

housekeeping issue. There is no requirement for housekeeping, because

automobile insurance is in fact exempt from

section 48. Repealing that

section simply relates to the fact that if ICBC should get back into

the general insurance business, they would then be subject to that tax,

the same as every other insurance company in British Columbia.

my opening remarks, I also referred to the fact that the mandatory part

of the Insurance Corporation of B.C.'s premiums as are applied to

automobiles are not subject to competitive quotes, because it is

mandatory to purchase your minimum coverage from ICBC. But I would

remind the members that much of the insurance that goes beyond the

mandatory minimum limits of ICBC is bought from the private enterprise

sector. The application of this 1 percent will make ICBC live by the

same rules, if you will, to be competitive in the open market — which,

by the way, they are. So they do have to compete with those in private

enterprise on a fair and reasonable basis.

response to the request from the last member of the opposition, who

suggested that he would like me to give assurance that this is not the

first step in privatization of ICBC, let me assure the House that

privatization of ICBC is a subject of future policy, and that it will

be advised as and when that decision is made. But let me assure the

House that there is nothing hidden in this bill to suggest that it is

the forerunner of privatization of ICBC, and has no relationship at all.

With

that, Mr. Speaker, I would like to say, in my short time on the board

of directors of ICBC, that they certainly are a well-run organization.

Their rates as they are now are very competitive. I can refer you to a

number of news articles that have come out in the media to show that

other provinces in Canada would be quite happy to have a similar

situation as ICBC. Most recently in the press is Ontario. I do believe

that the Insurance Corporation of B.C. is a well-run Crown corporation.

With that, I move second reading of Bill 9.

Motion approved.

Bill

9, Insurance (Motor Vehicle) Amendment Act, 1987, read a second time

and referred to a Committee of the Whole House for consideration at the

next sitting of the House after today.

HON. MR. STRACHAN : Mr. Speaker, I call second reading on Bill 30.

MUNICIPAL AMENDMENT ACT (No. 1), 1987

HON. MRS. JOHNSTON :

Bill 30 is a two-part bill that responds to the requests of the Union

of B.C. Municipalities, the professions, the building industry and the

general taxpayer.

First, this bill deals with municipal

liability situations and the resultant problems posed to local

governments by ever-increasing liability insurance premiums. Secondly,

the bill effectively addresses the need to improve upon and add to the

land-use legislation introduced as amendments to the Municipal Act in

late 1985. These measures respond to need, Mr. Speaker. They are

effective and will be welcomed by local government.

I move that the bill be now read a second time.

[ Page 1222 ]

MR. BLENCOE :

It is not my intention to dwell on this bill too long this afternoon.

We are basically in support of the intention and the general direction

of the legislation. Indeed, we have consistently, over a number of

years, called for the government to take appropriate action in the area

of municipal liability, an area that has given grave concern to local

government, particularly the costs of municipal insurance.

had hoped to see this legislation before us some time ago. Be that as

it may, it is here today. I have some doubts whether, indeed, the

legislation as it is will do what the minister wants, in terms of

dealing with private sector rights. I suspect it won't have a dramatic

impact on those rights, but it will — which I think is a useful part of the legislation — give

a degree of protection to those public servants who work at the

municipal level. Unless it's proven that the courts did their job

improperly or dishonestly or maliciously, aldermen and officials will

have some protection, which I think is appropriate. And of course, it

deals with the personal liability of a municipal officer.

our estimation, however, the only way for local government to be able

to really do anything about the costs of insurance is to move ahead

with the UBCM proposal for a self-insurance scheme, the pooling concept

that the UBCM has now studied in full. I might like to add that it was

some two and a half years ago that I, on behalf of our caucus, made a

presentation to the UBCM and all the mayors and aldermen of this

province, a fairly detailed proposal suggesting that the UBCM take a

look at the self-insurance idea that has been done in other

jurisdictions, that it could indeed be a way for the UBCM to cover

itself and its members.

I'm pleased to see that the UBCM

has finished the studies and, indeed, is going ahead, but requires the

enabling legislation to put the whole thing together properly. I would

hope that we see that legislation in the very near future, to allow the

UBCM to dot all the i's and cross all the t's. We are very much in

support of the municipal self-insurance proposal. It's an exciting one.

I think it's one that other public bodies can take a look at. Indeed,

it probably does the job of the general insurance part of ICBC. If it

was still alive and well, we could have gone ahead with such a proposal

with them. Be that as it may, the UBCM and local government are now

moving ahead on their own scheme. We are in full support of that and

would hope to see the legislation very soon to encourage them in their

work.

[4:00]

In our estimation, that is what will challenge the private sector.

Quite honestly, I think the private sector needs a challenge. I think

their rates have been scandalous. I don't think there is much evidence

there for what they have done in the last few years to public bodies in

terms of liability insurance. I think all the evidence is there that

they were on a down cycle in their business and wanted to recoup their

losses on some of the policies they had written over the last few years

that they didn't get the return on, and they were going to take local

government to the cleaners in the kind of usurious rates they were

putting in place. I think that self-insurance scheme is the only real

way the private sector can be challenged.

I certainly

commend the UBCM, and I would hope all local councils will participate

in that proposal. It's somewhat of a digression, but on the topic in

terms of the intent of this bill to try to do something with municipal

liability. So we support that.

The other area that the bill

pays attention to, of course, is the whole area of land use. We all

know that there was a land use bill before this House some time ago

under the former minister, Bill Ritchie. We indicated at that time that

we felt the consultation process wasn't the best, that there were many

sections in that old bill that would get the provincial and local

governments in trouble. Today we see the results, I think, of

legislation that wasn't thought through properly. We now have, from

section 9 through

section 57, what are basically amendments to that

former bill that was before this House some time ago. I think that's an

indication that government really has to be very careful when it's

introducing legislation that impacts on other jurisdictions — to be a

little more thoughtful, to be a little more careful and to dot the i's

and cross the t's. Of course, I don't think it's any reflection on the

current minister; but I would hope it's a lesson to us all, if you

will. Staff at the time probably told that former minister to be very

careful with that legislation, but in the wisdom of that past minister

that legislation was put through this House, and today we have major

amendments to legislation that I think was flawed at the time. We

indicated and said so, and here we are today dealing with repairing

that piece of legislation. I'm glad we're repairing it. The local

councils are glad we're repairing it, too.

The only real

comment I would like to make, Mr. Speaker, on this

section in a global

perspective is to ask the government to consider in the future a rate

of flexibility for local council in terms of dealing with land use and

zoning matters. One thing that I really think was very sad was when

land use contracts in the province of British Columbia were cancelled.

We need to take a look at the Municipal Act and how we can give local

councils, towns and villages the opportunity to deal directly with

developers and introduce innovation into zoning — flexibility, if you

will. Sometimes the Municipal Act, because it's an all-encompassing

bill . . . . It covers all regions and all zoning rules; it doesn't

allow for regional or community differences in dealing with developers,

unlike Vancouver, where they can operate under the Vancouver Charter,

to look at innovation and creativity in zoning and land use matters.

need to take a look at regionalizing, if you will, the Municipal Act.

Maybe we need to take a look, for instance, at the capital region.

Maybe we need a

section of the Municipal Act called the Capital

Regional Municipal Act. I think we've slowly but surely begun to

realize that this province is made up of distinct regions. I know my

colleagues from the north will certainly tell me that on many

occasions. Often bills and legislation — particularly municipally — are

created here in Victoria, with Victoria, Vancouver Island or the lower

mainland predominantly in mind, and we tend to forget that we are a

province of distinct regions, with distinct concerns and uniqueness. We

need to take a look at the Municipal Act, not only in land use and

zoning, but in how we encourage those regional differences.

just share that with the minister and the good staff who are here

today. I know we've discussed it over and over again over the years,

but when I talk to people in the regions and the municipalities, they

say: "Boy, that Municipal Act is so limiting to us. It may be

appropriate for development in Victoria, Vancouver or a larger

community, but we need to have some flexibility in dealing with our

particular situations in our communities." How can we encompass that in

the Municipal Act?" I would certainly be interested, Mr. Speaker, in

joining the minister in the committee of this Legislature we have and

talking about these issues.

[ Page 1223 ]

Interjection.

MR. BLENCOE :

I'm not picking apart anything; I'm giving you some ideas; that's what

the chamber is all about. Thank you, Mr. Member. I think it'll be very

useful, within the confines of trying — both sides of the House — to

deal with local government in a fruitful and progressive way, rather

than sometimes in a confrontational way.

So,

Mr. Speaker, I put those points before the minister and the government

in terms of land use and zoning, and I would hope that we will in the

future see some discussion on how we can take care of some of those

regional concerns. I know, for instance, in my community again — that's the one I know best, obviously —

I would very much like to see the ability to deal with the Songhees in

a far more innovative and creative way, rather than sometimes through

the traditional zoning and land use way. If we had the land use

contract concept available to us, I think it would allow city council

here in Victoria to sit down with the various developers and look at

how we can create something very special for this community. We need

that flexibility, and I hope the government will consider that in the

years ahead.

To close, we support the intents of the

legislation. There are some areas that I . . . . There is one

particular that I will bring up in committee, and I will give the

minister notice now that I'm not sure where it's going. It's

section 4:

section 310 is going to be amended by striking out "appointed

officers" and substituting "any person." I'm not sure what that means — "permits

council to authorize persons other than officers to enter property for

enforcement purposes." I don't quite know what that's all about, and

obviously we'll investigate that in committee stage. Maybe the minister

can bring back some appropriate answers to that. There have been some

rumours, and I don't like to deal in rumour.

Otherwise, Mr.

Speaker, we support the intent. We think it's been long needed, and I

eagerly wait to see the enabling legislation for the self-insurance

scheme by the UBCM.

DEPUTY SPEAKER : Pursuant to standing order 42, the minister closes debate.

HON. MRS. JOHNSTON :

Mr. Speaker, I appreciate very much the member's comments, and I can

assure him that the pool insurance scheme that has been put forward by

the UBCM is being very carefully considered at this time for possible

legislative action.

His comments about regionalizing are

also very well taken, and certainly are also being addressed at this

time as a result of the Premiers' conference, which was held earlier

this year. At that particular meeting we had representatives of all

B.C. municipalities, and it was a suggestion that was very actively

discussed and is presently being further reviewed.

Bill 30,

Municipal Amendment Act (No. 1), 1987, read a second time and referred

to a Committee of the Whole House for consideration at the next sitting

of the House after today.

Motion approved.

HON. MR. STRACHAN : Report on Bill 20, Mr. Speaker.

TEACHING PROFESSION ACT

MR. JONES :

Mr. Speaker, I don't wish to repeat that which we've said in committee

stage, but I would like an opportunity to reiterate our opposition on

this bill.

To this side of the House Bill 20 is a symbol to

the teaching profession that they are valued less, that they are

singled out and treated differently than the 200,000 other teachers in

this country; a symbol that their input into legislation is not valued

in a serious way. Nobody asked for this legislation. It is also a

symbol, Mr. Speaker, that there is a feeling that the teachers in this

province need to be managed, and it is a symbol that more of them need

to be fired, by the widening of powers to do that. It is a symbol, too,

that dissent in the education field will not be tolerated in this

province. We've seen that in the past by the firing of the Vancouver

School Board, and in Bill 20 by the end run around the B.C. Teachers'

Federation, and in the future for individual educators who wish to take

stands on education. I suppose they will be invited to get out of the

classroom if they wish to dissent against education policies of this

government. I think this is the mentality that spawned Bill 20 — that

idea that we cannot disagree, we cannot tolerate, we have to stomp on

the rights of individuals to dissent on education policy in this

province.

I think the saddest aspects on this bill, Mr.

Speaker, are that the product of this legislation will be to carry on

the confrontation that we've seen in British Columbia in recent years.

We see this as unnecessary legislation that detracts from the serious

needs of the students of this province. It does have a serious effect

on people's lives. I talked to a friend of mine on the weekend who I

think is a leader in his field in this province. Because of this

legislation he felt compelled to withdraw from three ministry

committees that he serves on, and his service is a valuable asset to

this province. It's unfortunate that we will lose that kind of input

because of the process and the product of Bill 20.

think also that the saddest part of the legislation is that I don't

believe it will be effective — that it will work. And certainly the

governments of Alberta and Ontario saw that when they withdrew similar

legislation.

[4:15]

I suppose

when this bill passes the government will have the legislative

authority to carry out the clauses in Bill 20, but I think a good

government would realize that without the cooperation and the

understanding of teachers in this province, it's not good legislation

and it will not be effective. I would hope the government would find

ways of working with the teachers in this province — perhaps forget

Bill 20 and get on with dealing with the very serious issues that are

of great concern to all British Columbia in terms of education in our

province.

HON. MR. BRUMMET : I appreciate the

member's brief comments, although I can't agree with quite a few of

them. I realize that they are dedicated to opposing this bill; the

reasons may raise greater questions than they do answers.

The

member mentioned that the teachers in British Columbia have been

singled out. One of the reasons for this legislation, which provides

full bargaining rights, is that they had argued that they were singled

out by not being given full bargaining rights. This gives them full

bargaining rights.

[ Page 1224 ]

Somehow

the member says that input from the teachers is not valued. I think the

input is very much valued, and all of the processes that have been in

place can continue in place.

There

have been criticisms that the bill takes away the curriculum committees

that the ministry has had — all of these sort of things. It certainly

does not.

mentioned that somehow this bill indicates that the teachers need to be

managed in this province, when Bill 20 clearly gives the management

over to the teachers — the College of Teachers and the local

association — to manage their own affairs, to do their bargaining. So

I don't

know how the legislation manages the affairs of the teachers, when even

the minister's powers and qualifications in certification have been

turned over to the teachers themselves to run.

The member

mentioned that dissent will not be tolerated. I don't know how that

inference can be drawn, in that there is no way that this prevents

people from speaking up as they have in the past and as they can in the

future. But is dissent the real objective, or is the achievement of

educational objectives and educational improvement the objective? If

dissent is the major objective, then it doesn't prevent it. If

cooperation is the major objective, then of course it is welcomed and

is quite acceptable within the bill, before or after Bill 20.

That

this is unnecessary legislation that carries on the confrontation . . .

. I don't know if the member has forgotten what happened before the

legislation was introduced: we were facing work-to-rule, the

confrontation that had been in place. I'm very sincere in hoping that

now that the bargaining rights and these issues have been settled, we

can in fact get back to discussing educational issues rather than

bargaining rights on an almost permanent basis.

Input.

As I indicated, this does not remove input; it welcomes input into

various ministry functions — for instance, curriculum development,

professional development, program development. None of those has been

removed by Bill 20.

Again,

I could indicate that we would like to have cooperation. The ministry

is not withdrawing from any of the curriculum committees, program

committees, accreditation committees, or anything of that nature. So I

welcome the cooperation of the teachers in this province on all of the

things that they have been involved in in the past and, hopefully, on a

more direct route in the future on educational issues, where we can

continue to talk about that.

I look forward to working

with teachers. I think it is important that we get back to dealing with

educational matters, now that the full bargaining rights issue has been

settled. I really look forward to doing many of the things that we're

looking forward to doing in the educational field, for the improvement

of education, for the teachers, for the public and for the students of

this province.

Bill 20, Teaching Profession Act, read a third time and passed on division.

HON. MR. STRACHAN : I call second reading of Bill 25, Mr. Speaker.

LEGAL PROFESSION ACT

HON. B.R. SMITH :

On very lengthy notice, it's nice to rise fresh and unencumbered with

notes or anything else on the Legal Profession Act. But it's a bill

that I know reasonably well. In 1986 we introduced amendments to the

Legal Profession Act which are basically intact here, but I think what

I should do is indicate the changes that have been made since the bill

was introduced last time, and I'll do that in my speaking notes.

have the honour to move second reading of Bill 25. I want to describe

how this bill was put together. The Law Society in 1982 commenced the

task of revising the existing Barristers and Solicitors Act. The last

revision of that was in 1955. It was seen to be badly in need of

modernization and reorganization to deal with confusing, obsolete and

misleading provisions. The process of revision has involved input from

benchers, officers and a number of members of the Law Society and

government drafters. Through 30 drafts, a membership review, two

special general meetings and the involvement of the Canadian bar, a

high degree of consensus among the 5,800-member legal profession has

emerged as to how to fulfil their statutory mandate to govern the

profession and protect the public interest. I mention this process

because, as the member for Esquimalt-Port Renfrew (Mr. Sihota) and I

both know, a lot of broad consensus has been achieved in order to

produce the bill that is here today. I want to commend the benchers,

the members of the Law Society and the Canadian bar for their process

and for the product. These efforts have been significantly assisted in

the work that's been done by my department and by legislative counsel,

and we think the legislation has been improved. An overwhelming

majority of the Law Society's proposals have been incorporated, but

some have not.

The major provisions in this bill relate to

the public interest, the powers and functions of the benchers,

credentials, competency and disciplinary committees, confidentiality

and financial responsibility, fees and taxation, distribution of

unclaimed trust funds and the practice of law by corporations.

This

bill for the first time spells out the Law Society's object and

paramount duty to uphold and protect the public interest in the

administration of justice. Methods of doing so include protecting the

freedoms of all persons, overseeing the independence, integrity and

honour of the legal profession, and setting standards for the

profession.

The powers and function of the benchers are

provided in this new bill. The benchers are the governing body of the

Law Society. For the first time provision is made for the appointment

of three non-lawyers to serve two-year terms as lay benchers. These

benchers may serve on all committees and may sit on discipline cases.

Previous provisions included regional representation among the

benchers; those are continued and simplified.

Provisions in

this bill will make the benchers more accountable to the membership by

requiring implementation of resolutions of the members unless these are

contrary to the Law Society's statutory obligations.

Another major improvement here is that the benchers will provide for

the qualification and certification of members as specialists to set

standards for competency; they may regulate specialization and they may

set financial standards and inspect records. The authority to set

financial standards and inspect records is sought largely as a result

of financial difficulties that were faced by a very few members during

the recession.

Another new provision will make B.C. the first law society in Canada to provide for archival deposit of members' records.

[ Page 1225 ]

This

bill will give the benchers broader powers over admission to the

profession and the competency and discipline of those practising law.

Present procedures will be reformed to enable appropriate committees of

benchers to perform these functions which previously required a direct

involvement of all benchers. The committees are empowered to require

that members answer questions and provide information, while the

confidentiality of clients' information will always be respected. In

order to reflect the variation in fields of practice, the Law Society

is authorized to define qualifications and provide certification of

specialties. A very high priority is placed upon ensuring a high level

of competence within the profession for the protection of the public.

For

the first time, a competency committee is specifically recognized in

the act. It will have the authority to investigate cases of suspected

incompetence and to recommend to the member ways to improve knowledge

and skills. Alternatively, in an extreme case of incompetence the

matter may be referred to the discipline committee. In cases of alleged

incompetence or professional misconduct, the discipline committee can

inquire into actions of the members or a former member or an

article

student. They can conduct a preliminary investigation and require the

production of files or records. The bill clearly lays out the

discipline committee's options where they have determined that a

lawyer's action has constituted professional misconduct, conduct

unbecoming a member or in contravention of the act or rules. In these

cases the offending lawyer may receive a reprimand, a fine of up to

$10,000, have conditions imposed upon his practice, or ultimately be

suspended or disbarred. Where the discipline committee determines that

a lawyer's performance of his duties has been incompetent, the

committee will also be able to disbar or suspend, or choose from a wide

variety of remedial options, including suspension until the courts or

examination have been completed, suspension until satisfying a board of

examiners of the individual's physical and mental health or freedom

from addiction, or placing limitations and conditions upon his

practice, including direct supervision by others. Of course, for all

credentials, competency and discipline committees, provision for appeal

and fair process will exist.

I mention these details

only, Mr. Speaker, to clearly indicate to this House that a major and

recurrent theme of this bill will be to safeguard the public through

setting and enforcing high standards for the practice of law in this

province. These provisions significantly improve the Law Society's

ability to regulate the profession, and the delegation of work to

committees is a more efficient approach to enable them to handle

overall policy matters.

There will also be provision to

regulate members' financial records, fees and trust accounts. To ensure

a high level of confidence and integrity in the general practice of

law, these provisions will be of great assistance. The benchers are

empowered to set standards of financial responsibility for those who

practise law in this province, and to order the audit of books and

records. Violations of these financial standards are dealt with by the

discipline committee. This bill provides authority for lawyers' records

to be inspected to ensure that standards of practice are maintained.

These inspections relate primarily to the need to assess the integrity

and financial viability of a member's professional practice.

The

bill empowers the benchers to set conditions to be met by members on

the form and content of contingency fee arrangements entered into with

clients. There is a statutory prohibition in this bill against

contingency fees in cases involving matrimonial disputes or child

custody or access. The bill also provides that where a client is

unhappy with an agreement for payment for legal services, the client

may apply to the registrar of the Supreme Court and have that agreement

reviewed; and the registrar may conclude that the contract is unfair or

unreasonable, and may require that it be modified or cancelled.

[Mr. Speaker in the chair.]

The

bill creates authority for the Law Society to make rules governing the

care of clients' trust accounts and to designate suitable financial

institutions for their deposit. The society is empowered to enter into

agreements with savings institutions concerning the investment and

security of pool trust accounts. The society may operate an account

called the Law Society pool trust account, the interest from which is

held for the benefit of the Law Foundation, a body which disburses

these moneys for public education, legal aid and other worthy public

legal objectives. The fund would ensure that members' trust cheques

drawn on their pool trust accounts are honoured, even in the event of

the failure of a financial institution. The pool trust fund provisions

are intended to both increase the security for clients' funds held in

weaker financial institutions and to significantly increase the

interest income that goes to the Law Foundation. The bill will create

an obligation upon savings institutions to report to the Law Society

any overdraft of more than $1,000 of a member's pool trust fund

account. As well, for the first time, where a lawyer has been unable to

locate a client for two years, any trust funds held on behalf of that

client may be transferred to the Law Society, which will hold these in

trust as a service to both the client and the lawyer. If the funds

remain unclaimed for ten years, the principal goes to the Law

Foundation for its public purposes.

[4:30]

This bill also allows lawyers to incorporate their practice of law as a law

corporation or personal law corporation, and the statute and rules of the Law

Society will govern these corporations. So it won't be a way of circumventing

conduct rules or discipline. Incorporated practices will be allowed to engage

in only the provision of legal services or directly related activities, and

voting control has to remain with members of the Law Society. Incorporation

will not shield a lawyer from liability for his negligence or professional misconduct,

or from discipline by the Law Society. By being allowed to incorporate, lawyers

will be able to organize and conduct their business in a form like that of most

other major professions and small businesses — other professions do and can

incorporate — but with very strict rules and protections for the public.

The

changes made since the legislation last year include the practice of

law by incorporations, which I've just dealt with; the transaction fees

on the insurance program; letters of complaint against a lawyer; the

society's correspondence not being discoverable for civil litigation; a

provision that savings institutions report overdrafts of pool trust

accounts; and a number of minor amendments and some four amendments

that were incorporated from the 1986 session.

Mr. Speaker,

if I was to point to any features of this act that are the most

important, I would point to those that will provide for lay benchers,

that will acknowledge the public responsibility of the Law Society, and

will enhance and

[ Page 1226 ]

strengthen their ability to deal with competency and discipline. I therefore have the honour to move second reading.

MR. SIHOTA :

Mr. Speaker, the Attorney-General aptly noted I was out of the room

when this bill was introduced. I must confess, as the Whip opposite

knows, that I was told about this a little bit earlier on this

afternoon. I didn't take him seriously, and my Whip never did tell me

that we would indeed be dealing with this legislation today.

Nonetheless, I was glad I heard it over the speaker — to let all of you

know I do listen to it in my room. I'm glad to have the opportunity to

come into the House to talk a little bit about this legislation.

People

are going to begin to wonder if I'm in cahoots, one way or the other,

with the Attorney-General. Not only did I agree with Bill 22 introduced

earlier this afternoon, but here I am again saying that on our side of

the House we're also in concert and agreement with Bill 25 and pleased

to see that it has come before the House. It is really going to have

everyone wondering what the Attorney-General is up to if we find

ourselves agreeing to his legislation over and over again. However, as

I've just been told by the government Whip, we will be dealing with his

estimates next, and I guess that's where all this good will stops, so

I'm putting you on notice in terms of what's to happen next.

I want

to talk a little bit about the process in this legislation. I think

that in principle the type of approach taken to the introduction of

this legislation is the type of approach we o