1998 Legislative Session: 3rd Session, 36th 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 12, 1998

Afternoon

Volume 9, Number 18

[ Page 7735 ]

The House met at 2:06 p.m.

Hon. J. Pullinger: I have two people visiting the Legislature -- the first time in question period for both of them, I understand -- and they're both from the ministry. Terry Feesey is a manager of social planning from the planning branch, and Julie Bryant is from my ministry's intergovernmental relations office. Both of these folks are part of the team that has helped us move people in record numbers from welfare to work, and are helping us, as British Columbians, lead the fight on child poverty in Canada. They do remarkable work, along with the rest of my ministry, and I ask the House to please make them welcome.

R. Coleman: At noon today some members of my caucus, along with our crime committee, were presented with a 15-minute skit. It was written by some grade 9 drama students from D.W. Poppy School in my riding, and was followed by some very insightful questions and answers about youth violence. They're seated in the gallery today with their teachers, Paige Davis and Wendy Cook. Will the House please make them welcome.

B. Goodacre: Visiting us today from Smithers is a lifelong friend of mine and a respected elder in his church, Will Vandergrift, and his wife Yvonne and Yvonne's parents from Port Alberni, Mr. and Mrs. Dykstra. Will the House please make them welcome.

V. Anderson: Today there are 39 grade 11 students joining us from Magee Secondary School in the Vancouver-Langara riding, and with them are Mr. Latimer and Mrs. Fumano. I ask the House to make all these students very welcome.

C. Hansen: In the gallery today is Philip Hochstein, who is the executive vice-president of the Independent Contractors and Businesses Association. I ask the House to make him welcome.

Introduction of Bills

BOAT OPERATORS CERTIFICATION ACT

J. Weisbeck presented a bill intituled Boat Operators Certification Act.

J. Weisbeck: Currently in British Columbia, anyone of any age can operate a boat of any size and any horsepower rating. The lack of skill, efficiency and knowledge in the operation of a boat has a profound impact in British Columbia, with an average of 40 fatalities a year related to boat mishaps. It has been shown in other jurisdictions that when mandatory certification is in effect, there is a decrease in the loss of life due to boating accidents.

This bill states: "Except as otherwise provided in this act, a person shall not operate a motorized recreation vehicle upon the waters of the province unless that person holds a valid boat operator's certificate."

Bill M206 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Oral Questions

LEVEL OF PATIENT CARE IN HOSPITALS

S. Hawkins: The medical staff at Kelowna General Hospital recently passed this motion: " . . . the hospital is in a critical state due to inadequate funding to the point of unsafe patient care." The chairman of the medical advisory committee, Dr. Andy Pattullo, resigned. His reasons were overcrowding, long waits in emergency and a critical bed shortage. My question is to the Minister of Health: can she tell us today why patients in the interior are being told that their hospital, by its very own admission, cannot provide safe patient care?

Hon. P. Priddy: I don't think there are many hospitals in the province that don't find themselves with a number of challenges, all of which we are working on with them -- including wait-lists, which we will hear more about later in the week. It is also important, as we look at where the resources for health care go, that there was a 3.3 percent increase in the Health budget this year in total.

I met the regional health board when I was in Kelowna. They raised three or four specific issues with me. We have found solutions to a couple of those, and we're working on the other ones. While we can always wish for more for every hospital -- I probably would for my own as well -- I do not think it's unsafe treatment in any way in Kelowna.

The Speaker: First supplementary, the member for Okanagan West.

S. Hawkins: The minister mentioned wait-lists. On the front page of my paper, it says that a five-year-old has waited a year and a half for surgery, and she is being flown to the U.S. so she doesn't have to wait. In the same region, the medical advisory committee at Penticton Regional Hospital recently declared in a motion: " . . . we can no longer assure the community of safe and effective acute medical care." That's in Penticton. Can the Health minister tell us why her government has let health care sink to such a low level that hospitals are warning their patients that they can't provide safe and effective care anymore?

Interjections.

Hon. P. Priddy: No. The member is correct: it is not funny. I think it's extremely important to recognize that while there are challenges and there are wait-lists in hospitals, we will be doing additional work around that, which I think will make an enormous difference. Let's be very clear that this is the only province in Canada that has consistently increased health care funding every single year for the last seven years. For individuals who are waiting for specific kinds of surgery -- and I'm not going to comment on this case in particular, although we'd be pleased to talk to the family about it . . . .

In terms of people on wait-lists, we also need to be doing more work about how we manage wait-lists, so that we don't have one person with a wait-list of 37 weeks providing surgery services and another person in the same community with only a four-week wait-list but where patients aren't necessarily being referred. So there is a management issue, as well, around wait-lists.

R. Neufeld: My question is also to the Minister of Health. The Okanagan is not the only area of the province that is having some emergency room problems. Dr. Joe Quigg, an emergency room physician at Cariboo Memorial Hospital . . . .

[ Page 7736 ]

Interjection.

The Speaker: Hon. minister, come to order, please.

R. Neufeld: Dr. Quigg of Cariboo Memorial Hospital has written that emergency room overcrowding is becoming a problem. I read to you a quote from his letter: " . . . reached an unacceptable level and is a disaster waiting to happen." Can the minister tell this House and people in the Cariboo why emergency health care for rural residents has become a disaster waiting to happen?

[2:15]

Hon. P. Priddy: In the area that the member refers to, there have been a number of issues other than emergency room wait-lists that have come up. In point of fact, we have staff who are working with that geographic area to look at how we can provide not only a different service but a better service and a better-coordinated service. Are there backups in emergency rooms? Yes, there are, and there are a number of solutions that people have to reach before you solve emergency room backups. One of them is that you have to have people who . . . . We have to do better education with people about how and when you use emergency rooms . . .

Interjection.

Hon. P. Priddy: . . . or how you use another kind of health service. Yes, the member who is shouting . . . .

Interjection.

The Speaker: Hon. members, the minister has the floor.

Hon. P. Priddy: I'm sorry -- there are not beds being closed. It's not about closing beds at all. But it is about providing a different level of care -- which is more beds in the community, more long term care beds so that the emergency department has a freer flow . . .

The Speaker: Hon. minister, thank you.

Hon. P. Priddy: . . . into acute-care beds in the province. That's the strategy, hon. Speaker, and people will hear more about it.

The Speaker: First supplementary, the member for Peace River North.

R. Neufeld: The bed closure situation in Cariboo hospital is so bad -- absolutely so bad -- that I'm going to read another quote, another damning quote, out of Dr. Quigg's letter to the minister . . .

The Speaker: Hon. member . . . .

R. Neufeld: . . . that says: "Closing the emergency room would be safer than having a false sense of security that emergency services can be provided." Now, you can tell us . . .

The Speaker: Your question, hon. member.

R. Neufeld: . . . all you want about training people. But can you tell us, as the Minister of Health for the NDP, when you've said that health care is your main concern . . . ?

The Speaker: Through the Chair.

R. Neufeld: We're having areas of the province where the emergency room doors are being slammed in their faces and beds are being closed.

Hon. P. Priddy: I don't know if the member is referring to closed hospital beds or the backup in emergency. We are not closing hospital beds. And if there is a more significant emergency room problem at this particular hospital, then I would appreciate the member coming to me, and we will look and see if there are additional resources or additional ways of managing that. But the only place in the province I'm aware of where emergency room doors are being closed is where doctors have closed them.

U.S. QUARANTINE OF VANCOUVER ISLAND PRODUCTS

G. Wilson: My question is to the Minister of Environment. On April 28 of this year, representation was made to the United States Department of Agriculture to put in place an immediate quarantine against the movement of Canadian plant materials, lumber and other products coming off Vancouver Island. This has been requested of the USDA as a result of the Environmental Appeal Board turning down the application for gypsy moth spray. Can the Minister of Environment tell us what action she is now taking to stop this quarantine of the export of Canadian products off Vancouver Island?

Hon. C. McGregor: Hon. Speaker, I'll take the member's question on notice.

ADEQUACY AND COST OF POLICE SERVICES FOR CROWD CONTROL

G. Plant: For two consecutive nights last weekend, 200 people rioted on the streets of Trail, which is one of the communities that has lost its auxiliaries because of the decision by the Attorney General to disarm them. In the absence of the auxiliaries, the local police had to call in reinforcements from Rossland, Fruitvale and from as far away as Castlegar. My question for the Attorney General is: how much extra did it cost to bring in reinforcements from outside the city of Trail, rather than use auxiliary police?

Hon. U. Dosanjh: The question of the extra cost can only be answered by the people in the community.

But the difficult issue is whether or not we in British Columbia want to continue to provide side arms to auxiliaries. The RCMP and the Vancouver police came to the Attorney General of this province and made very serious recommendations. There were issues about legal liability, there were issues about auxiliary safety, there were issues about the safety of the regular police officers, and there was the issue of the ongoing review of this matter. I've asked that it be expedited and completed before September.

When the police forces of this province come to the Attorney General and say, "There are serious issues; we want you to give us an order suspending side arm use in British Columbia," the Attorney General of the province doesn't have the luxury of saying: "Let me think about this for about five days. I will make a decision, and I'll disregard the unanimous recommendations of the police forces in British Columbia."

The Speaker: I recognize the member for Richmond-Steveston for his first supplementary.

[ Page 7737 ]

G. Plant: British Columbians have been waiting for over a month for a real explanation as to why the decision to disarm auxiliaries was made -- a decision that was made without consultation and without notice to any of the auxiliaries, who have now withdrawn their services because they feel that they are no longer valued by this minister or this government.

The Speaker: And your question.

G. Plant: We're heading into a long weekend.

The Speaker: Your question is?

G. Plant: All across British Columbia there will be public events involving thousands and thousands of British Columbians. How does the Attorney General plan on replacing the 1,000 auxiliary officers and their volunteer hours this weekend, and how much will replacing them cost the taxpayers of British Columbia?

Hon. U. Dosanjh: We had a thorough debate on this issue during the estimates. All of these questions were put and answered. Let me repeat some of those answers.

The issue is that when these auxiliaries go into the police force to do volunteer work . . . . If you ever asked them -- even if you ask them today -- their answer would be that they didn't go into police volunteer work to bear side arms. That's the issue. Next, it is important for us to remember that in all of the jurisdictions in this country with the exception of British Columbia, there have been no side arms with the auxiliaries. They have been doing crowd control, traffic duty, crime prevention and education in the schools and in the neighbourhoods. I am urging these auxiliaries to do the same, pending the review that's to be completed as early as possible.

The Speaker: I recognize, for his second supplementary, the member for Richmond-Steveston.

G. Plant: Perhaps the Attorney General could make this improvement in his review process: perhaps he could include auxiliaries in the committees that are conducting the review.

The Speaker: And your question?

G. Plant: Hon. Speaker, it's not good enough for the Attorney General to make a decision that results in the drop and the decline and the end of service in communities across British Columbia . . .

The Speaker: Your question, hon. member.

G. Plant: . . . and then say: "I won't solve the problem of costs; that's for the taxpayers of the communities." So I ask the Attorney General again: what will he do now, on the eve of a long weekend, to reassure people in communities across British Columbia that they will have effective, affordable policing this weekend?

Hon. U. Dosanjh: I made the press release issued by the RCMP available to everyone in this building. That press release was issued subsequent to the order that was issued by the RCMP taking the side arms away from the auxiliaries. That press release said that there would be no reduction in the level of policing in British Columbia; the safety of British Columbians would be assured by the RCMP, as it was prior to the auxiliaries losing their side arms. It is important for people to recognize that crime prevention, traffic control and crowd control do not always require the use of side arms.

PHARMACARE DELISTING OF HEAD LICE MEDICATION

K. Whittred: My question is for the Minister of Health. Last week the government announced that starting on June 1, Pharmacare would no longer cover head lice treatment. Dr. John Blatherwick, the Vancouver medical health officer, described this as bad public policy, as it impacts most directly on the poor. Will the minister today admit that her ministry made a mistake and reverse its decision to delist head lice treatments?

Hon. P. Priddy: The delisting of head lice medication is the delisting of something that you can actually buy without a prescription. I don't think it's good, sound Pharmacare policy or public healthy policy to be covering an item with Pharmacare dollars which you can go to the drugstore and buy without a prescription.

The Speaker: First supplementary, member for North Vancouver-Lonsdale.

Interjections.

The Speaker: Order, hon. members.

K. Whittred: The issue here is not as much about Pharmacare, perhaps, as it is about who can afford to buy the product. Head lice infestations in schools are pervasive; they spread like crazy. But if parents can't afford these treatments, children will not get the care they need. Can the minister tell this House if she consulted with either the Vancouver-Richmond health board or the Ministry of Education prior to delisting head lice treatments?

Hon. P. Priddy: No, I cannot tell you what consultation took place, but I will certainly find that out and answer it for you.

Hon. Speaker, while I acknowledge that for people who are on limited incomes any additional expense is undoubtedly a problem, let's also bear in mind that we have covered hundreds and thousands more people for MSP premiums in the last several years of this government. We have increased the Pharmacare budget by a third. Should we cover everything? We'd all like to cover everything. But this is an opposition that said that $6 billion was enough to spend for health care . . .

The Speaker: Hon. minister, thank you.

Hon. P. Priddy: . . . and we're spending well over $7 billion . . .

The Speaker: Thank you very much.

Hon. P. Priddy: . . . in order to provide those services to British Columbians.

Interjections.

The Speaker: Hon. members, order, please.

The Minister of Forests is rising to respond to a question.

[ Page 7738 ]

IMPACT OF FORESTS POLICY ON TAHSIS

Hon. D. Zirnhelt: On Tuesday, May 5, the member for Powell River-Sunshine Coast asked if the Minister of Forests was trying to kill Tahsis. I responded by saying that I would take the question on notice. I would like to inform the House that the answer to the member's question is no.

Interjections.

Hon. D. Zirnhelt: I did think that the answer was self-evident, hon. Speaker.

Interjections.

The Speaker: Hon. minister, just a moment, please. Order, please, everyone.

Interjections.

The Speaker: Hon. members, order, please.

Hon. D. Zirnhelt: Hon. Speaker, they sound surprised. In simple terms, the proposal involves realigning timber supply commitments on the west coast of Vancouver Island to enable the companies to plan for more stable operating areas. No decision has been made about changing the timber supply on north and central Vancouver Island. What is being discussed is a proposal put forth by industry. Forest district staff met with various stakeholders, including contractors, small business forest enterprise registrants, truck drivers, first nations and community leaders, including Mayor McCrea of Tahsis.

We explained to everyone that we were still in a consultation process. The issues and concerns that their mayor raised were precisely the kinds of issues that the consultation process was designed to address. We're continuing to work with Mayor McCrea to answer all questions before we make a decision.

Tabling Documents

Hon. D. Lovick: It is my pleasure today to table the British Columbia Labour Relations Board annual report for 1997.

Hon. D. Zirnhelt: Hon. Speaker, I have the honour to present the Forest Renewal B.C. 1996-97 annual report. And I have the honour to present the report of the Forest Practices Board of British Columbia for 1997.

Orders of the Day

Hon. J. MacPhail: I call Committee of Supply A. For the information of members, we'll be debating the Ministry of Education estimates and then the Ministry of Transportation and Highways. In this House, I call Committee of the Whole to debate Bill 19.

[2:30]

ATTORNEY GENERAL STATUTES AMENDMENT ACT, 1998

The House in committee on Bill 19; W. Hartley in the chair.

section 1.

G. Plant: One of the things Bill 19 does is amend the Consumer Protection Act. Here, I think that the only new stuff in terms of the statute are the changes with respect to travel club services. Is that correct?

Hon. U. Dosanjh: Correct.

G. Plant: There are already regulations in effect to extend consumer protection with respect to travel clubs. If that's so, first of all, am I right that what's being done here is to bring them into the statute to give them the protection which other types of contracts for future services enjoy under the statute?

Hon. U. Dosanjh: Yes.

G. Plant: Generally speaking, though, the same rules will apply going forward as have applied over the last little while -- that is, seven-day cooling-off periods and the rules that the Attorney General announced, I think, largely as a result of the Platinum Passport club affair. There's no intention to change the rules substantively here -- is that right?

Hon. U. Dosanjh: Correct.

G. Plant: While this question belongs properly under

section 2, I'll ask it now, and we can move on it if you want. Why is there a sunset clause in respect to the regulations that are the subject matter of

section 2 of this bill?

The Chair: Perhaps while the Attorney General is considering that answer . . . . Will

section 1 pass?

Section 1 approved.

section 2.

Hon. U. Dosanjh: It was intended to be temporary so that we could have permanent protection in the statute; that was intentionally done.

G. Plant: I'm guessing here as to what the effect of the sunset clause is. Does that mean that the regulation that existed in respect of travel club services will come or has come to an end and will be replaced by the statutory protection? Or am I missing the point?

Hon. U. Dosanjh: This was an interim measure. The regulation reads, oddly enough, that as soon as the new sitting of the session of the Legislature begins, the regulation comes to an end. Hence we're here to include this protection in the statute.

G. Plant: Is the ambit of this amendment limited to the issue of contracts for travel club services, or does it extend to other subject matters?

Hon. U. Dosanjh: Just for travel clubs.

Sections 2 to 4 inclusive approved.

section 5.

G. Plant: Well, we turn now to the changes to the Residential Tenancy Act, the first of which is to give arbitrators certain powers in cases where landlords have exercised a right

[ Page 7739 ]

of entry. The additional power given to the arbitrator by the statute is a power that arises where an arbitrator is satisfied that a landlord has essentially entered the premises for an improper purpose or in an unreasonable manner.

The first question is: to date, have arbitrators lacked the power to make any orders in respect of the improper exercise of the landlord's right of entry?

Hon. U. Dosanjh: So far the arbitrators have only had the power to bar entry, not to regulate entry. I think this provision will go to the extent of allowing the arbitrators to regulate entry.

G. Plant: Is it the Attorney General's view that granting this power of regulating entry will add to the workload of arbitrators by essentially turning them into supervisors of good behaviour by landlords and tenants?

Hon. U. Dosanjh: This power to bar or ban entry was obviously used sparingly by the arbitrators. Similarly, I think this power will be used only in the circumstances where it becomes clear to the arbitrator that something short of a total ban of the entry may be required. One could argue the same with respect to the banning of entry: where the entry was banned, were they supervisors? These are processes that are followed by quasi-judicial bodies, and we live with them.

G. Plant: How many of these orders to ban entry are made year by year, by Residential Tenancy Act arbitrators?

Hon. U. Dosanjh: I'm advised that there have been very few orders. I couldn't give the number, although a number less than ten was mentioned, but in a very unsure way. I wouldn't want that to be on record as the number.

G. Plant: The question that always arises -- I guess in law school -- when you're asking about a new piece of legislation is: what is the evil against which this provision is directed? I'm not sure there's much evidence of an evil if there are only ten or fewer absolute-bar orders made a year. Are we dealing with a particularly widespread problem here or just something that someone thinks, on the basis of a kind of non-statistical, non-objective criteria analysis, would be a good thing to do for the arbitrators -- to give them this additional power?

Hon. U. Dosanjh: I think it would be a useful extension and broadening of the power. Let's imagine a case where the entry has been banned, there is an emergency, and you can't get access -- where something less than a total ban could have served a better purpose. I think that's why this power is being enhanced and extended: so that perhaps those kinds of conditions could be attached -- that under certain circumstances of an emergency those regulations or conditions that the arbitrator might set in place are not operative. Because you need to deal with them.

But if you change the lock -- if that was the only way of banning entry before, because the court arbitrator authorized the changing of the locks -- then the landlord is in a very difficult position and can't get into the premises to deal with emergencies and the like. I think that this is a compromise which I'm hoping will be useful both to the landlords and to the tenants.

G. Plant: Part of my concern here is that we don't really . . . . The Attorney General's explanation is probably reasonable up to a point. It might be that you could deal with that specific issue legislatively. But what's been done instead is that rather open-ended terms are being used -- "improper purpose," "unreasonable time," "unreasonable manner" -- and neither landlords nor tenants are going to know with any certainty what their rights are, frankly, until we have a whole body of decisions.

Hopefully, if the Attorney General is successful in persuading the arbitrators to establish a body of precedents, then those decisions will mean something. But for now, arbitrators do not operate under the precedent system; they operate case by case and make any decision that they feel is just, on the facts of the case.

I guess I'm concerned here about uncertainty and unpredictability as much as anything else. I'm particularly concerned when I hear that there really isn't yet, at this point, a large number of cases where this is likely to become a problem. My concern is that what will happen, among other things, is that through the back door, people will read content into what an improper purpose or an unreasonable time means, and we'll end up having to rewrite landlord-tenancy agreements to make express exemptions for entry in cases of emergency, which may already be the case in many residential tenancy agreements. It seems to me, to use another time-honoured phrase, that this

section uses a sledgehammer to kill a fly. I'm not sure why the sledgehammer is necessary.

Hon. U. Dosanjh: I think we've gone over this. I've said why this power might be more useful than the simple and only power, which was to ban entry. It won't be difficult for arbitrators or landlords and tenants to recognize what's proper and what's not proper. Obviously an entry at midnight to change a lightbulb certainly isn't acceptable. I think that those are the kinds of issues that arbitrators can deal with without taking drastic action, such as allowing or authorizing the tenant to change the locks so that during emergencies the landlord couldn't have access to prevent damage.

R. Coleman: I think the Attorney General and his staff should look back at their own policies in the print material they're distributing to their own landlords. I'll just quote it back to you, because you're talking about somebody changing a lightbulb at midnight and that sort of thing.

There are standards of practice within the landlord and tenancy arrangement in this province today.

Basically it's outlined that your landlord can enter your premises under the following circumstances: if there's an emergency such as a fire, an exploded pipe or flooding; if you are at home and agree to let the landlord in; if you've agreed, not more than one month before, to let the landlord in for certain reasons, which would usually be a maintenance issue, something to do with the toilet or something that had to be fixed or the changing of blinds or painting; if you've abandoned your suite; if your landlord has an arbitrator's order or court order to enter your home; or if your landlord has given you written notice of at least 24 hours and not more than 72 hours in advance.

The notice should give the reasons for entering and the hours of the day your landlord will spend in your suite. The reasons must be valid, and your landlord's time in your suite must fall between 8 a.m. and 9 p.m., unless you agree to another time. That has been the method of operation. I believe that's what you can pull off your own home page relative to residential tenancy.

I get concerned when we put something into a

section of the Residential Tenancy Act that gives this arbitrary situation to a group of arbitrators, which I've always stated don't have a standard of practice, don't have a set of rules to guide themselves by, don't have a set of rules of evidence or operational

[ Page 7740 ]

procedures and don't have any measurements to determine whether the arbitrators are actually being measured on their performance. The records are not necessarily written in arbitrations. Therefore we don't have written records of the arbitrations so that we can even monitor whether we have case law in residential tenancy issues.

If we're going to have a

section like this, we'd better outline up front what the reasonable reasons are that we can go into a suite before we say we're going to go back to an arbitrator. And all of a sudden, an arbitrator who isn't aware of your own policies or procedures or guidelines makes a decision that says you can no longer come in and do maintenance in a suite.

[2:45]

Hon. U. Dosanjh: This is obviously an amendment to

section 16 of the Residential Tenancy Act -- an addition of subsection (3). I think it's important to recognize that those are rights that are delineated for the landlord, and if the landlord abuses those rights or exercises them improperly, there are no remedies available to the tenant. This would provide a remedy for the tenant, where limits could be placed on those rights of the landlord, so that the tenant doesn't have to vacate the premises under unreasonable circumstances. I think this is a clear balancing of the rights of the landlord on the one hand, but it provides some remedy for the improper use of those rights.

G. Plant: The price of striking the balance is going to be to create uncertainty. I worry here that the cure is going to be worse than the disease. The Attorney General points out that

section 16 is about giving the landlord the right of entry. The Attorney General points out that that right is already subject to the power of the arbitrators to make an order to essentially prohibit the right of entry.

Now we want to find the happy medium. The problem with the happy medium is that it involves using words like "unreasonable" and "improper," which are simply value judgments, which we're now asking a group of people to make who don't have any of the safeguards in place that my colleague mentioned a moment ago. We don't do performance reviews, we don't know what principles they apply, and we don't know what rules they follow. Neither will the landlords and the tenants who are going to start arguing about this.

We could have an interesting discussion, I'm sure, about what perfect justice is or is not and what's affordable justice and what is not. I think that one of the most important principles of public policy around landlord-tenant issues is to create something that is certain, that is accessible to lay people. It may be that sometimes certainty comes at the price of occasional hardship. Who's to say that we couldn't all argue about that constructively for quite a while? We might actually all find that we're agreeing with each other.

But you know what? I actually think that we lose something here when we lose certainty. Among other things, I know what will happen: my mailbox will get more full rather than empty with issues that I don't think should be in my mailbox at all, issues where people are writing to me saying they don't have a clue what happened in a residential tenancy arbitration process. They have no idea how the arbitrator made the decision that was made, and they have no basis for figuring out the logic.

What we're doing, in that context -- which I think the Attorney General accepts is an unacceptable context, which the landlords' advocates argue is an unacceptable context and which the tenants argue is an unacceptable context . . . . We're giving arbitrators more powers, and we're giving them powers in terms which invite them to exercise value judgments about issues of reasonableness and appropriateness. I think that's a mistake.

Let me ask this, though. Perhaps some of this could be dealt with if there were a set of guidelines in place that said: "This is what constitutes unreasonableness in these circumstances; this is what constitutes impropriety in these contexts." Can the Attorney General give us any comfort around what his intentions are in terms of issuing guidelines, or something like that, that would at least address some of my concerns around uncertainty?

Hon. U. Dosanjh: Two points: one is in response to the earlier comments. There's a certain level of discomfort that I detect on the part of the hon. member with the use of terms such as "unreasonable time" or "unreasonable manner," and the hon. member is saying that it's very difficult for an arbitrator to determine those matters in an objective fashion. But those very words are in the current right of entry for landlords. For instance, if you look at 16(1)(f): " . . . the landlord has given written notice of entry for a reasonable purpose . . . . " And nobody else determines that purpose other than the landlord.

So if the landlord can determine that purpose, there has to be somebody else who can then perhaps determine that maybe it's not reasonable. I appreciate the discomfort the hon. member is expressing. There are always issues of uncertainty when something new is added to existing legislation, and I'm hoping they'll be able to work out these difficulties without much problem.

The second issue that the hon. member raises is a lot more serious, and I agree with him that the arbitrators need a certain set of guidelines to guide their decisions. I have said -- I said about a month ago -- that I'll give them six months to settle on those guidelines amongst themselves. If they don't do that, I will impose them -- and I do intend to do that. I'm sure they'll be looking at Hansard to start working on them very quickly.

Section 5 approved.

Hon. U. Dosanjh: Hon. Chair, I move the amendment --

section 5.1 -- that's in the possession of the Clerk.

[SECTION 5.1, by adding the following section:

5.1

Section 17 is amended by adding the following subsection:

(4) If consent to assign or sublet the tenant's interest in a tenancy agreement is arbitrarily or unreasonably withheld by a landlord contrary to subsection (2), an arbitrator may order that a tenancy agreement is assigned or sublet.]

section 5.1.

G. Plant: I'd just like to clarify the purpose of the amendment. In the bill as read for a first time,

section 7 made changes by adding

section 54(5)(e), which uses the same language as the amendment. It seems to me that what the amendment seeks to do is to move the power in respect of assignment and subletting from

section 54 into the

section of the act that expressly deals with the subject of assignment and subletting. Is that correct?

Hon. U. Dosanjh: Yes.

G. Plant: Then is this a case where essentially the arbitrator is given, I guess, expressly a power to effect a remedy -- the remedy being to assign or sublet the property in cases where the arbitrator is of the view that the landlord's consent

[ Page 7741 ]

to such an assignment or subletting has been unreasonably withheld? I'll put it another way: was there some doubt about whether or not arbitrators had this power up until this point?

Hon. U. Dosanjh: I understand that there was a decision that cast some doubt on the arbitrators having this power, and that's why it's important that it's included.

G. Plant: I'm not going to pursue the point vigorously, although I will say this: oftentimes in some legal contexts, when a judge or some decision-maker decides that an individual who is required by law to make a decision based on reasonable circumstances fails to act reasonably, then the direction that is given is to act reasonably, rather than: "This shall be your decision." In other words, if the landlord unreasonably refuses consent to a sublet or an assignment of a tenancy, it may not always be the right thing in the circumstances for the arbitrator to say: "You unreasonably withheld your consent.

Therefore I order that you assign or sublet to the person who wanted it." I understand the reason for the need for the reform, and I support that. I'm not as happy with the choice of language to achieve the result as I'd like to be.

Hon. U. Dosanjh: Particularly with respect to mobile homes, if the arbitrator doesn't have the power to order that a tenancy agreement is assigned or sublet, valuable time is lost and sometimes the owner of the mobile home, who is the tenant, loses that sale. I understand that in the past the arbitrators have said, or maybe one arbitrator has said: "Yes. I have the power to hold this consent as being unreasonably withheld, but I don't have the power to assign or sublet. I don't have the power to order that it be assigned or sublet.

Therefore I only have the power to say that the tenant can now apply for financial damages as a result of the unreasonable withholding." That's why it was important for us to make sure that if there is a finding by the arbitrator that a subletting or assignment is unreasonably withheld, the arbitrator would know that he or she has the discretion -- it's permissive -- to order the assignment or subletting completed.

G. Plant: I appreciate the explanation. The provisions of

section 17 of the Residential Tenancy Act, when you are not looking at manufactured homes, only kick in in respect of a tenancy agreement that is more than six months in length. I guess that means that if a landlord wishes to let premises for a period of less than six months, the landlord is not bound by the obligation to act reasonably in respect of assignments and subletting. Is there any intention to change that by the amendment which is now before us?

Hon. U. Dosanjh: No.

R. Coleman: I just have a couple of quick questions regarding this section. The first one comes back to a discussion that should probably take place in this House at some point in time, relating to the fact that manufactured home parks probably don't belong under the Residential Tenancy Act. We should be into some sort of lease arrangement and have some standards of practice regarding the operation of these because of how it gets wrangled up.

The other side of it is that, again, in order to ever solve this problem completely, we're going to have to come to some standards of practice. When you get into the discussion about unreasonably withholding a tenancy, particularly on the assignment on sale, we have some difficulties in the industry relative to some of the product that is sitting in some of our parks that do not meet CSA standards because they are pre-1972. Today they are actually becoming hazardous to other homeowners in the same parks. That is one of the concerns about some standard of practice as far as livablity and the inspection of the unit relative to the transference of title and the transferring of the lease.

I'm wondering if when you dealt with

section 5 any of that was taken into your discussions -- in other words, how you were going to handle those types of tenancy, as far as setting some standard relative to the unit that is being transferred in the tenancy?

Hon. U. Dosanjh: If the hon. member would look at

section 14 of this bill -- which amends

section 90(2) of the current legislation -- sub-subsection 90(2)(

p) is a regulation-making power with respect to assignment and sublet of a manufactured home park tenancy agreement, so that we can establish criteria through regulations that would then govern the withholding or granting of consent. Then it's not done in a vacuum.

[3:00]

C. Hansen: I ask leave to make an introduction.

Leave granted.

C. Hansen: Visiting us in the gallery is a group of grade 5 students from Crofton House School in Vancouver-Quilchena. They're accompanied by their teachers Vicky Harris and Mark Fischer, and by parents Jim Abel, Karen Keating, Lian Cuddington, Jamie Maw and Rose Smith. I ask the House to please make them very welcome.

R. Coleman: I'm aware of that

section that we're going to be dealing with later. There's some debate around that section, as well, relative to who's going to make the decision as to what the standard practice in the manufactured home park is. At this point in time, the industry views it as something that's going to be done without consultation or discussion and be dealt with and just arbitrarily applied to them. Those are the calls I'm getting from both the tenants' groups and from the park owners' groups, because they had some concern there.

When we had discussions in the last two years relative to manufactured homes, we really felt in estimates at some time -- I remember I had the discussion with the former Minister of Municipal Affairs and the Attorney General -- that we had to clearly define this in a way that protected both the asset and the operation of the park in such a way that the other tenants would live in a park where other people are meeting standards.

As we get down further into the sections, I'm going to turn this over to my colleague from Shuswap. We're going to end up in discussions that are going to show us that some of what we're trying to do in this . . . . Some of the sections that we have in this particular bill are actually going to throw this industry somewhat into disarray relative to how we're going to have any hammer for people to behave so that everybody can have quiet enjoyment of their tenancy. I think we'll get into that discussion shortly.

My only concern would be that those standards of practice . . . . I'll ask the Attorney now: what consultative process do you have in place relative to setting the standards for the operation of these parks?

Hon. U. Dosanjh: Hon. Chair, I understand that there has been some consultation on the criteria that I spoke about

[ Page 7742 ]

with the Manufactured Home Park Owners Association and others. The criteria have in fact been drafted, and we will be discussing those with them further before they're finalized.

Section 5.1 approved.

section 6.

G. Abbott: I don't think there is any simple way to put this question to the minister. What we are primarily concerned with here is, I guess,

section 18(1)(c)(ii) of the Residential Tenancy Act. I'll just read

section 18(1): "A landlord and tenant are deemed to have agreed to submit to an arbitrator any of the following applications . . . . " And then, going down to subsection 18(1)(c): " . . . an application to dispute the amount of a rent increase between a tenant of a manufactured home pad and the landlord if . . . (ii) the tenant applies for arbitration within 30 days after (

A) the tenant receives a notice under

section 69(6) that the chair of the dispute resolution committee has refused to appoint a dispute resolution subcommittee." Now, is there a dispute resolution committee in every instance with which we would be concerned here?

Hon. U. Dosanjh: I'm given to understand that yes, there is a committee in every case.

G. Abbott: You're given to understand that in every instance where the tenant receives a notice of a rent increase, he goes to the chair of the dispute resolution committee and asks him to appoint a dispute resolution subcommittee. In every instance there is an established committee for the tenant to deal with.

Hon. U. Dosanjh: A subcommittee?

G. Abbott: No, a committee.

Hon. U. Dosanjh: Yes, there is a dispute resolution committee in every case. In some cases, this particular

section or subsection is intended to deal with cases where the DRC, as it's called -- the dispute resolution committee -- refuses to appoint a subcommittee. I don't understand the hon. member's question, if there is a question beyond that.

G. Abbott: What I'm attempting to do here is just clearly understand what I understand to be the "new portion" or the new contribution to resolving these disputes. I just want to be clear in my mind, before we pass this, that we have a practical working system that mobile home park owners and residents can deal with. In every instance, then, the tenant's application for arbitration 30 days after the tenant receives a notice from the landlord goes to the chair of the dispute resolution committee.

Is it up to the chair of the dispute resolution committee, or is it up to the dispute resolution committee to determine whether a dispute resolution subcommittee is appointed? It would appear that it is the chair. But is that the case?

Hon. U. Dosanjh: This only applies to arbitration. In fact, you have to have the mediation before you come to arbitration. This is a 30-day provision with respect to arbitration, and those 30 days kick in after the dispute resolution committee has refused to appoint a subcommittee after the tenant has received the notice under

section 71(3) ending mediation, or after the tenant received notice under 71(6) that a recommendation has been rejected -- and of course it would go on. This is a 30-day limitation set in that particular event.

[H. Giesbrecht in the chair.]

G. Abbott: Again, I know this is laborious and painful, but I think it's only fair, if my constituents who operate or are residents in mobile home parks are to be expected to understand the process -- and hopefully, I'm able to understand it as well . . . . So let's back up to the landlord delivering to the tenant a notice of a rent increase to which the renter takes exception. The first step is, in fact, mediation. Is that correct? Can the Attorney General describe to me how the mediation service -- if indeed it is a service -- is provided? How would either of the parties in this case obtain the services of the mediator, who pays for it and that sort of thing?

Hon. U. Dosanjh: If the hon. member understood the previous requirements for mediation, those requirements still stand, except that now the tenant has 60 days from receiving the notice of rent increase to apply for mediation.

G. Abbott: That's a useful explanation. This is merely an expansion of time of a previously existing step in the process.

Moving on from there, then . . . . If the recommendation has been rejected, as in

section 18(1)(c)(ii)(C), then the matter, at the tenant's instigation, can then be referred to the chair of the dispute resolution committee. Again, I hope I'm not putting too fine a point on it, but is it up to the chair of the dispute resolution committee or is it up to the dispute resolution committee to determine whether this subcommittee of the committee would be formed?

Hon. U. Dosanjh: I'm going to become very smart going through this discussion, and I will, for a change, understand this process.

What happens when you go through mediation is that there can be three possibilities: Firstly, the DRC could say we're not going to appoint a mediation committee, which is a subcommittee, to mediate -- that's (A). In (

B) the subcommittee has been appointed but they end mediation, deciding that mediation is not going to work. In (

C) they make a recommendation, but it has obviously been rejected by the landlord or the tenant -- one party or the other -- or both. In those three eventualities the tenant or the landlord then has 30 days to apply for arbitration . . . . I'm sorry. Only the tenant has the right to apply for arbitration. The landlord has increased the rent, and it's up to the tenant to accept or reject it. It's only the tenant that then applies for arbitration.

G. Abbott: I thought for just a moment there, as the Attorney General was sitting down and asking a question, that he had in fact anticipated the question that I was going to ask, which is . . . . We have this sort of parallel process, where we have landlord and tenant working through mediation and so on. Yet we end up going back to the dispute resolution committee, having failed to achieve a mediated solution that both parties agree to. The tenant can go back to the DRC but the landlord apparently cannot. What happens to the landlord?

[3:15]

Hon. U. Dosanjh: The hon. member hasn't understood it either.

It's the landlord that gives the notice of rent increase, and it's the tenant that wants to dispute it. If the tenant doesn't want to dispute it, the tenant doesn't go to the arbitration, and then the rent increases. The landlord is happy.

[ Page 7743 ]

G. Abbott: Thank you. I'll buy that one, for the moment. The tenant, having gone through mediation and failed on either the first two counts or on the third, to convince the landlord that the mediated settlement is acceptable, then goes on to the chair of the dispute resolution committee to take his case before them. I've asked this question previously, and I want to make sure we get it this time: is it the chair of the dispute resolution committee that can refuse to appoint the subcommittee, or is it the committee itself?

Hon. U. Dosanjh: The dispute resolution committee is the mediation mechanism, not the arbitration. Arbitration comes afterwards.

G. Abbott: I understand that. I've been elevated to that point, and I don't question that. It is presumably the dispute resolution subcommittee which becomes the arbitrator, is that correct?

Interjection.

G. Abbott: No?

Interjection.

G. Abbott: Okay, fine. I will defer to my colleague for the moment.

R. Coleman: I'm not going to get into a long, drawn-out explanation as to how the dispute resolution committees work. It's actually quite a simple process: the subcommittee becomes your mediator and then it goes back to the dispute resolution committee for a decision. The committee forwards it on. That's basically the quickest description I can give, but I do have a couple of questions relative to it.

Subsections (1)(c)(ii)(A), (

B) and (

C) do anticipate that only a tenant would apply for arbitration in the case of a rent dispute. Unfortunately, that's not the case. We have seen cases where, if a landlord is rejected by the dispute resolution committee and makes a recommendation for an appropriate rent increase that's not acceptable to the landlord and it goes forward to an arbitrator, and the arbitrator . . . . The landlord's request is: why can't the landlord have the right to arbitration in that particular situation as well?

Hon. U. Dosanjh: If the tenant does not apply for arbitration within 30 days of that eventuality, the increase takes effect.

R. Coleman: And you're absolutely right. However, I'll give you an example. Let's say a park was going for an increase of 3 percent, or $10 per pad, and the DRC said: "Well, maybe you should only have $5 a pad." But the tenant still doesn't want to agree to pay $5 a pad, so they go to arbitration. The landlord, at the same time, doesn't agree that he wants $5 a pad; he wants $10 a pad. He can't go to arbitration, but the dispute resolution committee decision can go to arbitration in spite of the fact that they've reduced the number.

That's where it gets into the conundrum where the tenant is still not satisfied with the increase, and therefore it goes to arbitration. The dispute resolution committee has made a decision that has not been mediated with the landlord, and that's why it goes to arbitration. This is what has been happening in a number of cases.

Hon. U. Dosanjh: If the increase has been reduced by mediation, then the landlord has the obligation under (

C) to reject that, which means, then, that the onus is on the tenant to apply within 30 days for arbitration. If the tenant fails, the full increase takes effect.

R. Coleman: I can accept the notion that it's the dog that's going to chase the tail, and eventually he's going to get it done. It's just that it would seem to me that rather than having to go through all the rejection, there would be an opportunity for a landlord to go to arbitration on some issues. I understand what the Attorney is saying; I accept that. But I wanted to bring this situation to the attention of the Attorney, because it has been occurring and there is frustration that they can't seem to get their message relative to the rent increases back the other way.

Hon. U. Dosanjh: Well, I appreciate the hon. member's generosity in taking my word for it. I think it's important that we recognize that the onus here is on the tenant if the tenant wants to continue to challenge the rent increase. If the mediation recommendation is rejected by the landlord, as in (C), and the tenant does not apply for arbitration within 30 days of that, I think the landlord doesn't have to do anything. The rent increase becomes effective. Maybe I shouldn't have said anything.

R. Coleman: What's the appeal process for the landlord if, after going to arbitration, the rent increase is rejected? What is the appeal process for the landlord to go back again?

Hon. U. Dosanjh: I would like the hon. member to clarify what stage he is talking about. Is he talking about after mediation or after arbitration? After arbitration, I think it's only the judicial review procedure with respect to the courts. Sorry, there's the arbitration review panel in between.

R. Coleman: Well, basically what I'm looking for is clarification that there's an opportunity for a landlord to take action if he's not able to get his rent increase after trying to justify it under the guidelines, rather than having to go through some lengthy legal process. I recognize that the guidelines do try to work something . . . . The DRC tries to function. The trouble is that it's tough to discuss this within the envelope of no longer having retroactive rent reviews, which was one of the issues that was causing most of these problems to begin with.

I think that if we're getting into a situation where the DRCs and the subcommittees can actually make recommendations . . . . If the DRC can come forward and there's arbitration and there's a process without having to get into the fight over retroactive rent review, this might work. I really think that it has to be clear that the owner of the land, which in this case is the landlord of a manufactured home -- which again is an odd form of tenancy, as I've always said -- does need a mechanism to deal with losing in arbitration and to go back into the system to deal with the rent increase.

Relative to that, while I'm on my feet and we're on the same section, in

section 18(2) . . . . I'm just wondering what the rationale was for repealing subsection (2)(a), as well.

Hon. U. Dosanjh: This change is brought about by the fact that so far there are no guidelines, because I understand that we haven't, at least until quite recently, come to an agreement about those guidelines. Now, those guidelines . . . . Whether they're done in consultation with the stakeholders or not, once they are guidelines they'd be appended as regulations. That's why, in fact, subsection (2)(

a) would now refer to regulations rather than the guidelines.

[ Page 7744 ]

R. Coleman: Sure, but the only concern from the industry was the question of eliminating the ministry from that -- and I think your description probably takes care of that.

I know that one of my colleagues has some more questions about dispute resolution committees and how they function. But just so we understand . . . . The industry has to be balanced in the ability to cover its costs of running its operation in a manner that is good for the people who live in the park, and it also has to be balanced so that people will meet the rules and guidelines in order to allow for enjoyment by everybody who lives in a particular location.

Maybe my colleague would like to get into the DRC a little bit with regards to that, but I think it's important to realize that landlords are at times put in a corner where they need some arbitration or some assistance as well, and they shouldn't be ignored in this process.

G. Plant: I'm trying to play catch-up here in a game that I don't fully understand, which is always a high-risk but exciting adventure.

The Residential Tenancy Act speaks in

section 67 of something called the manufactured home park dispute resolution committee. My understanding is that there is one such body in the province of British Columbia. Accordingly, in the amendments which are under discussion, it would be the body that would be referred to in the first of the three subsections that deal with the tenant's application for arbitration. Is that correct?

Hon. U. Dosanjh: I think there is some confusion. The hon. member was talking about arbitration. It is the same committee -- referred to as dispute resolution committee -- but it is the mediation mechanism.

G. Plant: Let's just read the words that I have in mind, because exactly describing the

section number would be even more tedious. The words are: " . . . the tenant receives a notice under

section 69(6) that the chair of the dispute resolution committee has refused to appoint a dispute resolution subcommittee." In that context, dispute resolution committee refers to the body which is established by the minister under

section 67 of the act. Is that correct?

Hon. U. Dosanjh: Yes.

G. Plant: Is that body currently functioning? Does it have a chair? Does it have committee submembers or whatever the other committee members would be?

Hon. U. Dosanjh: I'm given to understand yes.

G. Plant: I had some communication with someone who, I guess, was a former chair of the dispute resolution committee, who expressed to me the concern that his views were not sought in respect of the proposed amendments to the act -- the amendments that we have under consideration. I find some reason to share his concern when I look at the functions of the dispute resolution committee in

section 68, which include providing the minister with reports and information and guidelines and recommendations "respecting issues arising out of the renting of manufactured home pads." I would have thought that these legislative changes would be the very things that something like the dispute resolution committee would be asked to talk about. It may be that the minister consulted with somebody else. Did the minister actually receive recommendations about this process from the dispute resolution committee?

Hon. U. Dosanjh: He was definitely consulted when he was the chair. Sometimes the difference in recognizing whether or not you have been consulted is whether or not you have been completely followed in terms of your advice.

[3:30]

G. Plant: All right. So there is now in place a dispute resolution committee -- fully staffed and appointed and able, I suppose, to refuse to appoint a subcommittee, as is contemplated by the first step of this process that we have under scrutiny now.

Hon. U. Dosanjh: The DRC is fully functional, I understand.

R. Coleman: The idea behind mediation and the DRC is to come to a solution. Ironically, within the system that we have established, if the DRC refuses to set up a subcommittee, the resident can still go to arbitration. Is that correct?

Hon. U. Dosanjh: Yes.

R. Coleman: I would just tie that back into my argument on balance: the tenant can go around the system to the residential tenancy branch, but the landlord does not have the same ability with regard to arbitration or appeal. It's simply because of what's happened in this system. If the DRC subcommittee isn't appointed or if it rejects it, off they go to the arbitrator. And that's been happening on a regular basis.

Hon. U. Dosanjh: The hon. member doesn't recognize the fact that if the DRC refuses to appoint the subcommittee, the onus is upon the tenant to then apply for arbitration if the tenant wants to continue to challenge the rent increase. If the tenant decides not to, the rent increase becomes effective. So there is no injustice to the landlord in that case, I will submit.

R. Coleman: I would submit that you're right, provided the arbitrator took into account that the DRC refused to appoint a subcommittee in rendering its decision, thereby obviously sending some sort of message to the arbitrator.

Hon. U. Dosanjh: One wouldn't want to argue about the circumstances under which the DRC may have refused to appoint the subcommittee. Obviously arbitrators take into account, within the context of the law, whatever they're entitled to take into account. I have said this very clearly: they need to have guidelines; they need to develop them; they are quasi-judicial individuals. If they don't do that within six months of the date, I indicated to them that I will impose those guidelines -- if that helps the hon. member.

Interjection.

Hon. U. Dosanjh: Yes, so am I.

G. Plant: Just one more question around the composition of the DRC. The DRC can have a chair; it can have vice-chairs; it can have members. How many members of the DRC are currently appointed, including both chair and vice-chairs?

Hon. U. Dosanjh: I don't have that information here.

Section 6 approved.

section 7.

[ Page 7745 ]

Hon. U. Dosanjh: Hon. Chair, I move the amendment to

section 7 that's in the possession of the Clerk.

[SECTION 7, by deleting the proposed subsection (5)(

e) and renumbering paragraphs (5)(

f) and (

g) as paragraphs (5)(

e) and (

f) respectively.]

On the amendment.

G. Plant: The amendment that we're discussing simply completes the process of amending the assignment and subletting provision which we earlier moved to another

section of the act. Is that correct?

Hon. U. Dosanjh: Yes.

Amendment approved.

section 7 as amended.

G. Plant: Perhaps I could begin this discussion by asking the minister: with respect to each of the remaining subparagraphs in what will become

section 54(5) -- all of which are new -- was there some doubt in each case as to the power of arbitrators to make the orders which are contemplated by these new provisions?

Hon. U. Dosanjh: As do most creatures of statutes, arbitrators are known to take a very narrow view of their powers. Unless the powers specifically indicate, arbitrators have said many times that they don't have the power and are not prepared to read into the legislation the power that they sometimes need -- and I say this without criticizing anyone -- to fulfil the intended objective, such as what we're now trying to do.

G. Plant: I want to move to discuss what used to be subsection 54(5)(f) -- what will become 54(5)(e), which is the hardship provision.

First of all, as a sort of exercise in comparative lawmaking, perhaps I could ask this question: do arbitrators -- or whatever their equivalent is -- in other jurisdictions in Canada have powers that are similar to those which are contemplated in the hardship provision that is proposed before us?

Hon. U. Dosanjh: Yes, I understand that Ontario legislation has a very similar power.

G. Plant: Here is the beginning of my problem: I can't imagine an eviction that would not cause hardship. I can't imagine an eviction that would not give the person being evicted the opportunity to argue: "I am -- or he or she is -- experiencing hardship." Eviction means moving; eviction means leaving the place that is your home. A notice to end a tenancy agreement is a notice to bring to an end the agreement, the relationship, that allows somebody to live somewhere.

Forcing people to move is always going to cause discomfort, inconvenience, trouble, pain and expense -- something that I think almost any tenant could, if they felt so inclined, characterize as hardship. In fact, I'm sure that in many cases their characterization of what was happening to them as hardship would not be altogether unreasonable.

I think this

section is a disaster. I think this is a big mistake. I think it is wrong to give arbitrators these powers in terms that will essentially invite an explosion of litigation in the residential tenancy branch. Even if the resources were available to handle the explosion of litigation it would not be in the public interest for that explosion to take place, because it would create uncertainty out there in the community of landlords and tenants. I think it would, at the very least in the short term, and, I fear, even in the medium term and the long term, create a big problem in the community of landlords and tenants.

And that is a community of hundreds of thousands of British Columbians. It's not just big, bad, evil landlords that operate huge apartment buildings. It's ordinary folks who have basement suites, and the thousands of landlords who own premises that have one or two rental places in them. It's all the thousands of tenants who live in residential tenancy situations in British Columbia.

I think what we should be doing for residential tenancies in British Columbia is fostering rules, certainty, predictability, guidelines, precedents; we should be making everything more understandable, more predicable, more certain. What this is going to do is make things less understandable, less predictable and less certain. I have to say that I haven't actually heard anyone among the people who have communicated with me and the people who have communicated with my colleagues . . . .

I haven't heard anyone yet say that we need this amendment in British Columbia; that this will improve the law in British Columbia; that it will improve the protection available in the law for landlords and tenants; that it will in fact mean that there will be more residential rental housing in British Columbia; or that it will mean that in communities across British Columbia where rental housing is at a shortage, that in fact that problem will be dealt with. I'm hearing people tell me, for quite good reasons, exactly the opposite.

So let's avoid the debate. I'll ask the Attorney General to withdraw the subsection. Will you?

Hon. U. Dosanjh: The hon. member has commenced the debate; obviously it can't be avoided. But I'll try to avoid it. Let's not have a real debate.

I think the issue is -- and I remember the hon. member saying in his remarks during second reading -- that any or all of us can imagine circumstances under which this particular

section could be useful. The difficulty the hon. member had with this during second reading was that it would be broadly interpreted, and it would create uncertainty. It is my view that that concern is somewhat misplaced.

This is why:

section 54(5)(

f) is intended as a remedy for those very, very few extraordinary cases where applying the strict letter of the law to evict a tenant would not be a just or equitable result. For instance -- and I gave this example to the hon. member when we were talking about this, not as part of the debate but otherwise -- let's imagine a case of an elderly mother who has a child living in the neighbourhood somewhere, an adult son or daughter, who has a pet.

The son has to move, there is a no-pet clause in the agreement for the mother's tenancy, and the son is wanting to leave the pet with the mother for a two-, three- or four-week period. Let's say that it only happens for two weeks. Strictly, that is then a breach of the tenancy agreement. Under those circumstances, if it only happens for two weeks -- if it only happens under those circumstances -- should that alone be allowed to be used to terminate the tenancy agreement and force this elderly woman to move, when she may have been living there for years?

Those are the kinds of extreme cases that this would be utilized for, and that's my hope.

Let me give you another example. Let's say there is a woman with young children, and she is separated. The husband has been late in sending his maintenance and support

[ Page 7746 ]

payment for the children and/or for her by five, six or seven days. I don't recall all of the provisions of non-payment of rent and how many days' notice you are required to give. Supposing the landlord has some other reasons why the landlord might want to move that woman -- maybe because the young children sometimes are noisy -- but he uses this non-payment of eight, nine or ten days to move this single mother with four children, while the money, which was a few days late, has now come in and is ready to be paid. It was obviously a technical breach of the tenancy agreement. I think this is intended to be used under those kind of circumstances.

[3:45]

One must be very clear about reading this subsection. If one reads it, it says: " . . . having regard to all the circumstances, that ending the tenancy agreement would create unreasonable hardship" -- not just hardship. I agree with the hon. member for Richmond-Steveston that having the tenant moved, based on any breach, could always be viewed as hardship, because it is hardship to find a suitable place, to move and to make all the arrangements to do so. But the words here are "unreasonable hardship." I think it's important for us to remember that, for this

section to come into play, the tenant must be subjected to " unreasonable hardship" in being evicted and that the hardship must be balanced by the arbitrator against the conduct or breach that led to the issuing of the notice to end the tenancy.

The legislation also requires the arbitrator to take into consideration the landlord's interests, by requiring the arbitrator to consider the conduct or circumstances that obviously led to the issuing of the notice in the first place. I want to assure the House that the arbitrators will receive training in this particular matter.

As well, I have indicated that, through regulations and policy guidelines, the consistency of the application of this legislation -- not just this particular

section -- will be ensured. I said that publicly some weeks ago; I've said this in the House several times. I have given the arbitrators instructions to put together their own guidelines within six months. If they won't do that, we will impose them.

G. Plant: Well, let me begin my response by putting some of the narrow issues into the larger context. Perhaps I should tell the Attorney General that I'm the moderate on this, in focusing my remarks on the procedural issues. I wasn't intending to create the sense that this was the only concern that members of my party have. I suspect that stronger objections can and may in fact be put to this provision in the course of the next little while.

But let's put this in the following context. The Residential Tenancy Act isn't working. It's not working for most people. It needs to be rewritten in plain language. I actually get no letters complimenting me on the way the rental arbitration or any other arbitration process under the Residential Tenancy Act works. What I get is a steady stream of mail from people who point out to me, usually with all kinds of backup, the ways in which the process doesn't work: it's arbitrary, there's no certainty and no rules, and people don't apply the rules of evidence.

You never know from one day to another what you're going to get when you appear in front of a Residential Tenancy Act arbitrator. That's not to impugn the good faith or the motives of most of the arbitrators. They're cast adrift in a sea where they're not really given a lot of guidance or training. Apparently, so far, that has not been a priority for this government.

In that context, what we're asked to do here is give the arbitrators more power. We're not being asked to do it in terms that are clear or simple or straightforward or practical or finite, or any other way; we're doing it in terms which are open-ended.

We're using the kind of value-laden judgment stuff that the Attorney General and I are quite accustomed to seeing when we're dealing with bills or common-law rules that apply to judges in Supreme Court of British Columbia processes but not when we're talking about a process that needs to be inexpensive, quick, accessible and efficient for thousands upon thousands of people, day after day. For landlords, dealing with this stuff is often just a part of the cost of doing business. I'm told, for example, that the rent review stuff is so dysfunctional that landlords simply don't bother to engage in it.

It costs more to engage the rent review process than they could ever hope to get out of a rental increase. That is the climate in which we're looking at these changes.

We're looking at these changes in the context of a legislative regime that isn't working very well for many people, and we're asked to do these things to it. Frankly, I think the context makes the problem worse. If the system were already up and running in a way where the rules were certain, where we knew we had some certainty of expectation and certainty of outcome in the vast majority of Residential Tenancy Act arbitrations, then I might just be prepared to take a chance and go down this road a little bit with the Attorney General and say: "Here, if you want, we'll give the arbitrators this additional power.

We'll accompany it with lots of guidelines and regulations, and we'll make sure that it's only done in the most unusual cases." But I'm sure reluctant to participate in that process in the current context where, as I've said, I think the act as a whole is not terribly functional.

Let's come back, then, in that context, to the specific provisions that are before us. Yes, the hardship has to be unreasonable. That can mean a lot of things. What we know is that that involves a weighing of considerations by the people who are the residential tenancy arbitrators -- the people who, by the way, make it extraordinarily hard, on a day-by-day basis, for landlords ever to get an eviction from a tenant.

The Attorney General gave examples that I'm sure move all of us in terms of the potential for hardship that can be created when people who are in vulnerable positions are on the receiving end of a notice to end a tenancy agreement. They think: "Well, you know, I'm sorry I couldn't pay my rent cheque. Every month my husband sends me a maintenance cheque; he's been doing so for three years. He slipped up this one month, and he's six days late. Here's the rent cheque now. Please don't evict me." I would be extraordinarily . . . .

I shouldn't say extraordinarily surprised -- the world is too complicated for that -- but I'd sure be surprised if there were very many landlords who could get an eviction against a tenant under those circumstances in British Columbia today.

The problem with examples and the problem with anecdotes is that there are many anecdotes and many examples. There is the person who lives down the hall from the tenant who never turns the stereo off, the tenant who has a grow operation, the tenant who is, frankly, a complete and utter nuisance. The landlord gets a letter every day from the tenant's neighbours, saying: "Get rid of this guy or I'm out of here." And the guy that we're talking about says: "You can't move me out of here. These are minor details. Loud noise? Come on! We live in a big city. Who cares about loud noise?

No arbitrator's going to throw me out in the street." The landlord is in a position, then, of saying: "You know what? I promised my tenants -- in fact, the law requires that I promise my tenants -- quiet enjoyment. I can't deliver it because there's a tenant in my building who won't protect the dignity or respect the rights of the other tenants in the building. I can't

[ Page 7747 ]

get rid of that tenant because I'm going to have to have an interminable arbitration where we argue about whether or not, in relation to the conduct, breach or circumstances that led to my attempt to get rid of him, it would in fact be unreasonable, or whether it would create unreasonable hardship." I think that if we stood here and pursued the debate long enough, we could certainly come up with a long list of examples.

What I am equally certain of is that if we thought about those examples conscientiously and objectively, we would realize that there are stories that move us in a whole bunch of different directions on this problem. Frankly, I don't think that is the right way to make public policy.

[W. Hartley in the chair.]

That's why I come back to the concern that, for me, is still the most important concern. I'm willing to put aside the issue of whether the playing field is level or whether it ought to be, of whether or not landlords have not enough or too many rights, or tenants have not enough or too many rights. I'm pretty sure I know the answer to all of those questions. I'm pretty sure I know that what this provision does is tilt the playing field, which is already tilted pretty badly against landlords, even further against them.

But for the purposes of my concerns here -- I'm not necessarily speaking for my colleagues -- I'm even prepared to put all of that to one side and say . . . . The field is tilted and the odds are against you, but if the rules are written in such a way that you lose nine times out then, at least you're better off knowing what the rules are. You're better off with a bit of certainty and a bit of clarity.

To create a provision which invites the kind of analysis that this provision does, by requiring arbitrators on a case-by-case basis to flip a coin and decide whether hardship is reasonable or unreasonable in the circumstances, to decide whether being five days late with the rent cheque is reasonable but being seven days is too late . . . . To build up a body of case law on those sorts of things is, I think, bad public policy. It sends the wrong message to an important sector of our economy in British Columbia, and it is a mistake.

I'd like to invite the Attorney General one more time: do the right thing, move an amendment, and get rid of this provision before it does all the harm that I think it will.

Hon. U. Dosanjh: Rather than prolong the debate, I'll come to the issue. The hon. member used the example of a person who interfered with the quiet enjoyment and use of the neighbouring properties. I think it's important for us to recognize that under those circumstances, if the individual was being moved on that basis, I don't believe any arbitrator would believe that there was any hardship. Why would there be any hardship to an individual who flagrantly violates the terms of the agreement? I think that it is important for us to recognize that that's not what this

section is intended for. There has to be unreasonable hardship -- not just hardship, unreasonable hardship. I think that's a much higher test than just hardship, which the hon. member has been talking about.

R. Coleman: Well, frankly, that's just a nonsensical argument. It's not with the issue of quiet enjoyment that it comes up; it comes up with the unreasonable hardship of the eviction. So now if the person who continues to breach goes before an arbitrator and says, "I'm a single parent; I have two young children; I have nowhere to go; it's cold; it's winter," the arbitrator says: "Well, that's unreasonable hardship." It doesn't go back to the quiet enjoyment of the operation of the apartment. It goes back to the argument of what is unreasonable hardship.

When you have a system like we have right now, when my colleague says the frustration in the agreement . . . . I mean, the statement about the non-payment of rent or the rent being late . . . . There isn't an arbitrator in this province that I've seen who, if somebody comes in six days late with the rent, will continue on with an eviction. That just doesn't happen. In the case of the dog, that's another one. Has nobody ever heard of a kennel? In addition to that . . . . This happens all the time, and arbitrators overturn those rulings.

These are not arguments for unreasonable hardship, because the arbitration system in this province already deals with those in our eviction process. That's why there is an arbitration system. But to throw this unreasonable-hardship portion into this discussion just sends the industry into chaos.

[4:00]

I want to give you some examples of the industry in chaos. Every real estate agent in this province better put, on a sales agreement of any rental property hereafter, a statement that says: "You will get occupancy of your premises . . . . " Usually there is a clause that says: "The landlord will give notice so I can purchase this property and so I can have occupancy in 60 days." Well, you'd better add to that: " . . . unless, for unreasonable hardship, the tenant is allowed to stay." At that point in time, the deal will not go through.

We'd better put that clause in every real estate transaction in this province as soon as this becomes law, because that can happen if it goes before an arbitrator and somebody says the eviction is an unreasonable hardship. Whether it's a real estate transaction or not, that's what you're doing to the system.

On the same thing, you have frustration with other tenancy agreements. Where's the liability? Let's go back to this quiet-enjoyment situation. When an arbitrator decides that it's an unreasonable hardship for a tenant to be evicted even though they've broken the rules, and when the landlord loses five other tenants as a result because they move out to find a quieter building, who pays those bills?

Who is going to take responsibility for us having a clause that allows an abuser to make it bad for everyone else and allows the person who owns the property to lose money -- to lose revenue, to be unable to pay taxes, to be unable to pay strata fees or whatever portion of their operation they pay from the rent they collect every month? Who's going to respond to the financial institutions that look at this and say: "Unreasonable hardship, and you want to make a sale.

We'll wait until we see the eviction go through before we'll finance the purchase of your home, simply because we can see that this is going to be a difficulty"?

What you have done is created something that I don't think anybody has thought through. You've created something that literally is going to frustrate real estate contracts and frustrate the ability of the residential tenancy arrangement between a landlord and a tenant to work. It works now. It can work now, with regards to an eviction, relative to process. It goes before an arbitrator. Let me tell you -- believe me -- that the arbitration process in this province protects 99.9 percent of the people in an eviction process. So there is a reasonable result to that process.

To throw an unreasonable hardship against the industry and say that it will be seldom used . . . . I can tell you that that's not how it works out there. How it works out there is this: "If there is something that we can use to make it tougher on our landlord, in a relationship that's supposed to be balanced between two parties, we're going to make use of that." We're tilting the scales here. We cannot do that. If we do that, we are frustrating the industry. When we frustrate the indus-

[ Page 7748 ]

try, we're going to create a situation where we're going to have fewer tenancies available, because fewer people will go into the industry to create the tenancies. When we have that, we're going to have an increase in the cost to the tenants in the province, which is going to affect the affordability of rental housing. If all of a sudden, for some philosophical reason, we think we have to have something called "unreasonable hardship" in

an act, we're going to mess up an entire industry.

Now, I'd go back to what my colleague asked for: a friendly amendment to remove this clause. If in six months we're going to have what we call the guidelines for our arbitrators to operate under, and if, as the Attorney General said in estimates, we're going to have a plain-language piece of legislation before this Legislature in a year, let's remove this for now. Let's take it out, let's set the guidelines, let's write the act, and let's see what the industry has to say. Then let's bring it forward and see whether we've got a valid discussion here. But not today -- not in the absence of the rest of what should be done. I'd ask the Attorney to remove this one clause from this section.

G. Abbott: I guess I'm not entirely surprised that the Attorney General hasn't, as of yet, succumbed to the very persuasive -- I think -- arguments of my colleagues with respect to this section. I want to try as well, because frankly I think -- partisanship aside -- that a mistake is being made here and that the Attorney General really should rethink this particular provision. Hopefully, I can ask a question or two here.

But I also want to make the argument -- and hopefully, make it in a way which will be persuasive to the Attorney General . . . . In AG estimates recently, we had a brief but productive discussion around the issue of rent retroactivity for mobile home parks. In fact, the Attorney General passed along to us in those estimates the good news that he would soon be introducing a bill which would relieve mobile home park owners of the ongoing stress and concern and uncertainty around retroactive rent reviews back to the early nineties.

I had in fact penned a letter to that effect to a constituent who had raised the issue with me. Regrettably, I now have to tell her that along with relieving her of the stress of retroactive rent review, the Attorney General is going to be adding a new source of stress, uncertainty and conflict in her life. I don't want to do that. I don't think it's necessary, and I hope that the minister can appreciate that there's a very powerful argument being made here to take another look at this thing and try to do something better.

Undoubtedly, the consequence of this

section -- as my colleagues have stated -- is that it's going to produce a whole lot more uncertainty with respect to mobile home parks and rental in the future. The consequence, as has been stated, will be less affordable housing in the future. Already, there are powerful disincentives to provide affordable housing in British Columbia. This, I think, almost certainly is going to add one more powerful disincentive to investing and creating new affordable housing. This is a big mistake that the Attorney General is proposing to make, and I think he really should take another look at it.

Before I go on, I noted that the Attorney General stated that subsection (

f) would be "used only in a very, very few extraordinary cases." I want to ask the Attorney General how we can be assured that it will only be used in a very, very few extraordinary cases.

Hon. U. Dosanjh: I did indicate earlier, and that's why I didn't really rise to respond to the previous comments . . . . Those comments have been made and I have responded. Let me just add and simply repeat that if one goes to subsection (e), which is what it would be now, it says the arbitrator will make the decision " . . . having regard to all the circumstances, that ending the tenancy agreement would create unreasonable hardship" -- and now the more important words -- "in relation to the conduct, breach or circumstances that led to the issue of the notice."

So I think that all of those circumstances would be taken into account. Furthermore, I have said that we are going to make very thorough regulations and put in place policy guidelines. If the arbitrators don't do it themselves, we will do it for them at the end of six months. I want to make sure that is done, and I made that promise outside the House, in fact, long before this issue was introduced in the House.

I think that we will agree to disagree. I understand the concerns of the members opposite. I understand the intent and the objective and the ambit of the provision to be different, and I think I would rather leave it at that. If we want to belabour the issue, we can, of course, go on.

G. Abbott: The last thing I would ever want to do is belabour an issue. But on the other hand, when the government is proposing to do something which I think is going to make life a hell of a lot more difficult for a whole bunch of people in British Columbia, it's time to underline the concerns we have. Let me just quote briefly . . . . I've been getting some mail from my constituents on this issue, and I want to share just one of those with the Attorney General. This is from the Valley Mobile Home Park in Salmon Arm. It's from William and Anne-Marie Summers, who are the owners of that park. They say:

"The first major concern is [that] the government should remove the proposed

section 54(5)(f), which gives the arbitrators a completely free hand to reject all termination notices on the basis of 'unreasonable hardship.' This

section will open the door for more grey areas, and each individual arbitrator may have a different idea of 'reasonable hardship.' I would like to urge you to clear up these grey areas and make the law clearer to what an arbitrator must rule on."

In fact, that letter was addressed to the Attorney General, and they were kind enough to provide me with a copy.

I think it is unreasonable, if we can use that phrase, for the Attorney General to assume that this provision (f) -- now (e), I guess -- will be used in technical breaches only, as the Attorney General said. I think that once this provision is in place, there will be constant pressure to broaden what is understood to be an unreasonable hardship.

While the Attorney General again says that it's not just a hardship but an unreasonable hardship, clearly there is here a degree of subjectivity around an option which, I think, is likely to be used with increasing frequency as more and more people become aware of this particular provision. The Attorney General will say: "No, people never respond in unreasonable ways to these kinds of opportunities." But I'd have to suggest that they will.

In order for an arbitrator to save the day for the mobile home park owner in an instance, the arbitrator is going to have to rule that an end of tenancy will impose only a reasonable hardship. Given the nature of human beings -- including arbitrators, who are clearly human beings -- it seems to me that it's going to be a very tough call. It's going to be very tough to view any hardship as being anything other than unreasonable. I think it's going to be a very tough call to say, "Well, this hardship is reasonable," if indeed it means that on a cold winter day someone is being relocated or dislocated from their premises. I'm not going to go on all day here, but I

[ Page 7749 ]

hope I have sufficiently underlined the concern that certainly my constituents feel towards this particular provision. I hope our concerns have been duly noted by the Attorney General.

R. Coleman: My disappointment in not having this

section pulled yet is huge, as you can well imagine, simply because I do believe what I state. Because I've been around this industry -- and not in the legal profession -- I can tell you what works and what doesn't work. Certainly I have been somebody that has stood in this House before and understood residential tenancy issues. I believe that I am correct when I state that you're about to frustrate an entire industry because of narrowness of thinking and not taking the time to take a step back on this.

I do have a couple of questions, though. My first question . . . . Because I'm not of the legal mind, I am of the practical mind, and I see that this is an impractical

section which is applicable to an industry which perhaps you should meet with. I understand there's no appeal possible from a finding of fact by an arbitrator. Would that mean that a decision based on the fact of unreasonable hardship cannot be overturned by the arbitration review panel or by the Supreme Court?

Hon. U. Dosanjh: I didn't catch the first part of that question.

R. Coleman: My understanding is that there is no appeal possible from a finding of fact by an arbitrator. My question is: if a decision is based on the fact of unreasonable hardship, does that mean it cannot be overturned by an arbitration review panel or by the Supreme Court?

Hon. U. Dosanjh: At the end of the day, what an unreasonable hardship is and what goes into determining that is a question of law. Certain facts would be taken into account, and it's important for us to recognize that. From the arbitration there is an appeal on points of law to the arbitration review panel, and then there is the judicial review at the end.

R. Coleman: So the answer to my question, then, is yes, a decision made by an arbitrator on a finding of fact can be overturned by the arbitration review panel or by the Supreme Court.

[4:15]

Hon. U. Dosanjh: I'm not going to give a legal opinion on this particular issue, but the question is simple, and that is whether on facts alone one could appeal a decision of the arbitrator to the arbitration review panel. I don't believe so. There are limited grounds of appeal, similar to a judicial review application, and then you have, from the panel's decision, a further judicial review application opportunity to the Supreme Court.

R. Coleman: So there is an opportunity, if it can't go to the arbitration review panel, to go to the Supreme Court?

Hon. U. Dosanjh: Without having looked at the entire act at this point, I'm given to understand that yes, you can go directly to the Supreme Court from the arbitrator's decision, in the nature of a judicial review application, or you can do that from the arbitration review panel's decision.

R. Coleman: I guess my difficulty would be that we're asking people in a residential tenancy situation -- people who have invested their life savings in a secondary residence or an apartment building or whatever the case may be; people who are hard-working, who do not, frankly, understand the law in its totality or its appeal processes -- to deal with a

section where, first of all, there is no absolute definition of what unreasonable hardship is and a

section where the Attorney General who brings the legislation to the House can't tell me their processes for appeal. Where are they going to find out about their processes for appeal other than by hiring a lawyer who . . . ? I understand there's a few of them in the House today that can't answer my question. Perhaps you could tell me what lawyer we're going to find who would be able to answer these questions.

Or are we just creating a situation where we're going to continuously be in the courts appealing and redefining unreasonable hardship, like we have with other terms we've put into law in the past where we end up having this discussion and driving people crazy with unreasonable regulation or discussion on legal terms?

Hon. U. Dosanjh: We're talking about quasi-judicial appointments here. I pointed this out to the hon. member. If one wants to argue, you can stand there for the next two hours and argue, and I would be happy to hear the arguments. You have, in

section 16, a determination of what is reasonable for exercising the right of entry in the hands of the landlord. Essentially, the landlord decides what's reasonable under those circumstances. Here you have the arbitrators, who are given the quasi-judicial function of determining this particular issue, having looked at the circumstances of the notice, the breach and what kind of hardship it might impose on the tenant. I don't see howls of criticism from the opposition as to the existence of the word "reasonable" in

section 16(1)(f), and that's in the hands of the landlord. So if we want to be partisan and spend the next three hours beating up on a particular phrase, I have no difficulty in sitting here and listening to the hon. members.

The Chair: Members, the Chair has some difficulty in regard to the standing orders on repetition.

R. Coleman: My last question was the first time I had asked it relative to this section, so I don't know whether repetition was in that particular question. I think the difference is that we already have defined when a landlord can enter a premises, and anything outside of that is unreasonable. We've defined that in what I quoted to you earlier. But we have not defined what "unreasonable hardship" is. So we defined that; we know when a landlord can enter -- right?

Hon. U. Dosanjh: There is a definition of reasonable purpose.

The Chair: Through the Chair, please, members.

R. Coleman: I'm not into a discussion of reasonable purpose. I'm into a discussion of the basic guidelines that you provide to landlords in your correspondence and your documentation as to under what circumstances they can enter a premise and when a tenant can refuse that entry. We're not into that

section right now. What we're into -- and I will say it one last time -- is a

section that will frustrate an industry, I guarantee you, and that will frustrate the ability to produce affordable social housing in this province. It will end up putting the onus on government to provide affordable housing even more so than it is today, because we will be losing stock and inventory as a result of one clause in this section.

B. Penner: I rise on behalf of my constituents to add my voice and express my concern about this proposed section. As

[ Page 7750 ]

the member for Fort Langley-Aldergrove mentioned, I believe it will have a adverse effect on the supply and availability of rental housing, particularly in my community. I have already heard concerns expressed by builders in my area about the existing provisions -- never mind the new ones contained in this bill -- of the Residential Tenancy Act and the discouraging effect they have on new investment in that particular sector.

It seems to me that the particular

section we're talking about here -- I believe it's Bill 19,

section 7, which amends

section 54(5)(f) -- the unreasonable hardship provision allowing an arbitrator to basically disregard or cancel an eviction on the basis of "unreasonable hardship" for a tenant . . . . It creates too much subjectivity and too much uncertainty in the application of this very powerful law. I think it's also unusual in the sense that it puts the subjective interests of only one party -- that is, the tenant -- before the arbitrator. To me, that is an obvious sign of imbalance in this legislation.

I suppose any eviction could -- and may well, if this provision passes unamended -- end up going before an arbitrator on the basis of unreasonable hardship. It has already been mentioned and I don't want to repeat it ad nauseam, but I believe it will create undue hardship not just for the landlord but for other tenants who are perhaps disturbed by loud noises and loud parties by the tenant who has received the eviction notice. What about the other tenants in the building? They have a right to some certainty that disturbances will come to an end at a particular time.

I believe that it is already very difficult under the current legislation to evict a tenant for anything short of absolutely outrageous behaviour. Even then, I'm told that in many cases eviction notices fail for want of technical requirements.

This

section is worded so broadly that initially I thought it was a drafting error, but the Attorney General is maintaining his support for this section. I'll conclude my remarks by just affirming again that I believe this will have a negative impact on the people that we're supposedly trying to help: the tenants. It's been said that the road to hell is paved with good intentions, and this bill is one more brick in that road. What will happen to people with lower incomes who are looking for an increased supply of rental housing, if the private sector is discouraged from making the necessary investments?

We've already seen other legislation in this session that adds red tape and discourages investment. I'm referring to Bill 14, Workers Compensation (Occupational Health and Safety) Amendment Act, and we debated that at length last week. I believe that this particular provision will have much the same effect: discouraging private sector investment in a much-needed area of our economy.

R. Neufeld: I'm just going to be brief, with one question. I apologize; I haven't been here for the whole debate.

I listened to some of the debate around unreasonable hardship as it relates to cold weather, and I noticed some recognition from the minister and his staff when someone talked about cold weather. Would that be considered unreasonable hardship as it relates to this piece of legislation?

Hon. U. Dosanjh: Weather alone does not make an eviction unreasonable. It's all the circumstances of the eviction and the reason that the individual is being evicted. I gave an example of an old woman who had to look after her child's pet for two weeks. Now, technically she'd be in violation of the "no pets" clause. Whether she is being evicted in cold weather or in warm weather would have no bearing on whether or not it creates an unreasonable hardship.

An unreasonable hardship is all of the circumstances, looking at the nature of the breach and at the nature of what follows once the individual is asked to vacate. All of those issues have to go into the determination of this issue. This is not intended to be used for vexatious or frivolous purposes, to cause any delays. I think it's important for people to understand that. If it was, it would simply be hardship -- not unreasonable hardship. It is always a hardship for people to move, but it's not always an unreasonable hardship for people to be moved.

R. Neufeld: I appreciate the explanation that the minister gave. I was rather taken aback by the expressions from over there, when someone talked about cold weather. All too often people down here -- people that draft legislation -- forget that a good part of this province survives quite well in cold weather. I mean, my winter starts in October and doesn't generally finish until mid-April, and we can incur all kinds of different weather patterns during that time. That was my concern around the question. The minister shakes his head and says: "No, it wouldn't be an issue at all." I'll take that as some comfort to my question, then.

[4:30]

Section 7 as amended approved on the following division.

YEAS -- 34

Evans

Zirnhelt

McGregor

Kwan

Hammell

Boone

Pullinger

Lali

Orcherton

Stevenson

Calendino

Goodacre

Walsh

Randall

Gillespie

Robertson

Cashore

Conroy

Priddy

Petter

Dosanjh

MacPhail

Lovick

Ramsey

Farnworth

Waddell

Sihota

Smallwood

Sawicki

Bowbrick

Kasper

Doyle

Giesbrecht

Janssen

NAYS -- 30

Gingell

C. Clark

Campbell

Farrell-Collins

de Jong

Plant

Abbott

Neufeld

Coell

Chong

Whittred

Jarvis

Anderson

Nettleton

Penner

Weisbeck

Nebbeling

Hogg

Hawkins

Coleman

Stephens

Hansen

Thorpe

Symons

van Dongen

Barisoff

Masi

Krueger

McKinnon

J. Wilson

Sections 8 and 9 approved.

J. Weisbeck: Hon. Chair, I request leave to make an introduction.

Leave granted.

J. Weisbeck: On behalf of the member for Okanagan-Vernon, I would like to welcome 31 students, their parents and their teacher from St. James School in Vernon. Would the House please make them welcome.

section 10.

[ Page 7751 ]

G. Plant:

Section 10 of this bill gives cabinet the power to make regulations respecting circumstances under which the chair of the dispute resolution committee may refuse to appoint a dispute resolution subcommittee. In what circumstances might such regulations be promulgated, and to what end would the DRC's independence be interfered with?

Hon. U. Dosanjh: In some cases, mediation is not entirely appropriate. For example, if the dispute involves a question of legal

interpretation best decided by an arbitrator or a court, and if the dispute includes threats or intimidation such that a fair negotiation between the parties would not be possible under those circumstances, I think the chair should have the discretion to essentially bump the matter up to arbitration, because that would be best dealt with by an arbitrator.

G. Plant: So in those circumstances, the chair of the committee would have a discretionary power to refuse but would not be obliged to refuse.

Hon. U. Dosanjh: Yes.

Sections 10 to 13 inclusive approved.

section 14.

G. Plant: The provisions in

section 14 add to the regulation-making power of cabinet, in this case. The additional regulation-making powers may include the power to prescribe standard park rules to govern a manufactured home park and the power to define words or phrases that are used but not defined in the act. They include regulations about the kinds and levels of services to be provided by the landlord in manufactured home parks.

I guess my concern here is around whether or not the Attorney General or his ministry will be embarking upon some process of consultation with the groups in the community who are likely to be affected by these regulations to ensure that they are prepared in a way that, to the best extent possible, balances all of the competing interests. It won't just be crafted in some well-meaning bureaucrat's head, without any consultation.

Hon. U. Dosanjh: As I indicated in one of my earlier responses to another question, some consultation has taken place, and more consultation will take place. These matters will be developed upon the fullest possible consultation.

G. Plant: Is there a timetable within which the government expects these regulations to be implemented?

Hon. U. Dosanjh: These will be a whole bundle of regulations for different issues, and it's difficult to provide time lines. We will do them at the earliest possible . . . . Some might be required earlier than others, as there has been some urgency in some areas.

G. Abbott: I don't want to leave this

section without expressing a few concerns, among others, that have come to me from some of my own constituents who attempt to derive a living from mobile home parks that they own and operate. I want to preface my remarks with this: every government should struggle to find that perfect balance between necessary regulation and unnecessary regulation. It seems to me that in

section 14, the government is moving beyond what is necessary or appropriate to achieve relative stability and certainty and reasonable relationships between owners and renters within mobile home parks. I think this

section goes beyond what is fair and reasonable.

I want to start by quoting from a constituent, Mr. Mier, who is an owner of the Cedar Crescent Mobile Home Park in Salmon Arm. Again, this is a letter to the Attorney General that has been provided to me:

"Re: Proposed Bill 19. My wife and I are the owners of a small mobile home park since 1972, which I practically built with my own hands -- I am now 71 years old. We used to be one happy community of 31 mobile homes. In all these years, we had reason to evict two tenants and again everybody was happy to see them leave. Today the happiness is gone. It's more like mistrust and confrontation. Why? Because of overregulating."

He goes on to state his objections to, among others, this section:

"We ask this government to remove these sections from Bill 19 in the name of fairness and justice for all: tenants and landlords. We are also frustrated with the lack of consultation and the difficulties and additional cost these proposed amendments will impose on our business."

Again, is it necessary for government to add all of those things, including governing kinds and levels of service to be provided by the landlord in manufactured home parks? Well, perhaps; perhaps not. I guess it depends on what those governing kinds and levels of service are going to be, determined by regulation. Again, I think that what we are doing in this

section is going beyond what should be done. Again, I suspect it is going to have the very direct effect of discouraging people from investing in these kinds of enterprises because of the uncertainty that will be a product of this further extension of the role of government, necessarily or unnecessarily, into the operation of these mobile home parks.

Hon. U. Dosanjh: I don't really want to enter into a long debate on this issue. The fact is that I have heard . . . . The largest amount of criticism that I've heard in my tenure as the Attorney General has been with respect to the lack of any guidelines for the dispute resolution committee. That is because the mobile home owners and the park owners have not been able to come to any agreement on any guidelines whatsoever.

Yes, in some areas government does overregulate, and I agree that we should do the least amount of regulation. But in some areas we need more regulation. Obviously all of the parties that collectively need to come to terms with issues can't do that, because they have interests and they can't sit down and accommodate each other's competing interests. I think it's important for us to do that. We're going to in fact do exactly that with respect to those guidelines very shortly.

[4:45]

Section 14 approved.

section 15.

G. Plant: This provision extends the limitation period for offences under the Residential Tenancy Act from six months to the period described here as being "more than 2 years after the facts on which the proceeding is based first come to the knowledge of the registrar." Is the Attorney General able, from the information that he has available, to tell me how many prosecutions there have been under this act in the last few years?

Hon. U. Dosanjh: I'm not aware of the total number of prosecutions. It has been brought to my attention that six

[ Page 7752 ]

months has proven to be insufficient time to investigate and prosecute serious act offences such as harassment and intimidation, which are offences within this legislation. A two-year time limit is consistent with other consumer protection legislation, such as the Motor Dealer Act and the Mortgage Brokers Act. We're simply bringing this in line with that and providing ourselves with more time, so that we can do what needs to be done.

G. Plant: How many investigations have been frustrated because of the existing time period?

Hon. U. Dosanjh: I understand from the staff I have here that one staff is aware of at least two.

G. Plant: Forgive me if I'm not impressed with two as a number for a fairly significant change in the limitation period. To return to the question that I asked earlier about what evil this legislation is addressed against, I respectfully suggest in this case that the answer would be a relative absence of evil -- at least, none that has been brought to my attention. I have asked people about this, and I'm told that there are almost no prosecutions -- ever -- under this act. When I ask how many investigations have been thwarted by this limitation period, I'm told that someone's aware of at least two. That doesn't strike me as being a particularly large number.

Before I move on to what becomes a more significant concern -- in my mind, anyway -- with respect to this provision, maybe we should just try that out again. Is the Attorney General of the view that a couple of thwarted investigations is a reason to quadruple the limitation period?

Hon. U. Dosanjh: I think it's important to recognize that a landlord-tenant relationship is such that sometimes it is difficult for people to gather the courage to complain when they are in a landlord-tenant relationship at a particular place. People who are already intimidated or harassed possibly do not want to face further difficulties. Sometimes they would only complain when they have left the premises, and by then the time limitation is over.

I think it's important to recognize that there is an element of many people not complaining simply because it is impossible to complain, given those circumstances. I think we need to provide some assistance in that regard, some freedom for people to be able to move away from those circumstances and then complain if they believe that they need to complain. I don't think it's a matter of enhancing or diminishing anybody's rights. It's a matter of providing the opportunity for people to be able to complain and to have those complaints successfully investigated.

G. Plant: Am I right in the way that the change is being made here? It's to replace the six-month limitation period that exists in the Offence Act with an express limitation period that is provided for in what will become

section 91.1? Is that generally the drafting technique adopted here?

Hon. U. Dosanjh: Yes, it's the same technique that is used in the Motor Dealer Act and the Mortgage Brokers Act. That's essentially what we're doing.

G. Plant: I haven't had a chance to look at the Motor Dealer Act. Let me get to the heart of the more significant problem here. This isn't a two-year limitation period: it is potentially a very, very long limitation period. The way it's described is in the following terms: " . . . 2 years after the facts on which the proceeding is based first come to the knowledge of the registrar." If the facts don't come to the attention of the registrar for one year, two years, five years or ten years . . . . Time does not even begin to run until the registrar is first made aware of the facts.

I think that is, to coin a phrase, bad public policy; I think it's a bad law. Even if we were to accept the proposition -- and I'm not going to seriously quarrel with it -- that a two-year limitation period might be reasonable for the kinds of things that the Attorney General is talking about, at least let it be a two-year limitation period. The interesting thing I find about the examples given is that I suspect that the examples given are in fact instances of discrimination under the Human Rights Act, and there's probably a remedy available there anyway.

But here's what the Offence Act says: " . . . proceedings must not be instituted more than 6 months after the time when the subject matter of the proceedings arose." It seems to me that if the goal is to ensure that tenants who are faced with the kind of intimidation that the Attorney General talks about are in fact given a longer window of opportunity than six months, and if the appropriate window is two years, then the way to word the

section is to say that the prosecution of an offence under this act must not be commenced more than two years after the subject matter of the proceedings arises, or words like that. To make it conditional upon the knowledge of a third party who is neither the landlord nor the tenant and who is not a peace officer and not a judicial official and who is an official who, as I understand it, has very little else to do just doesn't seem to be the right way to address the problem which the Attorney General identifies.

Actually, I think this would be an opportunity for the Attorney General to think about this point, and we could improve the language. The way it's written now puts landlords in a very unfair position. Months and months and months can go by, and something is lurking out there as a potential problem that they don't know about it. Not only do they not even know about it, but the clock is not even ticking on the right of the tenant to make the complaint that could engage this process. I invite the Attorney General's response.

Hon. U. Dosanjh: Hon. Chair, I think the hon. member makes a very reasonable point. I want to think about this section; I want this

section stood down. We can proceed to the other sections, and we'll come back to it before the end. I want one of the staff to go and make a call to the other members who drafted this -- get the rationale.

The Chair: Okay, members, the

section is stood down, and we'll go to

section 16.

section 16.

G. Plant: Basically, I have just two issues to pursue here. First, perhaps the Attorney General could outline briefly and in lay terms what is intended by this idea of a first-time business opportunity scheme, which I think is a new term in the area of trade practices. At least, I believe it's being introduced into this legislation for the first time now.

Hon. U. Dosanjh: The first-time business opportunity scheme is already mentioned in the legislation. This is the first time we've defined it. There was a court case that made it narrower than it ought to be -- interpreted it as a rather narrow concept. We're trying to provide some protection to the consumers by actually defining what it should mean.

G. Plant: The consumer in this context is the person who signs up for the kinds of schemes that are caught by the

[ Page 7753 ]

definition. That might be multi-layer marketing programs or certain kinds of real estate schemes where someone signs on to be a distributor of a product and is caught in a trap that the act is intended to give somebody a way out of. Is that roughly right?

Hon. U. Dosanjh: Yes.

G. Plant: Then, looking at the provisions of

section 16 as a whole . . . . I was about to say that they probably don't amount to a substantive change in the protection afforded by the act but rather are matters of clarification. I suspect that's not quite right. First of all, in the case of subsection (a), I gather the intention is to capture certain kinds of marketing schemes where the supplier of the service may be in British Columbia, but the consumer is not. The objective here is to ensure that the supplier is caught by the act even though the consumer may not be resident in British Columbia.

Hon. U. Dosanjh: The courts have actually already decided that that coverage of the act extends beyond British Columbia's borders. We are simply legislating the court decision.

G. Plant: Does the Attorney General expect that the provisions made in this act with respect to trade practices will require an additional demand on the existing resources of the director of trade practices and staff? Let me just say by way of context that from time to time the issue arises about whether or not some of these programs are adequately staffed and resourced. It would be unfortunate to pretend to enlarge the ambit of consumer protection on the basis of what the law says but not in fact have the staff available to ensure that the investigations can take place. Perhaps I could leave that question with the Attorney.

Hon. U. Dosanjh: I don't believe there would be any significant increase in the workload of the branch at all, because what we're essentially doing in some places is legislating the decisions of the court and, in other places, perhaps adding some areas that may not have been covered by the legislation. But if we're talking about the real property coverage that we're going to extend for the first time, the realtors were always covered by this legislation. I think the only new area would be the financial transactions relating to the sale or purchase of property -- new property, I believe. Of course, the developers might also be subject to the same.

[5:00]

So we're not really expanding in any significant way. The intention always is -- and that is the law, in fact; this is the law of general application -- that individuals go to the specific piece of legislation and exhaust their remedies. They go to the superintendent of real estate and the like to deal with these issues before they ever come to consumer affairs.

G. Plant: So to try and wrap that up, the Attorney General does not expect that there will be a problem with the adequacy of resources in the trade practices area of his ministry in dealing with these new chan