role="main" class="main-container container js-quickedit-main-content" id="main-content">

June 27, 1974

29th Parliament, 4th Session

< Previous sitting day

Next sitting day >

Hansard Transcripts

Hansard Transcripts

Hansard Transcripts

L095 - Thu 27 Jun 1974 / Jeu 27 jun 1974

HEALTH INSURANCE ACT

PUBLIC HEALTH ACT

PRIVATE VOCATIONAL SCHOOLS (CONCLUDED)

PARKWAY BELT PLANNING AND DEVELOPMENT ACT

NIAGARA ESCARPMENT PLANNING AND DEVELOPMENT ACT

PLANNING ACT

HEALTH DISCIPLINES ACT

PLANNING ACT (CONCLUDED)

HEALTH DISCIPLINES ACT (CONCLUDED)

COUNTY OF OXFORD ACT

TORONTO AREA TRANSIT OPERATING AUTHORITY ACT

The House resumed at 8 o’clock, p.m.

HEALTH INSURANCE ACT

House in committee on Bill 100,

An Act to amend the Health Insurance Act, 1972.

Mr. Chairman: Bill 100.

An Act to amend the Health Insurance Act, 1972. I notice that the parliamentary assistant had an amendment to

section 1. Would he like to place that first of all?

Mr. Walker moves that

section 1 of the bill be deleted and the following sections 2 to 15 be renumbered 1 to 14 respectively.

Mr. J. A. Renwick (Riverdale): Mr. Chairman, why is the minister deleting that? Simply as a matter of information, why are you deleting that?

Mr. G. W. Walker (London North): It’s a change since the bill was printed; that’s about all it boils down to. I suspect the Treasurer (Mr. White) felt all his powers were being denuded giving them back to the municipalities and he wanted to keep this one to himself.

Mr. Renwick: I am quite happy with the renumbering. No; obviously, since the bill was presented to the assembly there has been a change in the policy; and I’d like to understand what it’s about.

Has he clashed head on with the Minister of Health (Mr. Miller) and decided that come hell or high water he is going to be party to that agreement? Is that what the parliamentary assistant is saying to us? And did the parliamentary assistant succumb because you happen to sit for one of the London seats, and the Treasurer sits there,

whereas the poor Minister of Health just comes from Muskoka? Is that why? Did you lend your weight to subverting your minister?

Mr. Walker: I was able to levy upon the minister and get him to change this?

Mr. Renwick: What is the reason?

Mr. Walker: I’m really being facetious.

Mr. Renwick: I was, too, but there must be a reason.

Mr. Walker: The change was quite obviously a change of heart on the way through. I think the feeling of the Treasurer was that where dealings are on an intergovernmental basis it would be better if the Treasurer were conducting the negotiations, being the Treasurer and Minister of Intergovernmental Affairs. It was merely to maintain some consistency which had been overlooked when we made the original change.

Motion agreed to.

Mr. I. Deans (Wentworth): I want to make a suggestion for some future consideration, in regard to one of the sections of the bill. It is

section 12 on page 6.

Mr. Chairman: Anything before

section 12?

Mr. Renwick: In the interests of efficient dispatch of business, I wonder if the parliamentary assistant would take time to comment on each of the sections? There is a series of amendments and the explanatory notes are reasonably clear but there’s much more that needs to be said. I don’t mean to take up a lot of time but I think it is most important that we talk a little bit about what these various amendments carry out. If that’s acceptable, it might be an efficient way to deal with it.

Mr. Walker: One by one?

Mr. Renwick: Yes.

Mr. Chairman: On

section 2.

Mr. Walker: Mr. Chairman, I am not sure if the hon. member wishes me to go through it in total at this point or as we come to each section.

Mr. Renwick: Each

section as they come up.

Mr. Chairman: Commence with

section 2, then.

Mr. Walker: Mr. Chairman,

section 2 and

section 3 are somewhat related.

Section 2 establishes some alterations in the medical review committee. As you know, the medical review committee is made up of representatives of the College of Physicians and Surgeons, and these people sit in judgment on matters referred to them by the general manager of OHIP; matters such as overpayment and the like.

In this case, it will --

Mr. V. M. Singer (Downsview): Is there not an ability for someone concerned to go to the medical review committee directly?

Mr. Walker: I beg your pardon?

Mr. Singer: Is there not an ability, for someone who is unhappy with the decision of the general manager, to go to the medical review committee directly?

Mr. Walker: I believe the general manager must refer any matter to the medical review committee about which you’re now making reference. It goes that route and the proper appeal procedure is established, of course.

Formerly, the medical review committee consisted of up to seven physicians. I believe in this case there were, in fact, seven physicians on it, and there were lay people on the board. This will create a medical review committee made up of six members nominated by the College of Physicians and Surgeons, presumably physicians, and two members not to be practitioners or physicians to be appointed by the minister. These, of course, would be the lay people.

Part of

section 2 relates to the quorum and the fact that the expenses of the MRC will be paid by the ministry.

Section 3 really is somewhat related in that it establishes the practitioner review committee for the other bodies paid under OHIP -- the other bodies being chiropody, chiropractic, dentistry, optometry and osteopathy. In these areas this completes the balance of disciplines paid under OHIP. The practitioner review committee would be established for each of those five bodies, to include two lay people and three of the particular professional body.

It again parallels

section 2 by identifying the size of the quorum and the remuneration, expenses.

Mr. Chairman: Shall

section 2 stand as part of the bill?

Mr. Singer: On

section 2, Mr. Chairman, would the parliamentary assistant not think it reasonable and logical that there should be in the statute some fixed periods when this committee should sit? I had an experience some months ago when I was trying to process a complaint through the various bodies set up by the original statute. And even though the statute had been on the books for some months, I found some difficulty in ascertaining what the procedure was.

Eventually the procedure was more or less ascertained by substantial reference to the statute and explanation to the civil servants concerned that this was what the statute said so it had to be done. Then we had trouble in getting the committee to meet because they had never met before.

I just wonder whether there might not be some provision in here that the committee shall meet, say a minimum of three times a year, or four times a year, or on some kind of regular basis. It is all very well to set these things out in statute, but in the event that the people who are on these committees decide not to meet, there is very little that someone who wants their advice and help, or who wants to take advantage of the statutory provisions, can do about it.

I think it might be very salutary if the Legislature did write into this statute at this time some provision to the effect that they shall meet at least three or four times a year; I don’t want to be particularly arbitrary about that.

But it was a great new experiment. In the case I was interested in they had never met before; and they might never meet; and they didn’t know how they would meet, or if anybody could attend, or if they couldn’t attend -- and so on. I wonder if it shouldn’t be tightened up a little bit.

Mr. Walker: On the first point, Mr. Chairman, the medical review committee, as it is now constituted and as it is presently acting, probably meets something like 12 months of the year. It has matters referred to it; it is complaint-oriented, so to speak.

When the general manager of OHIP, Mr. Fetherston, refers a matter to the medical review committee it then goes into action. The first thing it does is review the matter and order investigations. We have so many now referred to the medical review committee that, in fact, they have developed a backlog. But they are going through the process of continuous investigations. They charge the party to do the investigation and that party -- usually accountants and otherwise -- conducts his investigation and then reports back to the medical review committee. From there certain procedures are taken.

But there is no problem on the question of meeting. They are meeting sort of continuously.

Mr. Singer: To allay my fears can you tell me how many times the medical review committee met in the months of June, May, April, and March, 1974?

Mr. Walker: I can’t tell you, but I can request my assistants here to obtain --

Mr. Singer: We could sort of pause for a moment while you get that information.

Mr. Walker: -- to attempt to obtain the information from whomever and I will try to give it to you. It will probably be later on in the bill as we are proceeding through.

Mr. Singer: Yes. If you can’t give us the information now perhaps we should stand down

section 2 until you can, because I think this is most important. It is very easy for the parliamentary assistant to say that they meet frequently and regularly and almost constantly, but I would like to know, for the last three months, how many times they have met, how many complaints they have dealt with.

If they are somewhat difficult to pin down to a specific meeting then perhaps we should get to the point where we do write directly into the statute that they shall meet a minimum of -- and my mind is quite open and I am willing to accept the parliamentary assistant’s suggestion -- they should meet X times a month, or every three months, or whatever. But I think it should be there. I think we should tell them that they have to work.

Mr. Walker: Mr. Chairman, what I would suggest here is that the bill be proceeded with and I will request one of the people here to contact Mr. Fetherston, who would have this information. If we can reach him, I will convey that information to the member tonight during the clause by clause. If, as a result of the information, an amendment is forthcoming I wouldn’t be averse to reopening

section 2 of the bill.

Mr. Singer: We can withhold the passage of the bill in the committee, Mr. Chairman, with what the parliamentary assistant has said, until he can bring us that information. I am not necessarily saying there should be an amendment. But I am a little concerned about it and I would like to know how often they meet.

Mr. Chairman: We can hold it for a while at least, until we get the information for you.

Mr. Singer: Yes. All right. Let’s hold it for a while and see what happens.

Mr. Chairman: That is

section

Section 3? Carried? Do we wish an explanation for that?

Mr. Walker: I’ve given it to the members.

Mr. Chairman: Oh, they were together.

Mr. Walker: There are other parts of

section 3 that I didn’t touch on.

Mr. J. R. Breithaupt (Kitchener): Don’t bother. It is carried.

Mr. Walker: Sections 5 and 6 -- well I won’t bother, maybe that will be easier.

Mr. Deans: You can’t take a hint, can you?

Mr. Walker: Not quickly enough.

Mr. Chairman: Any comment, question or amendment on a later

section of bill?

An hon. member:

Section 7.

Mr. Chairman: Anything before 7.

Mr. Singer: What about

section 3?

Mr. Walker: We just finished that.

Mr. Singer: I’m sorry if I was being a little lax. Could I ask the member a question? In these practitioner review committees, why is the plan sensible that each of these committees has a majority of members of that particular discipline? Would it not be more logical that they have a majority of members who are not of that particular discipline?

I was very fascinated yesterday, in fact, to hear a gentleman from the College of Physicians and Surgeons explaining the complaints committee related to the college. He was standing in great dignity and beating his breast and saying they had a very good committee, which consisted of three doctors and one lay person. The one lay person, yes, it was true, didn’t have a vote, but the one lay person really had always indicated to them that she agreed with everything they had said.

As much respect as I have for Betty Kennedy, who is the one lay person on the College of Physicians and Surgeons’ complaints committee, even she might be a bit overwhelmed by the presence of three doctors who gave her an opinion and said: “Now, Betty, do you agree or don’t you agree?”

If these review committees and complaints committees and so on are going to have the real confidence of the people of Ontario, and since the minister is going to appoint them, what would be wrong in having a majority of people on these committees who are not members of that particular discipline?

Mr. Walker: Mr. Chairman, as this particular body sits in judgment of bills, of accounts, of overpayments primarily, and the decision that it renders is then a decision made primarily by its peers; it has the lay numbers there to ensure that the public has an interest and the public’s interest is respected in it. By the same token, the majority, like the medical review committee, being of the profession, so to speak, then peers are sitting in judgment on the question of overpayment. I think that’s not unlike the Law Society. On any overpayments that we may be involved in, our peers render an opinion.

Mr. Singer: Maybe we are around to the time, Mr. Chairman, when we should begin to rethink that. Even the Law Society might do it that way; perhaps even the Law Society could be in error. I think this might be the time right now to consider having members who are independent and dissociated from a particular group. This is the great day when we talk about conflict of interest frequently.

A chiropodist -- and that’s sub (1) of the new 5 -- who sits in review of his fellow chiropodist’s bill, might be a little more inclined to say: “Good old Joe, who I went to chiropody college with, is not an unreasonable fellow, and his bill surely isn’t unreasonable,” while a person who is not a chiropodist might want to look at it a little more realistically. It’s the same thing with chiropractors, dentists, optometrists, and osteopaths. If we are going to bring in this new kind of idea about public participation -- I’ve heard the Premier (Mr.

Davis) say so many times that this government is the government of the people -- why don’t we trust the people to make this kind of decision? I think it is something the parliamentary assistant should think about a little more thoroughly.

Mr. Chairman: Shall this

section stand as part of the bill?

Mr. Walker: I have more faith in the peers and I’m satisfied, if one chiropractor or chiropodist who happened to be a friend of one of the parties submitting an account, the other four people, two of whom would be lay and two of whom would be in the profession, would ensure that the rights of the public are protected.

Mr. Chairman: Shall this

section stand as part of the bill?

Section 3 agreed to.

Mr. Chairman: Any comments, questions or amendments on a later

section of the bill?

Mr. R. Haggerty (Welland South):

Section 7.

Sections 4 to 6, inclusive agreed to.

Mr. Chairman: The member for Welland South.

section 7:

Mr. Haggerty: Mr. Chairman, I am a little bit concerned about this section.

The explanatory note reads:

“Section 24(1)(

c) of the Act requires the general manager to serve notice on a claimant where the general manager reduces the amount claimed for payment for an insured service. The amended clause will only require notice that a claim is reduced where the claim is reduced to an amount less than the amount payable by the plan.”

Mr. Chairman, I happen to represent an area that is pretty close to the American border and our neighbours to the south. In a number of cases, persons in my area have to go to the major hospitals in Buffalo for medical treatment. They are sent there by their local family physician or doctor for special treatment. There is a problem, however, in that the Ontario Health Insurance Plan only covers a certain percentage of the fee that is charged in the United States. In some cases, quite a bit is left owing, and the person himself has to pay the additional cost.

I can recall an instance where a young family man was in Buffalo and had a heart attack on the city’s main street, I believe. He was rushed to one of the major hospitals there for heart surgery. I believe the hospital bill alone was close to $12,000. There was quite a bit of communication between myself and the Minister of Health about that particular bill, and it was finally paid. But now the person is confronted with the doctor’s bill, which I believe amounts to about $1,300 or $1,400. He is faced with paying this large bill, which has just come in now, almost a year after the surgery.

I have a letter off to one of the minister’s staff in the hope that he will give consideration to the payment of this charge.

There are a number of Ontario people who travel down to the United States, particularly in the winter months, and who sometime require special medical services in places like Florida. If they do, they sometimes are left with a large bill to be paid for the medical services rendered there.

I know people can go out and buy special coverage -- I believe Blue Cross has special premiums that cover this -- but surely it should come under the Ontario Health Insurance Plan. A person shouldn’t have to pick up this extra charge that is required in the United States. It’s a misfortune if a person does become sick in the United States, and I believe it is a responsibility of the Ontario Health Insurance Plan to pay the bill in full.

Mr. Walker: Mr. Chairman, the merits of the point, of course, relate to other sections of the Ontario Health Insurance Plan and not particularly to this one. This

section speaks only of the type of notice that would be required where the general manager reduces or limits the amount to be paid to a figure something less than is provided in the OHIP schedule.

For instance, if a bill from the United States was $5,000 and the maximum tariffable payment was $1,000 for the same matter, and if OHIP intended to render an account of moneys for $800, then in that case proper notice would have to be served upon the individual.

The points about which the member makes reference may well have some merit but, of course, they don’t relate to this particular section.

Mr. Chairman: Shall

section 7 stand as part of the bill?

Section 7 agreed to.

Mr. Chairman: Anything on a later section?

Mr. A. J. Roy (Ottawa East):

Section 8.

Mr. Chairman: The member for Ottawa East.

section 8:

Mr. Roy: Mr. Chairman, I’m a bit concerned about the import of

section 8, and I would like to make the following comments to the parliamentary assistant.

This

section deals with overpayments and such, but it seems to me that we have been discussing in this House, at least since 1971, some methods of keeping an eye on the question of overpayment, or the payment made to doctors.

One of the first things that the ministry should be doing -- in fact we discussed this situation when the member for Carleton East (Mr. Lawrence) was Minister of Health -- why wouldn’t all the people insured under the plan have a card; and when billings are made and when doctors provide services, then the patient gets a copy?

It seems to me, Mr. Chairman, that would be one of the first things that would at least reduce the incentive for doctors to be submitting claims when services have not been performed.

I would like to an answer from the parliamentary assistant as to why this system has not been functioning. As I understand it, isn’t that the way it operates presently in Quebec? You work on the basis of a credit card. Every time a service is performed, the patient receives a copy showing this.

It seems to us that is a practical way of doing things. The way it is now, the doctor is billing through the plan, and very often the patient doesn’t know this -- there is no check on this. In this way, you could enlist the services of the general public of this province to keep an eye on this.

I want to make it very clear, Mr. Chairman, that I feel it is a very small minority of the profession who might be abusing it. But even the president of the profession mentioned this in his address here in Toronto last week; that there are some doctors that are gouging the plan. Unfortunately, these few doctors are giving the profession a bad reputation.

I wonder why this system has not been enacted yet in this province? That is the first question I have; and perhaps the parliamentary assistant might respond to that,

Mr. Walker: Mr. Chairman, in responding, I must say that the card is being very actively considered within the ministry. Some of the considerations relate to some of the drawbacks. There are some significant costs to installing a credit card system for every person in Ontario who has OHIP. We have given very serious consideration to that. There is an additional cost for some kind of machine in every doctor’s office in Ontario.

Mr. Roy: Oh yes, but what is $5?

Mr. Walker: I have never seen a $5 machine. I think at least we are talking in excess of $25, and probably something higher than that for every doctor’s office.

Mr. Roy: Get together with Gulf Oil or some other oil people among your friends.

Mr. Walker: We’ll borrow the Gulf Oil card.

Another consideration is, do you have the person sign? Would you have the person sign?

Mr. Roy: Why not?

Mr. Walker: One of the problems is that many of the services are given to people who are incapable of signing. For example, many are in beds and the services are rendered, perhaps while they are not even awake. They are in hospitals, or they are otherwise incapacitated.

These are some of the considerations that have been looked at. I generally tend to think that a card would be a preferential thing. However, these other considerations do weigh somewhat heavily.

Nevertheless, all those comments do not relate at all to this section, particularly 8(2). This

section is our means of getting at doctors who do not use OHIP -- who have opted out. This is the opting out section. And of course a card would be useless in that case, because they don’t participate in OHIP. This is the opting out section; it allows us the opportunity to recover through civil process, going to the courts.

Mr. Roy: Do you mean this

section applies only to those doctors who are opting out?

Mr. Walker: Yes.

Mr. Roy: What are you trying to recover?

Mr. Walker: Overpayment.

Mr. Roy: Overpayment to whom?

Mr. Deans: That doesn’t really make much sense.

Mr. Roy: I don’t quite understand it.

Mr. Walker: We would not be able to recover from people who do not have an ongoing account, as is now the situation. Where there is no ongoing account with them, we then could not make a deduction from the account for any overpayment purpose. This allows us the process of going to court to recover that.

Mr. Breithaupt: Why couldn’t they go to court anyway?

Mr. Roy: That’s what I don’t understand. Why couldn’t you go to court anyway. As I understand it, the patient pays directly to doctors who are not in the plan, and then the patient is the one who submits the bill to OHIP?

Now, we are talking about an overpayment to whom, exactly?

Mr. Walker: This will be for overpayment for charges made when the doctor gives an account to a patient and the patient then submits the account to OHIP. The overpayment is made to the patient who then sends on the money to the doctor. In that case, the recovery becomes very difficult as we do not have the running accounts from which we can make the deduction.

Mr. Roy: I see.

Mr. Chairman: Does

section 8 carry?

Mr. Deans: No; I just have one question to ask. I suppose it is not directly related. It may well be and you can correct me if I am wrong. There was a recent case in the newspaper with regard to a doctor who had seen some extremely large number of patients --

Mr. Roy: He claimed for 155 patients in one day.

Mr. Deans: -- during a number of different days in two or three different months and it bothered me. It bothered me not that he had claimed to have seen the patients because it is entirely possible he did see the patients although it may be very difficult to imagine.

Mr. Renwick: The member for Ottawa East in his legal practice sees more than that doctor.

Mr. Deans: I will tell you what bothered me about it.

Mr. Roy: I’ve never seen more than 125.

Mr. Deans: If a person in the Province of Ontario were to steal something -- it wouldn’t matter what it was -- if they were to steal anything; if they go into a store and steal a loaf of bread or they go out and steal something, they get dragged into court and they get 30 days or whatever and $100 fine.

I had a case about a year and a half ago when a lady, on a first offence, stole some meat during the month of December. She got 10 days or $100 but she had two small kids and there was no way she could go to jail. We had a lot of trouble getting the fine put together to pay for it. That woman was treated pretty harshly by the courts.

I want to know what you do with a doctor who is obviously stealing from the system? He is making claims for services which really couldn’t be rendered and it’s obvious they couldn’t be rendered. If they were being rendered, it would have to be an inadequate service in order to have done it. I read in that one case, for example, there were two or three well-baby examinations, a couple of general physicals and all kinds of things which were supposed to have done, yet he was able to see all these patients in a given day.

When are we going to start treating those people the same way we treated that woman who stole the meat in the store? Maybe even a little differently; maybe more harshly because there is no need for stealing at that end. There may well have been need in the case of the woman. When are we going to start treating those people that way, making it plain to physicians, in fact to all kinds of people, that we are just not going to tolerate this abusing of a system which is intended to help them and help patients?

This is a great benefit to a lot of doctors, this system. It cuts down on overhead. It cuts down on problems of collection. It provides them with a substantial income from people they might not have been able to collect from. For them to go ahead beyond that and virtually to steal money out of the public Treasury, I can’t feel very badly for them.

I feel badly for the public purse and for the Ministry of Health. What are you going to do? There are more and more doctors being examined; their accounts are being examined. More and more of them in this day and age are being reviewed to determine what they are doing in regard to services being rendered.

What is the Ministry of Health going to do? Are they going to lay charges against this fellow who, a couple of weeks ago, stole from that system? Are they going to take him to court and have him convicted of theft? Are you going to try to do that? When you find somebody stealing like that, is he going to be treated the same as everybody else with 30 days and a $1,000 or something? Will you tell me what you are going to do about it?

Mr. Walker: Mr. Chairman, the member raises a very good point. I do not wish to comment directly on the case he has raised or as to whether charges will be laid in that particular case. However, I will tell the member that an individual who finds himself perhaps in a fraudulent situation suffers from three particular penalties. One, which he’s likely to appreciate, is having his privileges withdrawn by the college involved. In the reference you have made, if I recall the newspaper story, this individual was suspended for six months.

The period was delayed pending the appeal -- or at least the immediacy of the suspension was delayed pending the appeal and if the appeal falters, I presume, of course, the suspension will go on.

Mr. Roy: The sentence was suspended, if I recall the case.

Mr. Walker: No, suspended pending the appeal. I read that quite carefully.

The other penalties, if we can call them that, available to the individual are certainly the recovery of the overpayment; that’s a penalty and that’s appropriate justice of course. The third one is that all of these matters are referred to the police and to the Attorney General and charges for fraud, presumably, or other charges, if there are others, would be laid against the individual, if in the opinion of the Crown officers it is warranted, but these are in fact referred.

I can tell the member right now that there is one matter actually being prosecuted, to which he made reference but not related to the individual case he brought up. Others are under a great deal of investigation by the police.

Mr. Roy: I just wish to comment briefly, Mr. Chairman, on the point raised by the parliamentary assistant and by the member for Wentworth.

I quite appreciate that prosecution of doctors for the type of scheme that the member was referring to are extremely difficult. I have had discussions with a number of Crown attorneys and I appreciate that it is extremely difficult. I intend to raise the question in the Health Disciplines Act when we get into the discipline thing. It appears to me, by and large, that the discipline afforded in relation to overpayment and this type of thing or to outright fraud has not been stiff enough. It seems to me there is a false sense of priorities.

Possibly I have got this thing all wrong, but this

article appeared about a doctor who had seen 155 patients. I would think that someone seeing that many patients and performing other services would not be rendering much service to any patient. When you are cranking out people at that rate, surely you can’t be spending any time with them. It is questionable whether any patients are getting benefit.

This doctor had a penalty that was suspended, and we don’t know what the penalty is. In the same newspaper on the same day there was a doctor who was found guilty of having sexual intercourse with a patient. This doctor had his licence suspended. I just wonder which of the two was the worse. Which is the more severe, a guy who abuses 155 patients or a doctor who takes advantage of one patient?

There is something wrong in the system maybe. I know it is one of the cardinal sins of that profession to take advantage of a patient -- that is traditional -- but on the other hand it seems to me there is something lacking when you get that type of result from similar cases.

Sections 8 to 15, inclusive, agreed to.

Mr. Chairman:

Section 2 has been momentarily held over. Is there any comment on that?

Mr. Walker: The member for Downsview is not here. I had hoped he would be in in time for these remarks. I am told the medical review committee meets every two to three weeks, and during the interim periods reviews much of the background material provided by its secretariat.

Section 2 agreed to.

Bill 100, as amended, reported.

PUBLIC HEALTH ACT

House in committee on Bill 101,

An Act to amend the Public Health Act.

Mr. Chairman: Are there comments, questions or amendments, and if so, on which section?

Mr. Roy: Mr. Chairman, we made certain comments on second reading, and possibly the questions I have are on the latter part of the bill dealing with the immunity from action of these inspectors acting in good faith. We said if the provincial inspectors had immunity from action, we feel that inspectors for local boards should have the same immunity.

I would just like to ask the parliamentary assistant, Mr. Chairman, whether he has any. His explanation this morning -- I did not want to say it to you publicly -- I thought was somewhat weak, and I apologize for being so direct.

Mr. F. Laughren (Nickel Belt): You can say it now.

Mr. Roy: You are not proposing any amendments, are you? There were more people here this morning and I didn’t want to take advantage of the situation, Mr. Chairman.

Mr. Chairman: Any comments?

An hon. member: That is in a later section, Mr. Chairman.

Mr. Chairman: Later than what? We haven’t called a section. This is just a --

Mr. Laughren: Pull yourself together.

Mr. Chairman: The member for Parkdale. Which section?

Mr. J. Dukszta (Parkdale): The same

section as --

Mr. Chairman: That is a later section. Does the hon. parliamentary assistant have a --

Mr. Walker: Yes, Mr. Chairman. It is in my desk. I think the

section --

Mr. Roy: I think it’s

section 11, isn’t it? Isn’t that the

section we are interested in?

Section 11?

Mr. Dukszta: I am interested in

section 2 just to get another answer from the parliamentary assistant on the question of immunity. That really comes by extension from

section 2 if you apply it to the board. It’s the same question I raised this morning.

I got some funny answer from you in the morning; and also later when we were talking outside. I wonder if you could give us a legal reason why immunity could not be extended to the members of the board?

I will give you an example why it is really essential. Abatement orders were issued against Toronto Refiners & Smelters on May 24; now the board has been taken to court on grounds of bias. But if the board was independent or was protected from this type of thing, they could proceed more straightforwardly with their work. In this way, I think the boards, specifically the board in Toronto, are hamstrung entirely in their actions.

I wonder if you could comment on it.

Mr. Walker: Mr. Chairman, are we up to

section 11?

Mr. Chairman: I think the question was on

section 2, was it not?

Mr. Dukszta: It’s under

section 2? Well I stand corrected.

Mr. Roy: Mr. Chairman, the member’s point is well taken. It’s actually

section 2, subsection 2c, where we talk about immunity at the provincial level. That is the section. Yes, subsection 2c. This is at the bottom of page 2 of the bill.

The member’s point, I take it, is that if we are going to give immunity, it should be given in that section.

Mr. Dukszta: Yes, by extension to the board. That is why I want to discuss it now.

Mr. Walker: Mr. Chairman, allow me to comment on the immunity question. There is some inferential reference to it, certainly, in

section 2 of the Act; but it does specifically fall within

section 11 of the Act. However, there were two questions raised; one relates to the immunity of the inspector, raised by the member for Ottawa East, and the other to the immunity of the board member, raised by the member for Parkdale.

In the question of immunity for the local inspector or the inspector working for the local board of health, as I indicated this morning to extend the immunity to a body other than a person reporting directly to the province is an extension of precedent that I don’t think we should proceed along.

It may be subject to very careful review over the next year or so, but to go that route means there would then be no liability for the local inspector. To whom would the public then look for redress? Well they couldn’t look to the board, because the member for Parkdale would have it removed from the board as well. So, in fact, the public would have no redress other than for some type of gross negligence.

Mr. E. R. Good (Waterloo North): They could estreat the board, the same as the province estreats --

Mr. Walker: We in the province have retained our responsibility by indicating in

section 2 on page 3, subsection 2, that we would retain our liability and not be relieved at all for any tort committed by an agent or servant of the Crown who would otherwise be subject. The Crown is liable under the Proceedings against the Crown Act for any such tort in a like manner as if subsection 1 had not been enacted.

On the other hand, if you eliminate the liability for the local inspector of the local board of health, presumably he might have some redress against the directors of the local board. However, the local boards have never indicated that they’re prepared to accept that responsibility. We in the province have said we would accept the liability for tort.

The local boards of health have not accepted that. If they came to us and indicated they were prepared to accept it, that might be another question, but we would be imposing an obligation upon them, a liability, and we would be rightly criticized for so doing.

If we went as far as what the member for Parkdale indicates, in addition to what the member for Ottawa East suggests, we would eliminate the liability on the board. The board being not liable, the local inspector being not liable, who would be liable for a tort? There would be no one liable for tort and the public would not have proper redress.

Mr. Roy: Mr. Chairman, as I understand it, what you’re trying to do in subsection 2(c) -- you’re not saying an inspector is not liable or cannot be sued for a tort. You are saying that he cannot be sued for a tort or for any action which is done in good faith. If an action is done in good faith, it’s a defence for the inspector and it’s a defence for the Crown. If it’s not done in good faith, and it is a tort, it is not a defence for the inspector and it is not a defence for the Crown. That is basically what this bill says, as I read it.

You could have the same thing for the local board -- that it is immune to any action for any act done in good faith. But, if it’s a tort, he is responsible and the municipality is responsible; his employer is responsible.

The way I read your argument is that subsection 2 on page 3 makes the Crown liable. It does not make the Crown liable for any act of the inspector when he acted in good faith. It makes the Crown responsible for a tort, as I read it. That says “if it’s not done in good faith.”

I don’t get your point at all. The Crown only takes responsibility for a tort and we’re not trying to ask you to put in legislation to remove all responsibility. All we’re saying, basically, is make certain people immune from responsibility for acts done in good faith.

That’s the way I read it.

Mr. Good: Mr. Chairman, on this point, does it not seem somewhat inconsistent in view of the fact that the inspection done, say under

part 6 of the Environmental Protection Act -- the inspection of the installation of private sewage systems -- is done by local boards of health inspectors in areas where the province has made an agreement with the local board of health? Where the Minister of the Environment has made an agreement with the local board of health, it’s the local board of health inspectors who are doing the inspection under

part 6 of the Environmental Protection Act.

In otter areas, where the inspectors are doing it under the Minister of the Environment -- doing the same job where they have retained that and haven’t turned it over to the local boards of health -- we included this protection in

an Act about two weeks ago under the Minister of the Environment, for provincial inspectors. Here you have two inspectors doing exactly the same job, the same person; except the Minister of the Environment (Mr. Newman) has farmed it out to the local boards of health by agreements which usually run about three years.

Does it not appear somewhat inconsistent that one should be excluded from liability and the liability is taken by the Crown, yet the other inspectors who have taken over the job, with an agreement from the Ministry of the Environment, are not given that exemption?

Mr. Walker: I don’t think I follow that. Is the member saying that in the Ministry of the Environment, where there are local inspectors reporting to a local board of health, the liability is assumed by the Crown?

Mr. Good: No, it isn’t; that’s in your bill.

Mr. Walker: Then at last we are consistent with what the environment people are doing.

There’s no lack of consistency there.

Mr. Good: But when their inspectors do the same job in areas where they don’t have an agreement with the local board of health, we put this into that bill two weeks ago.

Mr. Walker: Then that’s consistent.

Mr. Good: But there are two people doing the same job and one is protected and the other isn’t.

Mr. Dukszta: Mr. Chairman?

Mr. Chairman: Yes.

Mr. Dukszta: Let me go over that point again. The Toronto Refiners & Smelters brought this motion at the divisional court against the board of health in Toronto, alleging bias against the three members of the board. Would you agree that this is a direct interference, if you like, by way of negating the work of the board, which they were doing in terms of the possible lead poisoning in the area, because they have no immunity here?

Because they have no immunity the smelters could bring this motion and paralyse the action of the board; and at the same time by alleging that this is a bias, well if they were not elected officials, who are not particularly frightened by this sort of thing, it would frighten most of the members of the board. Consequently, it’s a paralysis of die action of the board. If you offer immunity to the members of the board this probably would not occur and they would continue doing the function which they are constituted to do without any fear.

Do I make a point here?

Mr. Walker: You make a point, but I am very concerned about immunity being given to bodies other than those directly within the control of the province.

Mr. Chairman: Shall this

section carry?

The hon. member for Ottawa East has an amendment to some section?

Mr. Roy: No, not to this bill, Mr. Chairman.

Mr. Chairman: Oh I see. Any further comments, questions or amendments to this section?

Mr. Renwick:

Section 11,

Mr. Chairman:

Section 11. Anything before 11? All right, the member for Riverdale.

Sections 1 to 10, inclusive, agreed to.

section 11:

Mr. Renwick: I’d just like to ask the parliamentary assistant why in

section 11 he doesn’t extend that authority to the local board as well as to the medical officer of health of the municipality. And, in order to make my point perfectly clear, I have an amendment.

Mr. Renwick moves that

section 11 of the bill be amended by adding the words, “or the local board” after the word “health” in the first line of subsection 1 of

section 87 of the Act.

Mr. Renwick: So the first line would then read: “The medical officer of health or the local board of a municipality or any inspector or other person in the employ of the local board acting under his instructions may enter any premises....”

Mr. Chairman: Any comment on this?

Mr. Roy: While the parliamentary assistant is reviewing this, Mr. Chairman, possibly I could make a few comments.

As I understand local boards, these are ratepayers who are named to the board. Is the member for Riverdale saying that he would suggest that these people on that board may enter premises in a municipality as inspectors -- may enter any premises at all reasonable times? Isn’t the function of the board really something supervisory and isn’t it the job of the medical officer of health and inspectors, to go out and do the work? I mean, I just don’t quite understand. Maybe the member for Riverdale can explain. Would he have the board enter --

Mr. Renwick: What I am trying to say is that the local board on occasion, as has happened in the city of Toronto, seems to be having difficulty between itself and the medical officer of health. It would appear to me in a situation such as has developed in Toronto that the local board itself should be able to go and take the action set out in

section 87, including the making of the order that the premises be closed. If we leave it entirely with the medical officer of health, who is appointed by the province, you have this conflict between the local board whose job it is to make certain that the health standards of the community are maintained.

Mr. Roy: I thought the MOH was an employee of the board.

Mr. Good: He’s hired by the board. He’s not appointed by the province.

Interjections by hon. members.

Mr. Chairman: Any comment?

Those in favour of Mr. Renwick’s motion will please say “aye.”

Those opposed will please say “nay.”

Mr. Renwick: Is the parliamentary assistant not saying anything?

Mr. J. F. Foulds (Port Arthur): No, he doesn’t know anything.

Mr. Walker: I thought I’d get away with that.

I tend to think, Mr. Chairman, that as the member for Ottawa East has suggested, the local board is of course the non-professional part of the operation. They’re usually individuals who are not trained in the field of health in the sense that an MOH, of course, would be.

It seems to me that it would be more appropriate for the medical officer of health or his employees to enter upon the premises and make the professional judgment that would be required in matters of cleanliness, sterilization or other matters that might relate entirely to health problems.

We are dealing here, of course, with health problems. I think of a dairy; I can see the local board of health members, who might be a gasoline station operator or other lay people, walking in and not being able to render a very proficient judgment on the basis of what they might see in any particular establishment.

The purpose of the board of health is to sit in judgment on the professional evidence tendered to it. I really think there would tend to be a lack of professionalism about the evidence that might be coming forward for a variety of other reasons. But truly, if they’re to sit in judgment on matters of health, they should have the professional advice before them and see it with a properly open mind.

Mr. Renwick: I raised the question and I recognize that the drafting of that amendment, in order to make the point, may leave something to be desired.

What I’m endeavouring to say is that the local board should be able to instruct the medical officer of health or members of the medical of health officer’s staff to go and make an inspection and to submit a report to the local board, on the basis of which the local board could make the order with respect to the rectification of whatever the dangerous situation was.

If I understand the problem, and my colleague from Parkdale would have a clearer appreciation of the nature of the problem, the problem at the moment is that for practical purposes the local board of health can’t instruct the medical officer of health to do anything, because the medical officer of health is appointed by the provincial government and the local board is a representative body of citizens.

I think that we have to accept the nature of our system is such that a local board is of necessity going to be a lay body or an amateur body, just the same as we’re amateurs here. But we also have to give them credit for being able to accept advice, to give instructions and to deal with a situation where there may be some reluctance, as there obviously has been on the part of the medical officer of health of the city of Toronto to really deal with the question of lead pollution in the areas of the Canada Metal plant and the Toronto Refiners and Smelters plant.

Mr. Walker: I agree entirely with what the hon. member is saying. If this is the

interpretation of his amendment, I don’t feel that the amendment achieves that purpose.

Mr. Renwick: I admit that.

Mr. Walker: That being the case, let me say that the situation that you suggest as being appropriate -- in other words, that the MOH be directed -- will now come to pass, as the MOH becomes the employee of the board. The MOH is removed from the board by this particular section. At one point in time he was an equal officer with whatever number of members were on the board that existed.

Following passage of this bill, if the Legislature so grants, it will remove the MOH from the board; therefore, he becomes an employee of the board. In fact, the case in Toronto, it is my understanding -- I stand to be corrected on this, but it is what I think to be a very valid understanding -- is that the MOH is appointed from or by the city. In this case the recommendation will now start to come from the board of health as to who the MOH should be or the decision of hiring and firing. The MOH is there really, now, with this bill, to execute the will of the board.

Mr. Renwick: Mr. Chairman, on one point; I take it what the parliamentary assistant is saying is that he would be prepared to accept an amendment which would provide that on receiving the report of the medical officer of health, the inspector or whoever makes the inspection, that then it is the local board that can issue the order with respect to the closing of the plant. I don’t see that this

section as presently drafted, or with my amendment, accomplishes that purpose.

Mr. Dukszta: Mr. Chairman, may I just ask you about this point? It has been anomalous that an employee, as you call the medical officer of health that, is able to defy any order or ruling by the board. And when I look at this, you are now assuring me that he becomes an employee of the board. That is to say, I assume he has to obey what the board tells him. I am not a lawyer, but as I look through this Act I don’t see in which

section you say this is going to be accomplished.

The inspectors are surely different from a medical officer of health. In the very first line it says: “The medical officer of health of a municipality or any inspector or other person.” To which

section are you referring which makes it so doubly sure that he now becomes an employee?

Mr. Roy: Just to support the member for Parkdale, I heard you say that this morning when we were discussing this bill. I glanced at it as well, and I don’t see anything like that in the bill. I can see that the medical officer of health is not on the board. That is obvious from

section 4, because we say who is going to be on the board.

But there is nothing in this legislation that I have seen -- and maybe I have missed it as well -- which establishes a sort of servant role for the medical officer of health; that he has to follow instructions once they are given to him by the local board of health. I really don’t see where that is the situation in this legislation. Is the medical officer of health not appointed by the province?

Mr. Walker: No, not by the province. He is appointed under the Act, but not by the province.

Mr. Good: By the municipality.

Mr. Walker: He is appointed by the municipality.

Mr. Roy: Why is it, then, in

section 5, that the medical officer of health ceases to hold office at 65 years of age, but the municipal council may retain him on a year-to-year basis after that, with the approval of the minister? The minister has to approve if he is over 65, then?

Mr. Walker: He is appointed by the municipality.

Mr. Roy: In any event, where is it in the legislation that says he has to follow instructions from the board of health; he is a servant? I don’t see anything --

Mr. Walker: It is just inconceivable to think that he would not now follow the instructions of the board of health. The Public Health Act,

chapter 337,

section 1(k), describes a medical officer of health.

Mr. Dukszta: Which section? I am sorry.

Mr. Walker:

Section 1(

k) of the Act-the medical officer of health of the municipality or of a health unit appointed under the Act. The Act is used as a basis to appoint the individual, to give the MOH the appropriate powers, and so on. But he is the employee of the municipality; the employee of the board of health.

Mr. Haggerty: He is not appointed by the municipality any more.

Mr. Walker: Pardon?

Mr. Haggerty: He is not appointed by the municipality any more.

Mr. Dukszta: Mr. Chairman, may I point out that the department does not refer to the municipality, but refers to the Ministry of Health. That is in the Act itself. He is appointed by the minister, indirectly or otherwise; but he is not appointed by the municipality. Unless you specify in the Act that he should be directly responsible to the board, the same condition will continue in which the medical officer of health is not responsible to the local board and acts as an independent satrap.

An hon. member: A good point.

Mr. Laughren: The member for Timiskaming (Mr. Havrot) is looking for a job, you know.

Mr. Walker: I have long ears.

Section 41 of the Act --

Interjection by an hon. member.

Mr. Walker:

Section 41, the medical officer of health is the executive officer of the local board, and with the local board is responsible for carrying out this Act and the regulations under the public health or sanitary bylaws of the municipality. Very clearly, he is set out as the executive officer of the local board. He is the employee of the local board.

Mr. Renwick: That’s what is not clear.

Mr. Walker: We are eliminating his so-called status as a board member by this particular Act. He therefore reverts to being definitely an employee rather than being both an employee and a board member. There is no question he is an employee, and with respect to the city of Toronto he is appointed by Toronto.

Mr. Renwick: Could I ask just one question? Can the local board make the order that the premises be closed and remain closed until the condition no longer exists in or about the premises? I take it from the reading of the Act that the local board cannot make that order.

Mr. Walker: I think probably the member is correct that the board itself cannot do a closing and that it requires the MOH to make the decision. However, it is inconceivable that he would disagree with the board as the situation now stands. His job is, of course --

Interjections by hon. members.

Mr. Walker: I think the hon. member missed some of the information earlier. The MOH would, in fact, be dumped if he didn’t follow the policy of the board.

Mr. Haggerty: The parliamentary assistant has missed it.

Mr. Roy: If I may be of assistance to the parliamentary assistant, as I read

section 87(1) the people who could make the order to close the premises are the medical officer of health, any inspector or other person in the employ of the local board. I take it, then, under this section, if the medical officer of health, let’s say, did not want to follow the instructions of the local board, the local board could employ someone or instruct someone else to go down there and make the inspection, and under the instructions of this inspector that they have sent out, they could then close the premises if they found it to have something wrong under clauses (

a) and (b). Isn’t that the way this thing reads, that it’s one of these three people, these three alternatives, who can make the order?

Mr. Walker: Yes, that’s the way I read 87(1). The medical officer of health, any inspector or other person in the employ of the local board can then make an order to close the premises.

Mr. Renwick: The local board should be able to make it.

Mr. Walker:

Section 3 relates to revoking the order that may be given. If the MOH gives an order to close, then under certain circumstances he may revoke that order; for instance, compliance.

Mr. Chairman: Those in favour of Mr. Renwick’s motion will please say “aye.”

Those opposed will please say “nay.”

In my opinion the “nays” have it.

I declare the motion lost.

Section 11 agreed to.

Bill 101 reported.

PRIVATE VOCATIONAL SCHOOLS (CONCLUDED)

House in committee on Bill 73,

An Act to provide for the Regulation of Private Vocational Schools.

Mr. Chairman: In Bill 73, the bill had been carried, except for one

section where Mr. Renwick made an amendment. I think there was supposed to have been a conciliation between the hon. member and the parliamentary assistant or some such arrangement.

Mr. Renwick: My friend, the member for Oxford (Mr. Parrott), had very kindly shown me the two additional provisions which would reflect in substance the points which I made on the second reading of the bill. I would move both sections. I’ve had an opportunity of considering subsection 5 and also subsection 6. I’m perfectly happy with subsection 6 and I’m content with subsection 5.

Sections 5 and 6 agreed to.

section 18:

Mr. Renwick moves

section 18 of the bill be amended by adding thereto the following subsections:

“

(5) Where a private vocational school is convicted of an offence under

section 18, any person who has entered into a contract with the private vocational school may at his option void the contract by delivering a notice personally or by registered mail addressed to the private vocational school at the address shown in the contract, and the private vocational school shall forthwith return any moneys received or realized in respect of the contract.

“

(6) Any person who enters into a written contract with a private vocational school in respect of a course or courses of instruction may rescind the contract by delivering a notice personally or by registered mail addressed to the private vocational school at the address shown in the contract within two days after the duplicate original copy of the contract first comes into the possession of the person, and where the contract is rescinded the person shall immediately return any goods received under the contract and the private vocational school shall return any moneys received or realized in respect of the contract.”

Mr. Renwick: I would withdraw the former motion which I had placed before the House.

Mr. Breithaupt: I’m wondering if the parliamentary assistant, the member for Oxford, might wish to comment on the amendment first and that might save us some debate.

Mr. H. C. Parrott (Oxford): Yes, I think it might, Mr. Chairman. First of all, I would like to suggest to the member for Riverdale that we do appreciate the comments that he made on that. I am quite prepared to accept the second of those proposed amendments. That is labelled

section 18, subsection 6. There is agreement by myself on the second of those two amendments that you have in front of you, Mr. Chairman.

On the other one, as you know we had a

section presented in written form by the member for Riverdale and we’ve given it a fair amount of consideration. It was reworked into the draft form which the member read, and it’s our opinion after a good deal of consideration that that

section is perhaps best done under regulations, as suggested when we debated the bill previously.

I don’t know whether the other members of the House would like to hear my reasons for that, but to answer the member for Kitchener, the position is that we are quite prepared to accept subsection 6 as indicated there and not 5.

Now, if you want me to proceed with our arguments at this time we will.

Mr. Chairman: You are placing the two separately. First of all, I understand there is agreement on subsection 6 so I’ll place that first.

Those in favour of Mr. Renwick’s amendment, which will be known as

section 18, subsection 6 --

Mr. Parrott: Five. It will be known as 18(5) if you take it first, Mr. Chairman, I believe.

Mr. Chairman: It’s 6 here. It is the second one anyway.

Shall this motion carry?

Motion agreed to.

Mr. Chairman: All right, that one is carried.

Those in favour of Mr. Renwick’s other amendment --

Mr. Breithaupt: Mr. Chairman, perhaps the member for Riverdale might have some further comments that would encourage the parliamentary assistant to change his mind. If he doesn’t, then I daresay the vote will simply have to go ahead.

Mr. Renwick: Well, I don’t know whether I can do anything to change the member for Oxford’s mind on the topic.

I can understand that he believes it can be done by regulation. The basic point, and the only point, was that if a contract between any person and one of these private vocational schools has any term or condition in the contract which contravenes the regulations or the Act, then the person should be able to void the contract at his option. And that was the purpose of it.

The redraft, as the parliamentary assistant discussed it with me, and the one which I read, which I had thought until this evening would be acceptable to the parliamentary assistant, was to tie it to the question of a conviction for a breach of the regulation of the Act, I was prepared to accept that, even though I would have preferred the more straightforward method that I had indicated rather than to have no

section at all in the bill.

It doesn’t seem to me that by passing the

section as it has been proposed, tying the matter to the conviction, would preclude you at all from dealing with other aspects of the same problem by way of regulation. I would certainly urge that it be accepted and passed.

Mr. Chairman: The hon. member for Oxford.

Mr. Parrott: In reply to the member’s comments, I want to assure the member and the House that, indeed, we appreciate the arguments that have been put forward. But we think subclause (

n) of 20, where we discuss regulations, will indeed give us the element of speed which is extremely important in consumer protection.

I think this is perhaps the overwhelming factor in making a decision in that favour. If it were necessary to go to the courts to have that determination made, perhaps time would delay the possibility sufficiently that indeed we wouldn’t be able to accomplish what the member wants to do.

There is no disagreement between what the member is suggesting and what we wish to do. We are in agreement in principle; I think it’s a matter of whether we think we can do it better under regulations or under a subsection in the Act. It is on that portion, I guess, we are in disagreement; but certainly not the principle and I want to emphasize that. We think we can do it quite nicely under

section 20(n).

Mr. Chairman: Those in favour of the portion of Mr. Renwick’s motion in question, will please say “aye.”

Those opposed will please say “nay.”

In my opinion the “nays” have it.

I declare the motion lost.

Shall the bill, as amended, be reported?

Agreed.

Bill 73, as amended, reported.

PARKWAY BELT PLANNING AND DEVELOPMENT ACT

House in committee on Bill 85,

An Act to amend the Parkway Belt Planning and Development Act, 1973.

Hon. D. R. Irvine (Minister without Portfolio): Mr. Chairman, I indicated before I had an amendment to make to the bill because of

section 2 not coming into force until proclamation by the Lieutenant Governor.

Hon. Mr. Irvine moves that

section 3 of the bill be struck out, and the following inserted in lieu thereof:

“3(1) This Act, except

section 2, comes into force the day it receives royal assent.

“3(2)

Section 2 comes into force on a date to be named by the proclamation of the Lieutenant Governor.”

Motion agreed to.

Mr. Chairman: Any further comments, questions or amendments on this bill? If not, shall the bill, as amended, be reported?

Mr. D. M. Deacon (York Centre): Mr. Chairman, do I understand the minister to say that sections 3 and 4, which relate to the taxation revenue, will be dealt with when they come up with the provincial parks legislation later on? Is that right?

Hon. Mr. Irvine: Yes, that is exactly right, Mr. Chairman. We have only had first reading and we can’t have this bill come into force until we have the other enacted which will be in the fall. We have to have taxation of some sort.

Mr. Deacon: What really concerns me is trying to work out a formula under the provincial parks formula.

Hon. Mr. Irvine: It is the same formula that exists.

Mr. Deacon: I realize that, but working out a formula which will apply to areas well away from urban areas and subject to much fewer pressures, and a formula for an area such as the parkways in municipalities which have completely different revenue requirements are not the same. The pressures on the parkway land are so different.

I have talked to some of the members of council in the area which will be affected in my riding and they, too, are concerned. I hope there is going to be room in that other Act to take care of the discrepancies and the differences in the conditions.

Hon. Mr. Irvine: Mr. Chairman, I think that matter was brought up before by the member for Waterloo North. That is one of the reasons we are quite happy to look into in the fact of taxation, that is where the lands are situated.

Mr. Chairman: Shall the bill as amended be reported?

Agreed.

Bill 85, as amended, reported.

NIAGARA ESCARPMENT PLANNING AND DEVELOPMENT ACT

House in committee on Bill 86,

An Act to amend the Niagara Escarpment Planning and Development Act, 1973.

Mr. Chairman: Any comments, questions or amendments on any of the first five sections?

Mr. Breithaupt: I want to inquire, Mr. Chairman, whether the minister is bringing forward any amendment in this bill to deal approximately with the same thing? If he is, perhaps the minister could place the amendment and then there may be really nothing further that requires much involvement.

Hon. Mr. Irvine: Yes, Mr. Chairman, I would be happy to bring forward the amendment to

section 6.

Hon. Mr. Irvine moves

section 6 of the bill be struck out and the following inserted in lieu thereof:

“6(1) This Act, except

section 5, comes into force on the day it receives royal assent.

“

(2) Section 5 comes into force on a day to be named by the proclamation of the Lieutenant Governor.”

Mr. M. Cassidy (Ottawa Centre): Mr. Chairman, before accepting that amendment, I have some comments on earlier sections of the bill and we haven’t got to that yet.

Mr. Breithaupt: Perhaps we could agree to pass

section 6 and then go back to other general things.

Section 6, as amended, agreed to.

Mr. Chairman: The hon. member for Ottawa Centre. I will recognize him.

Mr. Cassidy: Thank you. During the course of the debate I said I wanted to get more clarification from the minister about the use of the Ontario Municipal Board as hearing officer and for some elaboration of the Treasurer’s statement that the OMB was going to be expanded in staff and in scope. During the course of the debate, it may have been because of the time being after 6 o’clock, the minister was not able or didn’t comment on that.

Hon. Mr. Irvine: Mr. Chairman, I am sorry, I forgot. The OMB has been expanded by four new officers recently and will be expanded by quite a few more in the near future. This is what you asked?

Mr. Cassidy: Yes, I am sorry, I wasn’t aware of the announcement of the appointments. I must have missed it in my mail.

There’s a real problem in this, Mr. Chairman, and that is that the background and the training of the OMB people, the members of the OMB, tends to encourage them to act in a quasi-judicial kind of fashion. The hearing officer technique which is being developed under the Planning and Development Act and the two related Acts is an innovation in legislation in the province, as the minister is aware. It seems to me -- I am not completely familiar with it -- that the kind of qualities that are needed in a hearing officer are going to be different from those that are needed in members of the OMB.

If OMB members were always doing a job, they may not necessarily always be doing the job that they should do.

Certainly, for example, a lawyer is ill fitted, I would suggest, to take on the job of a hearing officer under the requirements that are put into this bill and put into the Planning and Development Act. It may be that some of the other people with financial training or municipal legal training and municipal administrative training who have tended to get appointed to the OMB are also not particularly well suited to the kind of work that is required to be done in this particular case.

On the other hand, one can argue that the experience of OMB commissioners in going around the province and listening to objections and getting some feeling for what people are talking about in planning these days does fit them better than just an ordinary layman for doing the job. Unfortunately, too many of those OMB commissioners just don’t know where it’s at and the reputation --

Mr. J. A. Taylor (Prince Edward-Lennox): That’s not so.

Mr. Cassidy: That is true. The reputation of OMB as being sensitive to what’s happening and as being the citizen’s friend and this kind of thing was based on the tenure of J. A. Kennedy and the cases in which he was either directly involved or to which he sent two or three of the OMB members who were particularly sensitive to these considerations. I see the OMB decisions on a regular basis through the news clippings that come in, and I would judge right now that the OMB is completely quixotic in its decisions and that it really depends on who you get as to what kind of decision you get from OMB.

In some cases, they are exceptionally responsive or sensitive to citizens groups, and in other oases they simply ignore them completely. If I can cite a couple of examples, without trying to inflame the House: the lengthy series of hearings that went forward in the Kingston township case; and on the other hand, the treatment of citizens who sought to object to the west St. James Town case in Toronto about six or eight months ago, when even David Crombie, for example, was told, “Well, okay, who are you anyway?

What are you doing here?” There was simply no common-sense recognition that David Crombie had a legitimate right to be there and speak, even though he wasn’t a resident of the immediate area, and that citizen groups also had the right to come and speak even though they were not incorporated -- another rather silly decision that was made by some commissioners of the OMB.

It is this uneven quality and unpredictability of the OMB, as much as the lack of training of OMB members for the hearing officer role, that I think raises very serious questions in the government’s decision, which the Treasurer announced, that the OMB commissioners will serve as hearing officers.

In addition, Mr. Chairman, in this bill and in the Planning and Development Act, which we passed without putting into committee, it refers to the appointment of “one or more hearing officers” to conduct the hearings, and then it says that “separate hearings may be conducted at different times and places in respect to different parts of the [Escarpment] planning area.” It says, “A hearing officer shall fix the time and place for the hearing or hearings as determined under subsection 2,” and then in subsection 6 of the amendment it says, “Not more than three months after the conclusion of the hearing, or hearings, the hearing officer conducting the inquiry will report a

summary of representations made to the commission, together with a report stating whether the plan should be accepted, rejected or modified; giving his reasons therefor,” and then if he wants modifications he will make those recommendations to the commission and the commission, in turn, will submit them to the minister.

The point about this is that, in the first place, the reference indicates that the government expects that it will be one hearing officer carrying out this function rather than two or three. It is not mandatory that it be one, I quite agree about that, but I think the minister will agree that where it says, “the hearing officer will set the date and place of the hearing and the hearing officer who conducted the hearing will report to the commission,” the expectation, I think, when the legislation was drafted was that normally one hearing officer would sit.

Again, without being partisan about this, I would be happier about that precedent if it weren’t people from the OMB, but I have had, personally, a rather grievous experience of that period of a year or so when under the legislation passed in this chamber the OMB was permitted to have single-member hearings on OMB cases.

In the case of Rose Fletcher, the speech therapist in Ottawa who was originally rejected in a hearing before one OMB officer, there was an appeal to cabinet, a rehearing was ordered and subsequently I think two OMB commissioners heard the final appeal, which was again rejected on the basis of complaints by four people in the immediate neighbourhood who had been conducting a vendetta against that particular woman and the very good work that she has been doing with young children for many years.

The problem there was that, the original decision having been made by one OMB commissioner, when the members of the commission came back a year or so later to rehear the thing, on orders of the cabinet but without instructions from the cabinet, there was a very strong tendency for them to stick to the club in the same way as Tory back-benchers will stick to the club, or, for that matter, NDP back-benchers will support each other here in the NDP.

The OMB has got that collegiality as well, and therefore, in that particular case, two supported one rather than going another way. The one-member hearings of the OMB, if that was any indication, proved to be a grievous mistake and that is why they were dropped as quickly as they were, Mr. Chairman. I don’t think that they are conducting them like that any more, except in certain very limited cases such as procedural matters.

I don’t want to condemn the board outright, because it has done a lot of good work, and because it is a unique institution, and because the OMB over the last five or six years earned itself quite a reputation and has been widely supported by municipal people across the province. I think, though, that the minister -- I will sit down in a second -- might comment on the qualification of the OMB to carry out the hearing officer function, talk about what alternatives were considered by the government and talk about what steps were being taken by the government and what discussions have been held with Mr.

Palmer, the chairman of the OMB, in order to strengthen the board’s capacity to carry out the role of hearing officer.

The minister may recall, although he wasn’t directly involved, when these three bills came forward a year ago there was heavy emphasis made in the committee that looked at the bills on strengthening the particular clauses of the bills which are parallel to

section 10, I guess it is, of this Act,

section 6 of the Planning and Development Act. We did a great deal in strengthening it; but if the OMB simply treats it as a perfunctory formality, then all of that work could be destroyed. A very useful innovation in planning technique and one that well may be adopted in many cases by the commissioner, when you get him, who looks into the Planning Act could become discredited because of over-reliance on a body that is getting rather creaky and may, in fact, not be capable of carrying out that responsibility.

Hon. Mr. Irvine: Mr. Chairman, I would say to the member we are considering whether or not the role of the OMB should be expanded or retracted in certain ways. I think some of their functions can be handled by our ministry in particular. As for the new appointments which will be forthcoming. I would expect that certainly considerable emphasis will be placed on qualifications in regard to hearings such as this. I agree it is not necessary to have everyone a lawyer.

In the past the practice was to have the majority lawyers. I do know this is a matter to which the chairman and the government are giving very careful consideration as to the appointments in the future. Although it may take a little longer than it should to get good people, I think it is better to wait than to appoint some we might be sorry for. All I can say to the hon. member is we are aware of the situation, we are trying to improve it, and we will do our best.

Mr. Cassidy: The present members of the municipal board hold office at pleasure. In practice that has meant they have had life tenure in the post. I gather they tend to retire around the age of 65, but they stick around for a fair amount of time. I cannot remember exactly what the recommendation of the OMB committee, the select committee of this House, was in terms of tenure. I think we may have talked about a fixed tenure of five or seven years or something like that. The minister was involved with that and he recalls that better than I do.

I wonder whether the government might not consider in a very gentle, gentlemanly, polite kind of way some kind of an early retirement programme which would find alternative places for some of the present OMB members to go to, or which would permit those who wish to take an earlier retirement than 65 to go out with a reasonable kind of pension which would permit them to go back into business or to quit at 60 or something like that.

In other words, if the government is now intent on improving the qualifications and capacity of people who serve terms on boards, if that is the route they chose, I wonder if they couldn’t accelerate the infusion of new blood into the OMB, by gently accelerating the rate at which people leave it, with particular regard to these new functions which are being given and which are pretty demanding in relation to what the OMB has done in the past.

Hon. Mr. Irvine: Mr. Chairman, I really don’t know whether there is any one or more persons that we should remove.

Mr. Cassidy: No, I didn’t say that I just said encourage them to move.

Hon. Mr. Irvine: It is somewhat similar.

Mr. Breithaupt: Something like having a senate.

Hon. Mr. Irvine: In any event, we will investigate the matter.

Mr. Cassidy: I have one other question, Mr. Chairman, relating to these three bills. When the Treasurer commented on these, he said that the government was prepared to make advance purchases, if land is offered that would ultimately be needed, and if the owners were suffering hardships because of government policies. I think that applies to the Escarpment as well as the parkway belt. Could the minister elaborate on that rather sketchy or streaky declaration of government policy?

Hon. Mr. Irvine: Not too fully. All I can say is that the government, through our ministry, has recently settled on a formula as to what we should do in the way of advance purchase and purchases in general.

I expect that hardship cases will be dealt with much more quickly than they have in in the past. I mentioned this before when we were debating it. We realize that some cases have been too slow, and we wish to relieve those who are hardship cases. All I can say to the member for Ottawa Centre is that we will do our best to alleviate any hardship problems.

Mr. Taylor: Mr. Chairman, I am wondering whether the minister can clarify what I understood the member for Ottawa Centre to infer, namely that the Municipal Board was fraught with incompetent personnel in terms of the membership. I have that impression from what the member for Ottawa Centre said, and I think that should be clarified. In my opinion, the personnel of the Municipal Board are very competent indeed and comprise members from all walks of life and all professions.

Surely the minister isn’t concurring that there should be early retirement or that the present membership should be encouraged to leave because of a need to change in some way the makeup of that board.

Hon. Mr. Irvine: No, Mr. Chairman. I clearly stated that I didn’t know of any person or persons who should be changed. I said we would look into the situation. The officers we have, as far as I’m aware, have done a very good job. The hon. member for Ottawa Centre may disagree and the member for Prince Edward-Lennox may agree. However, I think we should make sure that the qualifications of the ones we hire in the future are suitable for the jobs they are going to perform. That is what I was saying.

Mr. Cassidy: The minister should want them to do an even better job.

Hon. Mr. Irvine: And I think they may be able to do a better job. I’m not saying they’re not doing an adequate job now.

Mr. Taylor: Have not the members been chosen from a point of view of looking at their qualifications and ascertaining that they are competent to do the job for which they are appointed? In the past you have taken on people from the accounting area, from the engineering field and a number of planners; you have all kinds of competence on the board.

I am wondering if there is some problem in connection with the discharge of the function of those members. I hate the impression to be left with the House that that board is not functioning as well as it might in terms of the quality of its personnel.

Mr. Cassidy: No, no. It isn’t functioning as well as it should.

Mr. Taylor: It may be lacking in numbers of personnel, but that’s a question of quantity, not of quality.

Mr. Cassidy: I have said what I wanted to say about the OMB. I would judge them by the results. They’re dedicated people, sure; and they are doing their best. But the results are quixotic, their decisions are uneven in quality and there are really some serious questions to be raised.

Were there any women in the four recent appointments to the OMB?

Hon. Mr. Irvine: No.

Mr. Cassidy: There is not a since woman on that board. Are you not going to do something about that? I would have thought, when it comes to these questions of the hearing officers, for example, that it might be useful if women occasionally were to be looking at the problems that are environmental, such as land use, the future of communities and so on.

Hon. Mr. Irvine: I’d be happy to look into that.

Mr. Cassidy: Why don’t you do something about it as well?

Hon. Mr. Irvine: If you’ve got somebody who wants to take the job, that’s fine. We haven’t got anybody who wants to yet.

Mr. Cassidy: This is a standard cop-out on the part of the government. You never wait for men to apply for the jobs; you go out and look for them. That’s what happens.

You should be looking for qualified women as well -- and the member from Rosedale should be helping you. But you should be out actually looking. There are a lot of qualified women around who could do a very good job on the OMB as well as many other boards and commissions, if it weren’t for the anti-women attitude of this particular government.

Bill 86, as amended, reported.

PLANNING ACT

House in committee on Bill 88,

An Act to amend the Planning Act.

Mr. Chairman: Are there any questions, comments or amendments to any of the first five sections?

Mr. Cassidy: Yes, Mr. Chairman --

Mrs. M. Campbell (St. George): On the Planning Act, Mr. Chairman, I understood there were some amendments --

Mr. Chairman: We will have amendments, starting at

section 6. Is there anything before

section 6?

Mr. Breithaupt: Could we have the benefit of copies of those amendments, Mr. Chairman, so that we might be somewhat better prepared to discuss them when they do come forward?

Hon. Mr. Irvine: Yes. Mr. Chairman, could I table the amendments?

Mr. Chairman: You had better start out with the first one anyway.

Hon. Mr. Irvine: That’s on

section 6.

Mr. Chairman: Yes, we finished

section 5.

Mr. Breithaupt: In the other bill, there were just those particular amendments in 84 and 85 which dealt with that problem of assent. Perhaps it might be more practical then to take this bill in the ordinary way and get the comments in a more routine fashion.

Mr. Chairman: That’s what we are trying to do. We have four amendments to

section 6, will the minister place the first one?

Mr. Good: To what

section are we going to have the first?

Mr. Chairman:

Section 6.

Mr. Good: Mr. Chairman, I’d like to speak on

section 4.

Mr. Chairman: I am sorry,

section 4.

Mr. Good: I’d like to know what are the implications of subsection 2 of

section 4 coming into effect on Dec. 17, 1973? Could the minister tell us what the reason for that is?

Hon. Mr. Irvine: I’ll have to ask the member to repeat the question.

Mr. Good: Subsection 2 of

section 4 is shown to come into effect on Dec. 17, 1973.

I am wondering what the reason for that is?

Hon. Mr. Irvine: Mr. Chairman, I understand the reason for the subsection, but I must confess I don’t know the reason for the actual date. I’ll try to get it from the staff, if you’ll let me proceed with the rest of it.

Mr. Chairman: Any further comments on

section 4? On

section 5? The minister has an amendment to

section 6.

Hon. Mr. Irvine moves that subsection 1 of

section 37(

a) of the Act as set out in

section 6 of the bill be struck out and the following inserted in lieu thereof:

“

(1) In this section,

“(a) ‘dwelling unit’ means any property that is used or designed for use as a domestic establishment in which one or more persons may sleep and prepare and serve meals.

“(b) ‘residential property’ means a building that contains one or more dwelling units but does not include subordinate or accessory buildings, the use of which is incidental to the use of the main building.”

Hon. Mr. Irvine also moves that subsection 7 of

section 37(

a) of the Act as set out in

section 6 of the bill be amended by inserting after “$20,000” in the 13th line “for each dwelling unit contained in the residential property in respect of which the demolition permit is issued.”

Mr. Chairman: I am wondering, Mr. Minister, if we can carry the first amendment and then deal with the one that you have just read.

Hon. Mr. Irvine: The amendments I have are all on the same section.

Mr. Chairman: The member for Kitchener.

Mr. Breithaupt: I just wanted to ask a question. I presume that the reason for putting in this residential property definition is to avoid the one apartment in an otherwise commercial building where perhaps there might be an apartment for the superintendent or there might be a penthouse in which the owner might choose to live or whatever, but basically it remains --

Mr. Cassidy: That’s residential by the definition.

Mr. Breithaupt: Yes, that becomes a residential building. Oh, I see, I had misunderstood that on the theory that I was looking at the incidental use. But it’s only additional buildings to which this incidental-use situation pertains.

Mr. Cassidy: An outhouse.

Mr. Breithaupt: So I was wrong in that if there is one residence within a building, even if it’s a commercial building, it still does include itself in this definition.

Mr. Chairman: The hon. member for Ottawa Centre.

Mr. Cassidy: On behalf of the NDP, I would say we’re willing to accept these amendments which simply toughen the penalties, as I understand it, in the case where a property owner demolishes a building without permission.

Hon, Mr. Irvine: That is correct.

Mr. Cassidy: Yes, the two penalty clauses are both toughened up and we certainly accept that. I think the intention of the government was that the penalty clauses be so severe that in effect nobody’s going to risk flouting municipal wishes by simply tearing down a building and going ahead and doing something else without getting a permit. We would accept that.

However, I also have an amendment to subsection 1 of 37a as set out in

section 6, and possibly you could pass the minister’s amendment and then I would be able to move my amendment as a further amendment to his, if that’s okay.

Mr. Chairman: Shall the minister’s amendment carry?

Motion agreed to.

Mr. Chairman:

Section 6 subsection 1 carried.

Hon. Mr. Irvine also moves in

section 6 that subsection 7 of

section 37a of the Act as set out in

section 6 of the bill be amended by inserting after “$20,000” in the 13th line, “for each dwelling unit contained in the residential property in respect of which a demolition permit is issued.”

Motion agreed to.

Hon, Mr. Irvine moves that subsection 13 of

section 37a of the Act as set out in

section 6 of the bill be amended by inserting after “$20,000” in the fourth line, “for each dwelling unit contained in the residential property, the whole or any portion of which has been demolished.”

Motion agreed to.

Hon. Mr. Irvine moves that subsection 15 of

section 7a of the Act as set out in

section 6 of the bill be amended by striking out “notwithstanding” in the first line and inserting in lieu thereof “subject to.”

Motion agreed to.

Mr. Chairman: Does the hon. minister have a further comment?

Hon. Mr. Irvine: I have an answer, if I might, to the Dec. 17 matter. I have been informed that it comes into force on Dec. 17, 1973, because that was the date that subsection 5c was originally enacts. So, we want this re-enactment to be at the same time as the original.

Mr. Chairman: Does the hon. member for Ottawa Centre have an amendment?

Mr. Cassidy: Yes, Mr. Chairman. In fact, I want to propose a couple of amendments here and I’ll refer to them both quickly.

One would be to extend the application of these demolition control procedures to include non-residential properties as well as residential properties, while maintaining the exemption that the minister’s proposals have for subsidiary or ancillary buildings. This would be outhouses, sheds, porches, garages and that kind of thing, I would assume.

A second amendment which I would like to put forward after that one will be to require a municipality to set out a policy to govern its decision about demolition control in a demolition control area.

The third one, which I’ve discussed with the minister’s officials and also briefly with the minister, would be to clarify that housing standards -- maintenance and occupancy standards -- remain in full force in an area of demolition control except in the circumstances where a property owner has applied for a demolition permit. And that’s governed by a particular procedure in this bill.

Mr. Cassidy moves that

section 37a(1) of the Act as set out in

section 6 of Bill 88 be amended to add at the end the words “(

c) a non-residential property means a building not used for human habitation but does not include subordinate or accessory buildings, the use of which is incidental to the use of the main building.” And that

section 37a(2) and (3) of the Act as set out in the bill be amended by inserting after the word “residential” the words “or non-residential.”

Mr. Cassidy: Mr. Chairman, the effect of that would be that a definition of non-residential property is inserted into this

section 37(a). In effect, what the amendment says is that non-residential property is everything that isn’t residential and the only exemption would be in the case of ancillary or subordinate or accessory buildings.

Secondly, subparagraphs 2 and 3, I guess it is, where the reference is to the power to issue or refuse a demolition permit and to create and to prevent the demolition of any property within that demolition control area, is extended to include non-residential property as defined in the previous

section as well as residential property.

I don’t want to argue for a long time about this, Mr. Chairman. I think that the points have already been made in the debate, and the points were also made in the discussions that Mayor Crombie and others have had with this minister, and the points were made at Toronto city council in its meeting yesterday.

City council, which was the instigator of the demolition control procedures that we are considering in the House, and which sought unsuccessfully on two occasions in the private bills committee to get this legislation passed, on June 27 decided to request the provincial government to amend the demolition control legislation so that it is applicable to all types of structures -- and that was one of the two major requests that they made in commenting on the proposals.

Now, as I recall, the promise that was made by the minister to the private bills committee, when the private bills committee narrowly defeated the city of Toronto private legislation, was that he would bring in legislation that was acceptable to the city of Toronto.

As I said during the second reading, certain things here are different. For example, the six-month feature of the city legislation has been extended to the possibility of having a permanent demolition control area designation. But the city’s request covered both kinds of property.

The member for Riverdale has a riding that is particularly affected. It is even more jumbled in terms of uses than is my riding in central Ottawa. He certainly put forward a very cogent case. It doesn’t make any sense to tie the city’s hands in areas that are predominantly residential, for example, by preventing it from refusing demolition permits to buildings that just happen to be commercial or industrial, while allowing that jurisdiction over neighbouring buildings that are residential. That doesn’t make any sense at all.

I would suppose that if we were all to sit down and work at it we might come up with a further compromise that said where there are non-conforming uses, or where there was commercial property or non-residential property in an area that was largely residential, that the demolition control powers would extend to that commercial property; but wouldn’t extend to the Globe and Mail building on King St. at York in downtown Toronto because the area there is predominantly commercial. I suppose that some saw-off s like that would also be possible.

But it seems to me that the most sensible thing to do is simply to give the powers for both non-residential as well as residential property. I don’t think you are going to see abuses. I think that the present situation in Toronto and in downtown Ottawa indicates that where other measures are available to channel, curb, control or create a pause in the redevelopment of the downtown core, those measures are being used right now.

It is, therefore, not going to lead to an over-reliance by municipalities on demolition control legislation in the downtown commercial areas. That is not going to happen.

On the other hand, Mr. Chairman, in my area of Ottawa where there is now a 35-ft height limit as a part of a major planning study, it would be damn useful sometimes if the developers who were tearing buildings down could be forced to hold back for a bit until decisions were made about the future. They are pre-empting decisions about the future of that particular area when they tear down commercial property in an area that, depending on the outcome of the plan, may prove to be ultimately residential, or mixed residential and commercial, or possibly high-rise commercial.

Those decisions haven’t been made yet, but the developers and the owners of that property pre-empt those decisions if they apply for and get demolition permits, and they will not be controlled under this particular law.

I know, and I think the minister may have already commented on it, that there is the possibility of preventing parking lots as a permitted use. But that, in fact, may not be what’s required. It may be that in one area of downtown Hamilton or downtown Windsor or downtown Ottawa, it doesn’t make bad sense to allow the transitional use of certain lands as parking lots. But in another area it is very important to preserve the buildings for a period of time until it is decided what is going to come after.

So you can’t come forward and suggest that a blanket prohibition on parking lots as a permitted use will be effective in every case. In certain cases, there may be quite other circumstances that prevail. The minister, for example, if he makes that argument, or his officials make that argument, didn’t comment on the fact that under federal legislation there are important tax advantages involved in tearing down a building which is otherwise perfectly worthwhile in keeping. I see the minister nodding his head. I don’t know if that was deliberate or not.

Hon. Mr. Irvine: No, I think I was falling asleep. I am sorry.

Mr. Cassidy: It was an accident, okay. When the Toronto Star building, for example, was demolished, Mr. Chairman, it was clearly because of tax write-off provisions within the federal Corporations Tax Act. It was more profitable to the owner of that property -- the Toronto Star, I guess -- to destroy the building and deliver the site in a levelled condition, and therefore not to have to pay recaptured depreciation to the federal tax collector, than it was to hand over the building as a standing and useful structure that could have easily been renovated.

That is a bizarre quixotic kind of result of federal tax law which won’t be stopped simply by a prohibition on parking lots as a permitted use.

People may say that it’s still to their advantage to tear down their building to sell a lot that is empty and to let it sit idle for three or four years before redevelopment without any use whatsoever, because of the tax write-offs that are available to them. Clearly, that is about the worst of all possible worlds. The member for Prince Edward-Lennox should know about these things, having --

Mr. Taylor: I know about them and it maybe that it’s a lousy federal law.

Mr. Cassidy: Okay, but we --

Mr. Taylor: If the laws don’t make sense then maybe the laws should be changed.

Mr. Cassidy: Okay, but as provincial legislators, we can’t change the federal laws, although there are some of us who have been arguing for a long time that we should, and there are others of another party, the government party in this House, who have been defending the corporate interests to thwart the tax laws of the country for a long time up in Ottawa. But whatever we think about those federal laws, we can’t change them in this chamber overnight.

It’s important, it seems to me, if we are concerned about the future of our cities, to prevent the kind of gapped-tooth effect of the mammoth creation of parking lots, the mammoth creation of unneeded, dirty space which is simply staying there idle while speculators wait for something to happen to it. We don’t want to create that and we shouldn’t encourage it. That’s why non-residential demolition should be covered by these provisions and not just residential demolition. Maybe the minister could comment on some of those points.

Mr. Chairman: Perhaps before the minister comments, I should read into the record the amendment moved by Mr. Cassidy.

Mr. Cassidy moves that

section 37a(1) of the Act as set out in

section 6 of Bill 88 be amended to add at the end the words, “non-residential property means a building not used for human habitation but does not include subordinate or accessory buildings, the use of which is incidental to the use of the main buildings;” and that

section 37a(2) and (3) as set out in the bill be amended in line 9 by inserting after the word “residential,” the words “or non-residential.”

Mrs. Campbell: Mr. Chairman.

Mr. Chairman: The hon. member for St. George.

Mrs. Campbell: I would like to put a question to the mover of this amendment, if I could. It would seem to me that if this is adopted -- and of course I am supporting it, as I indicated originally -- but would it not be suitable to move an amendment whereby this would apply where a municipality had by bylaw a non-resident standard of occupancy? Because then it would clarify the situation so that it would apply generally, and not specifically to a completely residential area.

It would seem that following the form and the philosophy of this bill, and knowing that this is in effect in Toronto, it might be useful to insert that or to move an amendment for that purpose.

Mr. Cassidy: I agree with what the member for St. George says. It’s loosely covered in

section 2 where it says that the bylaw to declare a demolition control area applies “in any area within the municipality to which the standards and maintenance of occupancy bylaw applies.”

That’s rather slim, but I think that if the minister accepts the amendment -- as I am sure he is going to do -- then we can sort out the point that you have made -- and make the amendment. It’s obviously in the spirit of the thing that we would assume that demolition control area covering commercial property would require the passage of a maintenance and occupancy standards bylaw for commercial property.

Actually, the standards are probably less needed as a prerequisite for commercial property than they are for a residential property. If you are not applying minimum standards to try to bring up the quality of your residential housing stock, then the government argues -- and I think it is right -- to say that you don’t have the right to go ahead and stop people from demolishing, because you are not doing anything else to bring the area up.

So let’s see the municipality do its bit first, before denying to property owners what had been their right before -- to tear down the place if they didn’t like the look of it.

But if you would accept as granted that when the minister accepts the amendment we can tidy it up -- okay?

Mrs. Campbell: Mr. Chairman, I am sorry I don’t quite accept it in that term. It seems to me --

Mr. Cassidy: If you could draft the different wording, I would be happy to accept it.

Mrs. Campbell: It just seems to me that we have to cover the threat of the non-residential standards so that a municipality is not tied simply to the situation of the non-conforming use in a residential area. I have concerns that this could happen on the amendment which is proposed.

However, Mr. Chairman, if the minister is prepared to reply and if, in fact, he is interested in accepting the amendment as proposed; then there would be no problem in having that portion redrafted to cover the point I am making.

Hon. Mr. Irvine: Mr. Chairman, I think we can dispense with further conversation in this particular part, because I thought I had outlined the government’s position before. We had considerable debate. There is nothing to add to what I said.

Mr. Cassidy: You have had four hours to change your mind, though.

Hon. Mr. Irvine: I said we would only consider residential property at this time. For us to change our minds -- four months, four years -- I don’t know. But in any event --

Mr. Cassidy: I am considering that it took you a year and a half to get to this particular point.

Hon. Mr. Irvine: We will take it into consideration. It’s not loosely covered in

section 2 of 37a, whereby you have to have maintenance and occupancy standards. It is very properly covered there. Not only our legal officials but officials of the city, officials who are outside in private business in the legal profession, have said that is the proper word for that section: “maintenance and occupancy standards must be enforced at all times.” So, Mr. Chairman, I reject the amendment.

Mr. Cassidy: Mr. Chairman, I am not going to argue a long time about this. There’s some hope we may even get home before the end of next week if we go fairly quickly now.

The minister is right about the drafting of the second part of it. I was talking on a slightly different matter. I would ask him and his officials though, to monitor very closely the application of the demolition control bylaws and to look particularly at the questions of, say, the inability of a municipality to control demolitions of commercial property or industrial property where it is in non-conforming use, or in areas that are predominantly residential. It is not covered right now.

You could have a situation where the zoning is residential and yet the property can be demolished without the municipality being able to do a thing about it. I think that is wrong. Even though we would go further and say it should apply to all property, we will divide on this one, Mr. Chairman, but we are willing to stack this vote with a couple of other votes that are coming at a later time.

Hon. Mr. Irvine: Mr. Chairman, I just want to add that we are going to be giving very careful consideration to all parts of this particular

section of this bill, and we will, if necessary, amend it.

Mr. Chairman: All those in favour of Mr. Cassidy’s amendment to the motion will please say “aye.”

All those opposed will please say “nay.”

In my opinion, the “nays” have it.

You are prepared to stack this vote?

Does the hon. member have any further amendments under

section 6,

section 37?

Mr. Cassidy moves that

section 37a(3) of the Act, as set out in

section 6 of the bill, be deleted and replaced by the following:

“37a(3): Subject to subsection 6, a municipality shall set out the grounds on which demolition permits shall be granted or refused for each area that is designated as an area of demolition control, and where application is made to council for a permit to demolish residential property, the council may issue the permit, or refuse to issue the permit, and shall make its decision in accordance with the policy statement referred to in this section.”

Mr. Cassidy: I will comment on this briefly, Mr. Chairman. For two or three reasons I suggested there was a need for a council to try to decide the guidelines by which it would make its decisions on granting or refusing demolition control permits.

One reason was so that property owners knew where they stood. A second reason was just that maybe it would help the council itself to decide what it was doing and why, and therefore avoid future difficulties in making the decisions when applications came before it.

A third reason was that where a property owner was refused a permit, or chose to go to the OMB because he hadn’t had an answer within a month from the council, it would help to serve as a guide to the Ontario Municipal Board commissioner hearing the appeal of the property owner against the refusal to grant the demolition permit. In other words, if the OMB could see that the application was directly contrary to the municipal policy, and if the OMB was satisfied that the municipal policy was a reasonable one, it might be more liable to support the municipal decision than it would be in the absence of any guidelines.

In the absence of any guidelines you might have a situation in which the municipal solicitor would go before the OMB to say, “We don’t want to allow demolitions in this area for these three reasons.” But the developer or the property owner’s solicitor would then go before the OMB and say, “We think we should have the right to demolish because the right to demolish is part of the sacred rights of private property.”

Given the kind of quixotic way in which the OMB tends to work in the absence of dear directions in policy from a government body -- like the cabinet or the government or the municipality -- it might lean toward the rights of private property over what the municipal solicitor said.

Whereas if there was a policy required by law and laid out by the municipality, it wouldn’t be just the municipal solicitor saying, “We cooked up this policy a couple of days ago because we knew we would have to defend our refusal to grant the demolition permit at this hearing.”

It would be the representative of the municipality saying, “This was our policy. The property owner knew the policy and he has still chosen to come to you despite the fact that his request for a demolition permit is clearly against the policy which has been laid out publicly and passed by the municipality.”

Those are the three reasons I think guidelines should be laid down by the municipality. If the minister accepts the idea -- I don’t think it s an objectionable amendment -- if he accepts the idea and wants to clean up the drafting, I would cheerfully allow the clause to be stood until it could be redone by one of the officials.

Mr. Chairman: The hon. minister.

Hon. Mr. Irvine: Mr. Chairman, it is our opinion that the OMB should deal with the matter before it on grounds of natural justice and not conditions which the municipality is going to set out in refusal of a permit. We feel it will be dealt with quite fairly.

I don’t share the member’s views that the OMB has not done its best in all cases. I do share his view that we can always improve in the future and therefore I would like to see that we have the OMB deal with the particular cases as they come before it on the merits of whether the permit should be refused or granted.

Mr. Chairman: Did the hon. member for St. George have a question?

Mrs. Campbell: No, Mr. Chairman, I am concerned with the answer given by the minister; let me put it in these terms. I am not, in expressing my concern, reflecting in any way upon the abilities or the integrities or anything else of the Ontario Municipal Board. However, I am sure there wouldn’t be many judges, learned in the law or otherwise, who would wish to undertake the hearing of an appeal without knowing what the ground rules were for that appeal.

I am speaking now purely in the legal sense and I cannot see how a body of this sort or of any sort could make a decision as to whether or not the city were right or the individual were right in the absence of any land of criteria. While I thoroughly understand the principle of natural justice, I could see that the whole matter of demolition control could be thwarted by the Ontario Municipal Board simply on the basis that a person has a natural right, prior to the legislation, to demolish his own property. Therefore, it would almost consistently, I should think, grant that right because there were no criteria upon which the municipality relied for refusing a demolition permit.

The Premier is present. I don’t know whether he calls himself a lawyer today but he certainly is of that profession. I would seriously doubt the advisability of not having the municipalities set out some criteria upon which they base the refusal of a demolition permit. How can you sit in appeal from the city’s refusal if you have no guidelines?

I would submit that you are imposing upon the Ontario Municipal Board a very difficult task of decision. I notice the minister is shaking his head. I hope one day he is a judge and that he sits on cases without any law or any precedent to back his decisions.

Hon. W. G. Davis (Premier): We can’t arrange that until after July 8.

Mr. Deans: Frankly, I hope the minister never is a judge.

Mrs. Campbell: But surely that is standard? If you have got a law, you have got to have some basis for making a decision. Why is the minister so resolute in this position? Is it because he really doesn’t want the demolition control

section to function? Because if it is, then all I can say is, don’t play games with municipalities in this way. Thank you, Mr. Chairman.

Hon. Mr. Irvine: Mr. Chairman, the member for St. George has said exactly what she said this afternoon and not really very much more; if anything, I would say she has said less.

What we are trying to say to you is this: We know this bill will work. We have had many people involved in this particular legislation, and I think they are much more learned than the hon. member --

Mr. Cassidy: Oh, now, that remark should be withdrawn. You should withdraw it.

Hon. Mr. Irvine: I would say, with all respect to the hon. member, that maybe we should let this legislation be in force for a few months to find out if there are some problems --

Mr. Cassidy: The member for St. George is learned in the law; the minister shouldn’t draw odious comparisons.

Hon. Mr. Irvine: I say to you that the OMB is well able to judge on matters of planning -- and this is what it is; it is a matter of planning for the development of a city or a municipality, whatever the case may be, and I think the OMB can do that.

We have had absolutely no objections from anyone except the hon. member for St. George and the member for Ottawa Centre as to this particular wording of the appeal to the OMB, and I would like to say, with all sincerity, that I think we should wait and see; if we have a problem we will amend it.

Mr. D. C. MacDonald (York South): Mr. Chairman, the minister provokes me to rise. I haven’t been a participant in this debate, but he and I were members of the OMB committee --

Hon. Mr. Irvine: I beg your pardon?

Mr. MacDonald: You were on the OMB committee, weren’t you?

Hon. Mr. Irvine: Yes.

Mr. MacDonald: Yes. And one of the things we learned and discussed at great length, particularly after we watched the operation of comparable boards in Manitoba, say, was the firm advice that the OMB is an interpreter of the law; it doesn’t make the law. Indeed, the chairman of the Manitoba Municipal Board said: “If we have a case come before us and the law isn’t clear, we call a halt on the case, and I write a letter to the government saying, ‘What is the law here?’ Until we know what the law is, we can’t operate.”

Mr. Taylor: Same thing here.

Mr. MacDonald: What do you mean it’s the same thing here?

Mr. Taylor: Why certainly.

Mr. MacDonald: The same thing is valid here?

Mr. Taylor: The proposition is just as valid here. That’s what happens.

Mr. MacDonald: What I am saying is --

Mr. Taylor: Matters of law are now decided by the courts, not by the board.

Mr. MacDonald: The minister’s comment was that he is leaving the board to make a decision on the basis of natural justice. Now that, of course, is nonsense.

Mr. Taylor: There is a legal

interpretation.

Mr. MacDonald: What is natural justice when you come to the question of a demolition? Is it natural justice to deny somebody who owns a property to do as he pleases with it? That’s the kind of natural justice that many people --

Hon. Mr. Irvine: No, no.

Mr. MacDonald: Well, just a minute. That is the old concept of natural justice, and there is a conflict in terms of keeping public interests in balance to those traditional private interests. But the only way you can get the kind of operation which I think is desirable is that the law should be clear, whether it be in a municipal bylaw or in a provincial law. Then the OMB knows clearly within what framework it has to operate, and it doesn’t have to go off into a vague philosophic concept of natural justice. Natural justice is a last resort in trying to achieve justice when you haven’t got a law that is clear on the issue. It seems to me that the minister has defeated his own case.

Mr. Taylor: Your concept of justice is unnatural.

Hon. Mr. Irvine: No further comment.

Mr. Chairman: Shall the amendment moved by Mr. Cassidy, the second amendment, carry?

Those in favour of Mr. Cassidy’s motion will please say “aye.”

Those opposed will please say “nay.”

In my opinion, the “nays” have it.

Shall this be stacked along with the previous amendment and any subsequent amendments to this bill?

Mr. Deans: Yes. Let me just clarify something. We are quite prepared to have all of the votes in committee stacked and held at the end when we complete all the bills.

Mr. Chairman: Is Mr. Deans’ suggestion agreeable to the House?

Mr. Deans: As long as you keep a running tab of whose amendment is what.

Mr. Chairman: Agreed.

Mr. Cassidy: On subsection 7, Mr. Chairman, I don’t have an amendment written out but this is the

section which says if you get a building permit to build something else, you can get a demolition permit notwithstanding anything else. I said during the course of the debate that we disagree but rather than prolong the debate, I would suggest very seriously to the government, on subsection 7, that we are unhappy with the

section in its present form. We would recommend that there be either a delaying procedure or some other technique in order to prevent the automatic right of a builder to get a building permit if he wants a demolition permit.

For one thing it refers here to an application to construct and substantially complete a new building. It doesn’t say what kind of new building. For example, it might be possible for a property owner who wished to be difficult, who wished to blockbust, to put up a new building of very small value, of marginal value -- a set of garages or something like that if that happened to be a permitted use -- in order to get away with a demolition. That doesn’t seem to be acceptable.

I think the clause should be thought through much more carefully than it is now. I would just say that we would disagree with subsection 7.

Mr. Chairman: Any further comment on

section 6? Any subsections of

section 6?

Mr. Cassidy: On subsection 15, Mr. Chairman. I have spoken to the minister about this. I wonder if I can persuade him to accept an amendment now.

If I can take the House through the 14, 15 and the proposed 15(

a) I am going to suggest:

Section 14 says that health and safety rules remain in full force in a demolition control area. Subsection 15 says “subject to health and safety regulations, a building for which a demolition control permit is sought remains subject to health and safety regulations,” but any proceedings under housing minimum standards bylaws which may happen to be taken out or be out against the building on which a demolition permit is sought are stayed until a decision is reached on the demolition permit.

As the minister knows there have been objections from Toronto city council which has looked at this carefully. John Sewell says, with the support of city council, that this would mean if somebody had a place which didn’t come up to housing standards, he would simply seek a demolition permit on it rather than conform with the housing standards order.

I am prepared -- we are prepared -- to go along with the situation that’s put in subsection 15 for now to see whether or not it is abused. Health and safety standards would continue to apply to that building, even if a demolition permit had been sought, and even if it was dragging out for six months before the OMB. That seems to be okay; we are willing to try it.

However, what the bill doesn’t make clear is the express intention of the government that housing standards bylaws will remain in full force in a demolition control area with the single exception of dwellings on which a demolition permit has been applied for. It says health and safety rules remain in full force everywhere, even on buildings where you apply for a demolition permit.

Mr. Taylor: They have got to. They may be a hazard. The building may burn partially down and be a hazard to the passing public. We have to have safety rules.

Mr. Cassidy: That’s right, health and safety rules apply. It doesn’t say, though, that housing standards continue to apply to all buildings except those on which demolition permits are being applied for.

Mr. Taylor: The bylaw would still be in effect.

Mr. Cassidy: The bylaw is still in effect, but the way the bill is worded is ambiguous, because by saying that health and safety rules remain in full effect there is an implication which the lawyers, like the member for Riverdale and the member for Lakeshore, would appreciate that because it doesn’t mention maintenance and occupancy standards that, therefore, those standards may not apply.

I’ve known municipal solicitors who tended to be a timorous bunch and I’ve known too many of them advise the counsel against taking an action which was fully within the law because the municipal solicitor could foresee the slimmest chance of somebody upsetting him.

Mr. Taylor: They are faint-hearted.

Mr. Cassidy: They really are faint-hearted, yes. They tend to be faint-hearted and I would therefore move an amendment.

Mr. P. D. Lawlor (Lakeshore): You know what Falstaff said.

Mr. Cassidy moves that

section 37a of the Act as set out in

section 6 of the bill be amended by adding a new subsection 15(

a) as follows:

“37a(15)(a): A bylaw prescribing standards for the maintenance and occupancy of property remains in full force and effect in respect to residential property situate within an area of demolition control save in the case of property mentioned in subsection 15.”

Mr. Cassidy: I’m sorry I don’t have copies of that, Mr. Chairman, but maybe the minister could comment while I finish writing this out.

Hon. Mr. Irvine: Yes, Mr. Chairman. I would be happy to comment. The amendment is not necessary; we already have this covered. You can’t have a demolition control area unless you have a maintenance and occupancy bylaw to begin with, so you tie the two in